A thing I love about federal contracting is that the government buys all kinds of things in unusual situations. Like this:
The United States Embassy in Kabul, Afghanistan (embassy), provided medical support to its personnel through an in-house medical clinic. In June 2021, the embassy’s procurement office issued a solicitation to replace an x-ray tube and perform specified updates on a broken mobile x-ray machine. No details about the machine’s condition or maintenance history were included in the solicitation. Only two line items were identified: “X-Ray Tube DX-D100-AGFA” and “Services Charges” for replacing the x-ray tube, updating the software, calibrating the machine, updating the license, and performing maintenance.
It makes sense when you think about it; obviously, if you provide medical support at the Embassy, you're going to need an x-ray machine, and sometimes that x-ray machine is going to break. Occasionally, the government is going to need to do some procurement for some x-ray machine things!
Given that there were only two line items and the lack of detail, you might expect that this sort of acquisition is pretty run-of-the-mill. Indeed, the award criteria required "that the contractor be an authorized reseller or distributor of the product or service being sought," and nine vendors submitted bids in response to the solicitation". Pretty typical procurement stuff.
Even the selection method was standard: "The contract was awarded to the lowest priced, technically acceptable offeror... The record included a 'target price' of $22,500 for the award. Appellant was awarded the contract in the amount of $14,500—$12,500 for the x-ray tube and a $2000 service charge for the labor."
Normal, normal, normal. All very normal.
But, then after the award came in, someone from the clinic raised a bit of a red flag:
As you know our X-Ray [machine] has been down for almost a year now and we were requesting to have the repairs done by the original [manufacturer] machine distributor. . . . We see a new vendor has been chosen and we have concerns that while this vendor came in at [a] lower cost, they may not be able to make the repairs, or at least they do not understand the extent of the repairs given the low cost estimate. Is there a way to confirm the new company can actually make the repairs and provide a warranty of work? We are concerned that once they assess the problem they will requote the repairs.
Oh no! Oh no! The x-ray machine was down for almost a year?! And now they're not even sure the new vendor (an authorized reseller or distributor of the product or service, mind you) will be able to fix it?!
As the clinic representative predicted, the engineer determined that merely replacing the tube and updating the software would not render the x-ray machine operational. The engineer discovered that the machine did not function at all, and he could not perform the work that he was tasked to do under the contract until the machine was restored to some level of functionality. To begin that process, the engineer asked clinic staff for the original software disks, the drivers, and other data that came with the machine, but no one could locate them.
Oh no! At this point, you've got a real problem. This work is out of scope! The solicitation just said that the vendor had to replace the x-ray tube and update the software. It didn't say anything about getting the whole machine to work in the first place!
The contract representative had a choice to make: go back out to market or try and work with the contractor. It's a tough choice! On the one hand, it's been a whole year of broken x-ray machine and here's a live engineer on site! On the other hand, the clinic representative was skeptical that the selected company could deliver... and the clinic representative was right!
After realizing the extent of the requirement, the contract representative decided not to terminate the contract for convenience and re-solicit it. Instead, she permitted appellant to obtain the necessary software and drivers and to proceed with the additional work, which she knew was beyond the scope of the contract as awarded. In response to the question, “Will you increase the quotation? If yes, please let us know,” appellant responded, “We will quote only for the additional task which is not covered within our contract. We will present the bill if your procurement officer accepted that [would] be great [or] else we have to pay it from our own pocket.”
You can maybe anticipate what happened next. The contractor got busy, spent some money, and spent some time trying to do the necessary things to fix the x-ray machine and billed the government for the extra costs.
When all was said and done, the contractor billed the government for an additional $8280, which the government later refused to pay on the grounds that "that no one with authority approved the additional work and that the costs were either unreasonable or unsubstantiated," leading to a dispute before the US Civilian Board of Appeals.
Ultimately, for totally boring reasons, the Board concluded that, after "examining the documentary evidence and considering the testimony of the contracting officer at the hearing, we find that the contract representative had the authority to direct appellant to perform the additional work, which included purchasing and installing the necessary software, drivers, and other files to 'bring the X-ray machine back to life.'" And for other reasons that aren't all that interesting, the Board concluded that the $8280 was not entirely justified, but mostly justified.
Which, if you ask me, is kinda wild. But not for the reasons in dispute. Instead, here's more about what happened; I'll let you draw your own conclusions:
Upon concluding all of the work, the engineer provided the agency with a printed list of the deliverables (“the delivery note”). The delivery note identified thirty-four separate requirements for inspection, maintenance, and calibration of the machine. Each listed item had been checked off by a clinic representative verifying completion of the task. The delivery note also included a section entitled “Software Update and Licensing.” Twenty-
three separate items were identified in that section. These items were also checked off by hand, verifying that the engineer had installed, configured, and renewed the license for each one. A signature and stamp of the clinic representative appeared on the delivery note. Above the stamp, the representative hand-wrote: “X-Ray still not functional.”
A clinic representative expressed his frustration in an email message to the contract representative, dated August 9, 2021, as the clinic expected a fully restored and 100% functional machine at the conclusion of appellant’s performance. The representative asked: “Is it possible we can just pay this company and thank them for their service and then hire a company that has a certified technician with the ability to procure the correct software?”
The contract representative replied, “We will restart the process but we need you to identify the exact software that is needed.”
Due to the forcible takeover by the Taliban and the fall of Kabul on August 15, 2021, additional repair efforts, along with the x-ray machine itself, were abandoned. Embassy personnel evacuated Afghanistan without processing appellant’s invoice for payment. Although multiple government employees were involved in this process and copied on emails from appellant urgently requesting payment, months went by without any progress. Clinic staff refused to mark the work as completed, and the office of finance would not release payment until the work was verified as complete. Appellant was finally paid $14,500, on October 21, 2021.
Look, shit happens. Sometimes you try and repair something and it doesn't work out. Sometimes you have a machine that's busted for over a year and you end up contracting out to the lowest-cost bidder. Sometimes, the contracting officer tells you that you can't just hire someone who knows what they're doing unless you know exactly what software you need to replace an x-ray machine. Sometimes, you're a contracting officer and the program has no idea what its requirements are. Sometimes that lowest-cost bidder doesn't actually fix the machine, but still invoices you for it. And sometimes, the Taliban forcibly takes over the embassy, rendering all of this moot anyway.
And yet, we can all take solace that the US government made good on its promise to pay, right? That's one thing we've got going for us; the US government will never default on its obligations.