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Guardian

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  1. So far, so good. I made a decision before the meeting to take the high road. The chairperson sat in the conference room for most of the morning with a sour look on her face. She even tried to call me out for an inconsistency (something I knew I had done, but was not able to change in the handout package before our 9am kick-off). I smiled and said, "good catch; thanks for reminding me. Let's address that for a second." I did not arrive into the Government until my mid-30s. Before that, I did a number of things. I was a tutor for disabled people, a graduate research assistant at a university, a committed student and a manager/foreperson in construction-related services. I spent the better part of ten years dealing with people who, albeit highly-skilled, could be extremely difficult to manage. One of our best brick-masons, a freelancer at that point, was formerly unionized and had never shed his union mentality. He was always going to be in charge (and break at least twice an hour), but he did very good work. So I learned to apply some reverse psychology to lead this somewhat obstinate and quintessentially passive aggressive tradesman to complete projects. We even became friends to some degree, but it was touch-and-go. He was never going to be "matter-of-factly" ordered to do anything and more often than not, the particulars of any job were going to be on his terms. We had some great times together, saw some exceptional outcomes, but after several years of this, admittedly, I was exhausted. I feel like the Government is a blessing in many ways relative to this former life and the alternatives; but am not here to minimize the challenges of being an 1102. These were great experiences to have as a young man, but I am happy to be where I am now. I am affected by the summer metro shutdown in D.C. (coming to a close this Sunday, as the platforms south of Reagan National have been rebuilt). In early July we had a contractor bus driver from Texas, whose job it was that afternoon, to get us all from the Pentagon to a metro station in northern Fairfax County. We were packed on this bus like sardines in a can. I was sitting along the aisle directly behind the driver, immersed in a book. At one point, a young lady made her way to the front to inform me that we had missed our exit several miles back. We began discussing our predicament rather loudly. The traffic was significant. Being newer to the area, I immediately logged into my GPS and began guiding this driver in the right direct (she had been headed to Woodbridge). What was most concerning was that when I looked behind me, about 80% of the passengers were either on their phones texting or playing games or listening to music, seemingly indifferent or blissfully unaware that we had put ourselves about 45 minutes off course amid the rush hour traffic. There was a guy across from me in a suit with well manicured silver-hair, having a business conversation, apparently so distracted that he did not realize we were headed west instead of south. His conversation continued for another 40 minutes at least. One passenger behind me made sure to let me know that his GPS said to get off at the exit we had just passed. "Why are you telling her to go this way?" he scolded. I replied that he was more than welcome to take my spot and direct the driver himself. At that, he shrank back into the seat lining; he was not interested in being a navigator, only an armchair quarterback. People are put in positions of authority for all types of reasons. People over six feet tall are many more times likely to be hired as managers, even though there is no scientific evidence that as a group they make better or more qualified leaders. Jeff Bezos, currently the wealthiest man in America, is only about 5'7". So is Nick Saban. In fact, most of the world's wealthiest people are of average height or less. Maybe it's that people who have endured a slight disadvantage are made better by it. But, I have digressed from my main point. I had accomplished quite a bit at work recently, but that day on the bus was one of the most satisfying I had had in some time. When I looked behind me at what was a sea of technology-distracted and clueless faces, I realized that what most situations call for is someone who can rise to the task with calm and aplomb to get everyone back on the right path. Throughout the kick-off meeting, I reminded myself of JI's advice and that of Teddy Roosevelt, who said, "speak softly and carry a big stick."
  2. If 52.212-4 was IBR , then it should be evident to the contractor that it has not been tailored. Personally, I don't have a problem incorporating key clauses in full text, even if the standard practice is to IBR. The way I look at it is offerors should be reading the complete clause either way; providing them the full text ensures they don't have to look it up or risk referencing an older version. I also think it's perhaps helpful to small businesses that don't have in-house counsel. Either way is acceptable. I tend to be a fundamentalist in some respects. So then, I initially incorporated the clause in full text as the conforming contract instructed. The reviewer told me that was extraneous and to instead IBR. I don't get too hung up on those things. Again, I think either way is fine.
