Question $1$a: US Army intends to issue a solicitation for a developmental contract for a new plasma fuel for a next generation drone. The resulting contract would be a $1-$year period of performance with no option period to follow. The Contracting Officer, knowing the Government$$s small business goals, would like to restrict this procurement to either small businesses only, $8$a businesses only, or HUBZone businesses only. Can the Contracting Officer do this?

Question $1$b: What does the Contracting Officer need to know in order to determine this?

Contracting Officer ultimately makes the decision to award based on full and open competition $($no set$-$aside$).$ The contract will be awarded on a Lowest$-$Price, Technically$-$Acceptable basis. The RFP indicated that all technically$-$acceptable proposals would be ranked by price and award would be made to the lowest price. Among the many specifications in the Request for Proposals is the following:

a$.$ Fuel must burn at no less than $30$ minutes per gallon. There are multiple mentions of $30$ minutes per gallon, and there is a single mention of $300$ minutes per gallon$$ indicating that the fuel would need to burn for at least ten times the minimum stated throughout the rest of the solicitation. It appears to be a typo.

Contractors propose on the contract as follows:

Contractor A: $$220$ million

Contractor B: $$223$ million

Contractor C: $$856$ million

Contractor D: $$242$ million

Contractor E: $$268$ million

The Contracting Officer determines that Contractor C$,$ the lone Small Business in the group, is not responsible.

Question $1$c: What step must the Contracting Officer take next as related to Small Business Contractor C$?$ To which agency must the Contracting Officer refer this issue? What are the possible outcomes of such a referral and what effect might they have on Contractor C$$s success in this particular procurement?

None of the contractors$$ proposals included reference to the $300$ hour per gallon burn rate. Instead, all of the contractors$$ proposals included reference to the $30$ hour per gallon burn rate.

Contractor A is awarded the contract and is able to develop and produce the plasma fuel, using only government funding $($read: no private research and development funding$).$

Question $1$d: In the event of a conflict between the US Army and the prime contractor over the length of time each gallon must burn, who wins? Is this an ambiguity? If so$,$ which kind and who bears the burden to clarify?

Another specification reads:

b$.$ Fuel must be maintained and transported from production to the end user in steel drum barrels. However, due to the corrosive nature of the plasma fuel, it will begin breaking down the barrel after seven days which may cause contamination of the fuel or hazardous leaks. For this reason, the plasma fuel must be moved to new barrels every $6$ days. Barrels may not be reused. This time per barrel may be reduced during performance when the true corrosive nature of the plasma fuel becomes more clear.

Contractor A subcontracted for storage and transportation of the plasma fuel with Subcontractor X$.$ After three months of successful performance, Subcontractor X receives direction from the Contracting Officer$$s Representative $($not the Contracting Officer$)$ that the barrels were breaking down earlier than $7$ days so the Subcontractor X needed to rotate the barrels every $3$ days instead of every $6$ days. Subcontractor X complied with the COR$$s order and this change resulted in double the costs for transportation and storage, or approximately $$800,000$ from when the COR made the change to the end of the period of performance. Prior to completion of the contract$$s performance, but after incurring $$400,000$ in additional expenses related to the increased transportation and storage costs, Subcontractor X contacted the Contracting Officer directly and made the following claims:

a$.$ The reduction in time per barrel from $6$ days to $3$ days was a Cardinal Change and the contract should be terminated.

b$.$ In the alternative, Contractor X sought an equitable adjustment for the extra costs of the transportation and storage.

Question $1$e: Will the Contracting Officer hear the claim directly from Subcontractor X$?$

Question $1$f: Is there anything the prime contractor can do even thought the prime contractor is not the one who made the change order?

Question $1$g: If and when the claims are properly brought before the Contracting Officer, how will the Contracting Officer, Courts, or Boards rule on both of them? What will they analyze to determine whether the contract was breached and should be terminated or$,$ alternatively, whether the Government should pay them?

Question $1$h: Should the Government ultimately terminate the contract due to a Cardinal change? Should the Government grant an equitable adjustment in this case? Why or why not? Address both avenues of requested relief.

Question $1$i: Is the plasma fuel a $$subject invention$?$ Why or why not?