C Culham

Opinion - The CO should do what the CO feels is appropriate for each situation. While guidance may come from others, let’s say fiscal, the view expressed may be general without specific knowledge of the nuances of a specific contract. No research. But, not to my knowledge. I suspect it is based on a fiscal policy connected to some "systems" issue. 31 USC 1501 might suggest that recording a change in contract price is absolutely necessary regardless of the amount. The requirement is as you have described is a change in contract price and if a commercial item contract the change must be by mutual agreement. If non-commercial item contract the scenario you have painted is not a matter under a 52.243-XX changes clause that would allow a unilateral change. As we are talking matters under $1,000 I would say yes, give it a try especially if a commercial item contract - its their written agreement to the changed price. I will say your question is skewed as the mod would not be unilateral as you have the contractor agreeing in writing to the change. Your mod would just have one signature! I would never assume anything when it comes to contracting. After all the contract rights and remedies dictate. Sidebar: Remember the statutory limitation on a claim is 6 years. I have in similar situations waited the 6 years before taking the action. Some might argue you could do it after the appropriation has expired. I leave to the debate as to what one might want to do. I think my responses have answered this.

In reading this thread I had this thought. Doesn’t GAO define the term? In my research it seems that the matter as a statutory authority of the GAO has been litigated and possibly the case law standard is this case, Eli Lilly & Co. v. Staats. A cut and paste of the case to your internet search engine will result in a find. I say "possibly" as I stopped short in doing extensive research on the specifics raised by the OP, that being the wording difference between FAR clauses. So my overall conclusion is that looking to the FAR or common dictionary definitions is not enough and looking to case law will yield a conclusion that, well, most likely depends on the situation.

Participating in this Forum!

FAR 15.208(b)(2). Just mentioning for consideration in your discussion with legal counsel.

Yes Nope not on my watch because I lived to see the day that many things were called "pipe dreams" have become reality. I for one believe change is in the hand of us all and we can make it happen. It is a fact that has been proven that "pipe dreams" can become reality.

At the hazard of starting another big debate I can see the value of those readings as they apply to a selection of contractors for the multiple award but as they apply to application of fair opportunity (and this thread) I do not agree. Anything beyond comparing and having the ability to write up the selection decision without quantifying the tradeoff is again akin to FAR 15.3 processes.

@Guardian I waded through all the responses after my latest post a couple of days ago. Understanding that the single approach I offered as just one of possibly tens of ways did not appear to meet your needs just be aware that I posted it in response to @ji's challenge to me and to not necessarily provide a process that met your needs. In reading the rest of your posts I completely understand your thoughts and concerns. I have a gut reaction to this entire thread and it is - Everyone gets too wrapped around the axle on what the comparative process needs to be. They read the language and specific words of FAR 16.505 as if it is promoting FAR 15.3 procedures. I take that other view as 16.505 says it is not. Noting this I then seriously pose ...... Why couldn't one use my suggested "Fair Opportunity Placement Procedures Clause", get responses, lay them out on a table and read through them to compare them then sit down and write out an award decision rational to be signed by the CO that is made on a best value basis that states basis for award and the relative importance of quality (non-cost factor(s)) and price or cost factors and the tradeoffs made with out quantifying the tradeoffs made? After all the only thing that 16.505 requires is that I have to give everyone fair opportunity to be compared, how I estimate, measure, or note the similarity or dissimilarity between the responses I receive is completely up to my discretion. Every day I believe we do this in a personal way with every decision we make to buy a car, paint a house, get a lawyer, pick a doctor, etc. etc. etc. and if someone were to require me to justify why I did get the car, etc. etc. I believe I could simply document or express the measure of my tradeoff decision without having to have some dang rating system to quantify it.

I understand the confusion with regard to the SF-18 and SF-1449 for the RFQ but noting the title of the SF-18 and SF-1449 I would find it generally acceptable to use the SF-1449 for only commercial item acquisitions. As to award using the SF-26 as you noted does not seem acceptable. My conclusions are reached by a read of both the FAR 13.307 and FAR 53.213. 53.214 and 53.215 and the associated cross references for each. I will note that one might want to look at their agency supplements to the FAR as well.

