Jacques

@Retreadfed, I'm so intrigued by your question, but I'll wait for its relevance to become clear. See FAR 15.404-1(c)(2)(iv) if you're curious why I'm curious. Cost principles normally inform the Government's objectives when cost analysis is required.

If you haven't already, take a look here:

Whatever you may think of the merits of self-certification for small business programs, I think the Inspector General's comment was directed to the wrong audience. If you don't want Government contracting officers to be able to rely on self-certifications prepared by offerors, a rule change at the very least is needed. Under 15 U.S.C. 637(m)(5), made applicable to the SDVOSB preference through 15 U.S.C. 657f(d), "In carrying out this subsection, the Administrator [of the SBA] shall establish procedures relating to--(i) the filing, investigation, and disposition by the [Small Business] Administration of any challenge to the eligibility of a small business concern...." Those SBA procedures appear in 13 CFR Part 125. If you believe government contracting officers should be protesting status more to the SBA, there is something the DAR Council or FAR Council could potentially do. The SBA's regulation doesn't provide a standard for when the contracting officer should protest an awardee's status, beyond the following: "A protest merely asserting that the protested concern is not an eligible SDVO SBC, without setting forth specific facts or allegations is insufficient." 13 CFR 125.28(b). Perhaps FAR 19.307 could be changed to provide some guidance, or at least to acknowledge that contracting officers can protest. See 13 CFR 125.27. The change might be as simple as borrowing language from FAR 4.2103(a), which suggests the contracting officer should NOT rely on that specific representation where, as fate has it, "the contracting officer has reason to question the representation." While this probably wouldn't amount to a substantive change to FAR 19.307, it could potentially raise awareness. I suspect almost any competent Government contracting officer, if she had reason to question whether an offeror qualified as a SDVO SBC, would elevate the issue. Unless some fact comes to the attention of the Government that triggers a duty of inquiry, the Government should be allowed to rely on the offeror's representation that it qualifies as a SDVO SBC. The accuracy of that representation is first and foremost the responsibility of the offeror. The IG report makes a couple references to the VA Center for Verification and Evaluation (CVE). Given the IG report's repeated claims that failing to verify the accuracy of offeror representations amounts to inadequate controls, I worry the authors think DoD can do what the VA has done. The VA has statutory authority for its database and the use of that database (codified at 38 U.S.C. 8127) that DoD does not have. Absent other facts, a concern not being listed in the VA's database likely would not trigger a duty of inquiry. Not every SDVO SBC does business with the VA. Compounding the problem of a poorly conceived and executed audit report is that not everyone sees through it. See the letter from a Congressman to Secretary Esper linked in a press release here.

I wonder how common it is for the GAO to suspend the deadline for the agency report because of a dismissal request. I saw that in Latvian Connection LLC--Recons., B-415043.3, Nov. 29, 2017, 2017 CPD ¶ 354 and in The Sandi-Sterling Consortium--Costs, B-296246.2, Sept. 20, 2005, 2005 CPD ¶ 173--cited in the instant decision--but my impression is that suspending the deadline for the agency report isn't all that common.

The OP refers to the potential prime as “Small Company” and the subcontractor (who would be receiving the contingent fee) as “Big Company.” If the acquisition is set aside, another concern would be the ostensible subcontractor rule. See, e.g., here.

I don't think @lotus works for the Government, so I'm not sure who he would be looking to for advice, but I think the question posed by the OP is probably less important than the concerns you raise. I would add excessive pass through to the list.

Thanks @joel hoffman for not limiting your response to the specific question posed. My response was myopic..

I don't know of any prime that would allow a subcontractor to submit a proposal in the prime's name directly to the Government. However, toward answering your question, here's what Darst says in the article I referenced above, "Although the lack of contact with Government procurement personnel does not automatically mean that a fee is permitted by 'Covenant Against Contingent Fees,' if there is no contact, either directly or indirectly, there is much less possibility of improperly influencing Government contracting personnel." EDIT: The GAO decision quoted here suggests more of a bright line test that, where there is no contact, there can be no violation.

Is the proposal technical in nature, or does it just amount to furnishing Small Company's product literature? Which exception to the prohibition on contingent fees are you relying upon? I guess more to the point, have you reviewed Brian A. Darst, "Sales Commissions & Contingent Fees In Government Contracts," 05 Briefing Papers 10 (September 2005)? EDIT: If you don't have access to that, take a look at Nash & Cibinic, Formation of Government Contracts, ch. 1, section VII.B.6 (appearing at page 163 of the Third Edition).

I think Congress had the same question. See H. Rept. 116-120, at 182 ("The committee directs the Assistant Secretary of Defense for Sustainment to provide a briefing to the House Committee on Armed Services not later than December 31, 2019, on the domestic nonavailability waiver process currently used by the Department of Defense. Such briefing shall include...a list of all domestic nonavailability determinations and national security waivers granted under sections 2533a and 2533b of title 10, United States Code, since January 1, 2014.")

If the other mission wants to "add money" it probably doesn't really want to "benefit from the [exact] same services," it probably wants you to procure MORE of the same type of (what appear to be severable) services, which is likely new work. I don't see a lot FSS contracts, but I suspect FAR 8.405-1(d)(1) might be relevant to your question.

