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brian

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  1. . After posting and then editing the above for half an hour, I finally did some out-of-the-box thinking on this. Jon, arrange for your client to give a capabilities briefing to the CO and the Requiring Activity. If they are in a preference category, or could qualify for one, meet with the CO and explain how your client could perform a small set-aside requirement matched to their unique capabilities. Right now you're fighting for your client to be included in an open competition, but I assure you that they would prefer to be the ones benefiting from a non-competitive or restricted competition acquisition. . Also, encourage your client to reach out to the Small Biz Specialists in her/ his geographic area. Part of their job is to ensure the CO's know about the small businesses that are capable of performing these requirements. .
  2. . Jon, GAO's Procurement Law Control Group doesn't do "creative." C.f., B-401472; B-401661. They have an explicit charter at 4 CFR 21. They try not to exceed that authority. When they do, Vern blasts them with both barrels (see, for example, the thread on parity between HUBZone and 8(a).) However, there is another bid protest forum at your disposal. To a pro se appellant, they seem far more accommodating: The US Court of Federal Claims. If the nominal filing fee is no obstacle, try your luck there. I don't think they are as constrained as the Comp. Gen. is about a case fitting within a section of regulations; they can hear most any claim that gets to the integrity of the procurement system. But that is also what will probably limit any shot you have at getting your portion of Justice denominated in dollars. USCFC cares deeply about systemic problems that subvert justice, but have issued decisions that say (poetic license taken) they cannot create Justice to satisfy complainants, they can only fix the infrastructure of Justice/ Fairness/ Transparency/ Competition/ Fair & Reasonable Pricing/ Socio-Economic Programs, plus legal fees to the "private attorney general" who pursued the Government's interest in fixing things. . I've been referred to (in a Congressional request to GAO, no less) as a "serial protestor." A Congressional Staffer suggested that I should be fined for filing frivolous protests. GAO responded that they have not determined any of my protests, or anyone else's, to be frivolous, and to take such a task on (evaluating protests for frivolity) would be a far bigger waste of time than just handling all protests in their usual professional manner. Going further, GAO pointed out that in some cases my protests actually uncovered systemic problems that could undermine public confidence in the integrity of the procurement system. You know how the FAR ended up with 20,000 paragraphs, don't you ? 2,000 are attributable to Congressional direction or legislation; 18,000 come out of protests and court decisions. The GAO isn't in this protest business to achieve fairness or justice; they are the Guardians of the Integrity of the Procurement System. The remedies at 4 CFR 21.8 seem adequate to protect it; maybe a Judge can help with fairness and justice. . As far as comments by others that Government CO's make honest mistakes, I can witness to that. 2 months ago I protested a JOFOC/ Sole Source J&A that said only 1 particular major defense contractor could do what I had done on other contracts. My annual turnover has never exceeded $2 Million. Instead of asking in an email how they came to that dubious conclusion, I fired off an Agency Level protest. Early the next morning, the CO called me with her attorney, Kt Specialist and maybe others in the room. She apologized and explained that somehow one sentence got dropped out of the J&A. The Agency needed the small requirement described in the J&A, about 2.5 FTE, but they needed it to be performed at 57 separate geographic locations concurrently. I don't mean to imply that there was no impropriety in your situation, but many of the poor quality J&A's published at fbo probably aren't as far off-base as they first appear. Human error happens when people are involved. As that Krazy KO sez, get in line. A lot of people have been wronged, or so they believe, and as long as the specific problem that led to the error is being looked at, the system is working the way it's supposed to. Significantly, in your case, the Agency has made some gesture to you to acknowledge your complaint and to look at how to prevent the same error in the future. To the GAO, if an Agency takes timely corrective action, then GAO doesn't need to be involved, and monetary damages or costs are not appropriate. In my still evolving opinion, your protest may not be a slam dunk; and it must be dismissed as moot if the Agency takes timely corrective action. GAO has awarded me costs twice, as I recall. In both cases, Agency counsel was embarrassed that the error I complained about was left uncorrected for months, while they instead fought to rebut my complaint. Only after GAO said that there might be something to my complaint was the matter taken seriously. So sometimes an Agency is not able, for whatever reason, to see their own errors. These protests were dismissed, even though they could have been considered "slam dunks." What's important is not getting a protest sustained; what's important is getting Agency errors corrected. ON THE OTHER HAND, if you can show bad faith (impossible to show without 2 things,) then you're off to the races. What's essential to show bad faith ? #1. There must be actual bad faith; and #2. You must have someone in the Agency who will testify to that fact. . Props to Don Acquisition for a brilliant suggestion for a website that grades Contracting Offices. That looks like it could be a potential paradigm shifter, empowering Contractors in a heavily one-sided relationship / industry. .
