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chaudhryu

Enforceability of Vendor Q&A & Clarifications?

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Hello folks - new member here.

I have the following situation and am hoping for some feedback from other CO's out there:

Background: Agency awarded a contract recently. Certain requirements of the contractor were not stated in the contract itself, but were clearly stated in the responses to questions submitted by vendors (during the solicitation period) as well as in the clarifications conducted between the agency and the winning contractor. (Clarifications occurred after solicitation closed and prior to award.) These requirements concerned technical compatibilities / requirements of software to be utilized by the contractor during contract performance.

Situation: Agency and contractor (jointly) have now discovered that the contractor's software does not meet the technical requirements that were stated in the vendor Q&A and the clarifications.

My question: How enforceable are requirements that were stated in the vendor Q&A and the clarification materials? Can the agency, in fact, hold the contractor to these terms? Or are there no grounds for this?

The contractor is claiming that this information wasn't included in the RFP document itself or in the contract (which it was not) - and that thus, it isn't enforceable. I can sympathize with this point of view. However, the vendor Q&A was released as an amendment to the RFP, and as such, becomes a part of the overall RFP package - by which logic, it seems that the information contained within should be just as enforceable as the RFP. And, the even though the clarifications were not officially a part of the RFP package, the award was made directly as a result of the contractor's responses to the agency's clarification questions.

Any input would be most appreciated. I have not yet come upon this situation before.

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If the information in the answers is not in the contract, then it's not contractually enforceable as a requirement.

However, if the contract is ambiguous and the information in the answer(s) sheds light on its meaning, then the information might be usable as evidence to support an interpretation. Otherwise, it's excluded by the parol evidence rule.

See Administration of Government Contracts, 4th ed., the chapter on contract interpretation.

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Was the proposal accepted by the government to become the contract?
Did the CO sign the proposal, which acknowledge the RFP amendment(s), to form the contract?

If so, the terms should be incorporated into the contract.

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Thanks very much for the feedback - that's helpful.

Due to clarifications and part of the work being awarded to another contractor, some changes resulted in the proposal - so the form that the proposal was submitted in initially was not its final form.

The CO didn't physically sign the proposal. The CO did acknowledge having received it via email, though.

It seems as though the strongest argument would be that based on the communication/information contained within the vendor Q&A and the contractor's responses to the agency clarification questions, the agency had reason to conclude that the contractor's software would meet the technical compatibility requirements (as in, there is some reason to support that as the agency's interpretation of the contract).

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