What's the best way to incorporate a proposal in a contract? The rfp is in the uniform contract format.

By Ramon Jackson on Tuesday, September 12, 2000 - 11:04 pm:

Rita Sampson had cautionary words in the old Water Cooler that are worth reading again. Ron Vogt (Is this you as Anonymous?) opens the issue in this forum and passes the ball to this thread.

Ron, what you remember is probably in the old Water Cooler. It is archived, but difficult to deal with since all formats. other than "by date," go back to a blank Open Forum. In fact, if you don't have a good idea of the exact thread and approximate time of a post it is nearly useless in itself. The search engines do have it indexed and posts may pop out of carefully structured searches.

Maybe it would help if the question above were redefined. Perhaps to "when might it be appropriate" to incorporate a proposal. From purely secondary contact with the issue, reading and consideration I'm interested in the following issues:

- Incorporation seems worth considering for certain straightforward solicitations calling for a highly structured and limited response (sealed bit onward to some point on the spectrum). Is there good discussion of issues in finding the break point?

- Incorporation of complex proposals responding to complex solicitations, seems to fall more into the category of removing rattlesnakes by hand - with expertise, a plan, and more than a little caution. I have an impression too many cases of incorporation fall into this area and fail to respect the potential for biting back -- the kind of thing Rita Sampson seemed to have in mind. Are the people stating they will incorporate proposals actually doing the planning and structuring of instructions that would drive and a proposal structured for incorporation? Are some so bad that they will incorporate those beloved "approaches" so that when the learning curve dictates approach modification a formal change is required?

We've been around on the theory, do we have cases and examples?

By Anonymous on Tuesday, September 12, 2000 - 11:32 pm:

I didnt ask when it's appropriate to incorporate a proposal in a contract. I asked what's the best way to do it. What are the mechanics?

By Ramon Jackson on Tuesday, September 12, 2000 - 11:52 pm:

There are mechanics for picking up diamondbacks. Go ahead. Follow those mechanics when you are drunk on a dark night.

If you are only interested in the mechanics without judgment or interest in when to apply them I suspect similar results will be in store.

By Anonymous on Wednesday, September 13, 2000 - 09:42 am:

I'm simply asking for advice in solving a practical problem. What makes you think we didn't use judgment?

By joel hoffman on Wednesday, September 13, 2000 - 10:04 am:

Anon, I have seen several methods to incorporate a proposal into the contract. Also depends upon the type and format of the contract. For service contracts, using the uniform contract format, I believe I would describe what part of the proposal I would incorporate into the contract in a narrative within the Section "C", the Statement of Work. If SF26 is used, block 18 is checked and the appropriate volumes of the proposal can be listed.

For construction and design-build RFP's we don't use the UCF format. We use a format similar to the Construction Specifications Institute (CSI) format. Section 0800 are the Special Contract Requirements (SCR's - equivalent to UCF, Section "H"). We use an SCR which USACE is presently working on incorporating as an EFAR Clause, which states that the contract includes the accepted proposal and provides an order of precedence, in case of descrepancies between the RFP and the proposal.

Note that the FAR Clause "Order of Precedence" is not used with CSI format, as the FAR clause refers to the Statement of Work (Section C) as the "specifications." The FAR Clause places the proposal above the minimum RFP requirements.

The USACE SCR places any "betterment" (both meets and exceeds the RFP minimums) first, then the RFP minimums, then other aspects of the proposal, in case of conflict. This clause requires the Government to carefully review the proposals, discover and reject any deviations from the minimum RFP requirements. A condition of award is that the proposa does not deviate from the minimum RFP requirements.

The SF1442 contains (block 20?) to check that the proposal is part of the contract and you can identify it in an attachment. Happy Sails!` Joel

By Anonymous on Wednesday, September 13, 2000 - 10:49 am:

Mr. Hoffman:

If we incorporate the proposal into Section C, do we have to rewrite the SOW to incorporate the proposal language, or do we just append the proposal to the SOW?

