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shikakenin

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  1. See http://smallgovcon.com/statutes-and-regulations/say-what-sba-says-the-runway-extension-act-doesnt-apply-to-sba/ Interesting article on the topic.
  2. Sorry. Posted too quick. In the "interesting scenario" above the first tier subs (in Prime/sub CTA) and JV team members (not the JV itself) has the required experience.
  3. Well said Freyr. Interesting Scenario: An all small business CTA Prime/Sub or JV submits an offer to the Professional Services Schedule when the prime (single entity with subs or JV itself) has zero experience. The solicitation requires the prime to have Two Years of corporate experience as a go/no go factor. The offer is highly likely to be rejected. Assume the Offeror is smart enough to estimate their annual sales at 125K in their offer (125K X 20 years=.$2.5M which reaches GSA's Substantial Bundling Threshold FAR 7.107-4(a)(1)(iii) thereby invoking 15 USC 644(q)(1)), they may be able to protest and win. Such a case would be an entertaining read indeed.
  4. Freyr. Thanks for the response. Sorry if I was not clear in my Qs. Was not asking if JV is prime. Know that. Was asking in the statute if a "Prime" in a FAR 9.601(2) prime/sub CTA is being treated the same as the "JV itself" in a FAR 9.601(1) JV CTA. If so, then a Prime in a FAR 9.601(2) CTA with ZERO experience (like a JV itself with Zero experience, since the JV itself is the Prime in a FAR 9.601(1) CTA) can submit an offer using only the experience of the first tier subs. The statute makes pragmatic sense for JVs. Requiring experience from the JV itself is challenging since the JV itself is generally not long term and now must be "un-populated." However, it makes no sense to me that a "Prime" in a FAR 9.601(2) CTA be given the same "needs zero experience" privilege as the "JV itself." Thanks so much for B-405365, Valor Construction Management, LLC, October 24, 2011. However, that case was prior to the change in statute See PUBLIC LAW 114–92—NOV. 25, 2015 look to top of page (around page 209) 129 STAT. 933. Be interesting to see how GAO would rule on B-405365, Valor Construction Management, LLC, October 24, 2011 today.
  5. See Ekagra Partners, LLC B-408685.18: Feb 15, 2019 which is related but does not answer your Q. Here is my beef with the interpretation that 15 USC 644(q)(1)(B)'s "(B) Teams When evaluating an offer of a small business prime contractor that includes a proposed team of small business subcontractors for any multiple award contract above the substantial bundling threshold of the Federal agency, the head of the agency shall consider the capabilities and past performance of each first tier subcontractor that is part of the team as the capabilities and past performance of the small business prime contractor." is equal to "(C) Joint ventures When evaluating an offer of a joint venture of small business concerns for any multiple award contract above the substantial bundling threshold of the Federal agency, if the joint venture does not demonstrate sufficient capabilities or past performance to be considered for award of a contract opportunity, the head of the agency shall consider the capabilities and past performance of each member of the joint venture as the capabilities and past performance of the joint venture." When I say "equal to" I mean that the "Prime" in (B) is treated the same as the "JV Itself" in (C). In other words, the prime need no experience as "...the head of the agency shall consider the capabilities and past performance of each first tier subcontractor that is part of the team as the capabilities and past performance of the small business prime contractor..." See bold underlined difference. I have three questions: 1. Do you believe the "prime" in (B) is analogous to the "JV itself" in (C)? If so, why? 2. If the "prime" in (B) was meant to be analogous to the "JV itself" in (C) then why do you believe it is not written to have parity with (C) to include the same bold underline text like this? (B) Teams When evaluating an offer of a small business prime contractor that includes a proposed team of small business subcontractors for any multiple award contract above the substantial bundling threshold of the Federal agency, if the prime does not demonstrate sufficient capabilities or past performance to be considered for award of a contract opportunity, the head of the agency shall consider the capabilities and past performance of each first tier subcontractor that is part of the team as the capabilities and past performance of the small business prime contractor. 3. Do you believe that a solicitation subject to 15 USC 644(q)(1)(B) could mandate the "Prime" have demonstrated at least one experience project? Why or Why not?
