Vern Edwards

Who is "us"?

@Fara FasatYou must show them that a plan is not required by leading them through the FAR, step-by-step. It's no use citing what you've read here at Wifcon.

@General.ZhukovGeorgy, I think you're spot-on. (Have you heard about the new book by Dimbleby, Operation Barbarossa: The History of a Cataclysm (June 2021)? Also, I just watched part of a 1985 Russian film by Elem Klimov about Russian partisans during the Nazi invasion entitled, "Come and See." 97%/95% at Rotten Tomatoes: https://www.rottentomatoes.com/m/1036052-come_and_see . Not available for streaming yet. Realistic. Grim. Very grim.)

I'm glad, because for me it's the only kind of discussion worth having here.

Yes, I agree, such acquisitions are legally categorized as "competitive." Legally, an acquisition is categorized as "competitive" when the government solicits proposals and gives all responsible companies a chance to submit a proposal, which is considered "competing." This legality can give rise to a paradox—a "competitive" acquisition in which there is no competition in the ordinary sense of that word. That was the paradox that underlay Shay Assad's November 24, 2010 and April 27, 2011 memos, "Improving Competition in Defense Procurements," https://www.acq.osd.mil/dpap/policy/policyvault/USA002080-11-DPAP.pdf, in which he told COs not to use the adequate price competition standard when they receive only one offer. Sometimes, what is legally true is a "legal fiction," which Black's Law Dictionary, 11th ed., defines as: "a device by which a legal rule or institution is diverted from its original purpose to accomplish indirectly some other object." Offerors in a FAR 15.304(c)(1)(ii) acquisition do not compete against each other. Thus, I have argued that Don's proposed scheme for getting around the requirement to make an award to "each and all qualifying offerors" by limiting the competitive range to three offerors for purposes of "competitive efficiency" fails a logical (and maybe a legal) sniff test, and thus might not pass muster in a protest to the GAO and the COFC. If offerors are not competing, and if awards are to be made "to each and all" qualifying offerors, why would a CO establish a competitive range other than for the purpose of conducting discussions to allow a non-qualifying offeror become qualified? In what sense are some of the offerors "most highly" rated? What does "most highly" rated even mean in such an acquisition? Would non-qualifying offerors be among the most highly rated? In response to Joel's inquiry and my argument, Don and ji20874 respond with a legality. Fair enough, but would it pass muster in a protest? I don't know. It strikes me as a transparent work-around, a kind of legal fiction/ It's the kind of work-around that if used too often eventually results in more rules. (Exceptions to rules seem to prompt work-arounds to expand their application, which often result in more rules.) I think Don has showed us another instance in which the FAR does not always make sense. In this case, FAR 15.304(c)(1)(ii)(A)(3) and FAR 15.306(c)(2) do not seem compatible. Should FAR address that issue, or should the councils wait for the protests to address it, if ever? The FAR councils implemented a statute simply by inserting it into the FAR without thinking things through, which is their job. It's already started. Here is the question which started this part of this thread:

No.

It would be if the FAR councils had added it to the list in FAR 6.102. But they didn't, which I think was a case of oversight. But forget about that. Do you agree that the procedure described in FAR 15.304(c)(1)(ii) does not involve "competition" as defined pursuant to FAR 1.108(a)? (See the definitions of "compete" and "competition" in The American Heritage Dictionary, 5th ed.) If you do not agree, why not? If you do agree, then do you understand my point about the illogic of establishing a "competitive range" in an acquisition that does not involve competition? And if "full and open competition" is about allowing all responsible offerors a chance to "compete," how does a FAR 15.304(c)(1)(ii) acquisition do that?

The FSS solicitation process is considered a "competitive procedure," but it does not provide for full and open competition as defined in FAR. See: "The Competition in Contracting Act" at https://interact.gsa.gov/blog/competition-contracting-act-cica

@Don MansfieldBah! Get your head out of the FAR, which is a sinkhole! If offerors are not contending against one another for a prize that they cannot all win, then what kind of "competition" is there? And what kind of "competitive range" would you have? And why limit the competitive range for competitive efficiency if there is no real competition? You get it or you don't.

@Don MansfieldThe FSS program is expressly authorized by law as an "other competitive procedure," even though offerors don't really compete with one another. See FAR 6.102(d) and 41 USC 152(3). Same for broad agency announcements. Those procedures were grandfathered in when CICA was passed.

