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JillElise

Preaward Protest References

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Good morning. My scenario: The government agency has released a FFP/LH/CR type solicitation. I don't feel the contract type is reflective of the PWS, and doesn't adequately/evenly address the PWS risk.

I've been researching preaward protests that involve FAR Part 11 and agencies adequately describing their needs. However, I haven't found one that's tied to contract type. Or, am I missing the boat on the proper section to reference?

I'm hoping that someone can point me in a better direction than the one I'm headed now. Thanks in advanced.

Jill

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"However, the mere presence of risk in a solicitation does not make the solicitation inappropriate or improper. It is within the discretion of an agency to offer for competition a proposed contract that imposes maximum risks on the contractor and minimum burdens on the agency, and an offeror should account for this in formulating its proposal."

Katmai Information Technologies, LLC

B-406885

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Guest Vern Edwards

JillElise:

What is your specific complaint? Are you complaining that the PWS does not adequately describe the requirement? Or are you complaining that the contract type is inappropriate?

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Vern,

Both; I don't believe they are not suited for each other. However I started my research going down the PWS element first. If they were going to retain the current PWS, then I would suggest a T&M would be more appropriate. With the FFP CLIN and the MACK truck that could drive through this PWS, there is a high level of uncertainty that would drive up my FFP price. I understand that there is risk associated with all work, yet FFP is best when risk is minimal or can be predicted with an acceptable degree of certainty.

Thank you for your time.

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Guest Vern Edwards

JillElise:

I'm not sure what you have in mind, but I doubt that a protest against the choice of contract type would be effective. The GAO says that it will review selection of contract type. However, COs have so much discretion in the selection of contract type that GAO is unlikely to sustain a protest against the selection of a particular type. See Surface Technologies Corp., GAO Dec. B-288317, 2001 CPD para. 147:

The selection of the appropriate contract type is committed to the sound judgment of the contracting officer. FAR section 16.103(a). We will review the contracting officer's determination as to contract type to ascertain whether that decision was reasonable. United Food Servs., Inc., B-220367, Feb. 20, 1986, 86-1 CPD ¶ 177 at 6.

But see also Hadson Defense Systems, Inc. - Reconsideration, GAO Dec. B-244522, 92-2 CPD para. 201:

Generally, the selection of a contract type is in the first instance the responsibility of the contracting agency; our role is not to substitute our judgment for the contracting agency's, but instead to review its actions for compliance with applicable statutes and regulations. Spectrum Technologies, Inc., 69 Comp. Gen. 703 (1990), 90-2 CPD ¶ 196; Todd Pacific Shipyards Corp., B-242311, Mar. 29, 1991, 91-1 CPD ¶ 337.

Those decision are representative of the GAO's position. It's a matter of discretion, and in order to succeed in a protest you would have to show that the CO was unreasonable. As far as I know, it has not been done. Not in the last 30 years, at any rate.

The Federal Circuit and the Court of Federal Claims has also held that COs have considerable discretion in selection of contract type. See Short Bros. PLC v. U.S., 65 Fed. Cl. 695 (2005):

The Federal Circuit was confronted with a similar argument in AT & T. AT & T claimed that “the Navy violated a variety of procurement regulations and directives that guide a contracting officer's selection of contract type.” AT & T, 307 F.3d at 1379. The court concluded that the regulations relied on by AT & T (FAR sections 16.104, 35.006, 216.101, 216.104 (1987)) grant the contracting officer discretion in selection of contract type. Id. (citing also FAR section 16.103(a); 10 U.S.C. section 2306(a) (1982)). Even if the contracting officer had abused his discretion by negotiating the contract on a fixed-price basis, “[t]hese cautionary and informative regulations and directives provide only internal governmental direction. Like section 8118, these provisions supply no remedy for private parties in a judicial forum.” AT & T, 307 F.3d at 1380.

While it is theoretically possible to successfully protest the selection of contract type, I think it unlikely that a protest would succeed. But you can always give it a try. If you do, you'd better have a heck of an argument. You won't prevail if all you've got is a different opinion, especially if you are advocating use of a T&M contract.

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