You are John Jones, a junior

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1 64 Contract Management September 2012

2 Contract Management September

3 questions and answers: a tool to shape solicitations You are John Jones, a junior contract manager for a government contractor. Your boss assigns you to a team that is preparing to propose on a government construction project. After reading the solicitation, you learn that the government may make award without discussions. You also get the feeling, based on your limited experience, that the solicitation is just not right. You think it contains some unclear provisions, that a lot of the contract clauses are unnecessary, and that there are clauses that you have seen in previous construction solicitations that are omitted in this one. However, because the agency may not conduct discussions, you are at a loss about how to bring these issues to the agency s attention. John Jones, and government contractors in general, 1 face many obstacles when submitting offers to solicitations, whether for invitations for bids 2 or requests for proposals (RFPs). 3 By the offer due date (normally 30 days after the solicitation is issued), 4 offerors must thoroughly understand the statement of work (SOW), war-game it within the company, and prepare and submit a responsive award-winning proposal. Under the best of circumstances, offerors have their work cut out for them. Add to this, however, the unfortunate reality that many solicitations, despite an agency s best efforts, contain numerous errors and omissions, and an offeror s task can be downright daunting. Jones must be cognizant of an invaluable tool at his disposal; one that when used properly can be extremely beneficial to his company s effort to win the work: the question and answer (Q&A) process. This article will walk Jones through that process. In particular, it will instruct Jones on: The Uniform Contract Format (UCF) and Q&A s in general; How to use Q&A s to clarify conflicting requirements, delete contract clauses, and incorporate contract clauses; and How to draft proper questions. Uniform Contract Format First, to properly review a solicitation, Jones should have a basic understanding of how solicitations are put together. He should know that contracting officers are usually required to prepare solicitations using the UCF. 5 The UCF promotes consistency. It ensures that solicitations contain: Part I The Schedule; Part II Contract Clauses; Part III List of Documents, Exhibits, and Other Attachments; and Part IV Representations and Instructions. 66 Contract Management September 2012

4 questions and answers: a tool to shape solicitations Each of these parts is further divided into various titles. However, the UCF does not apply to all acquisitions, including the acquisition of construction services. 6 No matter the acquisition, however, the Federal Acquisition Regulation (FAR) mandates certain solicitation provisions, contingent upon the solicitation type. 7 To assist Jones in his solicitation review, he should review FAR , Solicitation Provisions and Contract Clauses (Matrix). The matrix lists all of the required clauses for particular types of contracts. Yet, the matrix notwithstanding, Jones solicitation still contains discrepancies for which the matrix is of little help and unnecessary or omitted contract clauses. Questions and Answers Jones can use Q&A s to point out these problems to the contracting officer. Typically, a solicitation provides for the submission of Q&A s, stating something to the effect that, for a discrete block of time, offerors are allowed to submit questions about the solicitation to the contracting officer. Unfortunately, there is no specific FAR authority or guidance for Q&A s. To be sure, the FAR does permit various types of exchanges between offerors and the government between the release of a solicitation and the submission of proposals. For example, questions could concern industry days, public hearings, and draft RFPs, 8 but Q&A s are not one of the exchanges specifically authorized by the FAR. Thus, clear guidance on how to submit questions or the government s obligation to answer them is absent, thereby affording agencies great latitude in this area. Thus, before Jones can submit questions, the solicitation must in fact provide for a mechanism to do so. Moreover, the contracting officer may, but is not required to and often does not even answer the questions. For that matter, even if an agency provides answers to offerors questions, the incorporation of the answers into the solicitation by amendment, thereby becoming part of the prospective contract and entitling offerors to rely on the information to develop their proposals, is not required. Indeed, sometimes an agency may incorporate the answers by amending the solicitation, refuse to incorporate them at all, or issue a separate document outside the solicitation that answers the questions. For example, on one particular solicitation, an agency received 381 questions. The contracting officer refused to incorporate the Q&A s into the solicitation by amendment, stating by letter to offerors that nothing in the government s answers to the questions changed the solicitation. When told that another contracting officer for the same agency had in fact incorporated answers into another solicitation, the contracting officer responded: That s the way that contracting officer does it for her RFPs, and this is the way I do it for mine. Clarifying Confusing or Conflicting SOW Provisions Be that as it may, Jones cannot simply give up on asking questions, for the risk is too great. Jones failure to clarify conflicting contractual provisions could lead to the submission by his company of an underpriced or overpriced proposal. Contract Management September

