napolik

I assume that the contracting officer (C0) stamped the spreadsheet FOUO. Regardless of the identity of the person wielding the FOUO stamp, ultimately, the decision to release the spreadsheet info containing the CO's objectives is the CO. I am unable to find FOUO in the FAR. I believe FOUO is a term relevant to the Freedom of Information Act. I do not think that FOIA applies to your circumstance since the contractor is not requesting that you release your price position. There are other relevant terms to consider - "source selection information" and "contractor bid or proposal information". FAR 2.101 defines source selection information. FAR 3.104-4 is entitled "Disclosure, Protection, and Marking of Contractor Bid or Proposal Information and Source Selection Information." I see nothing in there that would prevent the CO from sharing the spreadsheet if the CO feels it is prudent to do so and if the spreadsheet contains only information about the firm with whom you are negotiating.

Today, the GAO issued the following decision: B-404597; B-404597.2; B-404597.3, Global Computer Enterprises, Inc.; Savantage Financial Services, Inc., March 9, 2011. See it here: http://www.gao.gov/decisions/bidpro/404597.htm. As may be seen, the protest was upheld on 2 bases. If the agency's corrective action involves a modification of its requirements (e.g. the migration rate or the need for "an integrated system currently in use by the government"), firms that elected not to compete for the original requirement may wish to do so for the modified requirement. If no protest was involved, and if the agency changed its requirement during negotiations so that other firms might have submitted proposals against the revised requirement, I believe a contractor that did not submit a proposal would have standing to protest an agency's refusal to cancel the original solicitation and to resolicit its changed requirement. See FAR 15.206(e). However, if the agency in the protest modifies its requirements but does not issue a new solicitation to all potential sources, would firms apart from those involved in the protested competition have standing to protest to GAO? Or, would the GAO find a refusal to cancel the old and to issue a new solicitation to be within the agency's discretion to implement the recommendation contained in the GAO protest decision?

First, see here: https://www.epls.gov/. Then, see here: https://www.fsd.gov/app/answers/detail/a_id/235.

Take a look at B-298481, Murray-Benjamin Electric Company, LP, September 7, 2006: "Agency is not required to order supplies under non-mandatory Federal Supply Schedule (FSS) contract, and where it is in agency?s best interests--including need to establish ?best value? among potential offerors--agency may compete its requirements among commercial sources of supply instead of under non- mandatory FSS." ??, while the list of required sources found in FAR sect. 8.002 places non-mandatory FSS contracts above commercial sources in priority, it does not require an agency to order from the FSS.? ?[5] As explained by GSA, while agencies are encouraged to use the FSS, where an agency concludes that it is in its best interests to meet its needs through an open market procurement, it is free to do so.? See also this thread: http://www.wifcon.com/discussion/index.php?showtopic=176.

There is no reason why your market research cannot delve into Federal Supply Schedule contractors and other contractors. Further, you are not obligated to use the Federal Supply Schedul unless it is "mandatory". If the "open market" computer is a better buy, cancel the RFQ, if you issued one, and write a memo to file saying you cancelled the RFQ because the same thing is available at a lower price on the open market. Then, do a FAR 13 competition.

If the solicitation did not state that the contracting officer reserved the right to evaluate websites to determine acceptability and price, how can the contracting officer issue a PO to Company X? How can the contracting officer assert that he or she complied with FAR 13.106-2 (a)(2):"Quotations or offers shall be evaluated on the basis established in the solicitation."? In reviewing a half dozen GAO cases involving the evaluation of quotes submitted against FAR 13 solicitations, GAO seems to be consistent in the application of this standard: ?? an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate quotations in accordance with the terms of the solicitation.? National Aerospace Group, Inc., B-281958, May 10, 1999.

You said two things that determine my response. First, you said "The agency posted a combined synopsis/solicitation asking for written quotes...". You said also that "The RFQ was very simple. It stated when quotes were due and the evaluation factors. It asked for a written response." So, you issued a solicitation asking for "written quotes" and "a written response". If you issue a PO to a company that failed to submit the required written quote or response, have you complied with FAR 13.106-2 (a)(2):"Quotations or offers shall be evaluated on the basis established in the solicitation."? Given the facts you have presented, it is my view that you have not.

