napolik

Dennis, are you looking to provide this back-up overseas or in the CONUS?

Starting at post 15 in this thread, there is discussion of a COFC case regarding the applicability of FAR Part 12 to orders placed under FAR Subpart 8.4. The Court of Appeals for the Federal Circuit just reversed the COFC decision: http://www.wifcon.com/fedcir/14-5143.PDF. Quote B. Whether the 2014 RFQ Payment Terms Violate FAR Part 12. The 2014 RFQs being challenged here were issued pursuant to the Financial and Business Solutions Schedule, an underlying FSS contract. The Court of Federal Claims found, and neither party disputes, that the services solicited in the 2014 RFQs are commercial items and that the revised payment terms therein are inconsistent with customary commercial practice. Opinion and Order at 9, 19; see Oral Argument 37:45-41:45. We affirm these undisputed fact findings.5 Thus, the only issue is whether FAR Part 12’s proscription against terms that are inconsistent with customary commercial practice applies to the 2014 RFQs. If it applies, the payment terms are in violation. Before the Court of Federal Claims, the government does not appear to have disputed that FAR Part 12’s proscription against terms inconsistent with customary commercial practice applies to solicitations for the underlying FSS contracts themselves. Opinion and Order at 12. However, the government argued that FAR Part 12’s proscription does not apply to orders made pursuant to the existing FSS contracts. The Court of Federal Claims agreed. Opinion and Order at 19-22. It reasoned that FAR Subpart 8.4, which governs the FSS program, does not expressly state that FAR Part 12 applies to orders made pursuant to an existing FSS contract. Opinion and Order at 20. It similarly found that FAR Part 12 does not expressly state that its provisions apply to such orders. Opinion and Order at 20-21. We review the Court of Federal Claims interpretation of the applicable regulations de novo. Abbott Labs. v. United States, 573 F.3d 1327, 1330 (Fed. Cir. 2009). We conclude that FAR Part 12’s proscription against terms inconsistent with customary commercial practice applies to the 2014 RFQs and therefore that the RFQs violate that proscription.6 On a general level, FAR Part 12 applies to the 2014 RFQs because it makes clear that it “shall be used for the acquisition of [commercial items].” 48 C.F.R. § 12.102(a). The 2014 RFQs meet the broad definition of an “acquisition” under FAR: Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract. Id. § 2.101. More specifically, FAR § 12.302( c)’s proscription against any “solicitations or contracts” including terms “inconsistent with customary commercial practice”7 applies to the 2014 RFQs because the RFQs are a “solicitation” and the resulting order is a “contract” as those terms are defined by FAR. FAR expressly defines a solicitation to include requests for proposals: “Solicitation means any request to submit offers or quotations to the Government. . . . Solicitations under negotiated procedures are called ‘requests for proposals.’” Id. § 2.101 (emphasis added). Similarly, FAR defines a “contract” as including orders: “[C]ontracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders . . . .” Id. (emphasis added). FAR § 12.302( c) thus applies, on its face, to the 2014 RFQs. The government and the Court of Federal Claims are correct that FAR Subpart 8.4 does not explicitly state that FAR Part 12 applies to orders made pursuant to existing FSS contracts. We conclude, however, that FAR Part 12 applies to this situation expressly by its terms. To the extent there is any perceived inconsistency between FAR Subpart 8.4 and FAR Part 12, FAR Part 12 controls. 48 C.F.R. § 12.102( c) (“When a policy in another part of this chapter is inconsistent with a policy in this part, this part 12 shall take precedence.”). Unquote

1. Contract Formation 2. How To Prepare A Solicitation 3. Small Business Issues 4. Compare and Contrast FAR 8, 12, 13, 15 & 16 5. Evaluation factors 6. The Relationship of Sections C, L and M (and non-UCF equivalents) 7. Evaluation of Quotes / Proposals: Non-Price Factors 8. Evaluation of Quotes / Proposals: Price Factors 9. Discussions 10. Source Selection 11. File Documentation 12. Debriefings The training cannot be merely a review of FAR policies, procedures, provisions, clauses and usage instructions. It must also address the interpretation of the FAR's words provided in GAO and COFC decisions. While necessary, the "formal training" is only a complement to OJT. Supervisory review, correction and discussion of the contract specialists' products is the most effective training. It applies the concepts, polices and procedures addressed in the formal training.