  3. . Navy Contracting, I am familiar with the regulatory requirement for a debriefing, and when I don?t get one, I remind CO?s of that requirement. Nevertheless, I often don?t get one. I agree that any contracting officer not providing this basic information to unsuccessful offerors is not doing his/her duty, and is doing a great disservice to industry and the entire acquisition community. But my recourse is to file with the US Court of Federal Claims, since GAO won?t hear a protest of this failure to debrief. Former Fed, That came from an unpublished Decision on a GAO protest I filed, citing the same case Vern cites. Vern, Your pithy comment at NYT on PowerPoint was right on. I didn?t provide a cite because I didn?t want to have people trace it back to me. I figure that folks on this Blog are so resourceful that they can even find unpublished GAO Decisions. Former Fed, Unfortunately, I think that the GAO position is correct, as their authority is now written. In my Apr 25 2010, 01:15 AM post I meant that I would like it if GAO was given the additional authority to consider this type of complaint. I think it would improve the integrity of the procurement system. .
  4. The Law of Supply and Demand was enacted as PL 24-112. Section 15.235, Corollary B says: "Wheretofor inasmuch therefore be it resolved that, assuming a constant demand, price varies inversely with supply, ceterus paribus, et cetera, et cetera." That quote may not be exact; I'm reciting from memory. .
  5. . All an A-E firm has to sell is its reputation. Speaking from my experience as a private construction contractor, since my 1102 construction experience is somewhat limited, I think your best bet is to make clear to the A-E firm that you will make an adverse entry in the Past Performance system if they don't get your problems fixed. .
  6. DW, let me prove, yet again, that there's a lot I don't know about this field. #1. Making lots of copies for lots of reviewers. I have never bid on anything as complicated as a "systems" contract, where there are many reviewers to provide technical expertise in many different niche areas of expertise. I have only once bid on something that I suspect had more than 5 on the Tech Eval Committee. When I was an 1102, I only once worked on an acquisition that had more than 5 Evaluators. I was reviewing for Small Biz issues. So I flat-out don't know about situations that many members of the WIFCON Community face every day with a dozen or more evaluators. #2. Making lots of copies of lots of proposals. But I do know something about Market Research. I have recommended certain acquisitions for set-aside for preference programs, and the CO disagreed and issued the solicitation as a SBSA, and received over 50 proposals. Generally, if a Government technical person or Small Biz person knows that competition can be obtained within a preference targeted group, such as SDVOSB, HUBZone or 8(a,) opening it up to all Small Businesses runs a risk of getting an unmanageable response. Any time more than about 15 responses are received, better Market Research could have prevented that. Preference programs are one case where restrictions on competition are lawful. #3. I was thinking of a couple of acquisitions where I had prepared and mailed an offer, and then there was an Amendment the day before closing, and there was no way for me to get an Amended proposal in, short of paying the walk-up airfare to where proposals were due. To me, it looked like these Amendments were made to eliminate out-of-town offerors. Maybe I'm taking it too personally. .
  7. Sometimes it appears to me that requiring a hard copy is a way to limit the number of proposals that have to be evaluated. .
