Vern Edwards

1 hour ago, govt2310 said:

You are correct, the DHS PIL does not say that one cannot use it with FAR 15, it just says it is "not recommended."  See pages 13 of 44, 22 of 44 in the Workbook at https://www.dhs.gov/publication/pil.

The phrase "not recommended" does not appear on PILS Workbook page 13. However, that page seems to suggest that FAR Part 15 requires the use of ratings and precludes the use of evaluation by direct comparison. 

PILS Workbook page 22 says that the "comparative evaluation" technique is:

Quote

Ideal for task/delivery orders under FAR subpart 8.4 and § 16.505, but also for part 13 simplified acquisitions (incl. subpart 13.5 for commercial items up to $7 Million). Not recommended for use under FAR part 15. 

The Workbook doesn't provide any rationale for saying that evaluation by direct comparison without ratings is not recommended under FAR part 15. So no critical thinker would concur with that "not recommended."

FAR Part 15 does not require the use of ratings or scores. The PILS workbook is wrong to suggest that it does. Ratings have never been required by procurement statute or by any procurement regulation in the Code of Federal Regulations. There are several good reasons to discard ratings. One reason is to eliminate protests about the assignment of ratings.

The purpose of ratings is to simplify and facilitate the aggregation of evaluation findings. (The best way to do that is with numerical ratings, not adjectives or colors.) See "Scoring or Rating in Source Selection: A Continuing Source of Confusion," The Nash & Cibinic Report, February 2006. See also "Source Selection Decisions: Ratings Should Not Be Used," The Nash & Cibinic Report, April 2018. If you don't use too many evaluation factors, there is no reason to assign ratings.

And the contractor should demand an increase in estimated cost, as well as fee, so they don't try to tag them with a cost overrun.

The oversight contractor was hired to oversee the performance of some construction contracts. The construction contracts were affected by some excusable delays. The oversight contractor was not affected by the delays.

A contracting officer worth their salt who was going to hire a contractor to oversee construction contracts would have included an option to extend the oversight in the case of just such an event, which is not at all uncommon in construction work. But to apply the excusable delay clause to the oversight contractor in an attempt to force them to continue to perform without additional fee is a howler.

Ignorance and incompetence reign supreme in that office. But if the contractor goes along without filing a claim for an adjustment to the estimated cost and fee of its contract, then it's just as dumb as the CO.

If I were the contractor and they pulled that nonsense on me I'd go right to a claim. Forget a request for equitable adjustment. The claim would be no more than two pages long.

Sigh.

@Tzarina of ComplianceIf the contract is cost-reimbursement, then it should include the clause at FAR 52.249-14, Excusable Delays. That clause does not provide for an "equitable adjustment" in time or money.

What you have described is the thinking and plan of an office that does not know what it is doing. You are likely correct in your thinking that the extension is a sole source procurement.

So what can you do, besides write a memo?

27 minutes ago, Tzarina of Compliance said:

I have a question in regard to what constitutes "completion" in a CPFF Completion Type contract. 

What constitutes completion depends on the terms of the contract. What does the contract say? Did the SOW say that the contractor had to provide construction oversight until the construction was complete? Did it tie the period of performance to the status of the construction contracts? Or was the period of performance stated in terms of days or dates?

The oversight contractor did not experience delays, the construction contractors did, unless the oversight contract clearly tied the oversight contractor's  obligations to the status of the construction contracts.

If the oversight contract is not clear in that regard, then the answer is negotiable. If the issue cannot be settled by negotiation, then it may have to be settled by litigation.

6 hours ago, Jamaal Valentine said:

So what do you mean when you say ‘comparative’?

I don't know what govt2310 meant, but it doesn't matter. FAR Part 15 does not prohibit comparative evaluation.

Here is one explanation of "comparative":

In general, an agency can evaluate offerors and their offers ("proposals") by comparison to a standard or by direct comparison to each other.

For the sake of illustration, suppose that an evaluation factor is "distance of the contractor's office from the work site," the lesser the distance the greater the value. Suppose further that you decide to rate offerors on a numerical scale of 1 to 100 points, 100 being best.

One way to rate offerors and offers would be to establish a distance/points rating standard (scale), compare each offeror and offer to the standard, assign points accordingly, and then rank them by comparing the ratings and underlying facts.

A different way would be to compare the offerors directly to each other, giving the closest offeror 100 points, and then giving every other offeror fewer points on a proportional basis. So, to use a simple example, assume that you receive offers from five offers, the closet being five miles away and that the farthest being 36 miles away. You could assign the five-mile offeror 100 points and the 36-mile offeror 1 point and score those in-between based on the linear function.

