The following blog is the fifth in a series of special guest and ReliAscent partner blogs, contributed by Richard Busch of the Busch Law Firm, and Mike Anderson, of ReliAscent. This series covers important topics ranging from an introduction to government contracting, to requests for equitable adjustments, risk management, contract change orders, and scope creep. Additionally, our series will cover government financial assistance efforts, and how defense contractors--both small and large business (along with subcontractors)--can increase profits, improve their ability to strategically plan for the future and remain profitable.
By combining DCAA compliance and accounting expertise with defense contracting and FAR compliance legal representation and consultation, ReliAscent and Busch Law can help position contractors for financial success…
"Follow the Trail of What is Really Happening After Award, and POLICE your Competitor's Contract"
ATTN: Small and medium-sized government contractors DO NOT miss a chance to still be awarded an opportunity previously awarded to your competitor. More often than not, post award modifications to the competitor’s contract will disclose an out-of-scope change order that should have been competed. If the modification is beyond the original general scope of the contract or outside of the terms of the original Solicitation----you have an opportunity to challenge that modification of the contract that was awarded to your competitor.
Scenario
You consider your company a competitor in the Government marketplace for the Statement of Work being procured. Nevertheless, you lost a heavily competed contract award based upon the Government’s perceived needs; yet you know the award is flawed through a combination of the factual circumstances and the Government’s actual needs. You can see the gaping hole in the best value evaluation of the proposed performance of the awardee. You know that a GAO review is subjective and focuses on discretion in the Government’s evaluation as stated in the procurement statutes and regulations. In reality, the GAO’s analysis is superficial and unrealistically focused on the Government’s position. This contract is still important to your company’s financial/technical future.
Although compliant with the GENERAL terms of the statutes and regulations, can/how is the Government going to adjust the award to the reality of their mistakes? The actual facts and circumstances tell a different story.
Conclusion
You must proactively “police” your competitor’s contract for contract modifications, unilateral or bilateral, which are outside the general scope of the competition requirements and the awarded contract.
“Policing” means What?
The oversight Government Agencies will NOT review the administration of an awarded contract; including modifications. The exception to this general rule is where you allege that a contract modification is beyond the scope of the original competition and awarded contract.
Your review of the facts must determine if, absent a valid sole-source determination, the work covered by the modification should be subject to full and open competition. In short, you must focus on:
“Is the modification, in effect, an unjustified sole source contract?”
You must determine what “material differences” are between the modified contract and the originally compete award. Compare the modification with:
- Extent of the any changes in the type of work;
- Performance period;
- Adjusted costs of performance;
- If competed technical requirements were altered based upon the reality of the circumstances;
- Changes in the “scope of the competition” more than changes in “scope of the contract;”
- Do the ordered modifications alter the nature of the item that was competed and awarded;
- Did the original Solicitation advise the offerors of the potential for these types of changes during the performance of the contract;
- Would the field of competition be different after the modification;
- Was the award made with the intent to modify it after award; and
- Would you have reasonably anticipated this modification under the changes clause.
The simple initial question is whether the change is within the general scope of the competition. The terms of the solicitation and the contract are of paramount importance when compared to the language and INTENT of the modification and the overall acquisition planning process.
If properly justified and supported, your policing activities could be very effective by canceling the modification and obtaining work through the competitive process. In addition, it may alter the way the Agency will administer the competitor’s contract and draw focus on their performance accounting. You may get your costs of protest reimbursed AND have the Agency agree to an increase focus potential disallowance of your competitor costs. .
While it is true the statutes and regulation on their face may not have been violated, the facts and circumstances of the actual competition and award may create many more issues in your favor. A thorough review of these factors are important, along with the actual accounting of the cost and should cost of performance. This two prong approach combine to form a solid approach to “bust” the award and contract performance beyond the discretionary baseline of a normal protest.
While the stated circumstances may cover the facts, the accounting of performance costs cannot hide the reality of changes beyond the general scope of the award.
The team of the Busch Law Firm and ReliAscent can discover the true story if the general scope of the competition requirements and the awarded contract is now proper.
- Richard Busch
Managing Partner, Busch Law Firm LLC