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  2. On Thursday, June 29, 2017, Wayne Simpson will be testifying on behalf of the National Veterans Small Business Coalition (NVSBC), before the U.S. House of Representatives Committee on Veterans Affairs’, Subcommittee on Oversight and Investigations. The subcommittee is holding a legislative hearing on four bills related to strengthening acquisitions at the Department of Veterans Affairs (VA). These bills include H.R. 2006, H.R. 2749, H.R. 2781, and another unnumbered bill currently in draft. The hearing is scheduled for 10:00 AM Eastern Time in Room 334 of the Cannon House Office Building. FedBizAssist, L.L.C., is a supporting member of NVSBC. NVSBC is the largest not-for-profit organization of its kind representing America’s Veteran-owned small businesses to the Federal government, giving a collective voice to these businesses on legislative, regulatory, and policy issues affecting Federal procurement. NVSBC seeks to enhance procurement opportunities for veteran small business entrepreneurs engaged in, or seeking to enter the Federal Marketplace. Please support America’s Service-Disabled Veteran-Owned Small Businesses and Veteran-Owned Small Businesses and legislation which enhances Federal procurement opportunities for these firms. Consider joining NVSBC and supporting its Communications Campaign. The post Wayne Simpson Testifying Before the U.S. House of Representatives Committee on Veterans Affairs appeared first on Centre Law & Consulting. View the full article
  3. On August 29, 2016, the Air Force issued an RFP seeking base operations support services at an Air Force Base in Mississippi. The solicitation advised offerors that the agency would award the contract “to the proposal with the lowest evaluated price from among those proposals evaluated to be acceptable.” The RFP further stated that the technical evaluation team would evaluate the lowest-price offeror and then, as needed, evaluate higher priced offerors in order of price rank, to assign a rating of Acceptable or Unacceptable. The protester, PAE, was found to be technically acceptable but had the second lowest price of all offerors and, thus, award was made to the lowest offeror. PAE subsequently filed a protest arguing that the agency performed an inadequate evaluation of unbalanced pricing and failed to evaluate the realism of offeror’s pricings. In evaluating the protest, the GAO found that, absent a solicitation provision expressly or implicitly providing for a price realism evaluation, agencies are neither required nor permitted to conduct one in awarding a fixed-price contract. The GAO further found that, even though the solicitation required the agency to analyze whether the offerors’ prices were unbalanced, PAE failed to sufficiently allege that the awardee’s prices were overstated or unbalanced. In dismissing the protest, the GAO found that PAE failed to allege a sufficient basis of protest because it had not alleged that the awardee’s prices were overstated or unbalanced and, thus, even where an agency acts in error, the GAO will not sustain a protest unless the protestor can show that it was prejudiced by the error. The GAO likewise found that PAE’s additional protest grounds, including failure to conduct meaningful discussions, were not a legally sufficient basis for a protest because the evaluation scheme challenged by PAE was not the type of deficiency required to be addressed during discussions. About the Author: Heather Mims Associate Attorney Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow. The post GAO Dismissed Protest Because Protester Failed to Allege Sufficient Basis for Protest appeared first on Centre Law & Consulting. View the full article
  4. You’ve submitted a great proposal, but then you get the bad news – you lost. As most seasoned contractors know, an unsuccessful offeror often can ask for a debriefing from the agency and in doing so, hopefully get some valuable insight into its decision-making process. Many also understand that the benefits of asking for a debriefing may include extending the timeline for filing a GAO bid protest. But not all solicitations are subject to the same debriefing regulations, and depending on how the procurement was conducted, an offeror might not be entitled to that extended deadline–as one company recently learned the hard way in the context of a GSA Schedule procurement. For GAO protests, 4 C.F.R. §21.2(a) governs timeliness. The regulation provides that protests not based on alleged improprieties in a solicitation shall be filed no later than 10 days after the basis of the protest is known, or should have been known (whichever is earlier). The only exception mentioned in the regulation is for protests arising out of conduct from “a procurement conducted on the basis of competitive proposals under which a debriefing is requested, and when requested, is required.” When this exception applies, the protest cannot be filed before the debriefing date, but must be filed no later than 10 days after the debriefing is held. The important distinction – for our discussion today – in all that statutory legalese above, is “competitive proposals”. As one recent offeror learned, if an RFP is not considered to be conducted on the basis of “competitive proposals”, the debriefing may not extend the timeline to file a protest. IR Technologies, B-414430 (June 6, 2017), involved a U.S. Marine Corps RFP for IT support of the agency’s ELS2 system, a web-based system that provides data and information on ground equipment and weapon systems. The RFP was a small business set-aside and limited offerors to those who had existing contracts under GSA Schedule 70. The RFP provided that award would be made on a lowest-price, technically-acceptable basis. IR Technologies submitted a proposal. On February 16, 2017, the agency informed IRT that award had been made to a competitor. The award notice stated that the competitor’s price was $6,996,549–far lower than IRT’s proposed price of $12,194,525. After it received the notice on February 16, IRT requested a