TechnicallyAcceptable

Good day,

Scenario:

You have identified a company that is needed to perform important services and are the only ones capable, of providing there services. You utilize FAR Subpart 16.5 procedures to issue a task order under a major IDIQ and prepare justification for award. In the course of business you find out the vendor is also an 8(a), are you eligible to take credit for the 8(a) action without having done a separate offer-acceptance with SBA?

6 hours ago, Vern Edwards said:

Here's what the GAO said on August 6, 2021, in MAXIMUM Federal Services, Inc., B-419487.2, 

They've said that or something like it in more than 250 decisions going back to 1986.

See also Bodell Construction Company, B-419213, December 28, 2020:

They've said that or something like it in more than 35 decisions going back to 1980.

I'll add that contracting officers should not conduct anything called "discussions" in FAR Subpart 8.4 acquisitions.

Thank you kindly for the reference material. Can you tell me what exchanges would be appropriate in a FAR Subpart 8.4 procurement when there are competitive quote for a service procurement where a tradeoff is being conducted and significant weaknesses or deficiencies are identified with one or more quoters?

Good day,

Purpose: I am soliciting feedback on the following scenario for the purpose of understanding better how discussions held in a FAR Part 8 setting work and if the below scenario passes your sniff test as experienced 1102's.

Scenario: a significant weakness or deficiency is identified in a quoter's submission in an FSS order (FAR 8.4). Past Performance was not an evaluation factor in the RFQ. To address this issue the Contracting Officer decides to enter discussions to allow the vendor opportunity to be eligible for award. Contracting Officer looks to the procedures laid out in FAR 15.306(d) for guidance on how to fairly conduct the discussions as FAR 8 is silent on the matter. The Contracting Officer understands FAR 8.404(a)'s principle regarding FAR 15 but in light of the need for discussions decides to use it for guidance.

Contracting Officer reads the following in FAR 15.306(d):
 

Quote

At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award. However, the contracting officer is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of contracting officer judgment.

The Contracting Officer sends out discussion letters addressing only the required elements (deficiencies and significant weaknesses) without addressing regular weaknesses. 

Question: Does the Contracting Officer's act of not addressing weaknesses with any quoter constitute a problem/issue? 

3 hours ago, Dominicke Ybarra said:

On that point why would the Government have to award the "Bridge" contract to the incumbent?  Couldn't the Government as easy conclude only the successful awardee of the contract under protest as the Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements?  Surely the GAO automatic stay of performance doesn't extend to the "Bridge" contract.  If it did we wouldn't have so many of those "Bridge" contracts awarded.  Without the almost guaranteed "Bridge" contract the incumbent incentive to protest would be erased.

Basically, there is no need for a new clause. Only a shift in thinking of how to approach the problem of incumbent incentive to protest.  If the incumbent knows they will get a "Bridge" contract for protesting then they will protest.  If the Government removed the incentive of awarding "Bridge" contracts to incumbents and instead awarded the "Bridge" contracts to the successful awardee of the contract under protest, then the incentive will have been successfully removed.  Perhaps a step to far is stop awarding "Bridge" contracts altogether.  However, it would be just as effective.

RE: Dominicke Ybarra

Great insight, thank you for sharing this.

What about clearance processing times for the new contractor employees? Does your agency have a clearance requirement for new contractor employees? It takes us upwards of 60-90 days during good times to clear personnel in which case the "Bridge" contract would almost expire.

What do you think? How have you overcome this in the past?

Good afternoon,

I'm curious to know if anyone on the forum has any further insight on this Washington Post article from 1984 about "excess profit" on a Firm-Fixed Price contract between the U.S. Air Force and Lockheed Martin Corporation?
 

I have heard the outcome was that LMC had to negotiate a lower profit margin or something to that effect, and the it may have ended up at the CoFC, but have not found anything to support that claim.

Also for reference it appears this contract (or contracts) was pre-FAR, as FAR was effective April 1, 1984. 

Thank you.

Narrative:

Have you noticed that on larger contracts there appears to be strong profit incentive for an incumbent to protest? For example: the profit made during a 100-day stay of performance with GAO far outweighs the cost filing and preparing a protest. Light research suggests the average cost to protest utilizing outside counsel is between $15K – $70K, depending on the complexity of the acquisition, and if there is prolonged back-and-forth. The profit generated during a 100-day stay of performance on a larger contract would be many times more than the litigation/legal fees. Even if the protesting incumbent loses their case, they may still receive tremendous benefit from the stay of performance. Assuming that many corporate decision-makers have come to the same conclusion, and they do not have a strong ethical objection to doing so, there appears to be a substantial profit incentive to protest.  

While no quantitative analysis of ratios has been performed, from personal observation it is almost a guarantee that the incumbent will protest on a contract recompete if they are not the awardee when over $100M TCV.

Hypothesis:

If the automatic profit incentive to protest for an incumbent is removed, incumbent protest rates will decrease, as frivolous questionable arguments will not be brought forth as often. 

Proposed solution:

Create a clause that effectively changes the contract type when the incumbent protests to something akin to a cost-type contract (understanding that this occurs in commercial contracts as well), with fee  known and controlled. The incumbent does not receive payment of fee until after the protest is resolved.

1.       If the protest is upheld, or the agency takes corrective action, the protesting incumbent receives the fee + cost was reimbursed throughout performance.

OR

2.       If the protest is denied, the protesting incumbent receives no fee. Only cost will be reimbursed (throughout performance).

What do you think? Way off?

6 minutes ago, Confused1102 said:

C Culham; I read the sentence as 1) through another Government agency or 2) from a specific source. So it doesn't change my thinking.

ji20874; who says an EDWOSB isn't a specific source? Do you have a definition for the term?

Do you read FAR 8.004 -- "When satisfying requirements from non-mandatory sources, see 7.105(b) and part 19 regarding consideration of small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business (including 8(a) participants), and women-owned small business concerns."  -- to say that EDWOSB could be considered a source, just not a mandatory source?