By Peggy Richter on Wednesday, September 13, 2000 - 11:25 am:

We often incorporate a proposal into a contract here as we are usually buying RDT&E where the contractor's stated approach / method of analysis is what earned them the award (i.e. there is more than one way to do the work and the technical proposal was a critical factor). In such cases, you need to have your govt. engineers check the proposal carefully -conflicts can be well hidden from a casual overview. IF your sow is well written, you shouldn't have any conflicts and if you do, you will want to have the SOW have precedence. Note that in the case of a conflict, you may be negotiating the contractor's technical approach or have problems later on. IF your sow is less than ideal (as happens on occasion), you may find the CONTRACTOR's proposal has conflicts where the proposed approach/method/ etc is better than what you have in the SOW. Again, you may be in negotiations on that (and have some issues if you competed the procurement). The end result, however, is the same - there should be no conflicts between the SOW and the technical approach proposed by the contractor so that incorporation makes it one unified whole at time of award.

By Anonymous on Wednesday, September 13, 2000 - 11:53 am:

Ms Richter:

So you would attach the technical proposal to the SOW in Section C after making sure that there were no conflicts. Then the two would be read together, with the tech proposal describing the method that would be used to perform the tasks specified in the SOW. If there were conflicts, then you would negotiate them out before making the award.

If there are conflicts between the tech proposal and the SOW and you have to negotiate them out, would you conduct another round of discussions with all the offerors?

By Ramon Jackson on Wednesday, September 13, 2000 - 12:41 pm:

Well "Anonymous" who can tell whether you, or your agency uses good judgment? We haven't a clue. Some do, many don't. There is a method. From observing results it is often used without sound judgment, just habit. Results sometimes make those paying attention want to weep. Looking at the apparent application of some intending to incorporate makes weeping a high probability. They know how, not the rest.

You don't tell us whether this if for buying vehicles, janitorial services, an antimissile defense system, or studies into the cure for AIDS. Not a word on contract type. What is the method for striking a match? It can definitely depend on who, where and for what.

Rita made some good observations. Peggy actually adds to that with her caution about due diligence by the engineers. There are other issues. I have to wonder whether Peggy's people (who last I knew weren't amateurs) don't get into occasional unnecessary difficulties by incorporating too much into the "RD" part of the RDT&E contract.

T&E is usually pretty standardized and much more straightforward than R&D on the path to the product to test. Let's take AIDS. The test protocols are well developed in medicine and we probably actually want independent T&E. We also generally want the contractor to test internally along the same lines. I have no real problem with incorporating a contractor's proposed test plan, probably nearly a copy of industry standards, into the contract if that is desired. I question the need since a contractual pointer to acceptable testing is probably sufficient.

The contractor proposes a particular research and development approach that catches our eye, as Peggy mentions, and we incorporate it. Six months or a year into the program we find several aspects of the shiny "approach" that seemed so innovative needs modification in light of experience. Parts are indeed promising, others definitely need changing, but in R&D the approach modification itself may be a sort of R&D. Are we going to "enjoy" constantly evaluating requests for changed approach and executing new and binding contract language as this develops?

The issue applies to every R&D effort I can think of at the moment. When the program office and contractor survey the progress and decide learning has driven a need to change course I'd want to be able to make the correction within the contract's bounds and not have to go for a mod. This particularly applies if my contracting office hasn't learned to do these things in parallel and fast. An R&D program office wanting to incorporate may be issuing itself a straight jacket. Time is money and all are burned while we jump through unnecessary programmatic hoops.

We hope the contractor's proposed approach includes scope for these necessary course corrections. In the press to present the bright and shiny object to the evaluators, in response to instructions, or foolishness the contractors often paint everyone into a corner if "how" becomes contractual. That is why I believe up front planning in the early stages of a solicitation, covering all instructions, and being quite aware of these issues is the only safe way of handling the issue. To put it bluntly, if the SOW and proposal contain anything but very minor conflict, when incorporation is the objective, I have to suspect lapse in planning and execution.

It seems much better to segregate those aspects that must be contractual in nature from the part that is used only to convince the evaluators that the offeror has a real understanding of and has done the preliminary planning to accomplish the job. In Vern's view the latter is the test that passes the contractor into the contract, not the contract.

Particularly in the R&D end of the spectrum locking down only the necessities makes sense. I believe one of the necessities is the framework for working the other issues within the contract, not by constant modification. As one approaches the straight buy and less complex tasking the application of incorporation improves. Eventually we reach a sealed bid that is, I believe, a straight and relatively simple incorporation of a bare bones "proposal."

