contract award document distribution

[GREGariousONE]

1)     FAR 4.202 states that “agencies shall limit additional distribution requirements to the minimum necessary for proper performance of essential functions.”

2)     Without knowledge of a legal definition, it seems reasonable to me that “essential functions” means the parties having privity of contract.

3)     Generally, unless specifically stipulated in the contract, the parties having privity of a federal contract are the Contractor and the Government. The contractor has an agent authorized to act on its behalf and the government’s procuring contracting officer (PCO) acts on its behalf.

4)     In some government agencies, the PCO may delegate limited responsibility to an administrative contracting officer (ACO) and contracting officer’s representative (COR).

5)     Therefore it makes sense to distribute contract award documents to the Contractor and Contract Administration Office (consisting of a delegated ACO and designated COR).

6)     Additionally, there may be some internal agency offices that claim an interest in receiving a copy of the contract, although it is arguable that said offices are necessary for proper performance of essential functions.

 

Aside from being duplicative, redundant and wasteful, does anyone have concerns with or see any potential legal implications if an internal agency office (non-contracting) establishes a practice of re-distributing contract award documents?

[Guest Vern Edwards]

Distributing award documents to whom? There could be implications if the documents contain FOUO or classified information, or trade secrets.

[GREGariousONE]

The Program Management (PM) office of the agency I recently signed on with distributes construction contract award cd's to (so I'm told) the contractor and contract administration office at the pre-construction meetings.  This practice dates back to the early 90's.  In an effort to gain perspective, I questioned the practice and in doing so walked into a hornets nest.  After contracting awards a contract and distributes the documents to the contractor, ACO, COR and as a courtesy to other internal agency offices (including PM), PM uses said documents and creates an award cd adding SPECSintact and CAD drawings (which our RFPs state will be distributed after award) to the documents contracting has already distributed.  I get concerned though when PM asks (demands) that I provide them with solicitation amendments, the contractor's acknowledgment of said amendments, the contractor's price and tech proposals, and our price negotiation memos (PNM) to add to the award cd.  I have refused to share these additional documents, because: the amendments are obviously incorporated into the contract at the time of award, the government wouldn't accept an offer or negotiate and award without the contractor acknowledging the amendments, the price proposal may be proprietary and the PNMs are source selection sensitive. In an effort to avoid being given the third degree every time I award a contract, I'm trying to identify legitimate reasons as to why this re-distributive effort is in the least a poor business practice or at worst a potential legal liability - otherwise, I have no reason not to provide the documents.  In addition to simple compliance with FAR 4.202, it seems this re-distribution effort could expose the government to unnecessary risk which may have contract admin. and/or legal implications.  These reasons may not be strong enough to support what would amount to be an agency culture change.  Thoughts?

[Jamaal Valentine]

Greg:

Are you trying to determine what is/is not an unauthorized disclosure? Have you read FAR 2.101 "Source selection information" and FAR 3.104? Once you familiarize yourself with that you should be able to assess if you have an issue providing documents to your PM.

[GREGariousONE]

Thanks, Jamaal. These citations sufficiently support my refusal to disclose the price proposal and PNM.

[joel hoffman]

Greg, is the contractor's technical proposal incorporated into the contract? If so you should be distributing it with the complete contract documents. The Government is the Engineer of Record for government designed projects and needs to know what was proposed, and accepted for submittal review purposes and general contract admin purposes.  

The government's tech submittal reviewers need to have access to the tech proposal, as applicable to their submittal review duties.

if it is a Design-Build contract, the proposal is (hopefully) probably incorporated into the contract, thus is absolutely necessary for contract administration as well as for design and construction sub mittal reviews and for general quality assurance purposes.  

I'm not sure what you are specifically referring to as the "price proposal". Are these sole source negotiated construction contracts? Or is it simply the contract line item schedule?

As a long time contractor administrator, office engineer and as an ACO, I always kept a set of the amendments so that I could trace back and reconstruct the RFP. It was invaluable for evaluating and responding to contract and construction issues. 

