Contract Performance

Summarize the report, with particular attention to the issue of contract performance. I chose the report with a Lancer Clothing Corporation protest alleging “Workroom for designers does not have a commitment for the lining material supplier who is reputable, and that it lacks sufficient production capacity. Lancer also alleges that the principal individual associated with workroom for designers has a questionable business background” Van Cleve (1981) to deliver the final product. The ruling by Van Cleve:

The allegation that the bidder cannot perform contract involves bidder responsibility, affirmative determination of which is not reviewed by GAO except in cases of fraud of misapplication of definitive responsibility criteria set forth in solicitation. Since neither exception is applicable, protest is dismissed (1981. pp 1-2). Explicate the regulatory provision (FAR) pertaining to contract performance in general. Contract performance first lies the early stages of interpreting the contract. Marshall Engelbeck states “The cardinal rule of contract interpretation is to “carry out the original intent of the parties.

This rule is founded in common law. ” (Engelbeck, 2002, p. 339) The first step in understanding a contract is interpreting the contract by finding the “plain meaning of the words, if the words are clear and unambiguous. ” (O’Connor, 2007, p. 119) to help with this Marshal Engelbeck lays out six presumptions upon which a contract is founded. These are used to help interpret the contract to ensure the objective intent is understood and that no ambiguity exists between the contracting parties. They are: (1) Performance feasibility: there is a presumption that it is possible to perform the work.

(2) Competency: The seller has an obligation to perform the work satisfactorily. (3) Document soundness: The contract is the plain meaning between the buyer and the seller, and should be a complete and accurate expression of the original intent of both parties. (4) Cooperation: This presumption enforces the duty on both parties to cooperate. (5) Absence of mistake: In a contract, mistakes can occur that are classified as mutual or unilateral. The burden of resulting from a mistake can be substantial, and the parties must resolve the situation quickly.

(6) Conscionability: misunderstandings, and optimistic analysis can create contract requirements that impose an obligation on the performing party to operate contract to its best interest, the cost of performance is not proportional to the benefits. (2002, pp. 328-329) Also both parties are subject to the “duty to inquire rule, this applies only to obvious errors, gross discrepancies, or inadvertent and glaring gaps. This is not to focus on intent but whether either party, failing to divulge mistakes, stands to profit from the failure. ” (Engelbeck, 2002, p. 339) The question stated in plain words: What does the contract say?

To understand this possible additional layer in the contract, we need to use the secondary rules of contract interpretation. They are as follows: “Requirement 1: For words to be ambiguous, there must be two reasonable interpretations of the words” O’Connor (2007, p. 123), which means “the party must read the contract as a whole, words and meanings should remain consistent. ” Engelbeck (2002, p. 340) “Requirement 2: The ambiguity must be hidden (patent)” (O’Connor, 2007, p. 123) which Engelbeck states as where “express language rule prevails; this rule assumes that the professionals understand the language of their own specialties.

” (Engelbeck, 2002, p. 340) “Requirement 3: The contractor did not know that the government had different interpretation. If a bidder knows its interpretation is in conflict with government’s at the solicitation stage, the bidder is must resolve it. ” (O’Connor, 2007, p. 125) this is reinforced by Engelbeck (2002, p. 341) “knowledge of the other party’s interpretation: Entering into a contract knowing the other party’s interpretation was objectionable means that other party’s interpretation is the one that is binding.

” If the parties still have not resolved the inconsistencies of the contract the FAR has established and Order of Precedence to help mitigate any ambiguity that may arise from the objective intent of a contract: FAR 52. 215-8, Order of Precedence – Uniform Contract Format (October 1997), “Any inconsistency in the solicitation of contract shall be resolved by giving precedence in the following order: (a) The schedule (excluding the specifications).

(b) Representations and other instructions. (c) Contract clauses. (d) Other documents, exhibits, and attachments. (e) The specifications. ” (O’Connor, 2007, p. 127) The Post-Award Conference is should be established by the Contracting Officer or to help “establish the communication protocol, and define the focal points for specific tasks and to ensure the contractor has a complete understanding of the scope, technical requirements, and obligations under the contract.

The orientation should be held as soon after the award of the contract. ” Engelbeck (2002, pp. 336-337) Engelbeck further states this is not the time to rewrite the requirements or the contract. Based off my experience as a procurement manger this is the time where possible concerns are raised by the contractor, and the task orders are issued by the contracting officer to clarify the contract, and at times modifications are issued to the contract to reflect the elucidation of the objective of the client.

Explicate the regulatory provisions (FAR) that apply to the particular contract performance issue of the report chosen. The regulatory provisions that apply to this contract based off Lancer Clothing Corporation’s protest would be the following presumptions as identified by Engelbeck (1) performance feasibility, would go the argument that Lancer Clothing Corporation protests on the this issue as “the procurement objective would not be fulfilled and the significant financial lost on the part of the client could occur.

” (Engelbeck, 2002, p. 329) (2) competency, this would apply as the company pointed out that “bidder does not have a commitment for the lining material, from a reputable suppler and thus lacks sufficient production capacity” Van Cleve (1981, p. 1) to deliver the full product line. Explicate whether the report gives adequate information to form an opinion about the recommendations. I believe the report gives enough information to infer logical conclusions to support the decision of the protest being denied.

I would infer the following from Engelbeck presumptions Conscionability, that Lancer Clothing is capable of supplying the necessary product, and that the contacting officer used the sealed bid solicitation format to determine a suitable supplier and addressed any issue and concerns per FAR §52. 214-29, Order of Precedence – Sealed bidding, in solicitations and contracts to which uniform contract format applies: As prescribed in 14. 201-7(d), insert the following clause:

ORDER OF PRECEDENCE–SEALED BIDDING (JAN 1986) Any inconsistency in this solicitation or contract shall be resolved by giving precedence in the following order: (a) the Schedule (excluding the specifications); (b) representations and other instructions; (c) contract clauses; (d) other documents, exhibits, and attachments; and (e) the specifications. (End of clause) (Wolters Kluwer, 2010) This evidence is supported by the statement from Van Cleve “prospective contractors, determinations of responsibility are largely within the discretion of contacting officers. ” (1981, p. 1) References.

Engelbeck R M 2002 Acquisition managementEngelbeck, R. M. (2002). Acquisition management (2nd ed. ). Vienna, VA: Management Concepts. O’Connor T M 2007 Understanding government contract lawO’Connor, T. M. (2007). Understanding government contract law (1st ed. ). Vienna, VA: Management Concepts. Van Cleve H R 19810417 Lancery Clothing CorporationVan Cleve, H. R. (1981, April 17). Lancer Clothing Corporation (B-202815). Washington, DV: U. S. Government Accountability Office. doi:B-202815 Wolters Kluwer 2010 Federal Acquistion RegulationWolters Kluwer (2010). Federal Acquisition Regulation (July ed. ). Chicago, IL: CCH.