Retreadfed

Carl, if we go back to the original post, General Z was asking about an overall process for awarding an order. He was not asking about the evaluation criteria that should be used to make the award or how to state the agency's needs. The evaluation criteria are only a portion of the overall procedures that are to be used to issue an order. Unfortunately, this discussion has digressed to a discussion of evaluation criteria or statement of needs instead of what placement procedure is applicable in General Z's situation. To me, he was not asking about evaluation criteria or how to state agency needs.

The GAO has already opened the door for this in MCS Portable Restroom Service, B-299291, March 28, 2007. There the GAO sustained a protest that asserted the Air Force had improperly refused to make a sole source award to an SDVOSB concern based on the then current version of FAR 19.1406(a). In sustaining the protest, GAO stated that "a regulation must be interpreted so as to harmonize with and further and not conflict with the objective of the statute it implements." The GAO went on to say that "We think the FAR should be read consistent with the SBA statutory and regulatory language." While MCS did not present the same facts as here, it does provide a basis for a protest to GAO. Thus, I do not accept that it is foolishness to file a protest challenging the use of the current Limitation on Subcontracting clause in solicitations.

But in many instances, the government will not answer or give a meaningful answer. You don't know how many times the response comes back, "the solicitation says what it says."

I presume you are speaking from the government's perspective. However, most of the small business contractors with whom I deal would disagree. In this regard, we need to recognize that this is generally an issue when a small business or 8(a) set aside is used. The clauses for SDVOSB set asides, FAR 52.219-27(d) and HUBZone set asides, FAR 52.219-3(d), already allow those contractors to make unlimited subcontract awards to similarly situated subcontractors. However, the method for calculating the 50% requirement is different in those clauses than as required by the NDAA and SBA rules.

FAR 1.602-1(b) "No contract shall be entered into unless the contracting officer ensures that all requirements of law, [which includes the NDAA amendment of the SBA] executive orders, regulations, [which includes 13 CFR] and all other applicable procedures, including clearances and approvals, have been met." If the contracting officer wants to be safe, (s)he should ask for a deviation.

That is only a small portion of the order placement procedure. I don't think that argument passes the straight face test in regard to what 16.505 requires.

Pepe, note that the NDAA made changes to the Small Business Act in regard to limitations on subcontracting. Thus, the SBA has primary jurisdiction to implement the statutory changes, which it has done. I would argue that SBA's rules take precedence over what is in the FAR particularly since the FAR Councils have had more than enough time to implement the SBA rules, which is what they are doing.

Pepe, have you thought about drafting your own clause and inserting it into a proposal? Alternatively, have you considered protesting the use of the current Limitation on Subcontracting clause in a proposal?

CR, have you looked at FAR 31.205-6(p)? Contracts awarded after June 24, 2014 have been subject to a universal compensation cap described in that section. The cap applies to each employee and currently is $525K. In addition to the compensation cap, compensation must be reasonable under FAR 31.201-3 and 31.205-6(b). Thus, even if compensation is below the cap, it may still be unreasonable and unallowable.

Because hopefully you have complied with the requirements of FAR 16.505(b), which state in part the contracting officer must— (A) Develop placement procedures that will provide each awardee a fair opportunity to be considered for each order and that reflect the requirement and other aspects of the contracting environment; (B) Not use any method (such as allocation or designation of any preferred awardee) that would not result in fair consideration being given to all awardees prior to placing each order; (C) Tailor the procedures to each acquisition; (D) Include the procedures in the solicitation and the contract; and (E) Consider price or cost under each order as one of the factors in the selection decision.

What about the approach that is specified in the contract?

That is not an answer. Adequate to do what?

See, Aljucar, Anvil-Incus & Co., B-408936 (January 2, 2014). Other barriers could be requiring the JV to have its own accounting system that has been audited by DCAA, requiring the JV to undergo a pre-award survey, if the JV is not small, having it submit a small business subcontracting plan instead of relying on plans submitted by the members.

If the procurement is conducted on a full and open competitive basis, I do not see how the government can state that offers from JVs will not be considered. On the other hand, the government may erect barriers that make it difficult for a JV to compete. For example, if the procurement is being conducted under FAR Part 15, the government may say that it will only consider past performance of the JV and not its individual members. This practice has been sanctioned by the GAO.

rfpro, in regard to cost reimbursement contracts, are you talking about employees who perform directly on a contract, employees who perform a function that is charged to an indirect cost pool or both?

H2H, why is this system not adequate for T&M contracts? Maybe I am missing something, but it seems to capture the actual hours worked.

Z, note that the procedures for issuing orders under a multiple award contract are to be set forth in the contract. Thus, if you do not follow those procedures when issuing an order, you can be facing a claim under the Disputes clause. Thus, even if the order does not qualify for being subject to a protest, that does not mean you are out of the woods. How does not allowing all 10 contractors submit proposals for the revised requirement meet the fair opportunity requirement of the FAR and statute?

That is up to you, based on your company policy and the terms of your contracts. The FAR does not provide for any particular method to address this issue.

This is what FAR 15.303 has to say on this topic: The source selection authority shall— (1) Establish an evaluation team, tailored for the particular acquisition, that includes appropriate contracting, legal, logistics, technical, and other expertise to ensure a comprehensive evaluation of offers. To me, the key words from this excerpt are "tailored" and "appropriate."

rfpro, there are too many variables involved in your question to provide a one size fits all answer. The time keeping requirements for a company providing office furniture off a GSA schedule could be quite different from a contractor doing work on CAS covered cost reimbursement contracts. From a contractual perspective, you have to analyze the terms of your contracts and determine if your timekeeping policies meet the requirements of those contracts. If they do, you are good to go regardless of what another contractor's policies may be. Remember, the FAR only requires a contractor to have an accounting system, which includes a timekeeping system, that is adequate for the contract type being performed. See, FAR 16-104(i).

This discussion has focused on techniques for determining if a price is fair and reasonable. My question is if you cannot define what fair and reasonable is, how do you know that you have it regardless of the techniques you apply? Is this something like Justice Stewart's explanation of pornography in that "I can't define it but I know it when I see it"?

If that is what a fair and reasonable price is, what is all this arguing about? It seems as if folks here are looking for a "magic formula" to tell them what price is fair and reasonable., i.e., what they would be willing and able to pay for what they are buying. Also, nobody other than Vern has defined what it is that they are talking about. Is there a common understanding of what this term means in the FAR or are folks here making up their own definition as they go along without sharing that information?

Can someone tell me what "fair and reasonable price means"?

Delayn, what is being acquired? If it is services, are the severable or non-severable?

This appears to require more than coordination between two "plans." As you have mentioned, the DFARS does not require the submission of "utilization plans" only a statement of the extent to which small businesses will be utilized in performance of the contract. However, Don asserts that some components are including these statements in resulting contracts. As the quoted language indicates, if the contractor is required to provide a small business subcontracting plan, any small business concerns listed in the utilization statement "shall" be included in the subcontracting plan. Thus, there is mandatory overlap between the two in this circumstance. Further, I do not see anything in the DFARS that would prohibit a component from including the utilization statement in the subcontracting plan. It only says that the two are to be submitted separately. This inclusion may or may not be happening. I have to admit that I do not have insight into how these requirements are being implemented in practice.