General.Zhukov

The major risks that come to my mind are more IT than contracting in nature.

Will your computers even work? If you project needs access to a GVT network or IT resource, I would double check whether CFE computer can get that access.  In my org, no CFE laptops allowed.  

The same concern for data.  Do you need GVT-provided data? (Avoid hearing this: "you want us to export to you our database of confidential reports full of PII so you can test with real data?  lol, no.")  Check with CO first. 

Software costs.  If you intend to purchase any type of software, this is a separate cost element than the hardware. Check with CO first.  IT departments frown upon contractors purchasing, and then invoicing for, software already in the GVT inventory.   Or buying Tesla-grade software, when Hyundai-grade suffices.   Also, if software is non-trivial in cost and/or valuable for whatever reason, who owns and takes possession of the stuff at end of contract?  As CO, if I am paying for the software (or hardware), the GVT will own it outright.

20 hours ago, CHILINVLN said:

What potential risks are we looking at by developing on our equipment vs GFE?  I'd really appreciate some insight into this as I would like to ask the right questions and raise the right concerns.

This is actually covered by one of the little known contractor commandments.

Thou shalt get permission in writing from the Contracting Officer, not the COR or a PM or anyone else, when deviating from the contract.

This is a type of usage-based contract, which is a thing I do.  I am writing this relatively lengthy example here, but will use it outside of Wifcon.  

Background

Contract is for a new call center.  Pricing is $1/call - or some FFP measure of actual usage.  We expect to get somewhere between 3,000 - 36,000 calls over a year, with point estimate of 12,000.  Call volume may fluctuate a lot from month to month.  The funding office is unwilling to obligate $12,000 (let alone $36,000), wait a year, and maybe get some back. You want to avoid this call: "Oh no, the ceiling will be hit in a few days, we missed that email, and we must get additional quantity immediately.  No, we don't yet have the funds, but please start exercising the option now, we promise we'll get you the money before the lights turn off."  

Plan for periodic reconciliation and modification of contract to account for uncertain usage/demand

Contract has a pre-planned agreed-to schedule of periodic bilat modifications, to account for actual usage and changes to expected future usage. Set up these periodic reviews like options, even though they aren't options.  So they have dates, and quantities, and the rest.  Otherwise, it gets confusing.  Start with low end of usage estimate, since its easier to increase quantity and $ over time.

Line Items

1) Licenses.  [Quantity 3,000] [Call]  [$1]  [$3,000 FFP]  This is enough licenses for 3,000 calls.  Covers low end of usage estimate.   Only obligates $3,000 at time of award.

2) Option 2nd Quarter.  Q 3,000 

3) Option 3rd Quarter.  Q 3,000 

4) Option 4th Quarter.  Q 3,000 

5) Option Reserve.  Q 24,000 

Optional line 2-4 are for additional quantity, and are planned to be 'exercised' quarterly.  These aren't options, but set up as-if they were.

Option line 5 is for an additional 24,000 calls, a sort of strategic reserve in event that demand is high, and so that the contract incl. options total value = $36,000.

Quarterly Reconciliation based on Usage

Each quarter, actual usage of current period and forecast usage next period are reconciled to produce a Net Quantity.   The Q on the 'option' for that quarter is changed from 3,000 to this Net Quantity, which may be more than or less than 3,000.  Then the option is 'exercised' via bilat mod.  Net Quantity calculated like this:    

• Net Quantity = [3,000] - [Unused $ from prior quarter, which roll forward] + [forecast increase in demand over and above 3,000/period]
• If Net Quantity > 3,000, then the excess quantity is deducted from CLIN 5 so total contract value does not exceed $36,000.
• Net Quantity should not be less than zero, except at end of PoP maybe.

Annual Reconciliation

At end of the year long PoP, the government very likely will have paid for un-used services that will expire (if the call center is considered a severable service, and the funds are annual, and no trickery).   For example, the GVT paid for total of 13,500 calls, but on December 31, has only gotten 13,100.  So $400 over. If the contract has another PoP, the contractor 'credits' the GVT at the start of the next PoP (which is common, if not necessarily compliant with federal regs), so at the start of the new PoP the GVT pays $2,600 but gets 3,000.  Otherwise, deob.

On 2/22/2021 at 8:07 AM, Guardian said:

may we do a firm down-select (elimination of quotations) prior to phase 2 without first evaluating price in phase 1? 

