What is the date used for determining whether an offeror is an 8(a) company?  Which, if any, of the Offeers below would be eligible for award under an 8(a) set-aside solicitation?

The situation:

December 27, 2018 a pre-solicitation notice is published on FBO.

January 2, 2019 Offeror #1 exits the 8(a) program

January 10, 2019 the solicitation is published on FBO.

January 20, 2019 the Offeror #2 exits the 8(a) program.

February 20, 2019 responses to the solicitation are due.

March 17, 2019 Offeror #3 exits the 8(a) program.

April 20, 2019 BAFO's are requested.

April 22, 2019 Offeror #4 exits the 8(a) program.

April 27, 2019 BAFO's are submitted.

May 17, 2019 Offeror #5 exits the 8(a) program.

May 20, 2019 award is made.

8 hours ago, joel hoffman said:

See this:https://www.taftlaw.com/news-events/law-bulletins/costs-of-the-government-shutdown

The writer is of the opinion that a shutdown is a sovereign act.  It is his opinion.  I disagree.

9 hours ago, joel hoffman said:

Asked and answered. 

For example: https://www.jdsupra.com/legalnews/a-recent-reminder-of-the-sovereign-acts-87475/

the  CBCA acknowledged that a three day suspension due to government shutdown  was a “sovereign act”.

"... one of the key inquiries is to determine whether the governmental action constitutes a sovereign act, determined by whether the government act is directed at only the contractor or at the public generally. " 

     This is a different test than the one that I think is appropriate.  It does seem to have some weight as the article says this rationale was used in a CBCA ruling.  Getting a ruling body to agree that a different test is appropriate (i.e., the test that I suggested) will be hard to do, even though a different test is appropriate.

     Any thoughts as to how to sway the judge?

Is the current partial Government shutdown a sovereign act?  I suspect the instinctive reaction of most readers is yes, although I am now believing otherwise.

The test for whether an act is a sovereign act is whether or only a sovereign could perform acts in the the same category. 

The current partial shutdown is a reflection of a budget dispute.  Can non-sovereign entities have budget disputes?  Yes, they can, and yes they do, for similar reasons (powerful people with large egos squabble about priorities).

Pick a big corporation.  Apple Corporation, for example.  Could Apple have a budget dispute and shut down part of it's operations pending resolution?  Obviously, yes it could.

Therefore, the current shutdown is not a sovereign act.  Instead it is a management act.  And, the Government should not be able to avoid paying contractors saying the shutdown was a sovereign act.

I seek your advice on overcoming the instinctive reactions that the partial shutdown is a sovereign act.

I seek your comments and advice on how to be kept whole, to be paid for hours that my employees are locked out of their workplaces in Government buildings.

(As you might expect, at the moment the contracting officers and COR's involved are furloughed.)

1 minute ago, Don Mansfield said:

Does the Government need to be open for your employees to work?

Well, they have to be able to get into the building.  If they can get to their desks they probably can find something to do.

Some agencies are probably shutting down.  One of my COR's has talked of furloughing contractor employees who work on Government site.

Assuming the Govt does shut down, I'd like to keep my employees working billable hours, or otherwise recover the money that would be billed for billable hours worked.

Any advice?

On 12/6/2018 at 7:36 AM, bob7947 said:

You can develop the 2 or 3 rules that will answer your question. 

Rule #1 is the Government must win.

On 12/5/2018 at 10:51 PM, joel hoffman said:

Have you been on a source selection evaluation team? 

No.

On 12/5/2018 at 10:24 PM, C Culham said:

 FAR 15.303

Change the FAR.  It's been done before.

Since the SSA can override the evaluations, would it be helpful to submit a question along the lines of what are the selection criteria?

Okay, so why not have just one evaluator, who is the same person as the source selection authority?

Can the source selection authority override the plain judgement of the evaluators?

For oversimplified example, if offerors #1, 2, & 3 are all evaluated as "Good" and #4 is evaluated as "Acceptable" can the SSA override them and say he prefers #4 anyway?

Thanks again, Don.

     When I think of an index, I normally think of the index at the back of a textbook.   Key words and topics are typically indexed.

