Enforceability of audits

[Whynot]

Can audits of pre-award prime contract proposals ever be enforceable the same way post award contract audits are for contracts that contain the clause 52.215-2? I don?t see a corresponding solicitation provision that by virtue of bidder submitting a proposal for a prime contract award makes the bidder?s compliance with an audit enforceable. I understand that the bidder will likely not receive the award of the prime contract for not complying/responding to the audit, but can they be compelled to comply/respond through subpoena of other legal means ? or do they simply fail the audit?

[here_2_help]

whynot,

I'm having trouble parsing your language. But let me take a crack at an answer anyway.

The answer to your question likely depends on the nature of the "pre-award audit". If the audit is in the nature of fact-finding, i.e., reviewing the support for the prime contractor's proposed costs, then I think the answer is "no, the contractor cannot be compelled to supply the requested supporting data." The natural result of failure to support proposed costs will be a large amount of questioned costs, which likely will affect the contracting officer's negotiating position. In other words, contractors who cannot or will not support proposed costs, should not expect to negotiate a price that includes the unsupported costs.

If what is being negotiated is a commercial item as per FAR 2.101, then my answer above would be different.

If the pre-award audit is a pre-award accounting system survey to see if the contractor can administratively support a contract award, again I think the answer is "no, the contractor cannot be compelled to support the audit with personnel or with documents." In this situation, however, I would expect the result of this failure to result in the contractor being determined not to be responsible and it likely will not receive the award.

Hope this helps.