Once upon a time some agencies—most notably the Air Force—prohibited evaluation by direct comparison, because they feared that the best offeror and offer might not be particularly good in relation to the agency's requirement. When you're conducting a source selection based on proposed weapon system design concepts, one design concept might be better than all the others, but not particularly good in terms of desired weapon system performance. (Keep in mind that the process we call "source selection" was developed for use in the acquisition of aeronautical, nautical, and space systems.) So the Air Force developed the concept of evaluation standards and required the evaluation of each offeror by comparison to the standards, not to each other. See Air Force Regulation 70-15, Source Selection Policies and Procedures (1976), para. 3-4b:

Quote

The evaluation of proposals is conducted at the factor level under each item and compared against measurable objective standards, and not by comparing proposals to each other.

That Air Force policy was adopted by some other agencies, but prohibitions against evaluation by direct comparison were eventually abandoned by most as the use of source selection expanded to a wider range of acquisition types after the enactment of CICA in 1984.

The prohibition has never appeared in statute. It did not appear in the Armed Services Procurement Regulation, the Defense Acquisition Regulation, or the Federal Procurement Regulation, and it has never appeared in the FAR.

Evaluation of offerors and offers by direct comparison is a perfectly legal and reasonable method to use for many source selections, especially those for commercial products and services in which evaluation should be based on what is available in the market. Evaluation by comparison to standards is much more challenging, because the development of evaluation standards is challenging.

In any case, every source selection decision ultimately requires the direct comparison of offerors and their offers, whether they were evaluated by direct comparison or comparison to standards.

14 hours ago, govt2310 said:

You cannot do "comparative" with FAR Part 15.  I know it can be done under FAR 16.505, but not FAR Part 15. 

Whatever govt2310 meant by that, it is wrong.

3 hours ago, govt2310 said:

You cannot do "comparative" with FAR Part 15.  I know it can be done under FAR 16.505, but not FAR Part 15. 

@govt2310That comment was one comment too many. Your ignorance of the rules proves you to be unqualified for the acquisition under discussion. You are in over your head, and I am embarrassed for you. Do yourself a favor and leave the thread. It's dead anyway.

8 hours ago, govt2310 said:

I think this has to be a no cost contract. 

If it's to be a no cost contract, what consideration will the government offer the celebrity to make it binding?

1 hour ago, GABE said:

I believe the old way of doing it is anything over 250k, a contract is established, then a delivery order is executed against the contract. Not task order —> delivery order.

I never heard of that procedure, old or new. Why would you do that? It makes no sense.

You issue the purchase order, which is the Government's offer to buy. You ask the contractor to sign it in accordance with FAR 13.302-3(a) in order to indicate its acceptance of the offer. Then you have a contract. Then the contractor performs. 

@GABETwo questions:

1. Do you want to know whether you have to include commercial item contract clauses if you issue a purchase order?
2. What's up with the business about the task order? Why did you mention that?

@T SmithWhat would you like to know?

1 hour ago, govt2310 said:

Then why did GAO rule the way it did in this case: https://www.gao.gov/products/b-413104.10?

The agency set a competitive range.  The protester was excluded.  There is no mention of being in line for award.  Why?

Why? Note that in the case the GAO cited the Small Business Act, 15 USC 637(b)(7)(A), which says:

Quote

[The SBA] is empowered, whenever it determines such action is necessary... (7)(A) To certify to Government procurement officers, and officers engaged in the sale and disposal of Federal property, with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Government procurement officer or an officer engaged in the sale and disposal of Federal property may not, for any reason specified in the preceding sentence preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration.

and the SBA's implementing regulation, 13 CFR 125.5(a)(2)(ii), which says:

Quote

(2) A contracting officer must refer a small business concern to SBA for a possible COC, even if the next apparent successful offeror is also a small business, when the contracting officer... (ii) Refuses to consider a small business concern for award of a contract or order after evaluating the concern's offer on a non-comparative basis (e.g., a pass/fail, go/no go, or acceptable/unacceptable) under one or more responsibility type evaluation factors (such as experience of the company or key personnel or past performance)....

Note that the GAO did not cite FAR 19.602-1, which makes no mention of that rule. The FAR coverage is inadequate. A CO must be aware of the SBA's rule. See Canfield, "Traditional Responsibility Factor Doctrine: From Interpretive Gloss To Regulatory Enshrinement," Procurement Lawyer, Summer 2021:

Quote

Traditional responsibility factor doctrine appears to have begun as an interpretive gloss on the intent of the Small Business Act's conferring of authority on the SBA to determine whether small businesses are competent to perform work for the federal government. Over the years, that gloss has evolved, but it has remained a fairly fixed principle in federal procurement law, culminating in its enshrinement in the SBA's regulations. There is a wealth of statutory, regulatory, and decisional law that outlines and refines the governing principles, and practitioners in all areas of federal procurement would do well to familiarize themselves with it. As the foregoing discussion demonstrates, however, there still remain questions to be answered about the doctrine's application.