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6 questions and answers: a tool to shape solicitations For instance, a solicitation for an overseas construction project specifically required the installation of a hanger tent by the actual tent manufacturer, as opposed to allowing the successful contractor to erect the tent. An offeror asked the agency about this requirement, pointing out that tent manufacturers normally send representatives to assist with installation of their tents, but seldom actually erect the tents themselves. The offeror also noted that the requirement would lead to increased prices and more than likely additional subcontracting requirements. In its answers, the agency clarified that its intent was not to have the tent manufacturer actually erect the tent, but to provide a representative to oversee the erection, precisely the concept proposed by the offeror. In another solicitation, the SOW contained one sentence, sandwiched in a larger paragraph on environmental remediation, which made the contractor the owner/ generator of environmental waste at the site. Obviously, a bidding contractor would have to account for this requirement in its risk mitigation plan and its final price to the government. However, the solicitation also incorporated by reference a local base environmental plan. The plan, contrary to the SOW provision, specifically made the agency the owner/generator of environmental waste. A question was posed that highlighted this inconsistency during the Q&A period. Thereafter, the contracting officer amended the solicitation and removed the provision that made the contractor the owner/generator of the waste, thereby removing a significant risk to the contractor and lowering the associated price. Thus, it is clearly apparent that, under certain circumstances, questions must be asked to clarify discrepancies in solicitations in order to properly define the solicitation. Deleting Unnecessary Clauses Jones can also use the Q&A process to delete those provisions in the solicitation not required by the contract type. Oftentimes, additional and unnecessary clauses place additional and unnecessary risks upon contractors. For example, a construction solicitation included an extremely high liquidated damages rate. Offerors bidding on the work would have to account for the high liquidated damages in their schedule and price. After a number of questions were submitted during Q&A s challenging the reasonableness of the rate, however, the agency substantially lowered the liquidated damages and amended the solicitation accordingly. In another solicitation, an overseas construction project required the awardee to post a substantial bank guarantee for the entire period of performance and the warranty period of a project. From the offeror s perspective, the guarantee posed great risks. It would tie up a substantial amount of funds that would not be available for other business opportunities, require a sizeable contingency to mitigate the risk of forfeiting the guarantee, and could make their proposal cost prohibitive. When challenged in the Q&A s about the reasonableness of the guarantee, the agency removed the requirement, substituting it with an industry standard performance bond. In addition to using Q&A s to clarify and delete solicitation provisions, Q&A s can also lead to the insertion of clauses that enhance a contractor s ability to submit a competitive proposal. Including Omitted Clauses To illustrate this problem, an agency on an overseas contract failed to include in the solicitation FAR , Taxes Foreign Fixed-Price Contracts. This clause provides, among other things, for an increase in the contract price for imposed taxes. The omission of the clause in the solicitation, therefore, would make the contractor responsible for substantial country-specific taxes. When this was brought to the attention of the contracting officer during the Q&A process, the contracting officer amended the solicitation to include the clause. Agencies frequently use websites to post various contract documents. A common problem with this approach, however, is that solicitations often fail to actually incorporate the documents into the solicitation. Of course, offerors assume that these documents are part of the solicitation, but such assumptions are risky, especially, for example, if a contractor misses important documents that are posted on a website. By far, the better process would be for the agency to specifically incorporate the documents into the solicitation. A simple question to the contracting officer during the Q&A process can quickly resolve this issue. Jones is now a true believer in the benefits of Q&A s, but he wonders whether there is a particular format to draft questions. Drafting Questions It is probable that most contractors do not have corporate policies or guidelines on drafting Q&A questions. This may be due to the notion that it s just a simple question, after all. In reality, the experience of the contracts managers likely determines the format, extent, and breadth of questions. From reading Q&A s of various solicitations, it is readily apparent that some contractors put little into drafting them, whereas others treat them as an art form, crafting long essays to support their position. A proper question should: Clearly identify the problem, Explain why it is a problem, and Request a course of action. Properly drafted questions should be fair, not flippant or accusatory. Most importantly, they should not, in light of the fact that the contracting officer does not have to answer them at all, be derogatory or demeaning. They should assist the contracting officer in his or her goal to properly award a compliant contract. Two examples follow. This question addressed a solicitation requirement to consider documents that had not been incorporated by reference. Omission of Drawings and Specifications from the RFP Contract Management September