Take a look at the final post in this thread: http://www.wifcon.com/discussion/index.php?/topic/2501-it-hardware-maintenance-supply-or-service/

I do not know how you can make the subcontractors responsible to the government for the work to be performed by the prime contractor. As a legal and practical matter, I do not know how the government can fail to hold the prime contractor fully responsible for performance under the prime contract. FAR 9.6 addresses contractor team arrangements (CTA). Note that FAR 9.604(e) says that a CTA cannot fail to “ …Hold the prime contractor fully responsible for contract performance, regardless of any team arrangement between the prime contractor and its subcontractors.” The GSA schedule program encourages use of CTAs that appear to create multiple prime contractors: “Each team member has privity of contract with the government and can interact directly with the government.” http://www.gsa.gov/portal/content/200553?utm_source=FAS&utm_medium=print-radio&utm_term=contractorteamarrangements&utm_campaign=shortcuts Here is a more detailed discussion of GSA CTAs: http://www.gsa.gov/portal/content/202253

The DODIG conducted a review of the Army’s issuance of BOAs and task orders pursuant to FAR 16.703. http://www.dodig.mil/pubs/documents/DODIG-2014-095.pdf. In my experience, there are more bureaucratic hurdles to overcome when using BOAs than when using BPAs against GSA Schedules or orders under FAR 16.5 (e.g. need for J&As when limiting competition to BOA holders and need to update BOAs to reflect FAR changes). Why would one use FAR 16.703 BOAs instead of FAR 8.4 BPAs or FAR 16.5 IDIQs? Unlike FAR 16.703, J&As are not required when competing orders among BPA holders or IDIQ holders under FAR 8.4 or FAR 16.5: While the DODIG report addresses regulatory compliance with restrictions on competitions in the case of small business set asides, I cannot find any mention of compliance with FAR 16.703 (c ) and (d). Did the Army do blanket J&As permitting limitation of competition to BOA holders? Do they do one for each order? Also, FAR 16.703 (c ) (2) requires the BOA to be updated each time the FAR changes: This is not true of BPAs placed against GSA Schedule contracts, see FAR 8.405-3(e), or against IDIQ contracts issued under FAR 16.5, see FAR 1.108(d). Why did Army use BOAs instead of IDIQs or GSA BPAs? Could it be that the Army lacked monies to fund IDIQ minimums or didn't like using BPAs against GSA Schedules?

I was unable to locate any discussion of order length on the SEWP website. However, I did find a discussion on the use of options in orders. Regardless of what the contractors quote, you must comply with appropriation law which limits to 12 months the terms of the orders funded with O&M monies. BTW, the MOA between DOD and NASA includes this paragraph: Tell the contractor you want a quote for 12 months plus options. If you have time, contact the SEWP contracting officer and tell him or her what’s going on.

Which agencies are issuing delivery or task orders of more than 1 year duration? Do the orders have options?

I assume the new SEWP contracts will be IDIQ contracts with three year periods of performance. For most, or all, agencies, there is no problem with an IDIQ contract period or performance extending up to 5 years. You will obligate monies via delivery or task orders using the O&M monies appropriate for the year in which you have the need for the supplies or services.. See posts 8 and 9 to this thread: http://www.wifcon.com/discussion/index.php?/topic/2519-commerical-supply-idiq-multiyear-or-multiple-year-options-required/

The FAR does address a requirement to identify in solicitations for sealed bids price related factors, but it does not state explicitly a requirement to identify all cost/ price related factors in solicitations for competitive proposals. While the FAR doesn’t have explicit guidance beyond sealed bidding, the United States Code has it in two locations -10 U.S.C. § 2305(a)(2)(A)(i) and 41 U.S.C. 253a(b )(1)(A). Government agencies must identify “all significant factors and significant subfactors” which the agency “reasonably expects to consider in evaluating sealed bids (including price) or competitive proposals (including cost or price, cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors)”.

