Jamaal Valentine

@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.

1 hour ago, adt110549601 said:

Can you have adequate price competition with two offerors, when one of them receives a marg/unsat/no condidence past performance rating?  

FAR 15.403-1(c)(1) Adequate price competition. (i) A price is based on adequate price competition when—
(A) Two or more responsible offerors, competing independently, submit priced offers that satisfy the Government’s expressed requirement; 

Keep reading through FAR 15.403-1(c)(1)(ii).

1 hour ago, adt110549601 said:

So is it possible for a marg/unsat/no confidence rated offeror to submit an offer that still satisfies the Government's expressed requirement?

If the answer is, no, would you remove the marg/unsat/no confidence offeror from the competition?  This changes whether you would make a sole source award decision or a best value award decision.

What do you mean by “sole source award decision or a best value award decision?” What’s the difference between the two?

18 hours ago, joel hoffman said:

You need to consider pricing and non-price aspects of the proposals in establishing the initial competitive ranges.

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?

If anyone is looking for a free online resource to learn about contract changes, the 2023 Contract Attorneys Deskbook, Chapter 21 is a good place to start.

@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.

@creyes814

Based on the form’s instructions, check the appropriate box to indicate the type of modification. Additionally, you’ll insert the corresponding authority under which the modification is issued.

Now, assuming you’re looking for more, remember FAR 4.804 governs the closeout of the contract file, which can be distinguished from what people commonly refer to as closeout modifications. Do you actually need a modification?

If you are DoD, you may want to read DoD FMR 7000.14-R, Financial Management Regulation, Volume 3, Chapter 8, Paragraph 16.8. At one point, DoD wasn’t doing modifications to ‘deobligate’ funds.

If yes, what is the purpose of the modification and what is it doing. For example, it may be a deductive change or partial termination since that’s how you typically reduce obligations (i.e., the contractor’s obligation to deliver/perform and the government’s obligation to pay).

The block you select in item 13 depends on answers to the above.

5 hours ago, adt110549601 said:

Not including an unsat offeror in the price analysis and/or trade-off analysis feels like you are eliminating them from competition and therefore creating a competitive range.  Is there a way to eliminate an unsat offeror from the competition without creating a competitive range?  If so, how do you speak to this in your award decision document?

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.

5 hours ago, adt110549601 said:

How and when does a KO notify an unsat offeror that they are no longer being considered for award or that they did not receive the award?

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.

4 hours ago, Sam101 said:

But this is what bugs me about GAO cases, they confuse the reader...

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.

On 4/8/2024 at 7:06 PM, Sam101 said:

So I have these 2 questions:

1) If the marginally rated offeror is included in the trade-off analysis, can't it also be included in the price reasonableness analysis?

2) Can the marginally rated offeror be included in the price reasonableness analysis even if it's not included in the trade-off analysis?

Let's assume that the definition of Marginal is "the proposed approach is terrible and the risk of unsuccessful performance is certain."

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.

On 4/3/2024 at 5:28 PM, GABE said:

With the requirement being below 25k, I see no reason why justifying under FAR 13 would not be appropriate.

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

1 hour ago, EZK81 said:

The awardee has to find and maintain staff over 5 years at that low price point, with little to no annual escalation--without providing a plan for doing so.

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

4 hours ago, EZK81 said:

But this does not preclude a price being unrealistic if it is too steeply discounted, correct? 

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

30 minutes ago, C Culham said:

By placing an order against a schedule contract using the procedures in 8.405, the ordering activity has concluded that the order represents the best value (as defined in FAR 2.101) and results in the lowest overall cost alternative (considering price, special features, administrative costs, etc.) to meet the Government’s needs.

This passage of FAR is puzzling.

23 hours ago, EZK81 said:

3) If yes, how can they justify price reasonableness on a bid lower then their established competitive range?

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.

13 hours ago, GABE said:

That is correct.

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].”

8 hours ago, Don Mansfield said:

However, I think the most remarkable part of the Logan decision was the DEA's rotation procedure.

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.

6 hours ago, Vern Edwards said:

A SAP BPA is just a charge account.

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.

Presumably because the “[s]tatutory requirement to obtain maximum practicable competition in simplified acquisitions is met where agency uses competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors; under those circumstances, 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.” Logan, LLC., B-294974.6, December 1, 2006. It’s likely that this is an attractive feature to some contracting officers. They can establish a poor man’s IDIQ without funding or minimum guarantees.