Jump to content
The Wifcon Forums and Blogs

ji20874

Members
  • Content count

    1,401
  • Joined

  • Last visited

Everything posted by ji20874

  1. Estimated Delivery Order

    Searching, You're thinking the right way. The GAO's heartache was in a multiple-award IDIQ contract situation, where issuing an IDIQ-under-an-IDIQ subverted the notion that every multiple-award contract gets a fair opportunity to be considered for future requirements. You're in a single-award IDIQ situation, to the GAO's heartache is not applicable to your case. Maybe your attorney doesn't appreciate that you're in a single-award situation?
  2. Estimated Delivery Order

    Let's not make this too hard. I like Boof's idea. If Searchings is hung up on 100, then issue the delivery order for 75. Then, if needed, issue another delivery order if it looks like more than 75 will be needed. Issuing a delivery order under a single-award IDIQ contract is simple and fast.
  3. Don't ignore it! You will certainly lose the contract if you do. At the very least, follow Carl's advice. Or just play the game and give the information. But don't ignore the letter.
  4. Commercial Service

    You're right -- here I am talking about words matter, and I read too quickly. I am pretty certain there are established market prices for services to assist with strategic planning efforts -- companies that are in this business do it all the time, on a firm-fixed-price basis -- you define the parameters (outcomes, expectations, and constraints) up front, and firms will give you FFP quotations. Regarding your last point, para (1) has three sentences. Vern emphasized the first sentence, and you emphasized the third sentence. I'm looking at the second sentence. That's why I wrote in my first posting, "The contractor would be expected to have some knowledge of facilitation and strategic planning, but no specific knowledge of your agency, your agency's operations, or the market sector in which your agency operates." Your original posting made me think the services you need are not closely related to the basic responsibilities and mission of the agency. However, if the services you need are closely related to the basic responsibilities and mission of the agency, then I understand where you're coming from.
  5. Commercial Service

    krusem, Why do you care about published catalog or market prices? For the definition of commercial services, the standard is established catalog or market prices. Prices may be established even if they are not published. Are the services you need closely related to the basic responsibilities and mission of the agency? Your original posting made me think not. But if yes, it makes sense to call them advisory and assistance services. Words matter. I recommend you consider a statement of objectives (SOO) approach instead of a PWS approach. You can identify the outcomes and the constraints well enough.
  6. Commercial Service

    Based only on what you wrote above, I would support not calling it advisory and assistance services. I wouldn't call it consulting or coaching services, either -- how about meeting or planning facilitation services? You want a contractor to facilitate a week-long strategic planning meeting. I bought this type of service for a prior agency as a straight-forward service. The contractor would be expected to have some knowledge of facilitation and strategic planning, but no specific knowledge of your agency, your agency's operations, or the market sector in which your agency operates. I assume you will pay a firm-fixed-price for the entire effort?
  7. I think the concept of considering transportation cost (that transportation cost will be added to the offer price to determine the Government's overall cost) is quite a simple concept. But I understand that in some cases, implementing the concept in a real acquisition can become complicated.
  8. If a west coast bidder has a competitive advantage over an east coast bidder, because the west coast vendor is closer to the place of final delivery, what is the problem? There is nothing wrong with competitive advantages -- contracting officers only have to deal with unfair competitive advantages. Geographic location is not an unfair competitive advantage. If the west coast bidder has a lower price (or lower total cost to the Government) than the east coast bidder, and all else is equal, then award to the west coast bidder. Hurrah for the west coast bidder! Don is right about FOB Destination contracts (since end-item transportation costs will already be part of the bidder's proposed price). Let me add something about FOB Origin contracts. If you're planning a FOB Origin contract, then you should evaluate the total cost to the Government, which will include an estimate for transportation costs. It's simple: . Bidder A (east coast): . Bid Price = $1,000,000 (proposed contract price) . Transportation Estimate = $400,000 (Government's estimate) . Evaluated Price = $1,400,000 (total cost to the Government) . . Bidder B (west coast): . Bid Price = $1,200,000 (proposed contract price) . Transportation = $100,000 (Government's estimate) . Evaluated Price = $1,300,000 (total cost to the Government) Bidder A has a lower price, but Bidder B has a lower total cost to the Government. Bidder B wins in a FOB Origin scenario. This is completely fair. Don't cry for Bidder A. Hurrah for the west coast bidder! See FAR 47.301(a), FAR 47.301-2, and FAR 47.306. See also the provision at FAR 52.247-47, Evaluation--F.O.B. Origin. .
  9. RFI ... Evaluations and ... Down-Selects? Huh?