There are 2 broad approaches to source selection identified in FAR 15.1 – The Tradeoff Process and the Lowest Priced Technically Acceptable (LPTA) Process. When using the Tradeoff process, the contracting officer considers factors other than price when identifying the proposal representing the best value to the Government. In addition to price, the other evaluation factors could include Past Performance, Experience, Technical Approach, Staffing Plan, Résumés, etc. When using the LPTA process, the source selection decision is based upon price alone among those proposals determined to be technically acceptable. In making the source selection decision, the contracting officer considers only evaluated price. However, the contracting office can require that each competing contractor demonstrate the acceptability of its offered supply or service by providing information on one or more factors (e.g. Past Performance, Experience, Technical Approach, Staffing Plan, Résumés, etc.). The price to be used in the LPTA source selection should be identified in the solicitation provisions. The evaluated price could include the value of options and/ or travel. However, the solicitation must define the evaluated price if the contracting officer will consider costs or prices other than the extended prices of line items in the basic quantity of supplies or services. Regardless of source selection process used, the contractor identified as submitting the proposal representing the best value or as submitting the LPTA proposal must be determined to be a responsible prospective contractor (i.e. meets the standards set out in FAR 9.104). Normally, the solicitation will not identify the specific standards to be applied to establish a contractor’s responsibility. Sometimes, the responsibility standards set out in FAR 9.104 are used as evaluation factors in the Tradeoff or LPTA processes. It could be that the solicitation you identify will be awarded to the contractor submitting the lowest priced, acceptable proposal. However, read carefully all the solicitation provisions to ascertain if there is a requirement to submit information other than line item prices and if there is another provision listing factors to be used in establishing the best value or technical acceptability. Some contracting officers put into their solicitations multiple provisions addressing requirements for proposal submission, evaluation and award. Some of these provisions can be confusing and contradictory. Here is a good example of one from a solicitation posted on e-Buy last week: After you read all the solicitation provisions, call the contracting officer to ask which source selection process is being used.

H.5.1 OFF RAMPS “Off ramps” will be utilized when a Contractor outgrows their certified size status and is therefore no longer eligible to receive new Task Orders within a specific size category and/or failed to propose on task order requirements. Contractors that outgrow their size status will either “graduate” into the next size category, or be removed from the contract entirely, if they do not recertify in a size category in accordance with Section H.4 REREPRESENTATION REQUIREMENTS. In addition, if a Contractor fails to compete on at least three task order requirements in a given year, it will not be eligible to compete on future Task Orders and the Government may not exercise its option. http://www.gsa.gov/graphics/fas/Comprehensive_Master_Contract_Through_Mod_0010.pdf

If there is a likelihood that the - 8 will be exercised at a different time and / or for less than the full list of line items, change accordingly the - 9 option period and the line items to which you apply it.

The primary source of confusion is probably my statement in post #3. I wrote this very poorly. I was describing my views on what tech panels should be directed to evaluate given my experience with them. I was not stating GAO views. As you point out, the GAO has issued a number of decisions reaching back to the 80s on the use of “extrinsic evidence” that is outside the proposal so long as the use of extrinsic evidence is consistent with established procurement practice. I would not direct the evaluators to look for extrinsic evidence except in cases involving past performance / experience evaluation factors, but if it was discovered, its source and relevance to the evaluation must be examined carefully in light of the solicitation’s evaluation criteria and the GAO decisions. BTW, I could only locate a single COFC decision addressing extrinsic evidence and info outside the four corners of the proposal: Contracting, Consulting, Engineering, LLC v. U. S. and DYNCORP International, LLC , No. 12-97C, April 16, 2012. The case dealt with the use of evaluators’ “personal experience” to evaluate résumés. The judge allowed consideration of the evaluators' personal experience, but she concluded that it was applied irrationally.

Upset? I only get upset when someone misspells Bologna or takes a bite from a soccer player's shoulder. I wouldn't make the analysis of the - 8 pricing too complex. With all but one - 8 option with which I have dealt, it is exercised after all the -9 options are exercised, and it is exercised for all line items. Thus, the price of the - 8 option becomes, at most, 50% of the price of the final - 9 option. So, for eval purposes, I multiply the final - 9 option price by .5. If there is a likelihood that the - 8 will be exercised at a different time and / or for less than the full list of line items, change accordingly the - 9 option period and the line items to which you apply it.

Is this approach either more legal or more predictive of the actual likely cost/ price than the multiplication of the final 12 month option price by .5? Why give it a complexity is doesn't need?

I have never asked the contractors to price a -8 option. The line item structure and pricing for the - 8 clause is the line item structure and pricing for period in effect when the - 8 option is exercised.

No. I would state in the solicitation how the evaluated prices will be developed for the base and option periods. For the - 8 option, I would state that it will be 50% of the final - 9 option period's evaluated price. If the final - 9 option is less than 12 months, then the equation will change.

