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ji20874

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  1. FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement. I believe this is purposeful. I use the word “notice” in my own practice, not “solicitation.” EXAMPLE: FAR 42.903 says, “The contracting officer shall insert the clause at 52.242-13, Bankruptcy, in all solicitations and contracts exceeding the simplified acquisition threshold.” I do not insert the Bankruptcy clause in fair opportunity notices, because a fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community.
  2. Me, too. FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement. I believe this is purposeful. I use the word “notice” in my own practice, not “solicitation.” A fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community.
  3. Why not issue a new contract to the favored firm instead of modifying an old but still alive task order? My original answer opined that you can administer a task order even after the parent IDIQ contract's ordering period has passed, even if that means adding money such as for equitable adjustments. But, since you asked, let's talk about adding new and out-of-scope work to an old but still alive task order. Hopefully, you are talking about work that is reasonably related to the original task order and necessary for the accomplishment of the original task order but was not contemplated at the time, rather than entirely new work. PERIOD OF PERFORMANCE/ORDERING PERIOD: If it is deemed proper to modify a task order by adding additional work and raising that task order's price, you may do so by bilateral agreement. This action will be supported by a Justification for an Exception to Fair Opportunity (JEFO), right? In my opinion, it is not necessary to also modify the parent IDIQ contract whose ordering period has ended because you are not issuing a new order but are working under the authority of a JEFO with an existing order. Since the task order modification will be bilateral, you will have effectively dealt with any limitation driven by the contract clause at FAR 52.216-22. CONTRACT MAXIMUM: If the task order modification will cause you to exceed the contract maximum, well, you are going beyond the maximum that was envisioned when the contract was awarded. Going beyond the contract maximum because of equitable adjustment, including an equitable adjustment for a change order, is fine because this is all within the scope. But now, we're not talking about a change order or anything else contemplated by the original contract or task order. A J&A is usually required to go beyond the scope of a contract. Since the JEFO and J&A have the same approval thresholds and authorities, maybe you can combine these into one justification document and one approval signature. Since you aren't issuing a new order, I am not certain that a modification to the parent IDIQ contract is needed, but if it is, it will have to be bilateral -- so you might as well address any limitation driven by the fill-in for the contract clause at FAR 52.216-22. Or, why not issue a new contract to the favored firm instead of modifying an old but still alive task order? That's my first recommendation for your out-of-scope and beyond-the-contract-maximum new work. You could have had the new contract awarded by now.
  4. I'm not aware of a prohibition. If offers are due COB tomorrow, why can't you jumpstart the evaluations on all or part of the two offers you already have today? I'm not aware of anything requiring that the evaluation has to start after the date set for receipt of offers, and the Government can still be fair to everyone. The Government should not publicly acknowledge that any offers have been received before the date and time set for receipt of offers, and certainly not the number, identity, or content of proposals. I'm having a hard time imagining why you might want to, but I agree with FAR 1.102-4(e). If exchanges for any of these early proposals are needed, it might be prudent to delay those until after the date set for receipt of offers.
  5. I agree. Clarifications (even robust clarifications) or communications in the context of a comparative technical evaluation seem far better to me for evaluating professional compensation than the blunt instrument of responsibility -- and choosing the blunt instrument of responsibility just so the government can talk with an offeror doesn't make sense, either. I understand that professional employee compensation might possibly perhaps abstractly could be seen as a matter of responsibility, but I'm trying to stay practical. Jacques, In your own practice, do you generally treat professional employee compensation as contemplated by the provision at FAR 52.222-46 as (1) one of the comparative evaluation factors; (2) a matter of responsibility; or (3) a matter of pass/fail price realism? I understand that you believe it could be done as (2), but do you really do it that way? Carl, I haven't studied all the cases, either, but you make a good point. I think if there was no technical evaluation factor for professional employee compensation, then the -46 provision could be used as the basis for a cost realism analysis where a probable cost is developed (for a cost-reimbursement contract) or for a price realism analysis resulting in a pass/fail (for a fixed-price contract) -- I remember a GAO bid protest decision a while back that said realism could be evaluated in a fixed-price acquisition even if the solicitation Sec. L or M did not mention price realism but did include the -46 provision, because the provision specifically calls for an evaluation of professional employee compensation and specifically mentions realism. However, still, I think choosing to treat professional employee compensation as one of the comparative technical evaluation factors can make a lot of sense.