I highly encourage you to look up the "Advisory Down Select" method, from DHS PIL.   

Typically, the low rated offerors are eliminated via the down-select, and are ineligible for phase two.  Instead, using an advisory down-select, low rated offerors remain eligible for phase two.  Instead of being eliminated, they are advised that they are unlikely to win the contract should they decide to proceed to phase two.  But they can proceed if they want to. 

Encouraging voluntary withdrawal of low-quality proposals, rather than tossing them out yourself, may solve your problem, and is (imo) a brilliant idea. 

Its fair, relatively easy to do, eliminates the grounds for a lot of pre-award protest,  simplifies the SS, and saves the offerors time and money.  Wins all around.

23 hours ago, ji20874 said:

But if the Government is dictating the hours, well, that isn't a LH construct -- maybe each hour can be FFP and we can order however many hours we want.

Interesting, never read this difference b/w FFP & LH, -  who determines the hours - but it makes sense.  

On 2/21/2021 at 11:04 PM, Vern Edwards said:

promoted to Marshal?

"Field Marshall of the Soviet Union Zhukov" seems a little pompous.  

1 hour ago, DCDOD2020 said:

Continuing my example, if week 2 the 10 contractor's worked 4 hours a day for 7 days, that comes out to 280 hours and they would then invoice for 280 hours. But under FFP, if I understand you correctly, it wouldn't matter how many hours per se, because they will get the FFP value of the contract based, assuming they perform to the terms of the contract. 

True.  With a few caveats 

For a new call center, my guess is straight FFP is not appropriate,  I'd guess there is unknown and/or unpredictable call volume, or whatever, aka you cannot accurately estimate anticipated costs with any degree of confidence.

A call center is very much a 'commercial item,' so I would suggest follow commercial pricing practices to the extent possible.   Which, I would guess from what you wrote, is LH. If it is, and all is well with FAR 12.207, and you get approval to do it that way, by all means, do it that way. 

If its Call Centers As a Service (PSC DC10 & DC01) it probably uses typical 'As A Service' pricing - which is pay-for-usage.  Which is often T&M.  Or if-necessary to comply with some mandate to used firm fixed price,  some complicated pricing monster that is legally FFP, but sorta works for cloud services, and makes everyone unhappy (one of my specialties).

The real experts may weigh-in here, and I pre-emptively defer to them.

46 minutes ago, DCDOD2020 said:

Thus, I think FFP, whereby the contractor invoices based on the number of actual hours worked is the most sensical approach. In simplistic terms, if 10 contractor's work 5 hours a day for 7 days" then they'd invoice for 350 hours for that period.

What you describe here is, in effect, Labor Hour.  If it were actually FFP, the number of actual hours worked would be irrelevant. FFP = Do job, get paid agreed to sum in full,  whether it takes 5 hours or 20 hours.

My understanding is FFP LOE is only for R&D, so no.

Most of the contractors I have dealt with love Level of Effort and Labor Hour because it has minimal risk for them.   Government pays for the input, not the output.  Easy to plan and/or max out revenue.  If you ever have a conference call with a contractor, and like 5 extra contractors are on the phone contributing nothing, they've got quotas to meet for their billable hours.   That said, I have used LH a lot, and opinions of competent and honest people will differ on what, exactly, is a " reasonable degree of confidence."  Comes down to trust, relationships, and negotiating prowess.  

From what you've written, it reads like a pretty clear-cut case for FFP.

Federal contracting, like many professions, starts off with a common basis, and quickly branches into specialization.   The certification process Levels I, II, III are very general, and don't account for specialization (aka, 'reality'), and therefore I don't think they are particularly useful. 

There are other better ways of quantifying levels and types of expertise and experience.  Don Mansfield's take ('performance based certs') is a good one.  I also find inspiration in software/IT world, where there are many types of certs across domains and expertise.  Some IT certs are niche, some are broad.  Some are basically evidence of 'I am not a total idiot' while others are really, really difficult, prestigious, and valuable ( check out 'AWS Certified Solutions Architect').

Probably yes.  My first thought is that this type of set up would be quite simple to do with a BPA.  

There are probably creative ways to do this with an order, maybe, if all the stars in in alignment.  However, I wouldn't do it, I'm aggressive, but not that aggressive.

