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Everything posted by General.Zhukov

  1. LOL, no. FAR 33.104 - Procedures for protests to GAO are found at 4 CFR Part 21 (GAO Bid Protest Regulations). In the event guidance concerning GAO procedure in this section conflicts with 4 CFR Part 21, 4 CFR Part 21 governs. FAR 16.505 - ii) Protests of orders in excess of the thresholds stated in 16.505(a)(10(i)(B) may only be filed with the Government Accountability Office, in accordance with the procedures at 33.104. The Contracting Officer has no authority here. If I am wrong, and a CO can make exemptions to other regulations, please let me know so I can have offerors start waiving their SBA-mandated right to protest small business representation. It will make my life easier. Please, please, please protest this - to GAO. I would be genuinely delighted to read GAO's bid protest decision about whether an agency can require offerors to waive their right to a GAO bid protest.
  2. My guess is that under the new BPA, the CO is using some severely restrictive interpretation of 'as-needed' (or perhaps what counts as a ''bona fide need'). The CO has decided that buying toner on a FFP basis isn't legit unless its needed right now - the toner in use today is running low. Once this happens - and the program office needs the toner imminently - then the program gets the green light to buy more, but has to go through a lengthy contracting process to issue a call for that toner. I speculate that toner's 'lengthy contracting process' probably has a very long lead time (likely 30 days or 60 days), and there no expedited contracting process due to agency policy or culture. I further speculate the CO thinks that other than the lower toner warning, it's not possible at the time of placing the order to accurately estimate anticipated need with any reasonable degree of confidence. Therefore the only way to buy more than one toner at a time is via T&M. (FAR 12.207). An additional reason to switch to T&M is that a T&M order would effectively replicate the previous BPA's 'draw down' method in practice. Program office no longer needs to buy toner only at the instant it is needed, but can issue a T&M order for its annual estimated usage of toner. Once the order is awarded and money obligated, the program office then can directly get the toner from the vendor whenever needed without having to go through contracting (up to the T&M ceiling). Disclosure: I am fully aware this is a wasteful and dumb way to do things, but it fits the facts and my intuitions about how some CO's think.
  3. Yeah, this clause, which I've used at least a hundred times, sucks, now that I am reading it carefully. Here is better....you listening FAR Council? Option to Extend the Period of Performance (Jul 2019) (a) The Government may extend the period of performance of this contract through the unilateral exercise of options under this clause, if two conditions are met: 1) The Government gives to the Contractor notice that the option has been exercised at least 5 days before the contract expires, and 2) The Government gives to the Contractor preliminary written notice its intent at least 60 days before the contract expires. (b) If these two conditions are not met, the option may be exercised only through a bilateral contract modification (supplemental agreement). (c) The total period of performance of this contract, including all extensions, shall not exceed 60 months.
  4. 1) Probably not. I know that in practice, in the civilian agencies I am familiar with, the CO rarely sends out these preliminary notices. A Contract Specialist or Admin usually sends the notice on behalf of the CO. These folks might have some delegated CO authority or something though. But it is 'intent'- its not binding. 2) No, I don't think so. I interpret that sentence as meaning 5 days is the minimum period between receipt of the option exercise and when the contractor is responsible for work (under the extended term). I consider the 'within 5 days' statement a way of preventing this: The CO sends an option exercise at 11:58 PM the day the contract expires, and expects the contractors to show up at 8 AM the next day. Could be wrong though. 3) I think the intent of this sentence is to (indirectly) confirm that the clause can be used repeatedly to extend the term (up to the limit of para c). The alternative would be an interpretation of the clause where the term can be extended only one time.
  5. Need more info. Without knowing the specifics, I can offer my really basic two-part test for approximating an answer to "can we tell them?" Part one: Does telling them violate any regulations, laws, policies, guidance, etc? Part two: Should you tell them - is telling them to our benefit? Its pretty unlikely that you are prohibited from telling them the number of hours. So its probably a question of should you tell them.
