The Government has now tasked a contracts SME (a government subordinate) to make it happen. My concern is that the contracts SME should not be directly discussing pre-award or pre-requirement matters with the contractor. The contracts SME should be working with the requirements office POC to submit a revised PWS to the contracts office (KO) and the KO will determine if the 'developing of a tool' is actually within scope of the contract... and from there the KO will reach out to the contractor for negotiation of the cost of this within scope change.
Question: Should the contracts SME be communicating directly with the contractor on pre-award or pre-requirement matters? The contracts SME is not a warranted contracting officer.
Open full Question Details
(1) Item: The contractor is offering some sort of electronic tool (see Contractor provided details below) and wants my agency to add it to an existing contract. Please note the contractor provided several contract vehicles that may be within scope. However, none of the contract vehicles are owned by my agency.
Here is the wording that I received "Internal Investment Decision support tool from platform database use to Modeling & Simulation. Results will highlight the ability to track and understand platforms & consumers. Ability to perform risk reduction for product fieldings with Mission effectiveness for given unit under various threats". I do not have any additional details on the proposed tool.
(2) Question: I'm basically uncomfortable discussing the requirements with a contractor at this phase because I'm use to the requirements office defining the need and coordinating with the contract office. Then, once the contract office receives the PWS, IGCE, etc., the KO will issue a solicitation. Once the KO awards the contract, my agency can then participate in discussions with the winning contractor at the post-award phase.
Is it okay for the Government (requirements office, not the contracts office) to have these type of discussions with a contractor this early and actually work with them to pre-plan the purchasing of this tool/service? Meaning there is no solicitation and no KO involvement, but the requirements office is getting the Contractor to tell them what the need is and where to possibly add it to an existing contract.
(3) Other questions asked below: I'm unable to answer any of the commercial item or dollar value questions. I was only informed that the contractor proposed something and the requirements office likes what they proposed. Now the requirements office wants to find a contract vehicle to add it to.
Based upon your question and your clarification it sounds as if the contractor has made an unsolicited proposal and your requiring activity is interested in that proposal. FAR 15.6 details how to handle unsolicited proposals. FAR 15.603 further delineates the requirements that an unsolicited proposal would need to meet. FAR 15.606 and 15.607 outline the evaluation, acceptance and negotiation of an unsolicited proposal. You indicated you were concerned with discussing this information with a contractor prior to a requirement. The contractor should submit this unsolicited proposal to the Government for review. Once the Government has reviewed this in accordance with FAR 15.606 and has evaluated and determined that they wish to accept the proposal then Contracting can either modify an existing contract or award a separate contract. FAR 6.302-1(A)(2)(i) allows for award under other than full and open competition (one responsible source). I strongly recommend working with your legal counsel and following your agency procedures on handling of unsolicited proposals.
OFPP Myth-Busting Memorandum (http://www.acq.osd.mil/dpap/policy/policyvault/USA000726-11-DPAP.pdf) clarifies many of the myths surrounding communications with potential contractors I recommend reviewing to gain a better understanding of what is allowed when engaging with Contractors.