Matthew Fleharty

I can confirm for you that agencies do receive goals down to the socioeconomic category level.

Ultimately j_dude77 is going to run into one of two situations: His agency is going to interpret the FAR as allowing him to set the MATOC aside for multiple small business socioeconomic categories; or His agency is going to interpret the FAR as not allowing the multiple small business socioeconomic categories and tell him "no." If the latter situation occurs, please don't let that be the end of your pursuit j_dude77. If it makes good business sense for your agency to have a MATOC with those multiple small business socioeconomic categories, make the best argument you can as to why that's the best course of action, support it, and pursue the deviation. I think everyone here could, at least, agree on that.

If clause language is the only thing holding one back, why not just get a deviation approved to modify the clause(s) to be consistent? FAR 1.402 states (emphasis added):

I agree with Vern as to the general exception one would cite for setting the acquisition aside for one or multiple socioeconomic categories; however, when setting up the 8(a) and EDWOSB set-asides be sure to comply with their more unique set-aside requirements. I'd talk to your SBA representative regarding getting multiple 8(a)s onto the IDIQ contracts. As for EDWOSB, see 19.1505...the more unique requirement is that the NAICS code(s) for your IDIQ must be underrepresented (for more information go to: https://www.sba.gov/contracting/government-contracting-programs/women-owned-small-businesses/what-you-need-know-if-you-are-federal-contracting-officer).

After what I've read this weekend, I agree. The article Vern referenced, Scope of the Competition Test: Is it valid?, The Nash & Cibinic Report (March 2013), was quite helpful in gaining a better understanding of the history of the scope of the competition standard and its merits (or lack thereof).

I have about 50 pages left, but I don't need to finish to second Don's recommendation of this book. There are some math focused/intensive sections, but the perspectives offered throughout the rest of the book were fantastic. Thanks for sharing Don!

Don, Thanks for pointing that out - I missed that nuance/distinction, but that makes sense because the "scope of the competition" test looks outside the four corners of the contract whereas a "cardinal change" (aka a breach) is concerned with what is inside the four corners of the contract.

Yes.

There could be more work for the contracting officer (namely, re-soliciting the requirement subject to different acquisition procedures) depending on whether to not the acquisition in question was for commercial items (FAR 13.5 allows SAP up to $7M); however, it could very well be the case the the agency's budget was only $150k so they purchased as many units as they could with that amount. Remember, a quote is not an offer...the offer is the purchase order issued by the Government to the prospective awardee. See FAR 13.004 which states: Now if the agency placed an order for 68 units and then subsequently placed another order for 4 more units, they'd be in violation of FAR 13.003(c)(2)...but no facts indicating as much have been presented here. One last piece of advice - be careful using the terms "bid" and "quote" interchangeably (add the term "proposal" to that list) as you have throughout your posts. As you can see from the reference provided above, a quote is different from a bid (as it is not an offer) so improper usage of terms may negatively impact the ability to receive sound advice from the nice individuals who frequent this forum.

Touche Don - I drop that portion of the argument. Do you find the other half sound?

Got it, glad to see we're primarily on the same page though I'd like to hear your thoughts more on the following issue: Scope considerations generally include (1) the nature of the work, (2) period of performance, (3) contract cost/price, & (4) the scope of the competition. For purposes of my position that conversion from FP to CR is a cardinal change, I'll only discuss "(4) the scope of the competition" for which the consideration is "whether the modification is of a nature which potential offerors would reasonably have anticipated under the changes clause" (Neil R. Gross & Co., 69 Comp. Gen. 247 (B-237434), 90-1 CPD ¶ 212). One test for that question is whether or not the change would have impacted the pool of potential offerors. In the case of moving from an FP to a CR environment, I can think of no clearer way to do that as CR environments by their nature change/limit the pool of potential offerors due to limitations such as the requirement for an adequate accounting system (FAR 16.301-3(a)(3)). Additionally, "a literal reading of the Changes clause would not permit the government to change the terms and conditions of the contract" Administration of Government Contracts 4 ed. (pg. 391) and moving from a solely FP environment to add a CR one would require the addition of numerous clauses (terms and conditions) that were not present or contemplated by the original solicitation or at the time of award. As such, I consider changing from FP to CR a cardinal change based on that standard, but, as always, I'm all ears to hear yours and others' thoughts. Lastly, while you're probably right that such a change would be very unlikely to prompt the contractor to complain, a cardinal change due the exceeding the scope of the competition opens the door for competitors to protest. This particular situation seems too small to warrant such a complaint, but one never knows...as you said yourself, "we live in strange times in the contracting profession."

