govt2310

Can a contract designate other individuals, besides the Contracting Officer, as authorized to issue task orders off an IDIQ for services? I thought that only a warranted Contracting Officer or Purchaser could obligate funds on behalf of the Government. However, others I know believe that it is OK to designate the Contracting Officer's Technical Representative (COTR) as authorized to "issue task orders." I am told that this is a common practice at DOD and other agencies. I never heard of it before. Can anyone confirm this?

Thanks everyone. I will study your responses and try to come back with answers to your questions.

1-What did the agency ask for in the offers? ANSWER: We asked that they address the requirements in the SOW. 2-Was the agency intending or trying to evaluate offeror capability to fulfill the SOW requirements? ANSWER: Yes. * * * * * In the Evaluation Section of the Solicitation, one of the factors was TECHNICAL APPROACH AND UNDERSTANDING. It stated that the Offeror's Technical Approach and Understanding will be evaluated on the Offeror clearly demonstrating an understanding of the requirements with the SOW and describing a viable ,efficient solution showing how they will be met. Then it listed several "elements" that "should also be addressed." * * * * * Answer/Response to the other questions posted: Yes, the Government evaluates whether the offeror's proposal met the requirements of the SOW. So in situations where the evaluation factors state that the agency will evaluate the offeror's approach/promises in regard to the SOW, but the evaluation factors do not state that ALL of the requirements will be evaluated, can the agency still make award to an offeror if it turns out, after the fact, that an "unevaluated" requirement has not been met? And is this a matter of responsibility b/c the requirement was not evaluated, or is it a matter of post-award contract administration? If it is true that the Government cannot knowingly make award to a non-compliant proposal, doesn't that require that the Government always evaluate ALL, meaning 100%, of the listed requirements in the SOW? Because if say only 10% of the requirements are evaluated for, then the Government tries to make award, then post-award the Government finds out that one of the other requirements in the 90% that were not evaluated for, one of those is "not met," doesn't that make the Government stuck with a contract that fails to meet its requirements? Or is this considered just a matter of contract administration?

Hypothetical situation: Say an agency sends out a solicitation containing a lengthy Section C, SOW with a voluminous number of requirements listed. The Section M evaluation criteria states this is a Trade-off/Best Value, Non-Price Eval Factors are more significant than Price. Note, the Technical Approach Eval Factor DOES NOT say anything along the lines of "we will evaluate to the degree to which the proposal meets or exceeds the requirements set forth in the Section C, SOW." Rather, assume the Technical Approach Eval Factor only stated that the agency would evaluate for only certain things mentioned in the SOW. Does the agency still have an obligation to evaluate for ALL of the requirements set forth in the SOW? Can an agency consider the remaining things in the SOW that were not evaluated, just matters of "contract administration" after award?

The GAO protest of FITNET Purchasing Alliance, Nov. 2, 2007, B-309911, the GAO dismissed a protest challenging an agency’s decision not to set aside for small businesses an order under the FSS program valued at approx.. $12K, where the protester did not hold an FSS contract, and therefore was not an interested party to pursue this matter, The GAO decision stated that, since the "FSS meets the statutory requirements for using full and open competition," unless a protester is actually ON the FSS, they cannot be an interested party to protest the “terms of the solicitation." If a vendor is the only vendor on the FSS that can provide a particular supply or service, and then a non-FSS vendor wants to protest the agency's use of the FSS and sole-source only to that one vendor on the FSS, I believe such a protest would be dismissed by GAO. As the decision said, use of the FSS is considered "full and open competition."

