Mike_wolff

I really hope this gets implemented - it's long overdue and can greatly increase the efficiency in getting multiple award IDIQs in place, especially for services such as construction, and puts the price competition where it belongs - at the task order level. Does anyone have an educated guess as to the likelihood it gets put into the NDAA?

I too am very thankful for all Vern has done for this community over the many years - thanks Vern!!! I only met you in person once, but have gained uncounted knowledge for all the free counsel you share. Vern came and spoke to my division of about 100 contracting staff (mostly 1102s) and didn't even charge us a penny, because quoting Vern "that way you can't complain you didn't get what you paid for." LOL We've put on the conference every year since then (some 18 years ago) and that one was still the best by far - thanks to Vern and also Professor Nash's participation as well.

I know I'm late to this party, but in case Vern, you are still developing arguments, at the very least I would hope to see that if we are stuck with the current GAO protest venue, that Congress could change the process to REQUIRE that contractors first have a debriefing, and if they still want to protest after that they have to start with an agency-level protest. I've seen too often that a contractor protests to GAO without even getting a debriefing, when a debriefing or CO/agency protest could have likely resolved the issue much more quickly, and much more cheaply for all parties.

I think the quoted excerpt above is a great argument - there is a huge difference between having a GSA Schedule and getting a BPA under that Schedule, and having the BPA is a significant benefit. Although I guess one could argue similarly for Part 13 BPAs. This does make me think though, if the BPA provided an additional, more than nominal, guarantee that would undisputedly make the BPA a contract, per the definition in 2.101, because it would "obligate the Government to an expenditure of appropriated funds."

Using that same logic though, why wouldn't the FSS Contract (or any IDIQ contract) only be a "charge account" and the contracts only be the orders?

It was a BPA under a FSS Schedule. The Schedule contracts are IDIQ contracts, so the task orders under them are binding contractual actions in accordance with the terms of that IDIQ, so it makes no sense how a BPA negotiated under the terms of a contract (NOT a stand-alone Part 13 BPA) is not also a binding contract. I didn't want to debate this again, as I think the above thread already does that, but was hoping there was possibly some correcting court decisions that I wasn't aware of. I was a little surprised that USCG was using the argument about FSS BPAs.

As many of you may recall, and which was discussed here on Wifcon long ago, GAO made what some believe (as do I) that mistaken comment that a BPA established under a FSS Schedule is "not a contract." Now we have the Coast Guard taking that same position according to this recent GAO decision: https://www.gao.gov/assets/870/861633.pdf I used the search feature on Wifcon and didn't get any applicable results (strangely, not even the thread I shared above) re: this whole misunderstanding of the difference between a Part 8 PBA (which is an agreement established under an existing contract, so of course it's a contract) and a Part 13 BPA, which obviously is not a contract. Has there been any case law that takes the other side of this to refute the GAO position (or maybe just the confusion of a single decision) on this issue? (My apologies if there has been another discussion about this, again, I couldn't find anything on the search.) Thanks!

I'm definitely concerned about the appearance of potential issues that arises by opening before the closing - which is why I generally say except in rare cases don't open until the closing date. And I also agree with ji20874, I wouldn't have any exchanges until after the closing.

While in most cases (maybe all) I don't think it is good practice to open before closing (and as I noted it's office practice not to do so), and I agree with all the reasons Joel lists above. So I'm not saying it's something we SHOULD do, I'm just trying to determine if we MAY do it. In some cases one reason as noted above would be to get a jump start on past performance or other labor intensive evaluation process issues on urgent projects. So, I'm really looking for specific regs, laws, cases, etc., that says we can't do it, because as we know, unless prohibited in some way we can do things if they make good business sense per FAR 1.102-4(e): (e) The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound.

Maybe I'm just missing it, but I can't find in the FAR or any case law that says when a Contracting Officer can open a proposal submitted in response to an RFP. Our office practice has always been that you don't open proposals until after the closing date, but is there a specific policy/case-law that dictates that a proposal can't be opened before the closing date? Thanks for any input you can provide! Mike

Thanks - our conclusion too was that we can't waive the requirement. Thanks for everyone's time in responding.

I question if you can remove it - without researching further, I would say you can't, because the prescription states that clause is to be inserted when the contract is EXPECTED to exceed $150,000. See 28.102-3(a) below. The fact the bid came in under $150K doesn't change the expected cost, and since some form of payment protection is still required, how much money would be saved? It might not be worth the work to modify and negotiate the change. However, interesting the clause already addresses contracts coming in under at $150K or less. 52.228-15 However, it doesn't say what to do in such a situation - and for construction between $35K and $150K alternative payment protection is required. Did your IFB include 52.228-13 Alternative Payment Protection? If not (and I'm guessing not given your GCE) it's a very interesting issue since the above quoted part of -15 has the "unless the resulting contract price is $150K or less, but doesn't then require -13. 28.102-3 Contract clauses. (a) Insert a clause substantially the same as the clause at 52.228-15, Performance and Payment Bonds—Construction, in solicitations and contracts for construction that contain a requirement for performance and payment bonds if the resultant contract is expected to exceed $150,000.

