jayandstacey

I'd use $100m for each. FAR 15.404-1(d) includes: (2) Cost realism analyses shall be performed on cost-reimbursement contracts to determine the probable cost of performance for each offeror. (i) The probable cost may differ from the proposed cost and should reflect the Government’s best estimate of the cost of any contract that is most likely to result from the offeror’s proposal. The probable cost shall be used for purposes of evaluation to determine the best value. In each offer, the probable cost is $100m, since $100m is the most likely outcome from either offer.

Wasn't that essentially the root issue in the Kingdomware decision? That the VA stopped doing SDVOSB set-asides once the goals were met? Only one example, I know...and this was a bit of a corner case due to the uniqueness of the VA and SDVOSBs...but the practice seemed to be there.

This one is particularly perplexing. The current system is pretty much like a run up to a cliff. You're advantaged to drive success, then the advantages are pulled away at a point where you may be too small to effectively compete against the big guys, and you're disadvantaged (or even not allowed to compete) with companies that have only 10 less employees than you do. So the path becomes, almost invariably, to grow the business to the line then cash out. Forget about the fact that at the line, you might be the type of business that can REALLY be an economic engine under a more level playing field, generating increasing growth in jobs and revenues. Nope - you sell out to one of the big guys, or simply close the doors at that point. The only thing keeping this from being a disaster for some companies seems to be the inconsistency of the application of small vs large. As a company becomes larger, it begins to tick off various NAICS codes it can't bid under as small, until it runs out. Likewise, contracts have various re-certification schedules, where the company might be able to maintain their small status for some time on some contracts. So the cliff isn't exactly sheer, but it is pretty steep. Which in some ways is worse. As I said above, I've considered what fixes I'd make. I've thought about patches to the current system, whole new systems, and ditching the system entirely. The latter seems to make the most sense, yet is least likely politically. Which leaves us with a vending machine that everyone seems to know how to shake to get free stuff.

I once interviewed candidates for a job and asked each "what regulations would you change?" - FAR 19 was the consensus favorite. Even if you take the supposition that small business concerns should be favored as a way to drive the economy, I'm not sure the current regs actually help that...and maybe they do the opposite. Take the notion that many NAICS code thresholds are based on number of employees - the rules encourage companies to stay UNDER those thresholds; to limit the number of jobs they create. I knew of one company that did sweeping annual layoffs each fall (after busy season) just to ensure they stayed under the headcount caps. That's the behavior that results from the rules - is that in line with the underlying intent of the rules? It seems quite the opposite. I've not considered pure neutrality (i.e., no economic preferences) as proposed in the book description. I've thought of lots of tweaks and alternatives to FAR 19, but they all suffer from flaws. And maybe that's the best case for neutrality. Besides, build a better mousetrap and the government won't care what size you are. The book sounds interesting.

Is this solicitation for commercial items? If so, under the right conditions, a SB subcontracting plan can be company-wide and not specific to the solicitation. The plan can also be expressed in terms of the percentage of dollars subcontracted vs. some other standard (like the contract value.) So, when using a company plan, a prime might pull in a $billion annually, subcontract only $200 annually, and have $100 of that $200 go to a small business. And that small business might mow the lawn one time at their HQ. In that case, the Company SB Commercial SubK Plan would show 50% attainment...and would be applied to multiple contracts throughout the year. If so, the salient points of the new technical requirement is that the dollars be tied to those companies performing on the contract, and that the percentage attainments are tied to the total contract value, not just the value that the prime decides to subcontract. It seems like a way of beefing up the commercial SB plan requirements by creating a new, higher bar; one that can be evaluated and preference given to a bidder willing to actually involve small subcontractors in the effort, vs. a Company SB Commercial SubK Plan which can only really be a "yes/no" evaluation. Does this fit the situation?

