C Culham

As I follow this thread I have an additional thought. I know I have provided general information about CICA and AbilityOne then I had this thought of recollection. Essentially AbilityOne has exclusive authority with regard to their program. There are very limited circumstances when GAO has stated they do have authority with regard to a protest and that is when an agency is procuring products and/or services properly or improperly from the program. In the competitive market a matter of scope is usually a concern with regard to risk of protest to GAO regarding adding the work. Going out on a limb with regard to the limited facts, if AbilityOne and their contractor believe that the work is okay to add then it probably is. As I considered this additional thought I re-familiarized myself with the FAR. I found this citation..... FAR 8.712 Specification changes. (c) For services, the contracting activity shall notify the AbilityOne participating nonprofit agency and central nonprofit agency concerned at least 90 days prior to the date that any changes in the scope of work or other conditions will be required. It is my view that the 90 day period gives AbilityOne the time to consider, and if agreed to, include the intended work within program acceptance parameters. Or otherwise determine it is okay to add the work as already allowed by the program parameters. All said, and inclusive of my comments made in this thread, I think I would be posing the question, noting that I think you have indicated that you are a COR, to the CO who one would hope is following the guiding principles of the FAR with regard to the AbilityOne program for a conclusive determination as to what is proper with regard to the instant procurement.

I would be a little more subtle with the statement. Any changes yes within the side boards of AbilityOne and not the general rules applied to competitive procurements.

Directly to this thought any use of a certain percentage with regard to scope is a myth. Generally scope has many elements that are looked at including the material difference between the modification and the original procurement, and any changes in the type of work, performance period, and costs between the contract and as modified. Also did the original contract anticipate the type of change being considered. Also, admittedly without reference, since the procurement is with regard to Ability One I do not think the matter of scope is an issue. Why? Ability One procurements are exempt from the Competition in Contracting Act. I was putting my post together as others including yourself posted further. Ability One is different so as a COR remember changes, etc. are just a little different than your, what I will phrase, regular contracts. Best I can do with the limited information.

Depends. I agree with Vern but the actual facts will dictate. Reference FAR 1.603-2. And this...

Lost art, dumb FAR guiding principles that lead to the demise of a TOC. Lets have a UCF that facilitates a TOC, no wait you don't have to for construction and A-E (services but wait not so in the FAR), and then comes along commercial item and the 1449, no UCF and therefore a TOC. And yes even the electronic systems designed not to facilitate the acquisition process but the accounting process. The overriding ideal of the FAR was to have a consistent approach to Federal government contracts in form to make it easier for everyone to easily pick up a solicitation and resulting contract document and turn to an area to find something. In the 38 years since innovation, ingenuity, my CO practice and just plain poor practice have kicked the ideal to the curb.

Agreed. With more facts it might be an option. It just depends.

These facts raise another possible issue - unauthorized commitment. My quick view is I wonder if the HCA would direct that the commitment be cancelled or seek agency head approval of the justification from the Head of Agency. I had a similar experience back in the day where the HCA lacked the authority for approval and whole matter landed on the desk of the Head of Agency for ratification.

The 30,000 foot view. Possibly not even regulation but the statutes that are catalyst to the regulation. If all other thoughts researched lead to a view of violation of regulation and therefore the statute take a look at FAR 6.101 for the references to US Code.

In retrospect, as the IHS CO for the solicitation that the GAO decision I specifically posted is with regard to and based on the whole of the process in dealing with the protest and its subsequent ruling and wording my approach would have been to make the lab certification a special standard of responsibility. I too understand COC and have considered same in making this statement with acknowledgement that the instant solicitation that the protest discusses was a full and open sealed bid. A special standard in my view gives something very specific to base a determination of responsibility on leaving SBA little wiggle room. For the specific matter in this thread I believe the FAR gives the latitude to make both the certificate and the matter of experience a special standard (with emphasis) bearing...... 9.104-2 (a) When it is necessary for a particular acquisition or class of acquisitions, the contracting officer shall develop, with the assistance of appropriate specialists, special standards of responsibility. Special standards may be particularly desirable when experience has demonstrated that unusual expertise or specialized facilities are needed for adequate contract performance. The special standards shall be set forth in the solicitation (and so identified) and shall apply to all offerors. I think the last emphasis is key. Shall apply to all is important in the scheme of things as general standards by their very nature and application do not necessary apply to "all". Hope I have helped no matter the approach you and your team decide to take. . Best of luck moving forward.

