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napolik

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  1. Since I do not know all the facts, I make assumptions. Based upon assumptions, I believe the contracting officer cannot consider the late proposal of U.S. Aerospace. I also believe that either the contractor or contracting officer could have taken steps to avoid the late proposal. The answer depends upon the application of the facts to the rule set out in the FAR. Bremen has identified the source of the rule regarding proposals that arrive after the due date and time: FAR 15.208. It also appears in FAR 52.215-1 at paragraph©(3). Paragraph ( of FAR 15.208 contains several elements: Quote (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. Unquote The only facts we have are contained in the report contained in the link you provided. The report stated that Quote According to an industry executive, a messenger carrying a bid from U.S. Aerospace arrived at the Wright-Patterson gate at about 1:30 p.m., 30 minutes before the deadline. "Air Force personnel intentionally denied the messenger entry to the base? and later provided ?incorrect directions", and forced the messenger to wait when he got turned around. The proposal was marked 2:05 p.m., but this executive says that the bid was under Air Force control prior to that time Unquote In reviewing the facts, we know that the proposal was marked 2:05 p.m., 5 minutes after the exact time specified for receipt of proposals. If there is such evidence that it was "at the Government installation designated for receipt of proposals and was under the Government's control" prior to 2:00 p.m., then the contracting officer must consider it as the proposal is not late. If the proposal arrived after 2:00 p.m., then we must apply the elements of the rule set out in FAR 15.208 ( to determine if we may consider it. We know that the U.S. Aerospace proposal was received prior to award of the tanker contract. We are probably safe to conclude that acceptance of the U.S. Aerospace proposal would not unduly delay the acquisition. We also know that the U.S. Aerospace proposal was not the only one received, and we can safely assume that e-commerce transmission was not permitted and that U.S. Aerospace did not submit the proposal electronically as well as via messenger. That leaves only paragraph (1) (ii) as a possible basis for considering the late U.S. Aerospace proposal. The "industry executive" asserts that the actions or inactions of Air Force personnel prevented the messenger from reaching the proposal delivery location by 2:00 p.m. The GAO has issued a number of decisions addressing the circumstance of a late hand carried proposal. The GAO position is summarized well in the Integrated Support Systems Inc decision: Quote However, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause for the late submission, and where consideration of the proposal would not compromise the integrity of the competitive process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD Para. 50 at 6. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time. Id.; Adirondack Constr. Corp., B-280015.2, Aug. 25, 1998, 98-2 CPD Para. 55 at 6. Unquote Integrated Support Sys. inc, B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2. Since I do not know the layout of Wright Patterson, the distance from the security gate to the contracting office, or the actual behavior of the security guards, I can only speculate as to whether or not the contracting officer must consider the late proposal. I have had many experiences arriving at many military bases and dealing with numerous security guards. Based upon my experience, I believe that 30 minutes was not sufficient time to get on base and to the contracting office. In other words, I believe that "... the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time." I also believe that the security guards did not intentionally deny the messenger entry to the base, and later provide "incorrect directions". See B-401148, ALJUCAR, LLC, June 8, 2009. These are my speculations as I do not know the facts. However, I do know that the contractor could have avoided this circumstance by not waiting until the last moment to deliver its proposal. I also know that the contracting officer could have avoided this circumstance by checking the proposal depository at 1:45 p.m. to determine if all likely proposals were received. If the contracting officer was expecting 3 proposals, but only saw 2, he or she could have extended the due time or date to allow timely receipt of the third proposal.
  2. Good luck! Please advise us the first time you get to the BCA in defense of your attempt to force contractor compliance, absent a contract clause, with a rule or guidance in FAR Parts 1 to 51 because to do so furthers the congressional purpose of achieving an "economical and efficient system" of procurement.
  3. See FAR Part 19 for a discussion of all Small Business Programs. You can see it here: https://www.acquisition.gov/far/. Go to FAR Subpart 19.13 to see the discussion of HUBZones, set asides and "preference".
  4. Garth, Please look at the tables of contents of the FAR Parts. Most of them contain sections and subsections entitled Contract Clause(s), Solicitation Provision(s), or Contract Clauses and Solicitation Provisions. FAR Part 52 - Quote (a) Gives instructions for using provisions and clauses in solicitations and/or contracts; ( Sets forth the solicitation provisions and contract clauses prescribed by this regulation; and ? Presents a matrix listing the FAR provisions and clauses applicable to each principal contract type and/or purpose (e.g., fixed-price supply, cost-reimbursement research and development). Unquote If, as you suggest, the relationship between the Government and contractor is defined in the nearly 2 thousand pages of FAR text, why are provisions and clauses prescribed? Why do not contracts merely contain signature blocks, prices, specs, schedules and the statement "Both parties to this contract are obligated to comply with the FAR"? The solicitation, with its provisions, and the contract, with its clauses, define the pre and post award relationship between the government and the contractor.
