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In two recent cases, disappointed contractors protested when agencies failed to request clarifications or open discussions. Both Defense Base Services and Level 3 argued that the issues with their proposals could have been remedied if given the chance. GAO denied both offerors’ protests. Yet when Level 3 persisted at the COFC, the judge concluded that an agency’s failure to request clarifications constituted an abuse of discretion. The cases illustrate the difference in the way GAO and the COFC view clarifications and discussions, and shed insight for offerors under similar circumstances. Read the full article at Petrillo & Powell's Patterns of Procurement.
Example: CPFF Term/LOE Navy Contract which ended December 2007. Standard Navy LOE clause in contract states; "If the total level of effort specified in paragraph (a) above is not provided by the Contractor during the period of this contract, the Contracting Officer, at its sole discretion, shall either (i) reduce the fee of this contract as follows Fee Reduction = Fee (Required LOE - Expended LOE)/Required LOE or (ii) subject to the provisions of the clause of this contract entitled "LIMITATION OF COST" (FAR 52.232-20) or "LIMITATION OF COST (FACILITIES)" (FAR 52.232-21), as applicable, require the Contractor to continue to perform the work until the total number of man-hours of direct labor specified in paragraph (a) above shall have been expended, at no increase in the fee of this contract. The payment clause has allowed the billing to be % of allowable cost of each invoice. Indirect rates have been audited and now it is time for final invoice. LOE has not been met and a significant refund is due for the variance between % of cost and LOE incurred. Questions? 1) Is it up to the Contractor to automatically refund the fee billed in excess of the LOE calculation at close out or wait until the CO reduces the fee? 2) Is there any recourse penalites on the Contractor for not refunding the fee earlier at contract end when it was known the LOE was not met?