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Dispute Resolution at the Task Order Level


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Good afternoon,

I am a contract specialist administering a large contract utilized by agencies across the government.

One agency has made allegations of noncompliance toward one of the contractors for quite some time. The allegations stem from performance under a particular task order issued against our contract.

At first, as the administrator of the overall contract, our office interceded in an attempt to mediate the dispute. We were able to whittle the list down somewhat, then our management issued a strong directive to the contractor to work more closely with the agency to resolve the remaining items.

These open items have not been disputed by any of the other agencies receiving the same services, only one particular agency.

It appears the parties (contractor and ordering agency) are now back to square one and we are being drawn in once again.

What is the proper role of the agency holding the contract when a dispute arises under a single task order?

Thank you.

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Guest Vern Edwards

Does the contract itself say anything about that? In some cases the contract says that disputes must be handled by the CO for the agency that issued the order. In others it is the CO for the underlying contract. I am not aware of any governmentwide rule in that regard.

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Guest Vern Edwards

I don't know when the contract was awarded, but unless it is a GSA FSS contract any authorization to allow another agency to place orders should have come with an interagency agreement about such things.

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By read of the FAR there is intent for an agency to identify an ombudsman for such purposes. Ref. FAR 16.505( B )(5).

Many civilian departments state such a designation in their FAR supplement, for DoD such designation is found in agency supplements such as the AFARS, DARS, etc.

Reality suggests that most believe the ombudsman is intended to only handle issues regarding fair opportunity but there are those departments that provide that the ombudsman is there to deal with any complaint regarding task/delivery orders. An example would be the Department of State (DOSAR) clause 652.206-70 Competition Advocate/Ombudsman (text below). You may or may not realize success in referring your issue the appropriate ombudsman.

“COMPETITION ADVOCATE/OMBUDSMAN (AUG 1999)

(a) The Department of State’s Competition Advocate is responsible for assisting industry in removing restrictive requirements from Department of State solicitations and removing barriers to full and open competition and use of commercial items. If such a solicitation is considered competitively restrictive or does not appear properly conducive to competition and commercial practices, potential offerors are encouraged to first contact the contracting office for the respective solicitation. If concerns remain unresolved, contact the Department of State Competition Advocate on (703) 516-1680, by fax at (703) 875-6155, or write to: U.S. Department of State, Competition Advocate, Office of the Procurement Executive (A/OPE), Suite 603, SA-6, Washington, DC 20522-0602.

( B ) The Department of State’s Acquisition Ombudsman has been appointed to hear concerns from potential offerors and contractors during the pre-award and post-award phases of this acquisition. The role of the ombudsman is not to diminish the authority of the contracting officer, the Technical Evaluation Panel or Source Evaluation Board, or the selection official. The purpose of the ombudsman is to facilitate the communication of concerns, issues, disagreements, and recommendations of interested parties to the appropriate Government personnel, and work to resolve them. When requested and appropriate, the ombudsman will maintain strict confidentiality as to the source of the concern. The ombudsman does not participate in the evaluation of proposals, the source selection process, or the adjudication of formal contract disputes. Interested parties are invited to contact the contracting activity ombudsman, [insert name], at [insert telephone and fax numbers]. For an American Embassy or overseas post, refer to the numbers below for the Department Acquisition Ombudsman. Concerns, issues, disagreements, and recommendations which cannot be resolved at a contracting activity level may be referred to the Department of State Acquisition Ombudsman at (703) 516-1680, by fax at (703) 875-6155, or write to: Department of State, Acquisition Ombudsman, Office of the Procurement Executive (A/OPE), Suite 603, SA-6, Washington, DC 20522-0602.”

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Guest Vern Edwards

There is no such place in FAR as 16.505(B)(5). However, 16.505(B)(6) says:

Task-order and delivery-order ombudsman. The head of the agency shall designate a task-order and delivery-order ombudsman. The ombudsman must review complaints from contractors and ensure they are afforded a fair opportunity to be considered, consistent with the procedures in the contract. The ombudsman must be a senior agency official who is independent of the contracting officer and may be the agency's competition advocate.

In the FAR system, Department of Health and Human Services, Department of Agriculture, GSA, Department of State, Department of Veterans Affairs, Department of Energy, Department of the Treasury, Department of Transportation, Department of Commerce, NASA, Nuclear Regulatory Commission, Department of Justice, Department of Labor, Department of Housing and Urban Development, and Department of Homeland Security have published regulations concerning ombudsmen for task and delivery order contracts.

Except for the supplement the Department of State and NASA, the other supplements are silent or vague about any role for task or delivery order ombudsmen in postaward matters.

A CO who sees the possibility of a dispute with a contractor should try to settle the matter amicably. If that doesn't work, alternative dispute resolution is available, and I suppose that an ombudsman could be called upon for that if he or she is willing to play the role and is capable. See FAR 33.214. Otherwise, the parties may have to take the claim-final decision-appeal route.

This thread began with this inquiry:

I am a contract specialist administering a large contract utilized by agencies across the government... One agency has made allegations of noncompliance toward one of the contractors for quite some time... What is the proper role of the agency holding the contract when a dispute arises under a single task order?

In FAR Subpart 17.5, Interagency Acquisitions, FAR 17.502-1(B) says:

(B) Written agreement on responsibility for management and administration--

(1) Assisted acquisitions.

(i) Prior to the issuance of a solicitation, the servicing agency and the requesting agency shall both sign a written interagency agreement that establishes the general terms and conditions governing the relationship between the parties, including roles and responsibilities for acquisition planning, contract execution, and administration and management of the contract(s) or order(s). The requesting agency shall provide to the servicing agency any unique terms, conditions, and applicable agency-specific statutes, regulations, directives, and other applicable requirements for incorporation into the order or contract; for patent rights, see 27.304–2. In preparing interagency agreements to support assisted acquisitions, agencies should review the Office of Federal Procurement Policy guidance, Interagency Acquisitions, available at http://www.whitehous...ac_revised.pdf.

(ii) Each agency's file shall include the interagency agreement between the requesting and servicing agency, and shall include sufficient documentation to ensure an adequate audit consistent with 4.801(B).

(2) Direct acquisitions. The requesting agency administers the order; therefore, no written agreement with the servicing agency is required.

The answer to opening question depends on whether the order was an assisted acquisition or a direct acquisition. If it was an assisted acquisition the answer depends on what the agreement between the agencies says. Those questions should be settled before thinking about ombudsmen.

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