2 hours ago, Retreadfed said:

Would this be a revision to the task order proposal?  If so, what authorizes such a revision?

I am genuinely curious about the answer to this question. There is a good presentation about unavailable key personnel here.  However, its grounded in FAR 15 and  relies on the concept of 'discussions.'  Under other, less rigorous procedures (say, 16.5 or 8.4) or in the case where the RFP did not have an explicit prohibition on late proposal modifications, I wonder discretion the CO would have to respond to a change in KP.

For example of something that would not fly under FAR 15 ( I think) -  Say we've done the technical evaluation considering KP.  Then GVT receives notice of change to KP.   Could the GVT then determine the two KP are equivalent and let the evaluation stand as is?  Perhaps allow for a revision to the proposal to update KP, without notifying or undertaking further negotiations with any other offerors?    

2 hours ago, Tzarina of Compliance said:

 Question:  1) Does the offeror notify the Agency and propose new Key Personnel person of equal qualifications at this point?  2) Do they wait for the award?  3) If they notify the agency now, does the Agency have to open discussions in order to allow substitution even though this is FAR 16 procurement and no competitive range is established?  4) What do you recommend the offeror do in this case?

1) With the usual caveats (do what the solicitation says, depends on the details of the specific case, etc.) - Yes, they definitely should notify and probably have to notify.   Change to key personnel would (might) be a material change to the proposal.  An evaluation and award, conducted when the winning proposal did not reflect a known material change, can be successfully protested. See Greenleaf B-293105.18. https://www.gao.gov/decisions/bidpro/29310518.pdf

2) What the solicitation states is important, and so forth.  But generally yeah, the Agency has to allow the substitution if notified and update their source selection process (like the evaluation part that covered KP) accordingly.   However, I could see circumstance where the CO could legitimately toss out the proposal, or allow everyone to update proposals.  The fact that proposals were submitted 10 months ago suggests the Agency should accommodate changes...but who knows. 

3) If I am the offeror, I tell them of the change and the circumstance around it.  I'd then look carefully at the proposal and figure out what has to change along with that KP (maybe nothing, maybe a lot of stuff).  I ask the CO if I can submit a revised proposal reflecting the change in KP and any other resulting changes to the proposal (maybe that KP's labor rate or LOE changes, and so all the pricing data needs to be updated).  If CO allows it, then I'd ask for any specific instructions about revising the proposal and check those instructions to make sure I can change everything I need to change.  

If I were the CO, and I find out about the KP post-award, I would be at the minimum be annoyed about it and would suspect I did not get notification for some nefarious reason.    

On 1/21/2020 at 4:03 PM, Daniel.Fox said:

Posted a SAT solicitation for 30 days on GSA's eBuy for a commercial item.   In the end, I only received one quote from a qualified vendor.   Am I required to re-post the solicitation, perhaps outside of GSA eBuy where more vendors might offer the service, given the limited response?   If I move forward with this vendor, is it considered sole source and does it require sole source justification?  

Thank you.  

Here is what my office typically does in this common scenario.

Re-Post: No, but you can if you want to.

Sole Source: No.

Negotiate: Depends.

Probably do have to type up a brief written determination explaining why this isn't a de facto sole source.  Its in FAR 8.405-1/2/3. Like brief - a paragraph is usually sufficient.

2 hours ago, contractor100 said:

1 Should company respond?

2 Will the CO take the company's eligibility and interest in the work into account when deciding whether to set the contract aside?

Probably yes to both.  One of the things CO's look for in an RFI are what sources are available and where.  I have personally been persuaded to switch acquisiiton vehicles due to feedback, including RFI responses.  Like a reallly outstanding company tells us they are not on X (say GSA's FSS) but are on Y (say NITAAC) that will weigh in my decision about switching from X to Y. 

I couldn't find any more useful protest info about it.  

Seems a bid protest contributed to the CDC’s national stockpile of ventilators failing.  https://www.nytimes.com/2020/04/01/us/politics/coronavirus-ventilators.html

In fact, the contract with a company that was maintaining the machines expired at the end of last summer, and a contract protest delayed handing the job to Agiliti, a Minneapolis-based provider of medical equipment services and maintenance. Agiliti was not given the $38 million task until late January, when the scope of the global coronavirus crisis was first becoming clear.

