C Culham

Well as the thread has departed from the original post I might as well respond to @Don Mansfield lastest comment on business class travel. 

I find it interesting that the lead sentence of the regualtion (Title 41 CFR 301-10.103) regarding other than coach applies  a "prudent person" standard yet the following paragraphs to the sentence do not support such a standard.   Afterall I as a prudent person in doing personal business do consider comfort on any flight I take.  Comfort is not allowed in bureaucratic terms it seems.   

"301-10.103 When may I use other than coach class accommodations?

You are required to exercise the same care in incurring expenses that a prudent person would exercise if traveling on personal business when making official travel arrangements. ..."

@joel hoffman  @here_2_help 

I had this additional thought.  It probably has no nexus to travel, and I do not want to open another can of worms, so I will offer my thought as quickly and concisely as possible.

Application of Service Contract Act.  Again no conncection to travel but it is interesting to me that those that calibrate equipment can be exempted from SCA.  FAR 52.222-51.  Same basis of thought as expressed by here-2-help or just some labor thing that has made its way into the USDOL regulation, I did not research so who knows.  Yet extending the line of thinking to travel if business travel is a market or catalog thing could not the ideal of 52.222-51 help justify as to why, if I was still a CO, a contractor's travel policies, especially if a stipulated catalog price or a confirmed market price , help support the business travel.   

Dumb comparison or not it would not stop me from putting this conclusion in a fair and reasonable price determination and then leave it to higher up legal or court of opinion to decide it it was dumb or not.

33 minutes ago, joel hoffman said:

It generally means  “despite” prescriptions (or “even if” prescribed) elsewhere, if it isn’t “required in” Part 12, then the KO isn’t required to include it.

It also means that if it isnt “indirectly referenced in” Part 12, then the KO  isn’t required to include it.

I am not sure if you agree, or any one else for that matter but here is my view.   The notwithstanding language also relates to the discussion in FAR part 12 with regard to "tailoring" or in otherwords the indirectly referenced.   Specifically FAR 12.302(c) and the tailoring of a clause that could be done or should not be done.

( I hope I am making sense!)  

1 hour ago, formerfed said:

What really leads to excellence is market research - understanding the marketplace, knowing what differentiates top providers from the others, finding out from experiences of others what approaches work and what doesn’t,  and especially gathering and applying lessons learned from other buying organizations.

The discussion in this thread began with an article that provided observations and conclusions regarding use of acquisition processes for a commercial product and services.  I already raised wonder about market research which in truth appears to be unknown.  The thread then morphed to debate over training regarding commercial acquisition.   Your revisit to market research as a premise on your part is but one element that could be an added observation and/or conclusion.  In truth I see it as further support that training helps breed excellence not the single factor that creates the excellence of a commercial acquisition.

22 minutes ago, Voyager said:

prejudge.

Wouldn't it be post judge?

You are changing the landscape.  I never argued perfection.  I would argue training would support tailoring, use of UCF, etc.  No procurement is perfect. Training leads to excellence.

1 hour ago, Voyager said:

Okay

Well I will upack just a little for you.    Commercial Item yet use of the Uniform Contract Format.  I think FAR 12.303 has a "shall" in it.  SF-26?   And both 52.215-1 and 52.212-1 in the solicitation the latter not tailored.  I stopped there...... 

1 hour ago, Voyager said:

ceasefire of our academic debate

Agreed as my case is made and I will leave it at that.

13 hours ago, FLContracts said:

As a young contract specialis

Not mentioned in your post is FAR subpart 44.2 and its applicability to the procurement.  If applicable have you considered the guiding principles in the subpart?

29 minutes ago, Voyager said:

The road to where we are now was paved with training materials.

Are you therefore saying they are adequate with regard to commercial product or service?  If yes my view differs and is supported by the lack of a specific training regarding FAR part 12.

To reinforce, yours and FormerFed's position seems to suggest everything is fine and dandy and those that have been trained are not applying professional study, intiative, experience, etc.  But it has not by specific examples offered and as such leads to my conclusion regarding training   

Remember my comment and continued comments are aimed at the "Team" not just the 1102 yet inclusive of the 1102, along with the 1105, 1101.

18 hours ago, General.Zhukov said:

What, if any, other regulations or laws must apply to travel in this scenario.  As its commercial, I'm uncertain if 31.205-46 Travel costs applies "automatically."  How about the Joint Travel Regulation?  

Using your limited facts does this FAR reference apply as the facts of the procurement are peeled away?  FAR 31.102.  Think price analysis.