Seeking suggestions for how to structure a contract for the following: A civilian program office needs to hire a federal employee for something mission-related. That program office wants the agency's HR office to post the job announcement to Usajobs. However, the program office also wants the HR office to hire a headhunter service contractor to also do its own search for qualified candidates. The program office has a set list of objective criteria it wants in the candidates (e.g., at least 10 years experience in such-and-such, education requirements, etc.). The program office wants the headhunter to seek candidates, submit the candidates to the HR office, and only if the names of the candidates submitted by the headhunter show up on the HR office's "qualified" list (HR has to review all candidates against the qualifications list), then the headhunter will get paid per qualified candidate it submits. If the headhunter submits candidates that are deemed NOT qualified, the program does not want the headhunter to get paid at all. So it would be X dollars unit price per each qualified candidate. The program office does not want to pay a "minimum" fee for the contract at all. So how could the contracting officer structure such a contract? What contract type and incentives should be used?

Also, although a contracting officer must still comply with FAR 8.404© (". . . orders placed under a FSS contract are not exempt from the development of acquisition plans"), and although FAR 7.102(a)(2) says agencies shall perform acquisition planning "to promote and provide for . . . full and open competition," I believe this requirement can be considered met by the statement at FAR 8.404(a), which says that orders against the MAS (the MAS means the FSS) "are considered issued as full and open competition." FAR 8.401 defines "MAS" as the FSS.

napolik: I see now. Thanks! I further researched FAR 8.405-6 Limiting sources, and I found that it states at FAR 8.405-6©(2)(vi) that the content of the justification must include "[A] description of the market research conducted among schedule holders . . . " Emphasis added. So if the agency is only required to do market research "among schedule holders," then it does not matter if another vendor who is not on the FSS can provide the requirement, the comparison/research is only amongst FSS schedule holders. Thanks again.

Interesting. Thanks, napolik!

Orders placed under the GSA FSS/ GSA Schedule are considered to satisfy the full and open competition requirements of FAR Part 6. FAR 6.102(d)(3). and FAR 8.404. If an agency's market research finds that there is only one vendor on FSS that is capable of providing a particular product or service that has ALL of the requirements the agency needs, can the agency still use the FSS to obtain this product or service? Assume that a SOW is included in the solicitation and the dollar value exceeds the simplified acquisition threshold. FAR 8.405-2 requires the ordering activity to provide the RFQ to at least THREE schedule contractors, OR document the circumstances for restricting consideration to fewer than three schedule contractors "based on one of hte reasons at 8.405-6(a)." FAR 8.405-6(a) only lists three reasons: -Urgent and compelling, -only one source capable, - in the interest of economy and efficiency/logical follow-on Can the agency justify awarding the order to this one vendor on the basis that it is the "only one source capable" in that it is the only vendor on the FSS that can meet all the agency's requirements? Or would you interpret FAR 8.405-6(a) as intending to mean, the vendor must be the only one source capable in the entire world, whether on the FSS or off the FSS? I believe the latter, but we are having a debate about this in my office. Can anyone help us sort this out?

Thanks, Napolik!

Followup to the FAR 12/FAR 8 question ... If an agency wants to use FAR 8.4 the GSA FSS Schedule, but they are acquiring services priced at hourly rates (labor hour) and not FFP tasks, does the requirement at FAR 12.207 to do a D&F justifying the use of a T&M or labor hour contract type apply? Or can we assume that GSA already executed this D&F?

Assume that the agency will provide the SOW.

FAR 8.405-2(d) requires ordering activities to evaluate the "level of effort and mix of labor." The Advanced Technology Systems, Inc. case at GAO, B-296493.6, from Oct. 6, 2006, held that agencies had to evaluate for this when the pricing was in "hourly rates." There are tasks on the GSA Schedule that are not priced at hourly rates for labor categories. For example, software maintenance is priced at a fixed rate by a period of time (e.g., a year) for X amount of dollars. Whether it takes 2 employees or 20 employees to provide that maintenance is of no consequence to the government. The price is a fixed-rate for the task. So my question is, if an agency is soliciting off the GSA Schedule for a scope of work involving both services priced by task and services priced by hourly rates for labor categories, does FAR 8.405-2(d) require the agency to evaluate the "level of effort and mix of labor" for only the the hourly-rates portion of the work, or all of the work? If it is all of the work, how would the agency evaluate for the "level of effort and mix of labor" for the work that is priced by task at a fixed-rate?

