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Found 1 result

  1. An agency issues a task order solicitation off of a Multiple Award IDIQ Master Contract. It is a competitive 8(a) award off of the 8(a) STARS II GWAC. The Master Contract requires the task order solicitations to contain the Limitation on Subcontracting clause. Somehow, the ordering agency forgot to include this clause. In evaluating the proposals, the agency realized this particular FAR clause is missing. For very good reasons which I will not go into here, the agency believes it is best NOT to amend the solicitation. That would require allowing for revised proposals and starting the evaluation process all over from the beginning. Is there any authority which the agency can use to say that the missing FAR clause is "included by reference" or something like that? We looked at the Christian Doctrine, but it turns out it only applies to contracts, not solicitations. We looked at FAR 52.216-18, which says that, in the event of any conflict between the Master IDIQ K and the task order, the Master Contract takes precedence. But again, it sounds to us like that clause only applies/addresses the contract administration stage, not the solicitation and evaluation of proposals stage. If we have to amend the solicitation, then it would be good to have GAO or COFC decisions to support this course of action so as to more easily convince the end user program office client of why it needs to be done. So we looked at whether this could be framed as a "scope" issue. FAR 16.505(a)(2) requires the orders to be "within the scope . . . of the contract." Could the task order, which was missing the FAR clause on Limitation on Subcontracting, be considered beyond the "scope" of the Master Contract, because it was missing that clause? But that seems like a dead end b/c there is a GAO decision which stated that the "scope of work" in these scope determinations refers only to the real "work" in the solicitation, meaning "Section C" stuff, not anything else. See Colette, Inc.--Request for Reconsideration, B-407561.2, Jan. 3, 2013 ("In entertaining protests related to the issuance of task orders, we have consistently understood "scope" to refer to the scope of work authorized in the underlying contract." GAO rejected the protester's argument that non-compliance with the Master Contract's instructions on how to conduct task order competitions increased the scope of work). Any ideas?
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