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How does an Agency incorporate a proposal into a contract?

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How does an Agency incorporate a technical/price proposal into the final contract at contract award?  Is there a FAR clause that can be put into the solicitation for Intent to Incorporate Successful Offeror's Proposal into the Contract?  Is this done by a Contract Modification after award?  That seems weird.

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From a contractor viewpoint, I don't recall this being done in major weapons systems. I would think that is a very risky thing to do by the Government. It potentially sets up an inconsistency with the requirements, which would be against the interest of the Government. Example: Proposal details how the requirements are proposed to be met. Government contract requirements set forth what is to be met. Contractor performs how it proposed. To me, the Government would have a weaker time alleging there is breach of contract if the end item doesn't work according to the Government requirements in the contract. Perhaps there may be Government contract types where such incorporation makes sense. Maybe you can so incorporate if there is contract language that in the event of inconsistency, the inconsistency shall be resolved by giving precedence to the Government requirements. In that case, not sure what benefit there is to wholesale incorporation of a proposal.

govt2310, can you elaborate on what benefit or situation you are thinking about or what harm you think is being done by lack of incorporation?    

Edited by Neil Roberts
typo

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I am VERY cautious about incorporating proposals into contracts.  But assuming the original poster has a good reason, how about the following in the instructions to offerors—

INCORPORATION OF PROPOSAL

The Government intends to incorporate the successful offeror’s proposal [aspects if the successful offeror’s proposal] into the resulting contract.

 

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I am thinking of a negotiated contract (FAR 15 or FAR 15.505 task order using Tradeoff).  I am thinking of something like basic IT services, not a major weapons system.  I know the Air Force Acquisition Regulations have a boilerplate clause for "Intent to Incorporate Proposal," but I am wondering if there is something like that in the FAR.  Well, all of that just puts the offeror on notice that the Agency intends to incorporate the proposal into the contract.  I am asking, but HOW is that done?  Is it done by Contract Modification?  Again, that just seems messed up to me.  

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An excellent, but time consuming approach, is go through an offers proposal and select the meaningful part.  When necessary change or add language so promises and the like are clearly set out.  Go through it thoroughly with the contractor and sign the agreement bilaterally. 

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What many folks don't understand is that incorporating a proposal into the contract doesn't necessarily bind the contractor to anything. A typical technical/management proposal doesn't contain promissory language--it contains descriptions of the intended approach, plans, expectations, etc. Such statements are not binding promises--they are illusory promises. The contractor would only be bound to promises made in the technical/management proposal.

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True, technical proposals are just "essay contests" full of promises.  But some parts of a technical proposal, or stuff that should be in a technical proposal, are important to put into the final contract.  For example, Software License Agreements.  These are usually handled post-award during contract administration, except for certain exceptions like DOD (DOD solicitations often require the Software License Agreement to be included in the proposal, listed in the CDRL form, etc.).  

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1 hour ago, formerfed said:

An excellent, but time consuming approach, is go through an offers proposal and select the meaningful part.  When necessary change or add language so promises and the like are clearly set out.  Go through it thoroughly with the contractor and sign the agreement bilaterally. 

Bravo!

This is what you must do.

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We have this  clause in a number of prime contracts awarded to our company:

H.#.   INCORPORATION OF TECHNICAL PROPOSAL 

The Contractor’s technical proposal dated XXXXX, submitted in response to solicitation XXXXXXX, is hereby incorporated into the contract by reference. The Contractor shall perform the work substantially as set forth in Order awards.  Any revisions to the technical proposal that would significantly alter the technical approach must be approved in writing by the Contracting Officer. In the event of a conflict between the Contract and the Contractor’s technical proposal, the Contract shall take precedence. 

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3 hours ago, sjanke said:

We have this  clause in a number of prime contracts awarded to our company:

H.#.   INCORPORATION OF TECHNICAL PROPOSAL 

The Contractor’s technical proposal dated XXXXX, submitted in response to solicitation XXXXXXX, is hereby incorporated into the contract by reference. The Contractor shall perform the work substantially as set forth in Order awards.  Any revisions to the technical proposal that would significantly alter the technical approach must be approved in writing by the Contracting Officer. In the event of a conflict between the Contract and the Contractor’s technical proposal, the Contract shall take precedence. 

I have a couple of comments. If the proposal is incorporated into the “contract by reference”,  then it becomes part of the contract. When they say the contract shall take precedence, that is meaningless as an order of precedence.  

If the contracts use the Uniform Contract Format, there is an applicable Order of Precedence Clause, which might confuse or conflict with this clause.

What if aspect(s) in the technical proposal exceed(s) the solicitation requirements? It appears that the solicitation requirements would take precedence from what I think this clause is “trying” to convey.

i think that the clause is poorly written. 

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I don’t like wholesale incorporation of technical proposals into contracts — it is a bad practice.  It is far better to carefully select the important parts of the technical proposal (especially the promises, and especially when the selecting official relied on those promises in the selection decision) and incorporate only those parts.

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17 hours ago, ji20874 said:

I don’t like wholesale incorporation of technical proposals into contracts — it is a bad practice.  It is far better to carefully select the important parts of the technical proposal (especially the promises, and especially when the selecting official relied on those promises in the selection decision) and incorporate only those parts.

Hear, hear!

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On ‎3‎/‎14‎/‎2019 at 12:08 PM, Retreadfed said:

Sjanke, how does this clause work with performance based acquisitions?

It really shouldn't.  Best to follow ji20874's advice.  Just select the important parts which included performance metrics (if the government hasn't already cast those in stone in the solicitation),  and incentives/disincentives,  etc.  Once the government was selected the winner based on what their proposal includes, the only things that matter are metric standards and what happens for missing or exceeding them. 

Realistically though, there are lots of other things that need included but those should be carefully picked and added.

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