contractor100

Desperado, thanks for the additional feedback. Let me confirm what you are saying. If a schedule holder has more than one NAICS, and is small for one and large for another, you will determine that they are large for which (or all) of the following purposes:

Having to do a small business subcontracting plan

Listing in schedules e library

Entry of the NAICS in fpds-ng

Size determination in cases where a SIN on the schedule is setaside

Would you not have to pick one NAICS for the first three?

Desperado, thanks for the additional feedback. Let me confirm what you are saying. If a schedule holder has more than one NAICS, and is small for one and large for another, you will determine that they are large for which (or all) of the following purposes:

Having to do a small business subcontracting plan

Listing in schedules e library

Entry of the NAICS in fpds-ng

Size determination in cases where a SIN on the schedule is setaside

Would you not have to pick on NAICS for the first three?

When you exercised your option, how was your ORCA completed? Usually, when we (I am currently at GSA) come up to exercise a 5-year option, we pull the most current ORCA certification and use that as the primary basis for size determination.

I believe Don is correct in that your first step should be to notify your GSA Contracting Officer with the details of the error. If it was truly an administrative error, the contracting officer should be able to change the size determination via modification.

Here's where we get in to the complicated facts.

Company had two SINs at time of option. NAICS associated with SIN are small for SIN A in ORCA, large for SIN B in ORCA.

First five years, company had both NAICS on its GSA paperwork. Since then, GSA has decided that all schedules have to have only one NAIC, based on its twelve month sales prior to submission of new CSP 1 for option

Company had wrongly been paying IFF for those twelve months on SIN A.

Company intends to correct its IFF payment and file an admin mod to correct the recert.

1 Co says to file a mod request. Can the CO change Company's certification as "other than small" by administrative mod? GSA's definition of administrative mod.

"Administrative changes are minor changes to the contract, such as the changes to the contractor?s point of contact for contract administration; changes to the authorized negotiator(s); and address, email, fax, phone, or website changes, which do not substantively affect the rights of the parties.

GSA will consider modification requests from contractors who are in

compliance with the contract. Prior to submitting a modification request, ensure that your GSA Advantage text file, CCR and ORCA registrations are current and accurate."

www.gsa.gov/.../MOBIS_Mod_Instruction_Admin_Changes_January_2010km.doc

<http://www.gsa.gov/.../MOBIS_Mod_Instruction_Admin_Changes_January_2010km.doc>

2. This last is really of more academic interest to me than to Company. Here's the rule on assigning NAICS to 'multiple-item' contracts:

? 121.407 What are the size procedures for multiple item procurements?

If a procurement calls for two or more specific end items or types of services with different size standards and the offeror may submit an offer on any or all end items or types of services, the offeror must meet the size standard for each end item or service item for which it submits an offer. If the procurement calls for more than one specific end item or type of service and an offeror is required to submit an offer on all items, the offeror may qualify as a small business for the procurement if it meets the size standard of the item which accounts for the greatest percentage of the total contract value.

And here is a link to a proposed change of this rule:

http://www.sba.gov/idc/groups/public/docum...l-timeframe.pdf

It seems to me that if Company has one SIN with corresponding NAICS for which it is large, it has to be considered large, by the rule as currently stands.

Thanks to all for answers

Company represented itself as large on a GSA option extension. It believes that representation was wrong, based on extremely complicated facts. Does anyone know what, if any, administrative route exists to request a change in size status on a GSA schedule from large to small after option extension? Not based on change in size, but based on administrative error? Option extension was more than a year ago.

Resubmitting a new GSA proposal is not a very desirable course of action.

Below is the modification clause for GSA schedules, which does not include such a request in section (.

Rerepresentation under FAR 19.301-3 also does not seem to apply, as there has been no merger or acquisition.

Resubmitting a new GSA proposal would be possible I suppose but is not a very desirable course of action.

Thanks to anyone who knows anything about this.

552.243-72 MODIFICATIONS (MULTIPLE AWARD SCHEDULE)

(JUL 2000)

(a) General. The Contractor may request a contract modification by submitting a request to the

Contracting Officer for approval, except as noted in paragraph (d) of this clause. At a minimum, every

request shall describe the proposed change(s) and provide the rationale for the requested change(s).

( Types of Modifications.

(1) Additional items/additional SIN's. When requesting additions, the following information must

be submitted:

(i) Information requested in paragraphs (1) and (2) of the Commercial Sales Practice

Format to add SIN?s.

(ii) Discount information for the new items(s) or new SIN(s). Specifically, submit the

information requested in paragraphs 3 through 5 of the Commercial Sales Practice

Format. If this information is the same as the initial award, a statement to that effect may

be submitted instead.

