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napolik

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Everything posted by napolik

  1. Informal Price Analysis for Options

    No, I have not found a regulation imposing personal liability for an unauthorized commitments, but I have found the following Extract from the Department of Defense COR Handbook, Chapter 7 - Contract Administration Ratification of Unauthorized Commitments. See here: https://acc.dau.mil/CommunityBrowser.aspx?id=526643 Quote The COR should report any perceived unauthorized commitments immediately to the Contracting Officer. At the same time, CORs themselves must take great care not to instruct a contractor to perform a task that may be outside the scope of the contract. CORs are reminded that they, or any unwarranted Government official, may be financially obligated for any costs or damages incurred as a result of their directing contractor performance beyond the scope of their authority. Unquote
  2. Informal Price Analysis for Options

    This contracting officer paid a price, literally, for failing to do a market price analysis: http://www.gao.gov/assets/330/325996.pdf. Quote The basis for assessing the debt against Mr. Martino was the lack of evidence that he conducted or relied upon any kind of market survey in signing the contract extension as required by regulation. PCC's Inspector General found substantial evidence to support the conclusion that the extension was made with the knowledge that it was not supported by fact and was contrary to law or regulation. In particular, the contract extension was for $355/ton of liquid chlorine at a time when the producer price index was around $200/ton at the point of origin and the contractor was paying $165/ton to its supplier. The PCC concluded that since prices were considerably lower than the PCC was paying, Mr. Martino could not have conducted the required investigation of market prices prior to extending the contract. The PCC found that Mr. Martino's deliberate disregard of the FAR which required a market analysis made him responsible for the losses sustained by PCC as a result of his actions. Given the wide disparity in prices between what the PCC paid and what it might have paid for the commodity in question, we conclude that the PCC had a rational basis for the finding it reached. Unquote
  3. You must stipulate a maximum quantity in your IDQ contract, and you must use the dollar value associated with the maximum quantity when applying the certified cost or pricing data threshold. Take a look at FAR 16.504(a)(4)(ii) and 1.108(c): 16.504 -- Indefinite-Quantity Contracts. (a) (4) A solicitation and contract for an indefinite quantity must— (i) (ii) Specify the total minimum and maximum quantity of supplies or services the Government will acquire under the contract; 1.108 – FAR Conventions. The following conventions provide guidance for interpreting the FAR: (c) Dollar thresholds. Unless otherwise specified, a specific dollar threshold for the purpose of applicability is the final anticipated dollar value of the action, including the dollar value of all options. If the action establishes a maximum quantity of supplies or services to be acquired or establishes a ceiling price or establishes the final price to be based on future events, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options.
  4. Paragraph (a) of the definition of a contract seems to apply in the Great Southern Engineering decision. NASA provided a different definition of contract for purposes of evaluating past performance: "Specifically, NASA informed the firms that “the requirements have not changed as it relates to Past Performance. . . . [A] contract will be considered a single contract regardless of the number of task orders issued under the contract.”
  5. It is important to note that the COFC’s interpretation applied to a preaward circumstance involving the definition of “task order”. Specifically, NASA was seeking to evaluate a broad range of relevant experience under contracts with different customers. NASA decided that, for purposes of evaluating past performance, a “task order” was not a contract. The protestor argued that NASA was obligated to evaluate 10 task orders under a single contract as 10 separate contracts. Quote On April 22, 2016, GSE filed a bid protest in this Court alleging, in part, that NASA improperly evaluated its past performance by not considering the ten task orders to be ten separate “projects” under the Solicitation. Id. at 423. On May 24, 2016, the Court dismissed the protest without prejudice because NASA agreed to vacate its selection decision and re-evaluate the firms’ submissions. Id. at 443. In the interest of fairness, NASA invited GSE and K.S. Ware to update their past performance submissions. Id. at 466. Specifically, NASA informed the firms that “the requirements have not changed as it relates to Past Performance. . . . [A] contract will be considered a single contract regardless of the number of task orders issued under the contract.” Id. Instead of updating its past performance submission, on July 1, 2016, GSE filed an agency level protest arguing that task orders are contracts as a matter of law. Id. at 642. NASA denied 4 GSE’s protest stating that “[t]ask orders are not contracts.” Id. at 656. It further explained that the rationale behind the past performance criterion was to seek feedback from “as many customers as possible.” Id. at 658. The task orders were deemed to have only limited relevance because “[h]earing from one COR on ten different task orders does not provide the same insight into a contractor’s past performance as hearing from ten CORs on ten different contracts.” Id. Unquote The term “task order” was defined within the context of a solicitation provision, not within the context of an option exercise. So, I don’t believe the GREAT SOUTHERN ENGINEERING decision affects the definition of a “task order” as a contract when dealing with the exercise of options. See the Government Contractor article found here: https://media2.mofo.com/documents/160803gaoallworld.pdf.
  6. Is inaction an action?

