Vbus

Rox, if you do a keyword search for "fedbid" on FedBizOpps, you'll see a lot of what agencies are buying through FedBid.com (both products and services) and the terms and conditions they include.

The proposed rule currently open for public comments, FAR Case 2008-27, Federal Awardee Performance and Integrity Information System, may change this discussion: http://www.regulations.gov/search/Regs/con...ontentType=html

Vern, I'm not sure that many agency's procurement systems would allow CO's not to issue purchase orders (I don't believe ours could). That doesn't mean its right to issue POs as opposed to paying monthly vouchers for deliveries, but just like so often with procurement software, the tail wags the dog.

For everyone who doesn't know about this already, wifcon has a page that lists important protest decisions by FAR part. See here: http://www.wifcon.com/pdbyfar.htm. Big THANKS to Bob for making this a feature of wifcon... I use it all the time. -

FAR 16.601( d) Limitations. A time-and-materials contract may be used only if? (1) The contracting officer prepares a determination and findings that no other contract type is suitable. The determination and finding shall be? (i) Signed by the contracting officer prior to the execution of the base period or any option periods of the contracts; and (ii) Approved by the head of the contracting activity prior to the execution of the base period when the base period plus any option periods exceeds three years; and (2) The contract includes a ceiling price that the contractor exceeds at its own risk. The contracting officer shall document the contract file to justify the reasons for and amount of any subsequent change in the ceiling price. Also see 12.207(b ) for further limitations on use of Time-and-Materials or Labor Hour contracts for acquisition of commercial items. [underlining added]

Hmm... sounds like a Catch-22. If you follow the strict interpretation of 17.207( f) then you can't exercise any option if you didn't evaluate it prior to award.

I'm not sure that was GAO's assumption. I believe that GAO was simply being anal about their interpretation of FAR 17.207(f ) that states that the option must have been evaluated as part of the initial competition. It would be as easy as looking under the Price Evaluation tab in the contract file. I can imagine a line of questioning like: "You may have evaluated the base and option period rates, but did you include the total price of the option at 52.217-8 (in any form) in your overall price evaluation? No? Then how can you state in a written determination for the contract file that the option was evaluated as part of the initial competition?" I agree with that opinion. But I don't know how you even could include a total price for the option in an overall price evaluation since the option could be exercised after any period of the contract and for any time frame up to 6 months. If you agree with the premise that the option at 52.217-8 is not considered evaluated unless it is somehow included in the overall price evaluation, than rather than go through the pointless exercise of trying to come up with a consistent way of applying it in an evaluation, I think a better remedy is to simply make the determination at 17.206(b ) that "evaluation would not be in the best interests of the Government". That written determination would need to be approved one level above the CO. Another remedy might be to include a statement in your RFP to the affect: "The Government will consider the option at 52.217-8 to have been evaluated through the evaluation of rates proposed for all contract periods." Another remedy might be for COs to simply ignore GAO... assuming COs are aware of this case at all.

So the CLINs are Fixed Unit Price (FUP) but not Firm Fixed Price (FFP)? Are the CLINs optional? Do they state a total price or a maximum quantity / maximum dollar threshold? Before delving into the topic of incrementally funding contracts again (which has popped up many times on wifcon [usually right around the end of the fiscal year]), take a look at a couple of past threads on the topic: Civilian Agency Incremental Funding of Fixed Price CLINs http://www.wifcon.com/discus/messages/8520/10308.html Incremental funding of fixed price O&M service contract http://www.wifcon.com/discus/messages/8521/8918.html

What is being acquired under each contract line item?

Although I belieeeeeeeeeeeve she is a he: http://www.acq.osd.mil/dpap/ops/biography.html

Carl had a very good post on this topic in another related thread here: http://www.wifcon.com/discussion/index.php?showtopic=228

Don, FYI: FAR 52.212-4 Alt I has not yet been modified into Federal Supply Schedule contracts. It has been in process for around 3 years now I think under FSS Mass Mod number FX48.

As an aside to this thread, I am posting a favorite "Vern-ism" of mine: http://www.wifcon.com/discussion/index.php?showtopic=18

Prezmil2020, Remember that "Full and Open Competition" is not required for: 1. Any acquisition performed using simplified acquisition procedures (FAR 13) 2. Any acquisition performed using the Test Procedures for commercial items up to $5.5M (FAR 13.5) 3. Any acquisition performed using Federal Supply Schedule procedures (FAR 8.4) 4. Any acquisition performed using the procedures of an Agency indefinite delivery contract or GWAC (FAR 16.5 w/ contract T&C's) All of these procedures allow for a much more streamlined acquisition of commercial items than a full and open competition under FAR Part 15 procedures.

