Jump to content
The Wifcon Forums and Blogs

Witty_Username

Members
  • Content Count

    17
  • Joined

  • Last visited

Community Reputation

0 Neutral

About Witty_Username

  • Rank
    New

Recent Profile Visitors

169 profile views
  1. I reread it again, and GAO seems to accept DEA's position that the original BPAs were competitively awarded so calls don't have to be (but they didn't take a hard look at the original competition because that would have required a solicitation protest). It seems like this would only be plausible if the BPAs contained fixed unit prices and the DEA was using those competitively-established fixed unit prices to place calls using the procedures they set up in the original solicitation (i.e. rotation), which was not itself subjected to scrutiny. I don't think it is clear enough to firmly establish that GAO is ok with rotation of calls above the micropurchase threshold. I think BPAs can be a great tool where we can negotiate software licenses or other terms & conditions up front and allow distributed ordering, particularly by credit card holders. Unfortunately I think the basically accidental use of some uncompetitive historical practices (e.g. treating it like an IDIQ and establishing a single BPA then placing non-competitive calls over the MPT against it) have caused agencies to restrict their use. By reinforcing good competitive practices we can keep this tool available for use.
  2. Again, since this is a beginner's forum I think it's important to be clear that the existence of a BPA, either single or multiple, has essentially no effect on the competition requirements of FAR Part 13 for each call. The concept of "rotating" sources likely comes from the FAR Part 13.203 which says micropurchases [including BPA calls] "shall be distributed equitably among qualified suppliers", effectively rotating them among BPA holders if there are multiple, so it is only applicable to micropurchase calls. There has been some talk that multiple BPAs with fixed prices could allow orders under $25,000 without further competition, but I don't think that is any different from use of standing price quotations under FAR Part 13.103, so again, it appears the existence of a BPA has no effect on the competition requirements for any individual call. So establish BPAs to enable distributed ordering, establish standing terms & conditions, etc. but not to sidestep competition. Vern Edwards said as much back in 2009 in the thread linked below: When a BPA is issued under FAR Part 13, calls against the BPA valued in excess of the micropurchase threshold are subject to the rules in FAR 13.104, esp. paragraph (d), and 13.106. See 13.303-5( c). Generally, that means that you should get three quotes for all calls at or below $25,000. If a call will be for $25,000 or less and you have enough BPAs to obtain three quotes from BPA-holders, you can seek quotes from them exclusively. If the call will exceed $25,000, then you must synopsize and consider all quotes or offers received prior to award. In short, the existence of a Part 13 BPA does not eliminate the need for competition for calls in excess of the micropurchase threshold.
  3. I see where FAR 19.502-2(b)(1) could be read to limit the application of 19.502-2(b) to "products" but (a) and (c) both refer to services and 19.502-2(b) refers you to both 19.502-2(c) which explains why "products" bears special mention (i.e. nonmanufacturer rule) and to 19.203(c) which says "For acquisitions of supplies or services that have an anticipated dollar value exceeding the simplified acquisition threshold […]" so it would seem like a stretch to me to read 19.502-2(b)(1) to limit application to supplies only, when set-asides for services are mentioned so often elsewhere and there is a reasonable explanation (need to explain nonmanufacturer rule) for why products are specifically called out.
  4. Since it sounds like you're DOD, the Department of Defense Source Selection Procedures dated 1 Apr 2016 add the requirement for acquisitions over $100 million that "the Agency head shall appoint, in writing, an individual other than the Procuring Contracting Officer (PCO) as the Source Selection Authority (SSA)."
  5. Since the NMCARS has acquisition strategy/plan templates with specific questions for each paragraph, I think an often-overlooked key point is to answer the specific questions they ask in each paragraph. Surprisingly often we'll overlook something they explicitly ask for, like an explanation of the PSC in paragraph 1.1. Another recommendation: Don't necessarily default to Bottom Line Up Front (BLUF) writing in an acquisition plan. Sometimes you need to apply persuasive writing techniques to lead the reader/approver along the path that leads to a decision. If you start with a BLUF that the reviewer wasn't expecting, or is non-preferred (e.g. the contract will be T&M), then the reviewer may immediately start forming roadblocks in their mind before you even begin to justify the decision. On the other hand if you start together with the reviewer on a statement that you both agree on either because it is a fact (e.g. "FAR 16.601(c) states that […]") or because it is a supported conclusion from a previous paragraph (e.g. "as market research, described in paragraph 1.3, demonstrated […]") then take the reader one step at a time through the logical steps that lead to your conclusion (e.g. "therefore T&M is the appropriate contract type") they will either have to agree with you (and approve your document) or at least they will have to point out the specific step in your logic chain that they don't agree with, which will make it easier for you to revise your document (or your conclusion) to come to an agreement.
