Government contractors are always hunting for the next contract opportunity. Upon finding a promising solicitation, a contractor might first examine the performance requirements to answer the initial questions of “is this something we can do,” and “is this something we can win?” Reviewing the solicitation to address these questions is an important endeavor. However, before the contractor moves on to the often chaotic and frenetic stage of preparing a solicitation response, it would be wise to first take a beat and carefully read the Federal Acquisition Regulation (FAR) clauses incorporated into the solicitation.
The FAR clauses incorporated into a solicitation often contain administrative requirements, such as compliance and certification, that must be met by the contractor. These FAR requirements may come to bear in either the contractor’s response to the solicitation, the ultimate performance of the contract, or both. Either way, it is important that a contractor thoroughly review and fully understand the incorporated FAR clauses before beginning its response to the solicitation. Failure to do so can present all manner of problems down the road.
One such problem was exhibited in a recent Government Accountability Office (GAO) decision, FitNet Purchasing Alliance, where a contractor’s proposal was rejected from a procurement due to the contractor’s apparent misunderstanding of the incorporated FAR clauses. In FitNet, the protester was one of two offerors on an Air Force solicitation to provide fitness equipment. The protester’s proposal was rejected because the protester did not provide a certification that its proposed products complied with the Buy American Act.
The protester argued that the Buy American Act did not apply, because the solicitation did not include the relevant FAR clause—FAR § 52.225-1, Buy American–Supplies. GAO rejected this argument, noting that while the solicitation did not contain FAR § 52.225-1, it did incorporate by reference the Defense Federal Acquisition Regulation Supplement (DFARS) equivalent provision—DFARS § 252.225-7001. This DFARS clause expressly incorporates the Buy American Act, and thus the Act and its applicable certifications were included in the solicitation by reference. As a result, GAO denied the protest.
There is no guarantee that had the protester submitted the required Buy American Act certification it would have won the contract. However, had the protester more carefully read the solicitation so that it fully understood the requirements imposed by the incorporated FAR and DFARS clauses, it could have submitted the required certification and at least would have had a chance of receiving the award. Or, understanding the FAR requirements could have made it clear from the outset that the protester could not provide certifiable products, which would have allowed it to avoid the time and expense of preparing and submitting a proposal. Either way, a thorough review and understanding of the FAR requirements would have put the contractor in a much preferable position.
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