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FrankJon

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Everything posted by FrankJon

  1. One clarification for the benefit of LBF and others: The quoted rationale should not be relied upon for declining orders in the context of the Multiple Award Schedule (MAS) Program. GSA requires its FSS contractors to accept Executive Agency orders under most circumstances (source: https://www.gsa.gov/acquisition/purchasing-programs/gsa-schedules/gsa-schedules-frequently-asked-questions, Is a GSA Schedule contractor required to accept any order placed against its Schedule contract?). Thus, even though the correct nomenclature when using the MAS Program is "quote," and quotes are not offers under the law, FSS contractors should be mindful that an agency's order must usually be accepted. In OP's situation, the company could decline the order based on the presence of new terms, not because the Government's order is legally an offer.
  2. I am almost never in favor of adding administrative "to-do"s in the Government contracting process because (1) the additional time they take (even when short) is rarely worth the additional effort, and/or (2) there is often a more efficient way to achieve the same result (if the result is even necessary in the first place). But I don't see a 30-day notice period (at a minimum) as unreasonable for a service contract. In my opinion, preparing a simple notice is a small burden relative to treating a business partner fairly. Even when the Government misses the notification deadline, which happens regularly, there's rarely an impact to the Government. Personally, I've never seen a contractor not agree to abide by the original terms. I would be interested in hearing from contractors (@here_2_help?) what they consider to be a reasonable "preliminary notification period" for a given contract size and scope. From the perspective of a contractor, what period appropriately balances the interests of Government and contractor?
  3. This sounds like a software license agreement "co-terming" situation. Either the Government is requesting to move the start date so they can exercise all SLAs at the same time each year, or the manufacturer is requiring it because that's the schedule they want everybody to be on. If this is the case, I there's nothing wrong with it as long as you've got service during the overlap and you're paying no more than you agreed to under the first contract.
  4. Better yet, did you read all of the responses to your own post? Have you looked into the Pathways Program?
  5. I agree that the connection between FAR 17.204(a) and the clause prescription appears unambiguous. This point is not addressed in the article.
  6. @napolik When is it "necessary to include" #s 1 - 3 in a contract? Per FAR 17.204, I think only #3 is a requirement. Mr. Nash would say that that can be handled at the CLIN level. Your fear I share.
  7. In THE MYSTERIES OF THE FAR: The “Option To Extend The Term Of The Contract” Clause, 32 Nash & Cibinic Rep. NL ¶ 25, Ralph Nash points out that, despite the widespread belief among agencies that inclusion of 52.217-9 is mandatory when option periods are included in a contract, the prescription at FAR 17.208(g) actually makes use of the clause optional under most circumstances. To have valid option periods, the Government can simply state the end date for exercising each option within the optional line items. In this scenario, Mr. Nash continues, since the inclusion of 52.217-9 can only limit and harm the Government's rights, the clause serves no real purpose to the Government. In conclusion, Mr. Nash states the following: While I thought the article was interesting, and I was very surprised to learn that the clause is not required when using options, I don't think I agree with the conclusion. I have always seen the clause as a show of good faith on the part of the Government toward the contractor, particularly in the case of service contracts. It's our way of saying, "Look, we know you and your personnel need some certainty to plan for the future, so we will give you heads-up by X date as to whether we'll still need your services on Y date." Given the Government's propensity for poor planning, last-second decisions, and disregard for the welfare of contractors, this seems like an equitable solution to me. And though it's true that the Government can simply write in similar terms when appropriate in lieu of including a clause, that's a distinction without a difference. It could create even more work and confusion, in fact. I would prefer a more moderate solution: keep the clause in the FAR, but with a prescription that makes clear its discretionary nature, and that describes when and how it should be used. I'm interested in hearing others' perspectives.
  8. Ha... Yeah but for the Government contract they all need to be "on the books." Some of them probably end up making less once IRS takes its cut.
  9. I see the scope distinction that you're discussing as being necessitated by the structure of SEWP vs. FSS (dynamic catalogs vs standing catalogs). (As an aside, I hope your noncompetitve FSS BPA was below the SAT.) Quality review. Not yet. May not need to for my purposes. Yes, as I've learned from this discussion. Nevertheless, that's what the CO calls it. What do I need to know about Agency Catalogs to know that if competitive FAR procedures outside of 16.5 are being referenced for a GWAC order, the CO is confused? My question goes to the permissibility of doing so. BPAs are expressly permitted under 8.4 and 13, but would this preclude establishing a BPA when using other procedures such as 16.5? You say you like the idea for practical reasons, and I think I agree. But have you considered whether you have the authority to do so?
  10. I voted "yes." If COs aren't going to document consideration of sealed bidding anyway, at least now contract files can be ever slightly more compliant.
  11. I found this PowerPoint from NASA, which sort of explains things beginning on pg. 20. It seems that there is no award document that comes from the Agency Catalog process. Rather, once a winner (or winners) is determined, the contractor and NASA are notified and they work out the details on the back end. Once the catalog is ready in SEWP, then the agency places orders. For those who have done this, is this basically correct?
  12. So what are the mechanics and particulars of setting this up? What features of a BPA doesn't it have? Is there a SEWP manual I can get my hands on that discusses this? The reason I started this topic and I'm asking these questions is because I'm reviewing a file that was awarded a year ago. It is a single-award "Agency Catalog/BPA" for VMWare with a total estimated value of $75M and nothing obligated or guaranteed up front. The Acquisition Plan references just about every FAR Part under the sun (confusion reigned) and there is nothing in the RFQ indicating a unique process.