    Fear, Maybe there isn't a problem -- maybe this is just rigorous market research -- you wrote, "the customer will then use this info to help flush out/adjust the requirement". If this is rigorous market research, I'm okay with product demonstrations. Of course, I haven't read the RFI. For the purpose of this approach, I will assume that there is a plan for a competitive acquisition in the future. Of course, I could be all wet -- it could be that the organization intends to do all this as a basis for justifying a sole-source acquisition in the future. Who is driving the process? Who issued the RFI? The contracting officer or the program office?
  10. Wage Determinations under the SCA

    Do you work specifically under one contract? Or are you a back-office employee supporting many contracts? If you work specifically under one contract, are you certain that your contract includes a wage determination? Are you certain you are a covered employee? As a general rule, the contractor (your employer) must comply with the wage determination that is incorporated into the contract. A new wage determination won't be incorporated into your contract until the next appropriate time, such as an option exercise. Here is some text from the Department of Labor website at https://www.dol.gov/whd/regs/compliance/web/SCA_FAQ.htm: How do service employees know what wage rate they are supposed to be paid? On the date a service employee commences work on a SCA covered contract, the contractor or subcontractor is required by law to deliver to the employee or post a notice of the required compensation in a prominent place at the work site. What can be done if the employee is not being paid the wage rate listed in the wage determination? The contractor is liable for the amount of any underpayments of compensation due to the employee engaged in the performance of the contract. Any employer, employee, labor or trade organization, contracting agency, or other interested person or organization may report an apparent violation to any office of the Wage and Hour Division. Look in the Blue Pages under U.S. Government, Employment Standards Administration, Wage and Hour Division, for your local office.
  11. Suspension of Work

    Your entitlement to an adjustment in contract price because of the suspension is driven by the Suspension of Work clause at FAR 52.242-14. So the first step is to carefully read the clause. Normally, the contractor submits a proposal for an adjustment after the suspension has been lifted. But if your suspension order is for a specific duration, I suppose you can submit a proposal now. You are not entitled to any adjustment unless the suspension period is unreasonable -- but since the contracting officer asked for a proposal, I suppose the period is going to be unreasonable. Your proposal will detail any increases in your cost of performance of the contract (excluding profit) necessarily caused by the unreasonable suspension, delay, or interruption. Ask for anything and everything that might fit -- the contracting officer will either agree or negotiate. If your contract is with the Defense Department or a component of the Defense Department and your proposal is over a certain amount, you might have to certify your request for equitable adjustment -- if this is the case, your contract will have a clause with the details.
  12. Don, In my example of a FFP contract for 12 months at $1,000/month, where the $1,000 unit price figure is in column 23 of the SF-1449, the figure is not a trade secret. A company's selling price can only be a trade secret if the evidence shows a number of things, including that the company made consistent efforts to hide its prices from the public (such as through confidentiality agreements with buyers and appropriate markings on documents) and that the prices cannot be easily discerned by others. If it is public knowledge* that the requirement was for 12 MO and if it is public knowledge** that the bottom-line price was $12,000, then the $1,000 unit price is easily discernible and cannot be protected as a trade secret. * such as through synopses or postings of solicitations, oral solicitations to a number of potential offerors, or debriefings to unsuccessful offerors. ** such as through synopses of contract awards, FPDS-NG postings, or debriefings to unsuccessful offerors. Here's a counter question that I am hopeful someone can answer: Why do the debriefing instructions in FAR 15.506(d)(2) call for release of "[t]he overall evaluated cost or price (including unit prices)" while the text in the solicitation provision at FAR 52.215-1(f)(11)(ii) only calls for release of "[t]he overall evaluated cost or price" (with no mention of unit prices)? The provision for commercial item acquisitions at FAR 52.212-1(l) also calls only for release of "[t]he overall evaluated cost or price" with no mention of unit prices. Maybe we shouldn't release unit prices at all, because surely the contract clause trumps the general FAR text?
  13. I think there is inconsistent use of the term "unit prices". I simply don't see labor or overhead rates as unit prices, so there is no confusion in my own mind. To me, a unit price is a figure in column 23 of the SF-1449 (or other column on other forms). EXAMPLES: FFP contract for 12 months at $1,000/month. The $1,000 figure is releasable in a debriefing, and may be released under FOIA if already released in a debriefing. The labor or overhead rates the contractor used to develop the unit price (if included in the contract) might or might not be releasable under FOIA, depending on whether the contractor makes that case. T&M contract for 6 repair jobs at $1,000/each. The $1,000 figure is releasable in a debriefing, as is the contract's ceiling price, and may be released under FOIA if already released in a debriefing. The fully-burdened labor rates might or might not be releasable, and the labor and overhead rates the contractor used to develop the fully-burdened rates (if included in the contract) might or might not be releasable under FOIA, depending on whether the contractor makes that case. CPFF contract for six satellites at $1,000,000/each estimated cost plus $100,000/each fixed fee. The $1,000,000 and $100,000 figures are releasable in a debriefing, and may be released under FOIA if already released in a debriefing. The contractor's rates (if included in the contract) might or might not be releasable under FOIA, depending on whether the contractor makes that case. The contractor has an affirmative duty to protect its privileged information -- that means when the contractor learns that the Government proposes or intends to release something that the contractor doesn't want released, it needs to make a case to stop the release, either to the agency or a U. S. District Court.
  14. Ratification Authority

