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C Culham

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Everything posted by C Culham

  1. You are welcome. Joel's idea of proposed question for the debrief is a good one. I will say I have seen agencies use unique ways to try and guide offerors on hoped for pricing. As you say it might or might not help the agency get competitive BAFO's.
  2. Different possibly the same conclusion. Never seen it but that does not mean it isnot done (obviously). Would be interesting to view RFQ's by same agency to see if the wording is used in other solicitations. Might be their thing! Going off the basic info provided agency set a range and asked for BAFO's. I do not see wording in your posts that BAFO's have to be in the range. So one might concluded something to the effect of - Agency - Here is our range. Offerors - Here is our BAFO's. Agency - Views the BAFOs and makes the final award decision. Wording that you have provided so far does not indicate that to be considered the BAFO must be within the competitve price range. My response provided above suggests why but more to the point LPTA means they will take the lowest price of the techincally acceptable proposals not that they will take the lowest price in the competitive price range. And while you may have a view of what is reasonable price the agency would support why they believe it is reasonable. My mind wanders to this - FAR 15.404-1(b)(2)(i) - "Comparison of proposed prices received in response to the solicitation. Normally, adequate price competition establishes a fair and reasonable price (see 15.403-1(c)(1))." Hope these thoughts help with your debrief strategy.
  3. Great point. I think if I were to update my last post it could get into a complicated flow chart view. This said I will just add here - Such research could lead to a policy as @Jamaal Valentine points out. And if using a Federal Acquisition Regulation approach to fill the need one should not forget FAR subpart 13.5 when over the $250,000.
  4. Have you done a full read FAR subpart 27.703? Based on my read of just this tiny snipit (quoted below) from the subpart I think it will provide you with an avenue to help with your questions. In concert I suggest a full read of any solicitation/contract, as well as reaching out to the appropriate individual (usually a CO) for the instant procurment with the specific questions as they may apply to solicitation/contract as an agency may have a policy beyond FAR 27.703. "Except as authorized by OFAC, agencies and their contractors and subcontractors must not acquire any supplies or services if any proclamation, Executive order, or statute administered by OFAC, or if OFAC’s implementing regulations at 31 CFR Chapter V, would prohibit such a transaction by a person subject to the jurisdiction of the United States."
  5. @GABE If I am the CO and given a requirement for an “expert speaker at one of our conferences” here is my thought process. I as the CO may or may not have a government purchase card. Also, I may or may not have a warrant that is above the Simplified Acquisition Threshold. I would research and conclude agency does or does not have a policy or FAR supplement regarding honorarium. I research and conclude agency does or does not have a convoluted policy regarding single source authority of FAR part 13 to make it like an exception to full and open competition provided for in FAR part 6. I research and conclude I am paying fee to the individual or an entity that employees the speaker. I as CO would then consider the following for procuring the need (not hire!). Value up to but not exceeding $10,000. Speaker is not a bona fide executive, administrative or professional and fee is less than $2500 purchase the speaker and pay speaker fee with government purchase card (GPC) if speaker accepts credit card. If does not accept GPC, use a purchase order (PO). If speaker is a bona fide professional, etc. and fee is less than $10,000 use GPC, if not use PO. I note here that if the individual is from an institution of higher education or related or affiliated nonprofit entities, or from nonprofit research organizations or independent research institutes and I am purchasing the need (speaker service) through such entity the GPC is an option up to $10,000. (Reference FAR part 2 and the definition of "Micro Purchase Threshold". Value is above $10,000 up to but not exceeding $25,000 use a PO. Document file as to why the speaker was chosen. Value above $25,000 to $250,000 use PO but first synopsize purchase in SAM.gov as single source. Document file with a determination that supports the single source “determination”. Value above $250,000. Select an appropriate exception to full and open competition pursuant to Federal Acquisition Regulation FAR subpart 6.3. Document file with J&A. Synopsize in SAM.gov. Use contract.
  6. An additional thought. Reaching to FAR part 6 would imply that the intended need is excess of $250,000. Is a honoraium for an expert speaker really that much? Remember FAR subpart 13.106-1(b) addresses "single source" when the need is below the Simplified Acquisition Threshold.
