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Posts posted by FSCO

  1. I agree that it is permissible, but just to play the devil's advocate here, how would you evaluate offerors with no relevant past performance history? We're required to evaluate them neither favorably nor unfavorably, so how could that occur using just a go/no go decision? I think I know the answer (this isn't a comparative evaluation factor), but just want to flesh out the argument.

    Again, I agree that it's permissible.

  2. If this is a construction contract see clause 52.236-5 Material and Workmanship - in particular see paragraph ( c). The KO can require removal and replacement of an objectionable employee. Therefore, in addition to any other contract requirement (construction contract) I'd say that the KO can decide whether or not the person is acceptable for a key personnel assignment. If the person is a subcontractor, the contractor would have to show that the person has the authority under its subcontract to fulfill his/her responsibilities.

    "52.236-5 Material and Workmanship (Apr 1984)

    ...( c) All work under this contract shall be performed in a skillful and workmanlike manner. The Contracting Officer may require, in writing, that the Contractor remove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable."

    Nope, not a construction contract, though I'm familiar with that clause. This one is just a simple service contract.

  3. Hi All,

    A fellow CO came to me with an interesting situation. We have a contractor who is requesting a modification to the contract in order to fill one of the key personnel slots with an employee of one of their subcontractors. Is this allowable?

    My initial thought is no, given that the Government would not be able to assert the right of refusal due to privity concerns. However, I have been unable to find a definitive prohibition in the FAR, our agency regs, or our agency policy. Thoughts?

  4. I don't know if it will stop it, which is why I asked the question in the first place. Maybe it could mitigate some of the risk.

    I agree that it's a crappy situation, but we shouldn't just sit idly by and let it occur without trying to fix it. Besides the obvious of pulling out of Afghanistan, what are some suggestions? Would legislation which limited subcontracting in contingency operations be viable?

  5. The government has been having a bit of difficulty with regards to subcontracts in our contingency environments (Iraq and Afghanistan primarily). These issues particularly occur below the first-tier where we don't know who is receiving U.S. funds, visibility into costs become murky, and there are allegations that funds are being funneled to insurgents. I've been pondering ways to mitigate this issue and have been having difficulty. One idea I come up with was a prohibition on subcontracting below the first-tier (if mutually agreed to by the government and the prime), but enforcement would be burdensome and costs would likely soar, not to mention privity concerns. Does anyone have any thoughts or ideas on how to get at this problem?

    Here is an example of the issue: http://www.nytimes.com/2011/05/01/world/asia/01road.html

  6. Vern, I believe you mean 53.216-1 and 53.236-1(d). I also suggest reviewing FAR Part 36.7 in conjunction with 36.101.

    If you follow the interpretation that a task order is a "contract" for policy purposes (i.e. for interpreting and applying the regulations), then you should be using the SF 1442 if the orders are above the SAT (you can use OF-347 if below the SAT). If you believe that a task order is not a "contract" for policy purposes, then you can use the OF-347.

  7. Traipse,

    I agree in general with your answer to the original question. However, I think the analogy provided at the end gives the wrong impression. It implies that you can be great without knowing how to play the game or knowing the rules. In sports, this might be true, but in our field it's not. As contracting professionals, we do need to know the rules, or at least where to go look to find the rules and more importantly, how to interpret those rules. Only then can you know what flexibilities you have, which are many, to get the job done. Once you have this knowledge, then you can apply your judgment in order to make decisions which are in the best interests of the Government while also fair and equitable to the contractors.

    This doesn't exclude the fact that you need to take into account organizational politics or diplomacy when starting out, e.g. you can't just walk into your boss's office and say "You're wrong because you don't know the rules."

  8. Brian,

    I've seen this done at several agencies I've now been a part of. I've asked the question becasue, like Vern, I'm concerned about the oversight issues. As for the specific agency you're thinking of, I was with them previously. The agency I'm currently with now does combine these requirements and the construction components do exceed $1 million.

  9. Hello All,

    Several of my agency's contracts combine requirements for services with requirements for construction. For instance, we ask contractors to provide technical assistance to schools and also ask them to refurbish/build new classrooms for those schools. The overall goal being to improve educational outcomes.

    I have two questions for folks:

    1. Is there a prohibition on combining these two different types of requirements? (I'm fairly certain the answer is no as there's no explicit language and FAR 36.101© implies it can be done; however, I would like the opinions of those much more experienced than I.)