I think the issues and examination of practical results of incorporation a potentially interesting discussion. If you don't want "your" thread used we can start another.

By joel hoffman on Wednesday, September 13, 2000 - 01:12 pm:

Anon, Sorry - I wasn't clear enough. Meant to say that I would write some narrative in the original RFP Section C, stating that the successful Offeror's XXXXXXXXX (describe which volume) of the accepted proposal would become part of the contract. I would also add that the proposal could not deviate from the minimum RFP requirements but could offer "betterments" which both meet and exceed the minimum RFP requirements.

No, don't rewrite Section C. The portion of the accepted proposal is simply listed on the contract award SF28 or whatever form you use for your contract award. The incorporated portion of the proposal becomes an attachment under Section J (for UCF contracts).

Note that the proposal then has the same status as other UCF format attachments under the FAR clause "Order of Precedence", so you better ensure that there are no conflicts between the proposal and other documents of equal hierarchy.

Section "L" or "M" should state whether or not I would entertain deviations (deviations allowed in the initial proposal ONLY if I announced an intention to conduct discussions). I would further explain that in order to be eligible for award, there could be no deviations from the solicitation requirements in the final revised proposal. I would explain that if the Government were to accept deviations in the initial offer, it would be done by amendment for all offerors to share and compete on an equal basis during subsequent negotiations.

This does not preclude the Government from entertaining "alternate proposals", when allowed in the RFP. In that case, the alternate proposal must still be technically acceptable. The proposal is incorporated the same way as before. The difference is, we don't share the allowed alternate approaches with all other offerors by amending the solictiation.

Hope this helps. Happy Sails! Joel

By joel hoffman on Wednesday, September 13, 2000 - 01:33 pm:

This is the Order of Precedence Clause used for COE design-build contracts, in lieu of the FAR Clause "Order of Precedence." Construction RFP's use a very similar SCR. Note, that the Corps of Engineers doesn't use the UCF format for construction contracts (at least we aren't supposed to - there are a couple of lone wolf districts out there, still using UCF for everything, including construction).
Happy Sails! Joel
"SCR___. DESIGN-BUILD CONTRACT - ORDER OF PRECEDENCE

(a) The contract includes the standard contract clauses and schedules current at the time of contract award. It entails (1) the solicitation in its entirety, including all drawings, cuts, and illustrations, and any amendments, and (2) the successful offeror's accepted proposal. The contract constitutes and defines the entire agreement between the Contractor and the Government. No documentation shall be omitted which in any way bears upon the terms of that agreement.

(b) In the event of conflict or inconsistency between any of the provisions of this contract, precedence shall be given in the following order:

(1) Betterments: Any portions of the accepted proposal which both conform to and exceed the provisions of the solicitation.

(2) The provisions of the solicitation. (See also Contract Clause: SPECIFICATIONS AND DRAWINGS FOR CONSTRUCTION.)

(3) All other provisions of the accepted proposal.

(4) Any design products including, but not limited to, plans, specifications, engineering studies and analyses, shop drawings, equipment installation drawings, etc.. These are "deliverables" under the contract and are not part of the contract itself. Design products must conform with all provisions of the contract, in the order of precedence herein.

(End of Clause)"

By Ron Vogt on Wednesday, September 13, 2000 - 01:50 pm:

The mechanics of incorporating is only the beginning of the problem. What both the government and the contractor should be concerned with is the enforcability of the proposal as a contract requirement. As the Omni case (from the "Dam" messages) demonstrates, everything stated in a proposal does not necessarily become a contractual requirement, despite a clause in the contract stating that the proposal was incorporated and became additional contract requirements.

I don't have access to the Nash & Cibinic article, so I'm doing this without the benefit of their analysis. Nevertheless, here's my take on the problem:

Let's say the government is looking for a contractor to manage its spare parts inventory, and issues an RFP with several performance requirements. RFP also says that technical proposals will be incorporated into the contract. Contractor responds with a technical proposal that says it will use a whiz-bang software system that will do everything the RFP requires, plus more. As this is a best value procurement, the government awards it the contract, despite its higher price.

Two months later, the contractor concludes that its whiz-bang software won't work, and falls back on using older software that accomplishes the minimum RFP requirements. Government says that the contract requires the extra features on the new software, and threatens default, deductions, etc.