  3. I understand your point. 12.102(b) says: Contracting officers shall use the policies in this part in conjunction with the policies and procedures for solicitation, evaluation and award prescribed in Part 13, Simplified Acquisition Procedures; Part 14, Sealed Bidding; or Part 15, Contracting by Negotiation, as appropriate for the particular acquisition. However, it does not say "shall use the policies in this part only in conjunction with...." In the conforming contract from the agency administering the IDIQ (GWAC), the guidance states: (The following clause only applies to task orders that are for the acquisition of supplies or services that meet the definition of commercial items at FAR 2.101. They will be incorporated in full text into individual orders, as applicable.) FAR Clause 52.212-4, Contract Terms and Conditions – Commercial Items (Jan 2017), I am not sure why the administering agency is asking the OCO to incorporate this clause in full text when section 12.303 prescribes (to the maximum extent practicable) use of the SF1449, which allows for IBR clause 52.212-4 via block 27. IBR or in full text, either way, I don't think it makes a difference. Moreover, the commercial items clause does not seem to flow down from the contract, if the guidance recommends the OCO include it at the order level. But my question is this—how am I not operating under the authority (at least in part) of FAR part 12, when we are incorporating the standard commercial item terms and conditions into the order, be it through guidance or prescription?
  4. Since this is a solicitation to award a task order off a GWAC, I am conducting it under the authority of part 12 and subpart 16.5. However, absent any guidance under 16.5 about evaluation teams, I have deferred to the rather general language provided under 15.303 and consider myself (in addition to being the CO), the Source Selection Authority for this acquisition. FAR 15.303(b) states: The source selection authority shall- (1) Establish an evaluation team, tailored for the particular acquisition, that includes appropriate contracting, legal, logistics, technical, and other expertise to ensure a comprehensive evaluation of offers; So then, my answer to your question is "yes," I, the CO, am also the selecting official. I will ask the TET to make their selection and document their reasoning in strict accordance with the evaluation criteria. However, I ultimately reserve the right to award to the offeror that represents the best value to the Government if I determine that their documentation does not support their "recommended" selection.
  5. While waiting for submission of task order proposals, I sent out an invite to the members of the evaluation team and legal advisor exactly one week in advance of the kick-off meeting for the TET. One of the recipients, who is acting in an advisory role, emailed me over the weekend stating that he would not be there on time because of a family commitment. I rarely, if ever, take issue with an individual that is courteous enough to give notice of a scheduling conflict well in advance. I returned to the office today to a series of messages from the chairperson of the evaluation team via a texting platform. She complained that she did not understand why her team had to come in for a full day and insisted that it would be best if they could conduct the evaluation remotely. Per the source selection plan, we are conducting a consensus evaluation. As I already told her and her team, I am happy to negotiate the time, place and conditions of the evaluation at our initial meeting. I took considerable efforts in preparing a package with instructions and evaluation worksheets for the team, including an agenda for the day. My first response to her request was to say that everyone had accepted the meeting invite and that her request was late in coming (the day before the kick-off meeting), in other words, this was never an issue before today. I tried to calm tensions by explaining that I would get them started on an initial evaluation to ensure that they were conducting it and writing their supporting documentation properly. I tried to make the point that this would be the most efficient way to proceed. About a half an hour after we exchanged these messages, the chairperson sent an email out to the entire list of recipients on my invite, saying that they should only plan to stay through step 5 on the agenda (before the evaluation of the first offeror) and then adjourn, after which time they could go their separate ways and work remotely. I read this not believing that someone in an appointed position would have the audacity to send out such instruction in direct contradiction to what I just told her. Perhaps that was the problem, the fact that I did not communicate more like the Captain in Cool Hand Luke. But I am here to build a team and relationships. I am not sure how to define her actions: passive aggressive or just blatant "don't give a crap that you're the CO" disrespect. As a senior CO, I have been at this long enough that I've seen quite a bit, but this takes the cake in terms of a stakeholder thumbing her nose at the CO. My director wrote the evaluation team and chairperson a reply reminding them that the CO controls the meeting format and schedule. Tomorrow, I will stand in front of my team and address them, as planned, despite this woman's actions; however, I want to address this individual's lack of professionalism and disrespect. I am not sure if this is so much a contracting question, as it is a question on how to best promote the concept of "working-well-with-others," when it seems only some are onboard. Does anyone have any sage advice or an idea as to how one would handle a similar situation?
