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Sam101

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Everything posted by Sam101

  1. I agree. I agree, however, this could count as discussions, since it's the same thing as asking SAIC to remove their indemnity clause. It should not count as discussions though as long as the removal of a contractor's unacceptable custom clause does not affect their price quote, or anything else either, like their technical approach, if that was an evaluation factor.
  2. In the case of United Marine International LLC File: B-281512, is “FAR Sec. 12.301(c) where a relative technical evaluation is contemplated” implying that FAR 52.212-2 Evaluation-Commercial Products and Commercial Services is only appropriate for trade-off solicitations? And not LPTA? If FAR 52.212-2 Evaluation-Commercial Products and Commercial Services can be used in LPTA, how is “the offered equipment's compliance with the specifications” not an evaluation factor? If this clause is allowed in LPTA, shouldn’t DACW69-98-Q-0328 have had FAR 52.212-2 in the solicitation that looked like this?: Addendum to 52.212-2 Evaluation—Commercial Products and Commercial Services. 52.212-2 is entirely replaced with the following: (a) The Government will award a contract resulting from this solicitation to the responsible quoter whose quote conforming to the solicitation will meet the Government’s requirement, the following factor shall be used to evaluate quotes for technical acceptability: Whether the description of the equipment meets the requirements of the performance specifications in Section C. (b) The resultant contract will not have options, the default text of 52.212-2(b) is not applicable. (c) The Government will make an offer to buy to form a contract, based on the selected quote. (End of provision)
  3. So, does this mean that the indemnified contractor is only entitled up to the contract price just like in the case of a T4C termination fee? For example, if a contract, no matter the contract type, is $100,000.00, and the contractor almost finished the work (like, I mean the contractor is literally putting the final nail in the work) and is ready to get paid $100,000.00, and a contractor employee accidently drops a hammer on a subcontractor's toe, and the subcontractor gets injured, there would be almost $0.00 left for the government to cover the cost of the government's responsibility to pay for the subcontractor's medical bills? Or is "availability of appropriations" not the same as "the obligated value of the contract"?
  4. Yeah, my wallet is looking pretty thin at the moment, sell me this here brand new Lexus for $15,000.00 with 0% interest and make the loan term 10 years.
  5. I agree. I remember a recent negotiation where I had to let multiple quoters know that their prices were too high, but I did not explicitly state the decease the government was looking for in terms of explicit dollar amounts, e.g., $200 or $500, I just said this: Quoter 1: Your price is moderately too high, please decrease. Quoter 2: Your price is significantly too high, please decrease. Quoter 1 decreased their price well and ended up getting the award, I don't remember by how much Quoter 2 decreased their price, but in any event, Quoter 1 got the award. I see your point, but just in general, not just in the government, but for businesses as well, I sometimes struggle to understand what "labor cost" means when it comes to performing "extra" tasks, in the sense that if workers are not performing these "extra" tasks, it's not a guarantee that they would spend their time doing something else that is useful to the business, or the government, i.e., the workers might be idle... if the works are idle, then what is the extra cost involved in them doing extra tasks? Is it better to pay workers for being idle?
  6. Interesting. That's better than any dealing I ever had with car dealers, since it makes sense and is a reasonable demand. This one time I looked the car dealer straight in the eye, with a serious face, saying I will buy a $37,000.00 car today if they sell it to me for $27,000.00... they said no, and then I left.
  7. Right, but when all the stars align, the government can end up staring at a document from the GAO stating "the protest is sustained, on the grounds that the government engaged in improper discussions".
  8. I know how to negotiate, thank you, I just like the way "no money no contract" sounds. But I understand your point, well said. This may be a mistake on the contractor's part, for trying to play games, especially when the solicitation asks for best prices on initial quotes.