FAR 19.602-1 makes it seem like COs must refer a small business for a COC only when they have determined the apparently successful offeror to be nonresponsible. But that is not true.

Also see FAR 15.101-2:

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If the contracting officer elects to consider past performance as an evaluation factor, it shall be evaluated in accordance with 15.305. However, the comparative assessment in 15.305(a)(2)(i) does not apply. If the contracting officer determines that a small business’ past performance is not acceptable, the matter shall be referred to the Small Business Administration for a Certificate of Competency determination, in accordance with the procedures contained in subpart  19.6 and 15 U.S.C.637(b)(7)).

The problem is that the same is true of any responsibility-type evaluation factor.

@T SmithLooking back at your opening post:

On 11/13/2021 at 11:34 AM, T Smith said:

Special Termination Liability - U) The Offeror shall provide all details related to their Special Termination Liability (STL). The details must include monthly projected termination liability, independently for each Minimum Capability and Package, proposed over the PoP and based on their unique technical approach.

They want you to present a projected monthly schedule over the life of the contract of what the special termination costs identified in the clause would be ("termination liability") if the contract were terminated at each point in time. Termination liability is a very old concept and technique.

Are you familiar with the concept of termination liability? If not, I'll try to provide you with references.

See this: https://www.lawinsider.com/dictionary/termination-liability

@Tara T.I encourage you to invest time in learning how to research issues and questions and find resolutions and answers for yourself.

Wifcon's "For Beginners Only" forum may be helpful if you have a simple, straightforward "flash" question and a highly specific context. Otherwise, the resolution of many contracting issues is highly contingent, and there are no simple "boom" answers that will resolve them. When issues are highly contingent they tend to prompt free-for-all responses that may be more confusing than clarifying, and beginners usually are in no position to sort them out.

Consider the following  concerning an approach to answering questions for yourself:

An issue is a matter under consideration that is the subject of actual or potential disagreement, for example:

• Whether competition is required
• Whether a set-aside is required
• Whether a cost is allowable
• Whether a cure notice is required
• Whether the Davis-Bacon Act applies

Resolving an issue that is addressed in the FAR:

1. State the issue and the question that must be answered.
2. Research FAR and find the applicable rule(s), if any.
3. Read, analyze, and interpret the rule(s); they will tell you what facts you need.
4. Identify the pertinent facts of the problem (the "case", the situation).
5. Develop a syllogistic (deductive) argument. A syllogistic (deductive) argument is a set of three propositions structured in a format called a syllogism:
   • Major premise: The Major Premise is the applicable rule(s) in FAR. If X is the case, then do Y. 
   • Minor premise: The Minor Premise is the statement of the pertinent fact(s) of the case. X is the case. 
   • Conclusion: The Conclusion results (follows) from applying the rule(s) to the fact(s). Therefore, do Y. 
6. Write your argument down on paper in plain English.
7. Test your argument by discussing it with people you know whose knowledge you respect.

Teach yourself to do those things and you won't want to come to "For Beginners Only" unless you're just looking for a social media diversion.

I'm not saying that you cannot learn "things" at Wifcon's "For Beginners Only" forum. You can. I'm saying that I hope you understand the forum's free-for-all limitations, which are significant.

The problem is that a no-cost contract is still a contract—an agreement that the courts will enforce. See ThinkGlobal, Inc. v. Dept. of Commerce, CBCA 4410, 16-1 BCA P 36489, Sept. 9, 2016:

Quote

Although the Government will not pay for services rendered under no-cost contracts, that does not mean that the Government is similarly immune from paying damages for breaching the terms of a no-cost contract....

See the commentary by Prof. Ralph C. Nash, Jr., in  "No Cost Contracts: Is The Government Liable For Breach Damages," The Nash & Cibinic Report, Nov. 2016.

Why bother with a contract? Why not just write an informal agreement that the actor will perform the service at no cost to the government. Such an agreement is necessary in order to get around 31 USC § 1342.

If all you know is contracts, every agreement looks like a contract.

I see no reason for a contracting office to be involved in this matter.

8 hours ago, govt2310 said:

The celebrity is willing to do this job for free.

Why do you need a contract? Do you plan to terminate the celebrity for default if you don't like their performance? Write an agreement to the effect that the celebrity will do it as a public service at no charge.

1 hour ago, Tara T. said:

What are three things you can learn regarding Government acquisition from reviewing the website and discussion postings for beginners.

1. You must know what you want to know. (If you are not clear in your own mind, do not ask a question until you make yourself so. In so doing you might learn the answer to your question by yourself.)

2. You must write a clear, specific, and succinct question. (Write a wh-question. Think and work on it before you post. Craft it. Imagine the kind of answer you want and try to elicit that kind of answer. Don't post on the spur of the moment. Don't write compound questions. Use plain English. Don't use jargon, abbreviations, or acronyms. See "https://www.dummies.com/careers/find-a-job/interviews/ten-tips-for-asking-good-questions/.)