What's the answer?

According to Omni, the government may well be right. The contractor promised service capabilities that exceed the RFP requirements, and these capabilities were incorporated into the contract. The court in Omni stated: "If a successful bidder presented a level of service exceeding solicitation requirements, the court agrees those proposed capabilities would become contract requirements." What saved the contractor in Omni was that it proposed staffing levels, not service capabilities.

In short, the mechanics of incorporating a proposal are not the main problem. It's the interplay between the contractual requirements and the technical proposal.

By Peggy Richter on Wednesday, September 13, 2000 - 01:52 pm:

Joel put it pretty well in terms of how you want to do this -- your section C should have a "fill in the blank" for you to put in the proposal date and # pages.

Anon asked: If there are conflicts between the tech proposal and the SOW and you have to negotiate them out, would you conduct another round of discussions with all the offerors?
== If they are anything that could possibly be considered other than clarification issues, you will need to do it prior to award or you can expect to have to do it after award at a much larger $ impact. If you don't include the other offerors, you can pretty much expect someone to protest. You want to avoid technical leveling (by this I mean divulging a contractor's approach to it's competitors).

If there are no conflicts and you included in your RFP a statement of intent to incorporate the proposal (as Joel indicates), then you don't need to further negotiate as you have already included the other offerors in the initial RFP.

In RDT&E, yes, sometimes the contract gets moded as you go along because the R&D leads to avenues that no one expected. Hopefully it is not because of an error in the SOW or in an undetected "straight jacketing". Incorporating a tech proposal into a contract is risky because anything that is ambiguous suddenly becomes the Govt.'s responsibility, so it is not something you want to do without a good reason. It's one thing to do this with something like "come up with the next version of a Sidewinder" and another to use this for "do vacuming of the Government buildings".

By Anonymous on Wednesday, September 13, 2000 - 03:12 pm:

Mr. Jackson:

The contract is for base civil engineering services. The contract type is fixed-price-award-fee. The SOW describes what must be done and the contractor's proposal describes how he will plan, organize, staff, direct and control the processes he will use to perform those tasks. The technical narrative in the proposal is about 250 pages long. Thats the part I'm talking about.

The functional area people who evaluated the technical proposal liked what the contractor said and want to make sure that he does what he said he is going to do. We frankly didn't think about whether the proposal would be part of the contract or not when we issued the RFP. We assumed that it would be, but now we aren't so sure that's true unless we say so in the contract document. We think that we have to incorporate the proposal in the contract in order to protect ourselves.

Our lawyer says he doesn't have any heartburn about what we want to do "in principle," but wants us to figure out how we're going to do it before we come to him for his review. That's why we thought we'd ask the question at this site.

By Vern Edwards on Wednesday, September 13, 2000 - 05:02 pm:

Anonymous:

I don't have an answer to your question about how to incorporate an offeror's proposal into a contract. Sorry. Maybe one of the other folks will come through for you yet. But I wonder if you would allow me to offer you some food for thought.

You indicated that you prepared your RFP in the uniform contract format. I therefore presume that you used Standard Form 33, Solicitation, Offer, and Award. According to FAR 15.504(c), you may award the contract on SF 33, SF 26, Award/Contract, or Optional Form 307, Contract Award.

Look at the Award portion of SF 33, blocks 19 through 28. The first block in that portion of the form, block 19, says, "Accepted as to items numbered... ." (I presume that the "items" are the contract line items.) Acceptance is what makes the contract. SF 33 provides for unilateral action; there is no place for the contractor's signature. What do you accept? You accept the offeror's offer. FAR 2.101 says that "proposal" is a synonym for offer. Thus, if you award the contract using SF 33 you have accepted the offeror's proposal (offer) and it is a part of the contract whether you like it or not. If the terms of the proposal (offer) differ from the terms of the RFP, then the proposal (offer) will govern, since it is well-established law that you can only accept a proposal (offer) based on its terms. In effect, you will agreed to terms that were different from those in your RFP, whether you meant to or not. An RFP is merely a wish list of terms; it is the offer that was accepted that determine what is in the contract.

(One problem with SF 33 is that it does not say which part of the uniform contract format the proposal becomes a part of, and that is important because of the order of precedence clause. I suspect that it would be considered an attachment, and attachments trump Section C. But even it it were incorporated into Section C, the proposal would govern since that is what you accepted. You can't save yourself by unilaterally putting it where the order of precedence clause would serve your interests instead of the offeror's.)

