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An agency policy office just issued the following guidance shown below.

October 20, 2014 - "SHOULD I INCORPORATE CLARIFYING QUESTIONS AND ANSWERS INTO THE SOLICITATION VIA AN AMENDMENT?"

The answer to this question is NO.

Contracting Officers must post clarifying questions and answers to FedBizOpps so that all potential offerors have the benefit of the government’s response but NOT as an amendment in and of itself.

If, after reviewing the clarifying questions, the government determines that the requirements and/or terms and conditions of the solicitation must change, the Contracting Officer shall issue a formal amendment incorporating the change(s) only. The clearest way to make such change(s) is to reference the applicable part of the solicitation to be changed, delete the existing language and replace it with the new language.

Changes to a solicitation often require contractors to rework their proposals. As such, the CO should add sufficient time to the proposal submission time to allow offerors to rework their proposals. Generally, a week to 10 days may suffice, but if the changes are extensive or complex, even more time may be required.

My concern is, GAO has previously held that Q&As are, in and of themselves, an "amendment" to the solicitation, whether the agency calls them that or not (See General Electric Canada, B-230584, which held: Where letter containing questions and answers concerning the terms of the solicitation is furnished to all offerors in a writing signed by the contracting officer, this letter meets the essential requirements for a solicitation amendment and is binding on all parties).

What am I missing?

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Guest Vern Edwards

I don't understand what you're worried about. Here is what GAO said in the decision you cited:

[T]he protester argues that the solicitation is ambiguous. The protester sent 29 questions by letter dated February 1, 1988, to the Corps concerning evaluation factors, how proposal content would be protected from disclosure, why the RFTP contains two bidding schedules, and what line items are considered services as opposed to supplies and end products. There were also questions seeking affirmation of the protester's understanding of the specifications and speculation about what will happen among the Corps, Hitachi and the new contractor after award under the current solicitation. In response to the protester's questions, the Corps answered all 29 questions by letter and provided all prospective offerors a copy of the questions and answers. Additional amendments concerning only some of these matters were also subsequently issued. The gist of this protest allegation stems from the protester's belief that the Corps should have answered the protester's 29 questions by a formal amendment to the solicitation rather than by a simple letter to all offerors. However, we find that although the letter was not formally designated as an amendment, it was in writing, signed by the contracting officer, and sent to all offerors. These are the essential elements of an amendment. See Audio Visual Concepts, Inc., B–227166, July 24, 1987, 87–2 CPD ¶ 86. We therefore think the written questions and answers constituted an amendment and was binding on all parties, even though it was not officially designated as an amendment. Id.

I read that as the GAO tossing off a groundless complaint. What significance does that have for the policy letter that worries you so much?

If Q&As don't change anything, then there is nothing to be bound by. If they do change something, perhaps inadvertently, I'm pretty sure that GAO will hold the agency to it, whether the Q&As were under an SF30 or posted to FBO.

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Let's say an offeror asks, Is there page limit to the technical proposal? The CO issues a Q&A "letter" saying "The page limit for technical proposals is 10 pages. Anything beyond 10 pages will not be looked at by the evaluators." The solicitation closes. The offeror submits a proposal that is 15 pages. Yes, he or she is obviously an idiot who didn't read or remember the CO Q&A letter. But in any case, it is what it is. The CO, seeing that the offeror's proposal is 15 pages, removes those last 5 pages and gives only the first ten to the evaluators to be evaluated. Not surprisingly, the offeror's proposal is found technically unacceptable. A selection is made, the Notice of Award letters go out, and the offeror files a protest at GAO alleging it was misevaluated. Specifically, the offeror alleges that, since the 10-page page limitation was only mentioned in a Q&A, and never actually put into the Solicitation by an official Amendment, that it was unreasonable for the Agency to not give the evaluators pages 11-15 and let the proposal be evaluated in its entirety.

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Guest Vern Edwards

Well, govt2310, the idiot was not the offeror, it was the CO, who apparently did not know that adding a page limitation was amending the solicitation and should have been done pursuant to proper procedure. I think that the GAO would hold the offeror to it, but who knows.

The thing is, your policy letter says that if Q&As require the issuance of a "formal" amendment, then the CO shall issue a "formal" amendment. Do the COs in your agency lack brains and professional know-how? Are they not diligent? Do you sit around a lot pondering 26 year old GAO decisions?

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Well, govt2310, the idiot was not the offeror, it was the CO, who apparently did not know that adding a page limitation was amending the solicitation and should have been done pursuant to proper procedure. I think that the GAO would hold the offeror to it, but who knows.

The thing is, your policy letter says that if Q&As require the issuance of a "formal" amendment, then the CO shall issue a "formal" amendment. Do the COs in your agency lack brains and professional know-how? Are they not diligent? Do you sit around a lot pondering 26 year old GAO decisions?

My point is, it is my view that there is no such thing as a "formal" versus "informal" amendment to the solicitation. Once a Q&A is posted, and the "answers," if different and/or more detailed than what was in the original solicitation, are an "amendment" to the solicitation. So just by the CO issuing the "letter," that in itself is an amendment. There is no need for the CO to follow some "proper procedure." The "letter" was it. It would nice and cleaner if the CO issued it the more normal way, by calling it a solicitation amendment, but nevertheless, it is for all intents and purposes an "amendment."

My worry is, the policy guidance gives the impression that issuing Q&As does not "amend" the solicitation.

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Guest Vern Edwards

Well, if you think about it, whether any communication is an amendment depends on its content. To amend is to change. Answers to questions about a solicitation do not necessarily change it. If they do, then they amend; if they don't, then they don't, even if the GAO calls the answers an "amendment." So, your point is well taken, but I don't see anything to worry about.