3. You must provide essential context if the question is prompted by an event or set of circumstances. (Describe the event or the circumstances—environment, background or settings that determine, specify, or clarify it and be prepared to provide more information promptly upon request. Ask the question first, then provide the context.)

Bonus fourth "thing":

4. Government contracting is exceedingly complex, practitioners often disagree, and some (more than a few) don't know what they're talking about.

Well, if you're doing "highest-technically-rated with a fair and reasonable price" in a multiple-award acquisition, the best way to avoid the COC process is to not find any offeror to be nonresponsible, either on an actual or de facto pass/fail basis. Instead, say that a low score in comparison with other offerors may position the offeror outside the set of the highest-technically-rated and, therefore, not among the prospective awardees.

During source selection planning, you must establish a rational procedure for determining the dividing line between the set of highest-technically-rated offerors and everyone else. But I would not establish a predetermined (before receipt of proposals) cut-off score. That might be considered arbitrary, "mechanical", or noncompetitive.

9 hours ago, T Smith said:

I am working a proposal response to a solicitation and there is a requirement for Special Termination Liability - U) The Offeror shall provide all details related to their Special Termination Liability (STL). The details must include monthly projected termination liability, independently for each Minimum Capability and Package, proposed over the PoP and based on their unique technical approach.

This is a first for me, has anyone else run across this requirement and if so how did you reply?

I know what termination liability is, but I have never heard of "special termination liability."

For what it's worth, I could not find the phrase "special termination liability" anywhere in the FAR system, which includes the DFARS, in the DOD Financial Management Regulation, in any other policy document, in any board of contract appeals decision, or in any scholarly work pertaining to government contracts. However, I did find mention of it in a 1990 GAO (non-protest) decision, B-238581, Oct. 31, 1990, which referred to "special termination liability" in connect with a "special termination" clause in a contract for the B-1B Bomber program. You can find it online at the GAO website.

If the solicitation includes the clause at 252.249-7000, then it may be that the solicitation should have said "special termination cost liability," which would make sense. It might be a typo or a careless word omission. That's what I would suspect.

You'll have to ask the contracting officer who issued the solicitation for an explanation.

I presume that the acquisition is for a multiple-award contract. Is that correct?

It appears that what you want to know is how to avoid having to refer offerors for a COC. Is that correct?

1 hour ago, Don Mansfield said:

What's the legal basis for including the clause?

The DOD class deviation, which is based on the executive order, neither of which states an exception for commercial items.

57 minutes ago, govt2310 said:

My question is, how does HTRO work with responsibility-type evaluation factors and small businesses?  If they self-score themselves out of contention, so they are found unacceptable for a factor that would make them also "not responsible," does the agency still have to send it to SBA for COC?

An offeror cannot determine its own responsibility or nonresponsibility. Only a CO may do that.

If a CO determines an offeror to be nonresponsible based on the offeror's own self-scoring sheet, and if that is the only thing keeping the otherwise successful offeror from receiving an award, then the CO would have to refer the matter to the SBA in accordance with FAR 19.602.

I have not yet seen any bid protest in which a CO determined an offeror to be nonresponsible based on the offeror's own self-scoring sheet, but there may be one or more that I have missed.

38 minutes ago, govt2310 said:

Highest Technically-Rated, Reasonable Price/Offer (HTRO), also called HTRFP or HTRRP, is an evaluation method where the offeror must self-score its own proposal.

Self-scoring is not an essential feature of the highest-technically-rated with a fair and reasonable price method of source selection.

35 minutes ago, WifWaf said:

Every requirement on a business has its own potential risk increase.  Risk is reflected in price.  In this case OSHA standards are probably tucked into overhead without their own contract clause but that’s not the buyer’s concern because it’s a commercial contract.  The buyer doesn’t need to care about that, but they buy it as a package deal nonetheless.  They buy a portion of the risk of their contractor’s employee getting hurt on the job, or, if the Interim Final Rule stands, getting caught lying about their vaccine status.

@WifWafThat mishmash of sentences amounts to utter nonsense.

1 hour ago, WifWaf said:

Standard commercial T&Cs in this case are developed by a company's ownership and placed in those contracts where the OSHA standard applies, to ensure the consideration due from the buyer allows the seller to meet the health and safety standards OSHA plans to enforce. 

I don't understand that sentence, especially the part that begins "to ensure the consideration due from the buyer..." What do you mean by "the consideration due from the buyer"? Do you mean the price?

Are you saying there are commercial contracts that include standard clauses that refer to OSHA requirements and that apply to the seller's operations? For instance, are you saying that there are commercial contracts that include clauses that incorporate OSHA Standard 1910, Subpart D, Walking-Working Surfaces?

Why would a commercial buyer care about that?