@joel hoffman@Don Mansfield It doesn't. See FAR 15.306(c)(2): Now see FAR 15.304(c)(1)(ii): Now think about it. If a CO chooses to invoke FAR 15.304(c)(1)(ii), then there is no competition. The only purpose of the "source selection" would be to invite companies to quality for an award, which, according to FAR, must be made to "each and all" qualifying offerors. Anyone using that method is not seeking efficient competition. In fact, they are not seeking competition of any kind. To invoke FAR 15.306(c)(2) in such an acquisition makes no sense to me. Indeed, one can argue that the very idea of a "competitive range" in a 15.304(c)(1)(ii) "competition" is paradoxical. What Don has shown is that when the FAR councils added 15.304(c)(1)(ii) to the FAR they either did not see or or chose not to address the apparent disconnect between that new rule and FAR 15.306(c)(2). I just checked both the proposed rule, 83 FR 48271, Sept. 24, 2018, and the final rule, 85 FR 40068, July 2, 2020, and found no mention of the fact that a 15.304(c)(1)(ii) acquisition is not competitive. Not only did the FAR councils miss the disconnect between FAR 15.304(c)(1)(ii) and 15.306(c)(2), but they apparently missed the disconnect between 15.304(c)(1)(ii) and FAR 6.101. A FAR 15.304(c)(1)(ii) acquisition cannot result in full and open or any other degree of competition unless the agency announces its intention to limit the number of awards. There is no mention of "each and all" in the FAR 2.101 definition of full and open competition, and I don't think there is any provision for it in FAR Part 6, yet it is clearly permitted. So if I wanted to apply 15.304(c)(1)(ii) and limit the number of awards I would say so in the RFP and say that a limit is necessary in order to obtain full and open competition as required by CICA and FAR 6.101. Arguably, you would be integrating and reconciling the requirement to award "to each and all" and the requirement to seek full and open competition. Prospective offerors would have to protest before the solicitation closing date or risk having a protest filed afterward ruled untimely. (It would be an interesting protest.) Just brainstorming. Do I misunderstand FAR 15.304(c)(1(ii)? Have I missed something?

Anyone who wants to understand the standard of review for Court of Federal Claims bid protest decisions should read Judge Marian Blank Horn's decision in Mortgage Contracting Services, Inc. v. U.S., 153 Fed. Cl. 89, February 7, 2021, pages 33 -41, in which she provides a comprehensive explanation. It's really a short but very informative lecture on the topic. If you want to understand the differences between the standard of review at the GAO and at the COFC, read Schaengold, et al., "Choice of Forum for Federal Government Contract Bid Protests," Federal Circuit Bar Journal 2009 (18 Fed. Circuit B.J. 243).

I would not accept that as a general proposition. A labor rate is not realistic just because the offeror is currently paying it. The offeror might have a high turnover rate because it is too low to ensure that the offeror can maintain a stable workforce that will produce acceptable results on time. it may be realistic, or it may be unrealistically low.

Very good question.

Procedural insanity.

Realism is usually a matter of whether a price or cost that the contractor proposes reflects what it will really have to pay to get the job done. Reasonableness is a matter of whether a price or cost is an amount the government should be willing to pay for what it expects to receive.

FAR 31.201-3 discusses the reasonableness of a cost. FAR 31.205-6 discusses the allowability of a cost. Reasonableness is an element of allowability. 31.205-6 Compensation for personal services.

I think that if an agency were to state in the solicitation that it was going to cap the number of awards, such that some "qualifying offerors" would not receive a contract, the GAO or COFC might find a post-award protest to be untimely. Not sure. Ordinarily, I don't that there is any question that an agency can cap the number of awards. The issue is whether they can do that if the CO invokes FAR 15.304(c)(1)(ii)(A)(3). In any case, neither of the protests cited by ji20874 appear to have been based on FAR 15.304(c)(1)(ii)(A)(3), unless I missed it.

Patrick, I'm not sure what "supporting data" means. If it means internal data provided by the offeror, then I don't think it's enough to be the basis for a determination of price reasonableness. That was one of the great lessons-learned from the great spare parts pricing scandal of the mid-1980s, which resulted in a wholesale revision of pricing guidance in 1987. That's why incurred costs are not presumed to be reasonable. See FAR 31.201-3(a). Ultimately, determinations of price reasonableness must be based on comparisons to market prices, prices obtained through competition, or some other standard of reasonableness. See FAR 15.404-1(b)(2) and the Contract Pricing Reference Guides, Vol. 1.

Which sometimes are, in effect, new rules. Consider the GAO's interpretations of the requirement for discussions in source selection since it was first enacted as part of Public Law 87-653, on September 10, 1962, and read: From that short statutory passage we have gotten GAO and COFC interpretations and applications in hundreds of protest decisions and have ended up (so far) with FAR 15.306 and still more protest decisions. Emergent behavior in a complex adaptive system.

The rates may in fact be fair and reasonable, but that conclusion does not follow from the stated premise. I would reject that cost evaluation.

Haven't seen it, but who knows? Try it and let's see what happens. You might get by with it. It's an interesting phenomenon. Congress makes a rule: "You shall evaluate price." That rule proves to be inconvenient in some circumstances, so Congress makes an exception: "Well, you don't have to evaluate price if you're going to make multiple awards and give a contract to "each and all qualifying offerors." It isn't long long before somebody tries to stretch or bend the exception. This comes to the attention of Congress after a while, which then changes the rule or makes another. I've seen it happen many times over the course of my 47 years in this business. That's why the FAR (48 CFR Ch. 1), which started out being 1,220 pages long, is now 1,624 pages long and still growing—an historical average rate of about 10.9 pages a year over 37 years. That does not include the FAR supps. Maybe this is an illustration of what David Graeber described as "The Iron Law of Liberalism" in his book The Utopia of Rules: Rules spawn more rules. Emergent behavior.

See Blue Tech, Inc. v. U.S., Court of Federal Claims, on the Wifcon home page.

@ji20874"Stupid"! You're starting to sound like, like... 😄

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