GSAR Case 2006-504; Rewrite of GSAR Part 516; Types of Contracts (Comment #4)

The rewrite of GSAR Part 516, adds a new contract clause to be used in all IDIQ contracts, "Task Order and Delivery Order Ombudsman." This clause allows GSA to comply with FAR 16.505(b)(5), which requires each Agency to designate such an Ombudsman. However, the clause, as written, is imprecise and could be confusing to contractors and GSA's acquisition teams. FAR 16.505(b)(5) makes it clear that the role of the Ombudsman is to review complaints from contractors who have been awarded IDIQs that they have not been given fair opportunity to receive task or delivery orders. (In fact, that is what the entire section at FAR 16.505(b) is about --- the fair opportunity process for orders.) However, the new clause states that the Ombudsman will have "jurisdiction over ANY matters pertaining to ID/IQ contracts awarded by GSA." The use of the word "ANY" and the reference to contracts (not orders) would mean that the Ombudsman would be exercising jurisdictional control over complaints about the establishment of a competitive range prior to initial award; about the selection of the firms within the range or to whom awards were to be made; about the exercise of option years after the award; about the CO's position on claims made after award. Clearly, the FAR is focusing solely on the fair opportunity requirements for award of individual orders, and the clause should be clear about this. Also, the clause should identify the Ombudsman (not by name, but by title and organizational location) so that contractors who receive award know where he or she is. I suggest the clause language be more like this (deleting the proposed first sentence): "GSA has designated a Task Order/Delivery Order Ombudsman who will review complaints from contractors and ensure that they are afforded a fair opportunity for consideration in the award of task or delivery orders under this Indefinite Delivery/Indefinite Quantity contract, consistent with the procedures in the contract. The GSA Ombudsman is the (insert title, i.e., CAO or SPE, etc) located at (insert contact information)." It is also not clear from the clause, as written, whether contractors with a complaing should go through the CO to reach the Ombudsman, directly to the Ombudsman (with a copy to the CO), or whether a contractor could do either. The clause should spell this out, because identifying an Ombudsman without indicating the operational approach to pursuing a complaint, does not appear to fulfill the intent of the FAR. One possible approach would be to say "Complaints shall be submitted in writing (including fax or email)to the Ombudsman, with a copy to the Contracting Officer." It is not clear from the clause whether the Ombudsman, should he or she find that fair opportunity is not being provided to a contractor, is going to direct the contracting activity to provide fair opportunity in the future, or is going to direct that an Order be withdrawn from the firm who received it, or change the decision of the acquisition team (if such an Order has not yet been placed). Although this information does not need to go into the clause, the GSAR should spell out the actual role of the Ombudsman so that acquisition teams are aware. It may not always be possible for the Ombudsman to correct a lack of fair opportunity in the past (i.e., if the Orders in question have been in place for some time, or are even complete, by the time a contractor complains), since the clause as written is silent on timing requirements for complaints, and since it may take some time for a contractor to decide that he has not been receiving fair opportunity. Therefore, the possible actions an Ombudsman might take should be spelled out in the GSAR. If the Ombudsman can direct an already awarded Order to be withdrawn, or change the decision of the acquisition team regarding a pending Order, then he or she should also document for the acquisition team the particular ways in which the fair opportunity requirements of FAR 16.505(b) were not met. This would have to be carefully documented to prevent a complaint from other multiple award contractors (including the one to whom the Order was given, or about to be given), since FAR 16.505(b) indicates that the Contracting Officer has broad discretion in placing Orders, and that fair opportunity can be provided even if not all of the Multiple Award contractors are contacted in regard to each Order. In summary, before this clause is implemented in the GSAR, it isn't sufficient to simply comply with the FAR's requirement to identify an Ombudsman. The individual's role, and the actions he or she can take, need to be spelled out in order to prevent confusion and disarray in the placement of Orders under IDIQ contracts.