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Everything posted by ji20874

  1. Brent, I wonder if you have found the insight you sought when you started this thread? As you can see, there is a difference of opinion here. Need we continue, or do you have enough information to make up your own mind and inform your own practice?
  2. Amen! Adequate price competition is a standard for determining if certified cost or pricing data is required. That's all. It is irrelevant for our discussion. FAR 15.404-1(b)(2)(i) says comparison of prices received in response to the solicitation is a valid method of price analysis. It doesn't say comparison of "technically acceptable" prices received in response to the solicitation.
  3. Joel, how about an answer like "YES, in the context of the original posting, provided the contracting officer has no reason to find otherwise"?
  4. Brent, Some people want you to violate your solicitation and continue to evaluate higher-priced offers for technical acceptability even after you have found one at a lowest price. They are seemingly concerned that the price of your lowest-price offer might be too high, even though they know nothing about your acquisition. They seem to think that the higher-prices offers you received are likely (or at least possibly) technically unacceptable or are from nonresponsible offerors, and want you to PROVE that is not so — only then, they say, can you decide that the lowest-price (and technically acceptable) offer’s price is not too high. They want to eliminate all risk, rather than reasonably manage risk. I believe that price analysis can be made by comparison with other prices received from the solicitation. FAR 15.404-1(b)(2)(i) says so. Inasmuch as there is apparently no reason to find otherwise and none of the comparisons are with unacceptable or nonresponsible offers, I’m okay with your decision to call the lowest-price technically acceptable offer’s price reasonable. I say this because I am willing to trust you professionally and your knowledge of your acquisition. I reject statements that your approach is a blind comparison. Are you the contracting officer? If so, I support your decision. If you had some reason to find otherwise, you would have said so. If you are not the contacting officer, and you are unable to persuade him or her that the lowest-price technically acceptable offer’s price is not too high, then he or she has to make some choices — do you open discussions with only this one offer to lower the price (without affecting the technical acceptability rating), or do you violate your solicitation and evaluate all or some of the higher-prices offers, or do you do some unnecessary work to show some other way to determine the lowest price is fair and reasonable, or do you cancel the solicitation and start over, or something else? I prefer common sense over pedantry.
  5. Jamaal, the original poster has never written about "technically unacceptable." We do not want to conflate technically unacceptable with technically unevaluated. In the original posting, the higher price offers are all technically unevaluated -- the lowest price offer is technically acceptable and has a reasonable price (based on comparison with other prices received from the solicitation, and inasmuch as there is apparently no reason to find otherwise and none of the comparisons are with unacceptable or nonresponsible offers).
  6. This is a great observation! I was raised the same way -- What does the contract say? I think of myself as a competent contract specialist because, for every question that has arisen in my practice, I always read and interpret the contract and the text of the pertinent clauses. If anyone else is not competent, it is because he or she doesn't read and interpret. I'm afraid to ask, but how many contract specialists have never read any of their own contracts?
  7. ji20874

    AeroSage, LLC

    Yes, I am okay with the GAO's decision regarding set-aside and NMR in the DLA case, given DLA's argument that its bundled solicitation was not bundling.
  8. ji20874

    AeroSage, LLC

    I don't think this decision makes new rules for the rest of us. Here's the key to this case: "DLA wants to have it both ways -- i.e. it wants to look to the individual CLIN values to interpret SBA’s bundling rules, but look to the value of all the CLINs combined to interpret SBA’s nonmanufacturer rule." If DLA had not made the argument that it did regarding bundling, I think the GAO would not have made the decision it did regarding the set-aside and non-manufacturer rule. DLA won the bundling portion of the protest, and then the GAO turned that argument against DLA in the set-aside/NMR portion of the protest. At least, that's how I make sense of it. Is there now a new rule that rule-of-two and non-manufacturer rule must always apply at the CLIN level for every acquisition? No.
  9. After release of the solicitation, the contracting officer must be the focal point of any exchange with potential offerors. FAR 15.201(f).
  10. ji20874

    POP Extension

    So, the extension is only a part of an equitable adjustment under the terms of one of the clauses in the contract? If a contract clause allows for an extension of the period of performance as part of an equitable adjustment, then you may grant an extension of the period of performance as part of an equitable adjustment. That particular clause is the authority for the extension of the period of performance.
  11. Generally, we do not include the prices of unacceptable offers in our price analysis. But in the original posting, there has been no finding of an unacceptable offer. In an ordering situation using LPTA, the price analysis can occur before the technical evaluation -- compare all the proposed prices received in response to the solicitation (amenable to FAR 15.404-1(b)(2)(i)), and rank offers from lowest price to highest price -- absent a reason for finding otherwise, one may generally assume that the lowest-price among many is a reasonable price. If the lowest price seems reasonable based on competition, evaluate the low-price offer for technical merit. In the original posting, the solicitation (under schedule contracts or multiple-award IDIQ contracts) said the agency would look for a technically acceptable offer starting with the lowest-price offer, and stop the technical evaluations when it finds one. This discussion might be helpful:
  12. First, has your CEO read para. (a)(8) of the contract clause at FAR 52.232-7? and para. (i)(1)(i)(E) of the clause at FAR 52.212-4 with its Alt. I? Assuming he has, he errs in suggesting that you need to bake overtime premiums into your overhead rate -- you are not incurring any overtime costs, so there are no incurred costs to add to the overhead pool. However, he is right in asserting that your company should invoice for hours worked at the fixed hourly rates established in the contract. Given your example, and barring something else in the contract that opines otherwise, and providing all the hours are properly chargeable to the labor category, you should invoice for 200 hours. All of that money is a free money windfall to your company; you are not required to pay any of it to your employees. If your federal agency customer wants you to limit your billings to 160 hours, then you need to limit your hours worked to 160 hours. Or, your federal agency customer can establish a fixed-price contract and deal with uncompensated overtime procedures. This is my opinion. You should not rely on my opinion, but should make your own decision.
  13. See FAR 15.404-1(b)(2)(i). If you received several proposals in response to your solicitation, you may reasonably assume that the lowest among them is reasonable. Absent any reason to find otherwise, call it reasonable and move on. Forget any talk about an expectation of competition in the lowest-price offeror's mind -- don't even go there -- you have real competition.
  14. ji20874

