Jump to content
The Wifcon Forums and Blogs

This stream auto-updates     

  1. Today
  2. As for Question #2, I'll add a perspective not mentioned heretofore. It is possible for the incumbent to pose technical questions, the discourse of which can only be known by the customer and the incumbent. Potential purpose is to frighten other offerors by revealing how much must be known to operate the effort, or another purpose to derail other offerors. What I don't know is how evaluators respond if they suspect the incumbent is sowing bad seeds.
  3. Yesterday
  4. Experience is a traditional responsibility factor, right? Why couldn't the government ask for specific responsibility related information after the due date? See Chags Heath Info. Tech., LLC, B-413104.30 et al., Apr. 11, 2019, where GAO explained that “responsibility and technical acceptability are distinct matters” and that “[r]esponsibility may be satisfied at any time prior to award, as opposed to technical acceptability, which must be satisfied based on a common proposal deadline.”
  5. Assume you are managing an IDC and that the clause at 52.204-19 was included in that basic contract. IAW FAR Subpart 4.12, is documenting Reps & Certs required in each instance of proposal evaluation/order award to the "prospective contractor"?
  6. PD - Your thinking regarding 52.212-1 and "late" is sound but as noted by others your research now needs to move to other facts. Such as- Can the agency amend the RFQ casualy as they did which negates the view of late? Do you have standing to protest now to GAO based on the timeliness standard for such protests? These are primary matters now if you are still contemplating a protest to GAO. And as an aside should you decide to protest I hope you use terms like RFQ, quote, quotes, etc. Exacting terms related to your specific situation will matter.
  7. Maybe I didn't clearly explain the primary point I was trying to make. Other bidders only submitted their experience after the due date. This was allowed by the CO who thought it wasn't clear enough in the bid but decided this a couple days after the bids were due. My point is that the incorporation of 52.212-1 into the RFQ has changed the rules and now anything submitted after the due date cannot be accepted. As I have been doing more and more research, this seems to be how the GAO sees it too. This is my position... whether I am right or wrong remains to be seen of course. lol
  8. Last week
  9. The Government considered your experience and the winner's experience as the same. You haven't disagreed with that finding. Your price was higher than the winner's price. Sounds to me like the Government selected the right contractor. I see no fatal error in the Government's conduct of the acquisition, based only on your explanation of the facts. Three of us have explained our opinions based on our own past experiences -- I hope this has been helpful to you. Have you filed your protest yet? Please share the outcome when you get it -- this is how we all learn for the future.
  10. Edit to add: M.Braun, Inc., B‑298935.2, May 21, 2007 seems to rule that the incorporation of 52.212-1 changes the rules of an RFQ and any late submissions are to be considered late. A search also finds, among others, a more recent decision that seems very clear that incorporating 52.212-1 does change the rules for late submissions, etc, in Peers Health, B-413557.3
  11. The due date was not changed. All bidders (but only those bidders) who submitted by the due date, were allowed to send the missing information. While yes, this would normally be allowable under an RFQ/Simplified Acquisition, it appears that there are many examples of where that rule was changed by language inserted (often inadvertently) by the CO. I say inadvertently because in some of those cases, the COs thought they were correct in allowing late submissions while the GAO ruled otherwise.
  12. Our dim-witted automated systems might contribute to the problem — it might be impossible for a contracting officer to approve a payment for less than the invoiced amount. My instruction in that case was for the contractor to show the withholding in its invoice. For example, if the earned fee was $100 and the withhold amount was 15%, I told the contractor to show this in the invoice with a payable amount of $85 and $15 shown as earned but withheld and added to the cumulative withheld amount.
  13. I check them, but only from time to time. It's mostly out of curiosity. I remember arguing with Vern that, when the Committee determines the price to be paid, that was exactly the type of exception envisioned by 15.403-1(c)(2). I'm not sure I ever convinced him...
  14. Retreadfed, Are you disagreeing with my view about sentence grammar? I don't understand what the disagreement is and its connection to your response. I didn't say anything about whether a contractor is required or not required to comply with the terms of their contract.
