GeoJeff

OP wrote: Procurement situation: Establish an IA for Travel and no cost Subject Matter Experts (SME) with a non-profit agency (Red Cross) A bunch of other stuff... Stop there. Can only enter into an interagency agreement with another federal agency, which the Red Cross is not. Formerfed has it right - continue using invitational travel orders to the extent that the SMEs are speaking at no-cost other than travel expenses.

Vern, Not in a job description, but the label "expeditor" is applied to those individuals given system rights to assign and reassign work in PRISM, our acquisition software. Because that's a supervisory function, supervisors are "expeditors" within the system, but that term is, as far as I can tell, otherwise meaningless.

To the contrary, that's just what many agencies need. I have been in this career field for almost 10 years. Don Acquisition was my first PCO, in fact (hi, Don.) I have now reached a point in my career where I can both interact comfortably with management-level acquisition professionals and train new 1102s. The difference in attitude is generally remarkable. Forgive the broad generalizations here, but those with 20+ years of experience tend to think in terms of how they used to do things, or have always done them, and those without experience are forced to research how things are supposed to be done NOW. And please don't get me started on my continuous learning rant, which is mostly meaningless once core DAU/FAI courses have been completed. -Geo

Vern, This is true. However, in practice, there is no discernable difference within my Department between a Part 6 J&A and a 13.5 J&A. Even the approval thresholds are the same. The argument that Part 13 requires competition only to the "maximum extent practicable" and that the noncompetitive standard is "only one source reasonably available," IAW FAR 13.106-1( b )(1), not "only one responsible source," IAW FAR 6.302-1( a )(2) has fallen on deaf ears. I attribute this mostly to the fact that many of those in policy positions have never actually conducted a simplified acquisition, or did so early in their careers when the threshold was $25K and long before the Test Program, and just cannot fathom that such a "big" purchase could be so "easy." So, via agency and Department policy, the Test Program has been thwarted to the point of being unrecognizably different from a regular Part 12 commercial acquisition in this way. A similar thing has occured with supposed simplifed evaluation and source selection (i.e. a formal acquisition plan is required > $300K, commercial and/or Test Program or not.) Agency and Department policy just never caught up with the flexibilities the Test Program offered.

napolik, There is some additional flexibility with regard to evaluation of quotations and source selection (FAR 13.106-2( b )), file documentation/retention (FAR 13.106-3( b )), and postaward notifications/debriefings (FAR 13.106-3( c ) and (d)). But there are precious few, if any, "steps" that can be saved. The lapse of this program is hardly a crisis. -Geo P.S. Sorry about the weird spacing in my FAR references; they were necessary to avoid the insertion of smileys.

Test Program (nor SAP in general) is not an exception to use of the GPE. See FAR 13.105(a). With regard to FPDS-NG coding issues, for some lengthy period of time (I can't recall exactly how long nor exactly when, but it was on the order of many months approx. 1 year ago), data validation rules would not accept "Test Program" unless the acquisition's value exceeded $1M. My agency conducted many test program acquisitions > $100K (at the time) but < $1M under the test program but could not code them correctly. I always suspected it was a programmer's typo, simply adding an extra $0. I, and others, pointed this out to our agency, and in turn our Department's FPDS-NG POC, who notified GSA. GSA's response, in typical GSA fashion, was that it was a known problem and was scheduled to be fixed with the next release. I highly doubt any body went back to correct these records after GSA "fixed" the program.

DOI Office of Acquisition and Property Management. http://www.doi.gov/pam/ OAG is the Office of Acquisition and Grants within my bureau.

