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Everything posted by Salus

  1. Can the CO cancel (or pause) the TO to reevaluate proposals after erroneous material is removed from the evaluation and then re-award from the same solicitation, or would they have to terminate for convenience and resolicit? Being aware that all of this is at the CO's discretion, I would like to know what options they have to remedy a task order award if it was made in error. Thanks!
  2. Good Day, Can a task order (under an IDIQ and under the protestable threshold) that was recently awarded be re-evaluated and/or re-awarded by the Contracting Officer if there were significant errors found in a vendor's evaluation during the debriefing process? Thanks!
  3. Every position was described in the solicitation down to the tasks and duties.
  4. Hi Joel, that is a good find. I am guessing that these parts of the regs could be what triggered the issue if the CO kind of worked through the typical requirements for a labor hour contract without really checking the applicability of the procedures. This is a labor hour contract, but it is one of those special labor hour contracts where the exact number of hours for each position is prescribed by the government in the solicitation. In this case, they also included overtime specifically in the schedule for many of the positions (up to 50% extra hours for some positions). We did not propose any additional overtime use (and included some methods to reduce overtime use). So they have stated that overtime will be used (this was an RFQ not an RFP) while apparently trying to include the procedures you reference (though those clauses are not referenced in the solicitation). So when the government is specifically requiring overtime and including it in the schedule, that would seem to eliminate the requirement that we justify 'eligible' overtime hours for premium pay/rates, or am I mistaken? It still doesn't explain how we were responsible for providing wage determinations though...
  5. Sorry, sloppy on my part, because my question was about price realism. Price reasonableness was checked at the master contract level (and our rates for this TO were significantly discounted from there). The original solicitation had the requirement for price realism under FAR provision, 52.222-46, but they specifically removed that in the amendment. When questioned, they stated that it wasn't in the best interest of the government. This probably created some additional confusion because it is related to professional employees. It really seemed that the agency wanted it both ways, that the employees are all professional enough to be exempt, but not professional enough to have price realism checked. The evaluation criteria also included the following (from the solicitation, which was subsequently removed during the amendment): The Vendors Compensation Plan shall be evaluated to ensure that it reflects a sound management approach and understanding of the contract requirements, such as • The vendor's ability to provide uninterrupted high-quality work. • The impact upon recruiting and retention. • Whether the proposed compensation levels reflect: o A clear understanding of the contract effort, and o The capability of the proposed compensation structure to obtain and retain suitably qualified personnel. Honestly, when they removed that and the 52.222-46 provision, that gave us a pretty good read that the CO wanted to price to be much more important than what was indicated in the original solicitation, which said: Factor 1-Technical/Management Approach is the most important factor and Factor 2-Transition Plan is more important than Factor 3-Past Performance. When combined Factors 1 through 3 are significantly more important than Factor 4-Price. But we built a fair amount of our proposal and team around fair wages, recruitment, retention, and cultivating excellent personnel, and couldn't (and wouldn't) redo our proposal to match a 'read between the lines' low cost objective. It feels like the goalposts were not just moved, but relocated to another stadium during the amendment. Ji, we will include everything but the tech lead/reviewer and their statement. It is up to them to push back on it from the inside if they so desire. In hindsight, shouldn't have even mentioned that here, and I wouldn't ever want to risk getting someone in trouble because it came up in the course of unrelated business that we said that we were disappointed that we wouldn't be working together under that contract, and they indicated that they didn't think anyone got what they wanted. Vern, even after doing this side for several years, I understand that I am a newbie, and hiring someone who knows the business much better than I would be nothing but helpful. Also sometimes, red flags are actually red flags. The CO told us that they awarded based solely on price because everyone received the same acceptable ratings. This was after a very drawn out award process where they did things like tell us that we had to justify overtime rates. All the advice and background information provided here has been super helpful in having a better understanding of how we are missing the full picture in source selection. In this case, though, having someone with much more experience and knowledge of the process probably wouldn't have helped. I am saying this as a logical response to the fact that the other unsuccessful bidder absolutely did have multiple people with extensive proposal and government contracting experience (20+ years) and high win rate (and partnered with the incumbent vendor) on their team, and they had the same result (and same concerns). If you come in with decent pay and overtime, you just aren't going to be competitive if it is awarded on a lowest cost basis.
