govt2310

Say the Solicitation is to award a Single-Award IDIQ. There is no task order included in this Solicitation. There is no Sample Task Order. The Solicitation stated that the maximum ceiling price/amount for this IDIQ was $148 million. For some unknown reason, the Solicitation included CLINs, even though this is a IDIQ. The Solicitation instructed offerors to fill out a pricing spreadsheet, and it required pricing each CLIN for each option year (base year plus 4 option years). There were 5 timely offerors/proposals. 4 of them are technically unacceptable or otherwise ineligible for award. So there was a competition range of one. Discussions were already held. No one pointed out to the offeror that its total price of $172 million exceeded the maximum ceiling set by the Solicitation. The final revised proposal has been received, and the price remains unchanged. Could the agency just make award to this offeror, and when the $148 million ceiling is hit (say in option year 2), just not exercise the options for years 3 and 4? Or is the agency required to revise the Solicitation and allow for revised proposals from all 5 offerors?

Ah, that's it: T&M is a pricing arrangement, not an ordering arrangement. Thank you.

FAR 16.601 address T&M contract type, and FAR 16.602 addresses Labor-Hour contract type. I do not see any requirement here to include a guaranteed minimum in these contract types. Yet I see examples of solicitations in the past that include a guaranteed minimum. Is there any requirement to include a guaranteed minimum? If you don't have a guaranteed minimum, is the contract illusory, as the agency could just order nothing?

Thanks, Vern. Ok, I see how to an RFP can be written to use two techniques.

The example RFP that I posted on Wednesday did not use two techniques. It evaluated all of the market segments the same way. My question is, could you make an RFP that does use two techniques? Your on-the-spot language answers my question. Thank you.

Yes, that is my question: could you use, say LPTA, to select the winners for one market segment, but use, say Trade-Off, to select the winners for the other market segments? ji20874 thinks there is no problem. Note, in that Air Force RFP, they did not use two different methods to select the winners. But I'm wondering, could you do that? And if you can, does anybody have an example solicitation of where this was done?

Ok, I need to provide more details. Say it is a RFP for a MATOC, similar to this RFP that the Air Force did for health services, and which was the subject of the Global Dynamis GAO decision here, https://www.gao.gov/assets/b-417776.pdf. The RFP is available at https://govtribe.com/opportunity/federal-contract-opportunity/defense-health-agency-medical-q-coded-services-mqs-acquisition-ht005016r0001, but depending on how many times you have accessed govtribe, it may be behind a paywall for you. Here is a screenshot of the pertinent section of the PWS (see attached).

Has anyone ever seen a solicitation that had multiple evaluation methods? Say a solicitation is for a multiple award IDIQ, and there will be multiple tasks, each with their own PWS, none of the tasks/PWSs are the same, and the offeror does not have to bid on all the tasks, and some tasks will be evaluated as LPTA and others will be evaluated as Trade-Off.

joel hoffman is correct, the celebrity gets the benefit of exposure, patriotic reputation, etc. I will post here once I find out the answer.

To Jamaal Valentine: thank you. Yes, I was just getting ready to post the link to the DHS PIL Boot Camp Workbook that says FAR 15 is not supposed to involve "comparative" evaluation. 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.

I checked the GAO Red Book and read the section on Propaganda and Publicity Experts. It didn't answer my question, but it did give me a general background overview. Hmm.

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

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?

The FAR 5.203 $25,000 threshold only applies if solicitation involves appropriated funds. Ergo, the FAR does not apply to no cost contracts. So the $25,000 rule is moot here. The agency will use its own studio/equipment to make the PSA. The celebrity just has to show up. I don't think this can be just an "agreement." I think this has to be a no cost contract. If the value is below a certain amount, then CICA wouldn't apply. 31 USC 6303 requires an agency to use a procurement contract if the principle purpose is for the direct benefit or use of the USG.

An agency needs to do a Public Service Announcement (PSA) commercial on TV. The agency wants to hire a specific celebrity to appear in the PSA. The celebrity is willing to do this job for free. I am thinking that this would be a no-cost contract (NCC). However, CICA applies to NCCs. So the agency has to compete the contract, unless the agency executes a sole-source justification for one of the authorized reasons in FAR Part 6. If none of those authorized reasons apply, then the agency must compete the contract. Thoughts? Is there a statute that I don't know about that allows agencies to cherry-pick celebrities to do PSAs without competing the solicitation and without doing a sole-source justification?

I realize that FAR 19.602 says that the CO only has to get a SBA COC for the "apparent awardee." But if the RFP used "responsibility-type factors" in the evaluation factors, then doesn't the CO have a duty to get a SBA COC for each of the small business offerors that did not make it to the "apparent awardee" stage because the agency evaluated their proposals as unacceptable regarding a responsibility-type factor? In essence, the agency has made a finding of non-responsibility for those offerors.