– My sole attempt, take it or leave it. 1)Multiple award IDIQ – Value exceeds the SAT. For parent contracts you pick any evaluation factors to place contractors with a parent contract that you want but the factors are to embrace the imperatives of FAR 15.304. 2)Fair Opportunity – The FAR guiding principles of 16.505 are applied but nothing from the FAR rules the contract imperatives rule. 3)Proposed Fair Opportunity Placement Procedures Clause – Each contractor will be given a fair notice of the need for a task order under the contract. The notice shall contain the description of work, a response period of not less than 10 days with the length of response period beyond 10 days determined per task order. Factors for selection will be stated in each notice. Factors included in every notice will be - price, past performance on previous task orders including the sub factors of quality of work, timeliness of work and cost control (if applicable), and other orders currently awarded to the contractor. Additional evaluation factors and sub factors may be included by the government as they relate to the specific work anticipated. All factors and associated sub factors will be stated in their relative order of importance in the notice. Oral presentations may be requested as appropriate at the discretion of the Government. Contractors submitting a response to a notice of fair opportunity shall provide pricing or cost information along with information that addresses the other evaluation factors. The information provided for price/cost and other factors shall be that minimally necessary for evaluation. The Government reserves the right to consider any information available to the Contracting Officer in addition to that provided by the contractor. Selection for award will be on the basis of a basic comparison of each response received to the other responses received with regard to the factors stated in the notice. A debriefing will be afforded on all award decisions that are more than $5,000,000. 4) The internal process? Do a comparison any old way that you want but document it in accordance with “16.505 (b)(7) Decision documentation for orders. (i) The contracting officer shall document in the contract file the rationale for placement and price of each order, including the basis for award and the rationale for any tradeoffs among cost or price and non-cost considerations in making the award decision. This documentation need not quantify the tradeoffs that led to the decision.” 5) Any old way you want?– First the caveats are - exercise broad discretion, streamlined procedures, policies in subpart 15.3 do not apply and formal evaluation plans or scoring is not required. While the following may border on a “formal” effort consider this approach from a March 16, 2017 post by Vern Edwards regarding evaluation of quotes understanding that we are talking here responses to fair opportunity notices so appropriately edited to fit the fair opportunity construct..…. “Assume that we get four quotes, from companies A, B, C. and D. We'll evaluate using a method that is sometimes called "pairwise comparisons" and we'll assume transitivity. First, we'll evaluate for experience. We'll compare A's description of its experience to B's and decide, subjectively, which has the better experience by taking note of asserted facts, identifying differences, determining their significance to us, and documenting our conclusions. Let's say we decide that A is better than B. We'll then compare A to C. This time we think C is better than A. Since C is better than A and A is better than B, we assume that C is also better than B. We'll then compare C to D. We decide that D is better than C. Since D is better than C and C is better than A and B, D is also beter than A and B. So D is best on experience. Since there were four offerors, and since D is best, we'll give D four points. Since C is better than A and B we'll give C three points. Since A is better than B we'll give A two points. Finally, we'll give B one point. Experience: D = 4, C = 3, A = 2. and B = 1. Second, we'll evaluate for past performance, using the same procedure as we did for experience. This time the result is as follows: Past performance: D = 4, A = 3, B = 2, and C = 1. Third, we now compare the four quoters' prices. This is easy. The lowest price gets four points and the highest gets 1 point. The result is: Price: B = 4, A = 3, C = 2, and D = 1. Fourth, we total the points. A = 8, B = 7, C = 6, D - 9. Fifth, D is best overall, so we award to D. We evaluated on the basis of direct comparisons, based on subjective assessments and without standards. We made no tradeoffs, so we have none to document. That's one way to do it. There are other ways. Is it a good way to do it? That depends on what you're buying and on your notions of value. The hardest part is writing up the rationale for your subjective assessments. It takes some thinking and word-smithing. If you don't know how to do that, then don't try this method. Do you want to weight the factors differently? If so, assign each a decimal weight, such as 0.5 for experience, 0.4 for past performance, and 0.1 for price, so that they add up to 1.0. Then multiply the points by the weights before totaling the points. The fact that you and your colleagues have not heard of this approach should not be surprising. Government agencies make millions of simplified acquisitions every single fiscal year. Millions. No one knows, much less keeps track of, how they do them. They're rarely protested or the subject of explanatory articles. You've worked for the government for five and one-half years and in two agencies. In the words of BoB Dylan, your experience "is limited and underfed." Your lack of experience, knowledge, or passing familiarity with the method does not make the method nontraditional.” Are there any real efficiencies? Compared with what other methods? What I described might take a skilled buyer no more than a couple of days so to complete, depending on what you're buying and assuming that the buyer can write and won't have to go to the boss to ask questions every hour or so. That's longer than a price-only approach but shorter than a tradeoff process type approach. Forget efficiency if you're going to create an "evaluation board." Risk? There is no appreciable risk for any but the brain dead. Less risk than a tradeoff approach."