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8 questions and answers: a tool to shape solicitations Reference: (a) RFP Section 0000, Instructions to Bidders, Schedule B (b) RFP Section 00001, Contract Clauses, DFARS Contract Drawings and Specifications (page 20) Inquiry: Schedule B Items 0000 through 0004 refer to: Price for the entire work, complete in accordance with the requirements of the RFP including drawings and specifications. However, the drawings and specifications constituting the scope of work are omitted from the RFP because the documents are not listed (by title, number, and date) or described in Amendment-06 or any other part of the RFP. RFP Section DFARS requires the government to enter in paragraph (e) of the clause an index of the specifications and drawings. Please amend the RFP IAW DFARS to incorporate an index of drawings and specifications (by title, number, and date) that constitute the scope of work for pricing and will be part of the contract after award. To be sure, the same question could have been presented more straightforward, such as, Please incorporate DFARS However, although this question asks for the same result as the much longer question above, it is brief to the point of being curt, and comes across as both dismissive and confrontational. This question could easily put the contacting officer on the defensive, causing him or her to do the opposite of what is requested or to simply ignore the question. that it will not supply any end products produced by forced child labor in certain countries or the offeror has made efforts to determine that forced child labor was not used to produce the end products. (Contracting officer must enter the end products and countries of origin in the provision before an offeror can enter its certification.) According to FAR , the provision FAR applies only to solicitations for the acquisition of end products. Please amend the RFP to delete the provision FAR because it does not apply to a construction contract. By following this format, Jones is prepared to draft proper questions to the contracting officer to address solicitation discrepancies, and to argue for the omission or addition of contract provisions and clauses beneficial to his company Conclusion This article discussed the Q&A process from the perspective of John Jones, a junior contracts manager. Jones learned that, although offerors must bid the SOW, doing so without clarifying perceived discrepancies in the SOW can be risky and costly to offerors. Jones knows that the Q&A process is a valuable tool that offerors can employ to shape solicitations. A properly drafted question can lead to the clarification of conflicting contractual provisions, the removal of unnecessary contract clauses, and the incorporation of omitted clauses. There is no one way to ask questions, and the experience of the contracts manager likely determines the format thereof, but a proper question should clearly identify the problem, reference the solicitation provision, explain why it is a problem, and request a course of action. Offerors who fail to attempt to shape solicitations through the Q&A process do so at their own peril. CM About the Authors DAVID NEWSOME jr., is a senior legal counsel and a retired U.S. Army officer of the Judge Advocate General s Corps where he maintained an acquisition law specialty. He currently serves as chair of the Defense Contracting Section of the Government Contracts Section of the Federal Bar Association. GARY SILVERMAN has been in the contracts management field in both the government and commercial sectors for well over 20 years. The opinions expressed are those of the authors and do not express the views of their employers. This article is for general information purposes and is not intended to be and should not be taken as legal advice. Send comments about this article to cm@ncmahq.org. The following question requested the removal of an unnecessary clause in a construction contract. RFP requires offeror certification of end products that is not applicable to construction contracts Reference: RFP Section 00700, FAR (page 20) Inquiry: Section FAR requires an offeror to certify in its proposal Endnotes 1. Contractors and offerors, and their singular, are used interchangeably throughout this article. 2. See Federal Acquisition Regulation (FAR) Part See FAR Part FAR (a). 5. See FAR , , and FAR (a)(1). 7. FAR , , and See FAR Contract Management September