Hmmm...I don't recall. It was about 15 years ago. I hear ya. Whenever I hear someone say "BPA" i have to stop and ask: Do you mean ANY agreement to to do blanket buys? Or a kind of subset to an IDIQ? Or a BPA as an FSS construct? I've heard it used as a synonym to "contract". I'm just an entity on an internet forum with no authority at all It is simply an adjustment I'd make to the rules, if I were able to adjust the rules.

Well, it can't be as broad in scope as a BPA could be. It needs defined requirements, such as an agency's Approved Products List. It also must be bid; it can't just be negotiated. Years ago I set up a BPA for "2% off all GSA orders" against a particular GSA Schedule, as negotiated (not competitively awarded). That's not possible with an Agency Catalog. Additionally, FSS contracts (and thus BPAs) can be teamed between contractors, and can be utilized by state & local governments. While these benefits aren't specific to BPAs, they do make a BPA a very different tool from an Agency Catalog. To what end? Have you reached out to NASA? It's an Agency Catalog, not a /BPA. Going back to the earlier question - No one is awarding a BPA against a non-FSS IDIQ. However, I do believe there are times where doing so makes good sense. The IDIQs in this space are generally large (many awardees) and sliced one particular way; usually, by small business status, like with SEWP, but sometimes by technology scope. However, these slices don't always meet Government needs. If a buyer has particular, justified, cross-cutting needs (for instance, for vendors with a 24/7 help desk, or for vendors that are certified a certain way, or even just to get lower prices with some companies with some relevant past performance) - wouldn't it make sense to allow the Government to narrow the IDIQ field one time and use that for future fair opportunities and purchases? Not forever, and not for everything...but to a limited scope. My opinion is that certain types of IDIQs should have the same BPA capabilities (and restrictions) as FSS contracts. Or something very close. Or that BPAs should be reigned in a little bit. You're making accusations of confusion and lack of process - yet seeking to understand SEWP's Agency Catalog. You may be right...I don't have the Plan you reference. The claim just seems premature. Basically. But the process and options have changed and the slides are a year old. You'll want to work with NASA.

I've not seen a one-contractor option for this, at least not recently, maybe because of the Motorola decision. It is not a BPA and doesn't have all the features of a BPA. It does temporarily create a smaller subset of qualified SEWP vendors for a defined and limited batch of in-scope products/services and to that end can help streamline procurements while driving to lower baseline prices.

That is if an online subscription from a publisher, as resold, counts as a service. Maybe it does. The FAR is a bit weak on making the distinction. Edit - is it a FAR part 37 Acquisition?

And following from this (as referenced in FAR 52.219-27(f)), FAR 19.102 (f) (4) and (5) address the particular situation at hand. Also, LearningCurve, doesn't the Kingdomware decision require the VA solicit from SDVOSBs? It isn't necessarily the "big publisher" trying to "force" anything or gain preference. It's how it has to be done. And the non-manufacturer rule applies.

Does it even need to be human-based? This seems like an ideal task for the AI procurement bots.

Call the new paradigm the "NEAR" - New Excellence in Acquisition Regulations Because, you know, its the opposite of the FAR.

<sigh> This is sad to read. It's the stuff of $600 hammers.

We're trained to be flashy. And non-binding.

Is it? They could be equivalent, in the sense that the second company just didn't give as many details. But they MIGHT be doing the same thing, the descriptions aren't contradictory. One certainly provides more confidence; I get that. From the government's perspective, they ARE ultimately the same, in that neither provides a guarantee. Now, if the first one promised they WILL fill the position within 15 days, and that becomes a part of the contract...that's a different offer. Right? Don't get me wrong, I'm all for consideration of the company as a hedge against risk. I'm just cautioning that even a pig can be described with flowery, detailed language that instills confidence.

Agreed. The vagueness is a function of the fact that the government is not always an expert at these things/services....which partly explains why they are reaching outside the government to procure them. The vagueness is also a strength; it allows the government to maximize competition, stay current and to change gears when they want or need. Is the incumbent favored sometimes? Sure. But if that were ALWAYS true, there'd be no competition at all.

