Joel, in regard to your point 2, the RFP for the second contract appears to have been a cut and paste version of the RFP for the first contract. Each RFP had instructions on how to prepare the cost portion of the proposal. The instructions contained the number of installs that would be required. When preparing the second RFP, the agency apparently copied the instructions from the earlier RFP without changing the numbers which were obviously wrong for the second contract.

The contract did not list a specific number of installs. It merely said install kits for a lump sum price of $X. The contract instructed the contractor to bill the government a fixed amount each month.

Then it isn't a "mistake". From your description it is incompetence. So other than the instructions, there is no place in the solicitation to determine the magnitude of the scope?

I would contact the govt and ask them what they are trying to convey and that it appears to be in error. But that is me

The instructions contained the number of installs that would be required. When preparing the second RFP, the agency apparently copied the instructions from the earlier RFP without changing the numbers which were obviously wrong for the second contract.

The contract did not list a specific number of installs. It merely said install kits for a lump sum price of $X. The contract instructed the contractor to bill the government a fixed amount each month.

"Obviously wrong." Obvious to all or apparent to X based on its "inside" knowledge.

In one sentence you say "the numbers were obviously wrong for the second contract," but in the next sentence you say that the "contract" (solicitation?) did not list a specific number of installs. You appear to contradict yourself, and I don't understand. If the "contract" (solicitation?) does not specify a number of installs, then what numbers are wrong?

Do you mean that the model contract in the solicitation does not specify a number of installs, but that the proposal preparation instructions specify a number, which X thinks is wrong?

I must apologize because I read Metteec's post number 19 into Retreadfed's hypothetical scenario in posts 1 and 26. That was the basis for my observation number 2 in post number 27.

However, Retreadfed said that the "contract" doesn't mention the number of installs required but the proposal preparation instructions do. I am assuming that Retreadfed means that the proposal instructions will not be in the resulting contract. Is that correct Retread?

The statement of work and/or line item schedule are incorrectly written if the quantity is not defined and the instructions are probably wrong regarding the quantity. There appears to be incompetence and lack of diligence on someone's part even if the instructions are somehow correct.

I must apologize because I read Metteec's post number 19 into Retreadfed's hypothetical scenario in posts 1 and 26. That was the basis for my observation number 2 in post number 27.

However, Retreadfed said that the "contract" doesn't mention the number of installs required but the proposal preparation instructions do. I am assuming that Retreadfed means that the proposal instructions will not be in the resulting contract. Is that correct Retread?

The statement of work and/or line item schedule are incorrectly written if the quantity is not defined and the instructions are probably wrong regarding the quantity. There appears to be incompetence and lack of diligence on someone's part even if the instructions are somehow correct.

Joel, you start by apologizing for misinterpreting some posts, then ask Retread for information about the solicitation, then make a conditional assertion about the SOW, the CLIN schedule, and the instructions before you know what they say and the rationale for the agency's approach. The agency's competence and diligence are not the issue in this thread and I, for one, don't care about your opinions in that regard. What I care about is pursuing Retread's very interesting inquiry about ethics and consequences. Focus, please.

Joel, you start by apologizing for misinterpreting some posts, then ask Retread for information about the solicitation, then make a conditional assertion about the SOW, the CLIN schedule, and the instructions before you know what they say and the rationale for the agency's approach. The agency's competence and diligence are not the issue in this thread and I, for one, don't care about your opinions in that regard. What I care about is pursuing Retread's very interesting inquiry about ethics and consequences. Focus, please.

Vern, you stated that a moral obligation to point out an error to the government is a matter of opinion. I believe that you also indicated that you would. Some have said that they would not in this hypothetical situation.

I said that I would contact the government. I don't disagree that there is no legal obligation or that a moral obligation is a matter of opinion.

The "hypothetical" example has been confusing. You asked Retreadfed what is meant by "the contract" doesn't indicate the quantity of installs. I expressed an opinion that Retreadfed was referring to what would constitute the contract documents after award. There isn't enough information to know whether or not the information in the instructions for proposal prep could be read into the requirement after award. At any rate, that could complicate matters after award. Also, from the information provided, we don't know if the number is actually wrong.

Since the solicitation seems to be poorly written, as I said earlier, I would contact the government, moral obligation or not.

Let me clarify the hypo. The instructions on how to price the proposal contained the number of installs that would be required in the follow-on contract. The instructions did not become part of the contract when the contract was awarded. The contract does not mention the number of installs that will be required. The incumbent contractor recognizes the mistake the government made in preparing the RFP. Apparently, the government was unaware of the mistake.

Anybody else flashing on the KBR Camp Anaconda dining facility dispute? The one where the subcontractor billed based on either planned personnel or actual personnel -- whichever was greater?

http://www.uscfc.uscourts.gov/sites/default/files/opinions/MILLERC.KELLOGG050212.pdf

Must be just me, then.

H2H

H2H,

I read the decision -- thanks for the link. War is messy, and contracting in an environment of war is messy. It seems to me the court's message is the Government must allow for that messiness in its contracting process, and pay for that messiness if it chooses to contract for services in an environment of war. Because the parties could not settle the matter themselves, they went to the court as an arbiter, and the court made its decision.

If the proposal preparation instructions state a number of installs and the model contract is silent in that regard, then I think there is a patent ambiguity in the solicitation itself. What is ambiguous is the relationship between the quantity in the instructions and the contractor's contractual obligation. Why isn't the quantity specified in the model contract? The ambiguity does not arise out of X's knowledge of the government's vehicle inventory. It should be apparent to any prospective offeror. In that case, X has a duty to inquire under the common law of contracts . If it does not inquire, and if the ambiguity is harmful to it, then it might have to live with the consequences.

Does the patent ambiguity give rise to a legal obligation to put the government on notice? None that I know of other than the common law of contracts. If the quantity in the instructions turns out to be greater than the government's actual requirement, then the government can T for C. But if the quantity turns out to be less than the actual requirement for some reason, then the contractor might well be bound to do more work than it planned at no additional cost to the government, although it might be able to make a case for a negligent government estimate.

To me, this isn't a case of legal or moral obligation, but good business sense. Who would submit a proposal to do an unspecified amount of work at a firm-fixed-price? If I were X, I would be worried that the government knows something that I don't and that it's not telling me.

Yes