  9. I am not an expert on indemnification matters in terms of when or why or how the government accepts the responsibility to compensate a contractor for harm or loss as a result of the contractor performing a government contract. I would imagine that only the clauses in the contract apply, so if there is an indemnity clause in the contract, it would have been in the solicitation (market research would have resulted in the government determining that an indemnification clause of some sort, crafted by the government, is appropriate... and I believe there are some standard indemnification clauses in the FAR, and possibly in agency supplements). I believe that any random contractor provided indemnity clause can be ignored, since contractors can't just plug their custom clauses into a contract just because it's in their small print. I guess that's why the government usually informs offerors that they must state any exemptions to the terms of a solicitation in a certain section of their proposal, I usually state in section L that offerors must state exemptions in their introductory letter, and that this is the only place that the government will consider any exemptions, and exemptions stated anywhere else in their proposal (such as in small print on the last page of their price proposal) will be ignored. It's good to know that, at least according to The Analysis Group, LLC B-401726,B-401726.2 that asking a quoter to remove a custom indemnity clause counts as discussions, I would have thought that this would count as a clarification, in terms of "hi, offeror, I noticed you forgot to remove the indemnity clause from your quote, you probably used a template that you use for commercial business to business contracts, please remove this clause, if you don't remove it, the government will ignore it anyways, actually, since the government will ignore it anyways, don't worry about it, I'm not asking you for a revised quote/proposal, I'm just letting you know that your custom indemnity clause will be ignored." For example, if the FAR Changes clause is in a solicitation, and the offeror has "any changes to the contract will be bilateral" in small print somewhere hidden in their proposal, not in the introductory letter's exemptions section, and the government awards a contract, this doesn't mean that the Changes clause gets overridden by the "any changes to the contract will be bilateral" just because that was part of the proposal. If this sounds too simple and doesn't reflect how things work in real life, then the FAR counsel should change the rules to make everything stated above true.
  10. Thanks for the case, C Culham. ... I don't know what's more frightening about The Analysis Group, LLC B-401726,B-401726.2, the fact that it seems to imply that FAR 15 requirements can reach into FAR 8.4 or that a quoter can be found unacceptable for having a hold harmless clause in their quote. I don't know if I ever received a quote with a hold harmless clause, but I have seen quotes with something like "the customer will pay $X amount if they cancel work within a certain number of days", and it's usually towards the end of a price quote, and I always just ignore it and pretend it's not there, since I only ask for a price in the price volume, and everything else is irrelevant. Even if the government awarded to SAIC and ignored the hold harmless clause, wouldn't that clause not apply anyways? What's the point of asking SAIC to remove it if it cannot legally be included in a government contract anyways? Like, why couldn't the government just realize that the hold harmless clause in SAIC's quote was just boilerplate text that they probably include in all of their commercial quotes that they forgot to remove it? I was under the impression that only FAR and agency clauses apply to a contract no matter that a quotation says.
  11. Yes, this is fair, I would document in the file that asking for a $200 discount is more reasonable than asking for a $600 or $5,000 discount, so I would argue that the first quoter has a more reasonable chance at award than the other two quoters. Yes, this is fair, I would say that asking for a $600 discount is more reasonable than asking for a $5,000 discount and that the government gave the first quoter a chance to revise their quote also, so essentially the first and second quoters had a reasonable chance of award, while the third quoter did not. But maybe I would say "no money no contract" and ask the end user to add $200 to the requisition and award to the first quoter. This makes sense for really simple requirements, for more complex requirements, it wouldn't be as simple, and use of evaluation factors will turn bargaining into discussions to where the GAO might say something like "well, the government bargained their way into FAR 15 on this one, because their actions sure do look like discussions as described in FAR 15, even though the government used the term "bargain" in the solicitation."
  12. It's difficult to overcome delusions. With FAR 1.102-2(c)(3)'s "All contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same", it's difficult to comprehend how not allowing all offerors/quoters who have a reasonable chance of award a chance to revise their proposal/quote is treating all offerors/quoters fairly. I'm not saying that the government can't wordsmith their way into allowing only one offeror/quoter to revise their proposal/quote, they can, I'm just saying that it's not as easy as "well, we'll just negotiate with one offeror just because we're in FAR 13, even though this offeror has a 95% chance of winning and the rest have 94% chance." Yes, please help.
