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hutch_05

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Everything posted by hutch_05

  1. Here is the link to the new policy, http://www.acq.osd.mil/dpap/dars/dfars/html/current/215_3.htm#215.371 Bottom line, if you have the solicitation out for less than 30 days, and receive only one offer, you cannot find it fair and reasonable based on the expectation of competition, in addition to a requirement to post for an additional 30 days after receiving only one offer. What is puzzling is then reading the exceptions, 215.371-4, to having to resolicit for 30 days, if it is under SAT, or if it is over SAT and is a small business set aside, Hubzone, SDVOSB, or WOSB set aside then the resolicitation requirement doesn't apply. Well in that case, the way I first read it, the resolicitation requirement would never apply unless it was a Large Business or 8(a) MATOC. Because there is no other way you can get around FAR 5.203© and the requirement to post for 30 days when it is over SAT. So what purpose does the resolicitation requirement as currently implemented serve? the only value I see is that you have to do a more thorough analysis to determine the price fair and reasonable now when you receive only one offer, regardless of whether the offer submitted in a perceived competitive environment or not. But the resolicitation requirement and exceptions to it simply confuse me.
  2. FAR Clause 52.217-8 and -9

    ipod24 - I don't see how one can reduce the duration of 52.217-9 based on the fact that 52.217-8 was exercised. In competing the requirement, Option XYZ was priced by the contractor for a duration of 12 months (you state section F identifies the option as a 12 month duration). You cannot then unilaterally change the terms (duration) of Option XYZ just because you exercised 52.217-8. I don't see that authority given anywhere in the contract or the clauses. A separate yet relevant question, Did you evaluate FAR 52.217-8 price as part of your initial competition? see ramifications GAO decision of B401472 Major Contracting Services http://www.gao.gov/decisions/bidpro/401472.htm In order to exercise 52.217-8 the option must have been evaluated as part of the initial competition and be exercisable at an amount specified in or reasonably determinable from the terms of the basic contract. if it was NOT evaluated, then the exercise of the option amounts to a contract extension beyond the scope of the contract and effectively constitutes a new procurement.
  3. 8(a) MATOC