  5. Since the contracting officer must reach a conclusion about competition and price reasonableness, I believe the critical issue is the contracting officer's perception about the existence of competition. Quote (ii) There was a reasonable expectation, based on market research or other assessment, that two or more responsible offerors, competing independently, would submit priced offers in response to the solicitation?s expressed requirement, even though only one offer is received from a responsible offeror ... End Quote If the contracting officer believed adequate price competition existed when releasing the solicitation, then he or she has a basis for concluding that prices are fair and reasonable.
  6. Even if the period of the task order option exceeds the contract performance period? Here is guidance on the GSA website: Quote Options may be included on orders placed against GSA Multiple Award Schedule (MAS) contracts, provided that the options are clearly stated in the requirement and are evaluated as part of the ordering activity's best value determination. Such options may be exercised on GSA Schedule contract orders, provided that: Funds are available; The requirement covered by the option fulfills an existing government need; Prior to exercising an option, the ordering activity ensures that it is still in the government's best interest; i.e., that the option is the most advantageous method of fulfilling the government's need, price and other factors considered; and The options do not extend beyond the period of the Schedule contract, including option year periods. End Quote http://www.gsa.gov/portal/content/101193
  7. Since you solicited quotes for options and included an option clause applicable to the order, you are OK to exercise the option unilaterally. You will do so pursuant to the option clause included in the order you issued. One more thing - does the period of the option fall within the effective period of the underlying Schedule?
  8. GOVCO, Prior to issuing the order, did your solicitation of quotes include the options and the option clause?
  9. Another reason for a contract mod is the need to obligate $$ to fund the services covered by the option. k
  10. The FAR clauses set out in 52.217 allow your unilateral exercise. Which clause do you have in the contract?
  11. While the FAR coverage of proposal submission is not a paradigm of clarity, it is sufficiently clear. I would be reluctant to fiddle with the language in the FAR provisions. In my earlier post, I recommended that you avoid the problem by carefully monitoring the status of proposal receipts. I believe an ounce of prevention is worth a pound of tailoring of FAR provisions. The FAR provisions set out the contractor's obligations to make timely submissions and describe the outcomes if a proposal, modification or revision is received late. While the paragraph numbering of the provisions differs between the 2 provisions, FAR 52.212-1 and FAR 52.215-1 say the same thing: Quote 52.215-1 -- Instructions to Offerors -- Competitive Acquisition. ? (3) Submission, modification, revision, and withdrawal of proposals. (i) Offerors are responsible for submitting proposals, and any modification, or revisions, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. If no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that proposal or revision is due. (ii) (A) Any proposal, modification, or revision received at the Government office designated in the solicitation after the exact time specified for receipt of offers is ?late? and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and -- (1) 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 (2) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government?s control prior to the time set for receipt of offers; or (3) It is the only proposal received. ( 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. (iii) Acceptable evidence to establish the time of receipt at the Government installation includes the time/date stamp of that installation on the proposal wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel. (iv) If an emergency or unanticipated event interrupts normal Government processes so that proposals cannot be received at the office designated for receipt of proposals by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation, the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume. Unquote. As the words in the provisions have been interpreted by the GAO, I would not tailor them. Since your biggest problem is the delivery and disposition of e-mails, when you are authorizing e-mail submissions, I suppose it would do no harm if you inserted the following words in a cover letter with the solicitation or in your request for revised proposals: "You are authorized to use e-mails for submission of your proposal (or quotation or revision). If you choose to do so, please be advised that your proposal (or quotation or revision) must reach my e-mail box by the following exact date and time ______________. If it is received after that exact date and time, I can not consider it unless 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 ______________________."
  12. The timely receipt of proposals and quotes has become more worrisome with the introduction of e-mail as a medium for delivery. Regardless of the words you choose, the best way to avoid a problem is to check the e-mail box or the snail mail address about 30 minutes prior to the due time. If you do not have want you need or want, extend the due date and or time.