  13. I just reviewed the Request for Agency Catalog (RFAC) option you mentioned. Information regarding the process is very vague.
  14. Simply choose a functional feature (i.e., not color) that is different between the two, explain how the feature of the Deere better suits your customer's requirements, and state why that difference compensates for the price differential. As long as it's reasonable and reasonably-documented, it will be upheld.
  15. CICA doesn't apply to SAP. FAR 6 implements CICA requirements. 6.001 excludes FAR 13 from applicability.
  16. Just be sure to distinguish comparative evaluations and trade-offs under FAR 13. It seemed to me that you're talking about trade-offs in this thread. I don't know the answer for sure, but I suspect GAO would find this to be an arbitrary distinction, and the government's award would not withstand scrutiny. If I were the CS, I would make my customers point to objective characteristics associated with each brand and describe why one is better than the other. I wouldn't allow "familiarity" to suffice as a rationale, but there are other ways to articulate this that would pass the smell test.
  17. I think this discussion might help you: See in particular ji20874's comments, in which he/she discusses trade-offs under FAR 13.1. (His/her responses may have been more appropriate for this post than for mine.)
  18. Bob - That's my point. Clearly it is a "required to consider" procedure. Yet the widely-accepted practice is to ignore it, while many other documentation requirements of questionable value are enforced. Vern and Joel - Good information. Thanks for sharing.
  19. I am also very surprised at these results. I have never used FAR 14, but its irrelevance among the contracting workforce is evidenced by the fact that nobody bats an eye when consideration of sealed bidding is ignored completely in the contract file. For comparison, if the PMR Team were reviewing a file for a weapons system, it would ding the CO for failing to mention that the AbilityOne Program was considered. Yet ignore an entire FAR Part and it goes unquestioned. It's fascinating to me that there seems to be this unspoken agreement in our field that this is accepted practice. I don't mind it. I just think it's interesting.
  20. The NASA SEWP FAQs have the following question and response: The response goes on to state that "Delivery Orders with Options (DOWOs)" are permissible and provide some of the same features as a BPA. "DOWO" seems to be a NASA-coined term, whereby an initial delivery order contains terms allowing subsequent orders against the same quote. NASA states that the DOWO procedure can be compliant with FAR 16.505(b), then goes on to state the steps for setting one up. (The response does not give the sense that it was written by a government contracts person.) Does anybody know what the quoted response might mean? It seems to me that in order for the DOWO concept to comply with 16.505(b), you would need either quantity options or a "logical follow-on" exception to fair opportunity. The fact that NASA's explanation of DOWO mentions neither of these seems to be an oversight. Am I missing something? Can anybody speak generally about whether awarding a BPA against a non-FSS IDIQ is permissible under the FAR? (Put the merits of doing so aside.) Thanks.
  21. Bob - The purpose of doing this would be to draw new participants? Can you explain the nexus between the two? For regular posters, I can't see that making much of a difference (for instance, see Vern's post on brainstorming source selection process improvements, which was extremely popular). For those who have never posted or occasional visitors, I can think of potentially better ways to increase participation (for instance, by making the message board link more visible on the Wifcon homepage).
  22. It's simple. The problem is that requiring offices like to use too many metrics and metrics that are unmeasurable in practice. Go back to basics. What factors are most important to achieving ideal performance? What amount of variance can you tolerate? What's a plausible way to measure success (hint: probably not by using percentages)? Off the top of my head, for courier services, I want pick-up to be regular and timely, and I want delivery to be prompt and accurate. Those might be my primary metric areas. So for regular and timely pick-up, you might state something like: "No more than one missed pick-up window per week." This is just an example. Ultimately, it depends on the circumstances of the specific situation. But the metrics do not need to be numerous and measurement does not need to be complex for most service contracts.
  23. I once awarded a courier services contract for DOD. It was a sole source award under the 8(a) Program, made to the protégé of the incumbent 8(a) firm under the Mentor-Protégé Program. We evaluated only on price. The first year or two of performance were rough. The customer was not happy. One of the problems was that the Government insufficiently described the requirement. The other problem was that the contractor did not allocate sufficient resources to meet the requirement, and was reluctant to allocate more. If I were to solicit this requirement on a competitive basis, my evaluation factors would be Price, Corporate Experience, and Past Performance. I would at least want to know that the contractor has successfully performed similar work of similar size and complexity before. Yes. Those are bad assumptions. When you're evaluating based on LPTA or price alone, that does not in itself infer anything regarding the value you place on price or technical factors. For instance, if I am using LPTA, I can set the bar for acceptability very high (indicating those factors are very important) or very low (indicating they are not). Provision 52.212-2 can be modified to suit your needs (read the prescription); do not abide by it rigidly, forcing yourself to fit a square peg into a round hole. If you're using LPTA or just evaluating on price, state that. Write it in a way that makes sense. Delete the "relative importance" language. It seems to me that you're overlooking a major component of performance-based contracting: performance standards. Per FAR 37.601(b)(2) you need: "Measurable performance standards . . . and the method of assessing contractor performance against performance standards." In contracting for courier services, I don't need to know the details of how the work will be done. But I will absolutely have objective, enforceable metrics in the PWS pertaining to areas such as timeliness and accuracy (you really only need a handful of metrics for this type of work). Now, whether the COR enforces them is another matter.
  24. That is really cool. Wonder why there isn't more buzz about this (positive or negative). Any word yet on results or trends?
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