First there will have to be a huge investment in the IT budget. We still don't even have an electronic offer system in my service - to go to full AI it will take that and a LOT more. The biggest hurdle would be on best value tradeoff decisions, but there's ways (some for better, some for worse) you could automate that as well.

Right, just some some form of payment protection. I was hoping to find a waiver to ANY form of payment protection for work between $35-150K.

I'm looking for a way to waive the payment protection requirement required in 28.102-1(b), for work at a domestic, government-owned property. We have emergency repairs needed and don't want to delay the work waiting for a contractor to get payment protection (although I know in many cases a payment bond might take only 1-3 days to get, we want to streamline this as much as possible). Since I've posted the above, my legal counsel has said they have found no way to waive this requirement. I'm hoping someone might be able to say otherwise.

Does anyone know if there is a waiver process to the payment protection requirements in 28.102-1(b) (please see below). 28.102-1(a) references a waiver option, but (b) doesn't appear to, but given the small dollar amount I find it hard to believe there isn't one. I'm still researching this and my legal office is my next stop, but was hoping someone here might have a quick answer - thanks!!! Mike 28.102-1 General. (a) 40 U.S.C. chapter 31, subchapter III, Bonds (formerly known as the Miller Act), requires performance and payment bonds for any construction contract exceeding $150,000, except that this requirement may be waived— (1) By the contracting officer for as much of the work as is to be performed in a foreign country upon finding that it is impracticable for the contractor to furnish such bond; or (2) As otherwise authorized by the Bonds statute or other law. (b)(1) Pursuant to 40 U.S.C. 3132, for construction contracts greater than $35,000, but not greater than $150,000, the contracting officer shall select two or more of the following payment protections, giving particular consideration to inclusion of an irrevocable letter of credit as one of the selected alternatives:

Bob - I missed this post last year, so Happy 16th to Wifcon! Thank you VERY much for running this site - I echo what has been said above, this site is invaluable to the federal contracting community.

We are having a similar discussion in my agency right now, and I find that a common point of confusion is the difference between SOLICITING without funds being currently available, and AWARDING without funds being currently available. 52.232-18 applies to contracts awarded without funds being available, not a solicitation being issued without funds being available. I'm not aware of anything that prohibits issuing a solicitation without funds being available. I know it is not preferred, but as long as you put potential offerors on notice that funds are not currently available, and the solicitation may be cancelled without an award, I don't see how that is prohibited. If someone is aware of a law, reg, or court decision that says otherwise please let me know as this is a hot topic. Thanks!

More Guns, Less Crime by John Lott, Jr. (3rd Edition) An excellent statistical analysis of various gun laws, both restrictive and permissive, and their resultant impact on crime.

One of the areas you should consider is "whether the change could have been anticipated by offerors." ("Administration of Government Contracts," 4th Ed, page 386.)

I was at the Nash & Cibinic Report Roundtable a couple of weeks ago and one of the presenters (I believe it was Marcia Madsen, but it may have been someone else) mentioned that there was a recent surprising court decision regarding conflict of interest with a major defense contractor, and that the decision was surprising because the contractor was speaking to the Government as an industry rep, but apparently that was the only contractor the Gov did market research with and the court concluded that the contractor was prohibited from competing on the procurement they gave comments on. I may have the facts off a little on this, but does that ring a bell for anyone? If so, would you be able to provide the name of the court case? Thanks in advance! Mike

Just so you know, in the opinion of many GAO is off-base on their "BPA is not a contract" when that BPA is done against a GSA Schedule. See this discussion here: http://www.wifcon.com/discussion/index.php...pic=258&hl=

"Never wrestle with a pig - you'll both get dirty but only the pig will love it." That being said, in a case where you may have not already done so, I think it's important to explain why you are doing what you are doing, and in the vast majority of cases I've been involved with where someone wanted us to buy something the wrong way, I've been able to find a correct way to accomplish the same - or even better - result.

Joel, I'm not sure if you're are speaking to a general audience with the above post, or if you think I'm trying to be one of the people fitting square pegs into round holes, but let me assure you that I definitely am not. Sadly, COs usually do have to follow (although not blindly - often our eyes are bulging at the stupidity) "dumb" rules - because they are usually based in law. No one has given any CO the right to ignore laws or regs they think are dumb. There are a lot of "dumb" rules Contracting Officers have to follow. We can - and do - work to change them, but just like one man's pork is another man's job program, one man's "dumb" is another man's great idea, so actually getting them changed is rare. This IDIQ issue is a perfect example. I know that it's been written about in N&CR many times, but nothing happens. Performance-based contracting is another one - it's pushed repeatedly but even OFPP has stated (I don't have the memo in front of me so I'm paraphrasing) that they can't prove that it actually works. Mike

Vern and Joel, Thanks much for the renewed discussion on this issue. I believe it has confirmed my understanding that we do need to have binding unit prices established in the base contract that are used in the competition of future task orders. That always seemed relatively clear to me except that the proliferation of contracts that do not comply with that that started to make me doubt my understanding. I do also agree that it may not make sense in many ways to have such a requirement (although in other ways it does), since when does federal procurement laws and regs have to make sense in order to be required to be followed. Mike