Better go to SF 26. That form gives you two choices for award: (1) block 17 or (2) block 18. Block 17 says that the contract includes "this award/contract" (I suppose that means the SF 26 itself), the solicitation, and terms incorporated by reference. It requires that you get the offeror's signature. Thus, you can write the contract any way you want, and if you get the offeror to sign it you're home free. SF 26,. block 17, allows you to incorporate the proposal intelligently, by attachment, page substitution, pen and ink change, or cutting and pasting into the appropriate section(s) of the uniform contract format. You and the offeror will be bound by whatever you sign.

SF 26, block 18, says that the contract consists of the government's solicitation, the offer, and the "award/contract" (SF 26?). It, like SF 33, provides for unilateral action. There is no place for offeror signature. We have case law that says that the offer trumps the solicitation when SF 26, block 18 is used; see F&F Laboratories, Inc., ASBCA No. 33007, 89-1 BCA ¶ 21207. (A very funny case.)

So award on SF26, block 18, is similar to award on SF 33. You have accepted the proposal (offer) and will be bound by it.

OF 307 is similar to SF 26.

So whatever you do, think about which form you will use to award the contract. The choice can have important legal consequences. My advice is that you use SF 26, block 17, and make sure that the document that you send to the winning offeror for signature reflects the terms that you want in the contract. If those terms differ from the offeror's final proposal revision, then you are continuing discussions by making a counteroffer.

For those who understand my proposal vs. offer argument, you can see why it is important to make the distinction clear in your RFPs.

By joel hoffman on Wednesday, September 13, 2000 - 06:44 pm:

Anon,
Based on your stated desires of the Government, the KO could consider this: Establish a competitive range and conduct discussions with those offerors.

Explain to them that the Government intends to incorporate "that part of the successful offeror's proposal describing how it will plan, organize, staff, direct and control the processes he will use to perform those tasks." NOTE: I assume that this material is segregable from unwanted parts of the proposal for identification purposes - if no,t make it so in the amendment discussed below.

During discussions you must point out deviations in the existing proposals. You may bargain with offerors to improve their technical approaches if you don't like them - just don't transfuse one offeror's ideas into discussions with others or you WILL be protested. That is too complex to fully describe here.

Upon conclusion of discussions (or can be done anytime at or before requesting final proposals), issue an Amendment to add a statement in Section C that says that the (part of the successful offeror's proposal describing how it will plan, organize, staff, direct and control the processes he will use to perform those tasks - whatever you called that part of the proposal submission in theSection "L" proposal submission requirements). State that the accepted proposal will be considered an attachment in Section J. That will clarify the order of precedence after award.

Ask for revised proposals and evaluate - making darned sure that the successful offeror's proposal doesn't deviate from your solicitation.

Be aware that the offerors might revise their technical and/or cost proposals if they know it will become a contract requirement.

Use the correct block on the contract award document, as Vern explained.

My suggestion only concerns mechanics not the wisdom of incorporating a technical approach proposal as a contract requirement. This could backfire on you, as several others have warned. If the Contractor proposes a specific technical approach which doesn't produce the results required by Section C - you may very well have bought a substandard approach and have to pay more to obtain satisfactory results - I would suggest you make it clear during negotiations and in the amendment that if the proposed approach is later determined by the Government to be inadequate in meeting the specified minimum results, the Contractor will have to propose a corrective adjustment its technical approach at no additional cost to the Government.

See how complicated this can get???????
Happy Sails! Joel

By joel on Wednesday, September 13, 2000 - 07:01 pm:

Correction to my last post - In one paragraph I left out the end of an already too long sentence:

"Upon conclusion of discussions (or can be done anytime at or before requesting final proposals), issue an Amendment to add a statement in Section C that says that the (part of the successful offeror's proposal describing how it will plan, organize, staff, direct and control the processes he will use to perform those tasks - whatever you called that part of the proposal submission in the Section "L" proposal submission requirements) will be incorporated into the contract.

