The Federal Acquisition Regulation (“FAR”) gives contracting officers significant flexibility in selecting the procurement method they choose to use.  FAR 6.401 (Sealed Bidding and Competitive Proposals) states: Sealed bidding [using an Invitation for Bids-IFB]  and competitive proposals [using a Request for Proposals-RFP], as described in [FAR] parts 14 and 15, are both acceptable procedures for use under subparts  6.1, 6.2; and, when appropriate, under subpart  6.3 [these parts require full and open competition, full and open competition afte ..read more

Federal Acquisition Regulation (“FAR”) 15.306 deals with “Exchanges with offerors after receipt of proposals;” it is important to understand what is or is not required after receipt of proposals (but before selection for award), specifically pertaining to “clarifications” and the requirement for “discussions”.  In a recent Government Accountability Office (“GAO”) protest, no clarifications were held (as protested), and GAO agreed that none were needed, based on the FAR requirements.  Enterprise Technology Sols, B-422088, Dec. 20, 2023. FAR 15.306(a) states that clarifications are lim ..read more

Hello and thank you for joining us for Episode 8 of Fun with the FAR Season 11! In our next session, we will cover FAR Part 15 (Contracting by Negotiation) As we prepare for our 9th episode of Season 11, here are a few FAR Facts for us to think about: A contract awarded using other than sealed bidding procedures is a “negotiated ” FAR 15.000. Contracting officers are required to take detailed notes during oral presentations to document what the Government relied upon for purposes of source selection. FAR 15.102(d)-(e). A best practice is for the contracting officer to tape record the oral pre ..read more

Firm fixed price (FFP) contracts are a common type of agreement used in government contracting. Under an FFP contract, the supplier agrees to deliver a specific product or service at a predetermined price, regardless of the actual costs incurred during the project. This article explores the benefits and risks of FFP contracts for government suppliers, and highlights relevant resources from Public Contracting Institute to help navigate these agreements. Benefits of firm fixed price contracts Predictability: FFP contracts provide a clear understanding of the project scope and the total cost up ..read more

The Adaptive Acquisition Framework (AAF) is a groundbreaking approach to streamlining government contract acquisitions. It aims to simplify the procurement process, reduce bureaucratic hurdles, and enable agencies to acquire goods and services more efficiently. In this article, we will explore the key aspects of the AAF and how it benefits both government agencies and contractors. Understanding the Adaptive Acquisition Framework The AAF is a comprehensive framework designed to provide flexibility and agility in government contracting. It consists of six acquisition pathways tailored to specifi ..read more

When it comes to government contracting, choosing the right contract type is crucial for the success of your project. Two common contract types are Firm Fixed Price (FFP) and Cost-Reimbursement contracts. Let’s dive into the key differences between these two approaches and explore how to select the best fit for your government project. Firm Fixed Price Contracts In a Firm Fixed Price contract, the contractor agrees to deliver a specific product or service at a predetermined price. The key characteristics of FFP contracts include: Fixed price: The price remains constant, regardless of the act ..read more

A recent case at the Federal Circuit explained the Parol Evidence Rule, and its application to potentially differing site conditions.  Nova Group/Tutor-Saliba v. United States, No. 2022-1740 (Fed. Cir. Dec. 11, 2023). The U.S. Navy, awarded Nova Goup/Tutor Saliba (“Nova”) a contract to build a new maintenance pier in Bremerton, WA.  Nova was required to demolish an old pier, design and build a replacement pier (known as “Pier B”) and build a new structure known as the “Mole Quaywall” that would be designed by the government.  The two structures would be integrated together durin ..read more

Hello and thank you for joining us for Episode 7 of Fun with the FAR Season 11! In our next session, we will cover FAR Parts 9 (Contractor Qualifications) and 14 (Sealed Bidding). As we prepare for our 8th episode of Season 11, here are a few FAR Facts for us to think about: Unless FAR 104-2 “special standards” are required, a prospective contractor shall not be deemed not responsible solely on the basis of a lack of relevant performance history. FAR 9.104-1(c) As a general rule, prime contractors are responsible for determining the responsibility of their subcontractors. FAR 104-4. Governmen ..read more

Where a contract imposes an obligation on the government, and that obligation is a condition that ensures the contractor can perform its duties, but the government breaches that obligation, an exculpatory clause in the contract does not relieve the government of liability.  Manitou Island Transit, LLC v. United States, No. 21-953, (Fed. Cl.  Oct. 26, 2023). Manitou had a concession contract from the National Park Service (“NPS”) under which it was to provide commercial ferry services to certain islands in a National Park.  Manitou’s claims were that the government breached its c ..read more

In a recent appeal of an Army Corps of Engineers  (the “Corps”) termination for default, the Armed Services Board (“ASBCA” or “Board”) denied the Corps’ motion to dismiss the appeal for failure to state a claim upon which relief can be granted or, in the alternative, for a more definite statement.  Colony Construction, ASBCA No. 63630, Nov. 23, 2023.  The ASBCA denied both motions because Colony clearly stated a claim—to vacate appellant’s termination for default.  Furthermore, the Board found that Colony’s submissions to the Board were sufficient to proceed past the pleadi ..read more