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Everything posted by GeoJeff

  1. I'm confused. I thought the NMR applied over $25K? 13 CFR 121.406(d) is clear, yet see FAR 19.102(f)(7) and 52.219-6(d). Is this yet another case of FAR not having "caught up" with an underlying regulation, as is the case with the limitations on subcontracting changes?
  2. Agreed, that is what the regulation says. My original question stems from CAFC's ruling in Digitalis, which seems to imply that if a prospective contractor misses the boat during the synopsis period, he is no longer an "actual or prospective bidder." This seems contrary to the plain language at 5.207( c )(16). Perhaps there is a different answer when using SAP? What about a synopsis that says: "Other prospective contractors may submit a capabilities statement by the closing date of this announcement. All submissions will be evaluated for the sole purpose of determining whether competitive opportunities exist, and the prospective contractor will be advised of the results of the government's evaluation. Late submissions will not be considered. If no submissions are received, the government will proceed with the intended noncompetitive action. An informational copy of the noncompetitive solicitation will be made publicly available IAW FAR 5.102(a) on or after (date), but competitive (quotations/bids/proposals) will not be considered." I'm sure there will be several objections to this. I'm used to rejection.
  3. OK, assume we're using SAP and soliciting a single source. I shall amend my hypothetical synopsis to the following: "(Agency X) intends to solicit a quotation on a single source basis IAW FAR 13.106-1(b)(1)(i) from (company Y) for (product/service Z.) Company Y is the only source reasonably available to fulfill this requirement under the circumstances because (reasons). IAW FAR 5.207(16)(i), all responsible sources may submit a quotation which shall be considered by (Agency X). The request for quotation will be available on or after 01 May 2016." You post that synopsis on 15 April 2016 and let it sit for 15 days. Nobody responds. You prepare your RFQ but don't include evaluation criteria or quotation submission instructions and post it to FBO IAW 5.102(a) on 02 May 2016. Company Y has told you they need a week to put together a price quotation, so you leave the RFQ open for a week, closing 09 May 2016. On 08 May, out of nowhere, company A emails you a quotation. It may or may not (likely not) contain any meaningful information because you haven't included evaluation criteria or quotation submission instructions in the RFQ. The synopsis advised that any quotation submitted "shall be considered by Agency X," and 13.106-2(a)(3) says "all quotations...shall be considered." So the question is - on what basis and/or to what extent are we "considering" this other quotation? We have not provided evaluation criteria suitable for a competitive environment in the RFQ. Must we amend the RFQ to include competitive evaluation criteria and re-release, as Todd Davis suggested yesterday? I think that's certainly a safe way to proceed. Or may this other quotation be "considered" by saying "no thanks?" I have practical reasons for this mental exercise that are systems related. Our procurement system (PRISM) allows one to post the "notice of intent" we've been discussing above to FBO either as a "special notice" or as a "presolicitation notice." As a practical matter, prospective contractors go looking for competitive opportunities by searching for presolicitation notices and combined synopsis/solicitations in FBO, not by reading special notices. When something shows up as a presolicitation, they think it's competitive. PRISM will not allow us to attach a solicitation to a special notice - a solicitation must first be announced via a presolicitation notice or it will not "release" to FBO. So we're stuck between a rock and a hard place; when we use the special notice as we've been trained to do, and which seems more intuitive to vendors, we then can't post the solicitation IAW FAR 5.102(a). If we use the presolicitation notice, prospective contractors often don't notice the presolicitation text and think they have a competitive opportunity, so we get junky quotes that aren't responsive and are then bound to "consider" them in some way. This is compounded by the fact that PRISM uses a proprietary portal called FedConnect, and the FBO announcement directs prospective contractors to FedConnect "for more information about this opportunity." When they get there, if they register with FedConnect, there is a "quote" button, where they can enter a price and hit submit. And bless their hearts, some specialists at my agency try to comply with 5.102(a) by first posting a special notice that says "notice of intent to award...," then after that closes, they post essentially a blank presolicitation notice that references the previous special notice so they can get the RFQ in FBO. If the vendor notices that, he's got to work really hard to find the referenced notice of intent, so he legitimately thinks there is a competitive RFQ available to him, and with no stated evaluation criteria, it looks like low price gets the job. I'm looking for a practical solution to these problems.
