Now that the aforementioned contract has been in existence for two years, the Government would like to compete the delivery orders under the single award SABER contract between the two contractors. Can the Government compete these orders between these two contractors even though this award was neither solicited nor awarded as a multiple award contract?
The following response is based solely on the question and background information provided. As we do not have all of the facts particular to your contract, program, and situation, we highly recommend you consult your Contracting Officer and Legal Office for guidance.
Open full Question Details
One thing to check first is the language in your existing two SABER contracts that explains the method the Government will use to place orders against the basic contracts. As you probably know, under single award contracts, a contractually agreed to factor is applied against a third party pricing method (such as RS Means) and the only discussion prior to executing an order is technical in nature.
If your contracts specify that you will or may compete orders, check to see if there is an explanation of the basis for the competition - if competition can be price-related, does the Government expect a discount to the agreed to factor? Or if the competition is intended to be of a technical nature, exactly what will be required in terms of a proposal from the two contractors to give the Government adequate technical information to make a choice and what will be the criteria used by the Government for that choice?
If there is no language related to competing orders between the two contracts, there must have been some scheme in mind at the outset for distributing the work. How has it been determined up to this point which contractor got which projects? If there has been no expectation of competition up to this point, introducing it will now cause the contractors to incur expenses for proposal preparation on work they may not be awarded - something that the contractors have not anticipated or priced into their ongoing efforts.