Desparado

Right or wrong, I believe many "boots on the ground" COs feel they do not have the flexibility to make process improvements. The increase of the S-word (standardization) and mandated procurement methods (example: Army MICC mandating use of Fed Bid for product procurements), combined with heavy workloads and a less-experienced acquisition workforce lead to the situation where we are at today. I do not believe making a pledge (public or private) will improve upon that.

As part of the Option evaluation process, your GSA CO should require your company to re-represent its size status. As stated by Napolik, as this contract is longer than 5 years in duration (when considering options), a contractor must re-represent their size status 60-120 days prior to the date specified in the contract for exercising any option thereafter.

Therefore a simple answer to your question is No, your company's size at award does not stay valid for the 20-year possible term of the contract. If your company is now "other than small", it will have to have a sub-contracting plan.

I do not have a reference to point to, but I believe your initial thought was correct. I believe funding with FY13 funds for performance that does not begin until December would be improper (and perhaps against fiscal law).

It is my opinion that if the solicitation lists these "elements" (or whatever they are called) as part of the evaluation criteria, then each of them should be listed in your SSEB report and any other evaluation documents. Otherwise, you can open yourself up to a protest stating that you did not follow the criteria as stated in your solicitation.

Heaven knows I'm not nearly as well-versed as Vern is on protests, but I try to read each one as they are posted here on WIFCON and it appears to me that one of the biggest mistakes that causes the gov't to lose protests is that COs and SSAs do not follow the evaluation criteria as set forth in their solicitation.

My thoughts/comments.

- does the JV have to have a GSA Schedule in order to participate in a GSA solicitation issued by Agency ABC? I don't think a JV can obtain a GSA schedule, can it? Since the agency is soliciting Schedule contractors only, it would be apparent to me that the JV would have to have a Schedule contract to participate. I know of no reason that a JV could not have a Schedule. Please note there are some Schedule requirements (example, 2 years of financial statements) that would lead me to believe that the JV would have to have been in business for a couple of years before they could apply for a Schedule contract.

-Does the small business partner in the JV have to have a GSA schedule in order for the JV to parcipate in the soliciation Agency ABC? The entity submitting the response to the RFQ would need to have a Schedule contract (whether it be the JV, or the small business independently).

-Can we as the large business partner of the JV use its GSA schedule to respond to the solicitation if the small business partner does not have a GSA schedule? Not if it was done as a small business set-aside. The only entities that the agency should accept/evaluate offers from is small businesses with a Schedule contract.

Isn't it true that as a large business, it is not necessary to use the JV at all (if there isn't a need to), and it would be better to simply team with other small GSA schedule holders ( via CTAs) and sub to a small business GSA holder in order to obtain contract awards from Govt Agency ABC? This appears to be 2 questions. 1) A CTA would not be eligible if it contained a large business (since it is set-aside for small). 2) A large business could sub for a small business, but the small business would need to have a Schedule contract, have those products/services on their Schedule contract, and could only charge up to the amount as stated on their Schedule contract.

Okay, I'll be the one to go outside the group... Based solely on the scenario and the way it is written, and not any other knowledge of claims... no, it is not a claim.

Definition includes: "... is not a claim under the Contract Disputes Act of 1978 until certified as required by the Act."

So if it is not certified, it is not a claim under the CDA of 1978.

Yes. As the definition went out of its way to clarify the "car" driver, it has by reasonable assumption defined the other two as well.

I have ran into this situation before when I worked for other agencies (VA and Army). The issue is that they have to put the CAGE code of the company that holds the GSA Schedule contract since it was a Schedule purchase (which I am assuming from your post). If your reseller has a Schedule contract then they can put that on there. If they don't and only your company does, then they have to put the information of your company since it is the one with the Schedule contract.

Otherwise, when they attempt to validate through FPDS-NG, it will reject because the company name, CAGE and Schedule contract number don't all agree. With some systems when they put in the Schedule contract number it automatically populates the CAGE and company information of the Schedule contractor (which can be a problem for resellers).

I hope this makes sense.

Joel -

Yes, I read the decision and a key point was that the RFQ stated that. "The current RFQ limits competition to vendors who hold contracts under

Schedule 84, “Total Solutions for Law Enforcement, Security, Facilities Management, Fire, Rescue, Clothing, Marine Craft and Emergency/Disaster Response,” SIN 246-52 for “Professional Security/Facility Management Services - Including Security Consulting, Training and Facility Management Consulting.”

It was not stated in the question whether JI's RFQ had a limiting statement in their RFQ. I would agree that if JI's RFQ had language limiting who may submit a response, then it stands to reason that any response received from a contractor without that Schedule/SIN would not be accepted. Without such limiting language, I do not believe that specific GAO case would apply for the question cited here.

BZ -

I do not understand how do you interpret that 8.404 not to apply to acquisitions under 8.405-2? I would argue that since 8.404 is the general overall instructions that 8.404(f) does indeed apply. Since the FAR is silent on the eBuy topic but clearly states the language in 8.404(f), I stand by my original position that a copy of the RFQ must be provided. This does not state or imply that a quote received must be accepted and evaluated, merely that they are required to provide a copy of the RFQ.

We deal with schedule contract holders that use subs all the time. However, they are limited in what they can charge, as they can only charge what the negotiated rate is in the Schedule contract. That discourages many "prime" contractors from doing this as they cannot charge a "pass-through" or "up-charge" for subcontract management.

BZ,

How does your post deal with 8.404(f)?

(f) If the ordering activity issues an RFQ, the ordering activity shall provide the RFQ to any schedule contractor that requests a copy of it.