Did someone raise a stink with the Department over this??? After reading Vern's post, I went to our bureau intranet to find the "language of the promulgation" to post it here. For the record, here it is: The initial statement, posted as a policy announcement on our bureau SharePoint, was as follows, under the title "Design-Build Approval": "Please note the DIAR as currently written contains the following provision: 1436.209 Construction contracts with architect-engineer firms. Approval to award a contract for construction to a firm or its subsidiaries that designed the project shall be made by the HCA only after discussion with Director, PAM, and with legal concurrence. The request for approval prepared by the CO shall include the reason(s) why award to the design firm is required; an analysis of the facts involving potential or actual organizational conflicts of interest, including benefits and detriments to the Government and the prospective contractor; and the measures which are to be taken to avoid, neutralize or mitigate conflicts of interest. A copy of the documentation shall be forwarded to PAM at the time of consultation. There is some confusion about whether PAM continues to expect bureaus to request such consultation. OAG has a number of construction projects in process at this time, and a number of new ones are slated to be initiated soon using Working Capital Funding sources. While guidance relating to design-build was very specific for ARRA projects, the situation for non-ARRA projects is unclear. A request for guidance is pending with DOI. Meanwhile, please consider this when developing acquisition strategies with your customers. Time to allow approval of a design-build, if that is the best overall strategy, should be factored into your milestone planning.​" Because I was attempting to secure approval for a design-build project at the time, I pushed the "request for guidance" with DOI. Despite my arguments to the contrary, I received a written response from the lead policy analyst to this effect: "I just talked to the PAM Office. The ruling is that DIAR 1436.209 applies to design-build. Therefore, OAG will need to submit the documentation requested in this DIAR reference to PAM via the HCA (name redacted). The SPE (name redacted) has also asked that any documentation include a discussion point about whether or not the D-B project is on the bureau five year construction plan." Based on this direction, I engaged the solicitor's office, because DIAR 1436.209 requires "legal concurrence." Having never prepared such a waiver before, my solicitor contact didn't know where to start and elevated it up her chain of command to DOI HQ solicitor, with my arguments as to why this policy should not apply in this case. This morning, at the same SharePoint policy page, was this announcement, again under the heading of "Design-Build Approval": "DOI has just revised interpretation of the language below, acknowledging changes in current Federal acquisition policy. DOI approval is not required per the DIAR provision below for projects where the initial acquisition strategy is to use a design-build approach. The provision only applies if we award a stand-alone design requirement, then decide to award the construction of that requirement under a separate contract to the same firm that completed the design." I particularly like the reference to "changes in current Federal acquisition policy." When were those changes made again? Thanks for all for participating. I think it's a strange coincidence that my frustration finally boiled over enough to start this thread, and concurrently and independently the Department saw the light, so to speak. -Geo

Joel, It IS a problem when those who have the power to say so say that it does, despite the fact that it is meaningless. Regarding your other comments on the MATOC's scope, I agree. It was written hastily in order that it would be ready for ARRA-funded task orders to be placed. As with much ARRA-related, it was quick and dirty and the problems linger. I appreciate your comments. I wish there were more right-thinking people in positions of power throughout the Government, but I suppose that sentiment is shared by many. Thanks, -Geo

That pigs are ignorant and stubborn is in their nature, and it is not a problem on the farm. It only becomes a problem when the pigs are in charge.

Joel and Vern, Thank you both for the thoughtful replies. Sadly, the debate long ago took a turn towards the absurd. I work for an agency within the Department of Interior. DIAR 1436.209 expands on FAR 36.209 as follows: "Approval to award a contract for construction to a firm or its subsidiaries that designed the project shall be made by the HCA only after discussion with Director, PAM, and with legal concurrence. The request for approval prepared by the CO shall include the reason(s) why award to the design firm is required; an analysis of the facts involving potential or actual organizational conflicts of interest, including benefits and detriments to the Government and the prospective contractor; and the measures which are to be taken to avoid, neutralize or mitigate conflicts of interest. A copy of the documentation shall be forwarded to PAM at the time of consultation." The Fish and Wildlife Service, another agency within the Department, has awarded a multiple award task order contract (MATOC) for construction and design-build. From the "scope" paragraph in the MATOC ordering guide: "The objective of this contract is to provide comprehensive technical design-build and construction services for all bureaus within the Department of Interior. Task orders may require work including (but not limited to) investigations, analyses, studies, design0build, construction administration and management, NEPA, archaeological and historical compliance, and actual construction. Design services regulated by the Brooks Act are NOT included within the scope of the MATOC." The Department has taken the position and promulgated it to the bureaus that, before a design-build task order is competed/issued under the MATOC contract, the waiver described above in 1436.209 is required. I have already made all of the arguments against this position (I think), to no avail. I am at a loss as to how to proceed, since I don't believe 36.209 or 1436.209 even applies to design-build actions. I have reached out to the solicitor's office, given that "legal concurrence" is required, and they don't know what to do either. In desperation, I have even reached out to the USFWS Contracting Officer who awarded the MATOC contract in the first place to obtain sample waivers. Perhaps not surprisingly, the Contracting Officer has retired and her deputy/replacement will not return my emails or phone calls. Any advice? Thanks again for the participation thus far. The excerpts from Hammurabi's Code were very interesting.