  7. I do not think DEA and any other agencies actually uses a purely rotational basis to place calls and see the term as a distraction for this discussion. Why? Afterall Envirosolve was excluded from the rotation, so would not that mean that DEA was using other than a rotation basis to determine who to issue calls to(see below excerpt from the decision)? In reviewing several BPA solicitations on SAM.gov it seems that where rotation is indicated there is an out for adverse performance. In other words the calls may be rotated yet carry a BUT. I have faith that CO discreation is still used and trumps just rotating calls. "On or about July 17, 2006, DEA began excluding Envirosolve from the rotation of purchase orders for hazardous waste cleanup services among BPA holders. Envirosolve then filed the current protest challenging its exclusion. In its report to our Office in response to the protest, the agency explained that the DEA Hazardous Waste Disposal Section is presently conducting an investigation concerning the discovery of three drums containing clandestine drug laboratory waste at a location in Tulsa, Oklahoma. AR, Sept. 25, 2006, at 2. According to DEA, its initial investigation determined that the labeling on the drums indicated that the hazardous waste had been processed and transported by Envirosolve. Given Envirosolve’s apparent loss of control of the three drums of hazardous waste, the contracting officer decided to temporarily discontinue issuing purchase orders to Envirosolve during the pendency of the investigation."
  8. My thought is the same as yours. Putting a firm back in may give hope of a possible award but when I think about it, the firm was excluded from the competitve range originally. At least the firm did get a chance to put it best foot forward.
  9. Yes sir! I too am in the dark to some extent about Don and ji's comment as Jamaal's quote about poor man's multiple award contract pegs it for me. Even more so after reading some of the BPA's on SAM.gov where they seem to me to look like multiple awards not "establishment of a charge account". I even found one that seemed to provide that calls/orders were a firm offer by the government that the BPA holder could no reject. If it walks like a duck........
  10. This part of the discussion leads me back to the obeservation by Vern that in Logan GAO avoided discussion of rotating where GAO said in footnote 6 - "To the extent Envirosolve argues that DEA did not achieve competition to the maximum extent practicable by competing the establishment of the BPAs (and thus must compete issuance of the purchase orders under the BPAs), this argument is untimely." I have not taken the time to look at every multiple BPA advertisement on SAM.gov but in the few I have looked at there is an indication of a mini-competition among BPA holders at the discreation of the agency with the door left open that they might do "sole source" too. So my view would be the issue of rotating or not would be dictated by the BPA wording. I guess we just wait and see.
  11. Yep. My view is that an agency has set an expectation on competition for the future. I tried and could not find any protests that addressed the situation. I wonder if GAO would do an advance decision on the matter? I agree in general. I would add clarity that I believe you are referring to FAR part 13 BPA's. I will also play the "it depends" card only from the view that as mulitple award FAR part 13 BPA's get more and more use as "the poor mans mulitple award contract" (thanks @Jamaal Valentine) some day, some how jurisdiction will be found by GAO or created by congress just as they interjected requirements for multiple award IDIQs. By example I agree Logan was not about jurisdiction but does this quote in footnote 5 leave the door open - "In order to obtain competition to the maximum extent practicable, agencies must make reasonable efforts, consistent with efficiency and economy, to give responsible sources the opportunity to compete..."