As for detailed cost proposals and price negotiation memoranda, the contract admin office should at least have physical (or electronic access) to them, as needed during contract execution.   I assume the Contract admin office is involved in modifications and other activities that would require knowledge of contract pricing and how they were developed

 

 

[GREGariousONE]

Thanks, Joel. Contracting incorporates the tech proposal into the contract and distributes all contract documents to the KTR, ACO, COR and various intra-agency offices that claim an interest in having a copy of the contract, including PM. PM then takes the documents contracting has already distributed and creates an award CD with which to redistribute to the KTR. I don't understand the purpose of this redistribution. On the surface it appears redundant, duplicative and wasteful.

Just as stating the Period of Performance (for example) in multiple places within a contract exposes the government to an unnecessary risk of contradiction, inconsistency and/or ambiguity; unnecessarily redistributing contract documents may expose the government to an unnecessary risk, perhaps administrative (if say the wrong iteration of the SOW or a certain Spec is included on the award cd, and the KTR then inadvertently but inappropriately uses it leading to admin issues later); or perhaps legal when an entity with no authority under the contract (PM, in this case) distributes contract documents without the express consent of the contracting officer.

I just want to make sure that this redistribution is being done for the right reasons and not simply because "it has always been done this way."

Thoughts?

[joel hoffman]

Greg, I would agree with you that the PM shouldn't be separately compiling documents to distribute. 

I have heard many complaints from students in my design-build construction class that they don't have access to the accepted proposals or to Base ID/IQ contracts during task order execution. 

With the recent evolution to paperless contracting, I would think that all this stuff should be available somewhere for viewing purposes. 😃

I have personally seen what can happen when someone other than the contracting office or contract admin office distributes the wrong documents to the contractor.  

For example, a design-build contractor once directly obtained from the Base Civil Engineer a CD with a topographic map of an old family housing area that was to be totally demolished, re-graded and re-built. Contractor was supposed go through the ACO to obtain, from our Engineering Division, a CD with the topo file that was in the RFP solicitation. The Air Force topo mistakenly showed the tops of buildings as ground contours. The designer stupidly didn't verify the information (spot check elevations on a post award site inspection) as required by the contract. Contractor trucked in thousands of cubic yards of fill that it discovered wasn't necessary, then submitted a large REA/claim. 

On the same contract, the ACO office also had no idea that the contractor had included numerous betterments in its final proposal revisions (back then, referred to as the "Best and Final Offer"). 

Knowing the Base Architect, the ACO and some of the QA personnel, I don't know who was Dumb or Dumber. I suspect that our field office sent contractor over to BCE to get the Topo and also had no idea that designer didn't verify the elevations by field spot surveys and site visit. or that the contract even required it. Even a DUMBER should have noticed 10-12 feet discrepancies in site elevations and that there were no site "humps" in the housing area on a Florida barrier Island!  Dumber than a box of rocks...sheesh!  

[GREGariousONE]

Thanks again, Joel.  This is EXACTLY the type of situation I am trying to avoid.  However, because the production and distribution of an award cd is something our PM-shop refuses to let go of, I'm trying to demonstrate the danger the Government assumes by continuing this unnecessary practice.  Certainly administrative issues like what you described are possible.  But, I'd also like to make a legal argument in order to solicit the support of our OC.  Since the KO is responsible for the contract file, I'm wondering if I can just preface EVERY award going forward with language like, "Only the Contracting Officer is authorized to distribute contract documents.  No additional distribution of this contract or the documents contained herein is authorized without the express written consent of the Contracting Officer." I'm just not sure how to appropriately enforce a violation of this requirement, should PM disregard it and continue producing and distributing award cd's.  Trying to pick my battles wisely... but, given the potential risk the Government assumes completely unnecessarily because of this practice, I believe it's one worth fighting.  But, changing a practice so deeply embedded within this unit's culture is a challenge.

[Guest Vern Edwards]

It's not worth fighting. Just attach a cover letter to the award documents that you distribute stating that only the documents distributed by your office are official and binding, that distributions from other offices are not official and not binding, and that if there is a conflict between distributions from your office and other distributions, the distributions from your office prevail. Word the letter strongly. If you want, ask the contractor to acknowledge receipt of the cover letter in writing.

Don't worry about duplication, redundancy, and waste. You can't control everything. Let the PM office distribute what they want. Hopefully, if they screw up, someone will come down hard on them.

[GREGariousONE]

Vern, this is exactly what I needed to hear. Thank you!