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Guardian

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  1. It is good to hear this from a veteran KO, Joel. Aside from the differences of opinion on terms and processes, what has always concerned me the most is a reviewer's unwillingness to support their review comments. It never ceases to amaze me that such approaches are tolerated by those individuals' supervisors. My asking for justification is seemingly taken as an affront. I was recently told by a hiring manager that highly-skilled 1102s, which he defined as those at the post-GS-13 grade-levels, were the most difficult to hire, because the pool of qualified applicants is so light. Yet, when a practitioner is anything but apathetic, reads, applies great thought and shows concern for their work product, those same individuals are made to feel like nuisances. Others have told me there are a select few agencies where the culture is not like this. However, I think the problem is widespread enough and certainly much worse in particular offices, unfortunately because of a few individuals. I am currently leading a team, mentoring newer KOs and I tell everyone up front to challenge my assertions at will, just come at me with your best research. When someone ends their assertions by writing "plain and simple," that is a red flag for me. Many of us nowadays went to law or graduate school or were officers in the military. Does a director really think that by ending their unsupported claim with such bromides is enough to assuage a talented discerning KO's legitimate concerns? Even worse is when they conclude the conversation by saying "just do it; no more discussion."
  2. Since I inherited this action from another CO (who was involved in requesting the original legal review), I reached back out to one of our reviewing attorneys again this morning to obtain clarification. The attorney indicates that the work is within the general scope of the original contract, i.e., no cardinal changes are being made. My understanding of the litmus test for determining a proposed action to be "within the general scope" is whether it seems more than likely that the contracting parties could have reasonably anticipated such a change at the time of original award. Another attorney went a step further, asking "have the capabilities changed to an extent" that any of the original offerors could make the argument that they might have otherwise submitted a better proposal than the one selected for award? In our case, I believe the answers are "yes" and "no," respectively. If I ask myself as a CO, could the Government and this contractor have reasonably anticipated at the time of award, that after four-years (assuming we exercised all the options, which we did) we might need to extend for a few additional months while awarding a recompeted action? The answer is a resounding "yes;" it happens often enough in the world of federal contracting, and by the way, these are commercial items we are purchasing; we have to effectuate any changes bilaterally. Why you might ask, are we publicizing a sole source justification? For one, our agency's policy requires us to do so. The fact that we are exceeding the obligation on the original contract, usually sounds the alarm, that we need a justification. In short, the same attorneys who advised us of their opinion that this is within scope, also advised us to write and publish a justification. I know this is handled both ways among varying agencies (justification versus no justification). My question would be, what harm could it possibly do, other than cost the Government administratively for something perhaps no one in the contractor community is very much concerned about? To that, I would reply, better to publicize an SSJ to apprise everyone of our intentions, than risk a protest, which would be really costly, and if a contractor is going to protest, then let them do so now upon reading our justification I think we are both in agreement on the meaning of the term, "option." I view it as a "term of art" and the FAR is specific in its definition.
  3. Yes, bottom line, we do want to expand the contract beyond whatever options were originally included under 52.217-9 and yes, the reason is to be able to cover a period prior to the next recompete. The reviewers and I all agree we need a sole source justification (or JEFO if you like--I'm not getting too bogged down with the specifics for purposes of anonymity). We all agree that the funded extension needs to be accomplished bilaterally. The difference of opinion is simple. The reviewers are insisting we call the extension (bilateral) an option on the SSJ and on the modification itself. I said, but an option is unilateral (per the terms stipulated in the option clause) and this is anything but. Therefore, per the FAR and definition of "option" as a term of art, what they are proposing is not an option. The reviewers retorted, "options can be bilateral or unilateral." Well, I respectfully disagree.
  4. Yes, Bob, FAR clause 52.217-9 is incorporated. In addition to the proposed contract extension by mutual agreement of the parties for which there is a funding commitment, the office wants to incorporate three "short" options as safety nets in case we fall behind on our milestones in awarding the recompeted contract. I indicated that we need to modify to increase the ceiling in paragraph c of that same option clause, "...shall not exceed xx (months) (years)," as we are approaching the maximum number of months therein specified. Do you see any issues with this approach?
  5. It's a supplemental agreement within scope. What clause am I citing? Well Don Mansfield probably does not think I need to cite any clause. Is not a signature from an authorized representative of the contractor enough? Hmm, perhaps I would cite the commercial items clause, paragraph c (52.212-4(c) Changes), but isn't that superfluous? Why isn't an action based on the mutual agreement of the parties a bilateral action, you ask? It is, I agree with you; never said it was not.