  6. 1) Inspection is, at least, closely associated with inherently governmental functions. From FAR 7.503's list of what is inherently governmental v) Administering contracts (including ... accepting or rejecting contractor products or services)
  7. On your first point: Less effort for same result. In my agency and in my field (IT Services), options need perhaps 1/20 the effort of a new Call. I may need two months to complete a new Call, while I can do an option exercise in a day or two. Thus, we tend load Calls with options whenever we can.
  8. I know this one because I do mostly IT services, which sometimes has a mix of exempt and non-exempt labor, and I primarily issue my It services as orders against IDIQ/IDC/GWACs. So this issue come up. Summary: In the IDIQ/IDC contracts I am familiar with, the SCA (I also use SCLS) determination at the order level is independent from whether the IDIQ/IDC is covered by the SCA. IDIQ has SCA clauses, but orders may be exempt from the SCA - GSA's Schedule contracts. IDIQ does NOT have SCA clauses, but orders may still be subject to the SCA - GSA's GWACs (8(a) STARS II, Alliant, VETS2). In both cases, the ordering contracting officer affirmatively determines that this particular group of clauses is an exception to the usually flowdown per 52.216-18. In the case of Schedule contracts (that have the SCA in them), the OCO is affirmatively determining the order is exempt. In the case of the GWACs, the OCO is affirmately determining the order is NOT exempt, despite the base IDIQ having no mention of FAR 22.10 or its clauses. In the case of an IDIQ that does have the SCA language, but also has functional areas that are obviously exempt from the SCA (like OCONUS), I would probably limit making a determination to edge-case orders, where its unclear if the SCA applies or not. An order that is entirely OCONUS services needn't bother with an SCLS exemption. On the flip side, an order that is self-evidently covered by the SCLS - janitorial services - shouldn't have to include the clauses since the SCLS is definitely flowing down from the IDIQ to the order.
  9. My two cents Short Version: a lot of analysis is lost in the overwhelming amount of contracting paperwork, documentation and procedures. There is so much that you must do, you skip the stuff you should be doing. Long Version: In my Department (HHS) a written AP is required for anything over the SAP (HHSAR 307.something), and the AP must follow FAR 7.105. The HHS Acquisition Plan template has about 70 data fields to fill-in, for thousands of contract actions per year. So a purchase of $400,000 of live mice has an AP that, in theory, considers Section 508. A $400,000 purchase of commercial software has an AP that, in theory, considers subcontracting competition. In practice, this stringent Acquisition Plan documentation requirement effectively negates Acquisition Planning. If you are writing, or reading, or approving dozens (or hundreds) of Acquisition Plans per year, you are not giving them much attention or thought. People tend to thoughtlessly skim past the actual strategic planning & analysis parts of Acquisition Planning - such as lease vs. buy for heavy machinery - along with junk parts of the Acquisition Plan. In an organization with this type of process, you can figure out how many simple business/acquisition analysis are overlooked.
  10. A cautious response would state we can't possibly know the answer here without a lot more detail, a careful review of the contract itself, the administrative record, etc...however, when moonlighting as an anonymous internet poster with no stakes in any of this, I won't be cautious.... Defective specifications are a type of constructive change for which the Government is liable and the contractor entitled to some type of recovery (like an equitable adjustment). I doubt that any term or condition like 'concurrent delay provision' somehow prohibits contractor recovery in event of constructive change. What's more, there seems to be nothing concurrent about this delay. As described, only one party has hindered or delayed performance - its 100% due to the Government - so the provision doesn't apply. Therefore does not trump. That's my 5 minute, shady-tree-contract-lawyer answer. More helpfully, I'd recommend a careful reading of Contract Attorney's Deskbook, Volume 2, Chapter 21 - Contract Changes.
  11. Example June - Issue order #1 for 1,000 term software licenses from SEWP. Period of Performance of one year ending July 31, 2020. Licenses $1/Month so $12,000 FFP. Order has clause 52.217-6/7 for, say, up to 500 additional licenses. All additional licenses co-term on July 31, 2020 and licenses cost is pro-rated per month. July - Hey, we forgot about the American Samoa field office, we need another 50 licenses starting August 1st. Issue modification to order #1, adding 50 licenses for $550. (50 licenses x $1/month x 11 months) Now you have only one order, #1, even though you've purchased the licenses two times. June of Next Year - Issue order #2 for 1,050 term licenses from SEWP. There are better ways to buy software, but if your agency is like mine and tries to use notionally competitive FFP GWAC orders for all IT, then I've found this method to be beneficial. 1) Easier and faster to do an option than a new order. 2) Easier to track and administrate if all the software is on one contract vehicle.