  6. Kimberly, I'm not understanding the picture you are trying to draw. Let me tell me what I am seeing, to see if you can help me understand the pertinent facts. You have a contract that allows for both T&M and FFP work. You are in an option year that started in May 2019. In May, the previous contracting officer obligated $1.5 Million to the labor-hour CLIN. The labor-hour CLIN had an obligated amount of $0 before May 2019, and $1.5 Million afterwards. The $1.5 Million obligation for the labor-hour CLIN is incremental funding. The ceiling price for the labor-hour CLIN is higher than that amount. In July, the previous contracting officer issued a notice-to-proceed (NTP) for work under the FFP CLIN but did not obligate any funds to the FFP CLIN. The work was within the scope of the contract. The NTP work had a value of $1.05 Million. Choose one of the following: This amount was already agreed to in the contract, or This amount was negotiated and agreed to by both parties, or This amount was unilaterally determined by the previous contracting officer. The FFP CLIN had an obligated amount of $0 before July 2019, and is still zero afterwards. The contractor did $350K of FFP NTP work before the FFP NTP work was stopped by a stop-work order. Your organization now has adequate funding to obligate $350K to the FFP CLIN. If any of the above statement are incorrect, can you provide correct statements? Are you still wondering if there was an ADA violation? You already know that funds are available within your agency so the agency has overspent an appropriation, and you haven't said anything that would point to another ADA reason. If you think there was an ADA violation, you really should take the entire file to your attorney and let him or her advise you.
  7. If I evaluate professional employee compensation as contemplated by the provision at FAR 52.222-46, I generally treat it as one of the comparative evaluation factors rather than as a matter of responsibility. I recommend that approach to others.
  8. I must have read differently -- I thought Ibn Battuta (pbuh) made a pretty good general statement, and didn't read his comment as trying to turn the evaluation of professional compensation into a definitive responsibility criterion.
  9. Right -- it is a true statement that simply using a pass/fail approach for an evaluation factor does not turn it into a responsibility matter. I said "an evaluation factor" -- I did not say "a responsibility-type evaluation factor." The case you cited deals with responsibility-type evaluation factors, and is inapposite to my statement which deals will evaluation factors generally, not responsibility-type factors specifically. As Jacques has pointed out rather well, it is not conclusive that professional employee compensation (as contemplated by FAR 52.222-46) is a responsibility-type evaluation factor. Thus, simply using a pass/fail approach for that evaluation factor does not turn it in to a responsibility matter. However, and in contrast for the sake of comparison, past performance is a responsibility-type evaluation factor, and if evaluated pass/fail instead of comparatively, does become a responsibility matter.
  10. "will ultimately be found?" In her original posting, Kimberly said that funding was already provided. I know we don't have all the facts. But still, I really doubt that Kimberly's agency has exceeded the amount available in its appropriation -- Kimberly has never even hinted at any such fact -- indeed, she said in her original posting that funding was provided. In the absence of proof, I think it is reasonable to lean towards the likelihood of no ADA violation. Nothing in the facts as Kimberly explains them points to an ADA violation. Oh, by the way, if Kimberly's agency has exceeded the amount available in its appropriation, she may be sure that her agency comptroller will be calling very soon. She can leave the ADA matter alone until the agency comptroller starts asking questions. I can't prove that the sun came up this morning (it has been cloudy all day), but based on experience and what I learned in high school, and discounting wild theoretical possibilities for such daylight as I can discern, I am content to lean towards the likelihood that the sun actually did come up this morning. One doesn't need proof to make reasonable assumptions. Kimberly has no duty to prove that there was or wasn't an ADA violation -- she just needs to administer her contract and get on with life. You're not going to convince me that my assumption is unreasonable (I note that joel, carl, and formerfed also tend to agree that there probably was no ADA violation), and I suppose I'm not going to convince you that Kimberly shouldn't be making ADA accusations or spending her time gathering proof, based on the information she has shared. Kimberly, I hope this thread has been helpful to you. At WIFCON, you get a diversity in opinions and retain complete responsibility for your own decision-making. If you are still concerned about an ADA violation, please talk to your agency's procurement attorney for advice or to your inspector general to start an investigation.
