C Culham

8 hours ago, Kim H said:

Their argument is that it will be easier to move money around if needed.

While it can be done this reasoning for selection of contract type, inclusive of combining contract types, is flawed.  The best I can do is point to FAR subpart 16.104.

3 hours ago, Witty_Username said:

So, a requirements contract? Otherwise we'll end up in a discussion of consideration for what could be a credit card buy...

Categorize it as you may. 

My response is based on the fact that the "customer" wants something that binds by my read.  Seems that leaves out credit card as its pay now.  Also it is not a "recurring" need so requirements does not quite fit.   By my personal experience in the commercial marketplace I get a commitment, yes even in writing, that a service vendor will do something on a specific date...aka letter of commitment for lack of a better term on my part.  So through market research (experience) it can be done and if the bus company will do it then it is a commercial acquisition based on commercial terms and conditions.  Exactly why FAR part 12 was invented.  Do it like I do it everyday with the commercial market place.  And it's simple...aka simplified acquisition... using FAR part 12.

3 hours ago, NotEnoughMoney said:

They do, but I think they're hoping for the best at this point. And there is a lot of cross chatter at our own office about what we can and can't mod on a BPA, with legal, policy, and multiple KOs all saying different things. It's a pretty big mess. 

Sounds complicated. 

In my mind I dummied it down.  I would have canvassed the marketplace asking if as a commercial service they would sign a binding letter of commitment with government to provide the service if and when it occurred.  Now mind you I made the term up but so what.  When I found a willing company I would have done single source to that company with a SF1449 using single source authority of FAR part 13.  Attached the letter and got the contractor to formally accept it.  And then if timed rolled on I would of simply cancelled the order and rewrote until the untimely passing.

As to the BPA just renew it you are in too deep now.  Or if you think that's too risky do as I suggest above, yet get competition with the vendors of which you speak and go with price only and agreement to sign the letter of commitment as your selection criteria.

Good luck!

6 hours ago, NotEnoughMoney said:

I think that's the best way to do this, but the customer wants to have a bus ready to go the second this person dies to get them down to whatever location they need to go. 

Does your customer understand that the BPA holder can reject the call against the BPA?

3 hours ago, bob7947 said:

The only way that laws can be streamlined and abolished is by Congress itself. 

I understand.  Yet committees equals staffers by my experience.

7 minutes ago, joel hoffman said:

their staffers

9 minutes ago, joel hoffman said:

single issue advocacy

Combined they are in my view the biggest problem by my experience so I am not sure "committes" will be the fix.   Why not let the career field itself guide the fix?

1 hour ago, bob7947 said:

who knows what else

Executive Orders. Usually not significat but all the same in the mix too.

18 hours ago, NotEnoughMoney said:

The BPA was solicited, and the master agreement has a one-year ordering period. The person was expected to pass away within that year, but they didn't. Now we have to extend the BPA master. 

And really a one time event?  

Vern has done a great job of supporting a dumb statement by DoDIG.  And in my view a DFARS definition that seems inconsistent with a full read of the FAR  and DFARS as well.

Example per DFARS 217.7401 a UCA can not be a change order.  Yet a UCA can be a letter contract?  The definition of UCA should be be changed to Undefinitized Action.

2 hours ago, Vern Edwards said:

contractual agreements

From the Congressional Research document he referenced.

2 hours ago, FrankJon said:

Can you provide a citation to this definition? This doesn't match any definition I've found.

I crafted that response myself, aka my thought.  

1 hour ago, formerfed said:

It’s a contract and not an “arrangement” whatever that is

Ok not good.   I would argue not a "essentially" even.  I could, could I not in negotiating the UCA come to agreement that something is reasonable, allowable and allowable reach agreement with the contractor that the something will not be in the definitized contract or modification.

Following Vern's references I will use agreement I guess.

Geez everyone is not the language of the FAR and its supplements specific?   A UCA is not essentially anything it has specific definition in the DFARS.  My thought DoDIG and GAO erred in their language.  A UCA is an arrangement that provides for payment of allowable incurred costs and profit/fee to the extent negotiated and agreed to by the parties in the definitized action.  The definitized action is either a type of contract allowed by the FAR or a modification to a contract.

That's it!

20 hours ago, CaptJax said:

Is there any known prohibition in editing the standard form language on the SF 1442 or SF 1449 for that matter?  Occasionally I will get comments from a legal review stating the font type is inconsistent and it needs to be Arial size 12 to be in accordance with the Army Writing Guide.  Suppose additional or altered language was desired in Block 11 such as See 52.211-12 for Liquid Damages or 52.211-10 commencement, prosecution or work; is it permissible to change the language? and is there a specific rule one could point to say these are set in stone templates? 

I direct your attention to FAR part 53 and especially FAR subpart 53.1 in total.  The imperative, with exceptions, of the entirety of subpart 53.1 speaks for itself by my read.  

3 minutes ago, here_2_help said:

Follow-up question for my own edification.

If neither entity had an existing Schedule contract and wanted to propose one, could the parent entity create LCAT rates that were based on an expected division of work between the parent and subsidiary entity, or must the parent entity propose LCAT rates that are based solely on its own fully burdened labor rates?

Now I could be wrong but that sounds like a joint venture?   And if not then can not the entity that would hold the contract as a prime figure out how their rates are created inclusive of any subcontract agreement they have and that I will call is exclusive for the GSA FSS MAS work?   Bottomline it would seem that creating rates for the parent GSA FSS MAS is no different that creating rates for any contract.

I did find this ...................https://www.gsa.gov/system/files/Final JV Industry FAQs 071923.pdf

12 minutes ago, EZK81 said:

But this does not preclude a price being unrealistic if it is too steeply discounted, correct? 

Agreed.   