(iii) Information about the new item(s) or the item(s) under the new SIN(s) as described

in 552.212-70, Preparation of Offer (Multiple Award Schedule) is required.

(iv) Delivery time(s) for the new item(s) or the item(s) under the new SIN(s) must be

submitted in accordance with 552.211-78, Commercial Delivery Schedule (Multiple

Award Schedule).

(v) Production point(s) for the new item(s) or the item(s) under the new SIN(s) must be

submitted if required by 52.215-6, Place of Performance.

(vi) Hazardous Material information (if applicable) must be submitted as required by

52.223-3 (ALT I), Hazardous Material Identification and Material Safety Data.

(vii) Any information requested by 52.212-3(f), Offeror Representations and

Certifications?Commercial Items, that may be necessary to assure compliance with

FAR 52.225-1, Buy American Act?Balance of Payments Programs?Supplies.

(2) Deletions. The Contractors shall provide an explanation for the deletion. The Government

reserves the right to reject any subsequent offer of the same item or a substantially equal item at a

higher price during the same contract period, if the contracting officer finds the higher price to be

unreasonable when compared with the deleted item.

(3) Price Reduction. The Contractor shall indicate whether the price reduction falls under the item

(i), (ii), or (iii) of paragraph ©(1) of the Price Reductions clause at 552.238-75. If the Price

reduction falls under item (i), the Contractor shall submit a copy of the dated commercial price

list. If the price reduction falls under item (ii) or (iii), the Contractor shall submit a copy of the

applicable price list(s), bulletins or letters or customer agreements which outline the effective

date, duration, terms and conditions of the price reduction.

© Effective dates. The effective date of any modification is the date specified in the modification,

except as otherwise provided in the Price Reductions clause at 552.238-75.

Here 2 help:

The premise of the theory of efficient breach is that the promisee is fully compensated, isn't it? Per Judge Posner:

"After being fully compensated for his loss the promisee would be no worse off than if the contract had been performed, while the promisor would be better off by $8,000. "

That is, a breach is efficient (and arguably should not be discouraged by law or regulation or giving a Ktr a bad performance reference) when:

(Bnefit to promisor by breaching) minus (full compensation to promisee) > zero

Why should the contractor get a rating of unsatisfactory or marginal, by whatever fish or mineral denominated?

Isn't the point of efficient breach that the government was entirely made whole by the contractor's compensation? If the government uses the past performance system to determine whether it should contract with one vendor rather than another, why label a contractor who has not caused the government any loss whatsoever, whom other government agencies take no risk in contracting with in the future?

Perhaps some kind of neutral rating would be more appropriate.

Maybe you can provision it using the FAR clause below.

Just kidding.

I think this is a fine idea, "apparently wholesome" is just kind of funny sounding.

52.226-6 Promoting Excess Food Donation to Nonprofit Organizations.

Promoting Excess Food Donation to Nonprofit Organizations (Mar 2009)

(a) Definitions. As used in this clause?

?Apparently wholesome food? means food that meets all quality and labeling standards imposed by Federal, State, and local laws and regulations even though the food may not be readily marketable due to appearance, age, freshness, grade, size, surplus, or other conditions.

?Excess food? means food that?

(1) Is not required to meet the needs of the executive agencies; and

(2) Would otherwise be discarded.

?Food-insecure? means inconsistent access to sufficient, safe, and nutritious food.

?Nonprofit organization? means any organization that is?

(1) Described in section 501© of the Internal Revenue Code of 1986; and

(2) Exempt from tax under section 501(a) of that Code.

( In accordance with the Federal Food Donation Act of 2008 (Pub. L. 110-247), the Contractor is encouraged, to the maximum extent practicable and safe, to donate excess, apparently wholesome food to nonprofit organizations that provide assistance to food-insecure people in the United States.

© Costs.

(1) The Contractor, including any subcontractors, shall assume the responsibility for all the costs and the logistical support to collect, transport, maintain the safety of, or distribute the excess, apparently wholesome food to the nonprofit organization(s) that provides assistance to food-insecure people.

(2) The Contractor will not be reimbursed for any costs incurred or associated with the donation of excess foods. Any costs incurred for excess food donations are unallowable.

(d) Liability. The Government and the Contractor, including any subcontractors, shall be exempt from civil and criminal liability to the extent provided under the Bill Emerson Good Samaritan Food Donation Act (42 U.S.C. 1791). Nothing in this clause shall be construed to supersede State or local health regulations (subsection (f) of 42 U.S.C. 1791).

