In government contracts, the doctrine of accord and satisfaction is an affirmative defense that discharges a claim because some performance different from that which was claimed to be due is rendered and the claimant accepts such performance as full satisfaction of his claim. Accord and satisfaction may be viewed as a type of settlement agreement that typically takes the form of a bilateral modification executed by the government and its contractor. Furthermore, the terms of the bilateral modification are considered to be the best evidence of the parties’ intent to enter into an accord and satisfaction. To invoke the doctrine of accord and satisfaction, the party asserting the affirmative defense must demonstrate that four elements are met. First, the subject matter must be proper. Second, both parties must be competent; that is, the individuals signing the bilateral modification on behalf of the parties must be duly authorized. Third, there must have been a meeting of the minds between the parties. A meeting of the minds exists when there are accompanying expressions sufficient to make a reasonable claimant understand that the performance offered is in full satisfaction of the claim. Fourth, and finally, there must exist some form of valid consideration, which is defined as a bargained-for exchange that consists of an act, forbearance, or a return promise. If these four elements are met, the doctrine of accord and satisfaction may be invoked to discharge the claimant’s claim.

The General Services Administration (GSA) Federal Supply Schedule (FSS) program allows federal agencies to acquire services from pre-approved vendors via simplified acquisition procedures of Federal Acquisition Regulation (FAR) Part 8. When utilizing the FSS program, procuring agencies may not purchase “open market items,” which are any services not already listed on a vendor’s GSA schedule. At the same time, the services on a vendor’s schedule may not always directly correlate to the requirements of the solicitation. In such situations, the relevant inquiry is whether the required services are within the scope of the vendor’s schedule contract, as reasonably interpreted. In deciding whether their GSA schedule covers services being sought in the solicitation, contractors should determine whether the required function in the solicitation is the same as the function covered under their schedule contract. In this regard, services are not considered open market items if they are within the scope of particular line items on the FSS contract. Additionally, while the broader, general scope of a schedule contract and the description of its Special Item Numbers (SINs) are relevant in determining the scope of line items, such descriptions are not dispositive to resolve whether the services are covered by the schedule contract.

In solicitations that require the submission of key personnel resumes, the resumes are considered a material solicitation requirement. Thus, offerors have a duty to notify the procuring agency if one or more of their proposed key personnel become unavailable to perform. The procuring agency may proceed in one of two ways once it receives notification of the unavailability of a key employee from an offeror. It can either evaluate the offeror’s proposal as submitted and reject the proposal as technically unacceptable for failing to meet a material requirement, or the agency may open discussions with all remaining offerors to permit proposal revisions. An offeror must notify the agency of a key employee’s unavailability even when the employee signs a letter of commitment before proposal submission but subsequently resigns or retires during the evaluation period. Alternatively, in addition to the letter of commitment, the offeror must be prepared to present evidence of the employee’s reaffirmation of availability or willingness to return to the offeror’s employment. In this regard, the primary consideration is whether the offeror has actual knowledge of the key employee’s unavailability because the duty to notify the agency is not triggered otherwise. Notably, despite the employee’s resignation or retirement, the Government Accountability Office (GAO) will not find an offeror to have actual knowledge of a key employee’s unavailability if the offeror can advance a credible basis to deny such actual knowledge.