  6. Point taken. I will change my citation. It's worth noting that 12.207(c)(2) says that the CO "shall execute the D&F required by paragraph (b)(2) of this section," under which the citation I quoted can be found: "Establish that it is not possible at the time of placing the contract or order to accurately estimate the extent or duration of the work or to anticipate costs with any reasonable degree of confidence." This language from the FAR supports my point, at least in part. Yes, (c)(2) is correct in this case as I am intending to place a LH task order off an IDIQ, not award a LH contract under FAR 16.6. Nevertheless, (C)(2) still points back to the same requirements that exist for the latter. I agree with you that I should seek to convince the reviewer by referencing language in the FAR supporting my assertions. I presume that by "their approach," you mean technical approach. We are not evaluating technical approach as part of our evaluation criteria. The contracting activity and the requisitioning office mutually agreed to base the award on the contract holders' ability to demonstrate relevant experience, in addition to its price. Our requirement is a continuing requirement in that there is no end product/result per se that the program office has defined. I tried ardently to get them to define one. Had they given me more, I would have very likely made this a FFP action. Moreover, the program office did not include performance metrics (not for want of trying), e.g., perform "X" number of successful actions per week or respond to service calls in two hours' time or less. Second only to my role as a contracting officer, I am a business advisor. The criteria we mutually agreed to seems the best fit for our circumstances. Is it perfect? Probably not; but I feel it is the best path forward given where we are. I am not sure how a contract holder could come up with a meaningful "level of effort" based on our requirements statement. Sometimes it's best for the Government to provide the recipe. For example, if we have a guard post with a metal detector and an X-ray machine that needs to be manned from 6am to 6pm, six days a week (a hypothetical example) with one armed lieutenant and two subordinate armed guards, then I think we could simply state that. Might the contract holder be able to come up with a better mix to perform the requirement? Maybe so. Deciding upon a source selection plan should be a brokering between the CO and the requiring activity. As in our case, if it is an end of the year requirement that warrants a streamlined approach, then evaluating the same labor mix from each of the submitting contracting holders is one way to accomplish that.
  7. I recently submitted a request for task order proposals (request for submissions if you prefer) for review. We intend to purchase services via a TO off another agency's GWAC (IDIQ). We are conducting this action under FAR subpart 16.5, not applying the procedures of subpart 15.3. Although the purchase is for commercial item services, I completed a D&F under FAR 12.207(b)(1)(ii)(A) to award a labor-hour type action. I needed to meet the following condition, under this section: "Establish that it is not possible at the time of placing the contract or order to accurately estimate the extent or duration of the work or to anticipate costs with any reasonable degree of confidence." Attached to the solicitation is a price spreadsheet with specific labor categories that are mappable to the catalogues (pricelists) of several contract holders. For each labor category, our instructions state, that the contract holder is to fill in the unit price(s) for the number of hours we specify; we, of course, seek price reductions off its GWAC. The reviewer stated that I needed to include language in my solicitation stating that the Government would evaluate price to determine price reasonableness, citing that the guidance from the GWAC administrators was that the Order-level CO was responsible for making a price reasonableness determination. I interpret this statement as blanket language that would apply when the ordering activity is evaluating, let's say, a labor mix for a FFP award. In our case, we have a rather loosely written requirements statement. I contend that for a specified number of hours for respective labor categories, the so-called labor mix is highly uncertain and speculative, as it is a labor-hour task order. Therefore, we can only hold the contractor to best efforts, not a final result or product. The ceiling price is the most significant protection to the Government, not unlike a limitation of costs clause in a cost-reimbursement vehicle. The agency that awarded the GWAC made a determination of price reasonableness for the hourly wage rates associated with the labor categories (a determination made again with the renewal of each option). Because we are buying hours in the exact quantities specified, the prices have already been determined fair and reasonable at the contract level. What labor mix is there to evaluate? The determination of price reasonableness, under such a scenario, would be nothing more than a confirmation that the contract holder has filled in the price spreadsheet, as posted, and that the prices submitted are at or below its contract prices. The reviewer insisted that there is always a labor mix; this is debatable. If, in justifying use of a labor-hour action for the acquisition of commercial items, I am required to "establish that it is not possible...to accurately estimate the extent or duration of work or to anticipate costs with any reasonable [emphasis added] degree of confidence," then what value is a labor mix? Under a labor-hour scenario, I can chose to use the term "labor-mix," but it certainly is not the same as a labor mix associated with a FFP action, under which I may withhold payment, until the work described in the order is completed.
