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CDBurner

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  1. CDBurner

    New FAC Contains Wonderful Thanksgiving Surprise

    Ha! "inadvertently inserted", that's funny. Refreshing to see someone breech (if only for a moment) the sanctimonious self-serious tone that usually pervades these things to have a little fun. Too bad the stiffs got to it. Or maybe I'm being too harsh, maybe the "stiffs" knew about this all along and just agreed to leave the link up for a day or so. I just hope whoever "inadvertently inserted" this doesn't get in any trouble.
  2. CDBurner

    No Meaningful Discriminators

    I've had similar thoughts, hopefully that's how GAO would see it too (if it came to that). I realize I've necessarily been a little light on the details, perhaps even a little willful obfuscation. Suffice it to say I've discussed with KO, and the KO is looking for suggestions too. Just reaching out to a lot of different resources, just appreciate the insight and opinions of those who have been around longer than I. Thanks Vern. The insight on the fine differences on prices is appreciated. I've been told of a legal doctrine of "substantially identical" when prices get within a few percentages of each other, (meaning once they get close enough, you treat them as if they were identical) but I've never run into anything in writing or the regs, so I'm glad to see you don't seem to have heard of it either. I had forgotten about the sealed bidding procedures for ties (drawing lots). Wow, I doubt it would ever come to that, but thanks for the reminder. Also, thanks for the GAO case reference. It's one I hadn't run across, and I can see some similarities.
  3. Let's say there is a tradeoff source selection where the Evaluation Team is having a really hard time coming up with discriminators to recommend to the SSA. Prices are within fractions of a percent of each other, technical evaluations are very similar, having a hard time coming up with any sort of objective valuation of strengths. Past Performance is essentially identical. I'm sure this isn't the first time this has come up, what have others done in this situation, and how did it work out? Just go ahead and recommend a decision on small differences no matter how fine? Continue evaluating to try to draw out more meaningful differences? Something else? All the GAO/COFC cases I've read seem to revolve around the idea that when prices are very similar, non-price factors become more important, and vice versa. I haven't been able to locate anything that might hint at a precedence of what has happened when all factors are very similar. Anyone have any suggestions?
  4. CDBurner

    THE WALL on FBO

    I have some friends who want to send in their own designs for the wall through the FBO posting (you know crayons, glitter, crate paper, etc.) as some minor civil disobedience. I've warned them that this probably won't have any effect besides making those DHS contracting folks' life miserable. Thoughts? Also, I'm not aware of any laws against making "frivolous proposals", but there still may be some. Anyone aware of anything like that?
  5. Scenario: Competitive cost-type solcitation, two offerors received. We are performing cost realism analysis as required by FAR 15.404 and have evaluated some areas of the offerors proposal as low in comparison to what we feel is their probable cost. We will be entering discussions to hopefully cure these concerns with the offerors via evaluation notices ; however, there are some in our approval chain who believe that all concerns that effect evaluation criteria (realism in this case) should be classified as deficiencies. If after discussions these concerns are still not resolved to our satisfaction they maintain that we must eliminate the offerors based on the fact they haven’t cured an identified deficiency and are not realistic. My point of view is that logically why even establish a probable cost as laid out in the FAR if we’re just going to eliminate offerors for deviation from that cost? (All of the GAO cases I’ve read seem to bear this out as well) Further I don’t think we need to classify all ENs that fall under the cost realism evaluation as deficiencies. I don’t see how they represent “a material failure to meet a Government requirement” Those above me are also concerned that awarding a contract at the proposed cost as opposed to the probable cost represents some sort of fiscal law violation because we are admitting that we believe the contractor will overrun the effort based on their proposed cost and are conciously underfunding the effort based on that admission. My point of view on that issue is I have no problem funding the contract at the probable cost (although I haven’t consulted with anyone whether that violates some sort of fiscal statute), but I would think the contract needs to be awarded on the offeror’s proposed price and any sort of fee calculation should be done on the proposed price as well. The bottom line is I feel it just makes smart business sence to award to an otherwise acceptable offeror even if their proposed cost differs from our probable cost (assuming that their probable cost is still the lowest probable cost, all other things being equal). This issues is still very much in flux, but I’m having a hard time convincing those above me, and I feel strongly that this is the right thing to do. What I would like is for the input of more experienced heads in this forum to tell me if I’m wrong, and why. If I’m right, then any sort of back-up rationale/citations I could use would be appreciated. Or I’m also open to the idea that I’m misunderstanding this somehow and I should be looking at this completely differently. Thanks in advance!
  6. Perhaps I wasn't as clear as I could have been. I didn't mean to imply you had to get a sole source justification to make any single award IDIQ >$103M, I was complaining about the requirement in FAR 16.504 ( c )( 3 ) The requirement for a determination for a single-award contract greater than $103 million:( i ) Is in addition to any applicable requirements of Subpart 6.3 So any single award IDIQ >$103M that is also sole source not only has to get a sole source justification, they also have to get the single-ward waiver. (Department of Redundancy Department) In this case I’d like to find out I’ve been misinterpreting this. But if I am, I’m not the only one. Fair point. It’s our SPE too, but still A LOT of scrutiny (and time) gets put on any document going up to that level.
  7. “FAR 16.503( b )(2): No requirements contract in an amount estimated to exceed $103 million (including all options) may be awarded to a single source unless a determination is executed in accordance with 16.504( c)(1)(ii)(D).” First off I don’t like this rule. I believe I understand its intention, but I think it ill-conceived and if followed in-letter, it is constantly violated in-spirit (at least in my organization). I also see it somewhat silly making this a requirement in addition to other sole-source regulations (at least 6.302-1) since why would we want to approve a single award, when we’ve just certified something like ‘Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements’? It seems to me like requiring a cardiogram to verify someone’s heart isn’t beating after they have been declared dead. There are plenty of ways around this rule, one of the simplest being restructuring the contract as a regular C-Type contract. The end result is that instead of having to undergo the delay and effort of routing an approval up to the head of the agency, contracts that would arguably be much more appropriately structured as an IDIQ contract are being forced into other types to avoid this process. Multiple Award isn’t always being avoided, but there are some clear to light-grey cases where all/most of 16.504( c)(ii)( B ) applies, but teams just don’t want to take the chance. We’ve found that teams are reluctant to go the traditional waiver path because if the HoA denies it, they are stuck in the situation of almost having to do a multiple-award IDIQ, since switching to a C-Type contract (or other side-road) at that point would be seen as blatant circumventing of this rule. Also, administratively it typically doesn't take as long to drop an order against a single-award IDIQ (or mod a C-Type contract) than it does to compete an order on a multiple-award IDIQ. Despite my initial rant, I am not looking to debate the merit of this rule (not much prospect of changing things at this level). I am curious as to your experience. Are acquisitions in your area circumventing this rule as well? Are you seeing contract vehicles shoe-horned into other types (or other such circumvention) to avoid having to go to the HoA for this determination? Should teams be encouraged to stop skirting this rule, or is the status quo working? Other thoughts from those in the contractor arena?
  8. CDBurner

    Bad spot to be in... OCI

    Just curious, what's keeping you from looking into alternatives? I know we have preference for commercial products, but if the only product out there isn't be sold at a reasonable price, it seems like you'd have a fair case to look into paying someone to develop or alter a product that would meet our needs that we would have rights to effect further competition and hopefully drive down price in the long term. I'm sure you've considered this, but just wanted to put this issue into context .
  9. We encountering similar pressure to increase the use of cost incentives, and while exploring some similar Navy requirements encountered CPIF LOE type contracts. We're looking into it, but was curious if you have learned anything additional since it's been more than a year since you posted this.
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