     When I think of all facts, I include this in my thinking.   Offeror has an internal discussion about the price to offer and decides on how low it can go in negotiations.  That the discussion took place is a fact.  That a decision was made is a fact.  The contents of that decision is a fact.  All are relevant to the evaluation of the offer, and the KO would love to know those facts.

     I'm struggling with indexing those facts.

Thanks Don.  It is a reference table for cost buildups.  Maybe that's a start, but it hardly seems to include "all facts."

i ran across a cost or pricing requirement at FAR 15.408, Table 15-2, Section I Paragraph B and am having a hard time visualizing what that would look like, and what to include and what to exclude. 

Facts come from all over the place.  Accounting reports.  Old text books.  Rules of thumb.  Magazine articles.  Yesterday's lunch.  Databases.  Conversations. 

Can anyone point me to an example and provide explanation?

--------------------------------------------

I made a mess of this post when I was trying to get rid of all the different fonts used.

Bob

So, since the orders do not have wage determinations attached to them, there is no SCA worry?  The wage determinations in the GSA schedule contract do not flow down to the orders?

Yes, now that you've pointed them out, but both neither clearly answers the question.

There exists a BPA under a GSA schedule contract.  The BPA is task order driven, and there are several task orders, each with a base year and some option years.

The BPA does not include any wage determinations, and the task orders do not, either.  The GSA Schedule contract does.

The GSA schedule is refreshed, going from Refresh #30 to Refresh #31.  Refresh #31 incorporates new wage determinations.

When and under what conditions do new wage rates affect the existing task orders?

You can include the increases in costs of fringe benefits caused by the wage determination increase.

For example, if the wage rate went from $19 to $20,  that is a dollar per hour for each hour of vacation to be paid, including the hours already granted but not yet taken.

It increases FICA by 7.65 cents times all of the hours to be paid, including vacation and sick time.

Workers comp is usually a percentage of payroll, so that is cost increase to be included.

FUTA and SUTA are stranger animals.  Include them, but do not be surprised if the Govt takes them out, saying there is no cost increase because the employees exceed the $7000 FUTA base and similar SUTA base.

If medical costs are formulaic tied to payroll (such as 10% of payroll), then yes, the increases can be added.  If they do not increase because of the wage determination change, then sorry, you are out of luck.  But, that may be coming from or limited to your H&W payments, not something in addition to them, so you may have no added medical costs.

And, this is often overlooked, when you compute the amount to add to each hour, consider only the hours to be worked (billed), which won't include vacation and sick time which the employee will take (may take).   If you spread it over 2080 hours, and only work (and bill) 1824, then you won't recover all of your extra costs.

Assuming multiple proposals can be prepared (and it is reasonably likely given that only prices are changing),

The proposal offering 3 CLIN's at $130 each runs the risk of losing on price.

The proposal offering contingent discounts runs the risk of being tossed as non-responsive.

Even if asked, the Govt is unlikely to say in advance what it will do.  And if it did take a stance and publish it, it would expose a competitive idea that we'd prefer not be exposed.

But, look at the Evaluation of Options (JUL 1990 language Joel Hoffman brought up.  ... the Government will evaluate .... by adding to total price for all options. 

So if it is to evaluate the total price for all options, and there are conditional discounts as described, then it appears that Govt would evaluate the option prices using all of CLIN's as if they were exercised,  (e.g. prices of $130 + $100 +$100).  That is unless somebody cries "not in the Government's best interest."  Is it likely somebody would do that?  (It probably matters only if the discounts make the price lower than a competing price.)

(End of provision

On 9/30/2018 at 8:18 AM, C Culham said:

So there is the issue of the CLIN being FAR subpart 4.10 compliant as well as the fact that we are not talking about different quantities of a CLIN we are talking about how an offeror wants to price the CLIN.  The government, at least at this point, wants one price, the offeror wants to offer two prices for the same thing and quantity, contingent upon something happening.