  8. We use the Optional Form (OF) 347. This is the form I have always used for all my delivery and task orders off GSA FSS. Whereas there is no signature block for the contractor to sign on that form, I suppose you could create one within block 17 or the "Schedule - Continuation." We have before. Again, my understanding is that once the contract holder begins performance, they have thereby accepted the order and all of its terms and conditions, including any options clause. I asked a question in my initial posting. After a dozen replies, no one has yet answered it. But I feel I already know the answer, unless someone convinces me otherwise. This forum is great for pedantic discourse, but not always great for getting a straightforward answer to a question. Sometimes I feel like a guy asking a question such as, "how might I get to Missouri from here?" and the response I get is, " hey, I notice you're wearing white pants and it's after Labor day. Do you realize that's a fashion faux pas"? Don't get me wrong, I learn a lot and I tend to be a sucker for tangential or related-topic discussions. However, some of these posters would drive a cross-examining attorney nuts. I feel your question demonstrates that you read my initial question and recognize that others read over it without answering. Thank you for that.
  9. @Don Mansfield That little nugget alone was worth starting this discussion--some 1102 term history and etymology. I am a word origin guy myself. If you haven't already, check out Bill Bryson's, Made in America. It's chock-full of etymology for homegrown words and phrases. I'm doing a re-read now as I recently came across it on a list entitled best books to prepare for Jeopardy, not that I'm ever going to be the next Ken Jennings or James Holzhauer. Thanks again, Don Socrates!
  10. @Don Mansfield. Perhaps you're right. Just one more thing. I looked under 13.303 and found no references to the term "call order." You said that term is unique to FAR part 13 BPAs. Where might I find it? What is its origin?
  11. Yes, the BPAs and order to which I am referring are under the authority of 8.405-3. You are correct that subpart 8.4 never uses the term "call order." We use PRISM as our acquisition software and it designates every order off a BPA, be it under 13.3 or 8.4, a "call order." I understand that per 8.4 that term is in fact a misnomer. I have found the term "call order" ubiquitously used among practitioners. Socrates--I am a fan going back to my college days. "All I know is that I know nothing at all." Somehow, I feel like I am about to step into a Columbo moment. "Just one more thing."
  12. I appreciate the posted references to these prior WIFCon discussions. That last one is quite comprehensive, but seems to speak more so to whether you can incorporate options into a BPA. My question only deals with call orders. I am not sure why there is a debate about whether BPAs can have options. 8.4 seems pretty clear. You would have to have them on any single-award BPA that you want in place for longer than a year. I don't know what the purpose of having options on multiple award BPAs would be, as you can build in differently priced CLINs for separate periods of time and the BPA may remain in effect for up to five years. FAR 8.405-3 (d) Duration of BPAs. (1) Multiple-award BPAs generally should not exceed five years in length, but may do so to meet program requirements. (2) A single-award BPA shall not exceed one year. It may have up to four one-year options. See paragraph (e) of this section for requirements associated with option exercise. (3) Contractors may be awarded BPAs that extend beyond the current term of their GSA Schedule contract, so long as there are option periods in their GSA Schedule contract that, if exercised, will cover the BPA's period of performance. [end citation] If we look at paragraph e of the same subsection, the CO is required to review the BPA once a year, for example, at the option exercise, to make a determination that the price is still fair and reasonable. Under a call with options scenario, the CO would look at the status of the options, contingent on a determination of price reasonableness, on the following (1) the schedule contract, (2) the BPA, and then again on (3) the call. I think you can understand why I referred to calls with options as "creative" and potentially "unwieldy," although the latter description may be a bit hyperbolic. It's an Erector Set design of sorts. (e) Review of BPAs. (1) The ordering activity contracting officer shall review the BPA and determine in writing, at least once a year (e.g., at option exercise), whether— (2) The determination shall be included in the BPA file documentation. (i) The schedule contract, upon which the BPA was established, is still in effect; (ii) The BPA still represents the best value (see 8.404(d)); and (iii) Estimated quantities/amounts have been exceeded and additional price reductions can be obtained. [end citation] Vern had an interesting insight: While arguing about whether FSS BPAs are contracts may be fun, it is a distraction from the more interesting truth about BPAs -- they are nothing more than mechanisms to enable agencies to avoid competitive practices when ordering against schedule contracts. I don't think a BPA lets an agency do anything under the contract that it could not do without the BPA. Heck, you can do anything in an order under a schedule contract if the contractor will go along. But if an agency establishes a BPA, then it need no longer follow the pesky ordering procedures in FAR 8.405-2, unless the agency is foolish enough to establish multiple BPAs. [end citation] In my case, the call order is off of a BPA under a multiple award BPAs scenario. Hence, some of my concern regarding options on a multiple year call order. I gather that when Vern quipped "unless the agency is foolish enough to establish multiple BPAs," he was referring to the burden imposed under the rules of fair opportunity. The same subsection of the FAR tells us that to the maximum extent practicable we should "give preference to establishing multiple-award BPAs, rather than establishing a single-award BPA." I understand it's not an absolute requirement, but it's reinforcing Congress's wishes.
