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C Culham

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  1. No sir. I respectfully submit that you are not fully knowledgeable of the matter and your general statements of your beliefs may put folks at risk of not doing the right thing. It is more complicated than you imply and as I have noted in a previous post it depends on the facts of the procurement. You on the other hand have provided a matter of fact statement which I continue to question. I highly encourage you to read the whole of 13 CFR 121. As a teaser I am offering the following - "Unrestricted Multiple Award Contracts. For an unrestricted Multiple Award Contract, if a business concern (including a joint venture) is small at the time of offer and contract-level recertification for the Multiple Award Contract, it is small for goaling purposes for each order issued against the contract, unless a contracting officer requests a size recertification for a specific order or Blanket Purchase Agreement. Except for orders and Blanket Purchase Agreements issued under any Federal Supply Schedule contract, if an order or a Blanket Purchase Agreement under an unrestricted Multiple Award Contract is set-aside exclusively for small business (i.e., small business set-aside, 8(a) small business, service-disabled veteran-owned small business, HUBZone small business, or women-owned small business), a concern must recertify its size status and qualify as a small business at the time it submits its initial offer, which includes price, for the particular order or Blanket Purchase Agreement. However, where the underlying Multiple Award Contract has been awarded to a pool of concerns for which small business status is required, if an order or a Blanket Purchase Agreement under that Multiple Award Contract is set-aside exclusively for concerns in the small business pool, concerns need not recertify their status as small business concerns (unless a contracting officer requests size certifications with respect to a specific order or Blanket Purchase Agreement).
  2. I believe you continue to error in your conclusion - "Where an underlying ID/IQ solicitation or contract by itself does not acquire services with appropriated funds, describe agency requirements, obligate funds, or establish agency needs, a solicitation or RFP for a delivery order calling itself a procurement with different evaluation factors for award is a procurement, a particular procurement, and a separate procurement. SBA must determine an offeror's size for that procurement as of the date of the offer for the delivery order RFP." Ref. SBA No. SIZ-4748 (S.B.A.), 2005 WL 3644772
  3. The quick thought follow your evaluation factors to the "T" and evaluate all proposals fairly. Misrepresentation of material facts is usually found to be a sound basis for a poor evaluation. So move on and evaluate all the proposals as the evaluation factors provide for. You run the risk of unequal treatment when you start jury rigging the process due to continual bad players. Sounds like the "vendor" submits proposals without misrepresentations sometimes and other times the vendor does. I might consider finding a good opportunity to discuss the matter with the vendor.
  4. So a question back that may add some additional considerations for you. Is the recurring need defined as "construction"? Or on another track was the need competed through GSA OASIS 8(a) contracts originally?
  5. Thanks Don, this is getting closer but I honestly do not get the responses. i know you answered a specific question that the OP stated but I really think the OP is asking should NMR and BAA be a consideration of the CO at the order level or just at the parent contract level. ji20874's comments provide, at least by my read and I could be wrong, to not worry about NMR when getting quotes for a FAR 8.4 order, nor when doing fair opportunity under a MAS per FAR 16.5. Your response implies the same thing but for different reasons. Discretionary act for NMF rule and not required for BAA as I read your comment. First off I find referring to FAR 16.5 in total is not appropriate as the OP has referenced both FAR 8 and 16 and in many cases there are different rules regarding a procurement made under the two references. Specific to FAR 16.5 simply referring to the subpart on what to do regarding an order under a FAR 16.5 contract is not the rule, the contract is, so to make a blanket statement that FAR 16.5 tells you what to do is not appropriate. The contract rules and as has been discussed a million times in Forum who knows what an agency might put in an indefinite delivery contract. My research in attempting to find a reference that the OP can lean on it would seem that the OP is asking if at the order level is there a need to do the discretionary act of requesting a waiver and/or consider BAA. Or in other words does making the waiver consideration for NMR and application of BAA occur at the parent contract level or order level? I am having difficulty concluding that it is made at the parent contract level. First for FAR 8.4. FAR 8.405-5(a)(2)(a) provides that when setting aside orders "The specific small business program eligibility requirements identified in part 19 apply." Found in GSA's "GSA Schedules and the Utilization of Small Businesses "Language applying the NMR to set-aside Schedule orders can be found in the following clauses:" And this - found here https://www.gsa.gov/buy-through-us/purchasing-programs/gsa-multiple-award-schedule/small-and-disadvantaged-business-utilization "Yes, the Non-Manufacturer Rule (NMR) does apply to Schedule orders set-aside for small business. The NMR requires that a small business performing under a set-aside contract/order must provide the product of a small business manufacturer." And then I wonder about CTA's with this noted in the same reference website noted above - "Under an MAS CTA the Team must perform fifty percent (50%) of the value of the work in the aggregate. For example, on a team consisting of three contractors, the Team Leader could perform thirty percent (30%) of the work and each Team Member could perform ten percent (10%) of the work to meet the fifty percent (50%) requirement. The remaining fifty percent (50%) of the work may be performed by subcontractors working under any of the team members Schedule contracts. Socioeconomic restrictions do not apply to subcontractors; i.e., they may be large business." As to FAR 16.5 I really cannot find a reference in the subpart other than that already noted where the subpart provides that a indefinite delivery contract does not procure anything the orders do and likewise FAR 2.101 provides that the definition of a contract is an "order". Related is the fact that when entering an IDIQ parent into FPDS there is no pop-up for BAA. "This information is recorded at the contract level, or at the delivery order level for orders from indefinite delivery contracts." Reference https://www.gao.gov/assets/gao-19-17.pdf All told it would seem that CO's should not assume that NMR or BAA was consider at time of award of a GSA FSS contract because FAR part 8.4 and GSA guidance provides that the considerations are made at the order level. For indefinite delivery contracts pursuant to FAR 16.5 it depends and the contract will provide whether consideration was made at the parent contract level or is to made at the order level.