It is not known whether problems with the ventilators predated the contract lapse, but maintenance of the machines did halt. That delay may become a potentially deadly lapse.

“We were given a stop-work order before we’d even started,” said Tom Leonard, the chief executive of Agiliti, which had won the contract to service the ventilators in the stockpile. “Between the time of the original and the time of this contract award, I don’t know who was responsible or if anybody was responsible for those devices. But it was not us.”

This is the protested contract solicitation or contract LTV1200-75A50119R00041 https://fbo.gov.surf/FBO/Solicitation/LTV1200-75A50119R00041

This is the new contract 75A50120C00005 https://govtribe.com/award/federal-contract-award/definitive-contract-75a50119c00070

Thoughts?

Personnel/SETA contracts aren't my thing, I mostly do IT services.  But I feel your pain.  The problem of evaluating people who may or may not actually do the work is a very common problem.  The general solution is to not evaluate people, evaluate the firm, because that is who you are going to hire.  And for firms, the best thing to evaluate is - surprising absolutely nobody on wifcon - Past Performance.

The larger the project, the more true this is.  If I were evaluating say a three-person consulting team, I definitely would evaluate those three individuals.  If it were a 50+ person team, I would not evaluate that stack of resumes.

Here is some guides/examples of typical IT services solicitations that may serve as inspiration for your sections L &M: 

https://aida.mitre.org/agile/agile-rfp/

 https://resources.sei.cmu.edu/asset_files/specialreport/2016_003_001_484063.pdf

https://hallways.cap.gsa.gov/app/#/doclib?document=5144

21 hours ago, general_correspondence said:

If you're in good health, it wouldn't be a bad thing to contract this virus.

Yes, it would be bad to get it.

• Those Who Recover From Coronavirus Can Be Left With Reduced Lung. People who recover after being infected with the novel coronavirus can still be left with substantially weakened lung capacity, with some left gasping for air when walking quickly, doctors in Hong Kong have found.
• If you are in good health, you can still die.

21 hours ago, ContractGuy said:

10 year IDIQ; 3 year base period, 3 year option period, 4 year option period

You have a 'Long-Term Contract' which means the company does not have to re-represent for a few years.  As I understand it, until they do re-represent, you carry on treating them like a small business for the purposes of ordering and reporting.  No my area of expertise though.

8 minutes ago, Guardian said:

Given that we do not know how many offerors will submit responses to Phase One, might there be a better approach than immediate comparative analysis to incorporate into the downselect phase, Phase One?

Probably yes.  Phase One's purpose is to quickly screen for proposals that are worth evaluating in more detail during Phase Two.   So what we are looking for are:

• - Criteria that are pretty good at indicating high-value
• - Criteria that is relatively easy to evaluate - objective, minimal interpretation needed, this usually means quantitative data.
• - Proposal information that is relatively low-cost for offerors.
• Avoiding FAR 15 procedures, or the appearance of using FAR 15 procedures.

Pretty Good Screening Criteria I Have Actually Used At Least Once, And Did Not Regret Using

• Samples.   I had a requirement that involved, basically, scrubbing and QCing some messy and complicated data.   Our scientists made some fake data, with some subtle errors in it.  An evaluation factor was 'analyze this fake data and tell us what you found.'  If they don't find the errors - Fail.  If they find the errors - Meh.  If they find the errors and explain them - Good.   This took less than 10 minutes to evaluate per proposal.  Everyone involved (Program personnel and Offerors) liked it.

• Quasi-Past-Performance.  Criteria about offeror's experience and performance on similar work, but not FAR 15 Past Performance exactly.  PIL has something about this. 

• Offerors have some essential credentials, warrants, licenses, etc.  CMMI Level II.  FedRAMP.  SCIF.  Has appropriate State licenses, etc.  Pretty close to responsibility determination though, so be careful.

• Challenge Questions / Short Q&As.  Offeror's give brief (like really brief - 1/2 page,  a few slides, 10 min. presentation) pitches for how the offeror proposes to do the work.  This is much more subjective, but if done right, this can be very productive.  In my area, IT, we would probably ask about proposed architecture, platforms, software development methodology, etc.  Often our technical folks will immediately know they do or do not like a particular approach based on these answers. 

• Summary "Technical Approach."Give us the short version.  1 page.