    POP Extension

    Maybe. Maybe not. It depends on the reason for the period of performance extension. What is your reason?
  15. Joel, Rather than incorporating the entire small business participation plan into the contract, the Government could simply incorporate those aspects of the plan that drove the selection decision -- in your example, a special contract requirement could be written in the bilateral contract to capture the commitment: "The Contractor agrees that all refrigeration and air conditioning work will be subcontracted to Joe Blow Inc." Or, this could be captured in a unilateral contract award if the solicitation included a statement that the Government may incorporate any aspect of the offeror's proposal into the resulting contract.
  16. I get (from a non-.mil computer using Chrome): Your connection is not private Attackers might be trying to steal your information from www.dcaa.mil (for example, passwords, messages, or credit cards). Learn more NET::ERR_CERT_AUTHORITY_INVALID
  17. lotus, I cannot answer your questions directly, as I was not involved in the acquisition in which you participated. Generally speaking, from my experience, contracting officers endeavor to answer all reasonable questions, or at least, all questions where the answers might be helpful to prospective offerors in preparing their offers. But there is no requirement for a contracting officer to answer every question that arises. In formal solicitation situations, questions are often answered in writing for the benefit of all prospective offerors as a matter of fairness. I'm wondering -- in your cited example, were your questions apparently ignored (absent "when the Q&A were published"), or did you actually get "a 'no response' response" to each of them?
  18. Para. (d) of the clause at FAR 52.227-14 does not any assign data rights to the Government. Is para. (h) helpful to you? The clauses you mention identify the Government's rights in data. But consider: Even if the Government has unlimited rights to data, might the contractor also have unlimited rights to the same data? Unlimited does not mean exclusive. Allocation of data rights in subcontracts should be addressed in subcontracts.
  19. ji20874

    Evaluation Bias

    1. No. From my experience, the general or common practice is to diligently treat all offerors fairly. 2. No. From my experience, the general or common practice is to diligently treat all offerors fairly. Generally, substantive questions are appreciated.
  20. Great! Finally! Two great points: (1) The CBP has not followed the FAR; and (2) the agency (contracting officer) is supposed to make an independent decision based on the FAR text.
  21. Vern, I’m glad I was able to be helpful to you in this matter. Best wishes...
  22. Nina, Right -- that is what has been said from the beginning of this thread, that this discussion would require (1) an understanding that end products and components are different, and (2) an understanding of the exact text and context of a contract.
  23. Vern, Okay, my bad. When you asked me "Does FAR say that somewhere else? Do you know of any case law?" regarding an assertion I had not made, I thought you were asking for me to prove something and to provide some case law. Silly me.
  24. Vern, Yes, the differences in definitions in FAR 25.003 and 2.101 are significant -- that's why I recommended, early in this thread, that people wanting to understand this matter should read them. Also important to understanding is reading FAR Part 25 as a whole and comparing and contrasting the three matched set clauses at FAR 52.225-1, -3, and -5 -- this has been very helpful to me in understanding this matter. All I can do, and all I want to do, is share a practitioner's perspective for the benefit of the original poster and other readers. You ask too much of me when you ask me to prove or to provide case law, especially for an assertion I have not made, and more especially after I earlier admitted I cannot prove anything and invited others to make their own decisions. I acknowledged that is "difficult for GSA Schedule holders to apply the test to their own or third-party products" -- if it is difficult for them, knowing the exact text and context of their contracts and knowing the provenance of their materials, surely it is nigh impossible for us to be definitive in this forum. I hope all readers will agree with a general principle that there is no requirement for every replacement part in every repair service contract, or every piece part of an end product in every supply contract, to be of domestic or designated country origin in a contract that includes the clause at FAR 52.225-5. I think this answers the original poster's question as best as it can be answered, based on the information provided.
  25. Vern, Please read end item of supply as simple words strung together, rather than as a term. If it will work better for you, you may change those words to end product, which is a term in the context of the FAR. Nothing changes in this case. I want to avoid conflating “end product” and “component” as identical. I have a different opinion. In my practice, I treat these as different, because FAR Part 25 treats them differently (see the definitions in FAR 25.003) and the clauses at FAR 52.225-1, -3, and -5 treat them differently. I haven’t made that assertion. If you want case law, ask Nena. I’m just sharing information as a contracting practitioner, not as an attorney. As a matter of practice, I am not persuaded that every replacement part in every repair service, or every piece part in a supply end (or end product), must be of domestic or designated country origin. Sometimes in these matters, the same item will be seen as an end item by one person and a component by another person — this happens such as when buying an airplane, as an example — one might say the engines are components while another might say the engines are end items. It depends on the terms of the contract. But I don’t think we’re talking at this level. This discussion would require (1) an understanding that end products and components are different, and (2) an understanding of the exact text and context of a contract.