  8. . Tip of the hat to federalcontracts. 8 EXCELLENT points. I'm wavering on #5. . THE ONE THING THAT I WOULD FIX TO IMPROVE GOVERNMENT CONTRACTING. . Why does the Government Accountability Office hate accountability ? In every competition, every unsuccessful bidder, and especially every unsuccessful bidder in the competitive range, ought to be told who won, at what price, and why the winner was determined to be the best value. A Contractor who thinks that they are an injured party is in the best position to hold contracting officials to the rules. GAO has even said that the protest function allows such injured parties to act as ?private Attorneys General? on behalf of the Government, greatly increasing the capacity of GAO to ensure accountability. But then GAO says no to making this sort of accountability MANDATORY, as if accountability doesn?t affect the outcome. Specifically, ? We dismiss the protest because an agency?s failure to provide a debriefing is not a matter that we will consider. This is because the scheduling of a debriefing is a procedural matter that does not involve the validity of an award .? Gary Kepplinger, May 2, 2008. The protestor didn?t protest the scheduling. This member of the competitive range protested the fact that the agency refused any debriefing, even refusing to say who won or at what price. The value with options was over $100 M. It was never announced as required by FAR 5.303(a). It ain?t just the 1102 workforce that?s deficient in job knowledge, a point someone here is trying to make. Just because someone graduated from law school and got a job at GAO doesn?t mean they understand the basics of contracting, with apologies to the blogmaster. More often than not, even after repeated follow-ups, I am not told the results of competitions I bid on, most of which are less than $200 K. I am often told to look for the results to be posted at FBO, but awards typically are not posted. If posted at a site like asfi, I have no way to find notices after they are removed from the database of active solicitations, which is usually before the award is made. Fixing this one thing ? requiring unsuccessful bidders be told why someone else won, who won, and at what price, would open the door to more protests, which is how, for better or worse, this system heals itself. .
  9. . My impression, at the PEO level, folks in charge do whatever they want, almost without regard for what's within the 4 corners, and the Contract Admin types scurry around to make it look compliant. Contractor Execs who have little invested, compared to a private venture, making ROI's in the ballpark of 40% (that's possible even when weighted guidelines say that "profit" is only 8.2%) are more than happy to get jerked around by loose cannons, so long as the profitability on which their bonus is based stays up in the stratosphere. .
  10. . This warrants some consideration in return. Switching to twice-a-month payments can be a tremendous benefit to a small business. Normally, when a business bids, they built their prices based, at least in part, on their costs. This will cut costs appreciably. If they knew that they could have got more frequent payments up front, don't you think that they would have factored that in ? Don't you think that might have elicited more bids ? Consideration could be a lower price, but it could be something else of value to the Government: perhaps an additional report, or a white paper on a thorny issue. Maybe the contractor could take responsibility for opening up 2 days a week. Negotiate on behalf of your Government client. What would benefit them ? .
  11. . in plainer language, That clause says you have to do the work for up to 6 months past the term stated in the contract, without any changes in the terms, such as an increase in the contract rate. Once that 6 months is up, you can renegotiate the terms, such as demanding more money for the same work. How much more ? If the Sole Source justification is legit, and some are, you ought to push the limit. If it's not, and most JOFOC's I see posted at the FBO site are not, then only demand a modest increase, unless you have some other influence with the Requiring Activity. For those who object to my advice, take a course in Microeconomics. .
  12. -. "I think the ratio of denied/dismissed protests to those sustained supports my viewpoint." I suspect that nearly every GAO protest was preceded by an effort by the Protestor to ask the Agency what they were thinking when they made the choice they did. If the Agency refuses to give even the minimal information suggested in FAR 15.506, those items are sure to be covered in an Agency Report. The basis of a protest isn't always a matter of not liking the Agency's decision; sometimes the Agency declines to even say what they have decided. Sometimes a Protestor makes a compelling argument to GAO, and the Agency folds and takes corrective action without forcing the GAO to render a Decision unfavorable to their position. In my opinion, that shows there was merit to the protest. Sometimes GAO even recommends costs for a dismissed protest. But what is the official recorded disposition of the Protest ? Dismissed as moot. May I suggest that the raw number of dismissed protests does not support your viewpoint without further analysis ? .
