Jamaal Valentine

I’ve released budgets for furniture buys and it worked great. We described the space and it’s intended use and then evaluated using the subjectivity of the government’s interior designer and customer.

I like it, Carl. All determinations require findings, but not all determinations require D&Fs under FAR subpart 1.7. Similarly, not all justifications require justification and approval under FAR part 6.

“Determination and Findings means a special form of written approval by an authorized official that is required by statute or regulation as a prerequisite to taking certain contract actions.” FAR 1.701. Neither FAR reference you cited call for a D&F. FAR 17.205(a) is justifying the inclusion of options (pre-award). DAU says this: ”The contracting officer shall include a written justification for the quantities or the term under option, the notification period for exercising the option, and any limitation on option price under FAR 17.203(g) in the contract file (FAR 17.205).”

@adt110549601 No worries. Thanks for the explanation. Two things: First, verify that your use of the term ‘best value’ aligns with FAR [if that’s your goal]. Start with FAR 2.101 and then check FAR part 15. I think a search of “best value” will return 10 hits in FAR part 15. Lastly, let us know what you find.

Keep reading through FAR 15.403-1(c)(1)(ii). What do you mean by “sole source award decision or a best value award decision?” What’s the difference between the two?

Maybe not. Possehn Consulting, B-278579.2, July 29, 1998 and other cases suggest it’s not an issue to eliminate unacceptable offers from the competitive range without any consideration of price. How would they establish themselves as an interested party in that regard?

@adt110549601 Have you considered stating that you will only evaluate prices of offers and offerors that are eligible for award? That will put everyone on notice. Also, it might be useful to distinguish, in your thinking, that evaluation is not synonymous with scoring/rating.

The decision to establish a competitive range is a matter within the sound judgment of the procuring agency. Dismas Charities, Inc., B-284754, May 22, 2000, 2000 CPD para. 84 at 3. You establish a competitive range if you are entering into discussions. See FAR 15.306(c). But establishing a competitive range doesn’t require you to enter into discussions. Information Sciences Corp., Gallagher, Hudson, & Hunsberger, Inc. (d/b/a Development InfoStructure or DEVIS) v. U.S. and Symplicity Corporation, No. 07-744, March 18, 2008. Read FAR 15.503 and see if you find your answer. See also FAR 13.106-3(c) or any other FAR part that governs your particular acquisition. For example, FAR 8.405-2(d) or FAR 16.505(b)(6). Circle back and let us know what you settle on.

First, good writing is hard. Second, researching, reading, and interpreting law (including case law) requires specific knowledge, skills, and abilities. The good news is that good writing and legal interpretation can be learned.

General— You have to evaluate the offeror’s ability to perform the prospective contract successfully. FAR 15.305(a). A proposal that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award. Wyle Laboratories, Inc., B‑413964, May 27, 2016. This rule applies even if a solicitation is silent about it. Again, we start by asking if they satisfy the Government’s express requirements. If they don’t, their price isn’t necessarily useful for comparisons. But maybe they don’t and you want to give them an opportunity to submit a revised offer. Competitive Range— If you are going to conduct discussions, you’ll establish a competitive range. FAR 15.306(c). FAR 15.306(c) goes on to state that “[b]ased on the ratings of each proposal against all evaluation criteria, the contracting officer shall establish a competitive range comprised of all of the most highly rated proposals.” [emphasis mine] Excluding proposals from the competitive range without considering prices may be proper were proposals are found unacceptable. Possehn Consulting, B-278579.2, July 29, 1998. Tradeoff Process— A tradeoff process involves an evaluation of price in relation to the perceived benefits of an offeror’s proposal. FAR 15.101-1(c). Here, the tradeoff process “permits tradeoffs among cost or price and non-cost factors and allows the Government to accept other than the lowest priced proposal.” I am not aware that price must be considered for unacceptable offers because the offer is excluded (ineligible for award as-is by rule). In contrast, GAO has found it improper to exclude technically acceptable proposals from the competition without considering price, under solicitations that used tradeoff source selection processes. See Kathpal Technologies, Inc.; Computer & Hi-Tech Management, Inc., B-283137, December 30, 1999.

Your questions cannot be definitively answered without reviewing the entire evaluation scheme. The key question is does the priced offer satisfy the Government’s expressed requirement? See Contract Pricing Reference Guide, Volume 1, paragraph 6.1.1. (Any proposed price used for comparison must be a part of an offer that satisfies the Government’s requirement. In negotiations, don’t compare prices of ‘technically unacceptable’ offers). I think you should start with the basic concept that price analysis involves comparisons. The comparisons have to support the purpose. How does comparing the price of an offer that doesn’t satisfy the Government’s need help establish price fair and reasonableness? What factors affect comparability? Can you adjust for them? NOTE: Common usage of ‘technical acceptability’ can refer to (1) a rating of any non-priced factor or (2) conformity with the material terms of the solicitation.

I wonder if this is a job for the SF-182.

You may want to read GAO: Lower-Paid Incumbents An “Obvious” Price Realism Concern.

You would have to explain what you mean by unrealistic. For example, under FAR 15.404-1(d)(1), “Cost realism analysis is the process of independently reviewing and evaluating specific elements of each offeror’s proposed cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed; reflect a clear understanding of the requirements; and are consistent with the unique methods of performance and materials described in the offeror’s technical proposal.” Would a deep discount (or even at or below-cost) be unrealistic in and of itself? Shouldn’t you consider the offerors methodology for performing the work? Moreover, unrealistic under a fixed-price arrangement would likely be defined as another thing. So what do you mean by unrealistic?

