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C Culham

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Posts posted by C Culham

  1. 3 hours ago, Vern Edwards said:

    @formerfedWell, you got him to "It just depends!" That's something.

    Come on Vern, jump in the pool you will like it.   After all you hedge your bets all the time.  In truth every darn contracting question is " it depends".   When the question hits adjudication neither you or I have the last word, the courts or equal do, and for them it even depends on facts not hypotheticals.  

  2. 30 minutes ago, Vern Edwards said:

    Are you saying that because all they want is a quote, instead of a proposal, that a CO cannot establish a TEP? If so, I disagree.

     Difference of opinion. 

    For clarity what I am saying is the TEP is not required by the FAR for a quote, or even a RFP ( team yes but not panel).   Agency supplement or policy might require a panel but it is not required by the FAR.   I do agree the CO can do anything they want including establishing a TEP for any procurement, even a micro-purchase.   So what is too far?

    The very reason the Federal procurement process is in disarray is because the general rule of simplified procurements has been so distorted into being like FAR part 15 procurements.   Won't count for much but the best interest of the Government is to keep it simple, the FAR echo's this strongly. 

    I appreciate the view but as it goes I am settled in mine. 

  3. 1 minute ago, Vern Edwards said:

    @C CulhamYour point is that a TEP for lawn and sprinkler maintenance is dumb. I agree.

    But ji20874's point is that we were not asked for an opinion in that regard. We were asked what is the CO's authority to require two TEPs. That question has been answered. 

    Yeah I know but I struggle as usual as you all are saying go for it because the CO says so but is the CO doing so a proper exercise of authority?  I really question that it is.

    Could it not be that the strategy for two TEP's for a quote (commercial or not) is not in the best interests of the Government and using a TEP for a quote (commercial or not) is addressed in the FAR (regulation) as not required therefore doing so is not a permissible exercise of authority?   

    Dumb hypothetical!

  4. 20 hours ago, ji20874 said:

    We don't know whether the services are commercial or not -- that is irrelevant to the question.

    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.  

    On 6/16/2022 at 7:53 AM, IAMBATMAN said:

    The CO wants two separate Technical Evaluations Teams (TEPs), with separate members to prevent the perception of an unbiased evaluation( for example the customer picking one vendor to reduce their administrative burden), what gives the CO this authority? any FAR reference or agency supplemental guidance references? 

    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! 

  5. 5 hours ago, IAMBATMAN said:

    RFQ

     

    5 hours ago, IAMBATMAN said:

    Quoters

    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! 

  6. 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)

  7. 20 hours ago, AllyM said:

    To Culham

     

    20 hours ago, AllyM said:

    prior to solicitation, or prior to award?

    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.

    20 hours ago, AllyM said:

    Does it matter?

    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.

     

    20 hours ago, AllyM said:

    My concern is simply that the Government has initially set the estimate quite high--which will skew proposed pricing high.

    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?

    20 hours ago, AllyM said:

    Does the T&M ceiling HAVE TO BE articulated in the Solicitation? 

    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.

  8. 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."

  9. 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.

  10. 2 hours ago, NewbieFed said:

    Thus, my first set of questions is:

    1. Should Firm Fixed Price service contracts use billing based on labor hours with fixed amounts of hours per labor category?

    2. Or should FFP service contracts just have a total flat fee without regards to billing based on any type of labor category & labor hour breakdowns? Basically just a lump sum where the vendor can bill 100% of the total amount regardless of work effort as long as they complete the services.

    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.

    2 hours ago, NewbieFed said:

    My second  question is:

    Is there any way to keep this agreement as an FFP? (eg. Turn this into a lump sum somehow) Or is this more appropriate as a T&M?

    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?

    3 hours ago, NewbieFed said:

    This confused the vendor

    2 hours ago, NewbieFed said:

    One of my colleagues, a veteran CO, told me I should turn this into a T&M lump sum. But I thought lump sum only exists for FFP and not for T&M - what is correct?

     

    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!

     

  11. 1 hour ago, BrettK said:

    Thank you C. Culham

    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.

  12. 21 hours ago, Dave Sharp said:

    Can a segment of a traditional defense contractor be a non-traditional defense contractor?  

    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."

  13. 17 hours ago, BrettK said:

    Are you aware of any examples of time delays

    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

  14. 14 hours ago, formerfed said:

    I’m guessing you need a resolution with the government quickly without getting into a further contracting/legal confrontation.

     

    14 hours ago, formerfed said:

    If I were you, I would arrange for my contractor team to meet with all the key government players.

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

     

  15. I know I am revisiting some thoughts already passed on in this thread.  My intent is to be a little more direct.

    On 5/24/2022 at 7:47 AM, Freyr said:

    My understanding is that this is not permissible under a total small business set-aside because FAR 19.001 defines a concern as "Concern" includes but is not limited to an individual, partnership, corporation, joint venture, association, or cooperative. Then FAR 19.301-1(a)(i) says that the concern has to meet the size standard under the NAICS for that solicitation. Ignoring the exceptions to affiliation (like MPJVs), is my understanding wrong?

    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.

     

    On 5/24/2022 at 7:47 AM, Freyr said:

    Can a small business go out and find large businesses to team with, use their experience and qualifications, and submit a proposal for a total small business set-aside?

    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.

     

    2 hours ago, Freyr said:

    As far as qualifying for a total small business set-aside, does it matter if they're a JV or a prime/sub (other than MPJV)?

    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).   

    2 hours ago, Freyr said:

    complaints about us "allowing" MPJVs to submit proposals and requests for us to allow small businesses to form JVs and prime/sub CTAs outside of the MP program with large businesses and submit proposals which I don't believe we have the authority to do. 

    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.

  16. 8 minutes ago, joel hoffman said:

    Carl, I didn’t see anything on any of the PTAC websites that would

    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.

    14 minutes ago, joel hoffman said:

    It doesn’t seem here that the actual solution to getting paid for acceptable services provided is that difficult.

    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.

     

    17 minutes ago, joel hoffman said:

    rom the limited, yet ongoing scenario explanation thus far,

    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.

     

  17. 13 hours ago, joel hoffman said:

    Just wondering what assistance they provide for such situations arising during contract execution.

    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.

  18. 5 hours ago, joel hoffman said:

    You may need some hired assistance

    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/

  19. On 5/23/2022 at 7:12 AM, Dot said:

    However, we received a solicitation via email that doesn't look like a GSA schedule contract is required. Are there certain clauses used to show as such or is it the lack of a FAR clause(s)?  Which ones?

    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) Generalparts  13 (except 13.303-2(c)(3)), 1415, 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 8.405ordering 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.

  20. 1 hour ago, WifWaf said:

    Joel and Carl,

    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.

  21. 1 hour ago, sackanator said:

    When I issued the Delivery Order I didn't include that statement, that's would be the only thing that would make me think that it wasn't a proper rated order.  

    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.  

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