Hi Vern: Information Technology products and services. In my particular example; the product was an enterprise software agreement. Our proposal matched the Government's payment structure to when/if they had the budget, which allowed us to win. The Government was precise in the definition of the software, what was left for the contractors to solve was HOW to deliver the licenses so the Government could be successful. We solved it with a financed structure. The item was simple; the structure was a bit complex but necessary. More broadly (not to Vern per se): While a "better mousetrap" isn't always in play; I'd say it often is, even if not asked for. These can be small (like showing how commercial past performance might be more relevant) to large (proposing a much more efficient backhoe when the Government envisioned a team of laborers with shovels). Most every company Ive ever known was formed with some unique value proposition in mind, and RFPs are sometimes a battle of who's value proposition is either listed as more important in the RFP, or not listed but evaluated from the proposals. That's the rub for lotus - don't show up late to the party, then try to protest into the win. That's just not a sustainable business practice. Convince buyers ahead of time of the value prop your company brings, and be the thing they're looking for. My old company had a general policy that we wouldn't bother to bid on RFPs that were "news" to us upon their release. Because it meant we'd already probably lost that battle and our resources were better spent somewhere else.

I'm on the contracting side and I see benefits to there being some wiggle room in evaluation criteria. It invites a better mousetrap. An Agency may know exactly what it wants when it procures pencils, as that's a 100+ year old technology. Such an acquisition lends itself to an LPTA approach, or a tightly defined points scheme. However, beyond basic commodities, the risk in evaluating ONLY particular specs or skills is that "better" specs or skills cannot be evaluated. So what's "better"? - well, a contractor proposes what THEY think is better, and sees if the Agency agrees. My former company won a contract one time with a price that was about 20% higher than our next closest competitor. The Agency knew what they wanted, but didn't know how to get it. We proposed a way to deliver that matched their needs and won. Everyone was bidding the same underlying THING, but we solved their problem in a way that overrode other considerations like price. Now, a losing contractor might say "Hey - but now that the Agency knows HOW they can get that thing, they should re-solicit and ask everyone to bid using that same approach" to which I say...no. Our price was higher because the approach added some cost. The extra cost would have been roughly true for all bidders, so the Government wouldn't have saved much in round 2, yet would spend a bunch of money and time trying to make it a level playing field. With the first solicitation, someone (my company, in this case) cracked the code and an award was made. The answer, for Lotus, is to ask for debriefs and learn, learn, learn... Go into a debrief with questions the Agency can answer, that help you learn why you didn't finish first. Learn about what the other contractors are doing. Don't focus on deals where someone beat you by five cents on the same exact thing, rather, focus on deals that you thought you should win, but that some 'better mousetrap' won. Maybe Lotus is in a commodities business and leads with lowest price only? I don't know. I'd suggest that every successful contractor I know wins by offering better mousetraps, not by hoping the solicitation matches their exact mousetrap for which they have the lowest price. The better mousetraps generally win - and that's a good thing.

Consider offering an annual statement asserting that ALL of your offers that may be purchased over the year qualify as commercial items under the FAR. (if that's the case...) This has two effects: 1. It helps minimize the repetitive requests (and gives you a handy, signed document to produce when they do pop up) 2. It helps the customer (the prime) paper their contract file in a way that is almost over-compensating, making them happy (to Vern's point).