Is this a single-award or a multiple-award scenario? YES Will the agency validate the scores of the highest-self scored offers, or simply rely on them as submitted? AGENCY WILL VALIDATE THE SCORES If the agency will validate the scores, and one of the highest self-scores is lowered by the agency's evaluation to where it is lower than another offer who was not initially evaluated, will that lower offer be brought into the evaluation pool? YES Is there a numerical point cut-off for each factor, or is there a single cut-off for total points? If the latter, then maybe the agency will posit that it is not treating past performance on a pass-fail basis but rather is using it in its racking and stacking for selection -- In such a case, maybe referral to SBA for a small business unsuccessful offeror is inappropriate. THERE IS A NUMERICAL CUT-OFF FOR THE TOTAL POINTS, NOT FOR EACH FACTOR

Yes, assume this is a solicitation for a multiple-award contract. Yes, what I want to know is how to structure the solicitation to avoid having to refer offerors to the SBA for a COC. Hmm, so if the agency does not establish a pre-determined cut-off score, but instead, says that there will be a comparison done, that would avoid the need to do a COC? Ok, thank you. I will have to think about how to carefully phrase this comparison language.

If the RFP instructions require the offeror to self-score itself on a point system for the non-price factors (which, for this example, include traditional responsibility factors such as Past Performance), and the agency will only evaluate the proposals that are at or above a numerical cut-off point, could the agency argue that, an offeror that self-scores itself below that cut-off point, that does not mean that offeror's proposal is "technically unacceptable"? So therefore, the agency has not found the offeror not capable to perform the requirement, which means the agency is not required to contact the SBA for a COC? I'm saying that, in a HTRO RFP that involves a self-scoring sheet, that is not a situation where the evaluation factors are pass/fail. Rather, the RFP involves a numerical point system.

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. 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?

Vern: Thanks, Vern! You are right, I shouldn't use the word "hybrid" for contract type. Maybe "Combination Contract Type"? C Culham: Thanks for hte USDA-Forest Service "Smokey Bear" example. Well, it says on there that the contractor gets to a royalty type of fee from the sale of items with the Smokey Bear logo. It doesn't say that USDA will also pay the contractor out of appropriated funds. So "close maybe" as you said. awhinton: Thanks for the the SAM.gov link. That is a NOAA "No-Cost Conference" Event Planner Services RFP. It does not say that NOAA will also pay the contractor out of appropriated funds.

The FAR only applies to "Contracts" that involve appropriated funds. The FAR does not apply to No-Cost Contracts involving non-appropriated funds, such as where an agency pays nothing to a contractor, but the contractor is allowed to charge "fees" to a third party (e.g., a concession contract for providing refreshments to park visitors at National Parks). Is it possible for a civilian agency to make a solicitation for services that is a hybrid contract type of both Cost Contract Type and also No-Cost Contract Type? In other words, can a civilian agency pay a contractor for services, but also, in the same contract, allow the contractor to collect fees from the public, such as for refreshments/meals? If it is possible, can anyone think of an example when an agency did this? I can't find any such. Also, if this cannot be done for some reason, do you think it could be done if a civilian agency had Other Transaction Authority (OTA)?

@C Culham Thanks for the bls.gov link! @Don Mansfield In an OMB Memo issued in 2006, Q&A on the Paperwork Reduction Act (PRA), at question # 75, it talks about how incentives in Federal Government surveys have "raised a variety of concerns about their cost, the use of taxpayer funds, impact on survey responses" etc. So the PRA of 1980 prohibited the use of incentives for respondents to Federal surveys "unless agencies could demonstrate a substantial need." So it is possible for an agency to pay incentives, but it has to be justified. Now that I am seeing this OMB Memo, I guess it answers my own question: yes, an agency does have authority to pay incentives to respondents for Federal surveys, but only on the condition that the agency "demonstrate a substantial need." Therefore, an agency can have a contractor do the surveys and pay the respondents, but the agency has to "demonstrate a substantial need" first. Oh, and it looks like this only applies if there are "identical questions" and more than 9 people doing the survey. So if the questions are NOT identical, and there are fewer than 9 people doing the survey, then the Paperwork Reduction Act doesn't apply. Therefore, an agency, in that scenario, wouldn't need to demonstrate substantial need before proceeding. Does anyone see a flaw in my reasoning?

Let's say an agency wants to do "information collection." The agency needs to do a survey of people at universities, non-profits, and places like that to find out how best to design a research project. Can the agency pay the survey participants an "incentive" fee or an honorarium? Can an agency hire a contractor to do this information collection, and just say in the solicitation, we leave it to the contractor to figure out how to get participants to participate in the survey, and that this can include the contractor paying "incentives" to the survey participants? Also, assume that this information collection does not involve "identical questions," and does not involve asking such "identical questions" to more than 9 people, so therefore, the Paperwork Reduction Act doesn't apply.

@ji20874: I don't recall talking about this issue before. @joel hoffman: I know, it seems obvious that, if an agency can't do something, how can it make a contractor do it? But it has been put on my plate confirm whether this is allowed or not. I didn't come up with the question. But I am stuck with the task of finding the answer. @ Vern Edwards: I understand. Ok, I have the Formation of Government Contracts book here at home and will take a look. I will also look at that FAR cite. Thank you.