  6. Vern, you are correct. There would be no way to really compare. Aside from the CO telling us that the contract was awarded based on lowest price because all ratings were equal, we really just wanted to be able to find out any information FAR 15.506(d)(6) that C Culham shared to ensure that the process was followed. If there were no weaknesses, we could point out some giant red flags that the CO seemingly ignored. The first was the overtime issues. Our team and the other team both included OT (both teams consulted the Department of Labor and a labor attorney, separately). Both vendors were significantly higher (don't know how much higher the other team was, just just said significantly higher than the winning vendor). Both of our teams raised the OT issue with the CO as soon as the CO tried to require vendors prove that positions were eligible for OT. The second was pay reasonableness. During our debriefs, both unsuccessful offerors pointed out to the CO that the winning team would have to cut wages to a number of the employees currently working on contract, which is directly contrary to the technical factor of recruitment and retention. Both teams were told that it was up to the winning team to 'figure it out' in regards to pay and overtime. However, this seems pretty contrary to the technical factors and regulations that seemingly require COs to make sure that employees are receiving overtime if they are eligible and perform a price reasonableness determination. We knew going into the proposal that the technical leads were very concerned about high turnover rates due to already low pay and not just from it being included in the proposal. We no have a pretty good idea that the technical reviewers for this project don't feel like they got to chose the winning proposal (it is a small world). And now we know that many peoples wages were cut and OT wasn't included. I think nearly everyone signed to stay on, but that seems most likely related to their receiving 2 DAYS notice to make their decision. I can guarantee that some of those people are already looking for other work. So I guess a question in my mind follows is: Are CO's supposed to consider price reasonableness (that the winning vendor cannot possibly pay market wages)? Are they supposed to consider whether there is going to be a big hit on one of the primary technical factors that was supposed to be the weightiest component of the evaluation? I know that price isn't supposed to go directly in front of the technical reviewers, so if the CO bothered to consider that, would that end up considered as a weakness? (Based on the CO's responses though, it certainly seems like price was the decision factor even though it undermined the primary technical factors) Regardless, we are following the advice given in this thread. We are going to file a letter with the Ombudsman (the other unsuccessful vendor already did for these same issues) and stay in touch with technical leads. We are considering advising them that if they are unhappy with the how the award was made or is implemented, they should reach out to their regional administrator to follow up.
  7. Vern, I am going to agree with you in principle. However, in this case I think that would have just been additional wasted time and money. We know that in the dozen or so contracts awarded by this office no recipient or our team has received a higher than acceptable rating (even those we won), and always awarded to the lowest price (and all of them were best value solicitations). We know that they had us submit an updated proposal after the prices were set and 3 months after the technical reviews were complete, and therefore (should have) already knew who was going to receive the award, and that the price differential would not have left us in the competitive range. We know that they ignored that the contracted positions are not getting paid overtime even though they are clearly required to be paid overtime rates as determined by the agency themselves in other regions (as well as based on discussions with the Department of Labor and a labor attorney). They even went so far as to try to force companies to justify paying overtime rates (when you are legally required to do the opposite...). This factor alone probably bumped us out of price competition. We know that the CO would not answer questions about the number of strengths and weaknesses from the winning proposal (not exactly proprietary information). After such a inexplicably long process that had almost no communication from the COs and multiple issues, the only response from the COs when we had reasonable process questions was effectively 'trust us, we did the process correctly'. Based on the totality of the available information, the preponderance of evidence indicates that the only winning strategy was price with an at least minimally acceptable proposal. If the solicitation process always worked and awards were always made using the best judgement and practices available, then a protest system wouldn't need to exist. As a vendor, sometimes the only thing left to do is get the best information you can to inform your decision about a protest. I think this has just been a painful part of learning how this particular acquisition office works. However, we will definitely be incorporating all of the good advice that has been shared on this thread!
  8. C Culham, thanks for that! We definitely did not receive some of that information. I would very much like to see unit prices and the overall rankings. We asked about the number of strengths and weaknesses of the successful offereors proposal, which seems like it would fit under # 6, but that one is pretty subjective and they refused stating that it is source selection information pertaining to the awardee's quote and is not releasable. Well, next time, we will have some more specific question for them! Thanks again!
  9. Thanks Joel, we'll take all the luck we can get to even the playing field! C Culham, you are correct. That made it all the more difficult to provide an SCA wage determination to justify paying overtime!
  10. They were (just) small when the proposals were submitted for the master contract. One of the teams was a joint venture, mentor protege that are now affiliated (this was one of 3 contracts they picked up in 2 years), and the other was a team of a 'small' under the IDIQ ($50 million in revenue now) teaming with a large business that was the incumbent. Both of those teams are more than 70 million in revenue against the size standard of $16.5. But they both qualify for set asides for the life of the IDIQ. So fairly large 'small' businesses then. As far as source selection procedures, you are right that the master contract sets different standards than normal. Now I have to go try to find this specifically, but my understanding is that for contracts over a few million dollars follow standards procedures, while those less than that threshold follow simpler rules for the IDIQ.
  11. Oh, and I wasn't clear earlier. The reason for the amendment requesting updated proposal was because the process had gone on long enough that all of the original quotes had expired. They did request updated cost information and make the tweaks described above, but the stated reason was to extend the price quote duration another 180 days.