  12. (My inclusion of "synopsize" was probably not correct. I should of kept to competitively.) Why? I am reminded of a Forum discussion of years back from which I have captured this quote. As to the Forum discussion it is referenced at the very end of this post. "Statutory requirement to obtain maximum practicable competition in simplified acquisitions is met where agency uses competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors; under those circumstances, there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs." Reference https://www.gao.gov/assets/b-294974.6.pdf Many agencies do use competitive procedures to establish BPA's so that they only have to compete an actual reguirement via the BPA's that were established competitively. My reference to "many agencies" can be confirmed by a search of SAM.gov Contract Opportunities. Example of wording I found in SAM solicited contract opportunities - "The Government anticipates this solicitation will result in multiple BPAs." "The anticipated period of performance for any contract awarded..." "The anticipated contract type for any contract awarded as a result of this solicitation is a Blanket Purchase Agreement (BPA)." So what do you think? Should an agency that competitively established multiple BPAs simply extend the BPA's established in the competition if the BPA's had a set "performance period" which has ended/expired and neither the BPA(s), nor the solicitation, carry or carried language, options or otherwise, that the BPA's would be extended beyond the stated performance period? The past WIFCON discussion noted above -
  13. You have probably disappeared based on Vern's most recent post but the continuing thread had me come up with this question. Was the issuance of the 3 BPA's done competitively, or in other words, synposized in SAM.gov? If so and the wording in the BPA's carried the term "period of performance" then I as one commenter am concerned that a simple extension of the BPA's, absent some kind of wording in the original solicitation and BPA itself, would still demand documentation that they still represent maximum practiable competition otherwise the BPA's could be at odds with the guiding principles of FAR part 13 and case law. To be clear I am not saying the documentation is to be a J&A but a determination, similiar to that as suggested in FAR 13.106-1(b). Now I understand that my view may be not in alignment with reality where the concerned contractors surely want the work and as it goes in the Federal government a CO or other authorized official can simply extend the BPA's and nobody would be concerned. Or in other words noboby is going to protest the extensions. This goes along with my crazy thoughts as I read the ongoing thread that if in fact the establishment BPA's was done competitively why did the agency do that in the first place? Seek competition? And if so one would seem to think at least some documentation as to why after 5 years the establishment of the BPA's with the same 3 firms still represents maximum practicable competition.
  14. But a BPA can be considered complete - "FAR 13.303-7 - An individual BPA is considered complete when the purchases under it equal its total dollar limitation, if any, or when its stated time period expires."
  15. "Extend" the BPA's does not in my view seem to be the appropriate terminology. By my read of FAR 13.303-7 you have 3 completed BPA's ("stated time period has expired') therefore you are intending to issue 3 new BPA's. Continuing my line of thought that they would be new BPA's the question becomes whether simply issuing the 3 new BPA's to the same three vendors is accomplishing maxiable practicable competition for not only issuing the 3 new BPA's and then in use of the BPA's to issue calls or orders against them. The basis for my thoughts is a GAO decision in Envirosolve LLC, B-294974.4, June 8, 2005. Go to this WIFCON website (link follows) and read the synopsis of the case where you can find the link to the full GAO decision. https://www.wifcon.com/pd13_303.htm In the end you may be on the right track but there are considerations that you need to make that while documentation may not be a J&A one would want to document the rational of why maximum practicable competition has been met by simply returning to the same 3 contractors with the BPA's. Documentation that most certainly would address the considerations of FAR 13.104. PS - jio20874 posted as I was completing my thoughts. Even in consdieration of his comments I have decided to leave mine exactly as I wrote them initially.
  16. Much to learn as the world of Federal acquisition continues its every evolving landscape. A landscape that has an OTA holder supporting acquisitions to accomplish a procurement via traditional FAR processes and getting paid to do so. The .com website is the giveaway. I am not a naysayer just something to watch as another effort of hiring a contractor to find a contractor to complete a contract gets its legs. Is it really new or just another twist?
  17. You may find nuggets in this discussion in WIFCON to help you further add substance to comments made to your queston above.
