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Posts posted by ji20874

  1. I don’t have any samples.  But read what the FAR says about responsibility, and use some of those words.  Don’t ask SBA to determine whether the offeror is responsible, but make your own definite and direct statement that you have determined the offeror to be non-responsible for this procurement.  Include facts, minimize emotions.  You are not recommending that SBA find the offeror non-responsible; rather, you are making that determination.  Describe the risk or harm the government would face with award to the offeror and express why that risk or harm is unacceptable.  Write the determination using the first person “I” pronoun — not the government determines the offeror non-responsible, but “I” determine it non-responsible.  

    You may share your draft by notification to me within WIFCON.

    Still, there is no guarantee.  In CPARS, did you really give an UNACCEPTABLE rating? Or did you give a SATISFACTORY and mention the poor performance in the text?

  2. Having chosen an LPTA approach, you cannot stop the SBA from doing it’s job if you don’t select a small business solely for a responsibility matter (such as pass/fail past performance). However, instead of writing a wimpy determination of non-responsibility, you can be strong.   I have made more than two dozen determinations of nonresponsibility and COC referrals, and have never had the SBA grant a COC.   Keep emotions out of your determination, but be strong with facts and your own professional decision that the offeror is non-responsible.

    Or, drop the LPTA approach because it does not fit your needs.

  3. BYW, your attorney is wrong.  If you are evaluating past performance as pass/fail (you shouldn’t, but you are), you need to be honest and assign the fail or unacceptable rating, if you think that is right.  You should do what is right, and then let the SBA issue the COC, or not, as it chooses.  It would be a gross failure of your professionalism to assign a pass rating solely because you think the SBA might issue a COC otherwise.

  4. If you evaluate past performance as pass/fail, and you assign a fail rating to a offeror who would otherwise be the successful offeror, you must refer the offeror to the SBA for a COC if that offeror is a small business because you have treated past performance as a responsibility matter.  If the SBA gives a COC, well, you asked for it.

    So don’t evaluate past performance as pass/fail — stop it!  Instead, deal with past performance as part of a tradeoff, and assign the offeror a low confidence (or high risk) rating for past performance — low confidence is not the same as unacceptable.  The low confidence rating does not disqualify the offeror, but it will likely be a disadvantage in the tradeoff.  In the tradeoff, select the best value offeror, even if you have to pay a price premium to another offeror for higher confidence.  In this approach, the unsuccessful small business offeror is not referred to the SBA for s COC.

    Don’t use LPTA if LPTA will not give you the best value.  Use s tradeoff.  Problem solved.  

    You’re welcome.

  5. 1a) No, a technical evaluation is not required for all acquisitions.  A technical evaluation is only required when there are technical evaluation factors (whether formal or informal factors) and some sort of a technical proposal or submission.  Many acquisitions don't have technical evaluation factors and don't need technical evaluations -- for example, a $125 Million sealed bid construction acquisition based only on price and price-related factors with no technical proposal -- for another example, a $90 Thousand simplified acquisition for a national stock numbered item based on a tradeoff between price and delivery with no technical proposal.

    1b) If a technical evaluation is done, it seems that it should be documented.  It is easiest for the documentation to be done by the person (or persons) who did the evaluation.  However, it would be possible for the evaluator (or evaluators) to orally brief the results to the selecting official -- in such a case, the selecting official's documentation should demonstrate a reasonable basis for his or her decision.

    2) No.  It is generally okay for the technical evaluator (or evaluators) to be aware of price.

    3) Sometimes, maybe, I'm just supposing but I don't know for sure, the technical evaluator (or evaluators) might want to select the winner (instead of simply doing the technical evaluation and leaving the tradeoff and selection to the selecting official) -- in such a case, if it ever arose, I might withhold the price from the technical evaluator (or evaluators).

  6. What does the FAR say?

    Then, think carefully about why the FAR says what it says.  You might conclude that the apparent FAR insistence on consent of the surety makes good sense.

    If you find that reducing the penal amount of the bonds below the value of the contract as modified without the surety’s consent is a deviation from the FAR, well, we at this forum can’t give you permission to deviate from the FAR — but your agency leadership can.

    If the concern is going over a limit, well, bond premiums are relatively cheap -- would it work to negotiate the price for the work down a little to cover for the bond premium?

  7. The answer you depends on how you ask the question.

    If you asked the question about a 20-year performance period, you got the answer you asked for.  I wonder if the person giving the answer even knows what an energy savings performance contract is.

    However, if you had asked the question about 3-year construction performance period and a 20-year period to share in savings, and if you asked someone who was familiar with ESPCs, you might have gotten a different answer.

  8. Guardian, This isn't the hill where you want to fall on your sword.  If your additional invoicing instructions do not offend (g)(1)(i) through (x) of 52.212-4, just include the instructions in your solicitation. To convince your office to drop its mandated use of the instructions is likely an impossible challenge. Any prospective offeror may raise its hand to object after you release your draft solicitation (or final, if you don't do a draft, but I really like releasing drafts especially for important acquisitions), but absent offeror input, the fight is likely too hard.

    Carl, Absolutely right about market research!

    Guardian, Your robust market research should shape your belief about customary commercial practice.  Your market research should tell you how the services you are buying are bought and sold in the commercial sector.

    I have no problem with trial balloons -- put out a draft solicitation, and specifically ask for input from prospective offerors on invoicing instructions and the FAR inspection clauses to verify your belief based on your market research.  I suspect the requirement to provide and maintain an inspection system acceptable to the customer is not customary commercial practice, but I don't know what market sector you are in.  Your prospective offerors should be able to speak for themselves.  BTW, did you know that Alternate I to 52.212-4 already provides inspection text that is supposed to be appropriate for commercial T&M buys?

  9. Joel,

    May I ask you to respond to my question?  You (and Don) and telling readers not to use agreement of the parties, but you aren't telling them what they should use instead.

    In a contract for commercial items, the contract calls for 100 EA white items for delivery in 60 days.  Shortly after award, the parties agree to 33 white, 33 red, and 34 blue in 45 days.  That’s legal and honorable, right?  Everyone is happy.  What is the authority for block 13 of the SF-30?

  10. QUESTION #1 -- Looking at subparagraphs (i) through (x) of FAR 52.212-4, para. (g)(1), which of those specific subparagraphs is tailored by your additional instructions?

    QUESTION #2 -- If you believe the FAR part 46 clauses are consistent with customary commercial practice, include them in your solicitation.  If a prospective offeror thinks otherwise, it may raise its hand and say so -- then, based on what you learn from engaging with that prospective offeror, you might change your mind, or not.

  11. The preferred authority citation is a clause in the contract.  But sometimes, there isn’t a specific clause that can be pointed to, and yet the modification is still legal and honorable.  In those cases, agreement of the parties might be the best one can do.  I’ve done it.  I never used a FAR 43 citation, but FAR 1.602-1 might work.

    Here’s a question for everyone who objects:

    As an example, in a contract for commercial items, the contract calls for 100 EA white items for delivery in 60 days.  Shortly after award, the parties agree to 33 white, 33 red, and 34 blue in 45 days.  That’s legal and honorable, right?  Everyone is happy.  What is the authority for block 13 of the SF-30?

  12. That's the wrong place -- that does not talk about reducing. You need to read FAR Part 28, which is instructions to the contracting officer.

    Read all of subpart 28.1 and 28.2, but in particular look at 28.102-2(b)(1) and (2), 28.203-5(c), and 28.204(b).

    Why do you want to reduce the protection that bonds give the Government? Has the contractor already completed a significant portion of the work? Why not leave well enough alone?

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