  12. Thanks JI. I wish we had thought of that as protestable. We did explain that were concerned about our inclusion of overtime rates potentially pricing us out of competition, and with the language included requiring that the contractor justify paying overtime, that a larger company (with enough lawyers) would be able to bid without using OT rates, and then if forced to pay OT because the employees went to the Department of Labor, they would be in a good position to request an equitable adjustment based on the inclusion of that language. It looks like that was a factor, and getting that affirmatively resolved could have been helpful in significantly narrowing the price gap. Joel I was keeping price vs. cost separate. Because this was a labor hour contract, price is the fully loaded labor rate per hour (unit) by each labor category. They amended the solicitation reducing the number of hours requested, thus reducing cost, but price per unit was unchanged (and no change in price was requested). Thus the resultant change in cost was entirely predictable. They also used the opportunity to remove the requirement for the compensation plan and add the statement requiring the contractor to provide a wage determination to justify OT. That makes it seem as though total cost was a major issue, and maybe we should have been more proactive in trying to trigger discussions about how we could lower prices. My understanding is that entering discussions is dictated by the government, not the contractor. We raised concerns on the requirement for the contractor to justify paying OT rates based on the reasons stated above. I am not sure how this would be considered discussions, but if it was, then there is at least one company that would probably have an issue with that. And I understand that they should absolutely be considering the tradeoffs between price and performance. We have had the situation before where we were rated higher than a competitor, but our cost was somewhat higher and it was awarded to the lower rated, lower cost competitor. That makes sense and is understandable. Our issue is with the blanket and routine issuance of 'acceptable' ratings and subsequent award to the lowest cost bidder. Nowhere else am I aware of any sort of rating system where you would consider a person or company very well qualified with strengths in every component of the most important evaluation factor equal to someone who was minimally qualified. At that point, you aren't actually using a rating system, you are just determining whether a company is technically acceptable. When we received the feedback that was very positive, with no negatives but then just acceptable in all rating factors, it calls into question what kind approach they are using to implement the rating system. It raises further questions when we consider the weirdness about the agency even arguing against SCA/OT for technician level positions and the consistent implementation of the rating system that nearly always results in acceptable ratings that only apply to this particular region (these issues don't exist elsewhere that we have encountered). This makes it all seem as though price was much more important than the technical approach. Which is totally fine if you state so upfront! Finally, we were just also unhappy with the unwillingness to consider alternative approaches that would allow us present better price options without incurring additional risk to a small business. That just seems like bad business planning, but I understand opening the contract to other strategies makes it more complicated, and this contract obviously had enough issues getting off the ground already. If I had to guess, it would be that we ran up (and over) the actual budget for the work, and they didn't feel they had time to enter into discussions, or they felt that we would not be able to come down enough to meet their cost cap. But that is just wild speculation though.
  13. I want to reiterate that I don't necessarily think we should have won. We don't know how the winning team was evaluated for comparison, and it is totally possible they got many strengths and were cheaper. We just found it very strange that we could have several strengths that the reviewers themselves linked as innovative approaches addressing the components of the most important rating factor and we still received an acceptable. Then we were told that it was awarded on a lowest cost basis because all ratings were equal. This combined with all of the other issues that occurred during the award process greatly reduced our confidence in the process. We did have a pretty good idea of what they are looking for based on working relationships with some people associated with the project, so we weren't going in blind. We addressed issues brought up by project personnel as well as the components of the evaluation factors. Next time we come up on another large proposal contract like this, I will suggest we bring in a professional proposal consultant. Price I am sure ended up being a large consideration. The original solicitation was for a few dozen positions. After the agency performed their reviews and evaluated the price (and extended the proposal process twice), they sent an amendment where they removed 9 positions and removed the requirement for a compensation plan. They did not request any price changes, discounts, or final best offer. So at that point, it seems like they should have known that if our price was higher enough that we weren't in the competitive range, they should not have incurred additional work to us by requesting a revised proposal from us. The difference in price was fairly large, around 25% (but still a 35% or so discount on the approved labor rates for the master contract), although a good portion of that extra cost is because we included overtime rates. For some reason, the previous iteration of this contract has not been paying overtime, and there was a lot of information indicating that there was a strong preference that these positions not be paid overtime. There was an absolute refusal by the CO to request a wage determination for the positions even though in every other region for the same exact positions, the agency is clear that the positions are OT eligible. The documentation included the following: NOTE: If the Contractor determines any labor categories to be SCA applicable, then a Wage Determination shall be provided (in a clarification email, we were told that WE were responsible for providing a wage determination that supported our assertion that these positions were OT eligible). We pushed back on that note because we were very concerned that we would be bidding on the proposal using OT rates and others would not based on the positive requirement that the contractor justify considering the positions OT eligible. We really wanted to be able enter negotiations. We had room to come down because non-labor hour approaches were not allowed to be proposed in our quote, and we wanted to consider a cost plus approach or FFP with Economic Adjustment. Since we were not allowed to do so we had to price out risk by covering the range of market based wages for every position. Being a team of actually small businesses doesn't really allow us to take much risk in our pricing (nor do we want to, we want to pay reasonable wages and limit staff turnover), and we just have to deal with that structural disadvantage and live with competing with large businesses under small business set asides because this is an IDIQ. Hopefully a professional proposal consultant can provide advice on how to address those issues as well. Unless some sort of information comes out that makes it clear that they did not follow the process correctly, we won't be protesting. I am curious if there is some alternative to protest that initiates a review of the process by a relatively independent body, and which might then trigger a re-compete at the option year or something similar if the process did not proceed properly.