    2. In your opinion, is it prudent to combine these requirements? My main concerns center around safety, competency (a service contractor being required to do construction), and oversight.

    As always, everyone's thoughts are much appreciated.

  10. Vern, would one be able to conclude based on FAR 16.505(B)(3) that pricing is not required in the base IDIQ? The language reads:

    "(3) Pricing orders. If the contract did not establish the price for the supply or service, the contracting officer must establish prices for each order using the policies and methods in Subpart 15.4."

    It is in the context of multiple award IDIQs so I assume would only be viable in that context

    Also, if there would be an issue with evaluating the options (which I see your concern) then you could just award the base IDIQ with no options and have a period of performance for 5 years, or less depending on your needs.

  11. Thank you Don, Joel, and Vern.

    As for sample vs seed task orders, I believe that there is a difference with regards to using them to evaluate IDIQ offerors' prices. In the seed TO, offerors are going to be bound to the prices they propose since the task order is awarded along with the IDIQ. This provides for a meaningful basis to evaluate the cost to the Government, which is what GAO is looking for. GAO never stated that the prices need to be binding throughout the IDIQ, only that the evaluation of cost must be done on prices that bind the contractor. The seed task order would satisfy that requirement.

    As for normalizing, that sounds like an interesting idea and I'll add it to my research list =)

  12. I would not expect instructions as I understand it is my responsibility to research and learn how to do this properly. As for people in my organization, there's disagreement between GC and operations (and within GC itself) about how to do this properly and structure these IDIQs so that the evaluated prices/costs are binding on the contractors.

    Regarding your explanation, how would the contractor be bound by the proposed material prices given that the project, including drawings, specs, etc, would be only a sample. I understand that you could use these proposed prices to comparatively analyze each of them against the estimates, current market pricing, and historical prices. However, I don't think this would reach the level of binding prices, thus there would be no meaningful way to evaluate cost. I guess you could bind them to the material costs, with the added stipulation of an economic price adjustment to account for market fluctuations.

    Quite honestly, the easiest thing to do is to award the IDIQ along with the first task order, which is how we did it back at my old agency. Unfortunately, our program offices here don't necessarily have the money for the first task orders when they want to award the IDIQ, which begs the question as to why you would even need the IDIQ at that particular point in time.

    Thanks for the reading reference!

  13. Thanks Vern!

    Let me expand on this question to see if the same logic would apply. Suppose you're awarding an IDIQ for construction and are using a sample task order. Requesting fully burdened labor rates for certain labor categories that would be commonly used seems standard. However, how would you evaluate the offerors' other "direct costs" such as material, equipment, etc? Given that the GAO protests, S.J. Thomas (B-283192) and Aurora Assoc. (B-215565), were sustained in part because the Government did not evaluate direct costs, would evaluating only the direct labor suffice? If so, great! If not, would we be able to require offerors to propose direct costs, other than labor, in their proposals that would be binding?

    PS: About a year ago I saw you had a post which provided a reading list for those new to contracting who wanted to really delve into the profession. I can't seem to find it now. Would you please be able to provide a link to that post?

  14. Perhaps CW Gov't Travel, Inc.--Recons., et al., B-295530.2 et al, July 25, 2005, 2005 CPD 139.

    Thanks! This still leaves the question though, how would you meaningfully evaluate price/cost when the scope of work of the IDIQ provides for a number of different services.

    For instance, suppose you have a proposed IDIQ, 1 base with 4 option years, for program management support services. This could cover a numerous amount of specific tasks. Would you be able to utilize a sample task order which had a period of performance the same length of time as the IDIQ and ask the offerors to provide labor rates for the key personnel? Would that meet the GAO's threshold of a reasonable basis of evaluating price/cost and could these proposed costs bind the contractor?

  15. Hello all,

    I'm curious on your thoughts regarding using illustrative task orders (ITO) to conduct price/cost analysis on proposed IDIQs. I'm sort of torn myself. I remember seeing, though I can't seem to find it now, a GAO decision stating that, in the instance of the protest, the agency couldn't use illustrative task orders to conduct price/cost analysis to determine reasonableness because the price/cost is not binding ont he contractor. This implies that you could use the ITO for the analysis if the prices/costs were binding to the contractor. The question being, how can these ITO's be structured to bind offerors to the prices/costs they propose? I'm curious as to your thoughts on the matter.

    PS, If you by chance know the GAO case that I'm referring to, please refresh my memory :)

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