  6. Are you sure? Now consider a multiple award to both SBs and OSBs. Yet you decide to reserve an order for SBs. So are you saying that the parent contract for say computers has already addressed the computer a SB will provide both as to the SB status under NMR and the BAA for the specific item the SB will provide? How?
  7. I am still not tracking. By definition a Delivery Order Contract does not procure anything so how is NMR and/or BAA applied to nothing? Aren't the orders the "contract"? I pose this especially in the current atmosphere where ID contracts that provide for possible Delivery Orders of everything under the sun (almost)?
  8. Specific to the NMR. I am trying to wrap my head around the above statement. I do read at FAR 16.5 the following (emphasis added) "(e) See subpart 19.5 for procedures to set aside part or parts of multiple-award contracts for small businesses; to reserve one or more awards for small business on multiple-award contracts; and to set aside orders for small businesses under multiple-award contracts." So are you trying to relay to the OP that they must apply the NMR at the order level or not? And if they must when? And is there a difference between between all "existing government contracts" or just some when applying the NMR. And for both BAA and NFR there is this statement (emphasis added) in the Connections II GSA-FSS contract. What is Connections II https://www.gsa.gov/technology/technology-purchasing-programs/telecommunications-and-network-services/connections-ii "The clauses in I.2 apply at the Order level, as applicable, depending upon the contract type of the Order, or as specifically referenced in the applicable Order." All the small business clauses and the Buy American clause is listed in I.2. I am truly interested in the response of ji20874 as to where in 16.5 it specifically addresses when NMR and BAA are or are not applicable at the order level for an existing government contract such as a Definite Quantity, Requirements, or IDIQ contract is used as authority to issue the order?
  9. I am not questioning what a prime does or does not do but I find this conclusion to be interesting. It just seems folks do not have a grasp of the FAR and its clauses that appear in prime contracts. Primes should carry on and do what they feel is best yet I hope they are considering the following. 52.204-19 which has been concluded to provide a nexus to SAM.gov use by primes. 52.219-8 at (e) that does provide a nexus of SAM.gov use by primes. As I note the above I know requirements regarding excluded parties has change with regard to primes and their due diligence of subs. I always wonder how a prime checks excluded parties if not SAM?
  10. I think I am intrigued about the footnote reference to another procurement protest where DHS (Secret Service) procured under the same GSA FSS contract. I know large procurement dollars, and yes I know agencies might have their own rule when estimated Task Order procurements exceed a certain dollar threshold yet large or small I always wonder why an agency complicates the essence of FAR 8.4 regarding Fair Opportunity, Request for Quotes, etc? I am probably a dunce but I think that a RFP process complicates GSA-FSS procurements.
  11. In reconsideration, a "war story". Granted a number of years ago... Agency needed a species study in an area for an EIS. Specifically various ferns ( there was a scientific term that I can not remember) and a specific salamander. They wanted to lump all together but protocols were different. And for the ferns the program office thought only full fledged botanists (almost PhD's but not quite were required to tell the difference in the multiple ferns present), for the salamanders they had a card with a picture that would specifically id the salamander of concern with admission that a young adult with some sense and good eyesight could id. Eventually the needs were split, the fern contract went RFP and took like 250 days to award after receipt of proposals, the salamander went IFB, in like 30 days after bids received. Two different contracts awarded to two different firms, both completed satisfactorily. Of course the salamander one was done sooner and helped in the course of time to ensure timely completion of the EIS. The fern one and its completion to include in the EIS pushed the envelope.
  12. Well I would hope that it is being considered, whether formally, or informally, and in either case this is applied! I added the emphasis. "6.401 Sealed bidding and competitive proposals. Sealed bidding and competitive proposals, as described in parts 14 and 15, are both acceptable procedures for use under subparts 6.1, 6.2; and, when appropriate, under subpart 6.3. (a) Sealed bids. (See part 14 for procedures.) Contracting officers shall solicit sealed bids if- (1) Time permits the solicitation, submission, and evaluation of sealed bids; (2) The award will be made on the basis of price and other price-related factors; (3) It is not necessary to conduct discussions with the responding offerors about their bids; and (4) There is a reasonable expectation of receiving more than one sealed bid. (b) Competitive proposals. (See part 15 for procedures.) (1) Contracting officers may request competitive proposals if sealed bids are not appropriate under paragraph (a) of this section. (2) Because of differences in areas such as law, regulations, and business practices, it is generally necessary to conduct discussions with offerors relative to proposed contracts to be made and performed outside the United States and its outlying areas. Competitive proposals will therefore be used for these contracts unless discussions are not required and the use of sealed bids is otherwise appropriate."
  13. As an added thought a question might also be connected to the above indication. The process to make the adjustment to the contract might also include addressing the matter of scope. Either approach, supplemental agreement for a simple change (FAR Clause 52.212-4 at paragraph (c) is suspect) or a partial T4C (FAR Clause 52.212-4 at paragraph (l) is suspected) might work but a justification for other than full and open competition might be necessary (FAR subpart 6.3). A read here (see link below) might determine if this additional step is necessary. http://www.wifcon.com/pd6_001.htm
  14. From 1989 through 1999 fulfilling two positions over the time as CO for the US Small Business Administration 8(a) Program and as Supervisory Contract Specialist and CO for USACE Portland District, for A-E, Construction, Service and Supply contracts I found partnering to be a great ideal and process. It is an effort well worth the time, effort and expense and many of its foundations I use up to today.
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