There is a construction FFP task order under a MATOC.  Prior to award the contractor's submitted a priced proposal for technical approval under LPTA.  The technical review ensures that items of works within the SOW are included in the proposal.  The successful proposal included an item of work that was not mentioned in the SOW (above and beyond).  After award the requesting activity wanted it to be incorporated into the project, along with several other non related items as part of modification.   However the contractor is requesting compensation for this work because it is not part of the original SOW.  

There is no specific reference in the request for proposals, or award which would incorporate the proposal into the award.  There is no reference to betterments in the request for task order proposal.  The master contract includes FAR 52.215-8 Order of Precedence which also makes no reference to incorporation of the priced proposal into the award.  The COE has a special Order of Precedence clause for Design-Build contract which incorporates "betterments" but that clause was not used. 

Is the contractor obligated to perform work within its own price proposal, though not included in the SOW?  Does the contractor's proposal automatically become "the contract" even in the absence of language declaring incorporation?

What form was the task order awarded on?

@Fed101This is a problem in contract interpretation.

One of the first questions to be asked is whether the task order document is supposed to be an "integrated" agreement. In other words, is it supposed to state the complete agreement between the parties. If the task order is an integrated agreement, and if it makes no mention of the betterment, then, in the event of a dispute, a board or court might invoke the parol evidence rule and refuse to consider the contents of the price proposal.

The facts that (1) the proposal was not incorporated into the order and (2) that the requiring activity asked for the betterment to be added to the task order after it was awarded, lend credence to the argument that the proposal may not be used as evidence that the award included the betterment, and that the contractor is not obligated to perform it without an equitable adjustment to the price.

But who knows? My analysis is half-baked, but it's the best I can do with the facts at hand. An attorney might be able to make an effective counter-argument. You should talk to yours.

Just now, Vern Edwards said:

(1) the proposal was not incorporated into the order

My half baked thought and reason for asking about the form used.  If a SF-1442 and if Block 29 checked I wonder if the proposal ("offer") would be incorporated into the order......(emphasis added)

"29. AWARD (Contractor is not required to sign this document.) Your offer on this solicitation is hereby accepted as to the items listed. This award consummates the contract, which consists of (a) the Government solicitation and your offer, and (b) this contract award. No further contractual document is necessary."

@C Culham

2 hours ago, Fed101 said:

There is a construction FFP task order under a MATOC. 

Emphasis added.

I would expect an order to be issued under DD Form 1155, Order for Supplies or Services, or OF347, Order for Supplies or Services, not SF1442.

But who knows what agencies are doing these days?

Within my agency, it is standard practice to use the 1442 on Construction/AE Task Orders from what I have seen. 

Away from the form used and the SOW (sounds more like a PWS to me - I digress), common sense would say, the contractor proposed to do something and a price to do it. They are not doing more then they proposed and I would not provide them with relief without a pretty good reason. 

1 hour ago, Constricting Officer said:

Away from the form used and the SOW (sounds more like a PWS to me - I digress), common sense would say, the contractor proposed to do something and a price to do it. They are not doing more then they proposed and I would not provide them with relief without a pretty good reason. 

That's just what I'd expect to hear from a CO. Hopefully, you would be able to persuade a court or board.

3 minutes ago, Vern Edwards said:

That's just what I'd expect to hear from a CO. Hopefully, you would be able to persuade a court or board.

1. I do not take that stance all of the time. 50/50 during administration I would say for equitable adjustments. The little information present in the OP leads me to this determination.

2. I would never assume the ability to defend common sense to a court or board (or many other humans for that matter). With that, I review request and make determinations based on the information I have at the time. Those determinations are what I believe to be fair, reasonable and in the best interest of all parties involved. Also, if I can't back it up under scrutiny, I won't decide that way. 

 

@Constricting OfficerThe questions in this case are, first, what does the task order say? Then, what do you want it to say? Then, is there a difference?

If there is a difference, and if changing the order to add the betterment work would cause an increase or decrease "in the cost of performance"—that's in the "cost," not "the price" or "the proposed price"—then the contractor would be entitled to a price adjustment, regardless of the costs already included in the price.

