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Sections L (Instructions) and M (Evaluation Factors) drop out at contract award?

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I am under the belief that Sections L and M in the solicitation "drop out" at contract award.  So they are not in the final contract document after award takes place.  I can't find an authority that requires this, though.  Where does it say this must be done?  Is it in the FAR?

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15.204-1 (b)

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That doesn’t mean that you can’t incorporate all or parts of the successful offerors proposal in the contract, provided that you so state in the solicitation.  

As for something in Section L that you want to be included in the contract,  the proposal requirement should reflect or refer to something that is already stated or referred to somewhere in the other Parts of the solicitation that will be included in the contract. 

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36 minutes ago, joel hoffman said:

As for something in Section L that you want to be included in the contract,  the proposal requirement should reflect or refer to something that is already stated or referred to somewhere in the other Parts of the solicitation that will be included in the contract. 

That's confusing. I don't understand it.

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The short answer is that – if you want something stated in Section L to become part of the contract, then state it or reference the requirement in the contract.

As an example, if you want a design-builder to use registered architects and engineers and you want it to use the ones that it proposes and will be evaluated, you should state that as a requirement somewhere in the parts of the solicitation that will be in the contract.  Same concept applies to minimum requirements for key construction personnel.  If you want to control the process of proposing and accepting replacements, state how in the contract. In our case, we do that using a clause that was developed from the A-E contract Clause 52.244-4, Subcontractors and Outside Consultants)

If the requirement is defined or explained in the evaluation criteria in Section M, then I'd say it generally should reflect something required by the contract.

 

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9 minutes ago, joel hoffman said:

Our (non-UFC Format) design-build contracts contain an Order of Precedence Clause, which states that, In the event that the feature is later determined to conflict with a minimum requirement stated in the solicitation, the latter would control.  The contract includes both the solicitation and the accepted proposal.

Who does "Our" include?

Can the government simply say:

Upon contract award, the Government reserves the right to incorporate specific language in the awardee's proposal into the contract.

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I'm referring to the USACE (Army Corps of Engineers) as "our",  plus there are some other agencies who have incorporated the same or similar clauses into their contracts, presumably after attending our Design-Build "PROSPECT" Course.   I'm retired but wrote or co-authored most of the design-build clauses that USACE uses.

Certainly, the government can say: "Upon contract award, the Government reserves the right to incorporate specific language in the awardee's proposal into the contract."  However,  for construction or design-build contracts, that doesn't necessarily cover situations where a proposal feature is later found not to work or to meet the solicitation requirements,  whether they be prescriptive or performance.  Our Order of Precedence clause  states the solicitation requirement would override the proposal in the event of a conflict.  Of course, a basic principle is that the government is not supposed to knowingly make award of a non-conforming proposal and also has a duty to make reasonable efforts to evaluate proposals for conformance.

And there is typically turnover in the key personnel that were proposed and occasionally in key subcontractors that were proposed.  The contract should state what the requirements are for proposing substitutes or replacements, how they will be evaluated for KO approval or disapproval.

These are but examples...

So "simply say" , without any other clarification or context -  I would say, that is generally not advisable, in my opinion.

 

 

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Hopefully this thread is not going to confuse the masses because it is a mix of concepts  for  1) a solicitation/contract when using the Uniform Contract Format (UCF) and 2) for a non-UCF solicitation/contract.

For a UCF solicitation/contract the FAR is clear at 15.204 that when using the UCF “shall” is the controlling imperative.  Specific to what shall be in Section L it is clear, and one could conclude, that anything other than what is demanded for the Section is  a deviation from the FAR.   Also it is concluded that if there is is something that you want in the awarded contract one should place that need somewhere other than Section L.

15.204-5 -- Part IV -- Representations and Instructions.

The contracting officer shall prepare the representations and instructions as follows:…….

 (b) Section L, Instructions, conditions, and notices to offerors or respondents. Insert in this section solicitation provisions and other information and instructions not required elsewhere (emphasis added) to guide offerors or respondents in preparing proposals or responses to requests for information. Prospective offerors or respondents may be instructed to submit proposals or information in a specific format or severable parts to facilitate evaluation. The instructions may specify further organization of proposal or response parts, such as….

For formats using other than UCF anything can be done but should be stated.

To confuse concepts of the UCF as directed by the FAR with non-UCF concepts that are made up for each solicitation/contract without adequate definitive language is foolish as it confuses even the most experienced in Federal contracting.

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Carl, the concept is the same for UFC or non-UFC.  if you want something stated in Section L  (or non-UFC equivalent) to become part of the contract, then state or reference the requirement in the contract.  As for the basic question asked in the original post -  answered. 

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47 minutes ago, joel hoffman said:

if you want something stated in Section L  (or non-UFC equivalent) to become part of the contract, then state or reference the requirement in the contract

Joel, darnit, that's confusing! Are you saying that if you want something stated in Section L to be in the contract, then state that requirement somewhere in Sections A through J of the RFP?

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42 minutes ago, joel hoffman said:

Carl, the concept is the same for UFC or non-UFC.  if you want something stated in Section L  (or non-UFC equivalent) to become part of the contract, then state or reference the requirement in the contract.  As for the basic question asked in the original post -  answered. 

Joel - From my view no it is not the same.  If you want something in a FAR  UCF solicitation to be a part of a FAR UCF contract then you "shall" place that in another Section other than "L".    I would suggest that it would go in "H".  For non-UCF use any concept that you want to make up.  I believe the FAR is clear on this.   As to answering the OP's question I agree if the OP's question relates to a FAR part 15 solicitation/solicitation contract that follows the UCF the question is answered.   If it is non-UCF solicitation contract no one can answer the question without reading the made up solicitation/contract as it relates  to whatever made up  format it is in.

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Vern, I agree.  Never mind.  

Carl, I generally agree - The question related to a UCF solicitation.  I assume that Govt2310 is referring to the UCF.  There won't be a section "L" or "M' in a non- UCF solicitation.

There should be no reason to include Section L in the contract.  I originally meant to say,  don't  identify something as a "contract requirement" in Section L if it won't be identified as a contract requirement elsewhere in the solicitation ( or become s contract requirement by incorporating that part of the proposal into the contract). 

I don't think that it is necessarily forbidden to refer to,  repeat or describe a solicitation requirement in Section L - just don't state it there, exclusively.

I hope that is clearer.

 

 

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If an offeror's proposal promises something that is not required by the solicitation, and if the CO wants to include that promise in the contract, then the CO must insert that promise in the appropriate UCF section of the contract award document and send that contract document to the offeror to sign before the CO signs it. 

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