rsenn

FAR Clause 52.217-8 Option to Extend Services Quite often I see in RFP's that the government will evaluate the price of all options. On rare occasion I've seen this called out specifically as one of the options to be evaluated. But never have I seen Sch B tables (CLIN tables) extended to call out this option. It does seem a dis-respectable practice to not explicitly call them out, like hiding something in the fine print. WHY does the government avoid routinely including Sch B tables for this option?

My company proposed on a job with 10 CLIN's, 0001 through 0010, each with a monthly price for a year of services. It's FFP, LPTA, and no doubt there are several competitors. We received what I'll call a negotiation letter (you may have a different name), citing as a deficiency in the proposal the lack of a table of labor categories, rates, hours, and price per labor category. This puzzles me, since the RFP called for a price for each CLIN, not a price for each labor category. Just to be sure I checked the RFP and there was no call for such a table of labor categories, rates, hours, and price per labor category. I'm wondering where this came from? My first thought is to consider it an irrelevant negotiation tactic to be ignored or called out as irrelevant, but seek the wisdom of the crowd. Why would this have been put into the negotiation letter?

Interesting responses, and close to question, but not spot on.

FAR 15.305 says past performance is indicator of an offeror’s ability to perform the contract successfully. This suggests that there may be other indicators. If a RFP uses past performance as an evaluation factor, not a broader factor of "indicators of ability to perform", would it withstand a protest seeking to have the RFP re-written to allow other indicators of ability to perform? The argument is that the evaluation factor is unreasonably narrow.

Just increase your fee on labor to compensate.

Given a scenario where the Government asks for proposals to be valid for 120 days, how would the Government evaluate a the price of a proposal with this term? The proposal is valid for 365 days. If the proposal is accepted within 120 days, the price is $1,000,000. If the proposal is accepted from 121 days to 365 days, the price is $1,000,000 plus $1000 for each day beyond 120 days.

But what demonstrates to some, does not demonstrate to others. People have different opinions. What is the evaluation logic? My guys, for example, say that if they were evaluating a proposal with 16 people, they'd say it was insufficient to ensure the work could be done except under the most favorable scenario where everything works perfectly all the time, hence not technically acceptable. They believe evaluating that as technically acceptable is unreasonable.

Were the technical requirements clearly spelled out? Not really. Certain services were to be provided and a service level met. My team promised to provide the services and meet the service level. No doubt so did the eventual awardee. My guys proposed a team of 20 people. The other guys clearly proposed something less. My estimate is 16 people. (Q&A on subsequent RFP's in this series ruled out the Government looking favorably on an innovative approach using off of Government site resources. They want cleared people on Government site.) There was nothing that said 16 people was sufficient. Or 14. Or 12. Or just a single part-time person. Or why 16 is sufficient but 15 is not. That's what I'm trying to get to. If I can understand why the evaluators think 16 is sufficient and 15 is not, then my team can apply that logic to the next round. The numbers might be different, but the underlying logic to determine team size will probably be the same.

Interesting thought that you set forth. Blow one, submit complete garbage, for a price of one dollar. It is the low priced proposal, but is rejected as technically unacceptable. Then ask for a debriefing to explore the boundaries of technically acceptable.

Yes, and I have done so on the follow up solicitations. And the Q&A response is a cryptic sentence saying proposals will be evaluated according to the criteria in the solicitation. The KO, or whoever is writing for him, avoids discussing where the boundaries of technically acceptable are.

In a scenario where the Government requests proposals to be valid for 120 days, then receives some proposals, and evaluates them until the 120 days has come and gone, is the procurment effort finished, dying without an award being made? I experience this a while back, when the Government then went to the offerors and asked them to extend their proposals and respond to items for negotiation. While my company did so, it just felt wrong to me, especially when I considered what might be the case in a circumstance where we had not proposed but might if the opportunity were dead and reinstated as a new opportunity with a new solicitation and plenty of time to respond. Someday, that may be the case. So, when does a solicitation die? Did the KO do wrong be asking for extensions and otherwise continuing after the validity date had come and gone?

We recently lost on an LPTA proposal, and requested a debriefing. The procurement was the first of series of very similar procurements, each for a different geographical area. We got beat on price, and I have no doubt that our proposal was technically acceptable, but clearly somebody else had a lower priced technically acceptable offer. We asked that the KO go beyond the minimum for debriefings as prescribed in the FAR and conduct a meaningful debriefing by telephone. We specifically asked to discuss what constituted technically acceptable, especially the minimum necessary to be technically acceptable. We intended to apply the lessons learned in the remaining procurements. The response was not meaningful. It was a form letter that lined up with the FAR's minimum requirements. It did not touch providing the information that we wanted about what constituted technical acceptability and the minimum necessary to be technically acceptable. Is there any way I can compel the government to provide a meaningful debriefing, either on this proposal or the next one that we lose?

If Little Company is bought by Big Company, and all the employees and assets are transferred into Big Company, but the Little Company corporate entity remains as a shell and wholly owned subsidiary, can Big Company step into the shoes of Little Company for purposes of proposals that are outstanding at the time of the merger? How is this done? (Assume no small business set aside issues.)

The two companies being considered for merger are both information technolgoy related. One does services, the other has a suite of products that it licenses and supports. Both are small. CAS is not an issue, fortunately. They do both have GSA contracts, but at the moment I know nothing about the one the other company has. Fiscal years are calendar year end, which is pretty close. Security issues I hadn't considered, but I'll leave that to the Facility Security Officer.

The owner of the company I work for also owns two other companies. He is thinking of merging the one that I work for and one of the others. Both do federal contracting and subcontracting in complementary areas. A merger does seem reasonable on the surface. What are the problems that are likely to arise and how to solve them, or prevent them, is the question put to me. I'm not sure how the merger would be structured (one company buys another, which one would survive, or they merge into a new shell company, one simply buys the assets of the other, or what), and no doubt he's not sure yet, either. So, can anybody here point out problems to watch for and how to solve or prevent them? I'm thinking that contracts from at least one company will have to be novated, and that's likely a big process. What if the merger takes place before the contracts are novated, or one of the other parties refuses or will go along with the novation only in exchange for something (e.g., a price reduction). Can anybody point me to anything helpful in the matter of novations? Is there a way to structure the merger to avoid the need for novations? Then there's the issue of proposals in the evaluation process at the time of merger. If company A is merged into company B and loses it's identity, how can company B step into the shoes of company A for the proposal already submitted by company A? Then there's payroll, accounting, bank financing, and tax issues. Help is welcome, although I recognize that this is a contracts forum. I guess one company will ultimately cease to be (i.e., not have it's corporate charter renewed come the annual renewal). What are the traps to watch for? Sorry if this is a bit disorganized. It was just dropped on me and I'm trying to get my arms around it.

Thanks, Vern, and thanks outsidelegalguy.

Do the Government's unlimited rights clauses in data and in software allow it to stop others (e.g. the contractor) from using the data or software outside of the Government? My interpretation is that such an action is outside of the data or software itself, thus not a right granted, but recognize that others may have differing opinions. What supports the counterarguement, that yes the Government can stop others from using the data or software outside of the Government?

Yes.

Try a mixed contract type. CLIN 1 is a firm fixed price for the first zero to ten units. CLIN 2 is a unit price for up to 110 additional units.

We use multiple FFP-LOE contracts for running various operations. They are treated much as T&M. There are several labor categories, each with different rates. There are monthly billings computed at hours used times the established rate. LOE is effectively defined not based on a raw hours count, but instead on a dollar weighted hours count. So, effectively, it's T&M.