I know we all know where to find this but as this thread wraps itself around the axle I figured it was good to post it as a reminder. No comparison just "Fair Opportunity" to be considered! Or in other words do not give someone an unfair advantage to be considered but once you have all to be considered then just figure out who you are going to award to (consider them), document why you are awarding to one over the others and do it. In my view the discussioin complicates it just like the OP's higher ups do. (Emphasis added) FAR 16.505 "...(b) Orders under multiple-award contracts— (1) Fair opportunity. (i) The contracting officer must provide each awardee a fair opportunity to be considered for each order exceeding $3,500 issued under multiple delivery-order contracts or multiple task-order contracts, except as provided for in paragraph (b)(2) of this section. (ii) The contracting officer may exercise broad discretion in developing appropriate order placement procedures. The contracting officer should keep submission requirements to a minimum. Contracting officers may use streamlined procedures, including oral presentations. If the order does not exceed the simplified acquisition threshold, the contracting officer need not contact each of the multiple awardees under the contract before selecting an order awardee if the contracting officer has information available to ensure that each awardee is provided a fair opportunity to be considered for each order. The competition requirements in part 6 and the policies in subpart 15.3 do not apply to the ordering process. However, the contracting officer must— (A) Develop placement procedures that will provide each awardee a fair opportunity to be considered for each order and that reflect the requirement and other aspects of the contracting environment; (B) Not use any method (such as allocation or designation of any preferred awardee) that would not result in fair consideration being given to all awardees prior to placing each order; (C) Tailor the procedures to each acquisition; (D) Include the procedures in the solicitation and the contract; and (E) Consider price or cost under each order as one of the factors in the selection decision. (iii) Orders exceeding the simplified acquisition threshold. (A) Each order exceeding the simplified acquisition threshold shall be placed on a competitive basis in accordance with paragraph (b)(1)(iii)(B) of this section, unless supported by a written determination that one of the circumstances described at 16.505(b)(2)(i) applies to the order and the requirement is waived on the basis of a justification that is prepared in accordance with 16.505(b)(2)(ii)(B); (B) The contracting officer shall— (1) Provide a fair notice of the intent to make a purchase, including a clear description of the supplies to be delivered or the services to be performed and the basis upon which the selection will be made to all contractors offering the required supplies or services under the multiple-award contract; and (2) Afford all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered. ..." A read here is probably in order as well http://www.wifcon.com/pd16_505b.htm

May not help yet here is what DoD says.....https://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/PGI204_6.htm (M) Number of Offers. (1) Enter the specific number of offers received in response to the solicitation. In the case of contracts awarded as a result of a Broad Agency Announcement, enter the number of proposals received under the specific announcement. In the case of orders under a multiple-award contract (including Federal Supply Schedules and GWACs), BOAs, and BPAs, enter the number of offers received for the specific order. (2) Note that the “Number of Offers Received” is collected on the original award. In the case of a task or delivery order being reported, the user will see the number of offers from the original contract in the “IDV Number of Offers” data element. The “Number of Offers Source” data element is system generated to indicate whether the data in the “Number of Offers Received” data element was entered on the specific CAR being viewed or if it was pre-populated from the original contract award.

Reference - https://www.federalregister.gov/documents/2008/11/12/E8-26953/federal-acquisition-regulation-far-case-2007-006-contractor-business-ethics-compliance-program-and “Response: According to FAR 1.108(c), unless otherwise specified, if the action establishes a maximum quantity of supplies or services to be acquired, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options. That is, if it is anticipated that the dollar value of orders on an FSS contract will exceed $5 million, then this clause is included in the basic contract against which orders are placed.”

As an alternative you can always post it here..... http://www.wifcon.com/discussion/index.php?/forum/46-what-happened/

Just because my mind works like it does......old blog by Don with the final conclusion still applicable today!

