sdvr

Ask for a redacted version? They probably want to protect their margin... 

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? 

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.

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? 

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.

18 minutes ago, ji20874 said:

I disagree.  Words have meaning.  The statute did not say that the agency shall use a set-aside used when certain conditions for a set-aside exist; rather, the statute gives agencies discretion to do set-asides in ordering situations.  To me, the Tolliver decision erases any meaning for the word discretion and makes set-asides mandatory if certain conditions exist.

So to be clear, you feel as though the shall(s) in 19.502-1 and -2 are overwritten by the may in -4? 

Just now, Constricting Officer said:

#1 What if I said SB had already had their chance to compete for SAIDIQ and didn't make it? 

 

#2 What if I said that the SB is a member of the MAIDIQ and agreed to the terms of such? Isn't fair opportunity defined by the contract at that point?

#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

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.  

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.  

We see them using the CPAR to tie it down. Statements like - failure to complete will negatively affect your CPARS rating for this contract. 

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.

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. 

49 minutes ago, Vern Edwards said:

In this case, it's not. Two thousand protests year are less than a drop in the bucket of all new acquisitions.

Yes a drop in the bucket for the Government, but I was referring to the costs for both sides.  It is an expensive process. 

1 hour ago, Vern Edwards said:

To award a multi-million dollar contract without first talking to the firm that submitted the winning offer is insanity.

Your example of buying a computer from Apple is adsurd. That's a simplified acquisition. Talk instead about buying an entire IT system for carrying out a critical government function.

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. 

35 minutes ago, Matthew Fleharty said:

No, just as agencies can take corrective action, protesters may withdraw their protest(s).

Thanks - I didn't think that was correct, but couldn't find better data

14 minutes ago, Vern Edwards said:

The focus on protest statistics is misplaced. The real impact of protests is their effect on the conduct of future acquisitions.

See FAR 15.209(a)(1). Now ask yourself: Why is the government's default position that competitively "negotiated" contracts will be awarded without discussions? Isn't that odd in light of FAR 6.401(b)(2)? What do you think is the reason?

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. 

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?  

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... 

A lot of views for no response... In general SEWP doesn't really allow many of these anymore, they push Agencies to an Agency Catalog (which has even less info on the FAQ)if the requirement is less defined. I'm sure they still happen, but SEWP pushes the Catalog and multiple award , not a DOWO. 

Very interesting reads. Trying to pick out a common theme, but need to read through a few more times. At the very least it seems as though the initial corrective actions were flawed, which led to multiple rounds of GAO. I go back to my original point, a CA should not be an instant do over, GAO needs to evaluate the potential success of the CA.  And while this only goes back 4 years, some of these cases are still active and yet to be resolved...  

Bob - Thanks for the work here and on this site! 

@bob7947 Out of curiosity, is it easy to see how many COFC cases went through multiple rounds of Corrective Actions at GAO? 

Serious and slightly related question. Does anyone feel like the Corrective Action process needs to be looked at? Both Industry and Government seem to lean on it as a crutch. The government knows they can always stop a GAO process and use it if they see an unfavorable outcome. Industry knows that if they can create enough smoke, a CA is likely. I think a lot of issues would be corrected if GAO took a more active route in making sure the CA is a valid plan that will actually work. Instead you have these large procurements that seem to be in a carousal of award, protest, CA, award, protest, CA etc...  Just my 2 cents

Nothing shows on GAO. My bet is he drops 100+ on Monday. 

Its been one year, any betters on what Latvian does next? 

19 hours ago, napolik said:

Neither 8.4 nor 16.5 impose the procedural burdens seen in 15.3. Both give one the chance to focus on getting the best deal for the customer vice on competitive ranges, the content of exchanges and final proposal revisions.

I believe that NITAAC's fee is .65% with a max of $150,000 and that the contractors' schedule prices are increased by an Industrial Funding Fee of .75%. The contractors pay the fee quarterly to GSA.

  

NITAAC has a few GWACS but all 3 have fees paid by the government. CIO-CS is .35%, SEWP in .39% GSA is .75%. None are paid directly by the government, but industry includes that cost. 

Thanks to all so far on your input and the references. Under schedule 70, there is a growing trend of OEMs that no longer hold their own schedule, and have moved to a distribution held GSA model. Cisco, Adobe, Redhat (and more) are now only available from distributors, that while they have a GSA schedule, don't typically take orders directly from the US government. The issue becomes when there is a GSA request with just these items, and no other products, services etc. are being provided/requested.

I guess I am just venting, but it seems like an outdated model that needs to change. 

What if the only items on the order are on one team member's schedule and there are no open market items?