Setting aside the TAA/BAA applicability, two concerns I'd have. These are just possibilities: 1. When the offeror does not have a connection to the manufacturer, they may (in my experience) just list the item as US origin on their GSA Schedule. The reason is that they do not know where it will be coming from (since they are not buying from the original manufacturer), as they will not actually buy the item until an end-user steps and purchases. Note that GSA for the most part does not indicate or distinguish the offeror's relationship with the manufacturer, nor does it seek this information with new offers... so offers for item X may appear side-by-side, one from a company buying from the manufacturer (and knowing the actual country of origin) and the other not. As a buyer you may (or may not, some product types are regulated) may be permitted to buy used / refurbished / not from the OEM equipment - but as a practical matter you should know when this is happening. A blanket "made in USA" that doesn't match reality raises this question. 2. As mentioned above, TAA relies on a substantial transformation test. The product may have shipped from Taiwan but was previously substantially transformed in the US (or a qualifying country.). This may make it technically compliant. But you have to ask...what was it doing in Taiwan? Does this pass the sniff test for various other regulations, like security or other procurement regulations? We live in global economy but...to make a $50K product in a qualifying country, then to ship it to a non-qualifying country to sell it back to the U.S....that might be worthy of further investigation as to why the product is moving so far and who's touching it. At a minimum, upon receipt I'd contact the manufacturer and, to the degree possible, ensure you have clean title to the machine, any software licenses it may include and rights to whatever warranties it should include. I might also check to see what they say about where it was made. I might withhold acceptance until I'm confident of these things.

Piling on: It is sometimes possible to identify the offeror by the color palate of the proposal, the nomenclature of the figures, the writing style, the paper chosen, even the page formatting. This is purposeful, and it is possible that having "blind" competitions may inadvertently disadvantage a lesser known offeror.

Agreed I've always thought of this as akin to driving through a mountain tunnel. It took enormous effort to dig the tunnel - effort that far, far outweighs the value of any single trip through it. As we drive through the tunnel, we barely see the walls or even think of what it took to make it viable. We just have familiarity with tunnels and our experience guides our effortless passage. Today, the tunnel requires some maintenance that is relatively small relative to the sum of the trips through. If it isn't apparent, the tunnel is procurement regulations and processes. Each drive through is a procurement. Absolutely agreed that 40+ pages (plus references) for a furniture procurement is over the top - but so is the effort expended to blast open a mountain so I can have a Sunday joyride, right? I'd say the good news is that (presumably) the office issuing the solicitation didn't take too much effort to do so, using boilerplate and such - nor does the bidder spend much time on it. We've all been through tunnels before and we look for special warning signs...but so long as the circumstances are the typical ones we've seen before, we sail right through without hardly slowing down. To extend the analogy though: Is tunneling the best way to get from A to B? Maybe a better path is due. Maybe 40+ pages for a small procurement is still inefficient by its nature, even if it seemed OK as we drove through.

I suspect GAO made a caculated decision to take their chances with that. Latvian Connection (LC) would have to appeal to the right place (probable), in the right way (seems unlikely) or have someone else do it on their behalf (like an ACLU type, which also seems unlikely.) In the short term GAO can toss LC protests aside without review. In the long term GAO might invite an intervention which might result in some negotiated bounds on protestor "time wasting". So yes, it is outside the rule book but the rule book never anticipated the specific LC behavior, and it is highly doubtful that the GAO budget might expand to have more resources to address LC behavior within the current rules. The absolute worst case for GAO seems that they are ordered to going back to processing LC protests case-by-case. I would imagine GAO is following other slower paths to address this too, so this buys them time while other wheels turn. Seems a reasonable and calculated move given the extraordinary circumstances. I'm no expert at what happens when agencies step outside the box: is there practical downside for GAO here, given the circumstance? (Edit: traffic laws say 'no running the stop sign' yet very, very rarely there may circumstances that are not exceptions in the law, yet, when told to a judge, would result in leniency. I'm not saying this is traffic court but...seems GAO is willing to make that bet)

Posted in error - please delete. Sorry!

To the OP - I've heard the argument whispered but never put to the test - or even attempted. The tide of practice seems heavily (100%) against it, both inside and outside GSA. The OP's argument is simple logic: GSA requires TAA compliant products TAA is an exemption (subset, if you will) of BAA. IT products are exempt from BAA Therefore...Any IT product should be allowed on GSA regardless of origin. Methinks the Government would say that they don't care about TAA's origin, they are extracting the TAA singularly and applying it.