Thanks @formerfed

This passage of FAR is puzzling.

Remember, price fair and reasonableness is only concerned with a price being too high. Mountaineers Fire Crew, Inc.; ASP Fire, LLC; Diamond Rd. Maint. Inc. (d/b/a Diamond Fire), B-413520.5 et al., Feb. 27, 2017. That being said, I wonder why they would include a range if they didn’t plan on using it for something. Without reading the entire solicitation, I would think that the range could reasonably be interpreted as establishing what it says - the competitive price range. Thus, my question would be what does ‘competitive price range’ mean and what’s its role in the evaluation. While you may have missed your initial protest window (since this question should have been asked prior to the solicitation due date), an answer could help you …

Within DoD, an honorarium for a speaker would be done through a miscellaneous payment outside of the contracting office. See DoD Guidebook for Miscellaneous Payments, 2019; see also 2023 DoD FMR Volume 10, Chapter 12, para. 8. A miscellaneous payment is defined as a payment that is not initiated by a contract. DoD Guidebook for Miscellaneous Payments, 2019. Remember, contracting is not the solution or proper tool for fulfilling every agency need.

I will take you at your word because you’ve been around for several years. However, since this is the beginner’s forum, I suggest you verify that the speaker is providing services for ‘current or anticipated litigation or dispute [including any reasonably foreseeable litigation or dispute]’ at the conference. To close, what is your understanding of the limited use of experts under FAR 6.302-3(a)(2)? Do you think it applies to contract actions for experts that do not acquire the services of an expert or neutral person for any current or anticipated litigation or dispute [including any reasonably foreseeable litigation or dispute]? You don’t need to necessarily respond here, but anyone reading this thread may want to ask these questions. Happy hunting!

No, we are not in agreement. I would need to know more. For example, are you using the expert under and consistent with FAR 6.302-3(a)(2)? ”To acquire the services of an expert or neutral person for any current or anticipated litigation or dispute [including any reasonably foreseeable litigation or dispute].”

When I was first trained by the Air Force, we were instructed to rotate BPAs. It was the common practice although I never understood how it worked over the micro-purchase threshold. Nobody gave a good explanation besides traditions and norms. I bet someone with an old contingency contracting handbook, the Van Matthews, or early BPA guidance would find the practice in writing.

Over time, it seems that BPAs stopped being used this way. The modern practice for many BPAs more closely resembles the thing FAR 13.303-2(a)(3) implies they were supposed to avoid - writing numerous purchase orders. Now, purchase requisitions and accounting and appropriation data initiate many orders and the literal calls of the past are extinct. In there place are ad-hoc electronically written orders—from a contract writing system—for each delivery or performance required. Today, BPAs are used more like standing RFQs or a poor man’s multi-award contract (noting that they are not contracts at all) rather than charge accounts. There aren’t any billing periods and invoices have replaced delivery tickets. Has anyone else had similar experiences/observations? What about in the civilian agencies?

Using competitive procedures to establish multiple BPAs means “there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs.” This could facilitate rotation of vendors contracting officers often talk about. In context, rotating is where orders are placed with different BPA holders to maintain properly balanced sources of supply/services, for example. If the BPAs aren’t established competitively, mini competitions would be necessary for certain actions over the micropurchase threshold. I need to think about actions over the micropurchase but less than $25K since actions over $25K would need to be synopsized.

It’s probably worth distinguishing what a synopsis is under FAR. That would highlight that the value isn’t in the synopsis itself. The value is in using competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors. Disseminating information through a so-called synopsis just seems to be a convenient avenue of approach for soliciting competition because the so-called synopsis is a byproduct of using SAM.gov to publish solicitations.

Since the described increase is likely an out-of-scope change, you likely need an exception to the generally expected full and open competition requirements. However, without additional information, I can’t be sure what form that would take (e.g., justification and approval under FAR part 6 or subpart 13.5, single source determination under FAR subpart 13.1). Instead of peppering you with questions, I’ll provide what follows in hopes it will guide you in reaching your own sound conclusion based on your facts. Note, the fact that you have a requirements contract rather than an IDIQ contract is not the determining factor. Since you are consideration a substantive modification, you must identify the authority you will rely on. Generally, modifications must be within the general scope of the contract. “Increases and decreases in the quantity of major items or portions of the work are generally considered to be outside the scope of a contract. See, e.g., Valley Forge Flag Co., Inc., VABCA Nos. 4667, 5103, 97-2 BCA ¶ 29,246 (stating that in a requirements contract, a major increase in the total quantity of flags ordered (over 109,000) was outside the scope of the contract); Liebert Corp., B-232234.5, Apr. 29, 1991, 91-1 CPD ¶ 413, 70 Comp. Gen. 448 (order in excess of maximum quantity was a material change).” If increasing the maximum is out of scope, it must be treated as a new procurement under the Competition in Contracting Act (CICA). See CCL, Inc. v. United States, 39 Fed. Cl. 780, 791 (1997) (explaining that CICA’s requirements “cannot be avoided by using the device of contract modification”). Therefore, CICA will require you identify what permits contracting (e.g., issuing a modification for an out-of-scope change) without providing for full and open competition. Some contracting officers issue these types of modifications, for administrative convenience, under an approved justification and approval.