  6. Vern, Obviously I was referring to FAR 16.505. Otherwise my topic would have read "You cannot issue a BPA against a BPA." I didn't think I needed to explain it to you. Regardless, I speculate GAO would rule the same if one were to issue an ID/IQ order instrument against an established FAR 8.405-3 multiple award BPA. And your answer for issuing an ID/IQ order instrument under FAR 16.505 is to simply stay under the $10M protest threshold knowing the practice would not withstand one. Brilliant. Too bad FAR 8.4 orders cannot partake in the same GAO protest pass. The GSA FSS program could enjoy issuing BPA orders under BPAs.
  7. While Vern Edwards disagreed with my bold assertion http://www.wifcon.com/discussion/index.php?/topic/2516-delivery-order-against-a-gsa-bpa/ (see post #11), looks like GAO agrees with me: B-411699,B-411796, Harris IT Services Corporation, October 2, 2015 http://www.gao.gov/products/B-411699,B-411796 My fave from the referenced Post Vern's Post # 15 "As for your protest speculation, who cares? I can come up with solutions to all of your concerns while making coffee in the morning half asleep. What do you think procurement is -- rocket science?" Well, apparently the FBI should have cared. Perhaps they should have consulted with a Rocket Scientist. Kudos to them for trying. I AM a fan of such innovation, however, as I speculated, such an order instrument would not withstand a protest and indeed it did not.
  8. No, I do not believe the rules are too hard. Generally, I speculate it is policy, legal and COs accustomed to operating within FAR 15 who make it hard. I have seen where people lack reverence for the flexibility which exists within the gray. Not saying FAR 15 is black and white, but certainly more so than FAR 8.4. I have seen where it appears policy and legal don't want to afford COs the autonomy to operate fully within FAR 1.102(d) and generally don't like "gray" as that means giving COs more judgement power. The only piece of FSS that is too hard is FAR 8.402(f). My only wish is that it be re-written in such a way to afford it the same flexibility as any other IDIQ contract. Reference FAR 16.505 ( b )(3) Pricing Orders. Perhaps if FAR 8.402(f) were re-written as follows, then the FSS program would truly be compatible (ease of use wise to accommodate a total solution) to the breath of fresh air afforded by the likes of the un-priced OASIS (whose ceiling rates are ONLY for sole source T&M orders). REVISE FAR 8.402(f) TO READ: (f) For administrative convenience, an ordering activity contracting officer may add items or services not priced on the Federal Supply Schedule to a Federal Supply Schedule blanket purchase agreement (BPA) or an individual task or delivery order only if-- (1) The items or services are integral to and in support of the primary Federal Supply Schedule priced items/services being acquired under the Order; (2) The ordering activity contracting officer has determined the prices for the items or services not priced on the Federal Supply Schedule are fair and reasonable; (3) The items or services are clearly labeled on the order as items not priced on the Federal Supply Schedule.
  9. Wow, that's helpful. So what you are really interested in is ridicule. You did complete your mission. Nice work. I am sure you will respond with more of the same. That seems to make you feel better, and it is entertaining. I am happy I could assist!
  10. Ok, enlighten us with your solution to the fair opportunity problem.
  11. Vern, Pretend for a moment that the phrase “A BPA against a BPA or an ID/IQ against an ID/IQ” is God. Now imagine that I said “There is no such thing as God. “ Prove to me that I am wrong. You cannot. Nor can I prove that I am right. Now back to the issue. You are correct. There is no explicit prohibition I am aware of against issuing a BPA against a BPA or an ID/IQ against an ID/IQ. There is also no prohibition in the FAR against me stating that a Chipmunk is in fact Cinderblock. Does the absence of explicit prohibition of an action justify its implementation? I speculate that if a CO competed and issued a BPA as an order instrument against an existing Multiple Award GSA BPA program and it were protested on the grounds that any future order issued against that BPA order instrument (or whatever “innovative” term you assign to it (e.g. “Supplemental Ordering Protocol” (SOP)) violates the fair opportunity requirements, the CO would lose. The risk of losing would increase regarding a BPA program awarded with hourly rates. There would be no way to compete price at SOP establishment for the future SOP orders with regard to labor mix/LOE as that is the nature of an indefinite quantity. Since they cannot be priced or known at the time of SOP establishment, then issuing them without competition violates the requirement for fair opportunity under the multiple award GSA BPA program. Unless, of course, you are Leonardo DiCaprio trying to achieve inception and are diving down a few dream levels. He would have no qualms about issuing a “Subordinate Ordering Arrangement” against an existing “Auxiliary Ordering Arrangement” that was issued from a SOP that originated from a multiple award BPA from which the FSS contract holder had its contract cancelled by an extraction dream guardian. So, I DARE a CO to do it. Go ahead and issue a BPA against an existing BPA. Why the hell not? Just because the FAR is silent on the fact that a Chipmunk is NOT a Cinderblock should not hold you back. Don’t be a wuss. DO IT.
