Incorporating a solicitation in to the award document

A common practice is to award a contract by putting a SF-1449 (or SF-1447 or other form) prepared in one's automated contract writing system (just a very few pages) and signed by the contracting officer on top of an offer which is really sections A through J of a solicitation completed and signed by the offeror. Is this what you're talking about?

What form are you using to make your award?

is the statement about a potential conflict between the solicitation and contract a general statement that applies in all situations or does it apply only to your present situation?

In my experience, it is unusual that an attorney would not want to incorporate the contents of the solicitation. It could be that your attorney is concerned that the solicitation no longer reflects the intent of the parties or of the procurement regulations.

I have reviewed proposed awards following discussions when the exchanges between the contracting specialist and the contractor addressed the solicitation’s contents. By this I mean that the exchanges represented a de facto amendment of the solicitation. Had we simply incorporated the solicitation without amending it correctly, the contract would not have accurately reflected the intent of the parties.

By chance, did you have discussions during which you addressed the contents of your solicitation (e.g. CLIN structure, SOW, delivery or performance schedule, clauses)?

Or, subsequent to the solicitation’s issuance, was the FAR or your agency FAR supplement modified to add a clause that should or must be included in the contract?

If either case occurred, did you officially amend the solicitation?

I am using a SF1449. At prior Agencies I included the solicitation in the award document. At my current Agency, my legal counsel appears to feel that including or referencing the solicitation in some way creates conflict between the contract and the solicitation. I do not see the conflict - but I'm trying to stay open-minded. It appears that they are approaching this as a general statement applying to all requirements.

My plan is to incorporate the solicitation and all amendments that were issued.

I work on legacy aircraft platforms, so may have situations different than yours, but we do not incorporate the solicitation into awards. Why do you believe you need to incorporate the solicitation (apparently not just Section K but the whole solicitation) into the award? What is in the solicitation that is not in the award, but needs to be part of the contract?

My plan is to incorporate the solicitation and all amendments that were issued.

Then, why does the attorney object?

Most government contracts must be in writing. A written contract document should reflect the final agreement of the parties. The agreement is reached in the minds of the parties; the written document simply records it. We call the written document "the contract", but it is actually the documentation of the contract. The contract exists in the minds of the parties. Thus, pursuant to rules of contract interpretation, a court or board might find that the actual contract differs from the written document, which is what happens, for instance, when a court of board invokes the Christian Doctrine. Lawyers call a written document that supposedly reflects the final agreement of the parties an "integration". The parole evidence rule of contract interpretation provides that prior, tentative communications, including a solicitation, cannot be invoked to override an unambiguous integration. However, incorporation of a prior, tentative communication, such as a solicitation and its amendments, into an integration can create an ambiguity if not done with great attention to detail.

The Government solicitation/award forms -- SF 33, SF 1447, and SF 1449 -- and the award form, SF 26, are based on older forms dating back to the days when sealed bidding ("formal advertising") was the predominate method of contracting. In sealed bidding the government issues a solicitation that includes a model contract. Offerors submit bids, which usually contain only bid prices and, sometimes, proposed or alternative delivery dates. There is no technical or management proposal. The award document accepts the bid and includes the solicitation and the winning bid.

SF 26 and SF 33 "automatically" incorporate the solicitation into the contract. SFs 1447 and 1449 do not. SF 1447 and SF 1449 give the CO options. The CO can (a) prepare a complete contract document and get the contractor to sign it, thereby eliminating any need to incorporate the solicitation (see SF 1449, block 28) or ( b ) accept an offer or part of an offer that is based on the solicitation and on any additions or changes set forth in the document (see SF 1449, block 29).

The "cleanest" way to document the agreement between the parties is to take the SF 1449 block 28 approach, but it requires more work than the block 29 approach. SF 1447 provides the same options in its blocks 25 and 26. Apparently, your attorney wants you to take the SF 1449 block 28 approach, probably because he thinks it would reduce the chances of a conflict among the solicitation, the offer, and any additions or changes, and of an ambiguity created thereby. You should listen to her.