So as the discussion goes there are three alternatives, all three of which could be used. So in truth it depends and a CO makes the choice based on the specifics of their agency, their particular contract need, etc. To this point some agencies have manuals, policies and more that dictate certain stuff but unless that stuff is incorporated into a contract specifically then there might be an issue about what or what does not really apply to a contract. In the world of "it depends" if an agency were like FHWA one would have the ability to address the matter of a certified blaster via its required and incorporated specifications (see Section 205 in reference below) and/or address as responsibility and require satisfaction post contract award but if an agency has no such standard specification then maybe the shoe of special responsibility requirement does fit and needing it to fit "now" is a sound approach. https://highways.dot.gov/sites/fhwa.dot.gov/files/docs/federal-lands/specs/12851/fp14.pdf

Do not research too hard. In the end the contract language probably rules and as acknowledged in Forum in many posts the concept of IDIQ has been distorted beyond its original intent. My contention probably would not get much traction in some kind of administrative protest or dispute. I just raised the idea for the heck of it. It is interesting to me that as one member of the Indefinite Delivery Contract family, the IDIQ gets to have orders, quotes and even probably proposals but the other two do not. They allow a Government unilateral right to "order" and that is it.

Please read the GAO decision I posted previously. Also please read the document I referenced in my most recent post especially the footnotes related to special responsibility. The one reference I provided and those in the footnotes are with regard to sealed bids. A contractor must be responsible to be awarded at the lowest price.

Yes...per my earlier post....if you read the decision a special standard of responsibility was required - a certification which the BIDDER (it was a sealed bid) did not provide at bid and could not provide in a reasonable time prior to award was found non-responsible and the GAO agreed in the determination. there is this footnote in the decision - While not identified in the IFB as a special standard of responsibility, the contractor was required by the IFB to begin performance on the date of award with an approved laboratory. All parties have treated this requirement as a condition that had to be satisfied to be eligible for award; we adopt this view. So my thoughts - Place in the IFB a "Special standard of responsibility" Award will only be made to a bidder that has a certified (by what entity) blaster with 5 years of experience. Evidence of this special standard must be provided with bid. Failure to provide evidence of the blaster certification/experience at bid opening will be a basis for a non-responsibility determination. In your Special Contract Requirements put in something to the effect that -Failure to retain the certified blaster offered in the contractors bid and that was the basis for award shall be retained by the contractor through completion of all blasting required by the contract. Failure to meet this special contract requirement shall be basis for termination for default of the contract. Document in your solicitation/contract file WHY the special responsibility standard is necessary - borrowing from the FAR use language that - experience has demonstrated that unusual expertise is needed for adequate and safe contract performance. And for a read on responsibility and special responsibility that also provides some valuable footnotes with regard to special standards take a look here - https://sgp.fas.org/crs/misc/R40633.pdf

@dsmith101abn Quick thought that might relate. Dated decision but it may lead you in the right direction. https://www.gao.gov/products/b-228402

@Supes Maybe a help or maybe not but a read of some GAO decisions might help you align your thoughts on what you might or might not do. Go to this link and scroll down to the topic area and give a read.... http://www.wifcon.com/pdbyfar.htm

I would suggest this is not in accord with regulation unless the IDIQ was issued under a deviation to the FAR. FAR 16.504(a)(1) "...The contract must require the Government to order and the contractor to furnish at least a stated minimum quantity of supplies or services. In addition, if ordered, the contractor must furnish any additional quantities, not to exceed the stated maximum.)...