  12. jonmjohson nailed it. To add, when using the Deviation the contractor can only buy items/fixed priced services (e.g., oil change at $X). In other words, they can only issue FAR 8.405-1 orders, NOT FAR 8.405-2 orders. This is where everyone gets confused. To turn on the deviation, the CLIN must be T&M/LH, but the contractor using the deviation can only place FAR 8.405-1 orders. They cannot place an order for hourly rate services (FAR 8.405-2). I can tell you that contractors do not like the FAR 51 deviation. Why? because they cannot charge ONE RED CENT for managing the order as the procedures state "The contractor passes through the purchase price of items procured under FAR Part 51 with no fee or markup" . This restriction does not exist in a GSA Contractor Teaming Arrangement as a Services FSS holder who Teams with a Products FSS Holder can charge hours to manage the coordination of supplies needed. No can do on FAR 51 Deviation process as it must be a straight pass through. At least that is how I have heard it is being enforced. Here is a copy of the actual signed deviation: http://www.gsa.gov/portal/mediaId/170991/fileName/Part_51_Deviation__II.action There is another challenge. If your order can be accomplished as an FFP order, but you need FAR 51 Deviation ability to achieve a Total FSS Solution (the whole purpose of why the Deviation was created in the first place), then the only way to do so is make part of your order T&M/LH. The T&M/LH determination required in FAR 8.404(h) does not include in its rationale "because that is the only way I can use the FAR 51 Deviation" now does it. Additionally, you would be limited to an order lasting no more than 3 years unless you get HCA approval. While I applaud GSA for getting the deviation through (which expires, in October this year BTW (but I am sure it will be extended)) GSA should have gone the extra mile and made it applicable to ALL order types and not require them to have a T&M/LH CLIN (which mandates the D&F in FAR 8.404(h). However, I am sure I am just being a semantic FAR Curmudgeon as I doubt that many are following FAR 8.404(h) properly and just stating a sentence or two that "T&M/LH must be used for FAR 51 Deviation Authority" as their rationale for the T&M/LH D&F.
  13. Boof, No such thing as issuing a BPA against a BPA. Same as you cannot issue an ID/IQ against an ID/IQ. However, you can mimic the same thing with option CLINs. Provided you issue your order before the BPA dies, you may exercise options on said order to complete the order, even after the BPA (and even the FSS contract) dies. Look to FAR 52.216-22 in their contract. Para (d) should read "(d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor's and Government's rights and obligations with respect to that order to the same extent as if the order were completed during the contract's effective period." For why this ALSO includes the order's options (provided the prices in said options never exceed the prices in the BPA when it last existed) Reference: https://interact.gsa.gov/wiki/options-schedule-orders Using this method to build option CLINS will require much work (depending on what items you "may" order). You could literally have a 500 CLINs (different amounts, different items). But it will work. Whenever you need an item, you exercise the option CLIN to turn that set of items on and order it. Works just like a BPA but with a LOT more work up front. AND you will need funds up front to order the initial items. I remember years ago, NASA SEWP had that trick up its sleeve. Since there was no authority to issue a BPA against NASA SEWP, they would use the option CLIN method I just described and call it a "Customized User Purchase Agreement" CUPA. Get it. "CUPA SEWP" Regarding what it sounds like the GSA CO told you do to (issuing one big whopping NTE delivery order), you would need all the funds up front to cover the NTE amount. You should not incrementally fund a Fixed Priced Order (hence my options suggestion as you won't need funds for said options until you "exercise" them). I wish you well in building your option CLINS. I hope you don't suffer having to build too many....