  14. Hi Vern, We did not use a professional proposal management consultant for this project. Our team is just on the verge of being able to regularly incorporate that kind of extra support (which this contract would have gone a long way to supporting). However, we have aggressively pursued as much education on federal contracting as we can through PTACs, and the Virginia PTAC specifically (they have provided a lot of high quality trainings), and have worked hard to incorporate any feedback that we do receive during our debriefs. I am sure that would be helpful for all of our proposals in improving the quality. However, in this case, I don't know that it would have helped. We didn't have the adjectival rating definitions until after our debrief (something we now know to ask for during the question phase of the process), and they used a different set of definitions than the other half of their acquisitions division. So we weren't able to address the language in their definitions, and we wrote towards the factors included in the proposal and our understanding of the other set of definitions that we did have access to from that agency. Even still, we got strengths that were described as innovative approaches directly applicable to the criteria contained in the technical/management factor, and they were still not considered significant strengths, even though by the definitions used for this solicitation, they could have been considered as such. We also specifically requested any feedback on how the proposal could have been improved and they were unable to provide any. They were also unable to provide any example of anything that would qualify as a significant strength. I know it can be hard to come up with answers on the fly during a live conversation, so some of the information may just come from that live format and it being really hard to communicate everything effectively during a short period of time. Since we don't know what instructions are provided to the technical reviewers, or how we actually compare in relative strengths and weaknesses, we are totally in the dark as to whether they did consider relative strengths or not. All we have is the statement that they made a lowest cost award during our debrief, which might have just been an attempt to provide a concise answer and they actually did do a full consideration of the relative merits within the rating category. It doesn't help that the CO hasn't responded to any questions since the debrief! So at the moment, we are left without any clarifying information to try to make a decision as to seriously considering a protest or just walking away from a large contract that we are pretty confident that we were going to provide the best service on (but not the lowest price...).
  15. Thanks JI. We are trying to set up a follow up meeting with the CO to make sure there were no miscommunications during the debrief on how the process was implemented. We are obviously not happy with receiving an acceptable rating, but in theory that could still be okay if they considered the relative merits of the proposals. Unfortunately, we can't get any additional information about the relative strengths and weakness of the winning team, so there is no way for us to tell if the winning team also had a bunch of strengths or if the agency did just weight the ratings the same and then make a lowest cost decision. We are also pretty sure that even after the extensions, they were still not quite ready to make the award as they announced the week before that they intended to extend the existing contract by a month, but that didn't work out and they made the award 2 business days before the start of the contract. Sometimes things just don't go smoothly at all, and this definitely seems like one of those times!
  16. Good Day All, A rather grueling and rather long award process just concluded after three separate 3-month extensions to the award process. We were one of three teams competing for the contract. We did not win. The contract was for technical support under a labor hour contract. The solicitation stated that the technical and management components of the project, followed by transition plan, and past performance were significantly more important than price. No negotiations were held. During our debrief, we found out that our proposal had 7 strengths for the tech/mgt approach, and 6 of those were specific to the 4 elements described in the evaluation factors. We had one strength for the transition plan. We had no weaknesses or deficiencies. The technical reviewers specifically included that the companies and key personnel for the proposal were well qualified for each of their roles. Our team and the winning team both received acceptable on all rating categories. We assume the third team received acceptable as well, because if they had received good or better, they should have won. We were told in the debrief, because all teams received the same rating, it was awarded based on cost alone (we were more expensive). Our question comes from this: the adjectival evaluation guidance ranged from Outstanding to Unsatisfactory. However, to achieve outstanding or good, a proposal had to receive a 'significant strength' which feels a little amorphous to start (stated as significant cost savings or efficiency for the government, and many regular strengths do not add up to a significant strength). However, based on the adjectival criteria, our 8 strengths would be rated exactly the same as any team who had few or no strengths so long as strengths and weaknesses offset. But for the specific requirement of 'significant strengths', our technical factor should have been outstanding (strengths significantly outweigh weaknesses) or at the very least good (strengths outweigh weaknesses). There are not many ways to achieve significant cost savings or efficiency on a labor hour contract where the function of that contract is to put people at their facility for a specific number of hours. And specifically, one of the major concerns included as an evaluation factor was recruitment and retention, which for the most part necessitates paying market wages. Thus cutting costs to offer very low prices is antithetical towards this goal. So for this specific proposal, it feels very much like there wasn't a way for any vendor to achieve a good or outstanding rating based solely on the requirement for significant strength (you can only cut costs by subverting one of the technical factors). This effectively means that every company ends up with an acceptable rating, and the proposals are then just evaluated on a cost basis. Is there a way to avoid this situation? This was for a fairly large award, and to spend quite a bit of effort to develop a proposal that had very little room for improvement (there was no feedback on how we could have improved our proposal, and we received detailed positive feedback on several elements) only to have it awarded as a lowest cost proposal is very frustrating. A lowest cost award is a much different animal and much less expensive to develop, so if that is the ultimate goal, then we would much rather that be clear up front. All of this comes with the caveat that obviously we don't know how the winning teams strengths and weaknesses broke out, we only know that we were told it was awarded based on cost. I appreciate any input or advice!