  11. Jacques, Even if what you wrote is what actually occurred, that doesn’t create an ADA violation. All of your potential corrective actions do not point to an ADA violation. The prior contracting officer might have been hasty, or might have done something akin to an unauthorized commitment (as Carl suggested) or some other process irregularity, or might not have “[o]btain[ed] written assurance from responsible fiscal authority that adequate funds are available” as required by FAR 32.702(a), but none of these creates an ADA violation. So based on experience and what the original poster has shared, I am pretty confident that the likelihood of an ADA violation is very small, even negligible — not worth pursuing.
  12. The GAO and Court of Federal Claims have told us that exchanges regarding acceptability of a subcontracting plan are not discussions (as that term is understood in a FAR subpart 15.3 context) because the apparent winner has already been selected subject to acceptability of the subcontracting plan. If the negotiations on the plan's acceptability are favorable, then contract award is made -- if not, then the offeror is ineligible for award of the contract. For the subcontracting plan, please note that reviewing and negotiating the acceptability of the plan (the words used by the FAR) is very different from evaluating proposed small business subcontracting participation as an evaluation factor. The first is a matter of responsibility -- the second is a matter of proposal evaluation and part of the best value selection decision. Similarly, we understand that exchanges regarding an OCI matter are not discussions (as that term is understood in a FAR subpart 15.3 context). In both of these circumstances, the award selection decision is made based on other factors identified in the solicitation. Simply using a pass/fail approach for an evaluation factor does not turn it into a responsibility matter.
  13. The original poster has not said anything about a change order. We don't know what rules were violated, if any -- but almost certainly, there was no ADA violation. I think Kimberly just needs to negotiate the final price and pay the contractor whatever the Government owes.
  14. You don’t seem to have an ADA violation. It seems you just need to negotiate the final price and pay the contractor whatever you owe.
  15. baby federal contracting specialist, We don't know if you're doing an open market buy, or an order from existing multiple-award IDIQ/schedule contract situation, or what... And we don't know if you're under the SAT or over the SAT, or what... And we don't know if you are using a J&A/SSJ/LSJ/JEFO... But, let me try to be helpful -- assuming you have concluded that you can get the item from the manufacturer and that the distributors' prices are unreasonable... Is your current procurement a set-aside (such as contemplated by FAR subpart 6.2) or other-than-full-and-open competition (such as contemplated by FAR subpart 6.3)? If your procurement is an open market set-aside (such as contemplated by FAR subpart 6.2), and the set-aside fails to provide you with an awardable outcome, you may consider the set-aside to be automatically dissolved and you may re-solicit unrestricted -- see FAR 19.507. The FAR does not require any approval above the contracting officer level for this, or any coordination with your small business office -- the contracting officer is free to issue the new solicitation today (however, I don't know about your agency regulations). If your requirement is other-than-full-and-open competition (such as contemplated by FAR subpart 6.3), and you thought that soliciting from 5 SDVOSB distributors would constitute soliciting as many sources as practicable IAW FAR 6.301(d), and you didn't get an awardable result, then yes, you may widen the net and re-solicit -- you might have to update your J&A document -- I would include the manufacturer and the 5 SBVOSB distributors in the re-solicitation. If you are working under a schedule contract or multiple-award IDIQ contracts, well, does the manufacturer hold one of the contracts? If yes, then the same thought process as above applies in a general sense. Do you want to go sole-source to the manufacturer, or competitive?
  16. The bid opening would have been a public affair, so people may know without the agency ever separately releasing anything. Hopefully, this time the contracting officer will require a bid bond in addition to performance and payment bonds — a bid bond helps ensure the winner will furnish performance and payment bonds. The interest from others is good — robust competition is good. Best wishes!