BTW, I spent a fair amount of time yesterday and today trying to find a discussion of the standing price quote (SPQ). The Government Contracts Reference Book, Third Edition, refers you to page 996 of The Formation of Government Contracts, Third Edition. However, Formation basically cites the FAR and advises the reader that VA uses SPQs. Via google, I was able to find some solicitations whose purpose was to create SPQs. Here is the best of the group: https://voa.marad.dot.gov/programs/ship_dis...p%20Disposa.pdf. Here is some text from the solicitation issued to create SPQs: Quote Pool of Standing Quotations 1. MARAD issues RFQ DTMA1Q05006 requesting standing quotations for MARAD ship disposal contracts. 2. Vendors may submit a new quotation, including technical proposal, at any time from the date the RFQ is posted until six weeks prior to December 31, 2005. 3. MARAD will continuously evaluate proposals. Taking into consideration its workload at the time, MARAD will try to evaluate quotations as they are received. In any six-week period starting from the RFQ posting date, domestic vendors may expect an initial evaluation of their quotation within six-weeks from the date the quotation is submitted. The evaluation period for quotations involving vessel exports will be determined on a case by case basis. 4. Based on the criteria set forth in this RFQ, MARAD will evaluate each proposal to determine whether it is either technically acceptable, technically unacceptable but susceptible to being made technically acceptable or technically unacceptable. 5. MARAD shall advise the vendor of its evaluation results. (a) Technically unacceptable proposals - These proposals will receive no further consideration from MARAD. ( Technical proposals which are unacceptable but susceptible to being made technically acceptable - MARAD will initiate discussions on these proposals to determine whether or not they can be made technically acceptable. © Technically acceptable proposals - These proposals will be included in the pool of Standing Quotations and allowed to submit revised price quotations for the disposal of specific obsolete vessels when requested by MARAD. These offerors will be asked to submit completed Representation and Certifications (FAR clause 52.212-03) Use of Standing Quotations to Select Awardees 1. MARAD selects ship(s) for dismantling (generally MARAD shall dispose of its high priority vessel first). 2. MARAD requests revised price quotations, schedule data and technical compliance plan updates from vendors in the pool of standing quotations. 3. Vendors submit revised price quotation including maximum discounts and economies of scale as applicable along with their proposed scheduling data, taking into account all existing and planned work in their facility during the proposed timeframe, and updates to their technical compliance plan that provides new data to their original TCP submittal or provides processes and methodology updates specific to their proposed offer. 4. MARAD evaluates the revised price quotations, schedule data and technical compliance plan updates in accordance with the Evaluation Criteria to identify the quote or quotes that represents apparent best value to the Government. 5. MARAD may negotiate with the vendor(s) that represent apparent best value to the Government. 6. MARAD makes award to the selected vendor(s). Unquote In this case, the SPQ appears to be a BPA held by a contractor on a type of Qualified Products or Services List. I did something similar years ago using BPAs. In those cases, we had standing price quotes for fresh fruits and vegetables to be delivered to Navy ships making port calls.

Perhaps, it depends if there really is a mechanism in place describing the standing price quote and the procedures for using it. I doubt one can designate a website, on an ad hoc basis, to be a standing price quote.

1. Did the solicitation provide an exemption from a requirement to submit a quote? 2. Did you comply with FAR 13.106-2 (a)(2):"Quotations or offers shall be evaluated on the basis established in the solicitation."? 3. Did the solicitation state that the contracting officer reserved the right to evaluate websites to determine acceptability and price? If the answer to any question is "No", I believe you would lose a protest.

Ffed, I do not agree with your assessment and conclusion. I assume that the RFQ basis for award stated that the Gov't would issue a purchase order to that firm submitting an acceptable written quote and the lowest price or best value. How can the contracting officer award a purchase order to Company X if it failed to submit a quote with the information required to determine its acceptability and price? Apart from the discussion of Use of Standing Price Quotations, FAR Subpart 13.1 states that a contracting officer will evaluate quotes on the basis established in the solicitation. See FAR 13.106-2 (a)(2): Quote 13.106-2 -- Evaluation of Quotations or Offers. (a) General. (1) The contracting officer shall evaluate quotations or offers -- (i) In an impartial manner; and (ii) Inclusive of transportation charges from the shipping point of the supplier to the delivery destination. (2) Quotations or offers shall be evaluated on the basis established in the solicitation. Unquote If the solicitation did not state that the contracting officer reserved the right to evaluate websites to determine acceptability and price, how can the contracting officer issue a PO to Company X? If Company X is better and cheaper than the firms submitting quotes, it may be possible to cancel the solicitation, to establish different requirements for gathering and assessing contractor technical and price information, and to state a different basis for award. GAO has upheld the Gov?t?s right to cancel a solicitation when there is a prospect to obtain lower costs: ?In addition, while we have recognized that the potential for cost savings provides a reasonable basis for cancellation, RN Expertise, Inc., B-401020, Mar. 27, 2009, 2009 CPD para. 63 at 4?? JER 370 Third Street, LLC, B-402025.2; B-402541, June 1, 2010. Without cancelling the RFQ and reissuing a modified one, I do not know how Company X can receive the purchase order. Please provide a bit more support for your position.

You are not required to use eBuy, unless you are in DoD or another agency that requires use of e-Buy in certain circumstances (e.g. >$150k). Check your agency regulations to see if you must use it.