By the way, the role of the CBP is also mentioned in Stuart B. Nibley, et al., "Real Steps Toward 'Buy American' Compliance," 19 Briefing Papers 6 (May 2019), at 9f. The substance of the article also appears in the March 28, 2018 edition of the Government Contractor, available here. The Federal Circuit decision makes the VA look a little foolish for relying on the CBP. It isn't obvious to me that looking to the CBP was as unreasonable as the decision seems to suggest. For instance, the article states: 60 Government Contractor ¶ 97, at 5. EDIT: Jeffrey Orenstein and Lorraine Campos have a very good article in the Spring 2014 edition of the Public Contract Law Journal entitled, "Origin of the Pieces: How to Determine a Pharmaceutical Product's 'Country of Origin,'" It discusses how the substantial transformation test for product marking purposes (used by the CBP as part of its 'day-to-day job') is the same substantial transformation test contracting agencies are expected to use under TAA. It also describes how fact-intensive and technical the determination can be. The article ends with a table that lists various standards and the agency/agencies responsible under that standard. For government contract purposes, it lists "CBP, GSA, contracting agencies" as stakeholders. While I appreciate that this conclusion obviously isn't grounded on any language in the FAR, it seems to me the decision at COFC and the appeal to the Federal Circuit potentially could have gone differently if the VA, rather than saying it had no role, simply acknowledged that, while it had final authority, it had no reason to not defer to the CBP's analysis. P.S.S. In CompuAdd Corp. v. Dept. of the Air Force, GSBCA No. 12301-P, 93-3 BCA ¶ 26,123, at 41f, the Customs Service issued a final determination in favor of Zenith. "Zenith argues that a final determination is binding upon all concerned until such time as it is set aside in the judicial review process. As such, Zenith contends that the Board is bound by the Customs ruling and, at the very least, must accord it substantial deference. The Board agrees that, at a minimum, the determination rendered by the Customs Service respecting the assembly process in Singapore deserves exceptional weight." P.S.S.S. Now that I look for references to this GSBCA decision on WIFCON, I find Vern would have me look at B-309930.2 and 82 Fed. Cl. 127, so sorry for the probably irrelevant history.

In Sea Box, Inc., B-409963.3, Feb. 4, 2015, 2015 CPD ¶ 72, a decision summarized here and discussed at 9 Government Contracts: Law, Administration & Procedure § 50.110[2][ b ], the GAO seems to give some credit to the agency's reliance on Customs and Border Protection's (CBP's) decision, CBP HQ Ruling 559432, Apr. 19, 1996. The protester "acknowledges that CBP is the agency responsible for making final determinations of country of origin and substantial transformation in response to written requests by non-government parties." 2015 CPD ¶ 72, at 7. The plaintiff in Acetris Heath, LLC v. U.S., No. 2018-2399 (Fed. Cir., Feb. 12, 2020) (a decision presently listed on the WIFCON home page and available here), was not prepared to so acknowledge, and the agency was faulted for relying on the CBP's determination. I haven't really tried to reconcile them yet, so this is really just more of a "gee whiz" observation than anything else.

We've obviously taken the thread to a new place, but the OP is silent on whether a multiple award IDIQ is involved. If so, folks should be mindful of 13 CFR 125.2(e)(7) and the proposed FAR 15.101-3 (FAR Case 2014-002), which would restrict the use of tiered evaluations in source selections of multiple award IDIQ contracts to those agencies with "specific statutory authority to do so." EDIT: Never mind. The very statute that tried to LIMIT the use of tiered evaluations in DoD is likely the source of DoD's authority to use tiered evaluations in the case of a source selection for the basic contracts for a multiple award IDIQ vehicle. See Pub. L. 109-163, NDAA'06, sec. 816.

The OP is with the Navy, so DFARS 215.203-70 would be relevant. It permits tiered or cascading evaluation of offers where the contracting officer has conducted market research but nonetheless cannot determine "whether the criteria in FAR Part 19 are met for setting aside the acquisition" and documents as much. Accord, DFARS 210.001(a)(i) (requiring market research "appropriate to the circumstances before issuing a solicitation with tiered evaluation of offers.") See the 29 Jun 05 item in the Government Executive, "New acquisition strategy alarms industry," for the main criticism of tiered evaluation, namely, that it wastes B&P.

FAR 13.302-4, Termination or cancellation of purchase orders, begins by discussing purchase orders that have been accepted in writing in paragraph (a). In paragraph (b), it then discusses purchase orders that have not been accepted in writing. In that context, it ends, "If the contractor does not accept the cancellation or claims that costs were incurred as a result of beginning performance under the purchase order, the contracting officer shall process the action as a termination prescribed in paragraph (a) of this section." This leads me to believe that if the purchase order was accepted in writing or if you know the contractor has partially performed, then cancellation isn't an option. I don't see the word cancellation outside the context of solicitations in my day-to-day work, so my apologies if I'm misunderstanding your question. Edit: I see FAR 49.402-3(a) uses the phrase, "no-cost cancellation," but I think it just means a bilateral no-cost termination I also see FAR 42.302(a)(63), which lists as among the contract administration functions normally delegated, "Cancel unilateral purchase orders when notified of nonacceptance by the contractor. The CAO shall notify the contracting officer when the purchase order is canceled." So you may want to be mindful of that unless you are both the PCO and ACO.