  4. Yup, that's what it says; the plain language is plain. And if you're using 6.302-1, 5.207( c )(16)(ii) requires a statement "...all responsible sources may submit a capability statement, proposal, or quotation which shall be considered by the agency." Regardless, for the purposes of framing this question, I think the question regarding timelines and appropriate action is largely the same. Assume the synopsis is posted 4/15/16, and says: "Agency X intends to (negotiate on a sole source basis with/award a noncompetitive contract to) in accordance with FAR (whichever applies) company Y for service Z because (they are great.) Any other interested party may submit a capability statement by the closing date of this announcement, which is 5/1/16, which shall be considered by the agency for the purposes of determining whether to hold a competition or proceed with a noncompetitive action." 5/1/16 comes and goes and nobody responds. 5/2/16 the agency releases the solicitation. For the purposes of this question, it doesn't really matter whether it's posted or not. 5/5/16 some other company finds the solicitation, either on FBO if it was posted in accordance with 5.102(a), or via email from the CO if they just heard about it through the grapevine. They review it and respond with the usual "hey, we can do that!" The language in Digitalis would have me believe that it would be appropriate to tell this other company that they are too late and has missed its chance. Digitalis: "We therefore hold that in order to be an actual or prospective bidder, a party must submit a statement of capability during the prescribed period."
  5. Agreed, but I'm not sure that's relevant to the instant discussion. 5.102(a)(1) says in relevant part: "Except as provided in paragraph (a)(5) of this section, the contracting officer must make available through the GPE solicitations synopsized through the GPE...", which would apply equally to a noncompetitive 13.106-1, $26K action and a sole-source 6.302-1, $26M action. I agree with Don that the plain language is, well, quite plain...however Digitalis calls into question what the purpose of posting a noncompetitive/sole source solicitation would be.
  6. Don, I knew you'd say that. Have you read Digitalis Education Solutions, Inc. v US, CAFC 2011-5079, 01/04/2012? In Digitalis, CAFC wrote: Say you have a rock-solid noncompetitive justification. You post a notice of intent for a reasonable period of time and there is a deadline for other potential sources to submit capabilities statements, and nobody does. You prepare the solicitation without competitive evaluation criteria, email a copy to the intended awardee, and post a copy to FBO because of what FAR 5.102(a) says. An hour before the quotation submission deadline, you receive a competitive quotation from another company out of nowhere. What should you do?
  7. Apologies for resurrecting an old topic, but I have a specific situation related to this that has me thinking in circles. I can't formulate a logical response to a client about an intended acquisition strategy, though admittedly not everything we do is logical. My agency has a multiple-award GSA BPA with three resellers of Hewlett-Packard (HP) LAN switches and related equipment. This was awarded competitively. The three vendors are given fair opportunity to compete for individual calls. We now have a need to purchase a moderate quantity of part number J9150A, which is (for the purpose of this discussion) a plug-in module for a LAN switch. The purchase will be on the order of 30 units, and we estimate that to be on the order of $21,000.00. The LAN switches these modules will be plugged into are made in Mexico. Assume for the purposes of this discussion that the modules themselves are made in China (the truth is more complicated, but does not further this discussion). Part number J9150A is available through GSA Advantage, but (according to our BPA holders and HP direct) is "TAA compliant" only if assembled at point-of-sale with a switch. The logic is, the switch is made in Mexico and is expensive, whereas the module is made in China and is cheap; the unit is considered made in Mexico as a whole and is therefore TAA compliant. Our BPA holders will not accept a call against our GSA BPA for the module itself, citing GSA's website at: http://www.gsa.gov/MASDESKTOP/section3_10.html In relevant part: "All Schedule products and services must come from the U.S. or a designated country." At least one of our BPA holders also has a NASA SEWP contract, and will accept an order for the modules that way. NASA SEWP: https://support.sewp.nasa.gov/link/portal/15028/15032/Article/283/Are-SEWP-products-BAA-TAA-Buy-American-Act-Trade-Agreement-Act-compliant In relevant part: "...the TAA is applicable to all SEWP Contracts. In accordance with the TAA, only U.S.-made or designated country end products shall be purchased under SEWP contracts unless an exception exists and is documented by the Contracting Officer..." Specific questions: 1. Both the GSA contract and the SEWP contract contain the clause at 52.225-5, so why the seemingly different treatment between GSA and NASA? GSA says all products must come from the US or a designated country, whereas NASA says "...unless an exception exists..." The exception here would be that the product is made in China and nowhere else. FAR 25.403( c )( 1 ). 