  15. Our consultant (who's a former DCAA auditor) is telling us that DCAA's interpretation of 52.216-8 Fixed Fee (Jun 2011) is that the contractor is required to withhold 15% of the fixed fee, that the 15% is mandatory, and if contractors don't do this, they'll be cited with an accounting system deficiency. She's consulted for several other contractors and said that one of them was recently cited with an accounting system deficiency for this very reason, which was fully supported by the DCMA ACO. My interpretation of this clause is that it does not impose any kind of obligation on the contractor. The clause does contain a requirement for the Contracting Officer to withhold a certain amount/percentage of the fee, and to release a certain amount/percentage as stated in the clause, but there’s no obligation for the contractor to withhold any of the fixed fee (i.e. underbill the Government on the fee). I think the contractor should bill the full amount of the fee and the Contracting Officer is responsible for withholding the required amount of fee from payment. If the contractor were to underbill the fee, there would be nothing for the Contracting Officer to withhold. If the Contracting Officer doesn’t do any withholding of the fee, that should be on the Contracting Officer, not the contractor. Our auditor then told me that DCAA pamphlet 7641.90 ("Information for Contractors") also states that it's the contractor's responsibility to withhold 15% of the fixed fee. I reviewed the manual and it doesn't actually state that, but rather refers back to FAR 52.216-8 and provides a sample voucher where the Contracting Officer has designated a 15% reserve for the fixed fee. I certainly don't view this sample voucher as direction or a requirement for the contractor to withhold/underbill 15% of the fee. While a withhold amount less than 15% is apparently almost unheard of, the FAR does state that the amount of the withhold is a subjective "not to exceed 15%, or $100,000, whichever is less, to protect the Government's interest", so the reserve technically could be a lower percentage, based on what the Contracting Officer feels is adequate to protect the Government’s interest. That DCAA could cite a contractor for not doing something that isn’t required by contract is very frustrating and concerning to me. The clause/regulation states as clear as day that the Contracting Officer is to withhold a reserve not-to-exceed (discretionary amount) 15 percent of the total fixed fee, which is why I’m surprised that DCAA could expect contractors to interpret that to mean that the contractor must voluntarily underbill the fixed fee by exactly 15% (a non-discretionary amount). And apparently if contractors don't do the mental gymnastics required to arrive at this same bizarre interpretation of the clause, DCAA will cite the accounting system as deficient and may even require repayment of the fee reserve that "should have been withheld". I should also mention that our company has had several CPFF contracts with both the DoD and EPA over the years and we've never been required to withhold a percentage of our fixed fee from billings and have also never had any portion of fee withheld by the Gov't. I'm not saying it shouldn't have been withheld (it should have), but it just hasn't happened. Am I missing something here?? Has anyone else had to deal with this?
  16. I have to disagree. As has been stated in this forum several times, the FAR does not apply to contractors. Instead, it applies to government personnel when executing an acquisition. FAR 1.101 reads in part "The Federal Acquisition Regulations System is established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies." Contractors are required to comply with the terms of their contracts. If a contract term incorporates a FAR section, the contractor must comply with that section to the extent it applies to that contract.
  17. VipinOwl, throughout this posting, I have not been quite sure of your understanding about what party is required to comply with a particular FAR /FAR Supplement. For example, if a regulation states throughout it "contracting officer shall...," that regulation is not worded as applying to contractors. Vice versa is also true. I have met many contractor and government professionals that did not know or understanding the difference. FAR 15.403-1(c)(1) is one of those confusing areas. If your focus is adequate price competition regarding a prime contractor's subcontract, has it been your understanding that FAR 15.403-1(c)(1) applies to the transaction, and also applies to a government awarded contract? Just checking with you.
  18. Happy Memorial Day! Please take some time this weekend to remember those veterans who have sacrificed for our country. And amidst the fun of kicking off summer this weekend, you can read up on some of the latest happenings in government contracting. In this Memorial Day edition of the SmallGovCon Week in Review, you can read about GSA’s new e-commerce platform, a new federal civilian cloud platform, and whether cyber security failures can lead to a false claims case. How to support veterans and service members this Memorial Day in ways that actually make a difference. [Mic.com] HUD Is Hunting for Vendors for the Next Phase of the Centers of Excellence. [Nextgov] DISA eyes $170M in savings from Fourth Estate consolidation program. [FederalNewsNetwork] Court Allows Cybersecurity Fraud Case Under Federal False Claims Act. [SecurityBoulevard] OMB proposes creation of acquisition modernization test board. [ExecutiveGov] Federal Acquisition Service has fixed IT pricing problems found in 2016 audit, report says. [fedscoop] GSA digs into details for planned e-commerce portal. [FCW] DOD, civilian cloud office app contracts advance. [GCN] Agencies Agree to Do More to Identify Contractors With Tax Debts. [Nextgov] Thornberry unveils potential punishments for DoD’s slow implementation of acquisition reforms. [FederalNewsNetwork] Why OMB is ushering us into the second golden age of acquisition reform. [FederalNewsNetwork] View the full article
  19. PD, I think you are missing the point that ji made and that is the other offeror's quote would not have been late in this situation because the government changed the due date.
  20. As I drill down through the citations in Turner, etc... I get to M.Braun, Inc., B‑298935 wherein it states: Again, I see a trend of support that incorporation of 52.212-1 becomes a modification to the general rules of an RFQ.... Unless I am misunderstanding what I am seeing. I am not a lawyer.
