C Culham

Are you sure? FAR 12.205 "(a) Where technical information is necessary for evaluation of offers, agencies should, as part of market research, review existing literature generally available in the industry to determine its adequacy for purposes of evaluation. If adequate, contracting officers shall request existing product or service literature from offerors of commercial products or commercial services in lieu of unique technical proposals." The idea of a TEP for a commercial service akin to mowing and sprinkler servicing is dumb. I will agree the FAR gives the CO authority to have two TEP's YET FAR references and dare I say agency supplements on the subject places the imperative or the expected course of action for a TEP and I would submit that for a RFQ, noncommercial or commercial that expected course of action is no TEP. As with any the thread unless the CO/KO is in violation of statute or regulation they can do anything they like but in some cases what they do is dumb!

Quotes.....quotes! My view no TEP whether one or two, no FAR part 15. Simply get the quotes determine the best alternative as the overall best value and make the dang award. Even though hypothetical if the work is really not complex but akin to mowing grass and servicing a sprinkler system and the solicitation is really an RFQ the KO is making the whole process unnecessarily complex. FAR 13.106-2 and lots of Forum threads on how to evaluate quotes says so!

Regarding CPARS there is the below standard. "...Agency evaluations of contractor performance, including both negative and positive evaluations, prepared under this subpart shall be provided to the contractor as soon as practicable after completion of the evaluation. The contractor will receive a CPARS-system generated notification when an evaluation is ready for comment. Contractors shall be afforded up to 14 calendar days from the date of notification of availability of the past performance evaluation to submit comments, rebutting statements, or additional information. Agencies shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation. The ultimate conclusion on the performance evaluation is a decision of the contracting agency...." Ref FAR 42.1503 and CPARS itself If evaluation was not carried out through CPARS or the agency does not allow the contractor rebutting statements then remember the contractor has this opportunity - (emphasis added) "...At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond..." Ref. FAR 13.306(d)(3)

I think your case was made in the OP's first post...

Vern Edwards has provided an answer that I agree with. By example what sets the extent of government obligation in a FFP contract at award? The price. So applying the same concept to a T&M, once you have contractor rates and costs on the time and materials you would set a ceiling price. I have handled this in my experiences by placing wording in the solicitation that a not exceed ceiling will be placed on the work at time of award based on rates for labor and anticipated actual costs of materials at award. At award absolutely as again it sets the government obligation. It is a "depends". Why? I have seen it done both ways but again I subscribe to the approach Vern Edwards has suggested (at award). You are questioning, as evidenced by your comments, due to a concern regarding that at solicitation it will lead the the contractor to offering higher than expected labor rates. Competition, actual experience in the labor force, cost or price analysis all will be used to determine whether the labor rates offered are acceptable (fair and reasonable) so from my view, and my initial comments that expressed wonderment of sorts, I believe your concern is misplaced. If you actually have a specific objective to be accomplished with the T&M contract then state it if you want the contractors to consider the possible scope of the work in offering rates and costs. Examples I have used in the past - Intent of this contract is to remove this land slide on this road to have it open by X, intent of this contract is evaluate the extent of the environmental damage caused by the oil spill, etc. How does estimating the labor rate and anticipated materials skew the pricing to be high? You are not releasing the estimate, right? Your very question goes to a comment like that posed by Vern Edwards. You have chosen T&M, which by its very nature requires that for you, and dare I say your program people, it is only to used as a contract type "when it is not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence." The conflict? You can estimate a labor rate based on market research and guess at need materials but for T&M extent, duration and what is really needed in material can not be with confidence, right? Yet, the basis for your concerns is that it seems you have confidence in the extent, duration and anticipate costs (labor rates) so quite directly if so then why T&M? I hope the entire thread has helped you answer this question and give you pause to consider type of contract and more importantly if T&M is what it will be you have a better understanding of use from solicitation, award, to administration to accomplish the objective of the contract.