I assume this comment is intended for me. Let me clarify that my post is based on this....."It seems to me that para. (b) of the contract clause at FAR 52.216-18, Ordering, clearly allows for orders with terms and conditions in addition to those in the parent contract." As quoted by ji20874 found here so be shocked beyond me please! I agree completely. In this thread I am reminded about my brother who's health issues cause him to take excemption to doctors who have a "practice". He opines for that they "practice" on him all the time rather than finding something to actually fix him! That is not what I posted. I purposely posted this "maybe because folks did not think a TO/DO would be over the SAT" with no mention of the "maximum amount" of the IDIQ. The use of 52.216-18 is discretionary and if I have an IDIQ whose minimum order guarantee is say $10,000 and I anticipate that no single TO/DO will not be over $250,000 I could reason that there is no need to put the 52.242-13 clause in the parent contract. I dang will better put it in a TO/DO if my anticipation was wrong and I have one for $250,001, based on the prescription. I accept the clarification but honestly you should have clarified that a long time ago.

@ji20874 Apologies for continuing the thread but this is interesting to me because we get back other discussion threads in the Forum specifically with regard to FAR 52.216-18. 52.242-13 in a TO/DO actually depends on more than the prescription. Attempting to not to go back into other positions offered regarding notice versus solicitation using the clause to substantiate a notice is not a solicitation seems off base. After all definition of the FAR that has stood its ground in case law is that a task/delivery order is a contract therefore a TO/DO over the SAT shall include 52.242-13, right? 52.242-13 is in the IDIQ parent no worries pursuant to 52-216-18(b) which is hopefully in the parent. Neither clause in the parent, maybe because folks did not think a TO/DO would be over the SAT, and they don't like the FAR Ordering clause, yet a TO/DO comes along that is over the SAT, the clause needs to be in that specific TO/DO, right? Pursuant to 52.216-18 it can be added or if -18 is not in the parent it still can be added, right? And if so then it seems not having 52.242-13 in the notice would be inconsistent with the direction of the FAR to give a fair opportunist the ability to decide if they want to provide a response to the notice accepting that 52.242-13 will be in the TO/DO.

Because 16.505(b)(1)(iii) (A) requires it to be a "competitive basis." the FAR states at "(A) Each order exceeding the simplified acquisition threshold shall be placed on a competitive basis in accordance with paragraph (b)(1)(iii)(B) of this section..." (emphasis added) Could be that it is not a chance but an actual offering for competition?

My thought is that it would take some concentrated effort in reviewing SBA regulations to sort out your situation. It seems it might be more about the JV especially noting that as I read your original post and now this one that while not considered in a MP program the JV still exists. If so then the issues spin around the JV and its accord with the SBA regulations. I won't go any further with my thoughts offering that seeking an expert in the area of small business regulations would be appropriate. I also offer the following document that may be of an assist..... https://www.sba.gov/sites/default/files/articles/affiliation_ver_03.pdf

Intervener.... In the "construct" of the FAR it would seem that there is more to the matter of a notice/solicitation than just FAR 16.505(b)(1) and the definitions at FAR part 2 with specific reference to FAR 2.101(a). FAR part 5 and 5.001 and 5.202 quickly come to mind. Agency supplements that might apply to the construct of the FAR quickly follow. A general statement as noted always leads to the "depends" in the world of contracting.

Maybe a small back step first. Is it an 8(a) Mentor Protégé or a Small Business Protégé (13 CFR 125.9)?

Not exactly on point yet related this interesting article was posted to WIFCON....good read Supremacy, Inc. Found here http://www.wifcon.com/analysis.htm

There might be a relationship to matters of a timely protest or not as well if opened prior to the specified closing date.

Interestingly FAR 52.222-46 has been around since 1983 and has been the subject of GAO protests in and of itself. Now I have not studied each and everyone of the decisions but it makes me think the history related to the specific provision in question in this thread might also be of help. Going out a on limb here based on limited look see at the decisions but could -46 be more of a matter of price/cost realism than technical? To the OP - a search of the GAO website of "52.222-46" might provide additional insight with regard to this overall discussion.

???????? https://www.gao.gov/mobile/products/B-405663

I might tend to agree but what if the money for the T&M CLIN is different color than that for the FP? My tendency to agree also is based on a view that an ADA violation hardly happens at a contract level other than those subject to specific appropriation language. Without details I then wonder if this specific matter is an issue of unauthorized commitment rather than a ADA matter. To the OP I suggest a internet search of "examples of ADA violation". Maybe add a "+ DoD" to the search. The hits that will occur will undoubtedly assist in understanding application of the ADA.