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Jamaal Valentine

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Everything posted by Jamaal Valentine

  1. Works for who? While I think I understand the thought, it does not sit well. Disregarding what’s correct for what’s convenient isn’t necessarily good for public policy. What havoc is caused within the Government when people go rogue or call an audible because it works for them? Thinking in terms of correct or incorrect is a good place to start when dealing with things governed by regulation. If you decide your preferred course of action is ‘incorrect,’ there are remedies such as deviations. This career field would be served well by mastering the basics and leveraging things such as communications with stakeholders that lead to mutually agreed upon deviations (or changes within the FAR System). If the rules don’t work, let’s fix them not ignore them.
  2. I agree that FAR 52.212-1 should have been included in the solicitation. I doubt paragraph (l) was tailored although it it may have been. Assuming it wasn’t tailored, FAR 52.212-1(l) simply says ‘if’ a post-award debriefing is given. That is not a policy that is inconsistent with anything in FAR part 13 so the FAR part 12 precedence wouldn’t apply, imo. Moreover, a debriefing would not be required under the provision. Regarding tailoring, I’m not aware of any marketplace that entitles a prospective vendor to a debriefing. That being said, I haven’t read this entire thread to see if the vendor, in this case, proposed such a thing (see FAR 12.213). Finally, even if it was common to the marketplace, but absent from the solicitation, a protest would have been due prior to the solicitation close date.
  3. That would be more accurate. Aside, are you aware of any procurements that used FAR part 12 alone (i.e., not in conjunction with subpart 8.4 or 16.5 nor parts 13, 14, or 15)?
  4. @MileHighAcq, I think this is a belief that’s based on cases like Finlen Complex, Inc., B-288280, Oct 10, 2001. If you have any court cases, I would be interested in them. Cases like Finlen Complex, Inc. must be read and used as comparisons carefully. In Finlen, GAO disagreed with the Army’s contention that since the solicitation, on its face, was identified as a commercial item procurement using simplified acquisition procedures, the withholding of the relative weight of evaluation factors was authorized and no further analysis was needed. Specifically, the GAO found “important issues regarding the treatment of offerors participating in procurements that, although labeled as acquisitions using simplified procedures, are conducted in a manner virtually indistinguishable from any other negotiated procurement under FAR part 15.”The GAO reasoned that “the labeling of a procurement as "simplified" does not absolve the agency from its obligation to treat vendors fairly.” Here, “[GAO looked] to the substance of [the] agency's actions, rather than the form.” The Army’s conduct raised issues of fairness and reasonableness. First, the Army identified the evaluation factors and advised that the technical and quality factors would be more important than price. This was a discretionary act. However, the Army failed to identify the importance of the past performance factor despite the majority of the evaluation narrative was dedicated explaining how the agency would assess past performance. Accordingly, GAO concluded that the Army’s decision to make past performance the least important factor was unsupported and that it was reasonable for Finlen to expect that the Army would give past performance significant weight. Additionally, the Army “argued that revealing the relative weight of factors in the solicitation would hinder the agency's ability to change the weight of those factors during the course of its evaluation.” Moving the goalpost is unfair and unreasonable. In sum, GAO concluded that the Army’s conduct was unfair and unreasonable. GAO found that “there is little about the procedures used in this procurement that can reasonably be called simplified” because “this procurement is very similar to any other negotiated acquisition conducted under the rules set forth in FAR part 15. Those rules require that when offerors are asked to prepare detailed proposals, those offerors must be advised of the weight of all factors and significant subfactors that will affect the contract award.” The failure to disclose the weight of all factors “was particularly unfair here because of the contrast between the indications in the RFP that past performance would be a significant evaluation factor, and the agency's actual intent to make it, by far, the least important one.” @C Culham, I think the procurement remains under FAR part 13. Now, Finlen can be distinguished in that GAO “has explained, neither errors in terminology nor the inclusion of some FAR part 15 procedures transforms a solicitation so completely as to negate the nature of the procurement or render inapplicable the relevant procurement regulations. See iTility, L.L.C., B‑415274.3, Apr. 2, 2018, 2018 CPD ¶ 134 at 4-5 (concluding that the procedures of FAR subpart 8.4 applied to a procurement that sought to establish blanket purchase agreements and was restricted to Federal Supply Schedule contract holders even though the solicitation was called a request for proposals and incorporated various FAR part 15 competitive procedures).” BC Site Services, LLC, B-420797.4, B-420797.5, Mar 21, 2023. While fairness (including predictability) and reasonableness are fundamental, even when using simplified procedures, errors in terminology or the inclusion of some FAR part 15 procedures does not necessarily transform a solicitation. As you allude, Acquisition Teams should be mindful of the implications and the borders of their discretion.