• Key Personnel.  Sometimes in my area (IT), at the end of the day we are buying smart people that can code.  The rest is window dressing.  You may consider just asking for KP info at first.  But be careful about this approach, it has some serious down-sides and, generally,and is appropriate only for select circumstances (small & highly technical).

I love the fact that a comparative evaluation used in phase one of a multi-phase source selection has serious mathematics hiding just below the surface. 

Bottom Line: Don't try comparative evaluations if you expect to get a lot of proposals.  Its a much more challenging math problem that it may first appear.  

Its a special case of what I think its called a comparison sorting algorithm (note: I like math, but am no mathematician) that is known in math and computer science.   When the numbers are low, just basic math required to figure out the number of comparisons necessary.  But as the number increases, this problem gets exponentially more difficult.  Quickly goes from intuitive to computationally hard to God-level AI needed.

2 hours ago, Jacques said:

'm not sure I'm following this.  Can you expand on when this would be?

Ah, you are correct.  I was thinking of a new TO issued against something like an agency IDIQ, which for small $ isn't protestable; while an out of scope mod would be. This is not an area I am very familiar with.  My mistake.

The general point was that an otherwise inexplicable method of procurement sometimes makes sense if understood as a method of avoiding a protest-happy contractor.

16 hours ago, ji20874 said:

Or, why not issue a new contract to the favored firm instead of modifying an old but still alive task order?  That's my first recommendation for your out-of-scope and beyond-the-contract-maximum new work.  You could have had the new contract awarded by now.

There are strategic reasons. 

People: That's the only contract available for that particular contractor.

Time: A bilateral mod on an existing TO may take a few days, while a new TO might have a lead time of months.

Avoiding protest / legal strategy.  In some situations,  an out-of-scope mod to a TO (or other type of contract action) can't be protested, but a new contract/order could be.  If you are in a contentious litigation with a company who has declared their intent to expand their protest further (possibly to pressure the Government to take corrective action rather than wait for a decision), then this may be a good idea.  Particularly if the stop-work(s) is (are) becoming very painful.  

4 hours ago, Retreadfed said:

What is your rationale for saying this?  Why would such an order be legally binding if there is no clause in the contract authorizing you to issue such an order?

I don't have a real rationale, nor argument.  I can terminate a commercial contract unilaterally, which is far more drastic a measure than a stop-work, but conceptually very similar, so if I can take a full-measure, why not a half-measure?  Again, not going to argue this point.  This is kinda sorta like the rationale in  Robert A. & Sandra B. Moura, PSBCA 3460, 96-1 BCA ¶ 27,956:

Excellent feedback, thank you all.  Much appreciated.  I take the point that the clauses in the contract, not the FAR, is what's binding.  

In my particular case, a contractor is performing work under a commercial services contract.  By all accounts, doing a very good job.  However, there are several major issues with the contract.  One being we (GVT) are considering terminating it due to change in our business strategy, but haven't yet made that decision. .  Second, the contractor seems to have been receiving interim payments, not delivery payments as intended.  And at this point has been paid in full, but the work is incomplete.  Given these circumstances, the grown-ups have decided we are in a hole, and need to stop digging immediately.  I feel like there is some basis for issuing a stop work in this case, although I cannot find on in the texts.

What's going on with stop-work orders for commercial contracts that do not have 52.242-15?  

FAR 52.212-4 & -5 do not appear to have anything allowing issuance of unilateral stop-work orders.  Does that matter?   My intuition is that it doesn't, I can go ahead and issue a unilateral stop-work order for any commercial contract and that stop work order will be legally binding.

FAR 42.1303 Stop-work orders -  this part of the FAR indicates to me I can issue a stop work for a commercial contract, regardless of clauses, so long as the contract meets those weird critieria.

Why does FAR 42.1303 have these weird, seemingly arbitrary criteria?  Implying no stop work order for simplified,  sealed bid, 16.5 orders, incentive contracts, time & material, etc.  This makes no sense to me. 

• negotiated fixed-price or cost-reimbursement supply, research and development, or service contract  

Why doesn't the FAR say the government can issue a stop work order, always - the end?

Validating stuff from external sources - (SAM.GOV).

Compliance reviews

Organizing, preparing contract file & documentation.

Routine correspondence.

Automating contract writing - checking boxes, adding boilerplate T&C, etc.

Acquisition planning - esp. filling out technical documents or forms.

All the back-office purchase card stuff.