  6. Per the title of this discussion, FAR section 2.101 states, "'Option' means a unilateral right in a contract by which, for a specified time, the Government may elect to purchase additional supplies or services called for by the contract, or may elect to extend the term of the contract." My office seeks to extend the term of a contract by several months on a sole source basis. Our attorney offered his legal opinion, saying he believed such an action was within scope of the original action and therefore permissible. I am doing the contract extension via a modification by the mutual agreement of the parties. When I sent my package for review, the comment was as follows, "This [contract extension] is an Option (to be labeled sequentially one number after the current option we are under." When I pointed out the above FAR citation and my understanding of an Option as a term of art, i.e., an instrument being the unilateral right of the Government, I was told that "Options can be bilateral," and to call it an Option and move on. Does anyone know of any justification for the reviewer's assertion?
  7. General, you offer a lot of good suggestions above for evaluation criteria one might use to conduct a downselect. My original question is focused on how to support a selection decision through documentation after the Government has determined which criteria it will use to evaluate. Our criteria for evaluation must always be stated in our solicitation. However, the way we document our evaluation and selection does not necessarily have to be included in the solicitation language. I have found that many decision authorities prefer to tell contractors a lot about how they will document their decisions. Whether this is a good idea is arguable. When was the last time anybody went on a job interview and the hiring manager and panel disclosed to the candidate exactly how they were going to document her evaluation behind the scenes? Most of the time, she'd be lucky to get a call back. In my office, we tend to take the stated criteria (for example, any of the criteria you suggested above) and apply it to each individual contractor performing a "thorough" evaluation. The evaluation team then documents each contractor relative to that criteria. We do that for each contractor, be it two or twenty-two. We then take all that information and perform a comparative analysis. Generally General, this involves comparing each contractor that will move on to Phase Two to each contractor that will not. We tend to cut and paste our individual findings for each contractor and string those statements (findings) together using comparative language. The following serves as a truncated example: Phase 1 - Individual Evaluations of Experience Contractor A Contractor A has recent experience in three contracts (within the past three years) performing work largely comparable to that described in the SOW. Contractor B Contractor B has recent experience in one contract (within the past three years) performing work largely comparable to that described in the SOW. Phase 2 - Comparative Evaluations of Experience Contractor A is superior to Contract B in the area of Experience as Contractor A has recent experience in three contracts (within the past three years) performing work largely comparable to that described in the SOW versus Contractor B, which has recent experience in one contract (within the past three years) performing work largely comparable to that described in the SOW. Granted, this is an overly general example short on specifics. But it is an example of the model my office seems to favor. The Individual Evaluations can run into double digit pages (in a Fair Opportunity selection) depending on how many offerors we are required to evaluate. The comparative evaluations, which tend to regurgitate the same information found in the Individual Evaluations can also run into double digits page-wise. The template in the PIL Boot Camp Workbook, specifically Technique 5, consolidates the above information into a single document, which it refers to as a "Comparative Evaluation." I prefer this approach on the surface, as it provides a model and rhythm for moving through evaluations of multiple offerors with a level of efficiency and less documentation. General, based on the criteria you suggested above, how would you document your evaluations? Would you not use a comparative analysis to downselect? How then might you otherwise document your downselect decision?
  8. Ibn Battuta, My dear father was a sergeant in the Army. I believe this is a term he brought back from his enlistment which my brother and I heard countless time growing up, among many of his other favorite sayings and aphorisms from the service. I am sorry, no harm or insult was intended I chuckle every time I think of that saying, which in this case, I replaced with a euphemism. As you can guess, it means focused on minor (perhaps trivial) details. I never meant to come across as vulgar, nor subject you to a lecture. This forum can get energetic and mildly sarky, as I'm sure you are aware; but it was not my goal to make you feel anything less than someone with whom I would want to share insights and take advice.