  13. Thanks for the case, Don. What I would take away from B-281512 is that essentially the government documented in their contract file that United was "not in the competitive range" and I would imagine that if D&D's revised price came to be above $438,098.00 (United's original price) that the government would have allowed United to revise their quote also.
  14. Yes, exactly. SAP is not meant to allow for proposal or quote revisions, if an agency chooses to allow for proposal or quote revisions, they must follow FAR 15.306's (d) and (e) only, but not (a) through (c). In this sense, SAP is still good because of not having to follow FAR 15.306's (a) through (c) AND no required debriefings. And regarding FAR 15.306(d)(3), the "deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond" is not required either, because SAP does not require to have those terms in the solicitation.
  15. Absolutely not, because FAR 13.106-2 is Evaluation of quotations or offers, so it does not matter if it's an RFQ or RFP. I just realized that I titled this thread FAR 13.103-2 instead of FAR 13.106-2, I changed the title to reflect FAR 13.106-2.
  16. Interesting, thank you, Don. Now, I believe you, however I am desperately trying to find some case law to solidify this, i.e., I need to find case law that deals with a solicitation that tailored FAR 52.212-1 for SAP, to substitute the word discussions in that clause with another word, like "negotiate" or "bargain". The closest case that I could find so far is B-419705.2 Academy Leadership, LLC, this protest was sustained. Now, the solicitation for B-419705.2 Academy Leadership, LLC was 70CMSD21R00000001. I looked up 70CMSD21R00000001 on SAM.gov and looked through it to try to find FAR 52.212-1, but I could not find it, so it appears that the agency did not even include FAR 52.212-1 in the RFP. However, the RFP does state, in Attachment 08.07_RFP 70CMSD21R00000001.docx, that "ICE reserves the right to contact any Contractor at any point to request additional information regarding their proposals", which sounds to me pretty much the same as "The Contracting Officer will not negotiate with any quoters other than those of the Government’s choice" as in your tailored paragraph (g). Although, to be fair, I do see that the agency did further down on the last page of Attachment 08.07_RFP 70CMSD21R00000001.docx state that "The Government intends to award without discussions; however, reserves the right to hold discussions if the Contracting Officer deems it necessary." But still, "ICE reserves the right to contact any Contractor at any point to request additional information regarding their proposals" should have overridden the later use of the term "discussions" when reading the RFP as a whole, for example, the RFP explicitly stated "the rules regarding vendor communications described in FAR Part 15.3 shall not apply to this acquisition." But GAO still sustained this protest on the grounds that "not discussions" were not meaningful. If anyone knows of a case where the agency tailored FAR 52.212-1 for SAP and also did not contradict itself by using the term "discussions" elsewhere in the solicitation please let me know.
  17. Right, but bargaining = discussions in terms of the bargaining needs to be meaningful AND all offerors who have a reasonable chance of receiving the award need to be bargained with.
  18. Because of International Waste Industries B-411338: Jul 7, 2015: True, I see Discussions are negotiations that occur after establishment of the competitive range... Since FAR 13 does not require a competitive range, I guess if not intending to form a competitive range, it makes sense to not use the word "discussions". But still, even if I state in my FAR 13 RFP that "the agency may bargain with offerors", this really means "the agency may enter into discussions with offerors but skip the competitive range formation part".
  19. Right, I hear that all the time... and I'm still trying to figure out my thought process for why I even wanted to initiate this thread... but I guess I'm struggling with the concept of "call it "allow offerors/quoters to revise their proposals/quotes" instead of discussions when using FAR 13" when the end result is the same... i.e., calling it "not discussions" does not magically make it so that the agency does not have to: 1) Make sure that these "not discussions" are meaningful; and 2) Make sure that the agency allows all offerors/quoters who have a reasonable chance of award an opportunity to revise their proposal/quote. So, my point is this: why spend time trying to find a synonym for "negotiate" or "discussions" when the end result is the same (the only difference is sending the exclusion from competitive range letter)? I understand the convention of not using the term "discussions" in FAR 13, but I don't understand why it's a convention, why can't it be called "FAR 13 Discussions"?