Yes. Sum the evaluated prices or costs for the base period and for the -9 and -8 options. State your intent to do this in the solicitation.

jmj, Personal experience or knowledge can be used in the evaluation of proposals when evaluating factors other than contractor experience or past performance. However, my personal experience with technical panels – primarily in field contracting vice major systems – has taught me to focus the panel’s attention on the facts contained in proposals rather than on the panel member’s personal experience with the contractors. The GAO has issued decisions approving the use of “extrinsic information” or “extrinsic evidence”, or of information that is not within the “four corners of the proposal”, when consideration of the information or evidence is “consistent with established procurement practice”. At least one COFC judge has issued a decision accepting the use of extrinsic information on a case decided by the GAO allowing the use of the evaluators’ personal knowledge, but she reached a different conclusion than GAO as to the rationality of the application of the knowledge. In my career, I have frequently dealt with panel members who have little experience evaluating proposals. Frequently, they wished to introduce considerations that are not covered by the evaluation criteria. This has been particularly true when the evaluators had experience with one or more of the competitors. I prefer to provide the panel with concise, specific, explicit guidelines on what information to consider and on how judge the information against the evaluation criteria. In those cases when the evaluation includes an assessment of contractor experience and past performance, I expect to see specific facts underlying their knowledge of or experience with the contractor, not merely expressions of opinion. When doing major systems competitions, I can understand the need to consider extrinsic information. In the few competitions I handled involving major systems, the circumstances were similar to those described in GAO’s Northrop decision - Northrop Grumman Systems Corporation, B-406411, B-406411.2, May 25, 2012. I first awarded multiple “concept definition” (CD) contracts for the development of studies and reports. The final source selections took into consideration the contents of the studies and reports developed by the competitors. Section M of the solicitations stated that they would be considered, and the directions to the tech panels referenced them. If I were to handle another major system’s competition, I would take your advice, but I would be sure to draft the solicitation in a manner consistent with the GAO decisions and to give explicit guidance to the panel on what to consider.

Bologna! While there is no legal or regulatory requirement to remove the identity of contractors from proposals, I can understand why it would be done. In my career, I have not encountered any circumstances representing “bias or bad faith” leading to a GAO protest. However, I have encountered cases where members of technical panels evaluated proposals using not only the proposals’ narratives, but also their personal experience with the contractors, particularly incumbents. While use of evaluators’ personal experiences may be acceptable when assessing contractors’ experiences or past performances, it is not acceptable when evaluating other factors (e.g. résumés, staffing plans, technical approach, etc.). Given the possibility of evaluators inserting their personal experiences with contractors, it might not be a bad idea to remove the contractors' names from the proposals.

I remember the ASPR, too. I kept mine in 4, 3 ring binders. I used the extra room to keep track of the hard copy changes made to the ASPR. It was the reading and filing of changes that kept me up to date on the current state and content of ASPR policies and clauses. Today, most 1102s do not know when a FAC or DAC is issued, much less its contents. Today, more 1102s are encouraged to try to stay up to date on changes in key strokes for the operation of automated procurement systems than on the substance of procurement law and regulations. Sadly, today, there has been a very substantial change in emphasis in procurement. Correct key stokes outweigh correct application of FAR policies and clauses. Errors are to be corrected by expanded usage of automated systems, not by intense on the job training on the FAR.

I suggest that the FAR Council take the approach illustrated by FAR 32.705 and clause 52.232-39 – Unenforceability of Unauthorized Obligations. The approach is to create a clause for use in every Government solicitation or contract that says this “The Government is not bound by any provision or clause included in, or excluded from, this solicitation or contract if an appropriate Government bureaucrat later determines that a provision or clause was incorrectly used in, or excluded from, the solicitation or contract. The appropriate Government bureaucrat possesses the authority to exclude or insert a provision or clause if the bureaucrat believes the provision or clause was required by the correct application of the FAR matrix or by good business sense.” This will increase the likelihood, but may not guarantee, that every solicitation and contract, sooner or later, contains the words necessary to protect the Government's interest.

Years ago, I used similar approaches as part of major systems source selections, but the contractors were paid. In both cases – one for hardware and one for services, the initial competition led to the award of what we’ll call “concept definition” contracts. During the performance of the “concept definition” contracts, the contractors were, in effect, developing proposals over a period of 180 days. After the period of performance ended, the contractors delivered studies, amounting to technical proposals containing specs / statements of work, along with pricing. These submissions were evaluated, and they were addressed during discussions. After several months of evaluation and discussions, awards were made. Each concept definition contract cost hundreds of thousands of dollars. Uncle received unlimited rights to the data contained in the submissions. The total lead times for the supply and service contracts were 9 to 12 months.

If the primary purpose of the contract is to furnish hardware or software, code it as a supply. See this extract from the PSC Code Manual: If you are buying it from the GSA schedule, look at the contractor's Schedule Terms and Conditions. Frequently, they will identify the PSC Code.