  6. Do you really need to create your own IDIQ? Could you just do individual task orders instead under an existing 8(a) BIC GWAC like 8(a) STARS, using either direct awards or logical follow-ons if necessary? I'm assuming that by creating your own single-award IDIQ you expect to eliminate or streamline some of the requirements to award each task order. Are there other ways to achieve that same goal, maybe a single program acquisition strategy that allows for multiple task order awards using the same process?
  7. I agree that there are situations where use of a SOO, oral presentations, and real past performance evaluation makes sense to select the best offeror. But once you've selected the best offeror what would the resultant contract look like? You say it would likely be labor hour, so at that point you've got a set of pre-priced labor categories working to achieve what contractually-defined objective/outcome? Will the SOO have to be turned into a PWS with measurable objectives (by the Government or the offeror? Before or after award?), or will the contractor just be providing the labor hours to work on whatever the Government asks them to do? I don't have any experience contracting for agile software development, so maybe it's a gap in my knowledge of how an agile software development contract would be structured in the first place.
  8. This would be a good time to refer back to your market research and consider not only whether the change would alter the competitive landscape (i.e. 15.206(e) "additional sources likely would have submitted offers"), but also whether it would change cost drivers such that offerors who did propose might have chosen to propose in a different (and more beneficial to the Government) way had they known the details of the eventual requirement. It may be worth considering the possibility of solicitation amendments when you develop objectives for market research early in the acquisition planning process (if we're not careful sometimes our market research's only objective is "are two or more small businesses available" which wouldn't help with a solicitation "scope" question).
  9. Since one of the more useful definitions in trying to figure out whether a software license or a subscription or a rental or a lease or anything else is a supply or a service is the FAR 37 definition of service, which you quote, I think it is important to point out that the key part of the definition is "directly engages the time and effort of a contractor [i.e. an employee...] to perform an identifiable task", not the "primary purpose" that you highlight. In this example the provision of a backhoe only engages the time and effort of a contractor employee for about the same amount of time purchasing the backhoe might take, i.e. working the rental/sales counter and maybe delivering and picking up the item, therefore the amount of time and effort the contractor employee spends on an identifiable task (providing a backhoe) is the same for a rental as for a purchase. The vast majority of the cost associated with the contract is in the equipment, not in the identifiable task a contractor employee performs. Otherwise, by your logic, any supply purchase would be a service contract because the "primary purpose" is to provide some supply. In the FAR 47 transportation service example you are "directly engaging the time and effort of a [truck driver] whose primary purpose is to perform [the task of transporting something]. These two examples couldn't be more different.
  10. On the original topic, is there a single person within the requiring activity who is in charge of the requirement, or will receive the goods or services? Assuming there is no actual program manager or functional service manager there is still likely someone in charge, maybe a chief of staff or something. I would ask the director to approach this person and ensure they understand that if they desire a contract they must fulfil their role in the acquisition process (e.g. provide funding, the evaluation team, required approvals, etc.) and let them handle any issues with the evaluation team chairperson: "If you want a contract for this requirement you need to provide a dedicated evaluation team from [date] to [date]. If they are unavailable on those dates or do not stay to complete the evaluation then contract award will be delayed based on how long it takes to reschedule them, bearing in mind we have other source selections on the schedule for other customers as well. If you no longer need a contract to support this requirement let me know ASAP." Sometimes it seems like the contracting office wants the contract more than the requiring activity/customer...
