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khuggart

What to do after Protest when Requirement Changes

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On 9/20/17 I followon awarded a task order which was protested on 9/29 based on an argument between the two contractors who responded.  Award was contingent on availability of Funds which was received 10/5/17.  On 11/13/17 the protest was withdrawn.  In the meantime, the existing task order was extended 4 months to keep the help 24/7/365 desk running.  During that extension, the Program Office reduced Staffing from 12 (which is what the Contractors bid on) to 7 based on funding cuts.  What options are available to me to award to this contractor without risking another protest?  I have a few thoughts, neither of which I'm fond of....

1.  Resolicit with the new level of effort and offer both contractors an opportunity to re-propose.

2.  Award at the proposed level of effort for the 3 month base period, then at option reduce the level of effort bilaterally.  Problem is that 5 employees have been released and may already have jobs and won't be willing to work then I potentially have to terminate for default which is not a good option.

Can anyone else think of other options?

 

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For the successor task order (the new task order):  

  1. It was awarded on 9/20/2017.  
  2. It was awarded on a SAF (subject to availability of funds) basis, so it included the clause at FAR 52.232-18, Availability of Funds.
  3. The task order award was protested on 9/29/2017.
  4. The task order was not canceled or terminated.
  5. Either performance was not stayed, or the stay was effectively lifted when the protest was withdrawn.
  6. Because of the protest, the Government did not provide notice to the contractor that funds were available.
  7. The protest was withdrawn on 11/13/2017.
  8. The contractor is ready to perform and is waiting for the notice promised in the clause at FAR 52.232-18.

Are all of the above facts correct, regarding the successor task order?  If YES, then all you need to do is give the contractor notice that funds are available and the contractor can start performance.  You can turn off (terminate or otherwise end) the extension of the predecessor task order.

If you canceled or terminated the successor task order, well, too bad -- there probably was no need, and it is not customary practice.  You might need to do another fair opportunity consideration.

If the Government's requirement has substantially changed, you might need to do another fair opportunity consideration.  Or, maybe it would be best to simply turn on the successor task order and immediately (the same day?) do a partial termination to reflect the Government's present requirement.

But hasn't the successor task order already been awarded?  On 9/20/2017?  Why are you asking about a new award?

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