18 hours ago, General.Zhukov said:

Let's say the tech always travels business class - and has the receipts from previous non-governmental customers to prove it - is that okay, as that's the 'commercial market practice?'

I will take a swing.   If what I will call no exception of FAR 31.102 applies to the specific instance (no cost analysis) and noting that the "Payments" paragraph of 52.212-4 inclusive of the Alt 1 can not be tailored here is my view.    By a literal read the travel as a Other Direct Cost shall be paid to the contractor at "actual cost" paragraph (i)(1)(ii)(B) and paragraph and (i)(1)(ii)(D)(1).    I see nothing that says such cost shall be in accord with FAR part 31, the JTR's etc.   My view is limited to the FAR and does not consider what an agency might supplement the FAR with.

Conclusion - The applicatioin of FAR part 31 contract cost principles depends on the facts of a fixed price commercial service instant procurement.

54 minutes ago, formerfed said:

avoid protests.

Interesting that in a different discussion thread in Forum about the MITRE "Contract Protest Diagnostic Tool" sustained protests regarding "customary commercial practices" for FAR part 12 acquisitions is a identified risk area.  The other side of the "avoid" coin!

Probably neither here nor there yet offered in support of Vern's comments.   Not that he needs my support it is just my way of saying I agree!!!!!!!!

After reading todays additions to this thread I pulled up SAM.gov and the very first combined synposis/solicitation of a commercial product/service I encountered.   A professed simplified acquisition that I concluded was not in excess of the SAT (guess on my part but wording of the solicitation made it seem so).   With intent FAR 52.212-1 was tailored to change "offer" to "quote" but FAR 52.212-4 was included by reference only no tailoring.  Source selection process was stated as "low price technically acceptable" where a techinical proposal and a separate price proposal were requested.  

I left SAM.gov imagining what I would find if I kept looking.

4 hours ago, ArrieS said:

my PEER

You may want to invite your peer to do some reading here...

https://www.wifcon.com/pd12_302.htm

1 hour ago, Sam101 said:

I would have thought that this would count as a clarification,

By my read...

Not a clarification because it could/would remove the offeror from the competition completely.  A little different than asking did you mean to dot this "i" where the offeror would not be removed if it was not dotted.

Material revision

I guess by my read of this thread it has landed on a comment made in the Forum discussion thread referenced in the opening post.   It depends.  I did some research and landed on this decision, it might recomplicate the thread or help I will leave that to each.   I do find the decision of interest in that it does put "material revision" on the table as applicable to both quotes and proposals and that allowing a material revision is discussion. 

https://www.gao.gov/products/b-401726%2Cb-401726.2

2 hours ago, Sam101 said:

"the rules regarding vendor communications described in FAR Part 15.3 shall not apply to this acquisition."

But do you find it salient that the solicitation was called an "RFP"?

I will do some searching.

My opinion broken down as best I can.

3 hours ago, Andrea S said:

The authority would be FAR 19.808-1. 

Along with FAR 6.204, FAR 6.302-5 and the DoD Partnership Agreement SBA on the 8(a) Program is still applicable.

3 hours ago, Andrea S said:

but none of them document this initial interaction with the 8(a) firm.

I would agree that IF the process you have questioned was a part of the process not documenting is not prudent.  But that does not mean the process was not prudent.

4 hours ago, Andrea S said:

Several of them were done at the end of the fiscal year, when there were time constraints.

In part why the 8(a) program is a valuable tool in the tool box.

4 hours ago, Andrea S said:

Honestly, I question the intention in sending the contractor a draft of the specification.

Is there a prohibition stated in the FAR references you have provided along with those I have that prevents this specifically for 8(a)?  An agency in a what I will call a competitive atmosphere can post a draft solicitation in SAM.gov where comments are solicited can not the same be done with a draft solicitation in a sole source atmosphere?   References to consider FAR 1.102(d) and https://dodprocurementtoolbox.com/cms/sites/default/files/resources/2021-07/SOP Publicizing Notices July 2021 (2) (4).pdf  And in the end does the government have to accept any changes to "draft" based on comments received or just leave everything as is?

IN my opinion I see nothing "wrong" the process you describe nor any specific regulation that prevents it.  Probably not even policy.  8(a) sole source affords wide latitude.   In providing my comments I could for see telling the 8(a) that  if negotiations fall through and requirement is removed from the 8(a) program and converted to a competitive process that they cannot compete for it but I have no specific reference to support this view.   It just seems to make good business sense.

I have a opinion based on experience but before I offer it.

As you are using a statutory authority to do sole source why do you see a problem with the "usual"?

@Sam101

This might help.

First read FAR 2.101 (a) & (b).