    If the terms and conditions of the RFP were clear up front. Could a contracting officer set up a MATOC pool limited to 8(a) participants. Then state that subsequent task/delivery orders will only be competed among the contract holders if the estimate is over the competitive threshold for 8(a) requirements, $4M, and all task orders under that amount may be sole sourced to contractors in the MATOC pool and negotiated individually. I think the FAR and DFAR allows this, but curious what others think.
  4. Not saying it makes sense, but if it did, I could do a competitive negotiation with 4 Phases (if I could come up with something that make sense) under Part 15. It doesn't have to be the multi-step advisory process. FAR 15.100 - Source Selection Processes and Techniques - "This subpart describes some of the acquisition processes and techniques that may be used to design competitive acquisition strategies suitable for the specific circumstances of the acquisition". It defines SOME of the processes, but not ALL of the processes. Then look at FAR 1.102-4(d) - In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority. Just because there is not a FAR 15.10 for the 10 phase source selection process and procedures, I am not kept from issuing a 10 phase solicitation. If I believe it is in the best interests of the Government. I think that ndean was thinking creatively and within the FAR guidelines here in developing her 3 Phase Source Selection Process. Whether the multi-step advisory process or a 2/3/4/5 phase process, with thoughts on eval criteria and proposal submission requirements, are things that could possibly help out. The problem with ndean's 3 Phases is I didn't see her eliminating any offerors, or selecting the most highly qualified offerors to proceed to the next Phase, so why have the offerors submit in phases when you are going to look at all of the information anyway? Seems to just draw out the pain rather than resolve it. Hence my 2 Phase suggestion and looking at the construction example at FAR 36.3. However, maybe the multistep advisory process is better...
  5. Joel, I can tell you are passionate about this, but I think you overreacted a touch here, nevertheless I am still curious and have a question. But first Just want to clarify a few things: 1. my point is that her "proposed" 3 phase approach looked more like 2 phases to me. Because I didn't consider evaluation of the proposals a phase. 2. selecting individuals to go from Phase 1 to Phase 2 is not in the very "literal" sense a competitive range determination. I understand and comprehend all the points and differences you lectured above. 3. Thank you for the history behind the 2 Phase Design-Build Source Selection. My point was for ndean to familiarize herself with 2 Phase D/B procedures, then to tailor her own 2 Phase acquisition of services. Not to follow FAR 36.3 exactly (even though there is not much to follow in that section), as that is obviously for construction. Now for my question. What in the FAR or supplements tells me that I cannot use a 2-Phase or 4-Phase or 10-Phase Solicitation process? As long as it is clearly stated upfront in the solicitation, does not unduly restrict competition, and follows either FAR 14 or FAR 15, what keeps me from using a multi-phase solicitation approach for supplies or services?
  6. I honestly don't know much about the OCI, but this is a two phase source selection in my eyes. See FAR 36.3 for 2 Phase Design Build Selection Procedures, I know that is specific to construction, but you could use it as a starting point. Phase 1 Give them 30 days, as opposed to 21, they submit minimal technical proposal and OCI package. From that you conduct discussions and select the most highly qualified offerors. In the Phase 1 Evaluation Criteria you state that only a certain number of offerors will be selected to proceed to Phase 2 (example, maximum of five minimum of three). Which is essentially a competitive range determination. Then you only allow those offerors in Phase 2 to submit the complete technical proposal, evaluate, hold discussions if necessary, and make award. Only thing I'm not sure, is the OCI package better to have in Phase 1, or in Phase 2? I think I would rather evaluate OCI on only 3 to 5 offerors as opposed to 20 or more.
  7. So I am seeking opinions, and hopefully evidence. I want to consider the DFARS definition of consolidation of requirements only, and not to even discuss bundling, my scenario is OCONUS and FAR 19 for the most part doesn't apply and neither does bundling. However, DFARS part 7 does apply and there is debate regarding how to apply the definition of consolidation to construction requirements. DFARS -207.170-2 Definitions. “Consolidation of contract requirements” means the use of a solicitation to obtain offers for a single contract or a multiple award contract to satisfy two or more requirements of a department, agency, or activity for supplies or services that previously have been provided to, or performed for, that department, agency, or activity under two or more separate contracts. Furthermore, the DoD Office of Small Business Programs further defines bundling and consolidation in their Guidebook dated Oct 2007. http://www.acq.osd.mil/osbp/news/Bundling%20Guidebook%20October%202007.pdf in this guidebook the definition of consolidation states "As recently defined in statute, for a consolidation to exist, the proposed acquisition must be combining two or more requirements that were previously provided or performed under separate contracts." It also gives a definition of consolidation and "new work" in that it says a previously performed requirement combined with "new work, i.e., work that has never been performed under contract." is still consolidating. So how would these definitions ever apply to construction? The argument is that Agency XYZ has previously built a Dining Facility at Fort Fairy Tale. So when you go to build a Dining Facility at Fort Dumbo you have a previously performed requirement under a separate contract. I disagree with that interpretation, they are totally separate requirements because they are totally separate locations with different environments, site conditions, etc. In conclusion I don't see how consolidation definition can ever apply to construction. I can see how bundling could apply to construction because that has to do with limiting small business participation. But I believe consolidation strictly applies to supplies/services. For those who know construction, there are individuals that believe if you combine two facilities, you are "consolidating", and then those who think only when you combine separately appropriated Project Numbers it is considered "consolidating". I have yet to been given any evidence supporting these claims, just passing along the info I've been given, and not saying there isn't evidence either. Agree? Disagree? Have any evidence? Let me know. Thanks!
  8. Construction and Consolidation

    no replies! come on, well I found this case, and WIFCON links to it, http://www.wifcon.com/cofc/08-94c.pdf but the court failed to rule whether bundling or consolidation applies to Construction, but rather they ruled in the Government's favor because they performed the D&F and found that bundling/consolidation was justified. The court noted the following: "whether the bundling provisions of 15 U.S.C. & 631(j) should or do apply to acquisitions for new construction is a question we leave to Congress. To resolve the matter at hand, it is enough for us to conclude, assuming (without deciding) that the provisions do in fact apply, that the Corps has demonstrated that the consolidation of the contract requirements was necessary and justified..." Another good memo I found on the specific case above dated 30 March 2009 from the USACE Assistant Chief Counsel Procurement Law and Contract Disputes, cited the following: "The court did not hold that there is any categorical exemption for new construction....The Chief Counsel's Office has previously declined to adopt the legal position that, as a categorical matter, "new construction" should be exempt from any bundling or consolidation analysis. In light of the Court's failure to rule on the argument that "new construction" is exempt from the bundling and consolidation statutes, adopting such a categorical position at this time would leave the Corps unnecessarily exposed..." so in summary, no one makes a decision, and contracting professionals get bogged down with unnecessary memos and justifications.
  9. Why do systems like SAM always launch in the 4th Quarter of a Fiscal Year? Can someone seriously think about this. You roll out a new system, that will always have kinks, and ask people to change the routine when the workload is heaviest. one thing SAM doesn't have that CCR did, is a list of a firms NAICS codes for which they are eligible as small or large business. Kind of hurts my market research. Assuming SAM is secure, it would be nice to have TIN for firm too, so I can input them into my Contract Writing System without waiting on their response. I should also say, that at this point I just clicked around the website, and I am SAM ignorant, or SAM I AM ignorant?
  10. Acquisition: How long should it take?