  5. The existence of a BPA does not justify purchasing from one source because BPAs can be established noncompetitively. Thus, the mere existence of a BPA is not dispositive. We have to know more about the BPA. For example, was it competitively or noncompetitively established? Here, we focus on the general rule at issue. What is the specific question? What are the significant facts? The rule is the statutory requirement for maximum practicable competition. I’m not aware of anything the prohibits Acquisition Teams from exercising discretion in deciding to satisfy the competition requirement at the BPA or order level. FAR 13.104( b ) indicates how maximum practicable competition can be obtained: “If using simplified acquisition procedures and not providing access to the notice of proposed contract action and solicitation information through the Governmentwide point of entry (GPE), maximum practicable competition ordinarily can be obtained by soliciting quotations or offers from sources within the local trade area. Unless the contract action requires synopsis pursuant to 5.101 and an exception under 5.202 is not applicable, consider solicitation of at least three sources to promote competition to the maximum extent practicable.” Based on FAR 13.104( b ), synopsizing on GPE or soliciting at least three sources satisfies the competition requirement. Accordingly, the statutory requirement to obtain maximum practicable competition is met through the use of competitive procedures in establishing the BPA. Thus, the answer to the question is that there should be no requirement to conduct further competition for each order subsequently issued under the BPA. Logan, LLC, B-294974.6, Dec 01, 2006. Thoughts?
  6. @formerfed This is what we were doing when I first got into contracting. We created price lists and had to review them annually.
  7. I think we can use Logan for comparison and reasoning. (Five Methods of Legal Reasoning) I think this is the answer. FAR 13.303-2(c)(2) has to mean something. Why would FAR expressly state that you may establish a BPA with a single firm, if the orders needed to be competed?
  8. I think most agree to these points. But do you think an office can competitively establish a pre-priced BPA with a single firm, and consider that BPA as permitting orders that satisfy the statutory requirement for maximum practicable competition? I think this is what the question is getting at.
  9. It doesn’t. I would never argue that it does. I believe FAR anticipates, or at least allows, BPAs being established without a solicitation or competition. That being said, I don’t think it prohibits competitive solicitations either. *I was emphasizing that the term solicitation is defined by FAR
  10. The original question isn’t mine so I’m just doing my best to interpret it and develop a reasoned answer for myself. This question has turned into a discussion with my peers. That being said, isn’t the competitive solicitation a contract action, much like a request for quotation that results in a purchase order (an offer)? In this case, the solicitation—as defined by FAR—establishes a priced BPA, which facilitates the subsequent orders. Here, no further solicitation—again, as defined by FAR—is required under the BPA. Rather the contracting officer simply issues a call/order. It seems it would work much like a standing price quotations or a FAR subpart 8.4 single-award BPA. (GAO-09-792 stating that under FAR subpart 8.4, agencies may award BPAs to a single vendor and FAR does not require competition under single award BPAs) Lastly, isn’t the requirement for competition related to the solicitation phase, in a practical sense?
  11. @C Culham I am familiar with that one. It involved multiple awards, but thank you. I think everyone who handles BPAs should read it.
  12. If I recall, that decision involves noncompetitive BPAs. Is there something else I should be looking at for comparison to the scenario in the question?
  13. I recently read the following question: ”Under FAR [part] 13, may a [contracting officer] obtain competitive unit pricing at the BPA level and later award BPA calls over the [micro-purchase threshold] that are based solely on the BPA unit prices (e.g., award to the low, based on competitive unit prices) and vendor availability?” Now, I read this as asking if the statutory requirement to obtain maximum practicable competition can be met at the single-award BPA level; thus, not requiring further competition at the order level. But I’m interested in your thoughts about and responses to the question, whatever they may be.
  14. @cdhames Since this is the beginners forum, I encourage you to read Sticks and stones: How words and terms of art can hurt the contracting profession. ”Misuse of terms of art in the contracting profession leads to confusion, misunderstanding, and pernicious misconceptions. Clarity in contracting language improves professionalism and avoids inefficient or wasteful procedures.”
  15. See also 2023 Contract Attorneys Deskbook, p. 24-7. (Hyperlinked) I think of changes as substantive changes (e.g., additive changes, deductive changes, terminations), or administrative changes. This could help you in viewing and categorizing changes with specificity rather than as general increases or reductions in scope. Specificity becomes even more important when making scope determinations. (For example, an increase in scope, by definition, is not a change within the general scope of a contract, but widespread misuse shows this is not universally understood) In a practical sense, the goals are identifying the type of change so that you can (1) identify the rules that govern it; and (2) understand how the type of change can be used to successfully administer the contract. Using terms of art leads to better research, interpretation, application, and communication. Take a look at the free resource I’ve linked above and see if it matches your current understanding of changes. I think you’ll come away with a richer appreciation and understanding of contract changes.