  17. Sorry for the delay, my notification emails got buried. C Culham, - yes, I am aware that it is based on receipts rather than awards. This business first self certified as large right after the contract was awarded (then went back to small for about a year because of the rule change allowing companies to use a 5 year average of receipts instead of 3). There isn't any debate by anyone as to whether they are currently large or not, they blew right past that with some exceptional growth. Retreadfed - They did become large after they submitted their proposal and after the contract award for the IDIQ/master contract. After the info from Vern, it is clear that they will remain small for the remainder of the contract unless a CO requests a re-representation for a specific task order. We also managed to talk it out with the agency so that everyone is on the same page. Obviously we are still not happy about seeing so much money go to a large business under small business set asides, but at least we are clear now on the framework we are operating under. And at least the rule change should reduce this issue for future IDIQs. I appreciate everyone's time on this!
  18. First, Vern Edwards, thank you for providing a response pointing to the actual relevant contract clause. That is the specific reference that I needed to make a decision on whether to protest or not. We had been asking about whether the updated 13 CFR 121.404 was applying at the contract/procurement level or if it would apply at the procurement action/task order level. But FAR 52-219-28 (July 2013) was incorporated by reference. That lets me know the answer is a hard no. We had asked for the regulatory references for what would prevent the updated 13 CFR 121.404 from applying, and this is the first time we have gotten a response that nailed the answer. That is why I posted here. I don't know what I don't know, and the vast majority of queries posted here seem to get a solid answer. It is certainly the case that any one side telling a story is not the whole story or a fully correct. I would still be interested in any information on situations where the agency itself is responsible for carrying out a size-status determination on its own. I mean they pulled the full suite of contract awards and options years to demonstrate how our team would no longer be considered small (less than 1/3 of the standard on an annualized basis, but larger if you sum all contracts and potential option years). Is anyone aware of this being a practice? Theoretically, we could have imagined that response entirely (or gotten it epically wrong). I have worked for the government for 15 years and with the government another 5, and I have seen that things sometimes just get baked into practice or culture, so even when I feel like maybe I am being gaslighted, I don't assume (or accuse) someone of wrongdoing. I also don't feel like asking for clarification or reference to the actual regulation should be received as an accusation of malfeasance. We have not issued any protests at all, or even threatened to. We asked for the regulatory framework that would tell us how this contract addressed this issue (the answer that Vern provided). This is something they have offered as a way of resolving any questions like this before a protest is launched. Maybe the term shady came off harsher than it should have. This is the third issue that we have not been able to get an answer on from the agency, and the first one we finally got nailed down. The other two issues are not worth protesting because they don't particularly disadvantage us, and it would be pretty disruptive to how they managed contractors and their budget if they were forced to change in a short amount of time. So they were things we asked about and did not get an answer on, but not something we pushed back on (high risk, low reward). Also, I thought the purpose of the Small Business Act was to ensure small businesses got to compete for small business set asides. There is no question or ambiguity that the company has received 3 times the size standard, and more than the size standard in small business set asides in a year. I know that this is allowed within the regulation. But at the point that the government keeps awarding set-asides to a company that has received more than the size standard in federal contracts in that FY, it starts to seem pretty contrary to the intent of the Small Business Act, even if they are providing a great deal for the government. And it doesn't feel unreasonable to ask the COs to use their available tools to curtail that. Thanks again for your answer Vern.
