JIR17

29 minutes ago, joel hoffman said:

The best opportunity might be gained through a teaming agreement with a prime, where the solicitation also encourages and incentivizes such agreements, incorporates the proposed relationship into the contract, and then evaluates conformance e and performance. 

This is great advice. Thank you! 

Correct me if i'm wrong, but when a contracting officer takes a contract, they go down the list of FAR's and omit pieces that are irrelevant to the contract. For example, if a small business is the prime, the FAR that is requiring a sub-contracting plan, is no longer relevant. 

18 hours ago, joel hoffman said:

does a subcontracting plan for an ID/IQ base or task order have to require the contractor to subcontract parts of the work?

That's exactly what I mean by trying to get a "requirement" put in. Right now there is no requirement to submit a sub-contracting plan at the moment, which means there's no real accountability for the prime to subtract work on any task orders. You can't just rely on FAR to back you up, because not every FAR applies to every contract. The agency just has a goal of including X amount of small business on the project, and this specific agency hasn't seemed to really emphasize any importance of hitting it in the past.

16 minutes ago, Matthew Fleharty said:

9 minutes ago, Jamaal Valentine said:

I believe the OP wants small business participation as a RFP technical factor and as a contract requirement --a promise-- that offerors will be held to.

On the dot. This is exactly what we're trying to achieve. I looked into a few of the FAR's posted in this thread, and some that I found. They look useful in putting together an argument for it so hopefully the government will hear us out.

4 minutes ago, joel hoffman said:

But- does a subcontracting plan for an ID/IQ base or task order have to require the contractor to subcontract parts of the work?  Put differently , does the prime have to agree subcontract work on any and all task orders, if it can efficiently or more efficiently self perform all work itself on some types of tasks?    

No, unless it's specifically stated as a "requirement" of the sub-contractor plan 

Because the  pitfall is the "good faith effort" aspect.  As Pepe mentioned, its pretty easy to jump over the hurdle and claim you made a good faith effort, based on very minimal evidence. If it is not a proposed requirement that will be evaluated, than its pretty much a useless condition. But if they are evaluated on it, than there is an actual repercussion for failing to comply, as it's a "requirement" and not a "goal"

That's on my to do list for the day. I think they will be the best resource. The requirement would have to come from the agency's decision to include the % of task orders that are sub-contracted, as a major factor of evaluation on the contract. 

It's a shame really. Well thank you both for clarifying that I really am not going to be able to rely on government if they dont make it a requirement for sub-contractors to be included in a % of sub $ or a % of the task orders. 

With that being said i'm going to have to make my case to the government on why they should change their mind and make this a requirement; something that they seem to POSSIBLY be open to. Using the information everyone here has given me, do you know of any resources I can use to find past examples where a contract has used a small business requirement to enforce sub-contracting on task orders? Any suggestions going forward would be appreciated! 

5 minutes ago, PepeTheFrog said:

negotiate and sign binding teaming agreements that are enforceable under your state law

I live in VA and from what i've looked up, its pretty hard to get anything solid that will be enforceable under our state law as teaming agreements have been ruled out as not being a "contract". Initially we we're going to just move on, but recently government came back and asked small business to submit white papers on how to hold the prime accountable..... flat out, the only way is through making it a requirement. So since they are asking for the feedback we think it's worth giving it to them, and if they don't take it we will likely just move on to the next opportunity. Luckily we're pretty busy so it will give us more resources for our other opportunities. 

15 minutes ago, PepeTheFrog said:

Showing good faith in this context is a very easy bar to clear. The same boilerplate in the subcontracting plan (look on SAM/other databases, attend industry trade shows, solicit in appropriate networks) will be used to determine good faith. Not hard to do. Also, very easy to explain why you didn't meet your goals ("They were goals, for the future, based on assumptions-- things changed"). Finally, consider that this only happens when the contracting officer actually takes the time to hold the prime contractor accountable. Don't hold your breath on that one.

The reality is that it is rare to actually trigger (this type of) liquidated damages. It's an effectively toothless provision.

Exactly, and that's the biggest problem. It almost doesn't seem worth it to spend the time and effort to go for this contract if they won't change to requirements. There isn't any work that the prime will be incapable for doing, it's just a lot of work. But they will more than likely just see that as a good thing, and why spread the wealth when you can have it all. I have only been in industry for a short period of time, but it seem's like this has been a growing problem over the years. 

This is a new IDIQ contract. Right now we have two goals. First off, we recently had an industry day and government released a request for whitepaper asking SB to recommend any incentives or ways to hold the prime accountable to including sub-contractors on task orders. I need to find previous contracts where FAR's were used to justify  why requirements to include small business should be added. The second goal is to decide on teaming partners, but without convincing government to add SB participation as a requirement to the prime, I dont know that it would even be worth our time, as the prime would have no reason to sub-contract out any of the task orders that they can do themselves. 

Also, Matt, I really appreciate highlighting and referencing this FAR. I'm gonna check them all out! 

Joel, I was mentioning the first thing you said. Right now this contract doesn't seem to require the prime to actually assign any task orders with teaming partners on the IDIQ. I guess it would be more accurate to say that they won't sub contract out any of the task order's rather than split "work share".  We are not sole source negotiating. At the moment we are trying to decide if we want to find teaming partners, and the worry is that because the prime isn't being held accountable with a requirement (i'll have to look more into the FAR's everyone sent), that it might not even be worth are time as we might see any actual work. We've seen a lot of that going on with industry. 

Thanks for the recommendation, I'll check it out! 

The difference is that with a requirement, there are actual consequences a prime will see; whether it's not being considered for award, financial penalty, or bad feedback on their past performance scores. With a goal, there's no actual consequence.

How would you recommend working with government to hold the prime accountable on a full and open/unrestricted IDIQ contract, that has a goal, but not a requirement for the prime to include small business/sub-contractors in work share? Do you know of any previous contracts where this situation occurred? Without the government requiring the prime to include work share for sub-contractors, and only goals, it is going to be very difficult to find any prime that is willing to split their work share. Any advice, or examples of previous contracts that held prime's accountable for small business/sub-contractor participation goals would be highly appreciated!