I understood this to be the case all along. I am a little perplexed as to what the clarification means no matter. The real whys and discussion was focused on a BPA's via GSA-FSS, whether multi-agency or single agency.

To your implication BPA versus GSA-FSS BPA. I am not talking about the former. I was keeping on topic of sorts as I was talking a product (commodity) and not a service. When it comes to services, well its even worse. I remember the adage from my younger days that a BPA was like setting up an credit account, it no longer applies. I am with Vern.

Well for a commodity which I read as a product not a service it just seems the competition in a competition is a fantasy when establishing a BPA. The quote request for establishing the BPA - Hey contractors give me your best discounts and I will consider awarding a BPA to you. (After all GSA asserts their contractors are all technically acceptable and the prices are fair and reasonable so I am thinking LPTA when I make this statement.) Now I have 2 or more BPA's and issue another quote - Hey contractors give me your best, best, best discounts and I will award an order to you. Seems like adding an extra step. Even if I have very occurring needs, and I am competing a commodity solely on price, couldn't I just put the need on e-buy every month or whatever and take the best price. But I am old school and it seems GSA-FSS has gotten as confusing as IDIQs.

Hmmm - The order is the BPA is it not? I guess it is how you read it. I will not argue but my read was that an order was different than a BPA but I would agree that probably in reality entities probably seek not only a discount when the award the order for the BPA but when they place an order under the BPA. 8.405-4 Price reductions. Ordering activities may request a price reduction at any time before placing an order, establishing a BPA, or in conjunction with the annual BPA review. However, the ordering activity shall seek a price reduction when the order or BPA exceeds the simplified acquisition threshold. Schedule contractors are not required to pass on to all schedule users a price reduction extended only to an individual ordering activity for a specific order or BPA.

Again read FAR 8.405-4 Edit - If your agency supplement is silent the FAR applies.

Interesting. So understanding that price reductions on GSA-BPA pricing can not be sought at the order level (FAR 8.405-4) the tiered pricing agreed to at BPA award will dictate. So Vendor A's tiered pricing may make their overall price for an order better than B in one scenario of a combination of commodities but not in another. And I suppose one of the vendors may not want to quote in certain instances as well (doesn't have the amount of commodities at a certain time to meet the need). I am probably making it too simple but if the anticipated need is not over $100M (and considering this - "depending on quantities the vendors will compete" it would seem there might be a pretty good case to just award one BPA - As scope and complexity do not seem over the top (commodities and orders at less that the SAT seem to be indicated otherwise orders must be competed among A & B). The comparison of ongoing prices may not out weigh the administrative costs of managing and utilizing two BPA's and it would seem technical qualifications of the vendors is not in the mix. Your call but my thoughts as I continue to read the thread.

GSA prefers it could be the reason.

I have added emphasis to your statement ContractSpecialistTJohn as FAR 8.405-3 is your reference. I might add that it makes no mention of LPTA or any such process but provides the underpinnings for the process to be used. I suggest you re-read, think and apply the principles expressed in the FAR. I do not question Vern's summary view of what FAR 8.405-3 says but there is a little more to it depending on the anticipated use of the multiple award.

Throughout this thread I have thought about this position so I wonder. Admittedly I am detracting from the original post and question which I believe has been answered even by me. So humor me and lets detract as I do believe there is some connection to the original post. Could the FAR part 12 requirement that a commercial item contract be firm-fixed price or T&M be otherwise via a deviation? I will admit I have only done a quick read but I did not find where the requirement for FFP is contained in statute (USC) but rather only in regulation. So I do market research and determine that for a particular need the market place is rampant with contracts that are cost reimbursable, why not my now Federal commercial item contract via deviation? " Deviation means any one or combination of the following: (a) The issuance or use of a policy, procedure, solicitation provision (see definition in 2.101), contract clause (see definition in 2.101), method, or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is inconsistent with the FAR."