  19. I've come to request the wisdom of the Wifcon Crowd I am partnered with a company who has a prime contract under a multiple award contract that solicited in early 2017 and awarded at the end of FY 2018. The MAC was a full and open with language for potential reserves based on the rule of two. We are stuck competing in this MAC for small business set asides with a very aggressive, large business that just happened to only get large just after the solicitation. Currently, they have received more than 48 million in awards from the agency with the MAC, including more than 21 million in small business set asides in FY 20. This is against a size standard of 16.5 million. We just lost a task order to them where they bid $51k to provide 11 months full time support from a scientist with a BS and a couple of years' experience in Alaska, where the market wage rate is a minimum of $25 (so market wages alone would be 48k not including taxes, benefits, overhead, and profit). So pretty aggressive. Prior to the rule change, we (and several other of the small businesses) had requested that NOAA do anything to at least try to limit the awards to this business (they are receiving roughly 25% of awards in a MAC with 17 vendors) under small business set asides, such as not awarding them set asides after they have received 16.5 million in awards from NOAA in a FY, or requesting new size certs with TO's, or for option years. They have actually come out during an annual meeting with the vendors and said they will not take any actions to limit awards to the small businesses that are still small or close to small. Before the rule changes to 13 CFR 121.404 in October 2020, we were just stuck since their size at the beginning of the contract was small / HubZone. After the rule change, we were hopeful because this MAC was a full and open, and didn't include any indication that the agency (NOAA) was creating pools from awardees. However, when we discussed with the lead CO the possiblity of issuing a size status protest on a TO based on the updated rule, all of these rules that the agency COs have to follow were given to us. These stated rules seem, um, dubious: NOAA does not have to implement changes to the CFR unless they are incorporated to the FAR (apparently ignoring that regulations on when size status being determined are only in the CFR and not the FAR as far as I can tell) When a recertification is requested in a NOAA contract, a NOAA CO is responsible for making a size determination, and it is not appealable to the SBA (this is their stated reason for never requesting recertification at the TO level or during option years, because apparently nearly all of the businesses would suddenly become large under the rules describe below) If NOAA requests that businesses do a new size certification for a TO, then my partner business with the prime contract will no longer be small because NOAA has its own rules for making size determinations (but only for recertification, they use SBA rules for initial certifications) that are: NOAA takes the sum of all awarded contracts and their option years and adds them together in a single sum, which is then compared to the size status threshold, but does NOT use the CFR/SBA standard of annualized revenue, just the total of all awarded contracts and their full potential value over the entire life of the contract; Whenever the CFR or FAR says a vendor or contractor must or may recertify, that actually means the CO does the certification using NOAAs special rules. And finally, we can do a size protest but it is useless because it almost never works To be fair, that last one is probably correct. My question is about all of these rules they told use they have to follow. I have checked the CFR, FAR, Commerce Acquisition Regulations, the Commerce Acquisition Handbook, and the NOAA Acquisition Manual, and I can't find anything supporting these. If these are real, can anyone provide a reference? At the moment, I feel like they are just gaslighting us so we won't submit a size status protest. Also, can anyone explain why they are so hell bent on keeping this vendor being able to continue participating as a small business (there are still roughly another dozen small businesses, so lack of competition isn't the problem). I suppose how much they drive down price could be reason enough, but I thought they were also supposed to be ensuring SCA wage standards and professional pay standards. This is the third fairly shady issue we have encountered under this TO. We have been doing decently, so the issue isn't sour grapes here as much as frustration at the apparent disregard for the rules and intent of the laws and regulations. We are having a hard time finding what rules they are operating under. Any insight is appreciated!
  20. Thanks Formerfed. I do like the idea of trying to get an SOO. That would actually be a better fit and opportunity for us because the PWSs tend to be written toward encouraging hiring staff for them, while our approach is tailored towards their objectives, mission, and even some of their current strategic objectives. And I would love to have a meeting with senior management. I have no idea about how to go about making that happen, but I will start giving that some thought. And yeah, I can totally see how the system gravitates towards its current setup. I am mostly frustrated by the institutional inertia to stay that way, even when better options are presented. To be fair, federal agencies have never been known for their enthusiastic embracing of change! I appreciate the information and advice!