    Meet the objectives (moving targets), do it faster, compete everything, always firm fixed price, make sure small business gets an ever increasing portion, but leverage buying power with strategic sourcing, get lower prices, follow all the rules/regs (even contradicting ones), and oh yeah, Government employees are overpaid. Not trying to rant, but it seems the Government sets conflicting goals depending on the political environment. But in the end, I think the most glaring thing is not how much to reduce the acquisition cycle by, but rather the goal should be to measure it. Ridiculous that we don't have that data available. First goal is to measure, then make a decision.
  11. LPTA AND PROPOSALS ABOVE IGE

    Just because it is over the IGE does not mean the price isn't fair and reasonable. I cannot imagine a scenario in which the Government could be wrong on its estimate? We never try to buy more than we can afford right? The recourse the PCO has is to make a determination if the price is fair and reasonable or not via price analysis, FAR 15.404-1( - (competitive quotes, comparison to IGE, market research, historical pricing, catalogue prices, etc.)...Also verbatim from Appendix A, para A.5. of the DoD source selection Procedures dated 4 March 2011 "...Although in exceptional cases when the determination of fair and reasonable price requires additional information, the PCO may conduct a cost analysis to support the determination of whether the proposed price is fair and reasonable." So why not enter into discussions? Tell the contractors in the comp range their price is high in comparison to the IGE. Then request a revised proposal that includes a cost breakdown to mirror the format of the IGE and compare the costs. You get better pricing, and can identify where the high prices are coming from and if any scope clarifications are needed.
  12. pretty sure those links make this point already, but FAR 19 applies because 8.405-5 specifically states the part 19 eligibility requirements do in fact apply. So when you set aside for small business, the Large Business that submits an offer fails to meet the FAR 19 eligibility requirement of a small business and is considered non-responsive and rejected.
  13. As far as providing an RFQ to anyone who asks for it. No problem, they can see it. And you will consider any quote provided. You will consider a Large Business' quote submitted in a total small business set aside as non-responsive and reject it. Not sure why that language would lead you to believe you can't set aside when, as Don points out, 8.405-5 clearly states you can.
  14. Can I modify the GSA Schedule (basic contract) to include the clause if I do not work for GSA? no. If the IDIQ was setup by my agency and I am the owner of the IDIQ (basic contract) then yes I would modify the basic to incorporate the clause by negotiations. So in the event of the GSA Schedule, when I solicit offers through GSA Ebuy, I would inform offerors that the requirement is set aside in accordance with 52.219-6 and that 52.219-14 will also be a clause in the resultant delivery order (contract). The contractor by accepting the delivery order, is also accepting all the terms and conditions which includes any supplemental clauses or provisions in my delivery order that is not included in the basic contract. hoping I make sense to more than one now.
  15. bilateral modification to the IDIQ or basic contract. or when you do a set aside on GSA, you have to inform the offerors that the delivery order will be subject to 52.219-6 as it is a total small business set aside, as well as 52.219-14. You'd also add agency specific payment clauses in a task order to a GSA contract that probably aren't included in the basic contract. As long as these clauses/provisions are provided as information when you request the quote, it's pretty simple to get the contractor to comply. I guess the question your raising is can there be different clauses in an order than what is in the basic contract. nothing prohibits it that i know of. Clauses from the basic flow down to the task order, but nothing says supplemental provisions and clauses can't be added to a task order that isn't in the basic contract.
  16. Cite the Clause or Cite the Authority