  18. You may find this WIFCON webpage reference useful for the future. A read of "Services Rendered Beyond the Fiscal Year" will help verify Vel's response. https://www.wifcon.com/bonafidecontents.htm
  19. Sorry but I can not. You have presented a position that is not supported by facts. My intent here is to provide factual history for the Forum. I have already pointed out in a previous post the first issue of the FAR in 1983 carried FAR 8.406 regarding BPA's. FAR 8.406 was then removed from the FAR via Federal Acquisition Circular (FAC) No. 90-21 (October 25, 1994). BPA reference then reappeared in FAR subpart 8.4 via FAC 2001 25R in October of 2004. My research found the below referenced protest of 1996. In the protest the GAO opined the following (emphasis added) absent the FAR 8.406 language. "GSA, commenting on this matter at our request, acknowledges that FAC No. 90-21 deleted FAR Sec. 8.406 from the FAR; however, it takes the position that ordering agencies may enter into BPAs with FSS contractors pursuant to FAR Sec. 13.202(c)(3) and clause H.5 of their FSS contracts. FAR Sec. 13.202(c)(3) provides that "BPAs may be established with Federal Supply Schedule contractors, if not inconsistent with the terms of the applicable schedule contract" and, as previously indicated, section H.5 of WIN's and IDI's schedule contracts expressly authorizes the contractor to enter into a BPA with an ordering agency. [9] Purchases under BPAs with FSS contractors are not limited to $100,000. FAR Sec. 13.204(b). " https://www.gao.gov/products/b-274626%2Cb-274626.2 I would bet, admittedly without further research that I am not going to do, that language was added back into the FAR regarding GSA FSS BPA's in 2001 in part due to the protest I have referenced. While your think otherwise the factual history supports a nexus of GSA FSS BPA's to FAR part 13. I would add that IDIQ contracts and their related task/delivery orders are not charge accounts. This fact is clear from the guiding principles of the FAR and common contract law. As a reminder GAO has also stated that BPA's issued pursuant to a GSA FSS are not contracts, yet task/delivery orders are. So if a BPA is not a contract under a GSA FSS what are GSA FSS BPA's but charge accounts where a call placed against a GSA FSS BPA must be confirmed by a call/order (task/deliver order). I will agree that it really does not matter as procuring agencies, and GSA in managing the FSS program, will do anything they want. And while agencies and GSA think it makes sense to utlize BPA's, as evidenced by the protest in the original post to this thread it does not, and that is my view.
  20. Thanks for the history but I am not convinced. I have reviewed the Federal Register (Volume 48, No. 182 dated 9/19/1983) which was the issuance of the Federal Acquisition Regulations where on page 42166 at FAR 13.203-1(f) provided the following wording which is essentially as it remains today. "(f) BPA’s may also be established with Federal Supply Schedule contractors (see Subpart 8.4) and ADTS Schedule contractors (see Part 39), if not inconsistent with the terms of the applicable schedule contract." Noted FAR 13.201 in the 1983 FR noted above did use the term "charge account". More interestingly FAR 8.406 addressed BPA's for ordering from Federal Supply Schedules. The wording from 8.406 is as shown below and I have added the emphasis. "8.406 Blanket purchase agreements. Ordering offices should consider using a Blanket Purchase Agreement (BPA) with schedule contractors to reduce the number of orders and billing and payment documents required for repetitive orders. When the schedule provides for quantity discounts, considerable savings may be effected by establishing a BPA for items for which there is a foreseeable demand. Ordering offices shall comply with Subpart 13.2 and the schedule when establishing a BPA." I still conclude that it was not GSA who chose the same term but the drafters of the FAR. Again placing the wording in FAR Part 13 so that FAR subpart 8.4 could allow for BPA's. Along the way, and I have admittedly not reserached the FAR yet the current 8.405-3 regarding BPA's has greatly expanded the GSA FSS use of BPA's. My further research was prompted not only by your reference to history but by my own recollection, admittedly very foggy, that I may have written a BPA against a GSA FSS for IBM Selectric Typewriters back in the stubby pencil days. As I noted in my previous post the now explosion of BPA's to establish charge accounts way beyond what might be viewed as a simplified acquisition procedure does not make sense. So yes I shake my head in wonder because I was around years ago. I realize the Federal government is a huge procurer of all kinds of stuff but establishing a "charge account" in any form where millions upon millions of dollars of stuff can be acquired, again, does not make sense. For reference - https://www.govinfo.gov/content/pkg/FR-1983-09-19/pdf/FR-1983-09-19.pdf#page=1
  21. FAR subparts 17.5 thought 17.6 might be of an assist in answering your question.
  22. It seems the allowance to use BPAs for GSA FSS is derived from FAR subpart 13.303-2(3) and as such a simplified acquisition method. The CBP effort for establishing the BPA's was not simplified.
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