Jump to content
The Wifcon Forums and Blogs


  • Posts

  • Joined

  • Last visited

Recent Profile Visitors

991 profile views
  1. The CO found them responsible because they signed the contract, indicating that their organizational conflict of interest had been mitigated. The conflict does not pertain to what we are requiring the contractor to do, it is an organizational conflict that is internal, not related to the work, but only an issue because the contractor wants to represent an Agency to which its clients are in litigation against or have been in litigation against, hence the term adverse.
  2. Sorry for the delay. I tried to be vague with the details so I did not lead anyone back to the procurement itself. Hopefully, I can clarify the confusion below without being too detailed. The procurement is for legal advisory services. The offeror represents clients that are adverse to the Agency to which I work for, which they refer to as "the Authority." The contractor didn't say they weren't going to fulfill the Government's obligation, they can't. As I stated in the original post, the contractor signed the contract without obtaining waivers from all of their clients. The contractor's state bar rules state, in part, that a conflict of interest may exist before representation is undertaken, in which even the representation must be declined, unless a lawyer obtains the informed consent of each client. This language suggests the offeror should have declined to represent the Agency unless it first obtained the required waivers. The offeror plainly stated in its conflict of interest plan that it identified certain conflicts and if it received an opportunity for award, the offeror would need a formal waiver from existing clients. While the offeror might have been overly optimistic about receiving those waivers, there is little question that the offeror knew that they had to be obtained, and arguably, should not have accepted a contract award without first obtaining the waivers. Accordingly, the offeror seems to have been on direct notice that the procedures followed in making the award were inconsistent with the applicable state bar ethics rules. At no point did the contractor make mention of not being able to obtain the waivers when they sent back the signed contract to be fully executed. When signing the contract award, to be in compliance with their own state bar rules, it certifies that the conflict of interest had been mitigated, which allowed the CO to award in accordance with FAR 9.504 (e). When the contractor responded three days after execution of the contract, as explained in the original post, they admitted to not being able to obtain waivers from all of their existing clients, which is a clear violation of their state bar rules. To be considered void ab initio, the contract does not have to be in violation of a procurement regulation. Now, whether the state bar rules constitute a valid regulation that the contractor was on direct notice of, for purpose of determining whether the award is void ab initio isn't entirely clear because the state bar rules don't regulate the procurement process per se, however, FAR 9.504 (e) and agency specific COI provisions do, and it seems fairly plan on their face that award shall not be made when unresolved conflict exists. I hope this clears things up, sorry for the muddy explanation.
  3. I have a situation with a recently awarded multiple award contract. This award was made on the basis of lowest price, technically acceptable and there were a few technically acceptable offerors that did not receive the award due to price. Three days after the awards were fully executed, one of the awardees stated that they could not do business with our agency because a few of their clients who were adverse to agency would not sign a waiver for them to work with the Agency. In the solicitation, there are disclosure requirements for the offerors regarding organizational conflict of interest and the offeror is required to certify whether it is aware or not aware of any potential organizational conflict of interest and the disclosure statement shall describe how any such conflict can be avoided, neutralized, or mitigated. The awardee did state in their proposal that they did represent clients that were adverse to the Agency, but did not believe such representation would preclude them from representation of the Authority and if given the opportunity, they would obtain waivers from these clients. I sent the contract to them to review, sign and send back to me to fully execute and gave them three days to do so, in that time, this awardee made no mention of the inability to obtain waivers from their adverse clients. So, when they signed the contract, they signed it knowing they had not obtained the waivers as they disclosed they would need to do in order to avoid, mitigate or neutralize organizational conflict of interest. So, my question is, can this contract be considered void ab initio? I have found a few GAO cases that discusses void ab initio. They are from the 70s and 80s and the scenarios aren’t necessary exactly the same, but each have stated the position that once a contract comes into existence, even if improperly awarded, it should not be canceled, that is, regarded as void ab initio, unless the illegality of the award is “plain” or “palpable.” As stated in another GAO case, Warren Brothers Roads Company v. US, the test of plainly or palpably illegal award is whether the award was made contrary to statute or regulation because of some action or statement by the contractor was on direct notice that the procedures being followed were inconsistent with statutory or regulatory requirements. If the test is not met, a contract may not be canceled, but can only be terminated for the convenience of the Government. Would the awardee knowingly signing a contract when their organizational conflict of interest not being mitigated, neutralized or avoided constitute as passing the test? Thanks in advance for your help!
  4. Thank you everyone for your responses. FAR 15.206 clearly states, " 15.206 -- Amending the Solicitation. (a) When, either before or after receipt of proposals, the Government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation. (b) Amendments issued before the established time and date for receipt of proposals shall be issued to all parties receiving the solicitation. (c) Amendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from the competition. My scenario is that we are past the established time and date for receipt of the proposals, so the only part of FAR PART 15.206 that would apply to my situation would be (c). Correct? So, my confusion was to interpret the language, "offerors that have not been eliminated from the competition." I understand what Don is saying, that if you eliminate from competition, then you would only send the amendment to those in the competitive range or you could just issue the amendment to all offerors. So, I would just need to determine which is more efficient for my scenario. I don't have to issue the amendment to all offerors, just to those who have not been eliminated from competition. Thanks everyone for your help. I believe I have clear path on my next steps.
  5. Thank you. If you don't mind me asking, how do you interpret the statement, "that have not been eliminated from competition."