  14. C Culham, Excellent job quoting the 8(a) STARS II Contract. Agree with your position. However, within some other parts of your discussion you are confusing FSS with a GWAC. There is no such animal as an "FSS GWAC". For example, 8.402(f) is not applicable to 8(a) STARS II. Your link to interact discussion is for FSS. While the analogy is the same, FSS has nothing to do with 8(a) STARS II other than they are both GSA Vehicles. Just like a chipmunk is not a cinder block, FSS Contracts awarded under FAR 8.4 are NOT GWACs awarded under FAR 16.5.
  15. From Pyxis case the current FAR 8.402(f) was born. Then came SARA authorizing Commercial T&M and finally FAR 52.212-4 Alt 1. Now the conundrum: How can a CO at the FSS order level add costs that are not priced on the FSS contract under FAR 52.212-4 Alt I(i)(1)(ii)(D) without running afoul of FAR 8.402(f)? The greatest challenge is, that you may not even know what those costs are until you receive the quotes. Hence there is no way for you to comply with FAR 8.402(f) (you cannot separately compete that which you do not know will be). One method is to evaluate the FSS order quotes, determine who is getting the award, then issue a special notice in Fedbizopps that their ODCs are being sole sourced to them (thereby complying with FAR 8.402(f)'s part 5 and 6 requirements (of course, to comply with its FAR 19 requirement you would have to also dissolve the set-aside for those ODCs if your order was not set-aside). Wow this is just CRAZY, but what else can you do? Another even crazier method: 1. Read FAR 12.102© 2. 12 trumps all 3. Commercial T&M orders are governed by a Part 12 clause 4. Document that FAR 8.402(f) is trumped by 12 (Yah, I know-good luck with getting legal to sign off on THAT). Moving on to the indirect cost "fixed amount" challenge for contractors who almost all bill at % rates. If you look back in the comments (do control F "fixed amount") on FAR case 2003-027 (the rule that promulgated SARA's commercial T&M into the FAR) I remember the FAR council disallowing a "rate" (e. g. G&A of X%) for indirect costs. "The Councils believe it is important to provide as much flexibility as possible without violating the cost plus percentage of cost prohibition. The Councils believe use of a fixed rate violates the cost plus percentage of cost contract prohibition. Therefore, the rule does not permit application of a fixed rate. The Councils believe use of a fixed amount may be appropriate and revised the rule accordingly." This stance was taken because commercial contracts cannot contain the allowable cost and payments clause FAR 52.216-7 to true up indirect rates at close out. Indeed until finalized, an indirect rate billed is considered a billing rate under FAR 42.7 A couple of methods to handle the "fixed amount" challenge. Assume the indirect cost is on Travel IAW the FSS clause C-FSS-370 By the way (unless explicitly prohibited in the FSS contract (rare)) this is the only time usually allowed to bill indirect costs without running afoul of FAR 8.402(f) as they are associated with travel. Example for how to turn an indirect cost of 5% G&A on Travel to comply with the "fixed amount" in FAR 52.212-4 Alt1 (i)(1)(ii)(D)(2)Assumption: Travel will be NTE $10,000 for order CLIN 0002 Travel: NTE $10,000CLIN 0003 Indirect Cost On travel: FFP amount of $500.00CLIN 003 will be paid in conjunction with each approved travel voucher under CLIN 0002 and will be discounted to the fixed amount of $.05 for every $1.00 of approved travel under CLIN 0002. Another example using a 5% G&A rate and making it fit into a "fixed amount" Travel cost NTE 0-$100 Indirect cost "fixed amount" $5.00Travel cost NTE $100-200 Indirect cost "fixed amount" $10.00and so on...At least GSA is attempting to address the issue. See Modernizing the Federal Supply Schedule Program; Order-Level Materials; Notice-FAS-2013-02 That's all folks. Sorry for the long post, but I just couldn't seem to stop once I started.
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