  13. I do not disagree with you that issuing a new call order would make for a longer process. Point taken. But how would it be more expensive? More expensive in what way? I am a sunk cost. The other employees that work alongside me on acquisitions are sunk costs as well. What exactly would be more expensive about issuing a new order? As I stated above, I question whether it is best practice. GSA FSS contracts have options. Let's say we award a single award BPA off the schedule contract. In that case it is likely we will have options on that BPA. Then, you suggest we incorporate options onto the call order itself. Again, I never said we were prohibited from doing so. But there are a lot of moving parts here and it becomes perhaps a bit unwieldy. Also, if we examine the purpose of orders off subpart 8.4 BPAs (which the FAR does not address in any great depth), should we be turning them into full fledged contracts. I understand the options (in my case) were all competed up front under a multiple award BPA scenario. However, I think we can mostly agree that circumstances and a contractor's ability to offer discounts at any given time depending on a number of factors, e.g., how many contracts they have in the cooker, staffing, financial resources at the moment, whether they've made it over the hump to that additional year in business, etc. Subpart 8.4 never mentions options on BPA orders. However, it does discuss in detail the concept of fair opportunity. Is the practice of regularly incorporating options in BPA orders in the spirit of CICA and fair opportunity? Well, I might actually feel more confident that the schedule contract holder would perform under a scenario in which I have options built into my order. No one ever answered my question above, "Whereas there is no legal obligation for the BPA holder to accept the call upon issuance, if and when they do begin to perform, they thereby accept all the binding conditions of the action as therein stated. Is the BPA holder then obligated to accept any options the Government thereafter elects to exercise?" If the option creates a unilateral right on the part of the Government after the schedule contract holder has begun performance, then I would actually have less confidence that they might perform when I issue separate orders without options. If the option becomes a unilateral Governmental right, what legal consideration might give the Government that specific right? Also, I think the point is, that there are other considerations aside from having confidence that the schedule contract holder will perform. For one, it would give me greater confidence that I provided true fair opportunity to all BPA awardees and solicited for the most current pricing, terms and conditions. There might be some satisfaction that I had not effectively guaranteed a schedule contract holder three to five years of performance based on an initial competition several years back, given the reasonable consideration that the current market might offer something better.
  14. My agency is setting up options on BPA calls awarded under subpart 8.4. When I asked why this was being done, I was given the following answer, "it's no different than what we do on task orders; we set up options on those." If we are to use this as a basis of comparison, then we can say that the task order is one tier down off the main contract, as the blanket purchase agreement is in relation to the schedule contract in this case. However, the BPA call is two tiers down off the schedule contract. I personally would not award a BPA call with options. Aside from everything else, it is messy and not good practice. Why not just place another call? I suppose contracting shops can get creative when the FAR does not otherwise forbid an action, but I certainly would not advise making a habit of it. The other consideration is this. One might make the argument that because there is no legal consideration on the BPA itself, i.e., it is just that, an agreement, not a contract, that a CO should not be building in what otherwise becomes a unilateral Governmental right (which is to say the exercise of an option). With respect to the call itself, my understanding has always been that the call becomes contractual upon acceptance through the BPA holder's commencement of performance. Whereas there is no legal obligation for the BPA holder to accept the call upon issuance, if and when they do begin to perform, they thereby accept all the binding conditions of the action as therein stated. Is the BPA holder then obligated to accept any options the Government thereafter elects to exercise?
  15. Excellent response, Joel and a great help! I started with a fundamental, seemingly elementary question, in hopes of getting answers to more specific questions. Perhaps that first question wasn't worded as it should have been, but I asked several other good questions along the way that were flat out ignored. I am not sure why. I will assume the blame in that I tried to pack too much into one thread. I too am retiring and going out to enjoy this nice weather.
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