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  1. Looking for opinions : If an RFP for a potential contract has an approved NMR waiver for that specific contract, is that RFP now required to be set-aside for small business?
  2. Most of the final rules actually list comments and a response. From https://www.federalregister.gov/documents/2020/02/27/2020-02028/federal-acquisition-regulation-set-asides-under-multiple-award-contracts Comment: Two respondents, citing Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (2016), stated that because Congress used “shall” at 15 U.S.C. 644(j) and “may” at 15 U.S.C. 644(r), statutory construction requires that small business set-asides and reserves described in section 1331 of the Jobs Act are mandatory, not discretionary. In addition, several respondents stated that if “whole contracts” under $150,000 are automatically reserved for small businesses, task orders within the same dollar value should also be reserved for small businesses. Further, one respondent commented that the FAR Council may not interpret 15 U.S.C. 644(j). Response: The Kingdomware decision focused on the Veterans Benefits, Health Care, and Information Technology Act of 2006 (VA statute), 38 U.S.C. 8127, not a requirement in the Small Business Act. The Kingdomware decision is silent on the construction of the Small Business Act. The VA statute and the Small Business Act are constructed differently, with the former statute applying only to acquisitions of the Department of Veterans Affairs. Further, the Councils agree that it is not within the scope of this FAR case to interpret 15 U.S.C. 644(j). The purpose of this case is to amend the FAR to incorporate regulatory changes made by SBA in its final rule at 78 FR 61114, dated October 2, 2013. SBA's final rule implements discretionary use of order set-asides, partial set-asides, and reserves of multiple-award contracts at 13 CFR 125.2(e)(1)(ii), consistent with section 1331 of the Jobs Act (15 U.S.C. 644(r)). As a result, no revisions are made in the final rule in response to the comments.
  3. At its simplest, isn't a GSA BPA a task order under a contract? I don't see how contractually one could take an awarded task and just modify it to a different overarching contract. Yes the terms are similar, but one could start extending that argument outside of GSA and it would get very messy. Is a follow on base GSA contract really the exact same, same terms, same pricing?
  4. To add some fuel - from the original federal notice where the FAR was amended in 2016: https://www.federalregister.gov/documents/2016/12/06/2016-28432/federal-acquisition-regulation-set-asides-under-multiple-award-contracts Comment: One respondent stated that a written justification should be required for order set-asides under multiple-award contracts. Response: The interim rule did not change FAR subpart 6.2, which provides that a written justification is not required for small business set-asides or set-asides to any small business concern participating in the socioeconomic programs identified at FAR 19.000(a). In addition, section 1331 (15 U.S.C. 644(r)) established an exception to the fair opportunity requirements for set-asides of orders under multiple-award contracts, which was incorporated into FAR subparts 8.4 and 16.5 under the interim rule. However, contracting officers are required to adhere to the criteria at FAR 19.502-2 to determine whether or not a small business set-aside is feasible before proceeding with this acquisition strategy. The intent was never to get around 19.502-2. It was to allow for the exception in fair opportunity.
  5. So to be clear, you feel as though the shall(s) in 19.502-1 and -2 are overwritten by the may in -4?
  6. #1 - I dont think it makes a difference. When does an acquisition start? If the government is considering a purchase, dont they need to consider SB first? #2 - This is my point. All members of an IDIQ are required to get Fair Opportunity, 19.502-4 allows for the exception
  7. I have a feeling I'm in the minority here, but I keep reading 15 USC 644(r) and 19.502-4. Is there any credence to the thought that the reason 19.502-4 says may is to allow for the exception to fair opportunity required in 15 USC 644(r)? Or in other words, because fair opportunity is required under a IDIQ, the FAR clause is written to allow for the exception so the rest of FAR 19 can be followed. Do we really think Congress wrote a law that intentionally gave the government a route to avoid all other SB requirements of the FAR? Because in practice (and contractually according to GAO ) if the government decides to use a IDIQ, they are no longer required to follow the rest of FAR part 19. Again, I am probably in the minority but the more I read Toliver I understand the fundamental point, the government's responsibility to maximize SB participation isnt minimized by using an IDIQ.
  8. Under some GWACS (Like SEWP) the hubzone (or SDVO etc.) pools are run as a separate competition, so a novation will not get you in a pool that wasnt competed for. While the "new company" may be hubzone, it didnt compete for a hubzone award. Best case is that if awarded, an agency would get the social economic credits. But its hard to see a scenario where the government would grant a contract for something a company didnt compete for.
  9. We see them using the CPAR to tie it down. Statements like - failure to complete will negatively affect your CPARS rating for this contract.
  10. Late to party here , but wouldn't it be 20% ? This is like a coin flip, the probability doesn't increase or compound as it goes through each appeal. Combining them assumes the results are connected.
  11. My original point was (and still is) that the CA process needs to be fixed. We agree 100% on the competency, ideally the workforce should know how do their job correctly, and some do. I think the process needs to be fixed, as it easier and more likely to have an impact. The costs are one factor, not the only. We agree on the long term effects, just disagree on how to solve it. The rest was me answering your question. You asked me what I thought, and I gave it to you. As for the "non-professional" , I have nowhere near the experience you have, but its unwise to assume that someone who knows less has less value or something to add to the discussion. I live solely in the COTS world of federal contracting, and can assure you that multi-million COTS contracts are awarded with no issues and no discussions all the time. If your position is the government should not be afraid of discussions, I agree 100%. But if you are saying it should happen on every large purchase, I am an honestly surprised by that position.
  12. Yes a drop in the bucket for the Government, but I was referring to the costs for both sides. It is an expensive process. It was an attempt at a simple analogy for a complex problem, of course its absurd. But not every multi-million dollar contract needs discussions, it depends on the variables and associated risks to those variables. The more COTS the product, the less discussions should be needed.
  13. Thanks - I didn't think that was correct, but couldn't find better data I am a data guy not a FAR guy, so my mind looks for #s. But I have to respectfully disagree with your first statement. From a legal standpoint, sure, the impact is down the road. But from the operational side, it costs everyone resources. Corrective Actions should identify the problem, correct it, and include measures that help prevent it from happening again. On the FAR question, my thought is that some think discussions lead to protests. But I don't have data to back that assumption. I think the intent of the clauses is to allow for the less complex purchases to be done quickly and efficiently ( Insert joke here), while give flexibility to allow for more complex purchases. Pretty sure this forum has gone down this road before as well, but outside of Federal Contracting buying a house is different than buying a computer. You can "negotiate" both purchases, but one is most likely done with discussions, one without. You can buy a house with out discussions, but I don't think most would. You can call Apple and attempt to negotiate terms and pricing, but you wont get far. That is what I think the intent is, but impact vs intent is always different.
  14. We discussed this a bit in the other thread, but I think it comes back to the Corrective Actions. GAO needs to evaluate the merit of a potential CA, and GAO and the government need to stop looking at a CA as a "win". A corrective action is not a positive thing for Industry or Government. 2600 cases filed at GAO in 2017, 581 had decisions. Does that mean 80% of protests go to Corrective Action?
  15. If you are on the government side, they will answer all of your questions if you contact them. If you are industry, they may not be as forthcoming...
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