That's Equitable Adjustment 101.

Now, if you can persuade a court or board that the task order already requires performance of the betterment work, even though it does not specify that work, because the contractor included the cost of the work in its proposed price, then you could have a different outcome. But if the contractor has a good lawyer you would have to deal with the argument that the parol evidence rule precludes consideration of the cost proposal.

That's my take.

I agree with Vern.  But one more thing to add for "101" purposes -- incorporate the offeror's promises into the %#@#$% task order at time of award.

I was going to stay away from this one (no experience with "betterments"), but why not learn something. 

Thank you for the "Parol Evidence Rule" reference. Never have ran across it and will catalog. With that I will move off of them proposing it and it not being evaluated. 

That being said, they proposed something and it involved a "price." The government awarded a contract at that "price." If the contracting activity wants to add it to the current scope (within/outside), I don't see how there could be an increase in "cost" to the contractor. 

Question - If the proposal (what the contractor said they'd do at a price) was incorporated into the award and the SOW (what the government wants) was still there, which one takes precedent?

17 minutes ago, ji20874 said:

incorporate the offeror's promises into the %#@#$% task order at time of award.

And if you do so, make sure the incorporation is included in all copies of the order, particularly the copy sent to the contractor.  I was once involved with a situation where this did not happen.  The government version of the contract incorporated  the contractor's proposal while the version sent to the contractor did not.  You can imagine how well that worked out.

MATOC...Task Order...when mentioned my mind always goes to the parent contract.  While I doubt the situation is covered by the parent contract I simply mention it as who knows so if it is covered then the contract would rule if 52.216-18 is in the parent contract.

12 hours ago, Fed101 said:

The master contract includes FAR 52.215-8 Order of Precedence which also makes no reference to incorporation of the priced proposal into the award.  The COE has a special Order of Precedence clause for Design-Build contract which incorporates "betterments" but that clause was not used.

Just curious. Is this a COE construction ID/IQ contract and does it use the Uniform Contract Format? 

On 6/9/2021 at 10:35 AM, C Culham said:

My half baked thought and reason for asking about the form used.  If a SF-1442 and if Block 29 checked I wonder if the proposal ("offer") would be incorporated into the order......(emphasis added)

"29. AWARD (Contractor is not required to sign this document.) Your offer on this solicitation is hereby accepted as to the items listed. This award consummates the contract, which consists of (a) the Government solicitation and your offer, and (b) this contract award. No further contractual document is necessary."

The award was made on a DD1155.

14 hours ago, joel hoffman said:

Just curious. Is this a COE construction ID/IQ contract and does it use the Uniform Contract Format? 

This not a COE master contract or task order award. For better or worse UCF was used.

I'm way out of my league here and y'all are probably going to laugh at my question. Nonetheless,

Why isn't there a (standard) contract clause that says something like:

By accepting this offer and executing this contract, the parties agree that the negotiated price that has been agreed upon includes all tasks and activities described in the contractor's technical proposal, regardless of whether those tasks and/or activities were included in the contractor's cost proposal. If not found in the contractor's cost proposal as specific tasks and/or activities, the parties agree that they have been included in the contract price as "Not Separately Priced" items.

@here_2_help The problem with all such clauses is that they are an attempt to turn a process of thoughtful contract writing into a process of mechanical contract assembly. Instead of crafting a contract, you cobble one. It's not a method that thinking people would use.

Since this was a lowest priced technically acceptable basis of award, I’m assuming that the task order request for proposal stated something to the effect that the government would evaluate (?) only to ensure that it met the technical requirements and included all the SOW features. I’m assuming that the stated basis of award was the lowest priced offer which met the requirements.

LPTA generally means that the government isn’t seeking and doesn’t want to pay for any betterment’s.  You appeared to confirm that when you indicated that there was no mention of betterment’s. Thus “lowest priced technically acceptable” was the government’s stated intent. There was no intent or need to incorporate the technical proposal under the LPTA.

The government gets what it asked for here.