(e) Flowdown. The Contractor shall insert this clause in all contracts, task orders, delivery orders, purchase orders, and other similar instruments greater than $25,000 with its subcontractors or suppliers, at any tier, who will perform, under this contract, the provision, service, or sale of food in the United States.

contractor100:

The language is not unclear. That is not the problem. The problem is that it can yield a result that is clearly absurd. Here is the stated objective:

From the standpoint of agency goals and reporting, the outcome is the same no matter which small business receives the award, no matter what percentage of the work they plan to do with their own workers. But despite the fact that the offer based on subcontracting 60 percent to small business is better for small businesses than the offer based on subcontracting 40 percent to large business, the language leads to a less favorable evaluation for the better offer. In fact, it appears that the better offer will be evaluated the same as an offer from a large business.

Make sense to you? I hope not.

VE:

Absolutely it is absurd.

However, in the last year, I have seen a provision like this used three times - on GSA schedule solicitations.

I think it is to get around the fact an agency can't set aside on schedules. I see govt2310 mentions the language would be used for Part 8 procurements, (and I don't see that limited to open market items), so I wonder if this is another instance.

I don't get this. Assuming the agency's trying to boost its small business contracting numbers, not actually increase small business opps, why not just make small business status the most important eval factor? If an agency makes a GSA award to a small business that contracts out 99 percent, the agency counts all the dollars as a small business award. And if the agency makes a GSA award to a large business that contracts out 99 percent to small businesses, GSA gets the SB credit, not the awarding agency, isn't that right?

I know I am missing something, I hope someone will let me know what it is.

"QUOTE

An offer received from a small business prime contractor in which at least 50% of the cost of contract performance incurred for personnel will be performed by the small business concern will be evaluated more favorably.

An offer received from a large business prime contractor or a small business prime contractor in which less than 50% of the cost of contract performance incurred for personnel will be performed by the small business concern will be evaluated least favorably.

Suppose you receive offers from two small businesses. One proposes to do 30 percent of the work itself and subcontract 60 percent of the work to other small businesses and 10 percent to a large business. The other proposes to do 60 percent of the work itself and subcontract 40 percent to large businesses.

According to the language quoted, which offeror gets evaluated most favorably?"

I don't see how this language is unclear in that scenario.

The second one is evaluated most favorably. It says, "the" small business, not "a" small business must perform. How can that mean anything other than the offering small business?

leo1102,

There isn't a prime and sub role with Contractor Team Arrangments. The order usually gets issued to the team and the team agreement spells out each parties responsibilities including invoicing. Take a look at this link for more information:

http://www.gsa.gov/Portal/gsa/ep/contentVi...;contentId=8124

contractor100,

I think the reason is nobody has answered your question until now is we don't know the answer. I assume it's up to the ordering agency to say in the solicitation how teaming agreements between large and small sources get evaluated.

Thanks to all for answering!

Right, formerfed, a teaming agreement, not a subK agreement. Agree with you the ordering agency should spell out how the preference is supposed to work.

As ordering agencies should spell out answers on teaming agreements, in general. As far as I know, there is no official guidance on the following questions on teaming agreements, do you know otherwise?

What if the parties to the teaming agreement have the same SINs on the same schedule? May the parties use all the labor categories on both schedules?

May the teaming arrangement bill for work performed by one party using another party's schedule rate?

These questions also need to be answered for contractors who are entering into agreements in which one party to the teaming agreement must receive a certain amount of the work, as in a "preference" which is a proxy for a setaside.

Sure. That's also consistent with the language in the GSA Acquisition letter first mentioned.

So here's an issue. If an agency gives small businesses preference, can a small and large business enter into a GSA teaming agreement? If each party is in privity with the government on such an agreement, as GSA states, does that mean there are two contracts, and that the agency can't award the large business portion of the contract, because small business was a preference factor?

The reason a large and small firm might want to team would be to use both parties' schedules.

There's no cases or guidance on this that I can find - because there aren't supposed to be setasides on schedules.

You misread the letter. GSA Schedules don't permit setasides. What the letter says is you can make socioeconomic status a primary evaluation factor. For example if you wanted to get credit for a small business award, you can make offerors socioeconomic (small business) status a significant factor in a best value determination.

Agree with all, that 8.404 means set asides aren't allowed. I very often encounter them in RFQs, though, and had been using the letter as additional support. Thanks all.

Did this Acquisition Letter - V-05-12 - expire June 6? If it did, does it mean agencies can issue setasides on GSA schedules, I don't think so?

http://www.gsa.gov/Portal/gsa/ep/contentVi...contentId=19589

Competitive solicitation to set up a three-year BPA on a GSA schedule.