  20. Hi, so, I'm probably thinking too hard about this, but actions of an agency in conducting FAR 13 procurements have more weight than what it says in the solicitation regarding discussions, correct? You see, I was reading this thread: In this thread, this was one of the comments: Everything in this page: https://www.wifcon.com/pd13_1062.htm, indicates that if an agency's actions allow proposal/quote revisions, "it is the actions of the parties that determines whether discussions have been held" - Priority One Servs., Inc., B‑288836, B‑288836.2, Dec. 17, 2001, 2002. So, I believe that even if a FAR 13 solicitation says "the agency may allow any quoter to revise its quotation but this will not be considered formal discussions as in FAR 15 in any way no matter what", that an agency still can't do "no matter what", i.e., an agency can still not form a formal competitive range (i.e., send "you are not in the competitive range" letters), but must still document the file as to why the agency is allowing one or more quoters to change their quotes, and why the agency is choosing not to allow all quoters to change their quote, and that explanation better be good, so the explanation will pretty much look similar to a formal competitive range determination explanation. Is my understanding correct?
  21. Shouldn't agencies always send clarifications to apparent awardees asking if their proposed key personnel are still available (especially if the evaluation took a long time)? For example, if the agency in the case of COFC - No. 21-1966C (February 4, 2022) Golden IT v. US had asked the apparent awardee (right before making the award) if their proposed key person was still available and the apparent awardee said "no, they are not available anymore", the agency would have made award to Golden IT (probably, unless the agency opened "discussions" and allowed for quote revisions to allow for submission of revised key personnel). And another similar case, KPMG COFC No. 22-866: Even if the RFQ stated that a letter of commitment was required for each key personnel, I can't find any law that states that letters of commitment are legally binding between the employer and employee (the employee can just sign a letter of commitment without thinking and then not follow through after award), so even if the solicitation requires a letter of commitment, shouldn't the agency still clarify with the apparent awardee that their key personnel are available? And if a letter of commitment is not legally binding, what is the point of a letter of commitment anyways? I mean the only thing I can think of is that it may prevent offerors from proposing key personnel without that key person's consent. So, the way I see it is that there are only 2 answers that the apparent awardee must give in response to the agency’s request for clarification (which the agency sends right before making award) in order for award to be proper: 1) Yes, KeyPerson is still available and willing to start work upon award; or 2) KeyPerson is saying they are on the fence and might resign but maybe not, we are in communication with them. (But how will the Government have proof of this?) … If the apparent awardee responds with something like any of these then award will not be proper: 1) We can’t reach KeyPerson, they are not answering their phone and responding to email; or 2) KeyPerson left our company five days ago and is not available anymore; or 3) Apparent awardee doesn’t respond at all. Even if GAO (unlike COFC) says that offerors are required to notify the agency even after proposals are submitted but before award of key personnel unavailability, offerors may not comply with this GAO “rule”, so the agency should just send a quick email to clarify key personnel availability just in case. Has anyone here sent such a clarification before? If so, how did that work out for you?
  22. I understand that this change will not change the price ceiling, but will it increase the burn rate? i.e., will the ceiling get reached faster? Did the Task Order have 2 senior researchers and now it has 3? This may be an issue.
  23. I'm not a business owner but if I was I would like a tool which tells me how to make an end product be Buy American Act or Trade Agreements Act compliant. And if that tool was to be free that would be great.
  24. To me recording an obligation means obligating funds in a computer... so if you issue a purchase order for nonseverable services or an item of supply on September 30th 2023 but the contractor does not accept the offer until October 5th 2023, I would imagine that the government is required to obtain FY23 funds to obligate to this now formed contract, unless the funds were already obligated in anticipation of acceptance. At the end of the day, either way counts as an obligation being properly recorded. As for severable services, the government will need to obligate FY24 funds... if FY23 funds were obligated on September 30th along with issuing the OF347 prior to acceptance then those will need to be deobligated since performance did not start before October 1st. If this is wrong then it's messed up and they need to re-write the red book to make this true.
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