State that the accepted proposal will be considered an attachment in Section J. That will clarify the order of precedence after award."
Happy Sails! Joel
(Also state that if the proposed approach is later determined by the Government to be inadequate in meeting the minimum requirements in Section C, the Contractor will have to propose a corrective adjustment its technical approach at no additional cost to the Government.)

By Vern Edwards on Friday, September 15, 2000 - 01:58 pm:

What timing! The September edition of The Nash & Cibinic Report includes an article by Prof. Nash entitled, "Performance-Based Contracting: Incorporating the Proposal in the Contract." He discusses three issues: (1) whether such incorporation conflicts with the fundamental purpose of performance-based contracting, (2) whether it is wise to incorporate the entire proposal into the contract, and (3) what is the impact on the government if it binds itself to a contractor's proposed method of performance.

For those of you who do not have access to The Report, Prof. Nash states four principles of incorporation:

"(1) It is uniformly bad policy to incorporate the entire technical proposal into the contract by reference.

(2) Before deciding to make methods or techniques in the proposal binding promises, the agency should carefully consider the benefits and detriments of such a decision.

(3) If elements of a technical proposal are made part of the resulting contract, they should be specifically identified in the final contract document and stated in clear promissory language.

(4) When an agency intends to make elements of the technical proposal part of the contract, the solicitation should clearly state the procedure that will be used to identify those elements and incorporate them into the contract."

Worthwhile reading.

By Ramon Jackson on Friday, September 15, 2000 - 09:10 pm:

Anonymous,

I believe you now have some constructive suggestions on how to do this with cautions you might consider presenting to the functional people driving this for reconsideration or their request. Technical people (I was one), usually with little exposure to some of these issues, seem to be the most vocal in wanting exactly what they think they read in proposals made contractual. They are often the first to howl when faced with full consequences. In a 250 page technical proposal I'd expect a howl or two to lurk.

I'm a bit puzzled at the award fee for what now appears to be a lower risk, fixed price type, but it does offer an alternate tool for what your functional people seem to want. On the surface it seems to make the need to solidify the contractor's behavior by incorporation less necessary. Without analysis of the actual effort that is just an itch in my mind and something to consider.

Vern's observations about forms and blocks are excellent warning flags, now you have some more in his latest reference. At least push for incorporating "the proposal intelligently, by attachment, page substitution, pen and ink change, or cutting and pasting into the appropriate section(s) of the uniform contract format." Challenge functional people to separate the precise things necessary for contractual rigidity from those that can be considered business as usual in intelligently meeting the variables that will almost certainly come.

For example, they liked the contractor's proposed approach to planning, organization, staffing and such. If it turns out the organization and planning activities aren't working as well as everyone thought are you going to require a contract modification with the time and expense that involves? Suppose the functional people come to you and say "Something is seriously wrong with this process, despite what we thought when reading all those proposals, it has to change." Are they going to howl when you explain the facts of having that process contractually bound and they can just wait while you work a mod to a fixed-price-award-fee contract? Wouldn't it be better to focus now on contractually binding a process for evaluating performance and working to mutually agreeable adjustment within the contract?

Lastly, you clearly state you did not intend incorporation from the start. You were pushed into the idea by the functional people. We have no clue as to their training in contractual issues, but you do. My little mental light goes to glowing red at the idea of an accidental stumble into full proposal incorporation instead of a planned approach with an RFP crafted to accomplish that result. Fully harmonizing planned documents is difficult. Rushed, unplanned efforts to blend documents not intended to be put together is almost certain to contain perhaps serious glitches. This seems a bit like "impulse shopping" on a grand scale by your functional people -- usually dangerous and certainly not something the government's business advisor should take without concern. Good luck. Let us know the outcome.

Ramon

By G. Owen on Wednesday, September 27, 2000 - 11:08 am:

Beautiful timing indeed! This thread may have started out as "How do I incorporate proposal," but Vern's 15 September quotation of "...uniformly bad policy..." provides the definitive statement on whether it is prudent to do so.

This quotation could be used to answer other questions in the future:
* How do I go about making something a directed subcontract?
* How can I "break out" several major subcomponents as GFP so as to avoid overhead costs?
* Can I use competition to force contractors to accept more risk?

Maybe answer to original question is a big rubber stamp that says "Offeror's proposal dated ___ is hereby incorporated by reference with the same force and effect as if attached hereto and made a part hereof."