  17. Joel, You are probably right that the original poster wants to park money for future changes rather than do over-and-above work. I can't help him or her with that.
  18. I have used a funded over-and-above CLIN before, maybe for something similar to your need. I use the clause at DFARS 252.217-7028, Over and Above Work, as the template for my own hand-crafted clauses. But in such a case, the over-and-above work IS NOT a change and an over-and-above work authorization IS NOT a change order. If you really want change orders, the contracting officer can issue a change order under FAR 52.243-1 through -5 any day of the week, and without adding additional funding. The -1 clause, for example, requires the contractor's proposal within 30 days, and at that point you will have an idea of whether you need to (1) add additional funding; (2) do a partial convenience termination somewhere in the contract; or (3) do something else to keep the books balanced. There is a time and place for change orders, but for your construction project, I recommend trying to negotiate the pricing of changes as part of a bilateral process.
  19. https://www.acquisition.gov/sites/default/files/current/far/pdf/FAR.pdf Here's the webpage where I found the above: https://www.acquisition.gov/browse/index/far
  20. The FAR doesn't require you to document the difference. Are you going to rely on the IGCE as the basis for your price reasonableness determination? There are many ways to determine price reasonableness; comparison to the government cost estimate is just one of the ways. Do you want to negotiate to arrive at a fair and reasonable price? Or do you want to award without negotiations? Ditto to Joel's inputs.
  21. If it is sole-source, then it is not a set-aside. So, now that we know it is sole-source (and not a set-aside), please tell us if it is a sole-source 8(a) award under FAR 19.808-1, a sole-source HUBZone award under FAR 19.1306 (note that 19.1305 is for set-asides, and 19.1306 is for some-source awards, as these are different), a sole-source SDVOSB award under FAR 19.1406 (same parenthetical note re: 19.1405 and 19.1406), a sole-source WOSB or EDWOSB award under FAR 19.1506 (same parenthetical note re: 19.1505 and 19.1506), or some other type of sole-source award. Sometimes, this makes a difference. We don’t know your agency, so we don’t know your agency regulations. From FAR-level regulations, I am not aware of any reason to worry about the IGCE — all you have to do is negotiate a price with the offeror, and determine that the price is fair and reasonable. While you are negotiating price, you should also negotiate any additional or different clauses driven by the difference in dollar values. If your government estimate was below a threshold in FAR part 19 (such as the threshold for competitive 8(a)), but your offer or negotiated result is above that threshold, then you will have to talk to your management and maybe the SBA. If you think the IGCE is bad, then don’t rely on it in your negotiations. If you think the IGCE is solid, then you may rely on it in your negotiations. You may (if you want to) share all or part of the IGCE with the offeror, but you should not do thus unless you are a well-seasoned contracting officer and negotiator. If your agency regulations require you to address a difference between the IGCE and the awarded amount, then you have to follow your agency regulations.
  22. You're in a competitive situation, right? You must be, as all set-asides are competitive. But, your set-aside competition did not produce an awardable result? The contracting officer has at least five choices: Ignore the IGCE and issue a solicitation amendment and invite updated proposals from those who already proposed. Ignore the IGCE and accept the best proposal as fair and reasonable based on adequate price competition. Form a competitive range and open negotiations focused on lowering offeror prices to the IGCE -- you may even reveal the IGCE if you want to. Based on FAR 19.507, declare the set-aside to be automatically dissolved and issue a new solicitation as unrestricted and invite new proposals including from large businesses. Cancel everything and give up, saying that we can't afford it. No data or justification is required for any of these choices. Just do it. Is your IGCE just an estimate, or is it masquerading as a funding ceiling for your procurement?
  23. You’ve been around long enough to know what a technical proposal is.
  24. Don't these questions apply to EVERY evaluation of a technical proposal where the technical proposal is not incorporated into the contract? I am generally okay with subjective evaluations for many procurements. After all, as the GAO reminds us, the responsibility for persuading the Government evaluators falls squarely on the offeror.
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