Federal Contract Law: How not to place contract orders

Joseph J. Petrillo

While preparing a course on task and delivery order contracts, I found a best practices guide from the Office of Federal Procurement Policy dated July 1997. Changes since then make this guide seriously obsolete. But I couldn't find an updated version.

There isn't enough space in this column for a new best practices guide. So I wrote a different one: 'Worst Practices for Placing Contract Orders.'

Instead of multiple awards, use multiple contracts. If you make more than one award under a contract, then you might have to compete some orders among the contractors. Instead, make only one award, but have multiple overlapping contracts! This makes it much easier to order from the contractor you really want.

The 1997 OFPP guide says that 'the 'preference' for multiple award contracts is just that, a preference.' When they put a word in quotes like that, it's irony. You know, like winking.

Statement of what? Especially for services contracts, statements of work are out of fashion.

Besides being too much work, they restrict what you can order under the contract. If your boss makes you write one, be sure to make it as vague and broad as possible. It should be a Statement of Whatever.

Bigger is definitely better, or size matters. If you put lots of things into a contract, you can make it so big that no small business will qualify for award. For instance, instead of buying simple jobs one at a time from small businesses, put them together in a huge, five-year contract for some giant company. Hint: When you do this, don't use the word bundle. The 'B' word can get you in trouble!

Horses are for stalking. If you get stuck with a multiple-award contract vehicle, and you have to conduct a competition for orders, make sure to ask the program folks what contractor they want to get the order. Important hint: Don't write this down in the contract file.

But don't stop there. Ask them which contractors could not possibly do the work. Then make sure that the right contractor and all the wrong ones get the solicitation. Hint: This also works great for General Services Administration schedule contracting, where you may have to solicit three or more vendors.

Fair is as fair does. Some contracts say that every contractor must get a fair opportunity to be considered for contract orders. What a bother! Especially after Congress has downsized your office several times.

But don't despair. Contractors can't file a bid protest if they don't get an order, so it doesn't really matter! Sure, they can submit a claim under the Contract Disputes Act, but they probably don't know that.

Loopholes are the next best thing to doughnut holes. Before you send out competitive solicitations to everyone on a multiple-award contract, check the loopholes that Congress gave you. A perennial favorite is the logical follow-on. If all contractors got a fair opportunity to be considered for an order, then any later order can be sole-source, as long as it's a logical follow-on to the original one. Be creative about how you use this loophole. And remember that fuzzy logic is high-tech!

Joseph J. Petrillo is a lawyer with the Washington law firm of Petrillo & Powell. E-mail him at [email protected].


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