Scott, I think you may have some trouble with what you propose. Have you taken a look at FAR 17.207(f)?: "Before exercising an option, the contracting officer shall make a written determination for the contract file that exercise is in accordance with the terms of the option, the requirements of this section, and Part 6. " [underling added] Do you think that exercising option periods for different spans of time than what was originally stated would be "in accordance with the option"?

Don, Thanks for the response! Yeah, I never thought of a delivery/task order as a UCA, its just a CA. So the key phrase of that definition is "for which the price has not been agreed upon before performance has begun." I get that, I'm just thrown off by the definition's inclusion of orders against BOA's (but again, if that call order is "unpriced" then that is what is being described as a UCA). Agreed. -

Good read. Question: Does a task order placed against an IDIQ contract meet the definition of an undefinitized contract action? Note that DFARS 217.7401(d) includes an order against a BOA as an example of a UCA. I ask because for agency IDIQ contracts, we routinely fund the minimum ordering amount at the IDIQ contract level. When a requirement is definitized and a task order is placed, funding is allocated from the contract level to the task order level. If, for example, funding was obligated to an IDIQ contract in FY09, would it be improper to allocate that funding to a task order that was placed in FY10?

Note that box #27a on the SF1449 does not let you include the clause 52.212-4 without also including the provision 52.212-1. Designed that way?

Vern, Sorry for being thick, but bear with me. You?re battling against a lot of training, internal policy, and examples of what is required. And not just with me. I can accept this as an extension of the prescription, especially since the reference in the provision text reads: "As prescribed in 12.301(b )(1), insert the following provision." Though why was the same language was not used at 12.301(b )(2) to extend the prescription of 52.212-3? You said that 52.212-3 was also not required for RFQs but that a CO would need to obtain reps and certs before making an award. Do you believe it was the intent that every CO would draft their own language in RFQs stating that reps and certs would need to be completed by the quoter before receiving an award? I had included the language at 12.603(c )(2) in the discussion not as a requirement to include the provision, but as evidence that the intent was that COs would include the provision in RFQs as well. 12.603(c )(2)(viii) states that a contracting officer shall include a statement that 52.212-1 applies to the acquisition, regardless of whether the CO stated the solicitation type was RFP or RFQ. I agree. Using the provision for RFQs would require significant tailoring of those sections. Do you believe that to be deliberate? Does the lack of ?shall? or ?must? imply that it it should be read to mean ?should? or ?may??

Vern, Do you believe 52.212-3 is required for commercial item RFQs? Do you believe 52.212-1 is required for RFPs when using Simplified Acquisition Procedures?