  21. Hi Formerfed, Obviously those are pretty important questions we need to keep in mind at all times when contemplating action. I would say clearly, more business is a goal. We honestly could compete on price by following the standard practice of underpaying contractors for the work they are doing and just hiring them to fill in federal roles like everyone else, which is also easier from our administration standpoint because the agency does all the employee supervision, and the contractor is only responsible for hiring, submitting the initial paperwork, and providing time accounting. Between my company and my prime partner, we have the right past performance to jump right onto that treadmill for new positions. But one of my issues with that is that it results in contract employees making far less than their federal peers with fewer benefits and no pension, AND it cost the government more money. The agency completely ignores FAR 52.222‐46. As an example, the agency published a requirement for a position requiring a masters degree and 7 years of professional level experience, and based on that, the fair market wage for that position should have been over $90,000, but based on the winning bid had to have been paying less than $65,000, roughly $30,000 less than the fair market wage, unless the company was generously donating labor to the government. These sorts of wage discrepancies are really easy to find. My office mate was a contractor doing the same job when I was working for the agency was making $20,000 less than me when he had 2 more years of experience doing the same work. However, the whole purpose of founding my company was that I figured out an approach that would allow us to do a specific task that makes up a very large portion of work for the agency at a reduced cost over their use of labor hours. We would be able to make a reasonable amount of money (no one is getting rich here), pay good wages for completed work, and take advantage of expertise from people not normally available to the government (because they are location bound, have prioritized other quality of life considerations, aren't interested in full-time work). So I was left with a solution to an actual problem the agency has that would reduce their cost, move them away from using contractors as federal employees, and allow us to pay our professional employees proper and fair compensation. It also reduces federal labor because the agency project manager is usually responsible for training the new employees and providing supervision, neither of which is required under our approach. We are also able to clearly connect it to the comparative labor effort of labor hour approaches, so it isn't a matter of confusion or ambiguity. The culture of using contractors as employees is so ingrained though, that it is proving extremely difficult to make headway. One step of progress was that in years past (all of 3 years ago), the agency used to tell the contractor who to hire for each position. Now it is a mix of providing some reasonable position descriptions (but still clearly looking like personal services for the most part), or when they want to bring the incumbent back, they just write very specific job requirements for the positions so that only the person currently doing the job qualifies. So the answer to your question is yes. We are looking for more work and applying just and common sense principles (and the actual regulations). The goal is to compete fairly for work that is complaint with the applicable regulations, reduce cost to the government, and importantly to me, also complies with FAR 52.222‐46 so that contract employees are getting proper and fair compensation. I am no saint, but I try to make ethical decisions. But this one should be an easy sell because the only thing the agency has to give up is control of contract employees being used as federal employees. That it isn't an easy choice for the agency is starting to feel like the universe trying to gaslight me. ** As for why I think there is such reluctance to change, I think it is because it usually works fine. Different offices get employees in a manner that is much easier than getting a new federal employee and doesn't require the allocation of permanent funding, and for the existing federal contractors they get an easy source of revenue that requires very little work on their part. Only a few offices ended up having really bad experiences where the contracting company really started abusing the system, where they would hire someone for one of the positions, let the agency train them up, and if they performed well, they would take that employee into the main company and replace them with someone else, repeating the cycle. If it hadn't been for that, I don't think we would have gotten our approach in at all without filing an appeal or suit.
  22. Thanks C Culham. I have read the size determination info. This company was a small business during the initial award of the IDIQ, then became a large under the old rules, then became a small again, and finally self certified last year as a large for the IDIQ NAICS code under SAM (but not within the IDIQ). I really don't have an issue with the way determinations are made, even the 5 year rolling average. And the agency is being FAR compliant, but I still have a hard time with them awarding more than $40 million to one company, mostly under small business set asides per year, and continuing to make those awards under small business set asides. That company is on track to receive the same amount this year despite our repeated queries that they at least apply CO judgment in awarding under small business set asides. As far as whether the personal services are allowed, under the IDIQ master contract, all personal services are expressly prohibited from being awarded under this IDIQ. I couldn't find 5 CFR 500, so I am not certain to what you are referring to here. But some of the contractors have been performing the duties of federal employees for more than 20 years. This has created a pretty significant codependency with the agency. There is a strong bias towards incumbent contract companies when they have one of these employees, where they really don't have to compete on price. We lost a bid where we were $300,000 less expensive (to be fair, only 5% lower on a 5 year award), providing a FAR compliant fixed price solution that exceeded all of the performance requirements, had solid past performance, but the incumbent (and large) company still won the award. We have been asking each time we are bidding during the question period if they will consider alternative approaches, and so far they have said yes so far, so we have been submitting alternative proposals where they are (theoretically) welcome. If we lose out on this next round of proposals where we are being extremely careful to make it as clear as possible how we are exceeding PWS criteria and the benefits (beyond an apparent better fit for FAR), I may try to reach out to a Regional Administrator that I had a working relationship with when I was at the agency to at least raise the issue as a question rather than a point of conflict. I have a hard time imagining even doing something like an informal call with an attorney at the GAO's Office of General Counsel to get an unofficial answer on some of these questions would go over well, but it might be a less costly approach in terms of retaliation. So far, I have had CO's tell me that personal services is 'like when they make contractors go get their laundry'. Thanks for highlighting some other possible routes and statutes to consider. It definitely feels like a maze sometimes! Regardless of what we end up doing (or not doing), I am braced for it to be a long slog.