The RFP includes a CLIN for each type of analysis, with an estimated quantity for each. Offerors are to quote a unit price for each type of analysis.

The RFP also asks for GSA schedule labor rates (requesting quantity discounts of course), such rates to be incorporated into the K.

The RFP states:

"Although this is a Firm Fixed price BPA the Government reserves the right to use T&M CLINs - change from CLN if the need should arise. Furthermore, the Government reserves the right to negotiate all CLINS into a firm fixed price CLINs, if there are associated extensions to the individual task orders."

Does that last sentence mean the government can convert the fixed unit prices into T&M after award? How is such thing possible?

Or does it mean all the fixed unit price CLINs can be combined into one FP? (The typo, "a...CLINs" is confusing.)

Or does it only mean that additional CLINs may be awarded, T&M, with options, but with the options conditioned on the government's 'negotiating" a fixed price for the option? If so, how will the FP be determined? Isn't that an unpriced option?"

I don't see how this scenario conflicts with FAR 52-219-16 (a) "?Failure to make a good faith effort to comply with the subcontracting plan,? as used in this clause, means a willful or intentional failure to perform in accordance with the requirements of the subcontracting plan approved under the clause in this contract entitled ?Small Business Subcontracting Plan,? or willful or intentional action to frustrate the plan.""

If a prime submits a contracting plan saying they plan to subcontract $X to small business and the plan includes the arrangement we are talking about (a small sub does a pass-through to a large firm), the prime is adhering to their plan. Even if this wasn't originally contemplated, the small business subcontract is fostering the plan. Remember, we agreed that there is no prohibition to this arrangement - there's nothing saying this is improper.

Assuming the small business has some involvement managing the effort, doesn't the small business still benefit? They established a new business relationship with another firm, they get some management experience, they also gain some experience from the past performance perspective, and they show revenue.

I'm not advocating this as a practice, by the way. All I'm saying is I don't see how the prime can be accused of not making good faith efforts.

I think Ron is saying that, if the small business is "merely a front" for a large business, the small business is not really small. If the subcontracting large business knows that, the subcontracting large business may not "rely in good faith" on the small business's representation that it is small. Right Ron?

I can see a problem if a prime has an approved sub-k plan, and subs to a small business that is just a front end for a large business that does the work. If the prime knows this, that may violate its obligation to make a good faith effort to meet the elements of its plan.

Why? 19.704 doesn't require the prime to make its subs actually conduct the work. It just says "subcontract."

Maybe the goal of 19. 7 is for small businesses to get subcontracts and the associated revenue, not actually do the work? A limitation on subcontracting clause could be included in 19.7 but it's not. The direct subcontract program and 8(a) programs, which both have limitations on subcontracting, arguably have goals to increase employment by or competency of new small businesses or minority businesses, which would require the small business to do the work.

Maybe the goal of the subK program is just to increase the number of small businesses. Legitimate small businesses, because, as for being a "front," I think the affiliation rule would apply to the small business subcontractor. Thus, if the small business really was controlled by the large business subcontractor (or another large business) under those rules, the small business subcontract could be liable for mispresenting its small business status, although the large business ("acting in good faith") could still rely on the subcontractor's small business representation.

Carl, the quoted material does not apply to small businesses. Primes don't have to require small business subcontractors to file subK plans.

outside: I advise some caution with regard to your second question. The answer may actually be in the subcontracting plan itself. As provided by FAR 19.704(a)(9) and any further agency supplement to it the subcontracting plan could contain some assurances that may act as limitations of sorts.

FAR 19.704(a)

(9) Assurances that the offeror will include the clause at 52.219-8, Utilization of Small Business Concerns (see 19.708(a)), in all subcontracts that offer further subcon- tracting opportunities, and that the offeror will require all subcontractors (except small business concerns) that receive subcontracts in excess of $550,000 ($1,000,000 for construction) to adopt a plan that complies with the requirements of the clause at 52.219-9, Small Business Subcontracting Plan (see 19.708();

(10) Assurances that the offeror will?

(i) Cooperate in any studies or surveys as may be required;

(ii) Submit periodic reports so that the Government can determine the extent of compliance by the offeror with the subcontracting plan;

(iii) Submit the Individual Subcontract Report (ISR), and the Summary Subcontract Report (SSR) using the Electronic Subcontracting Reporting System (eSRS) (http://www.esrs.gov), following the instructions in the eSRS;

(iv) Ensure that its subcontractors with subcontracting plans agree to submit the ISR and/or the SSR using the eSRS;

(v) Provide its prime contract number and its DUNS number and the e-mail address of the Government or Contractor official responsible for acknowledging or rejecting the reports, to all first-tier subcontractors with subcontracting plans so they can enter this information into the eSRS when submitting their reports; and

(vi) Require that each subcontractor with a subcontracting plan provide the prime contract number and its own DUNS number, and the e-mail address of the Government or Contractor official responsible for acknowledging or rejecting the reports, to its subcontractors with subcontracting plans.