I agree you have to provide to any Schedule contractor who requests it, but there are other circumstances that may factor in, and without the information I am not sure of how to reply.

For example, did the solicitation state that any offerors must hold 899-1?

Did the solicitation state that all responses must be through the eBuy system? If so, then any contractor that does not have that SIN would not be able to comply as only companies with that SIN awarded will have access to that RFQ in the eBuy system.

Would a company that does not possess that SIN be able to meet the requirements via their Schedule contract? Under the Schedules program, a company can only sell via the Schedule those products/services at the prices/rates approved by the GSA CO. I ask this because if the company does not have 899-1 and you have deemed that Schedule to be the one that the scope of your SOW/PWS falls within, can they fulfill the requirement under whatever Schedule contract they have?

As far as modifying your GSA Schedule contract, yes you can typically modify between option periods (except within the last 60 days prior to the end of the current contract period)

The applicable clauses are:

552.216-70, if pricing is based on a Commercial Price List (CPL).

I-FSS-969, if pricing is not based on a CPL and you wish to negotiate either a set escalation rate increase or a rate based on a market indicator of some sort.

Can it be retroactively applied? Well, normally the answer is no (although I have seen stranger things). I have seen rare cases where the current rate is established based on what increases "would have happened" over the previous years, but again, that is not the norm.

The best advice, as given by Vern, is to contact your GSA Contracting Officer .

I think you meant Federal Strategic Sourcing Initiative. http://www.gsa.gov/p.../content/112561

Yes, my mistake... Thank you

Just curious what everyone's take is on the latest "hot thing", the Federal Strategic Support Initiatives.

I agree with Vern, as I know of no reasons why this would not be permissible. I also see it as an opportunity. I have been on many SSEBs where this situation existed with other members. In every case, the employees were able to provide intelligent input into the conversations and I would imagine they impressed their supervisors with their active participation. Personally, I never saw any situations where the supervisor attempted to influence the employee during the board meetings (of course what happened, if anything, before/after the board meetings is unknown to me).

Another side-effect of this situation is that if you attempt to do a "call" on a BPA or exercise an option on a contract that is no longer active, the FPDS-NG record will reject the input. I know that back when I worked for the Army (just a few years ago), if FPDS-NG rejected the input, PD2 would not allow you to process the action.

I would recommend contacting the contracting officer and asking him/her to review and advise the Acceptor. If the KO can state there are not missing pages and the page numbers were simply a clerical error or system issue, the Acceptor's concerns could easily be addressed.

I have a solicitation where one of the requirements is that an offeror has to have the listed NAICS code in their ORCA in order for them to submit an offer.

In 13 CFR 121.402( it states, "... Acquisitions for supplies must be classified under the appropriate manufacturing NAICS code, not under a Wholesale Trade or Retail Trade NAICS code..." Since this solicitation is for an IDIQ contract for supplies, I would assume that we should follow this CFR. I have been an 1102 for awhile, and when I came across this CFR reference in a WIFCON post, it surprised me. I wonder why this isn't incorporated into the FAR somewhere (or at least I could not find it), as I would imagine many (if not most) 1102s are not aware of this. I have seen many FBO posts listing wholesale or retail NAICS codes.

If a company is a retail company (for example, a department store), they would logically not have the manufacturing NAICS code in their ORCA registration. Could they add these NAICS codes in order to be in compliance with the solicitation, or would they be violating some law/rule/etc..?

Or should local policy of the solicitation requirement be removed?

Thank you in advance for your input.

GSA routinely removes products from their Schedules when they discover that the items are not TAA compliant. With over 19,000 companies and millions of products, the COs cannot police every item, and rely on self-certification from the contractors. In many cases the contractors don't even know the country of origin as they receive the items from their suppliers. There are plenty of helpful citizens that bring these items to GSA's attention and when that is done, they get the products removed.

As far as your basic question goes, I believe your interpretation of the FAR is correct, and that for micro-purchases the BAA and TAA do not apply.

But the rule doesn't necessarily make a lame duck out of a contract holder. Individual option periods are 5 years and generally the total possible period for a Schedule is 15 years. So only a lame duck if in the last available option period. Unfortunately you can find instances out there where the option was exercised even though the underlying contract had expired simply because no one checked.

In your case, when Acme Inc formed Acme LLC, did it transfer or assign any Acme Inc assets to Acme LLC? Could it do so with the contract? Would the PCO agree to it if legally possible based on the way Acme LLC was formed? Not a lawyer so no clue if it's possible but worth asking. Otherwise I guess you are stuck with using the Option to Extend Services clause (hope it's in the TO) to get yourself the time to recompete.

Actually, the normal period for a Schedule contract is 20 years. A 5yr base with 3-5yr options.

For Q1, I would recommend contacting the GSA Contracting Officer. Be prepared to send the CO the documents pertaining to the acquisition of XYZ, as that CO will probably need them to send to their Legal to determine if a novation is to be done, or if another course of action is required, or nothing at all.

Q2. See Q1 above.

Q3. It might. Do you know if Company B is an Inverted Domestic Corporation? There are some issues that may arise, so once again I would recommend contacting XYZ's contracting officer.

I would love the supplements to disappear. As someone who has transferred agencies a couple of times, learning that agency's supplement can be a pain. However, is that feasible? With specific language going into DoD appropriations, or VA, or whoever, it is possible to get rid of the supplements?

Agreeing with Vern, the standard FSS contract awarded by GSA are 5-year IDIQ contracts with 3 5-year options.

Vern, thank you for the correction... I often miss my 5th grade English teacher. <laugh>