2. The modules are "information technology that is a commercial item," FAR 25.103( e ), and therefore the Buy American Act does not apply. If I were to proceed on the open-market, and justify the brand-name-only purchase of these parts, I could buy the modules made in China. Recall the estimated value is $21,000.00. 52.225-1 does not apply (see 25.1101( a )( 1 )( ii )). If the value of this purchase were greater than $25K but less than $204K, 52.225-3 would not apply (see 25.1101( B )( 1 )( i )( b )). If neither 52.225-1 nor 52.225-3 apply, then neither of the corresponding provisions at 52.225-2 or 52.225-4 would apply either; this means contractors would not even be required to inform me of the country of origin of these products at all. Correct? 3. If the value of this purchase were greater than $204K, 52.225-5 would apply IAW 25.1101( c )( 1 ). Don answered that above, when he wrote: "The inclusion of FAR 52.225-5 is not contingent on whether the BAA applies. The clause prescription is clear." Like Whynot, I have also been tripped up by 25.402( a )( 1 ), where on first reading it seems that the TAA waives the BAA, so if the BAA doesn't apply, then there is nothing to waive. However, I note 25.402( a )( 1 ) says that the TAA "...provides the authority for the President to waive the Buy American statue and other discriminatory provisions;" the BAA may not apply, but other discriminatory provisions may exist. The operative restriction at 25.403( c )( 1 ) is: "...acquire only U.S.-made or designated country end products or U.S. or designated country services, unless offers for such end products or services are either not received or are insufficient to fulfill the requirements..." If all offers were for modules made in China, then I purchase the modules made in China. If one offer is for modules made in either the US or a designated county, then I cannot purchase the modules made in China. That's the "discriminatory provision." Correct? 4. Why is it that I can purchase up to $204K worth of information technology commercial items made in China on the open market, and nobody would even know or care, but I (apparently) can't buy them through GSA? 5. How would you all recommend proceeding? I'm leaning towards an open-market purchase order and calling it a day. My head hurts. Thanks,
  8. In March 2015, DoD requested to open a FAR Case to remove the FAR Matrix. I know this having seen an email from GSA directed to CAAC members requesting feedback. DoD wrote (I added bold for emphasis): We recommend removing the FAR clause matrix for the following reasons: 1. The matrix was a paper-based solution which cannot provide sufficient information regarding required clause usage. In order to include the correct provisions and clauses in a contract it is necessary to employ a contract writing system based on the use of clause logic, with appropriate input from the contracting officer in those instances in which human judgment is required. A paper-based matrix is incapable of providing the kind decision tree necessary to conclude whether a clause should be included in the solicitation/contract. 2. So many of the clauses are "as applicable," which provides insufficient information upon which to base a decision. 3. The applicability to commercial items is not accurately reflected in many cases. 4. Too many provisions and clauses are required to be incorporated in full text. 5. There are various other anomalies and inaccuracies. 6. When DoD has tried to use the clause matrix in several undertakings (e.g., building the new clause logic system, or analyzing applicability of clauses to commercial items), it has not proved to be an adequate basis to achieve success. The DFARS does not include a clause matrix. To the original poster: don't worry about what the matrix says.
  9. This discussion reminds me of two related annoyances. First: In commercial item acquisition, the SAM requirement is at 52.212-1(k) and 52.212-4(t). In noncommercial item acquisition, the SAM requirement is at 52.204-7 and 52.204-13. The FAR matrix lists both 52.204-7 and 52.204-13 as "A," for "required when applicable," in "CI" "Commercial items" acquisitions. Why? Second: 52.232-40 is required in all solicitations and contracts, including all commercial item acquisitions; see 12.301(d)(5). The clause date is December 2013. Why is this not simply included in 52.212-5, dated December 2014? Because it's not required by law or EO? Then why not include it in 52.212-1/4? As always, appreciative of the discussion.
  10. I've had Don as a CO. I pick Vern. It gets discouraging having your contract files physically thrown down the hallway. On the other hand, it was entertaining to get Don to sign a BCM that included a footnote reading (my original post was edited) something negative about Don. Hope all is well in your world, Don.
  11. metteec, You wrote: "Further, it also makes sense to wait until after completion of negotiations before submitting a sole source notice in FBO." FAR 5.207( c )(16) requires you to insert a statement in your FBO notice allowing responsible alternate sources to submit something "which shall be considered by the agency." How would you comply with that requirement ("...shall be considered...") if you've already completed negotiations with someone else? Note: Edited to fix the "c" in parens.