  13. I know of one in Denver. contact them through http://www.denversbdc.org/ .
  14. . except for supporting my previous post, this is somewhat off-topic, but since some folks who post here seem to sometimes fail to appreciate the value of protests, I thought I'd repeat some comments from GAO's Report to Congress on Bid Protests Involving Defense Procurements, April 9, 2009, B-401197: "... several valuable benefits of the current protest process ... "First, protesters act as "private attorneys general" who use the protest process to identify and pursue complaints concerning the procurement system, with a resultant benefit to the public.[16] In addition, protests provide a form of indirect congressional oversight of the procurement process. Ameron, Inc. v. U.S. Army Corps of Engineers, 809 F.2d 979, 984 (3d Cir. 1987) ('the bid protest resolution process created by CICA is also intended to inform Congress of the operation of existing procurement laws, and to use the pressure of publicity to enforce compliance with those laws ? [by enabling] disappointed bidders to compel the executive to explain some of its procurement decisions to the Comptroller General'). ... "In addition, protests bring an important element of transparency and accountability into the federal procurement system that otherwise might be unavailable. Protests also provide guidance to agencies in the form of publicly-available decisions interpreting procurement laws and regulations. ... "As the conference report accompanying CICA stated, the availability of a strong bid protest mechanism promotes competition in the procurement system by providing contractors a measure of confidence that concerns regarding potentially unfair treatment may be addressed in a neutral forum.[17] Contractors, particularly small businesses ... might also perceive [possible disincentives to filing protests] as an indication that protests have become disfavored as a matter of policy. To the extent contractors believe that it is less likely that their legitimate concerns will be addressed, the result could be an increased distrust of the U.S. procurement system and reduced participation in the system--especially by small businesses. Either of these outcomes could reduce competition and impair the government's ability to obtain the best value in procuring goods and services. ... "As Congress has recognized, a robust bid protest process brings an important element of transparency and accountability into the federal procurement system and ultimately promotes competition by ensuring that concerns about unfair treatment will be addressed in a neutral forum." .
  15. Your contention is well-supported by a GAO Decision. But I don't think its accurate. The #1 reason for debriefings is to prevent protests. The #2 reason is to contribute to a sense that Contracting officials, in the performance of their duties, are accountable not only to their supervisor, but also to those offerors who participated in a competition in good faith. While not necessarily defending or justifying a particular source selection decision, the competent debriefing provides a rational basis for it. Accountability and transparency are at the heart of the GAO Bid Protest forum, and the low threshold for filing a protest (it used to be the price of a stamp) has been lowered to the price of sending an email. It is my biased opinion that the Congress made it easy to protest so that disappointed bidders could ensure that accountability and transparency, and to encourage meaningful debriefings. ........ It should be noted that GAO has stated in more than one Decision that: "... An agency?s failure to provide a debriefing is not a matter that we will consider. This is because the scheduling of a debriefing is a procedural matter that does not involve the validity of an award. The Ideal Solution, LLC, B-298300, July 10, 2006, 2006 CPD para. 101 at 3 n.2; Canadian Commercial Corp., B-222515, July 16, 1986, 86-2 CPD para. 73 at 5." I read about that in a GAO Decision about a case where the protestor made it into the competitive range, and the Agency refused to even say who won. The contract value exceeded the threshold for reporting at Defenselink.mil, but never was reported there. I think the lesson for Agencies is that, if they have done something improper, do not tell unsuccessful bidders anything, and especially do not give them debriefings. .