  9. I would draw your attention to FAR 1.108(a), Words and terms, which states, "Definitions in part 2 apply to the entire regulation unless specifically defined in another part, subpart, section, provision, or clause. Words or terms defined in a specific part, subpart, section, provision, or clause have that meaning when used in that part, subpart, section, provision, or clause. Undefined words retain their common dictionary meaning." Moreover, I would point you to the link JI included, specifically the cited GAO case, AlliantCorps, LLC; B-417126; B417126.3; B417126.4; February 27, 2019 (see page 31 under the GAO Guide for Comparative Evaluations). The GAO has rarely held contracting officers to a standard of "beyond reproach," or "perfection in how we document of our selection decisions." In fact, such standards are antithetical to streamlining as contemplated by FASA and initiatives such as the DHS PIL. I'm all for semantics and a good hardy debate, but rhetorical interchanges over the meaning of commonly used words border on an exercising of "picking fly feces out of pepper with boxing gloves." That is an exercise, which I for one, wish not to engage. The GAO has set a standard affording KOs generous latitude. In documenting a decision, we are to meet the minimum requirements as set forth within the solicitation's language (read AlliantCorps, LLC, above cited). Sometimes less is more. I have see instances in which our attorneys ask us to create multiple layers documenting our evaluation decisions under fair opportunity. Since they are equally worried about including something in the subsequent layer that was not in the previous one, it becomes an unnecessary and redundant exercise of cutting and pasting. We are all human. We do the best we can and if we read GAO precedent, then we know we worry far too much at the sake of efficiency and innovation. Maybe it's our agency attorneys and others giving rise to such worry. When an attorney gives his or her opinion, we should not be afraid to request the legal basis of that opinion. Sometimes I get a reply of, "that is the way we have always done it. I tend to shudder at such a response. Every selection decision is going to be tainted with at least a teaspoon of subjectivity. More often than not, the subjectivity is from the evaluation team and we as KOs do our best to minimize it. I have spent a long time thinking about the perfect evaluation criteria. To date, no one, regardless of age, experience or intellect, has been able to gift it to me. I am not confident that day will ever come. We must also bear in mind, that it is never a one-size-fits-all approach. The GAO focuses on points of protest that would make a substantive difference in the results of an evaluation, i.e., that which might tip the scales in favor of another offeror. That ought to continue to be our focus.
  10. JI, Innovation Technique 5, Comparative Analysis, states "Probably more suited to acquisitions with a few quotes and a few evaluation factors." The point of Phase One, a downselect, is to narrow a larger pool of offerors down to a more manageable pool, i,e, best qualified. Based on our market research, I can conjecture as to how many task order proposals we might receive. However, I cannot say with any certainty. I have to presuppose that all contractors under the socio-economic category for which we are setting our FOPR aside might submit task order proposals. It should be noted that there will be a page limit placed on their responses to Phase One. Given that we will evaluate only one non-price factor, while also considering price, we have met the second condition of the above statement, which is "Probably more suited to acquisition with...a few evaluation factors." During Phase Two, we will also apply a comparative analysis. In this subsequent phase, both criterium recommended above will be met, that is, less offerors (only the most qualified) and few evaluation criteria (we will only evaluate technical approach in Phase Two). Per the PIL's recommendation, an immediate comparative analysis seems more appropriate in Phase Two when we are guaranteed less offerors to evaluate. However, we are proposing to apply an immediate comparative analysis in both phases one and two. Given that we do not know how many offerors will submit responses to Phase One, might there be a better approach than immediate comparative analysis to incorporate into the downselect phase, Phase One? It is in the Government's best interest to apply a trade off approach for my agency's requirement. The approach described above would not work well for our requirement as it does not apply the weighing found in a tradeoff. Instead it consistently represents differences between offerors, be they marginal or wide, by a single point in every case. For example, let's say Company D's experience is only slightly better than that of Company C. However, Company C's experience is significantly better than Company A's. In both comparison, we assign only a one point difference between the two. The same shortcomings of this approach would manifest in past performance or any other non-price factor. The sequential points approach plays out with even greater imbalance when we factor in our scores for price. One company might receive a "4", whereas the next lowest priced company receives a "3". The difference in between their prices might be less than $100 or a some near inconsequential amount in a multi-million dollar acquisition. In fact, Offerors B, A and C could all be neck-in-neck on pricing, while D could be 100% more than the next lowest price. However, as you can see from the hypothetical scenario above, D is selected for an award. The net result might be that the Government ends up paying significantly more for an offeror that is only slightly better in the other factors.