Some how, some place I think some regulatory direction has been forgotten.... FAR 1.102-2 (c) "An essential consideration in every aspect of the System is maintaining the public’s trust. Not only must the System have integrity, but the actions of each member of the Team must reflect integrity, fairness, and openness. The foundation of integrity within the System is a competent, experienced, and well-trained, professional workforce. Accordingly, each member of the Team is responsible and accountable for the wise use of public resources as well as acting in a manner which maintains the public’s trust. Fairness and openness require open communication among team members, internal and external customers, and the public." FAR 1.102-4 (c) "The Team must be prepared to perform the functions and duties assigned. The Government is committed to provide training, professional development, and other resources necessary for maintaining and improving the knowledge, skills, and abilities for all Government participants on the Team, both with regard to their particular area of responsibility within the System, and their respective role as a team member. The contractor community is encouraged to do likewise."

My quick thought is the following quote by Vern Edwards in a previous Forum thread. It is fresh on my mind as it seems that T&M is all of a sudden a hot button topic in Forum. The follow-up thought is consider searching Forum on the subject of "Time and Materials" and what you find may help you answer your own questions. "A T&M or L-H contract does not require the contractor to deliver a level of effort, i.e., a specified number of hours or some other unit of labor. It requires a contractor to perform a job. The ceiling price is not a level of effort that the contractor must deliver, but a limit on the government's obligation, which is necessary in order to avoid a violation of the Anti-deficiency Act. An increase in the ceiling price is ordinarily akin to funding an overrun on a cost-reimbursement contract. However, if the parties are increasing the ceiling price to cover the addition of work that is beyond scope, then they must comply with certain requirements, such as a sole-source justification and a D&F. The FAR case requires COs to perform an analysis when they increase the ceiling price in order to determine if the increase is the result of a change in scope. The FAR case makes perfect sense." And then I have to say quite bluntly if you are really doing a time and materials contract your questions give me the sense that you are really not ready to commit to the extensive effort of tracking the billable hours and materials that the contractor will be experiencing in completing the work.

Neither is should. A read in FAR subpart 4.10 and your agency supplement of same may help you understand CLIN (and payment) structure. In a sole source arena with great communication during negotiations to reach contract pricing agreement No. 2 could actually work but read on. Yes hold to your guns. More appropriate for T&M, well why wasn't it when the contract was first awarded? You can change any approach (supplemental agreement) but I would hope that there would be adequate justification why it is necessary to change the FFP arrangement. Does the government really think the contractor did not understand or is just gaming the FFP arrangement for more money? Consider this recent thread in WIFCON and refer to the additional thread that is referenced in this one. Maybe it will help add substance to T&M overall and its proper use. In the end it seems the negotiations were not good and the government may be the one that is confused and confusing the vendor!

Makes sense to me.

Well I tried. Is the actual speed to complete a contract (solicitation to award) the issue or the entire process required to procure something? Example - I have a need, express through the planning/budget process, funding is approved, program sets forth in preparing the need to send to the contracting office, contracting office does it thing, proposals received, evaluated, and award occurs. Lots of hand wringing (time expended) with each step. I get your wonderment and in the world of contracting I am sure the extreme examples exist where a need was stopped at any certain point due to circumstances inclusive of where technology outpaced the process. Sorry I can not come up with an exact one.

It is a good question. I am just wondering out loud. So the "segment" is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to full coverage under the cost accounting standards prescribed pursuant to section 1502 of title 41 and the regulations implementing such section but the parent "entity" of the segment has, so in a sense has not the segment been subject to CAS? 48 CFR 9904 provides this - "Segment means one of two or more divisions, product departments, plants, or other subdivisions of an organization reporting directly to a home office, usually identified with responsibility for profit and/or producing a product or service. The terms include Government-owned contractor-operated (GOCO) facilities, and joint ventures and subsidiaries (domestic and foreign) in which the organization has a majority ownership. The term also includes those joint ventures and subsidiaries (domestic and foreign) in which the organization has less than a majority of ownership, but over which it exercises control."