debriefing. The agency provided a written debriefing the same day. IRT then submitted follow-up debriefing questions on February 22, to which the agency replied on March 1st. On March 6th, IRT filed a protest with the GAO. IRT raised several grounds of protest, including an argument that the awardee’s price was unrealistically low. The agency and awardee moved to dismiss this ground of protest, arguing that it was untimely because it was not filed within 10 days of when IRT knew or should have known its basis of protest–that is, within 10 days of when IRT received the February 16 notice. The GAO confirmed that, under its Bid Protest Regulations, a debriefing can extend the time frame to file a GAO bid protest, but only when a procurement is “conducted on the basis of competitive proposals” and where a debriefing is “requested, and when requested, is required.” These nuances can trip up prospective protesters, and that’s exactly what happened here. The GAO found that the RFP arose out of an FSS procurement conducted pursuant to FAR 8.4. Citing its own prior decisions for support, the GAO wrote that “FSS procurements conducted pursuant to FAR subpart 8.4 are not procurements conducted on the basis of competitive proposals,” and therefore, “the debriefing exception to our timeliness rules does not apply to such procurements.” The GAO continued: “ecause the FSS buy here was not a procurement conducted on the basis of competitive proposals, the exception to our timeliness rules allowing protests to be filed within 10 days of a debriefing does not apply.” GAO wrote that “IRT’s protest [of price realism] is based on a comparative assessment of [the awardee’s] price to its own–information which IRT knew from the award notice” issued on February 16. GAO held that IRT’s price realism challenge was untimely. IR Technologies shows that would-be protesters would be wise to pay careful attention to how the solicitation is written. If the RFP contemplates an FSS procurement, the debriefing exception to the timeliness rules under 4 C.F.R. §21.2(a)(2) won’t apply. And although there are other benefits to asking for a debriefing, an extended protest timelines isn’t one of them. View the full article
  5. CDBurner, Not knowing the specifics, I was trying not to be definitive in my response. However, here is the FAR policy on making a trade-off decision to award to other than the lowest priced offeror (emphasis added).. Even a couple of dollars difference still makes one of them the lowest priced offeror. The title of the Thread is "No Meaningful Discriminators"
  6. I am obviously quite late to this thread but I wasn't turned on to this approach until I was lucky enough to have Mr. Nash teach a portion of a class I attended in April. (He was really enthusiastic about it.) I am planning on using it for a rather large IT services procurement (~$300M over five years)*, but predictably enough, I'm encountering significant bureaucratic pushback up to the SPE level. I provided the Sevatac to the relevant people and have described the benefits of the approach. But I'm getting a lot of "we've never done this before" and "what do the lawyers think" and "this sounds risky." Has anyone at the working level used this yet? And if so, how did you convince the bureaucracy to go along? I certainly haven't given up the fight, but experience from others would be helpful! * Some additional details: Planning on using 8.4 and issuing 2 BPAs. Previous contract used 8.4 and tradeoff process for a single award service contract.
  7. So - paying 8-10% in fees to Kickstarter (5% from proceeds to the intended recipient and 3-5% on the GPC at the time of purchase) is a good idea then?
  8. With the exceptions of 52.252-1 and -2 (and any other place that may stipulate the requirement) where it is required to include a link to where the full text can be accessed electronically...
  9. I've had similar thoughts, hopefully that's how GAO would see it too (if it came to that). I realize I've necessarily been a little light on the details, perhaps even a little willful obfuscation. Suffice it to say I've discussed with KO, and the KO is looking for suggestions too. Just reaching out to a lot of different resources, just appreciate the insight and opinions of those who have been around longer than I. Thanks Vern. The insight on the fine differences on prices is appreciated. I've been told of a legal doctrine of "substantially identical" when prices get within a few percentages of each other, (meaning once they get close enough, you treat them as if they were identical) but I've never run into anything in writing or the regs, so I'm glad to see you don't seem to have heard of it either. I had forgotten about the sealed bidding procedures for ties (drawing lots). Wow, I doubt it would ever come to that, but thanks for the reminder. Also, thanks for the GAO case reference. It's one I hadn't run across, and I can see some similarities.
  10. Use the official FAR site:, or go to the and look at the CFR version. In my opinion, it's not smart to include a web link to the FAR in a contract.
  11. "Similar" is not identical. If there are no meaningful discriminators among nonprice factors, i.e., the offerors are essentially the same in terms of nonprice value, then the award goes to the company with the lowest price, even if the price is lower by only one cent. If two of the offerors are tied at the lowest price, consider the procedure in FAR 14.408-6. This very rarely happens when the tradeoff process is used. The FAR does not anticipate such an event in a procurement conducted pursuant to Part 15, although my recollection is that pre-FAR regulations did. For a case in which it did happen see Building Operations Support Services, LLC, B-407711, 2013 CPD ¶ 56. Note how the "tie" was resolved. There are a few other such cases. I can't remember ever seeing a tradeoff process in which the offerors were literally identical on all factors. Moreover, if the process is tradeoff you could conduct discussions in an attempt to improve the proposals and see if you can get a tie-breaker.
