FARmer

So keep in mind that was never in agreement of how others were interpreting the minimum guarantee. Unfortunately the "others" are high up the flagpole and any rebuttals need to be well supported. Came to WIFCON for a sanity check and based on the responses, I received it! I agree with what everyone is saying. What led me down this rabbit hole is that someone told me there was case law that somewhat stated otherwise. However, I am unable to find the case law and the person that told me has left the agency (probably a good thing) so I have no way to ask "where does that case law exist?" Thanks for the response!

Retreadfed - T&M Ji20874 - I hear you. Its an absolute mess of a project and with no easy solution. However, I'm trying to analyze all potential risk to the Government. In my office there appears to be some idea that the vendor would be able to file a claim for the full amount of the minimum guarantee (of which the contractor hasn't satisfied on their end), but that doesn't seem nowhere near sane to me. How can a contractor in breach/default be allowed to receive the minimum guarantee? Just sounds wrong wrong wrong to me. Maybe its one of those things where case law etc doesn't exists because the answer is obvious?

Hey WIFCON, Trying to see if there is any good advice from WIFCON experts, GOA cases, or other written decisions out there with regards to a Contractor, in breach/default/about to be terminated from an IDIQ contract, and that contractor's right to receive the minimum guarantee. Without going into a ton of details, performance on a service task order is well below sub-par, the Government awarded the task order competitively via a MA-IDIQ, the requirements/funding on TO award was enough to satisfy the minimum guarantee, however due to a complete breach of contract/lack of performance the contractor hasn't actually fulfilled the minimum guarantee due to various performance/management issues. If the contract is terminated/IDIQ contract is terminated as well, what if anything is the contractor entitled to in terms of the minimum guarantee? I am sure the contractor can submit a claim etc, but regarding that minimum guarantee can the Contractor file a claim against that and actually receive payment when in clear default of their own contract? FYI- All performance related issues have been well documented and communicated to the contractor. All instances I have been able to find in GAO case search and other court decisions are all when the Gov't fails to order the minimum. Thanks!

Thanks Vern. Competency in using and actually understanding the AFDP is the issue here, not the Agencies use of Award Fee Incentives. This all boils down to a few people not paying attention to the plan. I guess on the flip side of your post (being in the Government's shoes), if the risk of converting the contract to a CPFF is too great in terms of diminished performance then the Government could 1) Breach the contract and pay a claim if one is submitted in hopes of keeping the CPAF contract structure. 2) Terminate the contract and re-compete if a CPAF contract is that important. I don't think there is any other avenues for the Government to go in this case; correct?

Thanks for all the questions. I don't want to try to go too deep into what's going on because I am sure the opposing side is watching as well..... To answer your questions, let me go in this order: 1) The Award Fee Determination Plan (AFDP) does not incorporate the language specifically from DFARS 216.405-2(2) and states a period longer than 45 days. Lets say 60 days. The Contract does include the appropriate DFARS clauses for Award Fee contracts (DFARS 252.216-7004 & 7005). 2) Based on the situation and a misunderstanding by the award fee board chair and AFDO (of which is not the CO), the report has been late several times and in some cases, months after it was due. 3) I believe there could be a case made that caused the date to slip with regards to a briefing that was given by the contractor to support its efforts on the contract (briefing that allows the contractor to rate themselves for consideration by the award fee board). These briefings usually take place 15 - 20 days after the period has closed. However, the AFDP clearly states when each period starts/ends and does not state that the clock starts ticking after the briefing has been given. 4) the AFDP states that after several missed reports the contract will be converted to a CPFF........😭 I know the contracting officer has the unilateral right to make changes to the award-fee plan prior to the beginning of any rating period etc (DFARS 252.216-7005) but what rights does the CO have in breaking what is stated in the AFDP? My assumption is none, but this is a bad bad bad situation that is not going to go down very well. Dropping the CPAF contract structure and going to a CPFF would be a huge risk in its own as top notch performance is a must.

I will keep this short and sweet - DFARS 216.405-2(2), Award-fee evaluation and Payments, states "The fee-determining official's rating for award-fee evaluations will be provided to the contractor within 45 calendar days of the end of the period being evaluated." What happens/What rights does a contractors have should the award fee determination be delivered late? the DFARS and PGI are silent on this.