Engaged in an office debate. I am being told FAR 36.209 applies to design-build acquisitions. I disagree. Among other reasons, I cite Government Contract Law: The Deskbook for Procurement Professionals, written by the US Army JAG Corps, at page 437, which reads as follows: "Design-Build Contracting. 10 USC 305a; 41 USC 253m; FAR Subpart 36.3. Background. In the past, a contracting officer could not award a contract to build a project to the firm that designed the project unless the agency head or the agency head's delegee approved. FAR 36.209. See Lawlor Corp., B-241945.2, Mar. 28, 1991, 70 Comp. Gen. 375, 91-1 CPD 335. In 1995, however, Congress established new, two-phase design-build selection procedures that allow the same firm to design and build a project. National Defense Authorization Act of 1996, PL 104-106, 110 Stat 186 (1995)." I am interested in others' thoughts on this topic.

See matter of Gold Cross Safety Corporation, B296099, here: http://www.gao.gov/decisions/bidpro/296099.pdf. While not directly on-point, in Gold Cross the GAO states: "?Since Gold Cross could not receive the award due to its unreasonable price, the results of any technical evaluation the agency may have subsequently performed were immaterial; even if Gold Cross? technical submission received the highest possible rating, it could not receive the award due to its unreasonable price." Substitute the phrase "because there was a lower-priced, technically-acceptable offeror" for the phrase "due to its unreasonably price," and viola. There, as here, a technical evaluation would be "immaterial." Thoughts?

And yet the debate apparently rages on...http://www.doi.gov/pam/DIAPR_2010-13.pdf.

Velhammer: I think FPDS-NG is a non-issue here, at least for agencies that manually enter their own contract data. A new IDC record will validate whether you enter information in the "Action Obligation" field or not. From FPDS-NG's perspective, it is equally correct to obligate the minimum directly to the award or not, presumably so that one is not forced by business validation rules to make a minimum obligation to a basic award if one then intends to immediately (concurrently is a better word) issue a deliver order that meets the minimum.

FPDS-NG does (now, at least) allow the recording of an obligation to an IDIQ award. The field is optional (black), not mandatory (orange).

Good post. I concur, with one minor caveat. The statement the author debunked ("You don't have to obligate the minimum when you award an IDIQ contract. You can wait until you issue an order to make obligations.") is incorrect except in the very limited circumstance in which the minimum order is issued concurrently with the award of the basic contract. In the situation where 1) the initial order will meet or exceed the contract's guaranteed minimum, and 2) the initial order will be issued concurrently with the basic award, I do not believe there is any violation of the "recording statute." Chapter 7 of the GAO Redbook (p 7-17) states "In a variable quantity contract (requirements or indefinite-quantity), any required minimum purchase must be obligated when the contract is executed..." That requirement is fulfilled by the concurrent issuance of the first order meeting the minimum; note that the GAO does not explicitly state that the minimum must be obligated to the contract, only that it must be obligated when the contract is executed. Presumably, if the GAO intended to make the former statement, it would have. Also reference Federal Electric Corporation, ASBCA 11726, 68-1 BCA 6834, and Federal Electric Corporation v. United States, 486 F.2d 1377 (1973). There, the Air Force mailed an official acceptance of the contractor's proposal and issued the first delivery order for the minimum quantity on the same day. The ASBCA ruled that the contract was enforceable, having come in to effect when the minimum order was placed. From Formation of Government Contracts, 3rd ed, pages 1239-1240, "...the Court of Claims upheld the board decision but stated that the contractor was bound to the contract because the minimum quantity had been ordered at the same time the parties entered into the contract." (bold added) The alternative is silly - obligate the minimum to the award, issue the first order meeting the minimum five minutes later, then deobligate the award five minutes after that. I can't imagine that ten minute obligation serves any legitimate purpose. I agree with the author, however, that unless an order sufficient to meet the contract's minimum is issued concurrently with the award, the minimum must be obligated to the contract. There is no acceptable alterrnative.