While I'm not following your scenario, if you haven't read Nash & Cibinic, Administration of Government Contracts, Chapter 10, section V.E.1, I encourage you to do so. While I don't have the latest edition, in the Third Edition, at 1035, this section begins as follows: (emphasis added). It then cites to Olean Case Corp., GSBCA 4673, 78-1 BCA ¶ 12,905 and Foster Refrigerator Corp., ASBCA 32059, 88-1 BCA ¶ 20,398 as support for this conclusion.

Future determinations is how I understand it.

Hopefully the information in the SCA Desktop Guide linked above answers the mail. Just by way of "gee whiz," the US Air Force Labor Advisors have some training material on the clause entitled, "FAR 52.222-42: An Exercise in Futility, or Helping Develop a Better Estimate?" The title obviously suggests some skepticism with the clause and whether the Government effort that goes into providing the information is time well spent. I share that skepticism, but I don't think the intent behind it is to help offerors. Title 41, United States Code, section 6703(5) provides in relevant part: IMHO, add the requirement behind the 'equivalent federal hires' clause to the list of statutory requirements that we can live without.

The protest that use of an Other Tranaction Authority was improper would have to be TIMELY. Whether that is prior to deadline for receipt of proposals or not could depend on the facts that made use of the OTA improper. If the facts as you see them that made use of an "Other Transaction" improper were apparent on the face of the solicitation, then the protest would be a protest of the terms of the solicitation, and would need to be filed prior to the deadline for receipt of proposals. That obviously isn't the ONLY context where this comes to light. For instance, Oracle America, Inc., B-416061, May 31, 2018, 2018 CPD ¶ 180, was a timely post-award protest. Given your original post, it seems likely your protest is untimely, but it is hard to say for certain.

FAR Subpart 19.7 does not include the word, "waive" or "waiver." I assume @creyes814 was referring to the written determination referenced in FAR 19.705-2(c). The prescription for the clause at FAR 52.219-9 appears at FAR 19.708(b)(1). The clause is not prescribed if the contract does not "offer subcontracting possibilities." This isn't a magical term of art. If the prime won't be subcontracting out any of the work, the clause isn't prescribed. FAR 19.708(b)(1)(iv) provides, "When...incorporating a subcontracting plan due to a modification as provided for in 19.702(a)(3), the contracting officer shall use the clause with its Alternate IV." Maybe I'm reading too much into this, but this makes it sound like you wouldn't include the clause at 52.219-9 if, at the time you were making that decision, there was no requirement for a subcontracting plan. While paragraph (c)(1) of the clause begins, "The Offeror, upon request by the Contracting Officer, shall submit and negotiate a subcontracting plan...," I still worry what including the clause would end up doing if the contractor had a commercial plan. Wouldn't this risk folks interpreting the inclusion of the clause as amounting to a Government conclusion that the contract was a "covered contract" for the purposes of paragraph (g) of the clause? Secondly, I don't know how the eSRS requirement at paragraph (l) of the clause would be handled. Seems to me better to just not include the clause if there is no requirement for a subcontracting plan.

While the memo unfortunately uses the word "rescinds," it seems to me OSD doesn't think it has actually rescinded. For any existing contracts that include the requirement to report to eCMRA, I would leave that contractual requirement in place. While others will likely disagree, if I were releasing a solicitation today for DoD, I would look to the prescriptions at FAR 4.1705 and include the appropriate FAR clauses. I appreciate technically I am not required to do that, but it isn't forbidden. I worry the drafters of the DFARS Case are going to end up making its applicability retroactive, and I would rather just avoid the hassle.

Thanks @FAR-flung 1102. Toward answering @Fran's question, the last paragraph of the memo you linked suggests we should expect more information. In addition, the following might provide some useful context, at least toward understanding CPI's view: https://dodprocurementtoolbox.com/cms/sites/default/files/resources/2020-01/Procure-To-Pay Capability Summary 48 - DoD Contractor Manpower Reporting.pdf

As the GAO said in Columbia Research Corp., B-202762, 61 Comp. Gen. 194, 82-1 CPD ¶ 8: That said, don't forget about the definition of "subcontract" appearing at FAR 19.701 or its definition at 13 CFR 125.3(a)(1). Given how broad that definition is, if you get cost data that lists "materials," I would seriously consider asking for a subcontracting plan. To avoid the type of silliness described in DoD IG Rpt DODIG-2018-086, include in the contract file the determination described at FAR 19.705-2(c).

@lawyergirl, I couldn't reproduce your results. I went to https://www.gsa.gov/buying-selling/products-services/professional-services/acquisition-support, downloaded PS-MAS Old SIN to New SIN/NAICS Code Crosswalk Table, and did a search on the new SIN of 54151S. For some reason, the row (row 70) was hidden, but when I "unhid" it, all the appropriate NAICS codes, including 541519, were listed.