  12. Not if you are exercising options for additional quantity instead of issuing multiple DO's.
  13. Most (maybe all?) federal agencies have a legislative mandate to get a handle on their software acquisition. The MEGABYTE Act in particular requires agencies to implement a software management process that is under the CIO (not Contracting). What you are describing is a failure of software management. This is IT's problem, and they should fix it. Limited to contracting: 1) https://www.sewp.nasa.gov/catalogs.shtml - sorta like a BPA, but better. 2) If you must by software through highly-specified GSA/SEWP orders, write-in as much flexibility as possible. For example, Option for Additional Quantity, P-Card payment authorized, etc. 3) A good source of info and best practices for enterprise software procurement - https://www.esi.mil/Resources.aspx 4) Whenever possible, I try to consolidate a particular software license into a single order and co-term the license PoP. Use modifications to add more software. Makes administration a lot easier.
  14. Most Government agencies have a Business Process Improvement group, or if its IT focused something like a Digital Transformation Center. They will know about automation/digitization and may be able to help. DCMA, for example, has the Process Working Group.
  15. Scenario Using FAR 16.505 ordering procedures with exception to Fair Opportunity - Brand Name Only. Estimated value is $100,000. It seems that FAR 16.505 (a) (4) states that a Brand Name Justification must be posted if the value is over $30,000. However, FAR 16.505 (b) (2) (ii) states an exception to fair opportunity must be posted if the value is over the Simplified Acquisition Threshold ($250K for me). I take this to mean - For amounts between $30K - $250K, JEFO is posted if, and only if, its Brand Name Justification. No need to post for any other type of JEFO. Questions Is this correct? If so, why would Brand Name Justifications have a much lower public notice threshold than any other type of exception to fair opportunity? Refs FAR 16.505 Ordering (a) (4) (ii) Requirements for use of items peculiar to one manufacturer shall be justified and approved using the format(s) and requirements from paragraphs (b)(2)(ii)(A), (B), and (C). (iii) (A) For an order in excess of $30,000, the contracting officer shall ... FAR 16.505 Ordering (b) (2) (ii) (D) (1) Except as provided in paragraph (b)(2)(ii)(D)(5) of this section, within 14 days after placing an order exceeding the simplified acquisition threshold that does not provide for fair opportunity in accordance with 16.505(b), the contract officer shall - (i) Publish a notice in accordance with 5.301; and (ii) Make publicly available the justification required at of this section.
  16. Not an expert, not a lawyer, but this question is weirdly close to something that came up a in my office a few weeks ago. So check with people who actually know what they are talking about, such as lawyers, SBA, etc. Answer: No. The prime contractor must hold the GSA Schedule (aka, have an IDIQ with GSA). Otherwise, there is no contract against which the order can be placed.
  17. I'm in agreement with the other posters. The office culture and the type of contracting they do matters a great deal. To do the cool stuff you first have to have know how to do the boring stuff. You don't like doing the boring stuff, neither does your boss. And guess who assigns the work? Sorta like a Seaman's job vs a Chief Petty Officer. Personally, I find I am satisfied with the amount of cool stuff I do on a day to day basis. I work for a small agency, which means we 1102s can't be too specialized. And I only work with IT, which is often complicated and employs a lot of different contracting techniques. So lots of novelty. Today's Backlog as of now. I'll probably only do two or three of these today: For a single-award BPA for IT services, tell the contractor we all agree, negotiations are over, and prepare the award (boring) For another single-award BPA for IT services, finish updating the Task Order term and conditions, send RFP to contractor. We are expecting contentious negotiations so I am being very deliberate (not boring). Deal with a super-difficult customer who doesn't know what they want, but knows they want it now, and knows how much it will cost, so what's the hold up? (not boring). Review and approve some option exercises and administrative modifications (boring) Finish writing an 8(a) Offering Letter (boring) Update my statuses (very boring). Figure out what to do about a contractor that has unfinished work, that the PM doesn't like, and whose entire team working on my task was recently poached by a competitor (not boring). Send option notices (the most boring possible thing in the world).