  11. Here's a scenario where it may make sense to create an overall price based on the Government's best estimate of what the labor mix might be instead of just determining that individual labor rates are fair and reasonable: For simplicity, assume two labor categories, Project Manager and Laborer. Proposed rates are as follows: Offeror A: Project Manager $50/hr; Laborer $20/hr; Offeror B: Project Manager $60/hr; Laborer $15/hr; You can do some kind of analysis to figure out that the individual labor rates are each fair and reasonable, but even without knowing the exact labor mix (otherwise it could be FFP) you may be confident that you will use only one Project Manager and many Laborers. So despite the total of Offeror A's rates being lower ($70) than Offeror B's ($75), it would be advantageous to apply the same estimated labor mix (say 1920 hrs of PM and 19,200 hrs of laborer) to generate evaluated prices you can compare during source selection, giving Offeror A an evaluated price of $480,000 and Offeror B an evaluated price of $403,200. An interesting question is whether you should give the offerors your labor mix/evaluation model, which gives them an opportunity to try to game it, but also encourages them to price the expected high-usage labor categories more competitively; or should you simply notify them you will use a model but not tell them what it is, to encourage them to price all labor categories as competitively as possible?
  12. We regularly use T&M for repair parts under maintenance contracts, so I'll admit this is a little concerning. I think the key is the difference between "commercial items" and "direct materials" which FAR 16.101 defines as "those materials that enter directly into the end product, or that are used or consumed directly in connection with the furnishing of the end product or service." So, while a toner cartridge is clearly not a service, I think you could try to make the case that in this case it is also not a "commercial item," but rather is a direct material consumed in furnishing the end product, a functioning copier. That argument is probably a stretch if this is a straight up supply contract, but if it were a copier lease, or a copier maintenance service contract, or even a 3PL copier supplies logistics management contract (I just made that one up) it might make sense.
  13. I think it depends on how you intend to "obligate" funds against the BPA. In the original draw-down example, the Government bought the amount of toner they "obligated" against the BPA, and now they are just pending delivery when a call is placed. Otherwise it wouldn't actually be an "obligation." This works fine if you have a reasonable idea of how much you'll order in a year, and have already taken care of any competition requirements up front, i.e. when the original order was placed. If you didn't compete up front but are placing orders over the micro-purchase threshold and you want to maintain three BPA holders that you can place calls against it gets trickier to record obligations for all three BPAs in advance of placing calls, because once you obligate the funds you've made the purchase. In this case it might be better to hold a funding document with a specific amount committed against the contract, but don't obligate until the calls are placed. With the competition requirements for calls over the MPT and the technical challenges in recording obligations when calls are placed I think the only real advantage of BPAs is to allow government commercial purchase card (GCPC) holders to place orders where they would otherwise be restricted by the vendor's terms and conditions. In the example above, assuming the GCPC process is too slow to place orders, I think I would just place a single competitive annual order for no more than an estimated year's worth of toner to be delivered within 48 hours of notification (or whatever the required timeline is) by technical direction letter or something. Just know that once the order is placed the money is obligated and the government owns the toner. The contractor is just holding it for you as part of the contract until you ask for it.
  14. The only "lead time exception" for services seems to be related to training that is required in the current FY and is scheduled to start as soon as possible which happens to be in the next FY, which is not the case here. If there are several options left you could consider bilaterally modifying the contract to shorten the current period of performance by a day or two and change the POPs for all remaining options to allow you to exercise with end-of-FY funds for the remainder of the contract. Otherwise if you are ever delayed in getting funding the first day of a new FY and can't exercise the option the contract will end.
  15. Use of an option implies severability (at least between the base and option), which could make obligation of future FY funds problematic. Even assuming you can use current funds for up to a year of severable services (e.g. DOD) I think use of current year funds to exercise an option with a period of performance that begins in a future FY would be a bona fide needs rule violation. For DOD, 10 USC §2410a says the you "may enter into a contract [...] for a period that begins in one fiscal year and ends in the next fiscal year if (without regard to any option to extend the period of the contract) the contract period does not exceed one year." I think since options are excluded from what constitutes a year (otherwise the entire contract, options included, could only last a year) then options should be excluded from determining that the period of performance has begun in the current year. Of course, if you know prior to award of the base that you want to exercise the option, then you could just add it to the base period and not call it an option at all. If, as I suspect, you cannot do this because the requirement for the option will be developed during the base, then use of a fixed-price option isn't really appropriate anyway, regardless of FY.
×
×
  • Create New...