  6. Thank you. I have a feeling that my question(s) are not clear. I was not originally asking if it was ok to amend a solicitation. My question is basically asking if it is ok to award (without discussions/sol amendment) to six technically acceptable offerors when it clearly it states in the solicitation that we intended to award up to five. My initial thought is no, but I thought I had read a GAO decision where an Agency awarded to more than anticipated awardees under a Multiple Award vehicle and one of the awardees felt it would limit their opportunity to win task orders since the pool increased. Based on the responses above, it seems that I'm totally making this GAO case up in my head. Then, based on the conversations above, I further questioned my interpretation of FAR 15.206 (c), if I wanted to amend the solicitation, since we are beyond the established time and date for the receipt of proposals,
  7. Maybe I'm not interpreting FAR 15.206 (c) incorrectly, but I was under the impression for amendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from competition. The solicitation closed and we are in the process of evaluating the proposals. When I read, "to all offerors that have not been eliminated from competition," I read that a competitive range should be determined to establish which offerors are not eliminated from competition. Am I wrong?
  8. Since this would be an amendment after the established time and date for receipt of proposals, I would have to determine the competitive range and open discussions. Which is fine, if necessary. I feel like I read a GAO case that was denied where a contractor protested an Agency adding another awardee even after stating they would award up to a certain amount. I think I'm dreaming it. Thanks everyone for your help!
  9. Good Morning, I am in the process of evaluating offerors for an IDIQ contract. The solicitation stated that we would make up to 5 awards for this solicitation. I was curious to see if we could award to more than state in the solicitation? I have looked on WIFCON to see if this topic has come up and could not find anything. Any guidance would be helpful. Thanks!
  10. Don: Thank you for your response. Vern: Thank you for your response.
  11. Thank you everyone for your responses. JJ: I'm not sure what your are asking, but we have 2yr money, so in order to use the money obligated at contract award, it would need to be done in the FY 15/16. Don: Yes, we obligated 15/16 funds that will expire 9/30/16 and have ordered work for only two of the three contractors. The practice in our agency is when the first task order is awarded, we allocate from from the obligated amount at the contract level to the task order. This satisfies the minimum However, the forecast is grim and I'm concerned the minimum will not be satisfied for the third contractor before the money expires. Since we are a civilian agency, money is hard to come by, so to avoid losing the 15/16 funds obligated at award for the minimum, I suggested awarding a sole source task order to Contractor 3 to satisfy the minimum. Vern: Funny thing, both of the people reviewing my approach are attorneys. Legal's stated that I can't justify issuing a sole source to satisfy the minimum in the first year of contract performance to avoid the expiration of the 15/16 funds. Legal's position is the contract has an ordering period of 5 years to satisfy the minimum for all three contractors, therefore, issuing a sole source task order to satisfy the minimum after 1 year of service is not justified. Legal went on further to state that it is not the Government's obligation satisfy the minimum and cited the White v. Delta case was used to support their position.
  12. I awarded a ID/IQ contract to three contractors in February '15. We have awarded task orders to two of the three contractors to satisfy the minimum, however, based on the forecast, it is possible that the third contractor might not have the minimum satisfied in the current fiscal year (15/16). To determine our next steps, there have been multiple discussions between contracting officers, legal and branch chiefs. I am a new contracting officer and this is the first task order contract I have administered. I suggested using the fair opportunity exception at FAR 16.505 (b ) (2)(i)(D) to sole source a TO in order to satisfy the minimum. My team leader reviewed my stance and responded as follows: "Seems to me your options are limited. Because the awards were made in FY 15 the Bonafide Need rule requires that the funds available at the time of award FY 15/16 being retained under each contract (whether on the contract or task order). The issue at hand is one of the Agency getting use out of its obligated funds and should be distinguished from a case of needing to satisfy our minimum commitment to the contractor (which does not arise until the ordering period expiries. 1. Satisfying our Appropriation Rule on Bonafide Need We need to maintain 15/16 funding under each contract, whether under the contract itself of under an issued TO that may extend beyond the funds availability for obligation, but will be supportive of the BN at the time of issuance. TO with performance periods stretching beyond the availability of FY 15/16 funds while this appropriation is available would preserve the BN supporting the underlying contract. If we issue a TO using 16/17 funds, we would meet our contractual obligation to the contract holder, but we would still have to keep the funds obligated at award (15/16 funds) on the contracts and to do so otherwise would result in a violation of the BNR, as we would have failed to support the BN for what the contract was procuring. " Legal went further to state: A sole source task order under the exception to FAR 16.505 (b )(2)(i)(D) cannot be issued. The contract POP is 5 years. Therefore, approximately 4 years remain of the POP, while approximately 7 months remain prior to the end of the fiscal year. Consequently, there is enough time for the contract holder in question to receive additional competitive task order awards sufficient to liquidate the balance of the minimum amount obligated to the contract at the time of the award. Neither the FAR guidance nor any of the clauses included in the contract provide for an exception to the "fair opportunity to compete" for task orders that would facilitate the reduction of the outstanding minimum balance and avoid the expiration of the FY funds placed on the contract at the time of award. Furthermore, failure to issue a task order to the contractor in question under which 15/16 funds can be used, does not mean the money is "lost" per se, What it does mean is that , if the Agency does not issue any task orders to the contract holder in question between now and the end of the ordering period, those FY 15/16 funds will still be available to liquidate whatever portion of the minimum is due and owing to the contract holder in question. As to how that amount is calculated, I direct your attention to the CAFC case White v. Delta Construction International, Inc., 285 F.3d 1040. What that means is: The contractor in question would only be due payment of an amount that reflected the delta between the costs it would have incurred had the minimum amount been satisfied in total, given indirect costs and profit. So. I have two questions: 1. How does White V. Delta overrule the Government from fulfilling its obligation under 52.216-22? 2. Why would the use of the fair opportunity exception at FAR 16.505( b ) (2) (i)(D) to sole source a TO in order to satisfy the minimum not apply? I would think the potential to violate the BNR would be even more of a reason to sole source.
  • Create New...