I for one am not trying to be stupid about interpreting and applying the FAR. Common sense is very important. Maybe everyone who includes the provision at 52.212-1 in an RFQ is stupid... or ignorant. Maybe everyone is just being lazy. If you read the provision at 52.212-1, it is clearly geared toward the solicitation of offers, and in fact pulls many of its sections from the requirements of FAR Part 15 (i.e. debriefings, late submissions, discussions, etc). When I read the provision, common sense tells me this provision is not wholly appropriate for a RFQ using the combined procedures of Part 12 with Part 13/13.5. This is clearly a problem with the way the provisions are written and/or prescribed in the FAR. But what about the FAR? It states clearly in the prescription at FAR 12.301(b ) to include 52.212-1 and 52.212-3 in solicitations for the acquisition of commercial items (the provision 52.212-2 is not required). The FAR also states in the instructions for synopsis and solicitation at 12.603(c )(2) that the CO shall include the following statements: ?(ii) The solicitation number and a statement that the solicitation is issued as an invitation to bid (IFB), request for quotation (RFQ) or request for proposal (RFP).? and ?(viii) A statement that the provision at 52.212-1, Instructions to Offerors?Commercial, applies to this acquisition and a statement regarding any addenda to the provision.? And the FAR definition of ?Deviation? at 1.401 includes as an action that requires a deviation: ?(b ) The omission of any solicitation provision or contract clause when its prescription requires its use.? Even looking at it from a common sense approach, the provisions at 52.212-1 and 52.212-3 do contain important requirements and information that need to go in a solicitation, RFP or RFQ. An RFQ needs to specify the NAICS and size standard; quoters need to know they must be CCR registered and have a DUNS and TIN in order to receive an award; and quoters need to submit representations and certifications in order to receive an award. Yes, all this information (as well as all other ?instructions to quoters? information) might more properly be included as separate terms and conditions of the RFQ. But what's happening instead? A CO who knows that the provisions do contain some required information (like reps and certs and CCR/DUNS/TIN), AND sees that the provisions at 52.212-1 and -3 are prescribed by the FAR, AND doesn?t want to go against the FAR is likely to take the easy road and just include the provisions as they are. Is it also possible that there isn?t a healthy understanding of the difference between ?quote? and ?offer?? Yes. Is it also possible that COs are using RFQs when their requirements have complexities that would make an RFP more appropriate? Yes. Is it also possible that many COs haven?t really read and don?t really know what is even stated in these commercial item provisions? Yes. Is it also possible that many RFQs under SAPs are being put together buy less experienced Contract Specialists and the CO is simply signing off on the awards? Yes. Lazy, stupid, ignorant? take your pick. All that said, I think it?s just as lazy to simply exclude a provision while knowing that it is prescribed in the FAR. I don?t think a memo to file cuts it. Common sense is important, but so are the regs. The FAR requires a deviation if you exclude a clause or provision that is prescribed. Omitting 52.212-1 from RFQs and replacing it with more appropriate ?home-grown? language may make more sense, but I don?t see how you do that without getting a deviation first. Especially since a CO may tailor 52.212-1 as needed. I?d also be surprised if someone in the FAR Councils was not aware of this issue (well, maybe not that surprised). If these provisions and prescriptions haven?t been clarified to date, what does that say about the authors of the FAR? Lazy, stupid, ignorant? take your pick. The Government clearly needs a set of appropriate provisions for commercial item RFQs using SAPs (including the Test Procedures of 13.5 up to $5.5). It would be nice if the FAR included such provisions. In lieu of that, perhaps a well tailored version of 52.212-1 should be created and circulated.

To perform a FedBizOpps search on past solicitations and awards, you can use the Advanced Search feature to search for both Active documents and Archived documents. The solicitation you were searching for is archived: https://www.fbo.gov/?s=opportunity&mode...re&_cview=1

The determining factor as to whether to include a clause or provision in a solicitation is the prescription. The prescription I cited at FAR 12.301(b ) says to include the provision "in solicitations for the acquisition of commercial items." The prescription does not draw a distinction as to whether your solicitation method is RFQ or RFP. Additionally, FAR 12.102(b ) states: "Contracting officers shall use the policies in this part in conjunction with the policies and procedures for solicitation, evaluation and award prescribed in Part 13, Simplified Acquisition Procedures; Part 14, Sealed Bidding; or Part 15, Contracting by Negotiation, as appropriate for the particular acquisition." [underlining added]. So if you are performing an acquisition for commercial items, you are still using the acquisition procedures of Part 13, 14, or 15, in conjunction with the procedures of Part 12. For example, an open market acquisition for computer equipment < $100K would be solicited using the procedures of Part 12 + 13. FAR Part 13 mentions "quote" many times. I agree with the premise that provisions 52.212-1, 52.212-2, and 52.212-3 all have sections/language that are not appropriate for a simplified acquisition using an RFQ, but that many of the elements of each of the provisions are just as necessary in an RFQ as an RFP (i.e. CCR Registration, Annual Reps and Certs). If you didn't include these provisions in an commercial item RFQ, you'd need to include a long list of separate FAR provisions (likely that would not be prescribed) or draw up your own provisions to include. I agree that finding a recurring practice on FBO does not mean the practice is proper. K-Law Atty mentioned they had not see it done before; FBO has many examples of it being done.

K-Law Atty, You've never seen FAR 52.212-1 included in an RFQ? Can you provide your interpretation of FAR 12.301( ?: "( Insert the following provisions in solicitations for the acquisition of commercial items, and clauses in solicitations and contracts for the acquisition of commercial items: (1) The provision at 52.212-1, Instructions to Offerors?Commercial Items. This provision provides a single, streamlined set of instructions to be used when soliciting offers for commercial items and is incorporated in the solicitation by reference (see Block 27a, SF 1449). The contracting officer may tailor these instructions or provide additional instructions tailored to the specific acquisition in accordance with 12.302." Also, as an exercise I'd like to suggest you review the site: www.fbo.gov. There you can perform a search of open solicitations and review agency RFQs for commercial items. I just now performed such a search and found no RFQs that did not include 52.212-1.

Apparently, it's an all out turf war! http://fcw.com/Articles/2009/07/20/WEEK-Sm...ness-rules.aspx