  12. Don, perhaps you can include a section on how to interpret semicolons in your proposed reference guide???
  13. Precisely. If the contractor's proposal said "we assume you mean X, so we propose to do..." and the government really meant Y, the contract should not have been awarded without resolving that issue in the first place.
  14. No, not useful. The problem is that too many people in this field don't read, and when they do, they don't understand. Giving them something else to read ain't gonna help.
  15. 52.212-4(t) doesn't explicitly require SAM registration prior to award. In noncommercial acquisition, 52.204-7 requires SAM registration prior to award and 52.204-13 requires maintenance of the SAM registration throughout the contract until final payment. In commercial acquisition, it's 52.212-1(k) and 52.212-4(t).
  16. To ji20874, In this case, you are putting too fine a point on the distinction between "quotation" and "offer/offeror." Assume we are seeking quotations. You argue that 52.212-1 should therefore be omitted. 52.212-1(k) requires a prospective contractor to be "registered in the SAM database prior to award, during performance and through final payment of any contract resulting from this solicitation." See FAR 4.1102(a). If you don't use 52.212-1, then you would need to insert 52.204-7 in the solicitation to enforce SAM registration. 52.204-7 uses the term "offeror" throughout. To continue this line of thought, a contractor cannot complete the SAM registration process as a "contractor" without first answering in the affirmative to "do you wish to bid on contracts?", and then completing his "Representations and Certifications." https://www.sam.gov/sam/transcript/Quick_Guide_for_Contract_Registrations.pdf So there the term "bid" is conflated with quotation and offer. 4.1201(a) makes clear that completing reps and certs through SAM is required, and 4.1202 does not allow for the use of 52.204-8 in commercial item acquisitions. Why? Because 52.212-3 exists to enforce the reps and certs, which is entitled "Offeror Representations and Certifications - Commercial Items," and uses the term "offeror" throughout. I agree with others in principle that it should be tailored, but argue that an agency-wide or even government-wide alternate version for simplified acquisitions is more appropriate than individual COs tailoring this lengthy clause for individual acquisitions.
  17. Sometimes I think working in this career field has given me a clear appreciation for why, oftentimes, government simply doesn't work. Person A made an easily preventable mistake, by not exercising an option on time. He then compounded the mistake (from what I can understand) by exercising that option unilaterally, even though it was too late, instead of pursuing the easy fix of getting the contractor's bilateral signature. Since then, 100 task orders were issued without anyone questioning the underlying problem. Now Person B, who likely doesn't really know what he is talking about, is advising a solution that's worse than the underlying problem. Terminating (presumably for convenience?) 100 task orders? Does he even know what that means, or what it will cost? What does he then propose to do? Reissue the contract? Reissue all the orders? Place a bunch of noncompetitive purchase orders? And all this after paying termination settlement costs? Lunacy.
  18. Agreed. The process for exercising an option is, essentially: 1. Is there an option to be exercised? Yes/No. If Yes, then 2. Does the government want to exercise it? Yes/No. See FAR 17.207©. If Yes, then 3. Government issues preliminary notice of intent to exercise the option, as specified in the option clause(s) of the contract. Then 4. Contract is modified to exercise option. Then 5. Contractor continues to perform under the terms of the option. There was an option, which the government clearly wanted to exercise, as evidenced by the continued issuance of task orders. The contractor is clearly willing to continue to perform. What was skipped is the administrative paperwork. Go back, document, and fix. There is no "noncompetitive creation of a new contractual relationship." That's nonsense. This case is yet another example of the many reasons not to use options in IDIQ contracts.
  19. "Sometimes yes, sometimes no" is a good answer. Factors to consider include property ownership and jurisdiction, whether building permits will be required, whether local government inspections will be required, bonding and insurance requirements, etc. Regardless, be sure to specify in the RFQ/RFP/IFB whether a license will be required and when (at the time of quote/proposal/bid submission or sometime later). I tend to err on the side of following state law, but we don't do any work on military installations. If the state requires a licensed contractor for the trade/value I'm working with, I will too. Note also that Don Acquisition mentioned the permits and responsibilities clause; often, if a building permit is required, the permitting agency (generally city) will only issue a permit to either the property owner or a licensed contractor.