I guess it would look something like this -

CLIN 7,  X Quantity - $130 each

CLIN 8,  X Quantity  - $130 each (To be exercised only if CLIN 7 is not)

CLIN 8A, X Quantity - $100 each (To be exercised only if CLIN 7 is Exercised)

CLIN 9,  X Quantity - $130 (To be exercised only if CLIN 7 is not)

CLIN 9A, X Quantity - $100 each (To be exercised only if CLIN 7 is Exercised)

By the way, again guessing on how the solicitation might be formatted, if a commercial item and FAR 52.212-1 is included in exact wording as found in the FAR multiple offers are encouraged and therefore allowed.

Do you think the CLIN's 8A and 9A, being not in the solicitation, would survive evaluation or be tossed as non-responsive (or non-compliant, or causing a material defect, pick your poison)?

3 hours ago, C Culham said:

You run the risk of your offer/bid being found to have material defect with regard to pricing by adding a condition that is not stipulated in the contract line item schedule.   A conclusion of material defect in a bid for a sealed bid would result in a non-responsive bid.  

Sounds like if you were the Govt buyer, you'd toss the offer as non-compliant (non-responsive).

The Govt is asking for prices for 3 optional CLIN’s, 7, 8, & 9, each for the same thing.

We figure the first of them can be provided for $130, and the other 2 for $100 each.  But the Govt can exercise any of the CLIN’s them or none of them.

If we were to offer a prices like this, would the Govt say it is non-compliant?  Would they evaluate the price as $390 or $330?

CLIN 7,  $130

CLIN 8,  $130, discounted to $100 if CLIN 7 is also exercised.

CLIN 9, $130, discounted to $100 if CLIN 7 is also exercised.

On 9/6/2018 at 10:56 PM, Vern Edwards said:

Surely you understand (but maybe not) that you have not provided enough information for anyone to give you the answer(s) you are looking for. For instance, the answers might depend on whether the procurement was conducted under FAR Subpart 8.4 or Part 13, 14, or 15. The answer might depend of whether all the procurements were conducted by the same agency and same office. However, since you invited us to "suggest" answers, I'm going to do just that. And I'm not being sarcastic.

1. The CO did not receive your questions (for any of a number of reasons).
2. Your questions were late.
3. The CO did not understand your questions.
4. The CO thought your questions were stupid, impertinent, or reflected profound cluelessness.
5. The CO already has enough competition to meet legal requirements and didn't want to be bothered with you.
6. The CO knows who you are and dislikes you or your company based on past experience with you. Maybe hates you.
7. You are thought to be a gadfly and considered to be something of a nut and a pest.
8. Some combination of the above or some reason I didn't think of.

Frankly, I take your "questions" to be more of an expression of your irritation or your hope for sympathy than a genuine quest for information.

Tell us, did you call the CO(s) who didn't answer your questions and ask them why they didn't answer?

As you might have guessed, this is a current RFQ.  And now a mod has been issued that addressed my questions.  They were not answered earlier when the Q&A were published, but it is easy to see that the mod was put together at least in part because of my questions.  (Maybe others asked the same questions, too.)

4 hours ago, jwomack said:

Looking at your 2 questions as a whole, it appears you couldn’t fully extract what the solicitation was asking for.  A non-response from the Government would indicate to me that a sufficient number of other prospective contractors didn’t have that same problem.

     Perhaps.  But, that is part of the point of asking questions, to gain an understanding of what one does not now understand.

2 hours ago, ji20874 said:

I'm wondering -- in your cited example, were your questions apparently ignored (absent "when the Q&A were published"), or did you actually get "a 'no response' response" to each of them?  

      The questions were ignored.

Over the last year or so I've experienced several occasions when I submitted questions in response to an RFQ, only to have those questions not answered when the Q&A were published.  I'm wondering why.

Most recently my questions were part of package of questions consolidating the questions from people working on the response.  Some of the questions were answered when the Q&A were published, but mine were not.

Can anyone suggest reasons why this would be?

To help, I'm putting edited versions of the two questions that I asked below.  Is there something about these questions that would trigger a "no response" response?

1)      The pricing spreadsheet asks for proposed hours.  We do not see any basis for estimating any number of hours.  What is the basis that we should use for estimating hours?

2)      On page xx of the RFQ, it is stated “The quote shall include the proposed mix of labor (by category) including the proposed fully burdened rate for each labor category for each year of the 5-year period of performance.”  What is the mix that you will evaluate against?  What do you consider to be the ideal mix?