Ok, I see now. Thanks, Vern.

Thanks, Vern and Napolik. So it looks like the government agency must document specifically what is the value or benefit of having the incumbent again. Say an agency is evaluating proposals for an IT services contract. If one of the evaluation factors is KEY PERSONNEL, it should be reasonable and fair to consider it a STRENGTH that the Incumbent Offeror is proposing to use the same employees it has been using on the incumbent contract, folks who are most familiar with the agency's organizational culture, IT environment, etc, right? If there is an evaluation factor for TECHNICAL APPROACH, and it logically encompasses Transition (Phase In, Phase Out from the incumbent to the successor contractor), it should be reasonable and fair to consider it a STRENGTH that the Incumbent Offeror proposes to not have to do any Transition at all, right? For the PRICE factor, the reality is, other Non-Incumbent Offerors will have to factor the cost of Transition (Phase In) into their Price Proposals, but the Incumbent Offeror will of course have an advantage in that it will not have any Transition (Phase In) cost at all, thereby making it likely to have the lowest total price. Thoughts? Should the government agency have to level the playing field somehow in its evaluation? It appears GAO says no, they don't: "A particular offeror may possess unique advantages and capabilities due to its prior experience under a government contract or otherwise and the government is not required to attempt to equalize competition to compensate for it, unless there is evidence of preferential treatment or other improper action. Crux Computer Corp., B-234143, May 3, 1989, 89-1 CPD ¶ 422 at 5. The existence of this advantage, by itself does not constitute preferential treatment by the agency, nor does it otherwise represent an unfair competitive advantage. Government Bus. Servs. Group, B-287052 et al., Mar. 27, 2001, 2001 CPD ¶ 58 at 10."

In ABSG Consulting, Inc., B-407956, B-407956.2 (Apr. 18, 2013), the GAO held that an offeror who is the incumbent contractor is not entitled to "extra credit" in its past performance evaluation rating just for being the incumbent. See http://www.gao.gov/products/B-407956,B-407956.2. But the GAO did not address this question: can the government choose to, if it wants to, give "extra credit" to an offeror for its past performance rating, or any other evaluation factor, such as the technical approach factor, corporate experience factor, just for being the incumbent, and therefore, the offeror who is most familiar with the current workings of that government agency? Would the GAO consider this "reasonable"?

I have a follow up question on this topic. If a solicitation sets forth evaluation factors that contain what it refers to as "elements," must the SSEB Report contain detailed explanations addressing each of these "elements"? One time at a different agency, they did not address the elements listed in the solicitation and this was considered normal, as they were just "elements." Now I am at a new agency, and there is debate over this. Somebody here believes that the elements under each eval. factor must be addressed one by one, expressly, in the evaluation report, because these elements were expressly set forth in the solicitation. I would like to hear what others' experience is with this.

Thank you.

Say there is a solicitation that had a lengthy, complex Section C, SOW/PWS. But in Section M, the Evaluation Criteria, for Technical Approach Evaluation Factor, simply says something like, "We will evaluate for the proposal's compliance with the Capabilities requirement." If the Capabilities requirement was only a portion of the SOW, is it reasonable to interpret that the agency must only evaluate IAW the solicitation's weird Section M statement limiting evaluation only to the Capabilities requirement, so therefore, if the agency evaluates for compliance with the entire SOW, that is wrong? Assume that the solicitation due date for receipt of proposals has closed, so one cannot engage the CO in Q&A.

Don Acquisition - thank you! Yes that was exactly my question!