9 minutes ago, formerfed said:

Assuming the parent company has a valid GSA Schedule contract, they must propose their own fixed price hourly rates matching their contractual LCATs.

With a possible discount, correct?

8 hours ago, here_2_help said:

I am not particularly knowledgeable about GSA Schedule contracting.

I am to a degree but the question posed by the OP did raise my eyebrows for the very reasons you have pointed out.   I followed as expecting a response by someone who is currently handling GSA FSS orders.  With your response let me add my thoughts.  

1.   I do not think there would be any mapping of rates.   I would offer instead that either the prime for the effort rates would apply if no CTA or if they did a Contracting Teaming Arrangement (CTA) then either might apply but not a mapped rate.  The CTA would be in the GSA sense not that of FAR part 9.  

2. The prime rates apply and that is what would be billed to the government if no CTA.  How a prime and sub work it out below the prime level that is their business.

3.  Yes (see number 1).

My responses are based on this document.  See the section regarding CTA's.  https://www.gsa.gov/system/files/MAS Desk Reference Guide - Winter 19.pdf

Here is a excerpt from the section regarding CTA's regarding CTAs and a subcontract.   It does not come out in matrix form as in the Guide but I think it will peak interest to read the reference.    

"Contractor Team Arrangement (CTA) Prime/Sub Arrangement Each team member must have a Schedule contract. Only the prime contractor must have a Schedule contract. Each team member is responsible for duties addressed in the CTA document. These duties fall within the scope of their individual Schedule contracts. The prime contractor cannot delegate responsibility for performance to subcontractors. The prime contractor can provide only what is on its Schedule contract; it cannot subcontract to offer items/services for which it does not hold a Schedule contract. Each team member has privity of contract with the government and can interact directly with the government. Only the prime contractor has privity of contract with the government and can interact with the government. The prime contractor is responsible for its subcontracting activities. (Ordering activities are permitted to specify in the RFQ that the use of subcontractors requires prior approval by the ordering activities.) The ordering activity is invoiced at each team member’s unit prices or hourly rates as agreed in the task or delivery order or Schedule BPA. The ordering activity is invoiced in accordance with the prime contractor’s Schedule contract"

2 hours ago, EZK81 said:

It does in fact say "realistic," but it is couched in terms of the Offeror's GSA Schedule.

Well dopey me.  Should have asked if this was a GSA FSS procurement.   That said the agency language does intrige me in that FAR 8.404(d) says this (emphasis added)......

(d) Pricing. Supplies offered on the schedule are listed at fixed prices. Services offered on the schedule are priced either at hourly rates, or at a fixed price for performance of a specific task (e.g., installation, maintenance, and repair). GSA has already determined the prices of supplies and fixed-price services, and rates for services offered at hourly rates, under schedule contracts to be fair and reasonable. Therefore, ordering activities are not required to make a separate determination of fair and reasonable pricing, except for a price evaluation as required by 8.405-2(d). By placing an order against a schedule contract using the procedures in 8.405, the ordering activity has concluded that the order represents the best value (as defined in FAR 2.101) and results in the lowest overall cost alternative (considering price, special features, administrative costs, etc.) to meet the Government’s needs. Although GSA has already negotiated fair and reasonable pricing, ordering activities may seek additional discounts before placing an order (see 8.405-4).

15 hours ago, formerfed said:

A major organization is currently examining LPTA procurements and what they see is a lack of COs conducting proper price realism analysis.  They think companies intentionally propose low rates to receive awards and then convince agencies later in performance to allow higher price labor categories to be added to enhance performance.   They also think government program personnel are underestimating the amount of required work including labor category positions in their planning estimates which contributes to problems.

I am concerned that studies like this will swing the pendullum even further to promoting the essay contests. 

15 hours ago, formerfed said:

They think companies intentionally propose low rates to receive awards and then convince agencies later in performance to allow higher price labor categories to be added to enhance performance.

And I wonder what  company involved in any type of contracting method does not do this same thing.  Think about it!   I am ever vigilant in my personal business for such buy in.   And with regard to Federal contract I will point to most recent discussions (and even older ones) about key personnel and the shell game involved.   Isn't proposing rates on supposed key personnel that will not be existent at contract performance a form buying in.

The issue is not Sealed Bid, LPTA and/or Tradeoff.  It is an issue of an organization supporting good faith and fair dealing by their memebership and the organizations support of improving the acquisition workforce of the Federal government.  In truth a sealed bid, LPTA, Tradeoff, and even selection of contractors pursuant to the Brooks Act can yield effective and prudent prices for contracts done right.  Price realism analysis is just a portion of the game.  And game it is!

51 minutes ago, EZK81 said:

Thank you both for your insights.

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.   

3 hours ago, EZK81 said:

Hi everyone -

Different possibly the same conclusion.

3 hours ago, EZK81 said:

1) I've never seen a contracting office provide a competitive price range on an LPTA procurement. Is this a done thing?

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!

4 hours ago, EZK81 said:

2) Are they allowed to award outside that range, once it is formally provided as an amendment to the RFQ?

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.

4 hours ago, EZK81 said:

3) If yes, how can they justify price reasonableness on a bid lower then their established competitive 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.

27 minutes ago, Jamaal Valentine said:

Within DoD,

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 -

4 hours ago, C Culham said:

I would research and conclude agency does or does not have a policy or FAR supplement regarding honorarium.

Such research could lead to a policy as @Jamaal Valentine points out.

4 hours ago, C Culham said:

Value above $250,000.

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. 

5 hours ago, Benny Lava said:

Are there FAR, DFARS, or other clauses related to this?

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."

@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.

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.

On 3/23/2024 at 2:51 PM, Retreadfed said:

What is the Logan decision?

Logan, LLC., B-294974.6, December 1, 2006