You Can’t Always Get What You Want…Unless You Actually Asked For It
The Government was recently reminded of its responsibility to clearly articulate its requirements for contract performance in Command Language, Inc. d/b/a CLI Solutions, ASBCA No. 61216. There, the Government had sought the creation of 30 and 40 level maintenance manuals to support Afghan forces utilizing Mobile Strike Force Vehicles (MSFV) in Afghanistan. The Afghan forces were already using 10 and 20 level manuals prepared by the original equipment manufacturer (OEM), but needed the higher level manuals for more advanced tasks such as refurbishing, overhauls, etc.. The manuals had to be prepared in English and then translated into Dari and Pashtu.
The OEM’s manuals were written at the standard seventh grade reading level, but the Army wanted the new 30 and 40 level manuals prepared at a third-grade reading level, with a step-by-step pictorial display. The Government prepared a list of the tasks it wanted included in the 30 and 40 level MSFV manuals; however, the Government created this task list based upon manuals for a related vehicle program (the ASV) rather than cross-referencing the tasks already included in the existing 10 and 20 level OEM MSFV manuals. As a result, there was some overlap between tasks previously included in the OEM 10 and 20 level MSFV manuals and the tasks the Government was requesting to be included in the 30 and 40 level MSFV manuals.
The Solicitation, and later the Contract, indicated the Government was providing the OEM 10 and 20 MSFV manuals, as well as the 10-40 level manuals from the ASV vehicle program, as “Government Furnished Information [GFI] for reference,” and instructed bidders that they should use the GFI to the “maximum extent practicable.” Prior to bid submission, offerors submitted numerous questions to the Government seeking guidance in formulating their bids. Two important questions were raised in regards to the overlap between tasks in the 10 and 20 level manuals and the 30 and 40 level manuals being created. The first was “whether it would be acceptable to reference the [10 and 20 level] manual for equipment conditions and other references in the 30 and 40 level manuals [being created]” and the second was whether the tasks in the 10 and 20 level manuals would have to be replicated. The Government responded that offerors could “reference existing manuals” and that there was “no need to replicate.”
The Government evaluated bids utilizing the Lowest Price Technically Acceptable (LPTA) methodology. Essentially, the Government reviewed the sample translation each offeror was required to submit and then looked to price. Because the Government chose the LPTA evaluation methodology, it took the position that it was not required to give consideration to any other factors—including the technical approach offerors planned to take in preparing the subject manuals. Appellant, CLI Solutions (CLI), was ultimately selected because its sample translation was deemed “most favorable” and its price was quite low.
CLI’s price was so low because it intended to do as the solicitation directed and leverage its ability to “reference” the existing material in the 10 and 20 level manuals to the “maximum extent practicable.” Essentially, where possible, it was not going to take apart the vehicles or write out the steps of a task if that task had already been covered in the 10 and 20 level manuals. It would simply refer the reader back to the 10 and 20 level manuals. These tasks were referred to as “reference only tasks.”
CLI specifically mentioned in its bid proposal that it intended to take this approach. The Government expressed its concern in the kick-off meeting at CLI’s low price, but didn’t ask any specific questions about how it arrived at that cost. Nevertheless, CLI specifically mentioned, again, in its kick-off presentation slides that it intended to use reference-only tasks and provided samples detailing the same. CLI went on to submit two additional rounds of sample tasks and then submitted its first deliverable (a first draft 30 level manual), all containing reference-only tasks. At no point in response to these submissions did the Government indicate this approach was unacceptable. It wasn’t until months into contract performance, when the same 30-level draft manual was submitted for its second review, that the Government for the first time indicated the reference-only tasks would have to be redone and fully developed.
Shortly thereafter, the Government issued a cure notice forcing CLI to change its approach, which in turn greatly increased its costs. As a result, CLI filed a claim seeking additional compensation for the full development of the tasks that were previously included as reference-only tasks.
On Appeal, the ASBCA found in favor of CLI. The ASBCA noted that, while the Government may have wanted these manuals fully developed and without reference to the level 10 and 20 level manuals written at a higher grade level, it “did not bind CLI to perform [that type of work].” Citing Blount Bros. Constr. Co. v. United States, 346 F.2d 962, 971 (Ct. Cl. 1965) (the intention in the minds of government designers is of no consequence unless communicated to bidders). The ASBCA gave no weight to the Government’s linguistic-based arguments centered on the grammatical usage and definition of the term “reference” and found that the Government had entirely failed to verify the basis of CLI’s pricing and “ignored every indicator that CLI did not possess the same understanding of the GFI as reference material.”
The ASBCA concluded that the dispute arose from the Government’s “careless disregard of CLI’s technical approach” and the “Army’s mid-stream reformation of the statement of work to satisfy previously undisclosed requirements for simplified 10 and 20 level manuals.” CLI’s approach was consistent throughout the bidding and performance period, and it communicated its intended approach to the Government at every turn. The ASBCA’s decision confirms that the Government must effectively communicate what it wants in a contract and cannot simply turn a blind eye towards a Contractor’s approach and then threaten termination when it decides that approach does not align with its intended purpose. Even in an LPTA evaluation, contractors should make sure they are communicating with the Government about how they intend to arrive at a finished product. That way, in the event of a later disagreement, the Contractor will have a very consistent and persuasive story to tell about why its interpretation is the correct one.
Contact Eric Whytsell for more information.