  11. I understand, Don. It seems the "even swaps" method would work better using rankings as the HBR article states. I like the ranking or scaling method for this approach. However, I know a lot of contracts managers are averse to the idea of ranking. Why do you think this is? Perhaps it is equated with numeric scoring, which has become a bit of an anathema. For example, no one wants to explain to the GAO why an offeror lost to an awardee by a single point. It seems to me we rank offerors regardless as evaluators and selection authorities, if in no other way, in our minds as we are performing the evaluation. The question is whether we document it as part of the file, making it something subject to discovery. If we don't rank, then we have to document our evaluation narratively, which some might consider a more difficult exercise, leading to something less definitive and more abstract. No. Some contracts managers believe that we have to document risks and benefits as part of every evaluation, something pushed by our attorneys, as well. Are the attorneys at your agency encouraged to attend these seminars? I appreciate the innovation lab and the work it does. Unfortunately, I think the continued aversion to risk and unwillingness to adopt the techniques the lab suggests still emanate from the torso down. Some view the concept of innovation as the innovation lab having provided them with a finite list of techniques. FAR 16.5's use of the term, "broad discretion," allows for much more, i.e., the lab is but a starting point and does not preclude the application of further innovation and other techniques not therein described. A division will adopt an innovative approach, but then becomes reliant on only that one approach. Contracts managers become unwilling to flex and further adapt that approach. Program offices become lazy, recycling the same evaluation method time and again as if it is a one-size fits all approach to selection. It can be rather stressful for the thinkers and creative types in the 1102 community who do not want to be relegated to factory work. Those for whom employee retention is a concern somehow remain baffled over the attrition rates. The question for the practitioner is whether it is better around the bend.
  12. I am working with our customer to write evaluation criteria for a Fair Opportunity Proposals Request (FOPR) against an MA IDIQ/GWAC. I found a document online entitled "Air Force Materiel Command (AFMC) Guiding Principles For Fair Opportunity Selection Under Federal Acquisition Regulation (FAR) 16.505(b)(1)." To quote from within, "[concerning FOPRs and comparative analyses] No process is dictated by FAR 16.5. Immediate comparison of responses received is allowed without having to "independently score" proposals and then separately do comparative analysis." This is stated in comparison to the procedures required by FAR subpart 15.3. The acquisition team has agreed to use a multiphase approach, whereby phase one would incorporate a downselect. It is within this first phase that we would like to move immediately to a comparative analysis on a single non-price factor, considering also price, as opposed to first conducting an in-depth review of each proposal against the factors in the solicitation. Our attorney accepts this approach. The estimated award amount is well below the threshold for protestability. However, I am receiving push-back from above. That person says they do not understand how we can do a comparative analysis without first conducting an independent evaluation of each contractor (and document accordingly), be it through a table or however. I explained that any comparative analysis is always going to be based on having first looked at each individual proposal and assessing the factors that we say we will. I went on to explain that the time saved is realized in the documentation of phase one, meaning that we include all relevant information to justify our downselect in a single document labeled "Phase One - Comparative Analysis." I was able to find another article online entitled "How to Write a Comparative Analysis" from the Harvard College Writing Center." One suggested approach is as follows-- Organizational Scheme. Your introduction will include your frame of reference, grounds for comparison, and thesis. There are two basic ways to organize the body of your paper. In text-by-text, you discuss all of A, then all of B. In point-by-point, you alternate points about A with comparable points about B. If you think that B extends A, you'll probably use a text-by-text scheme; if you see A and B engaged in debate, a point-by-point scheme will draw attention to the conflict. Be aware, however, that the point-by- point scheme can come off as a ping-pong game. You can avoid this effect by grouping more than one point together, thereby cutting down on the number of times you alternate from A to B. But no matter which organizational scheme you choose, you need not give equal time to similarities and differences. In fact, your paper will be more interesting if you get to the heart of your argument as quickly as possible. [end citation] My question is, do any of the contributors have another suggested approach for how to write the comparative analysis barring an initial independent evaluation of each contractor in the downselect phase? [or] Does anyone have any suggestions as how I can make a more compelling case to my management? I have addressed with them and general counsel my concerns that our required templates mandated for fair opportunity selection tend to use part 15 language. The attorneys and others are consistently resorting to part 15 terms during conferences. Personally, I am a stickler for language and use of the proper terminology. I for one happen to think that is the starting point, and even though I am working with people who should know otherwise, I tend to question if they know the differences when I hear them apply the wrong terms. We also tend to overly complicate our fair opportunity selection procedures by aligning them more so with those found in part 15. Lastly, I am curious, does anyone have an opinion as to which agency seems to be the most innovative in its approach to simplified procedures and fair opportunity awards using category management? I am reading more and more that this reluctance to move away from FAR part 15 procedures, when we are not under the authority of part 15, is a widespread enough problem in Government.
  13. 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."
  14. 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.
  15. 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?
  16. 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.
  17. 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?
  18. 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.
  19. 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.
  20. 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.
  21. @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!
  22. @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?
  23. 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."
  24. 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.
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