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Ground Rules and Assumptions - Legally Binding


Steveatus

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Which leads to the root problem. That is awarding a contract to a firm that plainly explained in a cover letter whatever it's understandings and conditions for its proposal were based upon where such information conflicts with the solicitation. This should not happen. The awarding office should know what is in the solicitation . It should also know not to award a contract based upon a non conforming proposal and what to do to resolve known inconsistencies before awarding a contract.

Precisely. If the contractor's proposal said "we assume you mean X, so we propose to do..." and the government really meant Y, the contract should not have been awarded without resolving that issue in the first place.

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Seeker, I thought Carl's explanation of how SF 26 works made it pretty clear that Sections L and M from the solicitation would not be part of the contract awarded. That is because in accordance with block 17, the contract to be awarded consists of the solicitation sections checked in Block 16 of the SF 26. The FAR instructs contracting officers only to check the block for K. If contracting officers do not check the blocks in 16 for L and M, from your latest post, I take it that you still believe those sections are part of the contract because of (B) in block 17. Am I understanding you correctly?

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Seeker,

You are referring to documents (a), ( b ), and ( c ), as the "contract." I'm not saying that is wrong, but it is confusing because the term "award/contract" is used to describe document (a). Document (a) would not typically include Section L, which is why I was confused when you said that Section L was part of the contract. My bad.

Also, there is no basis for interpreting the term "award/contract" in Block 17 as meaning only the SF 26 and continuation sheets. I have explained what's wrong with such an interpretation in my post #24. I'm sorry you didn't understand it. I bet if you back and read it in a day or so, when you're not in the midst of an argument, it will make sense.

In any case, I appreciate your kind words. I hope to see you participate more in these discussions. Your posts are very good.

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  • 2 weeks later...

I tried to let Seeker's "Asleep at the switch" comment slide, but it has festered with me for a number of days. Is it really necessary to be condescending? First of all, I was trying to provide additional clarification in response to a previous comment. Secondly, isn't this forum intended to be helpful? If posters are subject to ridicule, doesn't that really defeat the purpose of this forum? Can't we all strive to treat each other with respect?

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I think seeker feels that she had answered the question (several times) already before your later follow up. Please read, for example, some discussion regarding the parol evidence rule at http://www.ehow.com/about_6660628_parol-evidence-rule.html

My point was that the Government should resolve discrepancies between an offer and the Government's solicitation or the government's interpretation of the solicitation before ever awarding a contract to that firm. There are all sorts of board and court decisions stating to the effect that it is a fundamental rule of government contract law that the government must not award a contract based upon a non-conforming offer. Thus, if the government intends to accept the terms and conditions of a non-conforming offer, it is required to revise the solicitation to reflect those terms and to allow all firms to compete based upon the revised solicitation. If it is a sole source acquisition, the government should amend the solicitation or otherwise indicate adoption of the terms and conditions if it accepts them. I'm not a lawyer, but I would think that if there is no indication of acceptance of the terms and conditions by the government in the contract, then the parol evidence rule would apply. I'm also assuming that the contractor signerd the contract after the KO executed it.

The contractor should not have executed the contract without the inclusion of its cover letter or at least the terms and conditions in the cover letter if it intended that such was to control the contract interpretation. Am I correct? If the Government signed the contract after the contractor signed it based upon its offer, then there might be a legal problem.

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