  16. ‘Descoping’ implies imprecise language and understanding of Government contracting. The terms of art for deletions are categorized as deductive changes or terminations. See Administration of Government Contracts, 4th ed., Chapter 4, Changes; See also 2023 Contract Attorneys Deskbook, p. 24-7. That’s all I meant by my previous statement. There are things to consider when determining if an action is a termination rather than a change. The colloquial use of the term ‘descope’ doesn’t help frame the situation. It’s not a good signpost.
  17. Now, we know you “[t]hink it goes without saying why [you] would think they should not be paid for the removal/install and instead negotiate a settlement and descope,” but have you considered explaining your reason to the contractor? Have you made them aware of your right to partially terminate the contract? Would it help if you candidly explained what you are willing to pay if unable to reach an agreement? Heck, maybe you are willing to pay more for an agreement and release of claims than if you have to issue a decision that can be disputed. Read FAR 33.204 and go negotiate a deal. This is a chance to be an office hero and generate a lunch topic.
  18. You posted some information about a scenario and expressed a desire to ‘descope’ (to use your term). This was the first clue that things were going to be nonstandard. Here, you were looking for suggestions on how to handle the situation. Since this seems like a pretty routine scenario, I felt there was more to it. Thus, I asked why wouldn’t you just provide your reasoning. I asked this question, in part, because someone asking such a basic question may not understand what the relevant details are. (If they did, this question would not have been posted. At least not in this way.) Also, this was posted in the beginners section. Understanding your rationale would help readers in crafting helpful responses. Now, you seem to be concerned that the contractor will not settle for less than the contract amount. However, you don’t seem to be willing to accept their request for full payment. If that’s the case, a termination for convenience and final decision is the answer. Contracting 101. The contractor can submit a claim under the contract’s dispute clause. If you can’t reach an agreement, what else can you do?
  19. Assumptions are not as helpful as a clear explanation of your rationale. Why not just provide your reasoning? I presume there is more involved because I would assume if you didn’t want the services on the removal/installation and disposal CLINs, you would have simply terminated them for convenience; negotiated an amount due in the settlement of the termination (or make a final decision they could dispute).
  20. You asked a pretty clear question and deserve a clear answer. Retreadfed pointed you in a good direction. Aside, look at the commercial termination for convenience clause for authority. Also, there is a lot of literature suggesting that a lapse of appropriation resulting in a shutdown is a Sovereign Act. My understanding is that the latter is a defense against certain claims. Lastly, in cases where site availability or necessary oversight, engagement, or inspection is required, but unavailable (e.g., can’t take delivery) - this may be an excusable delay under a contract clause Retreadfed mentioned (I don’t view this as an authority, per se). These are general responses to your general question. The facts will dictate if any of these are sound.
  21. While the following cases involved FAR Subpart 8.4, I think they are useful when thinking about misapplications of FAR Part 15 under FAR Subpart 16.5. Primarily, because it’s common for people to express assertions that are contrary to GAO’s findings. See IR Techs., B-414430 et al., June 6, 2017, 2017 “(finding that neither a solicitation's inclusion of some FAR part 15 procedures, nor a contracting officer's mischaracterization of whether a debriefing was a "required debriefing," could change the fact that the procurement was an FSS procurement to which the procedures of FAR subpart 8.4, rather than FAR part 15, applied); see also Systems Plus, Inc. v. United States, 68 Fed. Cl. 206, 209-10 (2005) (finding procurement to establish a BPA under the FSS program was not conducted on the basis of competitive proposals, even though it may involve the use of FAR part 15 enhanced procedures).” In the wake of Finlen Complex, Inc., B-288280, October 10, 2001, how many times have you heard that FAR Part 15 will apply if you involve FAR Part 15 procedures? What do people actually mean when they say that? Apply in what way(s)? Whatever the answer, GAO doesn’t preclude acquisition teams from unnecessarily re-styling solicitations. And it is true, people can and do [sometimes unconsciously] over complicate ordering processes and procedures. In fact, many do.
  22. Look at the Air Force’s Architect-Engineer Next program as an example. It facilitates direct [interagency] acquisitions. https://www.afcec.af.mil/News/Article-Display/Article/2763601/aficc-awards-pool-3-in-architect-engineering-services-contract-series/
  23. While I don’t disagree, it may help to identify what difference(s) you distinguish in light of the original post. FAR 19.000(a)(6) “The "8(a)" business development program (hereafter referred to as 8(a) program), under which agencies contract with the SBA for goods or services to be furnished under a subcontract by a small disadvantaged business concern.”
  24. I’ll echo Don - what are the relevant terms and conditions of the option and contract? That being said, a period of performance elapsing doesn’t necessarily mean the option cannot be exercised. See FAR 17.204(d) (stating that the period within which the option may be exercised may extend beyond the contract completion date for service contracts). Again, what are the applicable terms and conditions?
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