  16. . http://www.wifcon.com/pdcg21_1a.htm#cofc The Court seems to say it has jurisdiction over Federal Assistance, even "Other Transactions." Where does this end ? .
  17. . The buyers at FedBid will not tell an Agency "No." They get poorly written SOW's for complex services, and questions submitted through FedBid usually aren't answered. Not sure what's going on, but that is no way to negotiate a contract for complex services. eg, Buy # 166870_06 for services to write a PWS for repair of a specific ship, open until 21 October. The "_06" means that it has been posted 7 times, original + 6 reposts. Just guessing, but I think that means it closed 6 times without one bid even in the ballpark. On this particular buy, it came up on my settings because of the PSC Code, though out of my area of competency. The first several times it was posted, the PWS didn't even say in general what the contractor was supposed to do. It only indicated that the Navy had an ongoing need for ship repairs. Duh. That is corrected in the latest version ("write a PWS.") .
  18. I don't know what experience you have running a business, Vern, but it costs money to recruit, screen select, hire and train people. Do you think that a vendor ought to give up assets, like their investment in personnel, in order to help an Agency overcome poor HR management within the Government, and get no consideration in return ?
  19. . from GS-05 to GM-15 in the minimum time allowed by law. As I understand the law, that would be, what, 366 days ? I believe that the fastest way to rise in civil service is to get out, wait a year, then come back in without the time-in-grade restrictions holding you back. .
  20. . FYI: listing myself as an "Interested Vendor" at FBO gets me junk mail. .
  21. . this strikes me as a creative way to back out of a contract that isn't profitable. The Government isn't concerned with internal management (or petty squabbles) within a contractor's organization. Make that "shouldn't be." Caution ALL parties to the JV that every one will get a bad PPIRS if this isn't settled. .
  22. . NptAcq, the way I understand the D part of R&D, when a manufacturer develops a new and improved widget, that's product development. R&D is pretty broad. .
  23. . Aronson, do you require employees to sign a NDA/ Non-compete agreement ? If so, add this to it. .
  24. . Vern, in your Matrix, all three "Delivery/Quantity Arrangements" possibilities involve Indefinite-Delivery: Indefinite-Delivery-Definite-Quantity, Indefinite-Delivery-Indefinite-Quantity, and Indefinite-Delivery-Requirements. But in my experience, not nearly as broad as yours, all my contracts (just a handful) called for what I would consider "Definite Delivery:" I had an explicitly stated quantity to be delivered on or by a Required Delivery Date. I miss a lot, and may have missed something here, but couldn't this be a fourth type of Delivery/Quantity Arrangement, "Definite Delivery/ Definite Quantity ?" Wouldn't that make 12 boxes in the Matrix ? Or was the discussion limited to Indefinite Delivery contracts, and I missed it ? Changing subjects, I have an idea why VA Junior CO is confused about this. Long ago, I myself thought that if a contract is "fixed price," then the total contract value was some known certain sum, until changed by contract modification. Turns out, "fixed price" meant "fixed price per item," not "fixed total price." .
  25. . I scan through a couple of RFQ's from the Army's asfi site a week, on average. Usually, the only indication that something is an RFQ, and not an RFP, is the check mark in Block 14 of the SF 1449. The RFQ's that I see usually have all the Part 12 clauses, with no tailoring, including an explanation of the evaluation scheme. They mostly require technical proposals and certifications. When I worked in a federal contracting office last, management explained the difference between an RFQ and an RFP as being how much the Government had to tell any prospective or actual quoters or offerors about the selection process. Consequently, almost everything under the "Test" SAT for Part 13.5, $5.5 Million, was an RFQ, but had all the clauses and provisions of an RFP. If a quoter simply quoted a price, they would be nonresponsive. It seems to me that someone who quotes on an RFQ that includes the untailored Part 12 clauses is entitled to a debriefing, and protection against post hoc extensions (read: compliance with the "late-is-late" rule) if the RFQ says they are. .
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