The read 52.215-1 and watch for "discussions".

11 hours ago, Vern Edwards said:

select Company A.

1 hour ago, Vern Edwards said:

She might say

The example leaves out alot of  details that I would want in formulating my CO actions for a specific instant procurement yet based on the general details provided in the example as the CO I would not have selected Company A so I would not have been a protest situation in the first place.  My conclusion is based on the information provided that seems to support C  must have been doing ok work based on the quantity C had been awarded via an order or orders so their staff and performance was okay as well.   

If the program area was still bent on only having A I would walk them through the knot hole of a separte GSA FSS competition outside the BPA, which again does not guarantee A, or as a separate GSA FSS Limited Source order (FAR 8.405-6) outside of the BPA if the program area could support it.   No doubt there is a risk witih regard to a protest for the latter even if I thought the Limited Source Justification was bullet proof.  Oh well.

All considered I will simply borrow, in part, from another post from @ji20874  - If a "ceiling/estimate" is stated it would be only fair to respect it.   As to "estimate" versus "ceiling" I am concluding that the terms mean the same thing.   Afterall FAR 8.405-3(a)(iii) is comfortable in using "estimate".

3 hours ago, Vern Edwards said:

So, if a BPA has a ceiling, can an agency place orders under the BPA in excess of that ceiling?

Could the contractor rightfully refuse to accept such an order?

Might a third party successfully protest such an order?

Or, to put it more broadly, would an FSS BPA ceiling limit the government's ordering rights in any way?

My view -

For a BPA issued prusuant to FAR subpart 8.4, sure orders could be placed.  One could imagine a possible protest if the agency did not fulfill its annual obligation to review the BPA.  Reference - FAR 8.405-3(e)  Review of BPAs. (1) The ordering activity contracting officer shall review the BPA and determine in writing, at least once a year (e.g., at option exercise), whether- (i) The schedule contract, upon which the BPA was established, is still in effect; (ii) The BPA still represents the best value (see 8.404(d)); and(iii) Estimated quantities/amounts have been exceeded and additional price reductions can be obtained. (2) The determination shall be included in the BPA file documentation.   Sustainable protest? Who knows. 

Refusal would depend on the wording of the BPA.  Such as is there a expressed unilateral right of the government to issue orders stated in the BPA and what are the sideboards to such right.  

Rights would be fact specific to the guiding principles of the FAR, the agency's actions or lack thereof, and the wording of the BPA itself.   The magic words of Federal contracting - It Depends.   

As to the 20% I have never heard of it, might be fact specific to a particular protest and I find nothing in the FAR that elludes to the caveat. 

2 hours ago, cdhames said:

My question is, is it your view that whatever purchase constraint the CO chooses to set the purchase limit at (within the prescribed FAR guidance), is that the limit that the a call can be placed at, without executing a Standard Form 1155 or 1449?  Or am I interpreting your comment wrong?

Your interpretation is off a bit.   The form for the order will be dictated by other policy or regulation that might include that from a "system"  and/or fiscal side.   So something might be dictated such as a 1155, 1449 or something else.  Example go here, look at the 101 references to "order" and see how orders are placed for an Incident Blanket Purchase Agreement.   https://sam.gov/opp/c1c21f2570164d07a745a8be01b8173a/view 

Posed another way is it not just like any other procurement where you,  as a CO, can not use any form you want to accomplish a procurement/payment you must use something that is prescribed or implemented by a "system" by your agency or department?

@CldGrl22 ji20874 has sent you in the right direction.  Just a couple more thoughts on what you might want to prepare yourself for what you may encounter.  Based on experience.

HR may want to send you in the direction of a temporary detail depending on the anticipated length of effort or they may just say do it.  Either way the CO should consider the possibility of a non-disclosure/conflict of interest agreement or certification with the individual.   If you or your agency has never the encountered the need for such an agreemetn search the internet you will find examples.   I do know that the General Services Administration suggests one.   See GSA's FAR Supplerment GSAM 515-305.

Easy with usual government bureacracy attached especially if plowing ground never plowed before.

1 hour ago, Don Mansfield said:

Wouldn't there need to be consideration?

Yes...but then we get into details.

Many it appeared.

Mutual agreement of both parties?   After all is not a contract a living document and if something is not working that affects one party enough that both parties agree we need to do something different to make the project a success can not it be done?     

To be clear with regard to this particular thread I am not suggesting just putting a bunch of money into a contractors pocket I am taking about reasonable adjustment to the contract because it makes sense - good faith.   And of note good faith may suggest that the contractor should be as aware of reimbursement for taxes as the government is!  Anyone can read the FAR principles!