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  • Question

    Should we be adjusting docs that we solicited w/o making it clear to the contractor what we changed? Isn't it implied that these docs are not meant to be changed, as they are auto-added (through most writing systems) to the award? Shouldn't any changes in the solicitation and contract for the contract phase be documented in alteration in contract clause? Where in the regulations is this required?


    Answer

    APPLICABLE REFERENCES:

    15.206 Amending the solicitation.

          (a) When, either before or after receipt of proposals, the Government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation.

          (b) Amendments issued before the established time and date for receipt of proposals shall be issued to all parties receiving the solicitation.

          (c) Amendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from the competition.

          (d) If a proposal of interest to the Government involves a departure from the stated requirements, the contracting officer shall amend the solicitation, provided this can be done without revealing to the other offerors the alternate solution proposed or any other information that is entitled to protection (see 15.207(b) and 15.306(e)).

          (e) If, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.

          (f) Oral notices may be used when time is of the essence. The contracting officer shall document the contract file and formalize the notice with an amendment (see subpart  4.5, Electronic Commerce in Contracting).

          (g) At a minimum, the following information should be included in each amendment:

               (1) Name and address of issuing activity.

               (2) Solicitation number and date.

               (3) Amendment number and date.

               (4) Number of pages.

               (5) Description of the change being made.

               (6) Government point of contact and phone number (and electronic or facsimile address, if appropriate).

               (7) Revision to solicitation closing date, if applicable.

     

    52.215-1 Instructions to Offerors-Competitive Acquisition. (b) Amendments to solicitations. If this solicitation is amended, all terms and conditions that are not amended remain unchanged. Offerors shall acknowledge receipt of any amendment to this solicitation by the date and time specified in the amendment(s).

     

    15.504 Award to successful offeror.

    The contracting officer shall award a contract to the successful offeror by furnishing the executed contract or other notice of the award to that offeror.

          (a) If the award document includes information that is different than the latest signed proposal, as amended by the offeror’s written correspondence, both the offeror and the contracting officer shall sign the contract award.

          (b) When an award is made to an offeror for less than all of the items that may be awarded and additional items are being withheld for subsequent award, each notice shall state that the Government may make subsequent awards on those additional items within the proposal acceptance period.

          (c) If the Optional Form (OF) 307, Contract Award, Standard Form (SF) 26, Award/Contract, or SF 33, Solicitation, Offer and Award, is not used to award the contract, the first page of the award document shall contain the Government’s acceptance statement from Block 15 of that form, exclusive of the Item 3 reference language, and shall contain the contracting officer’s name, signature, and date. In addition, if the award document includes information that is different than the signed proposal, as amended by the offeror’s written correspondence, the first page shall include the contractor’s agreement statement from Block14 of the OF 307 and the signature of the contractor’s authorized representative.

     

    52.102 Incorporating provisions and clauses.

          (a) Provisions and clauses should be incorporated by reference to the maximum practical extent, rather than being incorporated in full text, even if they-

               (1) Are used with one or more alternates or on an optional basis;

               (2) Are prescribed on a "substantially as follows" or "substantially the same as" basis, provided they are used verbatim;

               (3) Require modification or the insertion by the Government of fill-in material (see 52.104); or

               (4) Require completion by the offeror or prospective contractor. This instruction also applies to provisions completed as annual representations and certifications.

          (b) Except for provisions and clauses prescribed in 52.107, any provision or clause that can be accessed electronically by the offeror or prospective contractor may be incorporated by reference in solicitations and/or contracts. However, the contracting officer, upon request, shall provide the full text of any provision or clause incorporated by reference.

          (c) Agency approved provisions and clauses prescribed in agency acquisition regulations, and provisions and clauses not authorized by subpart  52.3 to be incorporated by reference, need not be incorporated in full text, provided the contracting officer includes in the solicitation and contract a statement that-

               (1) Identifies all provisions and clauses that require completion by the offeror or prospective contractor;

               (2) Specifies that the provisions and clauses must be completed by the offeror or prospective contractor and must be submitted with the quotation or offer; and

               (3) Identifies to the offeror or prospective contractor at least one electronic address where the full text may be accessed.

          (d) An agency may develop a group listing of provisions and clauses that apply to a specific category of contracts. An agency group listing may be incorporated by reference in solicitations and/or contracts in lieu of citing the provisions and clauses individually, provided the group listing is made available electronically to offerors and prospective contractors.

          (e) A provision or clause that is not available electronically to offerors and prospective contractors shall be incorporated in solicitations and/or contracts in full text if it is-

               (1) A FAR provision or clause that otherwise is not authorized to be incorporated by reference (see sub part 52.3); or

               (2) A provision or clause prescribed for use in an agency acquisition regulation.

          (f) Provisions or clauses may not be incorporated by reference by being listed in the-

               (1) Provision at 52.252-3, Alterations in Solicitations; or

               (2) Clause at 52.252-4, Alterations in Contract.

     

    52.103 Identification of provisions and clauses.

          (a) Whenever any FAR provision or clause is used without deviation in a solicitation or contract, whether it is incorporated by reference or in full text, it shall be identified by number, title, and date. This identification shall also be used if the FAR provision or clause is used with an authorized deviation, except that the contracting officer shall then insert "(DEVIATION)" after the date. Solicited firms and contractors will be advised of the meaning of this insertion through the use of the (1) provision at 52.252-5, Authorized Deviations in Provisions, or (2) clause at 52.252-6, Authorized Deviations in Clauses. The above mentioned provision and clause are prescribed in 52.107(e) and (f).