  21. No. Certified cost or pricing data is required in the circumstances described in FAR 15.403. Note that 15.403-1 explicitly prohibits contracting officers from obtaining certified cost or pricing data when the conditions listed there exist. Note that 15.403-1 does not make any distinctions in regard to how the contract is priced. Thus, if the conditions in 15.403-1 exist, certified cost or pricing data may not be obtained in regard to a cost reimbursement contract. On the other hand, if the conditions in 15.403-1 exist, data other than certified cost or pricing data may be submitted if that is the only way the contracting officer can determine that the price quoted is fair and reasonable. This data is analyzed using price analysis. In short, there is no blanket requirement that certified cost or pricing data or even data other than certified cost or pricing data must be submitted when the government contemplates award of a cost reimbursement contract.
  22. Hi Ji20874, In Turner it states "FAR provisions in Parts 14 and 15, governing the late delivery of bids and proposals, generally do not apply to the late delivery of a quotation. However, where as here the RFQ contains a late submission provision that quotations must be received by a stated deadline to be considered, quotations cannot be considered if received after the deadline. See Data Integrators, Inc., B-310928, Jan. 31, 2008, 2008 CPD para. 27 at 2." In my instance, such provisions were made by the incorporation of the listed 52s in my original post... at least that is my argument. It seems supported by Turner wherein the inclusion of such provision changes the rules of the RFQ as it did in Turner where the protestor was considered late in their quotation. As you stated, late submissions are typically allowed but Turner points out that the rules are modified by provision in that case. This is why I have the question if the incorporation of 52.212-1, without modification, qualifies as a provision that changes the rules of an RFQ as it did in Turner, for instance.
  23. I also consider it a tool to determine whether a price is “fair and reasonable”. However, the Appeals Boards have carved out a distinction by saying, in essence, that “fair and reasonable” tends to look at the upper end while “cost realism” looks to see if it is unrealistically “low” for the scope and probable effort. For cost reimbursement price or cost evaluations, cost realism analysis is usually important for various reasons, as explained in 15.4. Due to the nature of cost plus, the contractor’s primary risk is a lower fee in order to be price competitive. The government’s risk is that it will have to pay more if the contractor uses the budget without completing the effort. Accidental or deliberate lowballing is possible with an unrealistically low price. For competitive fixed price evaluations, what one can do with the results of a cost realism analysis is more restrictive. You can ask the Offeror or contractor to verify their price. If there are discussions, you can raise the issue if you think that they can’t do the work for that price, particularly if you think that it would endanger performance or result in poor relations, corner cutting, trying to make up the difference through excess claims, etc. I’ve seen defaults and even bankruptcies by awarding contracts at unrealistically low prices. Accidental lowballing is not good for either the contractor or the government. I believe that the position of the boards and courts is that a contractor may assume the risk for lowballing on a firm fixed price contract effort. However, if the government determines that a lowball price would endanger performance, it can take that into consideration in a trade off. But to declare a low price disqualifying may be a responsibility matter, with all the restrictions and other ramifications. For either CP or FP, it is important to ensure that the firm understands the scope and complexity, etc. of the effort, to avoid pricing mistakes. There is much more to the concept of cost realism but we don’t need to discuss all the details here. It is part of cost analysis for Part 15 pricing procedures when applicable - yes, normally for CP. Sometimes for FP.
  24. Normally, the Committee for Purchase From People Who Are Blind or Severely Disabled publishes its proposed additions and deletions to its Procurement List each Friday. Since it involves government contracting, I post it to the Home Page in the Contracting Rules and Tools column whenever it appears without giving them much thought and I don't read the Committee's posts. I am not familiar with the Committee's rules but do know that its sources can be/are mandatory on the government. However, recently I have read the content of the Committee's weekly postings and was surprised that the items are proposed as required sources of supply for some individual federal agencies or some individual contracting activities. It made me realize that these postings are more important than I originally thought. As a result, I am posting a yes or no question with your answers being anonymous. If you answer no, after reading the Committee's posts, you too may realize these Committee postings are more important than you originally thought.
  25. I'm with ji. There are long-standing precedents allowing retroactive amendments and extensions; agencies are granted a lot of discretion to amend their solicitation. Even if your beliefs were true, GAO would likely permit retroactive amendment and extension to accommodate multiple otherwise-late quoters/offerors to correct their error (omission) and/or increase competition.
  26. Joel, It's interesting you say that. I never considered cost realism as a tool for other than a fair and reasonable price determination. Per the FAR, "Use techniques such as, but not limited to, price analysis, cost analysis, and/or cost realism analysis to establish a fair and reasonable price". I also consider cost realism, a form of cost analysis.
  1. Load more activity
×
×
  • Create New...