I agree. The juxtaposition of the sentence - "Use of the SF 1449 ... threshold." - with condition (a) (3) had me scratching my head for awhile. To facilitate understanding of the FAR guidance, I would make that sentence a separate paragraph in section 12.204.

What do you make of the last sentence in 12.204(a)(3)? 12.204 -- Solicitation/Contract Form. (a) The contracting officer shall use the Standard Form 1449, Solicitation/Contract/Order for Commercial Items, if (1) the acquisition is expected to exceed the simplified acquisition threshold; (2) a paper solicitation or contract is being issued; and (3) procedures at 12.603 are not being used. Use of the SF 1449 is nonmandatory but encouraged for commercial acquisitions not exceeding the simplified acquisition threshold.

Question: Can one use a SF 1449 when one is using the combined synopsis/solicitation procedure for a procurement below the SAT?

Different agencies handle appointments of cardholders and ordering officers in different ways. Some require the issuances of warrants and letters of appointments to ordering officers (e.g. Navy and Marines); others don't. In any case, I have always issued letters of appointment to ordering officers and to CORs to set out clearly for them their responsibilities. The list of responsibilities varies depending upon whether the ordering officer/ COR is handling supplies or services. After issuing a letter to an ordering officer or COR, I have always conducted reviews annually or semi-annually to assure that they are fulfilling their responsibilities.

See 15.208 ((1) (iii) and ((2): ( (1) Any proposal, modification, or revision, that is received at the designated Government office after the exact time specified for receipt of proposals is ?late? and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition ; and? (i) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or (ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of proposals and was under the Government?s control prior to the time set for receipt of proposals; or (iii) It was the only proposal received. (2) However, a late modification of an otherwise successful proposal, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.

Here is a reasonably good sample of an ordering officer appointment letter. You will need to modify it to reflect the peculiarities of your circumstances. http://www.hqmc.usmc.mil/cmpg/usmc_cmpg/fi...er-Template.doc.

Yes. No. I recommend that you designate the ordering officer (OO) in a letter and that you confirm the appointment in the BPA or contract. Before appointing the OO, you should obtain information on the prospective OOs qualifications to assure he or she is capable of performing the OO function competently. See here for a discussion of OOs as COs: http://www.hqmc.usmc.mil/cmpg/usmc_cmpg/Co...rantProcess.htm. Some agencies delegate ordering authority to purchase card holders. See here: https://www.navsup.navy.mil/ccpmd/purchase_...pt#911,34,Slide 34. I also suggest that your letter set out your expectations for the ordering officer and that you inspect the OO's performance periodically, just as you review CORs.

Then, there is no funding gap. You are obligated to perform the contract through 9/30/11. Having said that, be aware that your contracting officer may give you direction concerning performance should the Gov't shut down at 12:01 AM Saturday morning. The direction could be to suspend performance, reduce performance or continue as if nothing happened. See the separate thread on the impacts of a shut down initiated by Vern Edwards last week.

I do not understand the facts. Did the contracting officer obligate funds covering the entire option period, or only for the period through 3 December. Please advise.

Most clauses governing your task order will be found in the underlying contract, not in the task order. Remember, a contract incorporates the clauses contained in the solicitation signed by the contractor and accepted by the contracting officer. Look in the contract document.

I just looked at the current solicitation for MOBIS. See it here: https://www.fbo.gov/index?s=opportunity&amp...re&_cview=1. You will find 52.212-4 in it along with a number of other provisions and clauses. See page iii for 52.212-4. I am surprised that it is not in your version of the MOBIS contract.

It appears that subcontracting in the Cloud is not uncommon in the commercial world: https://www.infosecisland.com/blogview/8738...-of-Rights.html

Any requirement (i.e. restriction) established by the Government can be challenged as non-competitive. If the requirement is challenged, the Gov?t must demonstrate that the requirement is reasonably related to its needs. See this extract from a GAO decision published today - Airforce Turbine Service, Ltd., B-404478, Feb. 16, 2011: Quote The determination of a contracting agency's needs and the best method of accommodating them are matters primarily within the agency's discretion. Systems Application & Techs., Inc., B-270672, Apr. 8, 1996, 96-1 CPD para. 182 at 3. However, where a protester challenges a specification as unduly restrictive of competition, we will review the record to determine whether the restrictions imposed are reasonably related to the agency's needs. Id.; LBM, Inc., B-286271, Dec. 1, 2000, 2000 CPD para. 194 at 3. Unquote If you can demonstrate that a prohibition against subcontracting in the Cloud is necessary to meeting your agency mission, you will be OK. At first blush, I don?t think you can support the prohibition, but I am not an ITer. Is subcontracting for data storage prohibited now? Don?t Gov?t contracts for data storage on terra firma present the same issue you raise? Would you not have the same remedies against a prime that subcontracted the work?