  23. First, I want to say that I am a big fan of these forums. There is a ton of useful information here that has been very helpful to us. I want to pick the forums’ collective brain to see if anyone has advice on my particular and peculiar situation. We are running into the same issues over and over with an agency, and these issues seem to be in direct conflict with components of the FAR. It is totally possible that I am the one who doesn't understand the FAR (am I the jerk?). Please read on and share your thoughts! My business is a subcontractor to a prime under an IDIQ. We provide specialized services that meet a core need for this particular agency, and have an informal joint venture for this type of work with my prime. This IDIQ is being used for all non-IT related contracting for this agency, though the original solicitation didn’t make this at all clear, apparently, they announced that at an industry day that I wasn’t able to attend (the work I do, which is part of the core agency mission was not even described in the solicitation for the IDIQ). So for the next several years, my only mechanism to provide my services to this agency is through my working with my prime. This agency has a LONG history of using labor-hour contracts to hire contract employees in lieu of hiring federal employees. These contractors perform the exact same duties as federal employees, which are core components of the agency’s mission, and they are required to do it at federal offices in the same office as federal employees doing the same work. I know this because I worked at the agency for six years, and for those six years I share an office with contractors doing the exact same job as me (though they typically get paid much less). The contracts to support these positions are typically the 5-year, base + 4 option year approaches. All of this makes it look very much like personal service contracts, despite this being explicitly prohibited under the agency’s contracting mechanism. They don’t actually put any effort into disguising this fact when they write the contracts beyond the required statement saying “this is a non-personal services contract”. The appearance of using this as personal service even extends into the agency having contractors represent the agency in public and stakeholder/decision-making groups. When you ask one of the contractors who their supervisor is, most will provide the name of their NMFS project manager unless they were specifically coached to answer otherwise, and the contracting companies exercise no supervision of these employees. We have been pushing for 4 years to try to get the agency to move to a non-personal service approach at least in our area of expertise. We have brought up the personal services issue from the COR level to the IDIQ manager and the agency ombudsmen over this time frame. We have been offering a firm-fixed price approach to meeting the agency needs, which is less expensive than their labor hour approach, offers guaranteed work productivity, and compliant with the law and regulations. We have had one region use the method and that contract worked great, and that region is seeking another round of the fixed price approach. However, the entire rest of the agency has completely disregarded the approach, to the point of continuing to award labor hour contracts for personal services even when we offered a less expensive fixed-price approach. And to be clear, my prime partner and I have a solid past performance history. But our approach, which to the best of my understanding is the ONLY approach they have been offered that is actually compliant with FAR has for the most part passed over in favor of awarding to the incumbent contractor and their incumbent contract employees (which also goes even more to the point that the agency is treating the contract employees as though they are their employees). My understanding of the problems here are really: · These seem to be blatantly personal service contracts as they meet ALL of the criteria for evaluating whether a contract is personal services or not under 48 CFR § 37.104. · They are using labor hour contracts to hire for these positions despite having clearly stated criteria for number of hours requested (they are hiring in single full-time employee increments per line item), without performing a Determination & Finding to support the use of labor hours over firm fixed price or fixed price with economic adjustment (despite FAR 12.207 and FAR 16.601. · And just for fun, this agency has awarded more than $40 million in contracts in one year to one company under small business set-asides where the standard is $16.5 million, and has actually refused to do anything to remedy this to comply with the spirit (and letter) of the Small Business Act. I know that FAR hasn’t been updated, and technically what they are doing is within regulation, but they refuse to take any actions within their discretion to even limit their awards to one business under small business-set asides to $16.5 million per year, request a new small business certification, or even exercise individual CO judgment to implement the intent of the SBA. My prime offers a broader array of services and has other contracts, and is not willing to risk retaliation by appeal award decisions, and as a subcontractor, I don’t have standing to appeal or take the issue to the GAO. And the CO’s, IDIQ manager, small business advocate, and agency ombudsmen have all made it pretty clear that we would likely experience retaliation if we started appealing awards based on the use of personal services, mismatched contract types, or even our technical review ratings. I would say they have made it clear that we could expect retaliation without threatening retaliation, it would always come from somewhere else in the agency. I could appeal the expansion of scope for the IDIQ, but that ultimately leaves me with the same issues. I also want to be cautious on doing anything as it could potentially have pretty negative consequences for my prime partner if their name got associated with mine. So the advice I am seeking is how can we get the agency to move forward into a more FAR compliant approach. I understand there is a long history in doing the things the way they have for decades, and we are not trying to force them to change all at once. But we do want to see them make changes when they have the opportunity to do so (e.g. awarding contracts to proposals that are non-personal services approach and fixed-price over labor hours when the proposal is better than satisfactory and price competitive or cheaper!). I know that is a fair amount of information, so I hope I still made our issues clear. I also want to acknowledge that I could be wrong about all of this and totally be misunderstanding the FAR as I have not had comprehensive training on it, and am looking at specific components often in isolation. Any advice here is appreciated!
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