Gordon

By stermer on Wednesday, September 27, 2000 - 02:24 pm:

If you are you making a "best value" award, trade-off, technical merit for price, how do you hold the contractor to their higher level of performance..than the SOW. Are you not paying for the higher level?

By joel hoffman on Wednesday, September 27, 2000 - 03:14 pm:

Stermer, you may "hold them" (contractually at least) to their proposal by identifying which part of the proposal you are incorporating into the contract. This is best done by naming or designating the different areas of the proposal in the Solicitiation and describing which part of the winning proposal will be so incorporated.

The actual act of incorporation is denoted in one of the blocks on the contract offer and acceptance Standard Form (several different forms used, depending upon the type acquisition). Best to designate what part of the winning proposal will be incorporated in the initial RFP but you may designate it by Amendment during pre-award discussions, prior to final, revised proposals. Happy Sails!

By Ramon Jackson on Thursday, September 28, 2000 - 03:54 pm:

Stermer, the question you raise is a common concern among the people reviewing proposals. I'll use an example from an area I was familiar with.

One requirement deals with hardware and software transition-integration into an operating environment with minimal impact. One proposal shines in its overall demonstration of understanding the problems and presenting thoughtful, knowledgeable and innovative solutions. One proposal item deals with the transition issues. It shows a contractor that has probably learned valuable lessons from experience who has also really thought of how to mitigate transition risks in general and ours in particular.

We too have learned from hard experience. We've seen those charming words, perhaps written by proposal experts without contact with the firm's delivery teams, turn to dust as we meet a clueless contractor team (an aside on that subject later). We, as the technical evaluators, are determined to avoid that and someone suggests that we incorporate this wonderful proposal to "hold them to it" and avoid past pain.

I think that is a bad to disastrous idea for reasons I expressed here earlier -- particularly in those "approach" issues that are so often the issues. That proposed transition-integration scenario may be outstanding -- until it hits the reality of your actual situation. Why turn adjustment from an initial good idea (based on your descriptions of the environment and maybe a quick inspection) into a practical solution to the actual environment a contract modification? When theory meets reality why raise risk you turn this into a sudden mod that might raise a few too many opportunities to bring up issues with your own descriptions?

Instead, spend your effort in doing what is necessary to insure the proposal, as it should be, is the delivered mutually agreed upon baseline from which all will depart and that processes for working adjustment issues are contractual. You should have covered these in the SOW, but this is the last chance to insure there will be teamwork under contractual mandates to address these approach issues. Then, instead of having the work and possibly risk of a modification you have a process within the contract's bounds to make the necessary course corrections with specific knowledge and experience. They should also cover worst case development in concert of a contract modification if that becomes necessary. It will likely save much trouble and money in the long run.

Incorporation offers a sort of straitjacket from which you cannot escape normal working issues without drastic action. It can drive too frequent changes or mindless performance that once sounded good and now grates. Incorporation may sound good, but you will probably pay later while a more thoughtful approach will pay off.

The aside. Long before I thought of contracting people as other than those fools that too often delivered strangely inept stuff to us field types I had an applicable maintenance horror story of "who showed up." We had a state-of-the-art digitizer in the days when these things were really unusual. We put in requirements for maintenance after the manufacturer's warranty period expired. This described the digitizer in detail and required contractor provide trained maintenance people and all necessary tools and manuals. Enough for us technical types.

We never knew what "contracts" did with our requirement other than getting a contractor. One day the digitizer quit giving accurate readings. We called for maintenance. The contractor was prompt. A man carrying a large tool box arrived. He was escorted into the room where the computer and digitizer sat, looked around vaguely and was then shown the big white "table" that was the digitizer. "Wat's that?" he asked. "That is what you are going to fix." He then told us he'd never seen such a thing and demonstrated that by revealing tools appropriate to repair a car engine.

Needless to say he was sent packing. He wasn't about to touch that six figure dollar value digitizing table. Eventually after much swirling about in legal and contracts the contract was terminated, but our digitizer was never operational again. By the time the dust settled and we were "allowed" to seek maintenance again the thing was obsolete. It did make a really wonderful table top though. We used it for many years as a place for large layouts of materials and sometimes lunch.

Such experiences are the reasons some of the technical types glare at "contracts" with dark red glows in their eyes and want to do what really are foolish things