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  • Question

    If an offer in response to an RFP states a proposed solution, and there is no clause that explicitly incorporates the solution into the contract (E.g., 5352.215-9005 Incorporation of Contractor's Technical Proposal. 5352.215-9006 Intent to Incorporate Contractor's Technical Proposal), is the contractor required to follow the proposed solution? In effect, does the solution become legally binding once an award is made? If not, other than keeping the customer happy, what is to keep the contractor from straying completely from the proposed solution and simply executing a different solution that still meets the requirements of the SOW?


    Answer

    The clause at FAR 52.215-8 (Order of Preference) governs this issue, especially given that the technical proposal was not incorporated into the contract. In other words, meeting the Government's detailed requirement is given higher priority than strictly following the technical proposal. You ask, "...what is to keep the contractor from straying completely from the proposed solution and simply executing a different solution that still meets the requirements of the SOW?" The contractor does so at its own risk. The evaluation of the technical proposal was made in the context of the ability to meet the Government's requirement (statement of work). If the Government determines that the contractor is not meeting SOW requirements, the contractor will be in a much more difficult position to defend itself against a Government remedy, such as termination, if it was not following its own technical proposal that was the basis for award.

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