  20. Given that the number, destination(s) and duration(s) of trips would be unknown, how would this BPA be structured? Cost-reimbursable in accordance with the FTR? Can a Part 13 action (arguably for commercially-available services) be cost type? In a very old post on wifcon (http://www.wifcon.com/arc/forum236.htm), Vern wrote: By Vern Edwards on Saturday, September 08, 2001 - 08:33 pm: You say you're writing a purchase order, so I assume that you're using simplified acquisition procedures to buy commercial services. Is that right? If so, you should not use a cost-reimbursement line item. See FAR 12.207 and 13.302-1(a). Instead of writing a cost-reimbursement line item, write an unpriced line item. See FAR 13.302-2. Use the authority in FAR 13.302-2( (iii). Describe the service as work-related travel performed as ordered or agreed. Agree on a total monetary limitation for the line item. After the travel has been completed, agree on a reasonable fixed-price based on the contractor's travel costs and then pay the invoice amount. How would that be administered here? The caller speaks with the organization, agrees to the parameters of travel in general terms within his micropurchase authority (presumably including an NTE amount,) then negotiates a fixed-price payment after the travel has been complete and pays it with his GPC? Seems reasonable to me. The BPA could lay out that all travel must be in accordance with the FTR and pre-approved by an authorized caller, etc.
  21. A contract is not wrong. A BPA is not wrong. We agree that a grant/cooperative agreement is likely wrong, and an interagency agreement is certainly wrong. I would suggest that ITOs are quite likely easier than the award and administration of a BPA, and that perhaps the "organization" understands the work involved in ITOs but not the work involved in BPAs and calls thereunder, and thus is pushing against the use of ITOs. The "organization" gains nothing if the client side saves administrative hassle and expense but the contracting side gains it. I think BPAs have been strangled to death by nonsensical bureaucracy, quite frankly, at least at my agency, such that their use is essentially not worth the trouble. Billings, once a simple matter of monthly statements charged to a client's GPC, have been complicated to the point of stupidity. Not to mention that the OP would have to enter into a (gasp!) noncompetitive, (gasp!) single-award BPA with the Red Cross (double gasp!!! not a small business!!!), which will likely trigger higher levels of review, scrutiny, and grief, all over something that can easily be handled by an established ITO process, done likely by the very same financial technicians who will have to deal with the BPA's billings. I don't know - maybe ITOs are more work than I think they are. Write the BPA and see if it makes the client happy.
  22. Poster leo1102 suggested using a cooperative agreement...
  23. No, that's not what I'm trying to say. I agree there is mutual consideration to form a contract. What I'm trying to say is that, in my opinion, the repayment of travel expenses only in this situation does not satisfy the "transferring a thing of value" test under FGCA because I don't believe it helps the speaker's organization. The agency is inviting an SME to speak at the agency's conference presumably because the agency wants him to do so, not because the SME's organization wants to. That's an acquisition purpose under FGCA, not an assistance purpose, but I digress. Suppose the agency doesn't invite him; then he doesn't travel, no travel costs are incurred, no reimbursement of travel costs are required, and his organization pays his salary for his time. Suppose the agency invites him; then he does travel and his travel costs are reimbursed, but the organization still pays his salary for his time. Either way, his organization's budget is not impacted other than possibly the collection of overhead charges on the reimbursable travel (which is another reason to use ITOs, by the way). I fully agree this could be a contract/purchase order, but that invitational travel orders are more appropriate. An interagency agreement is inappropriate. I argue that a grant/cooperative agreement is also inappropriate, but I don't feel particularly strongly about that because a rational argument in favor could be made if one were so inclined. One would have to demonstrate that the invitation to speak is primarily intended to support or stimulate the organization, not to meet an agency need, and that the transference of the "thing of value" actually assists the organization. It's not impossible to make those arguments.
  24. The Red Cross' speakers are speaking at agency conferences at no charge, other than reimbursable travel expenses, per the OP. 31 USC 6304 and 6305 discuss using grants or cooperative agreements, respectively, "when the principal purpose of the relationship is to transfer a thing of value...to carry out a public purpose of support or stimulation..." It would be a stretch to argue that reimbursing the travel expenses of an unpaid SME speaker to speak at an agency conference is either "transferring a thing of value" or acting to "support or stimulate" his organization. Sure, if the agency gave a grant to the Red Cross to pay the guy's salary for a year and travel around the country speaking to various conferences about emergency preparadness or management, that could work. Why the reluctance to just do the obvious thing and issue invitational travel orders? The acquisition community is too often regarded as the "fixer" of other peoples' problems. It sounds like what's happening here is somebody is complaining the invitational travel orders are a nuisance, so the OP is trying to shoehorn this situation into a contract or IA. Reminds me of the "my boss said I can't hire anybody so I drafted this SOW..." nonsense we see all too frequently.
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