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    What thought do you have on the subject?


    Your colleague’s plans to make the offeror’s statement of work (SOW) a part of the contract is not advised by contracts lawyers. According to previous legal advice, making the offeror's SOW an attachment to the contract binding them to what is included in the SOW may have deleterious effects. The successful offeror may have limited their performance and their obligations under the contract by what they have included and also specifically what they did not include in their performance work statement (PWS). Thus, the government is limited to what is in the SOW, not to what is needed for successful performance.
    If your colleague chooses to make this a Performance Based Acquisition, then they could apply FAR 37.602 and use a Statement of Objectives (SOO).  Under a performance based acquisition the offeror prepares a detailed Performance Work Statement (PWS) in response to the SOO. It is important to note that according to FAR 37.602(c), the SOO does NOT become part of the contract!
    Your colleague may also want to consider the level of scrutiny needed in the evaluation of proposals under this solicitation. Questions such as: By what degree might the offeror enhance or increase the "requirement" in
    order to both provide stellar support / performance and therefore increased profit? And, How will the government discriminate between various proposals in the competition when offerors are making up their own PWS?  The Source Selection Plan and the preceding Acquisition Plan will need to address these questions in advance of issuing the solicitation.  The evaluation of a contractor's SOW will require an extremely detailed review, as their writing may inadvertently conflict with required contractual provisions and clauses. The contracting officer and the contractor may not be cognizant of these conflicts, errors and/or omissions due to the specific technology.
    In the additional information you provided it was indicated that this action has a government estimate of over $75 Million, with an anticipated performance period of three years for a somewhat sophisticated requirement.  In order to maximize competition, and obtain "Best Value" your colleague should be encouraged to conduct market research that includes other similar solicitations on FED BIZ Opps, and discuss what other organizations used for their requirements? Likewise, consider conducting a pre-solicitation conference to gather industry information on the requirements, such as where the technology is, and what the industry
    standards are now.

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