Sorry to use the term "BAFO." What I mean is the following: It is an offeror's or vendor's obligation to submit an adequately written quotation for the agency to evaluate, see United Def. LP, B-286925.3 et al., Apr. 9, 2001, 2001 Comp. Gen. Proc. Dec. P 75 at 19, and a protester's mere disagreement with the evaluation is not sufficient to render it unreasonable. Ben-Mar Enters., Inc., B-295781, Apr. 7, 2005, 2005 Comp. Gen. Proc. Dec. P 68 at 7. It is an offeror's responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation requirements and allows a meaningful review by the procuring agency. See, e.g., [4] International Med. Corps, B-403688, Dec. 6, 2010, 2010 Comp. Gen. Proc. Dec. P 292 at 7. An offeror is responsible for affirmatively demonstrating the merits of its proposal and risks the rejection of its proposal if it fails to do so. HDL Research Lab, Inc., B-294959, Dec. 21, 2004, 2005 Comp. Gen. Proc. Dec. P 8 at 5. [*7] In reviewing protests challenging the evaluation of proposals, we do not conduct a new evaluation or substitute our judgment for that of the agency but examine the record to determine whether the agency's judgment was reasonable and in accord with the RFP evaluation criteria. Abt Assocs. Inc., B-237060.2, Feb. 26, 1990, 90-1 Comp. Gen. Proc. Dec. P 223 at 4. Clearly stated RFP technical requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is technically unacceptable and may not form the basis for award. National Shower Express, Inc.; Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 Comp. Gen. Proc. Dec. P 140 at 4-5; Outdoor Venture Corp., B-288894.2, Dec. 19, 2001, 2002 Comp. Gen. Proc. Dec. P 13 at 2-3. [*8] And from the Alares GAO Protest: Alares also contends that the agency was required to clarify or conduct discussions with Alares regarding any "minor informalities and irregularities" in its technical proposal, and cites the RFP's reservation of the agency's right to conduct discussions if necessary. Protest at 2-3, citing RFP at 16; see Comments at 2-3. Correction of omissions identified in Alares' proposal, however, would not constitute clarifications, but discussions. See, e.g., Environmental Quality Mgmt., Inc., B-402247.2, Mar. 9, 2010, 2010 Comp. Gen. Proc. Dec. P 75 at 5; eMind, B-289902, May 8, 2002, 2002 Comp. Gen. Proc. Dec. P 82 at 5 (clarifications are not to be used to cure proposal deficiencies or material omissions).

Let's say the TEP advises the SSO, the Contracting Officer, to mark the proposal DEFICIENT for the stupid wrong-job-title reason. Say that the CO agrees with the TEP and follows their advice. So the offeror does not get the award. Can the offeror file a protest at GAO or the Court of Federal Claims on the basis that it was misevaluated, and actually prevail? I believe the standard GAO is that, as long as the decision is reasonable, GAO will not substitute its judgment for the SSO's. Also, the offeror has the duty to submit a BAFO if the solicitation says, we may make award without discussions. Thoughts?

I should clarify that I am presenting a hypothetical question. Say the TEP members have decided, unanimously, that they do NOT desire to waive this job title/wording error. Say they are very ornery, and are going to sticklers for exactitude. Say that yes, the proposed duties for the Program Manager match the duties of the Project Manager. My question is, does the TEP have the discretion to mark this proposal "deficient" for the singular reason that they failed to propose a key personnel person with the exact title?

The solicitation specified that the offerors were required to address in their proposals the "Key Personnel," which included the role of "Project Manager." What if a proposal comes in that offers to provide a "Program Manager." So the job title they are offering does not exactly match the job title specified in the solicitation. Also, assume that the Technical Evaluation Panel has chosen to NOT open discussions with offerors, and that their minds are closed on this. Can the TEP assign a rating of "deficient" on the Key Personnel Factor? Can the TEP seek clarification and just ask, Mr. Offeror, when you wrote "Program Manager" did you mean "Project Manager," without going into discussions to allow the offeror to revise its proposal? I could not find any GAO case law that met this fact pattern. If anyone knows of any, please share.