    Carl, Everything that you say would be true if the text at FAR 1.602-3(b)(5) did not exist. But it does exist. And the regulation has to be read in a manner to give it meaningful meaning. Your scenario would require both procedures of FAR 1.602-3 and Subpart 33.2 -- but it is easy to see that this doesn't make sense -- what if the ratifying official approves the ratification but the contracting officer rejects the REA or claim (either before or after seeking ratification)? No, it is best to read the text in a way that makes sense. FAR 1.602-3(b)(5) does [not] say that a COR constructive change has to be handled under both procedures -- it simply says that such an action is handled under Subpart 33.2, period. By the way, yesterday the DAU Professor issued a decision that goes along with your thought process.
  15. Ratification Authority

    I stand where I do because I want to give meaning to the text at FAR 1.602-3(b)(5). Requiring a ratification for a COR constructive change renders the text at FAR 1.602-3(b)(5) wholly meaningless and superfluous. So in order to read the text at FAR 1.602-3(b)(5) in a manner that gives it meaning, I take it as it is written -- a COR constructive change is handled under FAR Subpart 33.2 and the contract's Disputes clause, not ratification procedures. The matter of punishing CORs is wholly separate from the ratification or Disputes process. CORs may be punished or unpunished, regardless of which procedures apply. Insisting on ratification procedures for a FAR 1.602-3(b)(5) matter to maximize the opportunity for COR punishment is poor policy, but I have heard this argument from many people -- and I am somewhat sympathetic, but only a little. However, my approval as a contracting officer of a COR constructive change using FAR Subpart 33.2 does not bar my agency from taking punitive measures against the COR.
  16. Ratification Authority

    This is an important point -- unfortunately, some agency FAR supplements do effectively undermine and even erase FAR 1.602-3(b)(5). A contracting officer needs to check his or her agency regulations.
  17. Ratification Authority

    I was glad to see this quotation that Vern provided. I have long held that FAR 1.602-3(b)(5) stands for the proposition that unauthorized commitments that would involve claims subject to resolution under the Contract Disputes Act of 1978 are to be processed in accordance with FAR Subpart 33.2, Disputes and Appeals (as opposed to the FAR ratification provision). Some others have said previously that such an unauthorized commitment must be processed under both ratifications and disputes procedures. I hope our community is moving to agreement that FAR 1.602-3(b)(5) stands for the proposition that unauthorized commitments that would involve claims subject to resolution under the Contract Disputes Act of 1978 are to be processed in accordance with FAR Subpart 33.2, Disputes and Appeals (and not as a ratification under FAR subsection 1.602-3.
  18. Price Analysis

    This statement proves my point -- whether or not you do a price analysis is largely your business (assuming a firm-fixed-price contract, the contract clause at FAR 52.244-2 Subcontracts is not included in the contract, the reason for the pricing effort is not driven by a contract modification, and you don't have or are not seeking an approved purchasing system -- and I'll add, assuming the contract doesn't include the clause at FAR 52.214-28 or 52.215-21) -- as far as I am aware, nothing in your contract requires a price analysis of your subcontracts. However, as Vern points out, it makes sense to do it. Vern is right here, too, but this also points to should rather than to must. Nothing in the FAR prohibits companies being run by idiots. Should you do price analysis given the circumstances described? Yes. Do it as a matter of good business for your company's benefit and in anticipation of problems that might potentially arise. Must you do price analysis given the circumstances described? No. No one here has provided you with a citation that requires it. A CPIF or CPFF contract will necessarily include the clause at FAR 52.244-2 Subcontracts, and that changes everything. You would either have to have an approved purchasing system (and if so, you will already have guidelines that you have pledged to follow) or obtain consent to subcontract for some, many, or all subcontracts (and if so, you will have to provide a negotiation memorandum for those proposed subcontracts). Our profession suffers when we are unable to differentiate between must and should. I interpreted your question as a must question ("does a price analysis need to be completed...?) and answered it as such.
  19. Price Analysis