  12. While it can't hurt to make the change on the next modification, I don't think it is a necessity. Both the provision and clause that include the hyperlink state "Upon request, the Contracting Officer will make their full text available" and that the clause or provision may be accessed at the link. So, if the link does not work, the alternative is to ask the CO for the full text, upon which the CO will likely instead give requestor an updated link.
  13. If you cant identify any advantages that higher priced proposal offers to the government over the lower priced, conforming proposal to justify paying a higher price, the lower priced proposal will likely represent the best value. Is there a basis of award described in the solicitation? Of course, the KO (or selection authority if different than the KO) has the final say and would also perform a responsibility determination before awarding a contract. Why not discuss this with the KO rather than on this Forum? The readers here don't have the RFP or source selection plan?
  14. All things being equal make a recommendation to the SSA that Team believe is appropriate. Maybe a too simplistic view but I wonder if you answered your own question especially when considering a restatement of a basic view of GAO that goes something like this - our Office will not question an agency’s evaluation where it is reasonable, consistent with the solicitation’s stated evaluation criteria, and is documented."
  15. Square peg into a round hole? Trying to fit Kickstarter requirements into those of the FAR would be "lot of work". Already noted is the impact of FAR part 32 if the effort is below the SAT. Thinking bigger brings into consideration FAR part 35 and even possibly FAR 31.205-18. Cleary there is intent by the Federal government to be active in the world of R&D, some agencies are appropriated funds for this specific purpose. Kickstarter would seem to fit. I really wonder, at least at this point in time, if it is more effort than it would be worth to make the FAR requirements align with Kickstarter to accomplish the effort. Using the parameters of this this thread (micro-purchase level) and as already stated in this thread of sorts, why not just wait until Kickstarter is successful in creating something and then buy the dang thing? Of course there is the tried and true way of not wringing hands and just use the card, spend the money and wait for a possible end widget. Easily said and easily done but for me the bigger consideration is well heck I (as the program area) did it (that is fund a R&D procurement) with a government card to Kickstarter for a micro-purchase, now I want to do if for something within the SAT as a single source or better yet do it for something over the SAT on a sole source basis. Again the square peg into the round hole comes to mind especially when considering marrying FAR with that administrative and terms and conditions of Kickstarter. Someday it will happen but I am thinking that the "lot of work" is going to encompass the entirety of the FAR principles from market research to the end game of an awarded contract as from my chair there is more to it than simply can the government purchase card be used.
  16. Let's say there is a tradeoff source selection where the Evaluation Team is having a really hard time coming up with discriminators to recommend to the SSA. Prices are within fractions of a percent of each other, technical evaluations are very similar, having a hard time coming up with any sort of objective valuation of strengths. Past Performance is essentially identical. I'm sure this isn't the first time this has come up, what have others done in this situation, and how did it work out? Just go ahead and recommend a decision on small differences no matter how fine? Continue evaluating to try to draw out more meaningful differences? Something else? All the GAO/COFC cases I've read seem to revolve around the idea that when prices are very similar, non-price factors become more important, and vice versa. I haven't been able to locate anything that might hint at a precedence of what has happened when all factors are very similar. Anyone have any suggestions?
  17. The latter could be a reminder to the administrator of the effect they have. There might als be a good reason why they changed the link. Since Don knows about it, he may be able to advise how to keep up with the site's administrators. And an admin mod could be issued. I don't know how much effort it takes in today's computerized, paperless contracting systems to issue and process one by all parties involved in administering and performing contracts vs notifying and filing the notice in the file till the next mod.
  18. Really??? Is it just me or does anyone else wonder how many current contracts include the now obsolete link to farsite.hill? What's a diligent contract administrator to do? I suppose, send an eMail to the contractor, to be placed in the file, and wait until the next contract modification to include the new link. Either that or send off a note asking folks at Farsite.hill if the tail must really wag the dog...and hope for the best.
  19. What do you mean by "use"? Use just to make payments or use to make the transaction and to make payments?
  20. Mr. Fleharty, I would be surprised if it could not be done. It would be a lot of work, that's for sure. It would involve setting up a new GPC card program (totally separate from an appropriated fund GPC program, such as is done for Non Appropriated Funds (NAF) and Chapel funds). It would need business rules and make use of one of the contracted banks. This site discussing eligibility for SmartPay programs is linked here: and this link below gives contact information for the GSA SmartPay Program Management Office:
  21. Last week
  22. Is anyone aware of any restrictions on the use of the Government Purchase Card when using Other Transaction Authority?
  23. Everything Vern says is true. However, if "the Contractor demonstrates that performance or cost clearly indicates that the Contractor will earn a fee significantly above the target fee, [emphasis added]," and after considering Vern's advice about the sometimes fleeting nature of underruns, you still think payment at a higher rate is appropriate, then I would suggest that the contractor request that the order be modified to so provide. The contractor isn't allowed to invoice at a rate other than that provided in the order, so the order must be modified.
  24. Not if the Government only receives benefit comparable to its cost.
  25. Therefore augmenting appropriated funds to develop a product? Or sharing the development costs? Who owns the rights? Etc. Many possible questions could be asked. .
  26. Government would not be the sole funder. It's "crowdfunded".
  27. I was assuming you weren't interested!!
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