          (b) Any provision or clause that supplements the FAR whether it is incorporated by reference or in full text shall be clearly identified by number, title, date, and name of the regulation. When a supplemental provision or clause is used with an authorized deviation, insert "(DEVIATION)" after the name of the regulation.

          (c) A provision or clause of the type described in 52.101(b)(2)(i)(C) shall be identified by the title, date, and the name of the agency or suborganization within the agency that developed it.

          (d) Except for provisions or clauses covered by 52.103(c), the following hypothetical examples illustrate how a provision or clause that supplements the FAR shall be identified when it is incorporated in solicitations and/or contracts by reference or in full text:

               (1) If part  14 (Sealed Bidding) of the X Agency Acquisition Regulation, published in the Federal Register and codified as Chapter 99 in 48 CFR, prescribes the use of a provision entitled "Bid Envelopes," dated October 1983, and that provision is sequentially the first provision or clause appearing in Section 52.214 of the X Agency Acquisition Regulation, then the identification of that provision shall be "9952.214-70-Bid Envelopes (Oct 1983)."

               (2) Assume that Y, a major organizational element of the X Agency, is authorized to issue the Y Acquisition Regulation, which is not published in the Federal Register and codified in 48 CFR. If part  36 (Construction and Architect-Engineer Contracts) of the Y Acquisition Regulation prescribes the use of a clause entitled "Refrigerated Display Cases," dated March 1983, pertaining to a specialized type of construction work, and that clause is sequentially the second provision or clause appearing in Section 52.236 of the Y Acquisition Regulation, then the identification of that clause shall be "52.236-71-Refrigerated Display Cases (Mar 1983)-Y Acquisition Regulation."

     

    52.104 Procedures for modifying and completing provisions and clauses.

          (a) The contracting officer must not modify provisions and clauses unless the FAR authorizes their modification. For example-

               (1) "The contracting officer may use a period shorter than 60 days (but not less than 30 days) in paragraph (x) of the clause"; or

               (2) "The contracting officer may substitute the words ‘task order’ for the word ‘Schedule’ wherever that word appears in the clause."

          (b) When modifying provisions or clauses incorporated by reference, insert the changed wording directly below the title of the provision or clause identifying to the lowest level necessary (e.g., paragraph, sentence, word), to clearly indicate what is being modified.

          (c) When modifying provisions or clauses incorporated in full text, modify the language directly by substituting the changed wording as permitted.

          (d) When completing blanks in provisions or clauses incorporated by reference, insert the fill-in information directly below the title of the provision or clause identifying to the lowest level necessary to clearly indicate the blanks being filled in.

          (e) When completing blanks in provisions or clauses incorporated in full text, insert the fill-in information in the blanks of the provision or clause.

     

    15.204-2 Part I-The Schedule.  (h) Section H, Special contract requirements. Include a clear statement of any special contract requirements that are not included in Section I, Contract clauses, or in other sections of the uniform contract format.

    15.204-3 Part II-Contract Clauses.  Section I, Contract clauses. The contracting officer shall include in this section the clauses required by law or by this regulation and any additional clauses expected to be included in any resulting contract, if these clauses are not required in any other section of the uniform contract format. An index may be inserted if this section’s format is particularly complex.

    15.204-4 Part III-List of Documents, Exhibits, and Other Attachments.  Section J, List of attachments. The contracting officer shall list the title, date, and number of pages for each attached document, exhibit, and other attachment. Cross-references to material in other sections may be inserted, as appropriate.

     

    52.252-3 Alterations in Solicitation.

    As prescribed in 52.107(c), insert the following provision in solicitations in order to revise or supplement, as necessary, other parts of the solicitation that apply to the solicitation phase only, except for any provision authorized for use with a deviation. Include clear identification of what is being- altered.

    Alterations in Solicitation (Apr 1984)

    Portions of this solicitation are altered as follows:

    _____________________________________________ _____________________________________________ _____________________________________________

    (End of clause)

     

    52.252-4 Alterations in Contract.

    As prescribed in 52.107(d), insert the following clause in solicitations and contracts in order to revise or supplement, as necessary, other parts of the contract, or parts of the solicitation that apply after contract award, except for any clause authorized for use with a deviation. Include clear identification of what is being altered.

    Alterations in Contract (Apr 1984)

    Portions of this contract are altered as follows:

    _____________________________________________ _____________________________________________ _____________________________________________

    (End of clause)

    ANSWER: The FAR excerpts included above I think address most of your questions.  Please read FAR 15.206 which addresses how to handle changes to the solicitation that are made pre-proposal and FAR 15.504 for changes made to the award document that are different than the signed proposal.  Please also see FAR 52.102 – 52.104 as well as FAR Subpart 52.3 (FAR Matrix) for guidance on incorporating, identifying and modifying provisions and clauses in the model and/or awarded contract.  For instructions on the uniform contract format (UCF) to include special clauses (Section H), clauses required by law or regulation (Section I) and exhibits and attachments (Section J), take a look at FAR 15.204-2 – 52.204-4.  Finally, you’ll want to take a look at FAR 52.252-3 and 52.252-4 for how to identify alterations to the solicitation and/or contract.      

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