Thanks Vern! This is how I go about building an order off of a GWAC, Schedule, IDIQ or BPA. I do not see it beneficial to add every clause under the sun to an order/task order if its already covered under the contract. With regards to the last paragraph of your statement, that is exactly what I am dealing with within my agency and tasked with helping educating folks. Most of our task orders are written off of the GSA GWACs and Schedules, and those task orders normally have clauses that shouldn't be in the order because its covered by the contract and/or have clauses that were omitted because someone doesn't know what they are doing. For this example, I am going to point back to the GSA Alliant Contract...... I usually get caught in discussions where a clause, for example FAR 52.217-9 (that is required to be filled in and annotated as needing to be filled out by the OCO within the contract), is nowhere to be found in the solicitation or order itself. The Ordering CO's argument is "I don't have to have it in my task order because its in Contract....." Well per the Alliant contract the OCO is required to fill in any clause on the Alliant contract that has an "*", its clearly annotated in the Alliant contract and 52.217-9 is one of those clauses. But if a CO awards a task order and did not follow instructions (happens all to often) how does FAR 52.216-18 cover the CO in this situation when FAR 52.217-9 has not been incorporated into the task order. In my opinion, I would say that the 52.217-9 clause contained in the Alliant contract does not cover the task order because at the Alliant contract level that clause isn't filled in to provide the contract holder any details on the stipulations of the clause and that the Alliant contract specifically states the clause must be filled in if applicable. What about FAR provisions. For instance, would the FAR provisions used during the solicitation of the Alliant GWAC have to be inserted into the solicitation of a task order? I think the answer really depends on what the provision is i.e might be a new provision in the FAR that wasn't in the FAR when Alliant was solicited and/or a provision that requires some kind of fill-in.

Hey Folks, I am working on a rather large project for my agency and there has been several discussions in which there has been no end to with regards to clauses that flow down to orders placed under a Schedule, GWAC, IDIQ, or BPA etc. The discussion goes further into the provisions as well. I have scoured the internet and this forum and i'm able to piecemeal information pertaining to this topic but was wondering if there were any blogs, GAO cases, white papers that discuss clause flow down from the master contract to the orders placed under the master contract. A lot of the discussions I am finding are specific to clause flow down from a prime contractor's contract to the subcontractor, and I want to be clear that this is not what I am seeking or related to what I am researching. Anyone know of any good reads related to clause flow down from the master contract to the order placed under the master contract? As an example of what I am facing, one discussion was around an MA/IDIQ contract that contains the clause 52.217-9, Option to Extend the Term of the Contract. Besides the point that the IDIQ contract does not have any options but has the appropriate ordering period clauses filled out, does this clause "flow down" to the order placed under the IDIQ if omitted completely from the Order? The order is a 5 year contract with an option that needs to be exercised each year for performance to continue. Taking inconsideration everything that I have read and based on my understanding, if there is a clause that needs to be tailored (i.e. clause that require the CO to fill in the blanks), the clause does not flow down as the clause needs to be tailored specifically for that order. So in this circumstance, 52.217-9 does not flow down from the IDIQ contract to the order but other clauses such as a clause like FAR 52.202-1, Definitions, does flow down and is not required to be in the order level contract. Another part of the discussion is around FAR provisions. Do these flow down as well? For instance FAR 52.216-1, Type of Contract. There are two sides to this discussion. One side is those that believe the order under any IDIQ, Schedule, GWAC, and or BPA do not need to have any clauses or provisions. The other side believes that it depends on the provision/clause and its applicability to the actual order.

Hello All, I have been searching WIFCON for information on the interpretation of consolidation want to piggyback off a post from 2013 (link provided at the bottom of the post). Essentially I am wondering if I am over interpreting the definition of consolidation. FAR 2.101 states: “Consolidation or consolidated requirement”-- (1) Means a solicitation for a single contract, a multiple-award contract, a task order, or a delivery order to satisfy-- (2) Separate contract as used in this definition, means a contract that has been performed by any business, including small and other than small business concerns. (i) Two or more requirements of the Federal agency for supplies or services that have been provided to or performed for the Federal agency under two or more separate contracts, each of which was lower in cost than the total cost of the contract for which offers are solicited; or (ii) Requirements of the Federal agency for construction projects to be performed at two or more discrete sites." (Bold for emphasis) Below is the scenario: You have three separate contracts, each for a separate requirement, with the following costs: 1. $900,000 2. $100,000 3. $100,000 You plan to consolidate them into a single contract with total costs of $700,000. Because Contract #1 cost $900,000 and is higher than the new requirement ($700k), is this an immediate "no, not consolidation" per the FAR definition? Or is it consolidation even though Contract #1 doesn't meet the full definition (because the cost is higher), Contract #2 and #3 do meet the definition? 2013 discussion:

Thanks Todd! You are right! The date I was looking at was specific to the subpart. Thank you for the acq.osd.mil link, while its a pain to use, I can manage! Cheers

Hi Everyone, I have been trying to access the Hill AF website for the latest and greatest DFARS and keep receiving a "Connection timed out" notice. I have had other 1102 buddies try accessing and all are having the same result. I have been trying to access the site since last week with no success. I have tried to google etc. to see if there was any known maintenance taking place over the Holidays and was unable to dig anything up. Does anyone know whats going on? Also, does anyone one know any other electronic means to search the DFARS. It appears that the one posted on DPAP's website is the 2009 version with a revision date of 10/15/2009.

