September

I've inherited a contract where bidder inquiries were published and answered on FBO.gov, but most Q&A did not result in an amendment to the solicitation. Now the contractor is refering to some of the Q&A during the solicitation phase as evidence for their justification for a claim for equitable adjustment. I don't believe the published Q&A bind the government unless they are incorporated into the solicitation, but I'm looking for something in FAR or a GAO decision, or elsewhere that backs that up, and I can't find anything. Any helpful references would be appreciated.

Thanks for your responses. I think I have the clear answer, but just to clarify my question, here's a bit more of the details I neglected to provide initially. The design was funded by a grant to an organization that then contracted with the A&E for the specs and drawings. The construction is a direct federal contract using the design generated by the grant. A subcontractor to the A&E wrote the commissioning specs which went into the construction contract. That subcontractor to the A&E, which was contracted by another organization, which was funded by the government through a grant, is the vendor we are trying to determine whether they can compete on the Commissioning Agent requirement. We, the government, are planning on contracting seperately for a Commissioning Agent. While the commissioning services are a part of the construction contract, there will be a seperate procurement for the commissioning agent. I don't think those details change the conflict of interest, but I wanted to offer them up in case there are other comments you would want to provide. Thanks again.

Does the writer of the Commissioning requirements in a Buildings Construction Specs have an organizational conflict of interest that would impair their ability to serve effectively as the Commissioning Agent? Some believe that if we provide the construction specs, including the commissioning specs with our RFP for the Commissioning Agent, it's not a problem for the writer of the Commissioning requirement to compete on this acquisition. Others believe that the writer of the Commissioning specs will have a bias to believe the commissioning specs are perfect, and that will impact their ability of implement the most effective commissioning plan. Our office does not have access to legal counsel that specializes in contracts. Thanks for any helpful feedback you can offer.

We awarded a contract for sidewalks, with several items being estimated quantities. The end user wants to add more sidewalks that were not on the original drawings provided with the specs, but the sidewalks will be on the same campus, and will have the same sidewalk spec requirements. They want to do it as a mod to the contract. FAR 52.243-5 Changes and Changed Conditions is in the contract, as is FAR 52.211-18 Variation in Estimated Quantities. I don't think it's a variation in quantity when the sidewalks being added weren't on the original drawings, but I'm wondering if it is a change or if it is new work. I appreciate your feedback.

I know I'm veering off the discussion here, but I thought this might be the best place to ask my question. Is there any prohibition on Contracting Officers participating in the certification of funds, which they will later obligate with a contract award or contract mod? In my office, Contracting sits in the same office as our customer, and we are constantly asked to direct the customer on how to enter requisitions into the new system our agency is required to use. Contracting Officers aren't given the ability to enter requistions in the system, but those who have the ability haven't learned how to use the system well, and ask us to sit with them and tell them what to enter. Any questions regarding how to enter a requisition, and even what accounting codes to use for particular projects, or why funds aren't available are coming to us. I believe that Contracting Officers should not be involved in certifying funds, but I can't find a regulation or case to support this position. I see it as a lack of risk control. If the Contracting Officer is controlling the requisitions and the contract awards, isn't there a risk that funds can be used inappropriately? Any thoughts? Thanks.