    You have a firm-fixed-price contract. That contract does not include the clause at FAR 52.244-2, Subcontracts. The price between the Government and you is already established and firm-fixed-price. For the purpose of your contract, the Government really doesn't care what you pay your subcontractors and suppliers. They can rob you and cheat you and overcharge you, but none of that has any effect on the price the Government will pay you. You don't indicate in your original posting that the new quotes from subcontractors and suppliers are driven by a contract modification, so I suppose it is routine updating with no contract modification. Based on all of this, my thought is your pricing effort is for your benefit, not the Government's benefit -- you should do whatever pricing exercise you need to maximize your objectives in performing your contract and making a profit. My thought above is based solely on the instant contract. However, my thought above is not the right answer if you're looking beyond the instant contract -- for example, if your firm already has or is seeking an approved purchasing system, then you need to think beyond the instant contract and consider the requirements of your firm's purchasing system.
  20. Meaningful debriefing

    Maybe the contracting officer did give you a meaningful debriefing. Another offeror had a lower price and an acceptable proposal -- that's the rationale for the award decision, the summon bonum, so to speak. You weren't selected because your price was too high. That's meaningful -- a debriefing that explains the rationale for the selection decision is a meaningful debriefing. It is possible your proposal was never evaluated for technical acceptability, because the agency may have started with the lowest-price offer and worked upwards until it found a technically-acceptable offer. I don't know because I don't have the solicitation, but I know some agencies use that approach. Rather than asking for a meaningful debriefing, maybe you should ask particular questions related to your proposal, such as-- Did the Government evaluate my proposal for technical acceptability? If NO, why not? If YES, was the proposal found to be acceptable? If NO, why not? Were there any aspects of our proposal that could be altered or explained to materially enhance its potential for award?
  21. Request for Assistance

    apsofacto, My paper FAR from CCH shows the period and a capital letter. Yes, the period and capital letter are correct. I note that I have also noticed a few instances where electronic versions and paper versions of the FAR differ.
  22. Carl, I think we're in agreement. I started my answer from the general perspective of allowability and FAR Part 31, but I ended my answer by raising the question that you did -- what really matters is the bottom-line price -- and you're right to add that customary commercial practices should have bearing as the basis for negotiation and the price reasonableness determination.
  23. I'm okay with the GAO's decision. If Genesis (the protester) disagreed with the requirement for past performance questionnaires completed by previous customers, it should have protested this before the date set for receipt of offers. That's the rule. To wait until after it learns that it was not selected, and then to file a protest, is improper.
  24. YES NO [FAR 31.201-2( a )( 1 ) through ( 5 )] Is the contractor's cost for the effort spent in preparing the change proposal an allowable cost? If YES, then yes, the contractor can claim the cost. Perhaps your real question is whether the cost may be treated as a direct cost or an indirect cost? If NO, then the contractor cannot claim the cost. You can avoid the whole matter by using price analysis alone as the basis for your negotiation and price reasonableness determination. After all, this is a commercial item contract. If the bottom-line price is reasonable, who cares about the elements that add up to the bottom-line price? See FAR 15.405( a ) and 31.102.
  25. FrankJon, I'm glad you are here and that you're asking questions. I hope to impress on you that FAR Part 13 (including Subpart 13.5) is intended to be simplified -- that word is even included in the part's title -- however, anyone can make it as complicated as he or she chooses, and many people do insist on making it too complicated. I described an easy system using tradeoffs, and Vern described a simple system using scorings. You absolutely err in thinking you have to "substantiate every distinction between proposals (perhaps more so than in the case of a FAR 15 trade-off)." http://www.gao.gov/assets/680/674446.pdf http://www.gao.gov/assets/670/668038.pdf The bid protest cases linked above might be helpful in understanding how easy this can be. Too many contracting professionals (and attorneys and reviewers and everyone else) want to deny the "simplified" in simplified acquisition procedures. Again, I'm glad you're here and that you're asking questions. I hope this exchange is helpful to you.
×