  18. I do IT contracting, this classification issue comes up a lot (esp. in combination with NAICS codes and Small Business Set-Asides). When in doubt, I try to use this simple analysis, and try to avoid going down the product vs. service vs. 'software' rabbit-hole. 1) FAR 2: “Supplies” means all property. So, the question is are we buying property in any sense of the word? In your case, no, probably not. 2) Usually 'access to' means it's a service. Every moment you don't use that access, its not consumed and gone forever, which is a key trait of services. 3) A Subscription can be sub-set of Service. Supporting evidence: In the PSC taxonomy, subscriptions are sprinkled throughout the D3XX group. Probably a Service.
  19. The earliest use of the phrase 'price realism' I found is 1978 in a GAO decision, so its been around while.
  20. Agree with above - No second-tier BPA or IDC allowed with GWACs. But two caveats, because of course: SEWP has something called an 'Agency Catalog' - its functionally equivalent to a a second-tier BPA, without being a BPA. For certain types of requirements + heavy use of options, a valid Task Order on any GWAC can be functionally equivalent to a second-tier BPA, without being a BPA.
  21. We don't. A cursory glance at FBO suggests nobody does. EDWOSB is a sub-set of WOSB. See FAR 19.15 FAR 6.302-5 -- Authorized or Required by Statute (b) (7) therefore includes EDWOSB. FAR 5.202 (a)(4) - Synopsis Exceptions - The proposed contract action is expressly authorized or required by a statute therefore includes EDWOSB. EDWOSB is exempt from synopsis.
  22. I work in Department of Health and Human Services (HHS). The HHSAR covers Accessibility/Section 508 using language that I am increasingly convinced I don't understand. Two part question. HHSAR 339 (1) When conducting a procurement and employing the best value continuum, the solicitation shall include a separate technical evaluation factor developed by the contracting officer, requiring activity, and the Operating Division (OPDIV) Section 508 Official or designee. The word "continuum" occurs only once in the FAR, in 15.101. I take HHSAR 339 (1) to mean that for any IT procurement either If using FAR 15 procedures, there must be a separate Accessibility/508 evaluation factor or If using 'best value,' there must be a separate Accessibility/508 evaluation factor. And everything is 'best value.' So far as I know, nobody in HHS actually follows either of these interpretations (check FBO if you don't believe me). I've always considered this fact to be a case of ignoring an unreasonable regulation, but maybe I am misinterpreting the regs. What do you think here? (2) At a minimum, solicitations for supplies and services shall require the submission of a Section 508 Product Assessment Template (See http://www.hhs.gov/web/508 for the template). Solicitations for services shall include any other pertinent information that the contracting officer deems necessary to evaluate the offeror's ability to meet the applicable Section 508 accessibility standards. A colleague recently was purchasing a RAM upgrade for some of our servers. Along with the RAM itself, installation services and add-on warranty + maintenance. She has found herself in the absurd situation of being told she must have a section 508 Product Assessment Template (PAT) for this purchase. She has asked me: A PAT for what? I have no answer. For RAM, which is an expensive hunk of metal and plastic? For installation services? For warranty and maintenance - of RAM? The warranty and maintenance is for the whole server, not some sub-component of it. The server (and indeed the whole server farm) already has a comprehensive maintenance contract that is indeed 508 compliant. Does the HHSAR requirement for a PAT even make sense here? If so, how?
  23. No. Schedule 70 is Best in Class for Hardware and Software not Services. BIC IT Services: 8(a) STARS Alliant NITAAC CIO-SP3 VETS 2 There are many scenarios where none of these BIC are appropriate for IT Services. There is a lower-tier but better 'solution' (contract vehicle) Requirement out of scope of all of these Pool of Vendors Not Appropriate or Sufficient Indefinite Contract or BPA Non-Commercial
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