While the following are not spot on they may give you a general sense of agency authority to cancel a solicitation. With specific regard to your example if the facts leading up to the determination to cancel were reasonable the agency's decision would most likely be sustained in the event of a protest. I hope the references help you in further exploring the matter. https://www.gao.gov/products/b-412655.3 https://www.gao.gov/assets/b-418238.pdf https://www.gao.gov/products/b-408870.3 https://www.gao.gov/products/b-418128.7

My guess is that the OP is way beyond such a suggestion and should seek concentrated assistance outside of this forum .

I know I am revisiting some thoughts already passed on in this thread. My intent is to be a little more direct. Sort of. Yes a firm has to meet the size standard but it does not prevent it from having an association with another firm, per your post a large business, as long as that association still has the firm (the offeror) meeting the rules regarding size. Yes and as Don has already provided how the offer will be evaluated regarding the use of such associated experience and qualifications will depend on what the solicitation says. Yes it will matter. It will matter to the firm as they must consider whether they can certify that they are a small business in consideration of an association with a large business per a JV, prime/sub, CTA. It will matter to you (the agency) as you must review the association to determine if such association raises a question of size along with responsibility. I mention responsibility as a matter of limitation in subcontracting is a matter of responsibility if the limitation issue is the sole concern say in a prime/sub relationship. Here I might add that even if a JV, the entities of the JV must be looked at as to what they bring to the table in the JV offer. (13 CFR 125.8). Remember size and responsibility are determined at receipt of an offer. So in a sense you have the authority to allow but only after receipt of offers and based on your review regarding the certification as to size but not prior to. A determination of a JV being eligible to submit on small business set-asides can be determined by the SBA, not by the agency, prior to the JV submitting on a solicitation (13 CFR 125.9). Remember the general rule anybody can submit an offer but whether that offeror is responsive and responsible is determined at time of receipt of offers (unless you have established a qualified bidders list - FAR 9.2). The advice provided in this thread is sound but it has beat around the bush and left some gaps. Let offerors submit their proposals. If they ask questions about who is allowed or not tell them anyone is allowed to offer but an offeror and its offer will be scrutinized after receipt to determine if the offer responsive, the offeror is responsible, is a small business as determined by an associations if any are offered and those that are responsive and responsible will be considered for award which will be based the agency's evaluation determination of who will provide the best value for the government pursuant to the provisions of the solicitation.

By experience I am familiar with PTACs doing both general and "no cost, confidential, one-on-one technical assistance in all aspects of selling to Federal, state and local governments" that would address your numbered points. The quoted language is taken directly from the PTAC site for Washington State. I might agree but the OP is here because I am guessing for whatever reason it is difficult. You and I have experience and in a general sense would know how to pursue but as this thread unfolds past Vern's advice I am genuinely concerned about specifics that may or may not apply. Quoting FAR clauses that may or may not be in the parent IDIQ contract and/or the order is just one of these concerns. Likewise what does the parent contract and its associated PWS and the order actually say about acceptable performance standards. As it goes with many Forum discussion threads. And lots more to peel back I am sure that one-on-one counseling in a confidential arena would provide a great assist to the OP to get the issue resolved. Whether that one-on-one is hired or obtained say from a PTAC I am sure it would be very beneficial to the OP. I just mentioned the PTAC as an option because it is viable.

Joel - Are you still wondering or are we good? I will say that the ability of a particular PTAC depends on the individuals that staff at particular location. In my view still worth checking out as one never knows until they do.

Maybe. @kburnett4112I get the sense that you are fairly new to government contracting and likewise have limited corporate resources. So are you a small business? If so you may be able to find some valuable one on one assistance with regard to your issue from your local Procurement Technical Assistance Center (PTAC). You might consider reaching out to the PTAC to see if they could help. Usually their assistance is free. Find your local one here - https://www.aptac-us.org/ and drill down - https://www.aptac-us.org/contracting-assistance/ptac-help/