    This is an interesting topic to me as well. In contracts that are not commercial and do not have 52.212-4©. When you have a bilateral modification, the authority isn't really required in my opinion. It is a supplemental agreement between two parties. I have a warrant and plan to use it! FAR 1.602-1 is my authority. Now with a unilateral modification, you should always cite the FAR clause in the contract that allows you to do so, as stated before using the Option clause, T4D clause for time extensions. My biggest concern is that the Changes clause is constantly used as the authority for bilateral within scope modifications. Why? By doing so don't you give them the opportunity to submit a request for an equitable adjustment? Changes clause should only be for a change order, which is within the rights of the contracting officer to do unilaterally as stated in the clause.
  17. The clause should be in the contract if set aside and over $150k. As for existing contracts, if you place an order against an IDIQ, the fact that the clause isn't in an existing basic contract doesn't mean it won't apply and is not an excuse not to use/enforce in the task/delivery order as shown in the clause. In addition, the clause says that for supplies if it is procured from a nonmanufacturer then it does not apply. So not sure any loop is fully closed, See 52.219.14 below: Limitations on Subcontracting (Nov 2011) (a) This clause does not apply to the unrestricted portion of a partial set-aside. ( Applicability. This clause applies only to-- (1) Contracts that have been set aside or reserved for small business concerns or 8(a) concerns; (2) Part or parts of a multiple-award contract that have been set aside for small business concerns or 8(a) concerns; and (3) Orders set aside for small business or 8(a) concerns under multiple-award contracts as described in 8.405-5 and 16.505((2)(i)(F). © By submission of an offer and execution of a contract, the Offeror/Contractor agrees that in performance of the contract in the case of a contract for -- (1) Services (except construction). At least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern. (2) Supplies (other than procurement from a nonmanufacturer of such supplies).The concern shall perform work for at least 50 percent of the cost of manufacturing the supplies, not including the cost of materials. (3) General construction. The concern will perform at least 15 percent of the cost of the contract, not including the cost of materials, with its own employees. (4) Construction by special trade contractors. The concern will perform at least 25 percent of the cost of the contract, not including the cost of materials, with its own employees. (End of Clause)
  18. Protest

    Honestly, ignorance is a frequent topic of conversation amongst many professions. It is easy to to cast stones at the system or the perceived shortcomings of others. Politics, Sports, Contracting, take your pick. In my opinion, which is of little value, you can be part of the problem by only telling others how they are wrong or lack qualification, or you can be part of the solution by providing information, atlernative solutions, and/or valuable answers to those seeking help on WIFCON. I for one truly appreciate the work and value that individuals on this forum provide being open and discussing problems, no matter how silly or complex the question might be. There are lots of specialists in the background on this site that search for information without posting questions in fear of seeming foolish. In truth, The one who asks a question is a fool for five minutes, but the one that does not ask a question is a fool forever. Also I would like to let duke38 know that I have worked and awarded contracts over $25M and yet I have no experience with a protest at this point in my short contracting career of 6 years, and I too might seek the advice of others on WIFCON, as well as my coworkers, legal, and regulations. I don't think that is ridiculous. Furthermore lack of knowledge or CO ignorance is not a problem that can't be overcome. It is the lack of critical thinking, problem solving, and agency regulations and checklists taking that process or skill away from Contracting professionals that is truly an issue. I see more focus on oversight and less on execution everyday. If one were allowed to simply function within regulations and stop trying to standardize the process to a one size fits all, along with Contract Specialists/Officers who realize they should add critical thinking/value to the acquisition process because they are paid much more than an administrative assistant, it could actually lead to substantial improvement in the profession. Stepping down from my soapbox...
  19. FAR 36.6 AE Services