So this topic took off like no tomorrow. Based on my original posting, my scenario involves a past performance evaluation factor that puts experience and performance together but fails to have a confidence assessment scheme; like whats in the DoD SSP. Because of this, the past performance evaluation factor is less than effective.

Vern- Yes indeed. I realized and will learn from my mistake. Thank you everyone for contributing!

So I am going to post again because after reading many more cases, it appears that in my example above, both Offerors A and B should/would be treated the same........... So I guess what I thought is common sense isn't necessarily the case.

Ok, so Past Performance, FAR 15.305(a)(2)(iv) has been a hot topic. I truly understand that. So in laymans terms and using Vern's example above as well as what Todd Davis cited right before Vern's post- Offeror A submitted past performance for the requirement. Offeror A's past performance specifically states that they have similar work that is relevant (using Vern's definition above) in all facets. When evaluated, the evaluators determine that the past performance submission is only relevant to Task 1, and is completely not relevant to any of the other tasks. As a matter of fact, base on the proposal, if Offeror A is considering their past performance relevant to Tasks 2, 3, 4, and 5 then they clearly don't understand the requirement they are proposing to. To the evaluators, this past performance submission was unacceptable...... It wasn't that there was no information to provided to access, it was just completely irrelevant to the requirements of the RFP. Now Offeror B submitted NO past performance. They clearly stated in their proposal that they have no past performance and therefore Offeror B was not rated favorably or unfavorably.... they received a neutral per the DoD source selection guide. So based on everything above, are you telling me that Offeror A should be rated the same as Offeror B? As quoted from my earlier post in regards to the MDA case, GAO stated: Is it then unreasonable to state that an offeror cannot simply choose to submit irrelevant past performance in order to obtain a neutral rating?

DA Defense Logistics HQ File: B-411153.3 Date: December 2, 2015 (http://www.gao.gov/products/D12323#mt=e-report) (This case lead me to the MDA case). An excerpt form the case, GAO states: "Furthermore, we find no basis to conclude that the Army violated FAR § 15.305(a)(2)(iv) by “unfavorably” evaluating the protester based on its lack of relevant past performance as a prime contractor. The agency did not “unfavorably” evaluate the protester for its lack of relevant past performance as a prime contractor; rather, the Army reasonably determined that the protester had not demonstrated sufficiently relevant past performance to warrant the highest possible confidence assessment under the RFP’s qualitative evaluation criteria. " Todd- Thank you for the link to Emptor's blog entry link I am reading it now.

In the MDA case GAO states Based on what I have read, it's the offeror's burden to submit an adequately written proposal for the agency to evaluate and further noted that an agency may reject a proposal for information deficiencies that prevent the agency from fully evaluating the proposal. Based on all my reading, there is a difference between having no relevant past performance (FAR 15.305(a)(2)) (therefore the offeror submitted no past performance) vs. submitting a proposal that has past performance that is not even relevant in size scope or complexity.

Hello WIFCON folks, I had an interesting conversation today in regards to past performance evaluations (in the context of FAR part 15). The question is that if an offeror submits past performance that, when evaluated, is determined to be NOT relevant in size, scope, and complexity should this Offeror's past performance be looked at in the context of "Neutral" or not rated favorably or unfavorably per FAR13.305(a)(2)(iv)? I believe that their was a misinterpretation of the FAR and GAO cases today in my discussion. I believe that if an offeror submits past performance to a RFP and that past performance submission was evaluated and determined NOT relevant in size, scope, and complexity, then the past performance would be something less than a default to a "neutral". Maybe a low confidence, no confidence, or even not acceptable (depending adjectival rating). It's fair game in the context of the evaluation. Whereas, an Offeror that has no past performance and submits a proposal that states it has no past performance...... This instance is what I believe the FAR is referring to in FAR 15.305(a)(2)(iv) as an offeror without a record of relevant past performance or for whom information on past performance is not available. Commonsense would lead me to believe that latter was true, then what is the point of even evaluating past performance. It's perfectly OK to allow a company that only has grass cutting experience to build a air craft carrier, right? I have combed through some GAO cases that point to this direction, but nothing that specifically jumps out to say that the if an Offerors past performance, and it was not relevant, than an unacceptable rating is correct. I have looked at Menendez-Donnell & assoc File: B-286599, DA Defense Logistics HQ File: B-411153.3, Zolon Tech, Inc B-299904.2 I thought all of these cases were pretty clear in terms of past performance, but obviously not clear enough for my audience. Thoughts? Any GOA cause that might help?