Contractor100 - See FAR 19.7

Where in 19.7 does it say that a contractor cannnot report work in eSRS or on a 294 against its subK goals if the subcontractor it contracted the work does not perform the work?

I do not believe so with the best one to answer your question being the contracting officer for your contract if you are the prime, or the prime if you are a subcontractor to them. Also depending on the value of the contract that is the subject of your question, it may be that the now large business needs to also now prepare a subcontracting plan.

Why? Please cite a requirement the small business has to do the work. This is not a setaside, with a participation requirement. Unless there has been a novation of the contract, with the asset transfer, the questioner still has a contract with a small business, doesn't it? Also, the small business does not have to flow the subK plan down to the large business to whom it subcontracted.

This section does not cover when a prime must require to adopt a subcontract plan. That is covered in 19.704(a)(9)

(a) Each subcontracting plan required under 19.702(a)(1) and (2) must include?

(9) Assurances that the offeror will include the clause at 52.219-8, Utilization of Small Business Concerns (see 19.708(a)), in all subcontracts that offer further subcon- tracting opportunities, and that the offeror will require all subcontractors (except small business concerns) that receive subcontracts in excess of $550,000 ($1,000,000 for construction) to adopt a plan that complies with the requirements of the clause at 52.219-9, Small Business Subcontracting Plan (see 19.708();

The FAR section you quote covers the responsibility of contractors and subcontractors responsibility to report on achievements against their plan in eSRS. If your prime has required you to do a subK plan, you must report on it in eSRS. The prime must give you the info you need to do that, see above section at 10:

(10) Assurances that the offeror will?

(i) Cooperate in any studies or surveys as may be required;

(ii) Submit periodic reports so that the Government can determine the extent of compliance by the offeror with the subcontracting plan;

(iii) Submit the Individual Subcontract Report (ISR), and the Summary Subcontract Report (SSR) using the Electronic Subcontracting Reporting System (eSRS) (http://www.esrs.gov), following the instructions in the eSRS;

(iv) Ensure that its subcontractors with subcontracting plans agree to submit the ISR and/or the SSR using the eSRS;

(v) Provide its prime contract number and its DUNS number and the e-mail address of the Government or Contractor official responsible for acknowledging or rejecting the reports, to all first-tier subcontractors with subcontracting plans so they can enter this information into the eSRS when submitting their reports; and

(vi) Require that each subcontractor with a subcontracting plan provide the prime contract number and its own DUNS number, and the e-mail address of the Government or Contractor official responsible for acknowledging or rejecting the reports, to its subcontractors with subcontracting plans.

Wouldn't this mean that there will be more competition on Recovery-Act funded GSA schedule orders, since 8.405-2©(4) and (5) require CO to provide RFQs to anyone that asks, for buys for "services requiring a statement of work" - and to evaluate their responses?

Mightn't COs get more requests for RFQs as a result of the now required presolicitation notices?

They took the language out, here's final:

SEC. 1610. (a) None of the funds appropriated or

othenvise made available by this Act, for projects initiated

after the effective date of this Act, may be used by an

executive agency to enter into any Federal contract unless

such contract is entered into in accordance with the J1'ederal

Property and Administrative Services Act (41 U.S.C.

253) or chapter 137 of title 10, United States Code, and

the J1'ederal Acquisition Regulation, unless such contract

is otheI'\vise authorized by statute to be entered into with-?

out regard to the above referenced statutes.

http://www.house.gov/billtext/hr1_legtext_cr.pdf

8(a) has heard informally that another 8(a) has been awarded a sole source contract for work the 8(a) would have liked to bid.

8(a) does not know the size of the award, or even know positively the award has been made.

8(a) believes the contract could not have been awarded for less than $3.5 M unless it had been split into unreasonably small units.

8(a) wants to protest, either:

Contract was over $3.5 and should have been competed

Contract was under $3.5M because it was spit up, bad faith on part of government, etc etc

Regardless of the likelihood of success of such protests, what event triggers the 10 day period to go to GAO or the agency since the agency is not required to announce the award?

Verbatim quote I have received from a CO:

"RFQ's and/or RFP's are interchangeable words within the procurement field."