Contract Reformation and Evaluation Outcome

[FrankJon]

The Government will reform a task order based on mutual mistake of the parties. Specifically, the contractor will be permitted to file a claim for services which were always part of the Government's requirement,  but which were stated ambiguously in the solicitation and TO. 

 

The Government considers the change to be within the scope of the TO and the competition. To the latter point, the Government believes that the work at issue, while ambiguous, put the competitive field on notice of the potential for such a change. At a minimum, competitors had the opportunity to clarify this point during solicitation, though nobody did. 

 

There is evidence to suggest that the sole unsuccessful competitor for this work was operating under the same misunderstanding as the awardee when it submitted its quote, though the evidence is not conclusive. The unsuccessful competitor proposed a price that was 2% lower than the awardee, but lost as a result of the trade-off decision.

 

1. Does approving the claim and reforming the TO force the Government to reconsider the outcome of the award evaluation? 
   
    
2. If so, what should the Government's analysis on this point entail?  
    

[Sunstrider]

Was this a procurement under FAR 16.505(b)? Is the dollar value in excess of the applicable threshold specified at FAR 16.505(a)(10)(i)(B)?

[FrankJon]

4 minutes ago, Sunstrider said:

Was this a procurement under FAR 16.505(b)?

 

Yes.

 

5 minutes ago, Sunstrider said:

Is the dollar value in excess of the applicable threshold specified at FAR 16.505(a)(10)(i)(B)?

 

No. 

 

I agree it's unlikely that a protest would be meritorious. However, my agency is particularly sensitive to the appearance of impropriety and any ensuing press coverage. We want to be able to justify our actions on principled bases,  not just successfully defend ourselves against administrative remedies. 

[ji20874]

3 hours ago, FrankJon said:

However, my agency is particularly sensitive to the appearance of impropriety and any ensuing press coverage. We want to be able to justify our actions on principled bases,  not just successfully defend ourselves against administrative remedies. 

 

Then, rescind the task order and re-do the fair opportunity consideration.

To make the task order contractor whole with a generous sole-source modification might easily be seen as unfair to the original competitor, and treats a mutual mistake as a mistake only of the Government.  FAR 14.407-4 has good guidance that might be helpful.

[FrankJon]

Change the scenario so that the original contract was awarded using FAR 15 procedures.

 

Would this same change be defensible in the face of a protest by the unsuccessful offeror? Why or why not?