Hello All, In a cost contract, I know that we only pay for cost incurred, however, isn't unrealistic not to pay a contractor for a qualified and cleared individual that filled out all of their clearance forms correctly etc, but is unable to work because the Government (truly a Government issue) approval process takes 6+ months? Is it reasonable to expect the contractor to foot the bill for this person for 6+months? or is this the nature of the game? Note, without the security approval, the FTEs cannot do any work on this contract whatsoever. Thanks

Thanks for the response everyone! So based on the phase approach, some "blockheads" (lol) may think that by putting the easiest factor (for instance Past Performance) in the phased approach may make it appear that past performance is the most important factor when it's on the bottom of the list in order of importance. I counter this argument by saying that the phased evaluation has nothing to do with the order or importance. Furthermore, "blockheads" may think that this phased approach isn't designed to achieve "best value" as someone could receive an excellent rating on all other factors, but be eliminated in the phased approach for lack luster past performance. In addition, it would be seem arbitrary to eliminate that offeror based on the least important factor and unreasonable....... I was dumbfounded by this. What say you? I have found no GAO cases that support these thoughts...... My thought is that their could be a potential that someone that is rated as an "excellent" on the other factors but be eliminated via this phased approach because they were not determined to be sufficiently competitive. However, the purpose of this approach is to make a source selection more efficient when a large number of proposals is expected to be received. So this same argument could be said for any offerors eliminated using this approach.

In a few of the earlier posts we started to discuss competitive ranges in this phased evaluation process discussion. I just wanted to make it clear to anyone that came upon this discussion that the competitive range is not the same as a phased evaluation. Joel's response was spot on as this discussion was more towards conducting phased evaluations outside of a two phased design-build process per FAR subpart 36.6 and I would say I was hoping to steer this discussion of phased evaluations more towards services under FAR part 15. When discussing this phased evaluation with other contracting folks, it's easy for them to jump to the conclusion that this is a competitive range........ and it's not. Vern, back to your comment about simplicity being dead.... Sorry and I agree 100%. But as your book states, the decision to use this phased approach "may be controversial"...... and it is in my world. So after rereading your book, it is a full blown evaluation (that leads to a rating) of the non-price factor being evaluated and then a simple comparison to other offerors during the phased approach. That's my take away.

WOW! Thanks for all the great info everyone. So to expand a little more on my question, I do understand that the evaluation and rating given for past performance has nothing to do with the comparison being made in the phased evaluation process, however, the evaluation that is happening during the phased evaluation to past performance, is this a simple comparison of past performance, or is/could this a full blown evaluation that results in a rating? Then that rating is used to do the comparison? Somewhere down the line we got back into talking about competitive ranges. My understanding is that the phased evaluation has nothing to do with a competitive range. A competitive range still may be applicable after all phases of the phased evaluation has been done; Correct? Lastly, Vern, I know that your example provided in this discussion and the one provided in the book (just examples) mention "we will then perform a price analysis and eliminate offerors whose prices we consider to be too high...." What about eliminating offerors that propose prices that are too low? Is this because we would then have to go into a realism analysis to make that determination or does it further add to the complexity of the phased evaluation?

Jamaal - Spot on my friend. Now the question is, that using a phased approach and eliminating Offeror 'A', wouldn't this going against FAR 15.305(a)(2)(iv) and "evaluating" them unfavorably? My thought is No. Since the agency followed the FAR and gave Offeror 'A' the appropriate evaluation/rating for having no past performance, the neutral rating may be determined to not sufficiently be competitive to be selected for contract award. Therefore the Offeror is eliminated from further consideration.

Vern et al, I had a very interesting conversation with legal on some phased evaluation language and it revolved around the past performance evaluation aspect in a phased approach. For this example, lets use Phase #3 in the example provided by Vern on 9/15. If you have an offeror with no past performance, and per FAR 15.305(a)(2)(iv), "...the offeror may not be evaluated favorably or unfavorably on past performance," how do you eliminate an offeror in this phase because of "neutral" rated performance? Isn't this essentially rating them "unfavorably."? (hopefully this made sense.... it's been a long day) My thought on this is that you are not necessarily rating them unfavorably and therefor eliminating them from the next phase, but based on your analysis, the neutral rating may be determined to not sufficiently be competitive to be selected for contract award. In my opinion, this could be seen as two different things a rating vs. what is sufficient to be competitive. Thoughts?

dcarver - Thanks for the response...... I do understand that processes are often not defined and its mostly because all requirements are not the same. HOWEVER, please understand that the purpose of my post is to learn more about this subject. There really isn't much information nor many subject matter experts that I can have a conversation with on the use of this phased approach. Hence the reason why people post on this forum.... To ask questions. Overall, I was just trying to get ideas on doing this phased approach to a predominantly COST type MA IDIQ.