Well maybe. I do agree with the comments to ask the POC as the best route but some evidence that it is an open market solicitation versus a solicitation for GSA FSS holders only could be the following. Not exactly fool proof but might provide good hints. No FAR Part 15 provisions in the solicitation such as 52.215-1. One would hope no FAR Part 13 or 14 provisions in the solicitation as well. All if intended to be solicitation for GSA FSS holders only. Why? Parts 13,14, and 15 do not apply to GSA FSS (there are few exceptions). Is the solicitation synopsized in SAM.gov "Contract Opportunities"? Reference - "FAR 8.404 Use of Federal Supply Schedules. (a) General. parts 13 (except 13.303-2(c)(3)), 14, 15, and 19 (except for the requirements at 19.102(b)(3) and 19.202-1(e)(1)(iii)) do not apply to BPAs or orders placed against Federal Supply Schedules contracts (but see 8.405-5). BPAs and orders placed against a MAS, using the procedures in this subpart, are considered to be issued using full and open competition (see 6.102(d)(3)). Therefore, when establishing a BPA (as authorized by 13.303-2(c)(3)), or placing orders under Federal Supply Schedule contracts using the procedures of 8.405, ordering activities shall not seek competition outside of the Federal Supply Schedules or synopsize the requirement; but see paragraph (g) of this section." And then I just have to say that it would seem that in a full read of the solicitation there is probably a statement somewhere that offers are solicited from contractors holding a GSA FSS contract if that is what the agency is looking for.

I just threw out the payment clause and other contract terms and conditions regarding measurement and payment as advice as other places to look for the OP to help solve their dilemma. Vern gave the best answer already.

Hey folks....does the contract payment clause count for anything? And any other terms and conditions that count for measurement and payment.? And if they do maybe the OP ought to check them out!

I might agree using the basics of your posts. The 1449 appropriate blocks indicate rated yet no 52.211-15 in its terms and conditions suggests the possibility of both rated and unrated orders can be issued where 52.211-15 would end up in the order. Since a IDIQ states its ground rules I wonder if a full and concise read of the CHESS IDIQ might provide the explicit answer.

Maybe this helps clarify as well...from 15 CFR Part 700... "§ 700.12 Elements of a rated order. (a) Elements required for all rated orders. (1) The appropriate priority rating and program identification symbol (e.g., DO-A1, DX-A4, DO-N1). (2) A required delivery date or dates. The words “immediately” or “as soon as possible” do not constitute a delivery date. When a “requirements contract,” “basic ordering agreement,” “prime vendor contract,” or similar procurement document bearing a priority rating contains no specific delivery date or dates, but provides for the furnishing of items from time-to-time or within a stated period against specific purchase orders, such as “calls,” “requisitions,” and “delivery orders,” the purchase orders supporting such contracts or agreements must specify a required delivery date or dates and are to be considered as rated as of the date of their receipt by the supplier and not as of the date of the original procurement document. (3) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of an individual authorized to sign rated orders for the person placing the order. The signature, manual or digital, certifies that the rated order is authorized under this part and that the requirements of this part are being followed. (4) A statement that reads in substance: “This is a rated order certified for national defense use and you are required to follow all the provisions of the Defense Priorities and Allocations System regulations (15 CFR part 700).”

Me as well.....two additional comments. I had this thought that it is a two way street is it not, after all an offeror can change their mind and withdraw their proposal at anytime. Of sorts aligned with your thoughts the government can change its intention as well. My wording may have been to definite, protest could occur just wonder if sustaining the protest would occur if the government expressed their approach in the RFP and documented the reasoning for doing so and followed the deviation process.

Your brief description of your situation makes me think of Procurement Technical Assistance Centers (PTAC). One of the primary purposes of PTAC's is to provide FREE assistance to small business's that are in the position you are. A PTAC, if you find it to be a good fit for you, could be a valuable resource through out your entire prime experience. Here is a link to find and explore abilities of the PTAC near you. Checking a PTAC out might just be a good thing for you - https://www.aptac-us.org/

No doubt a matter for the GAO/Court to decide on whether such an approach is statutorily allowed. Regulation wise, I say yes. My position for putting the reservation in the solicitation (and applying it) would be that the ground rules of the procurement were laid out to all. Applying the reservation would then be a judgement of the agency and the judgement (as substantiated by the agency) would be not be subject to protest review. How would I do it? I would do an individual deviation to 52.215-1 as I see nothing in statute that does not allow such a deviation.