Are those two sentences in response to your alternative solution and not the proposed solution by the OP to change the contract type from fixed price (FP) to cost reimbursement (CR)?

I'm not especially clear on your situation other than the fact that you intend to take work that is currently a fixed price CLIN and convert it to a cost-reimbursable CLIN...not only is that is a cardinal change (which requires a J&A and a bilateral modification), but you also have to comply with the requirements/limitations provided by FAR 16.301 regarding the usage of cost-reimbursement contracts.

ICE-CO, Recommend you take some time to think about Vern's point that without options, your office would be bound to order the supplies from only that one contractor for that, presumably, five year period of time. When used properly, options can be a powerful incentive when it comes to contractor performance and they can also protect the Government's interests if the contractor performs poorly.

That language does not establish a requirement to draw a competitive range, it merely addresses both situations (when it does happen and when it doesn't happen). Consider the two scenarios: If you haven't drawn a competitive range, all offerors receive the amendment as no one has been eliminated from the competition. If you have drawn a competitive range, only those remaining offerors will receive the amendment because some offerors have been eliminated from the competition.

According to what?

You must comply with the procedures in the solicitation...barring any other information or language in your solicitation that we're unaware of, if the solicitation merely states "up to 5 awards," you may not award 6 or more. While I didn't find a GAO decision on the issue with your particular circumstances, reference 41 USC § 3701(a) which states "An executive agency shall evaluate sealed bids and competitive proposals, and award a contract, based solely on the factors specified in the solicitation." If it's truly in the Government's best interest to award more than 5 contracts, consider amending the solicitation (FAR 15.206).

In case anyone missed it on the homepage: http://www.wifcon.com/analy/highest.pdf

Are you referring to "prizes" when you use the term "award"? If so, you may want to check out the following: https://www.challenge.gov/list/ 15 U.S.C. Code § 3719: https://www.law.cornell.edu/uscode/text/15/3719 - with respect to your appropriated funds question see paragraph (m)

Funny you mention this book - I'm reading it currently and despite the corniness of the title and usage of the term "negotiation genius," what I've read so far (144 of 303 pages) is fairly practical and diverse when it comes to the issues they cover. Though with that diversity comes a lack of depth on most topics...still, there is enough (a brief example and some analysis) to provide an understanding of the points the authors make. My favorite negotiations book is still "Getting to Yes" by William Ury and Roger Fisher.

Also recommend you read FAR Subpart 11.6 "Priorities and Allocations" and 15 CFR 700.13 "Acceptance and rejection of rated orders" (https://www.law.cornell.edu/cfr/text/15/700.13)

Do you have a source for this information?

UVA (and others), Go to regulations.gov and in the search bar type in the appropriate FAR Case (in this case you would type "FAR Case 2016-005") and the first hit should be the right one. Click on it - at the top of the page you'll see a link that says "Open Docket Folder" - click that. On the next page you should be able to see a number of sections titled "Primary Documents," "Supporting Documents," and (the one you're looking for) "Comments." Next to the comments header is a link that says "View All" - click that and you should get what you're looking for. Happy researching!

Did your source(s) say no funding has been appropriated or that the minimum order wasn't executed? I'd find that hard to believe for a contract of this magnitude as fulfillment of those criteria is an IDIQ 101 lesson. The more likely case is that the order for the minimum amount (whatever it might be) got lost in the noise of the announcement of the overall contract.

Here is the link to the decision: https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2016cv1259-38-0