I would still issue a Q&As as a "formal" amendment under SF 30, if for no other reason than tradition and common practice.

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It used to be a common practice to issue a formal amendment for Q&As. For better or worse, procurement tools are making it easier for COs to respond to questions without a formal amendment. For example, GSA e-Buy and NASA SEWP have attempted to simplify the Q&A process and encourage agencies to respond to questions without amending the solicitation. About a year ago, GSA "amended" its e-Buy system to allow agencies to "Respond to Questions" - it allows you to write in the responses to questions or attach a document, but does not consider those responses as an amendment to the solicitation. NASA SEWP's web portal features a similar option. SEWP added a feature several months ago that allows you to provide an extension to a Solicitation using the "Extend RFQ" button in response to a Vendor's request to extend; that button does not give you an option to attach an SF-30. Further, FedConnect also allows Vendors to submit questions, and agency's respond, through a mere text box. It is my impression that these procurement tools are attempting to make the Q&A process less formal and make it easier to ask and receive a response to those questions.

I agree with the agency's procedural guidance; it provides CO with discretion for whether an amendment is needed. It seems like a waste of time to issue an SF-30 to respond to a single Vendor question about whether a routine supply requirement is a small business set-aside when the SF-1449 cover page has all the information they need in right-hand corner (probably the most common question my office receives). If I received several questions, with some resulting in a change to the solicitation terms, then a formal amendment is preferable.

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I have seen a prime contractor burned by its own "entire agreement" clause and the parol evidence rule after trying to hold a subcontractor to Q&A that were not incorporated by amendment. The prime had good reason to believe that the areas covered by the Q&A were quite clear in the solicitation and did not constitute a change. ADR resulted in a different conclusion, contrary to the prime's well-researched precedent and reasonable expectations. Since then I have avoided that kind of problem by making Q&A part of Section J.

This sort of thing makes me glad again to be on the contractor side where, within the broad confines of our purchasing system, we are free and indeed expected to use best practices based on lessons learned, rather than constrained by overly restrictive guidance. Why leave something open to misinterpretation, even when it does not constitute a change, when it can be easily be nailed down by well-considered answers made a formal part of the solicitation and resulting contract?

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Guest Vern Edwards

I don't agree with making Q&As part of the contract.

A contract should consist of terms written in order to clearly and unambiguously specify the rights and obligations of the parties. If a CO issues a solicitation and receives questions about it, he or she must determine whether a question indicates that a necessary contract term must be added. deleted, or altered in order to clearly and unambiguously state who must act or refrain from acting and what they must do or refrain from doing during performance. Making questions and answers a part of the contract instead of using them to determine whether the prospective agreement is properly written is the lazy person's approach to contract writing. As a CO I would never, ever, do it or allow it to be done. The idea of incorporating interrogative sentences and declarative sentences written in response thereto into a contract is the kind of unsound thinking and poor practice that can arise in a workforce that has not been taught the fundamentals of contract law and of proper contract writing and interpretation.

Q&A amendments should state in no uncertain terms that the answers to questions do not themselves change the terms of the solicitation and that any changes to the terms of the solicitation are expressly and separately indicated as such.

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Unfortunately many of us must operate in an imperfect world and work on a practical basis. When one looks at a question and answer and firmly believes, with sound precedent and confirmed by advice of competent counsel, that no change to the RFP is involved, but loses in a mini-trial anyway, in the future one does what one must to protect oneself and one's client, regardless of unwarranted accusations of laziness, unsound thinking, and poor practice. It would be more useful to describe a path out of such a quandary than throw rocks from an ivory tower that is far removed from the real world in the trenches.

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Hey, Charlie. I read the details in your 11 November post #11. I take it that the Q&A's were not added by amendment into the solicitation in that case. I'm also guessing that it was a case of ambiguity in the contract or subcontract requirements that the Q& As clarified. Is that correct?

I can understand why you would want the clarifications to ambiguities included. A problem with including Q&As would be where a question and answer results in something that needs to be changed in the solicitation (e.g., a direct conflict between the solicitation and the Q/A or a new requirement introduced by the Q/A that was omitted) that the owner or prime fails to address by amendment. In that case, you'd still have a possible contract interpretation issue or a new contract interpretation issue.

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Cajuncharlie,

ALL of us work in an imperfect world, and I hope all of us work on a practical basis.

Because one acquisition went to a claim and a mini-trial produced a result that an answer to a question was dispositive in that matter does not mean that all Q&As must henceforth be incorporated as solicitation amendments. Such a reaction is a gross over-reaction. Those here at this site who disagree with incorporating Q&As as solicitation amendments, myself included, are not throwing rocks at you.

Who is in an ivory tower?

In the future, one might protect oneself and his or her client by clearly stating that the Q&As do not change the solicitation AND actually amending the solicitation in a thoughtful and deliberate way for any text that is changed by the Q&As. I think that is useful advice.

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Guest Vern Edwards
When one looks at a question and answer and firmly believes, with sound precedent and confirmed by advice of competent counsel, that no change to the RFP is involved, but loses in a mini-trial anyway, in the future one does what one must to protect oneself and one's client, regardless of unwarranted accusations of laziness, unsound thinking, and poor practice. It would be more useful to describe a path out of such a quandary than throw rocks from an ivory tower that is far removed from the real world in the trenches.

You were told the path out. Be competent! When one looks at a question and answer and believes, wrongly, it appears, as determined after a mini-trial, no less, that no change in the RFP was involved, one didn't know what one was doing. Whose fault was that, oh he of the hurt feelings?

Another rock from the ivory tower. Toughen up.

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