    Coming for some guidance and I am going to try my best to lay out the scenario. But up front, has anyone in the Corps of Engineers ever heard of the term "Workplan"? I don't see it defined anywhere. Not in FAR, not in Brooks Act, no return on the search in WIFCON. Defining the term "workplan" versus what constitutes an actual AE "design" is the hard part in explaining the scenario. What has been explained by engineers in the field is a design would be provided by an AE firm with official stamps. A Workplan is much less formal or no stamps, so it isn't actually "AE" per say. Scenario: My understanding is in the past the district would award an IDIQ contract to a construction firm, SATOC, and then would award something called a Type 1 Task Order, in that this task order was for a "workplan" only. Then there would be a follow on/separate task order under the same IDIQ,(called a type 2 TO), for the construction effort. Of course the risk is that you pay for scoping/designs and, for one reason or another, the construction is never actually done. Type 1 task order for scope, no Type 2 task order. The reason the engineers/customers want this, is because they can supposedly negotiate a better price for the construction once the workplan is finalized. Some might argue the reason it is allowable is because the task orders are under the same IDIQ contract. My position is that the task orders should be viewed as separate contracts. and the "workplan" is in fact an AE service when procured by itself as defined in 36.601-4(Other professional services of an architectural or engineering nature or services incidental thereto) . I don't care if it is or isn't stamped. If you want just the design/scope/workplan then you should follow the Brooks Act and FAR 36.6 procedures. Get a design from an IDIQ task order with an AE Firm. Now, If the customer has money for construction, then the task order should be for the construction and the contractor can provide a workplan as part of that construction, but it should all be negotiated/priced upfront. That is Performance Based Contracting in my opinion, we tell the contractor what end result we want, if they provide a scope or "workplan" as part of construction that is a non issue. I think of it as an informal design/build process that is going under a task order. So after much rambling, I would appreciate your thoughts, and I would like those to come with regulations to take back to customers explaining why we can no longer procure the way they are used to doing it, or give me regulations on why I'm wrong and it is perfectly fine to procure workplans as a separate task order.
  20. FAR 36 and FAR 17

    I've dug around a little bit and can't find an answer to my question. It seems to me that the FAR option clauses only apply to Services and/or Supplies, but are a poor fit for Construction Projects. Scenario: Construction is Maintenance/Repair/Renovation Work. The intent is to renovate a building. The base line item may include renovating the buildings HVAC and Electrical, but then we might include Option 1 to provide Video Surveillance System, Option 2 combine room 130A and 130B to a single room. Option 3 provide new carpet/flooring. The only clause that remotely fits is 52.217-7 - Option for Increased Quantity - Separately Priced Line Item. However the clause itself states "...delivery of added items shall continue at the same rate of like items that are called for under the contract, unless the parties otherwise agree." The clause lends itself to stating that we have a base line item for 100 widgets and an option item for 50 additional widgets. However in construction we have renovation of building HVAC versus option of providing new flooring. In my opinion this is not a "like item". Additionally, the prescription for that clause at FAR 17.208(e) states "when the inclusion of an option is appropriate and the option quantity is identified as a separately priced line item HAVING THE SAME NOMENCLATURE as a corresponding basic contract line item." So you would need a base line item for HVAC and an option line item for additional HVAC. Another scenario might be with New Construction, Design and Build an administrative building with the overall purpose of housing government employees, however an option line items for a gym and locker room might be included, but might not be awarded if there isn't enough money for it. I have same problems with the Option clause here. Is my reasoning incorrect? or is there a more appropriate way/acquisition strategy to include Options on Construction Contracts?
  21. FAR 36 and FAR 17

    Thanks Joel, I have just started a job with the COE and I'm a little new to construction contracting...So when I mentioned "Simple Narrative" I was referring to adding a paragraph for the Option Evaluation and Time to exercise after award to Either Div 00 22 11 (Eval Criteria) or 00 73 00 (Special Contract Requirements) which is essentially, yes a contract clause. My next point is though, do you agree that we can use Options, but do not need a Justification for Inclusion of an Option or a D&F to exercise an option when executing construction contracts. FAR 17.200 says the subpart does not apply to construction. Therefore 17.203 (use of options) 17.205 (documentation) and 17.207 (Exercise of Options) does not apply...
  22. FAR 36 and FAR 17

    Thanks Joel, didn't see your reply when I posted, but now my question is, FAR 17.2 does not apply to construction, but does not PRECLUDE the use of options in construction. So one might use options for construction but not follow FAR 17 or use the applicable clauses, which is why simple narrative in the RFP stating how long the option is availabe to be exercised and how it will be evaluated is all that is required in a construction contract???
  23. FAR 36 and FAR 17

    Thanks for the quick reply, but does that mean that the use of Option Line Items for Construction Contracting is not even an alternative? FAR 17.200 continues to say "however it does not Preclude the use of Options in those contracts" I realize that is under FAR 17.200© but my interpretation is that (a)( & © are one continuous statement in this section as opposed to independent. Therefore, if I justify the use of options, I should follow the guidelines of FAR 17.2 correct? My issue is how to go about using Options, or another method, for Construction Contracting. Furthermore, this raises the question, if FAR 17.2 does not apply to construction contracts, but does not preclude the use of them, then I can use an option line item without a clause or without justifying the use of options? Thoughts?
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