  13. Monsieur Vern, I believe Monsieur Jacques may be onto something. See the following from B-401842.2, Cahaba Safeguard Administrators, LLC, January 25, 2010: Quote Where an agency holds exchanges with an offeror regarding the offeror's plan to mitigate identified conflicts of interest, we have held that such exchanges do not constitute discussions and, as a consequence, they do not trigger the requirement to hold discussions with other offerors. See Overlook Systems Technologies, Inc., B 298099.4, B-298099.5, Nov. 28, 2006, 2006 CPD para. 185. Rather, such exchanges are more closely related to matters concerning the offeror's responsibility. Id. at 20. In this regard, the FAR states as follows: The contracting officer shall award the contract to the apparent successful offeror unless a conflict of interest is determined to exist that cannot be avoided or mitigated. Before determining to withhold award based on conflict of interest considerations, the contracting officer shall notify the contractor, provide the reasons, therefore, and allow the contractor a reasonable opportunity to respond. FAR sect. 9.504(e). As explained in Overlook, this provision contemplates a review after evaluations are completed and after an apparent awardee has been identified--it does not suggest reopening discussions with all offerors. Here, after identifying AdvanceMed as the apparently successful offeror but for concerns regarding unmitigated conflicts, the agency gave AdvanceMed an opportunity to respond to the concerns in this regard. CMS's actions, while ultimately flawed, were consistent with the process outlined in FAR sect. 9.504(e). To the extent the protester argues that the agency provided AdvanceMed with additional information regarding the timing of the agency's issuance of future task orders (specifically, when it intended to issue task orders for Medicare Parts C and D work) during its exchanges, which necessitated opening discussions with all offerors, this information related solely to the need for and viability of AdvanceMed's amended mitigation strategy, and did not result in AdvanceMed making any changes to its proposal in terms of its technical approach or price.[8] Accordingly, we conclude that CMS's exchanges with AdvanceMed regarding its OCI plan, did not constitute discussions. Unquote I agree that the contractor must address the issue of an OCI with the apparently successful offeror, but it seems that the exchange with the contractor would not be discussions.
  14. Whether you are using the LPTA Process or the Tradeoff Process (i.e. Best Value), you must evaluate price. To do so, you must consider all the price factors identified in the solicitation. In your case, if the solicitation did in fact announce that the price evaluation would consider 5 price subfactors, the contracting officer is obligated to consider them whether using LPTA or BV to make the award decision. As Monsieur Jacques has stated, the factors roll up into a single evaluated price reflecting the likely dollar outcome of the contract.
  15. The problem appears to be that the contractors are cleverer than the contracting officers. The contractors submit commerical rates for commercial items, which the CO accepts. No C or P data are involved. Then, the contractors hire someone at a cost that enables them to earn a 25% profit. I suppose a cost contract would elimate such a significant profit.
  16. I have not seen it in writing. However, I have heard Shay Assad and his staff say this several times at 3 or 4 meetings during 2 DOD conferences. At one meeting, Assad said he was ready to ban use of T&M / LH types due to the large profits. BTW, FPLOE contracts are beginning to receive the same scrutiny as T&M / LH contracts.
  17. FYI, DOD and other agencies are pushing back against the widespread use of T&M contracts because post award audits show that contractors are paying far less for labor than proposed and are earning profits far above that anticipated when the T&M rates are negotiated. Profits of 25% are not uncommon. If "risk" in the form of uncertainty (i.e. one can't define exactly what one wants, how much one wants, or when one wants it) is too great, use a cost contract vice a FFP. Cost contracts are preferred over T&M or LH types.
  18. http://archive.gao.gov/legald426p4/156888.pdf
  19. Let's try this scenario. You have aircraft carriers making visits to ports in your AOR. Some of the key carrier requirements are tug services, CHT removal and potable water. These supplies and services are furnished by contractors working for the local port authority. The prices for activities within the port are set by the port captain for all port users and are published in a Port Tariff reissued periodically. Contracts are priced for port tariff items as discounts against the port tariff. As tariffs change, the contractor provides copies to the contracting officer and ship supply officer. We reserve the right to terminate the supply or service. What are the legal, regulatory or practical objections to this approach?
  20. Why are there no controls? Did not / does not the contracting officer / contractor / COR or ordering officer review the catalog before writing and while administering the contract?
  21. An indefinite delivery type contract with firm-fixed price task orders. The pricing is as shown in the catalog less the discount.
  22. There are no special "rules" or "regulations" to be addressed. As with any contract, be clear in your definition of the requirement (e.g. "This contract covers all medical items listed in catalog # 123 dated February 29, 2008 issued by Dr Quack's Virtual Surgery Warehouse LLC") and the pricing mechanism (e.g. the unit prices for the catalog items shall be the catalog price less 27%). Make sure that the invoice certifier has a copy of the catalog prices. As you can determine the fixed contract prices by application of the discount to fixed catalog prices, the contract prices are fixed.
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