    Here is a fascinating and informative article on the use and exercise of options after the lapse of the underlying contract period: https://media2.mofo.com/documents/160803gaoallworld.pdf. Here is an appetizer: "For years, federal agencies have issued task and delivery orders, under Federal Supply Schedule and indefinite-delivery, indefinite-quantity contracts, that include many years of options that extend well beyond the underlying contracts’ ordering periods. And for years, agencies have exercised those options without regard to whether the time for placing new orders under the underlying contracts had expired. Earlier this year, however, the Government Accountability Office threw sand in the gears of this long-established practice. In AllWorld Language Consultants, Inc., Comp. Gen. Dec. B-411481.3, Jan. 6, 2016, 2016 CPD ¶ 12; 58 GC ¶ 65, GAO came to the surprising conclusion that an agency could not exercise options included in an FSS order after the underlying FSS contract’s ordering period had expired, even if the FSS order containing the option was issued during the FSS contract’s ordering period. This unusual result has fostered concern among some agency officials about their ability to exercise FSS order options that the contracting parties necessarily assumed would be available when the agency awarded the order. Similarly, because of the logic of GAO’s decision, some contracting officials have become concerned that the exercise of task order options under IDIQ contracts is similarly foreclosed after the IDIQ contract’s ordering period ends, notwithstanding the timeliness of the task order itself."
  7. If the GWACs you select are reserved for different categories of small business (e.g. small business and 8a), I think you would have trouble with the SBA doing, in effect, a small business and an 8a set aside for the same procurement. Perhaps you could consider a cascading set aside procurement approach, but I don't know how you could do that using separate GWACs already set aside for small business categories.
  8. Is The FAR Enforceable

    During my career, I told my subordinates to do what their bosses direct unless the subordinates believe the action to be illegal or immoral. In those cases, I directed that they prepare the document or action for the boss to sign or take. There were a couple of instances when my subordinates objected to a source selection decision. I signed the decision and the contract. Fortunately, for me, none of my bosses insisted that I take an action I believed to be illegal or immoral.
  9. My answer is “Yes” assuming agencies’ management are willing to use the BA procedures and assuming the agencies’ workforces are trained to use them. I never negotiated a contract using 36.6 procedures, but I used variants when using FAR 8.4 procedures: I am not sure that many agencies would use them because the various agencies’ workforces are trained merely to apply procedures to implement a process, not to achieve results. It is my unscientifically proven opinion that the majority of agencies do not seek to negotiate the substance. They seek to conduct only FAR 15.3 type exchanges pertinent to proposal weaknesses and deficiencies. The biggest problems would arise from the unwillingness and inability of agencies’ managements, supervisors and contract specialists to identify and negotiate good deals. Most agencies would prefer to avoid the exercise of discretion and to expand the scope of automated procurement systems so that they could evaluate proposals, identify compliant proposals, conduct exchanges and make source selections.
  10. I always preferred hard copies anyhow!
  11. FAR 12.102, Applicability, states that Quote (a) This part shall be used for the acquisition of supplies or services that meet the definition of commercial items at 2.101. (b) Contracting officers shall use the policies in this part in conjunction with the policies and procedures for solicitation, evaluation and award prescribed in Part 13, Simplified Acquisition Procedures; Part 14, Sealed Bidding; or Part 15, Contracting by Negotiation, as appropriate for the particular acquisition. Unquote FAR 12.207, Contract Type, states at (b) (1) (ii) (C) (3) that Quote When making a change that modifies the general scope of— (i) A contract, follow the procedures at 6.303; (ii) An order issued under the Federal Supply Schedules, follow the procedures at 8.405-6; or (iii) An order issued under multiple award task and delivery order contracts, follow the procedures at 16.505(b)(2). Unquote Question: Given FAR 12.102(b), why does FAR Part 12 address issues involving FAR 8.4 and 16.5?
  12. Thank you for using the future tense.
  13. When evaluating proposals for the award of multiple award contracts, it is common to use “sample” task orders to obtain technical and price information you will use to make source selections. Afterwards, the agency issues the solicitation and evaluated proposals for the first “real” task order. There is no reason why you cannot use the evaluation of first “real” task order as the basis for making your multiple award contract source selections and for issuing your first task order. In your Section M, tell the potential offerors You will award multiple award contracts based upon your evaluation of technical and price proposals for the first task order to be issued under the contracts. You will also award the first task order under the multiple award contracts at the same time you award the contracts.
  14. Best Value Simplified Acquisition

    Monsieur Edwards has addressed this issue in a WIFCON blog post here: http://www.wifcon.com/anal/analcomproc.htm. He offers much sound advice. Here is one extract: Quote Do not follow the FAR Part 15 Process Model when making simplified acquisitions. When using simplified acquisition procedures to buy complex supplies or services worth in excess of $25,000 and for which a synopsis must be published, and if planning to ask for more information than just a price quote, either: (a) select one firm for one-on-one negotiations based on experience, past performance and a price quote and then negotiate to agreement on details, or (b ) narrow the competitive field of competitors on the basis of experience, past performance and a price quote before asking for more detailed proposal information, providing a specification or statement of work and clauses for price quote development by fax or email. Do not use FAR Part 15 terminology or refer to FAR Part 15 in the RFQ. Do not establish a competitive range, negotiate with more than one firm at a time, or solicit revised quotes or offers from more than one competitor. Unquote
  15. 52.217-8 and Expiring Task Order

    You can evaluate the -8 option in several ways: 1) you can state that the final -9 option period will be multiplied by 50% and that the result will be added to the valuated prices for the base period and all -9 option periods; 2) you can ask the contractor to propose prices for the six months following the end of the last -9 option period and add them to the evaluated price for the base and -9 option periods; or 3) you can get prices for multiple 6 month periods corresponding to the end of the base period and each -9 options. I like option 1 as a) GAO will allow it, 2) it is easy, and 3) it probably reflects the most beneficial outcome for the government in terms of price, performance and minimal admin burden.
  16. Data Madness?

    SPS preserves a lot:
  17. Favorite GAO Cases

    Check out this site: https://www.jagcnet.army.mil/ContractLawDocLib. Specifically, see the links for 2014 Contract Attorneys Deskbook and Contract Law Presentations.
  18. Data Madness?

    Unfortunately, there seems to be an inverse correlation between keystrokes and professional knowledge. There was a time when one had to read the ASPR, DAR or FAR to create solicitation and contract documents. Reading the regulations to create the documents caused one to become knowledgeable in the provisions and clauses. But, that was last millennium. Now the automated procurement systems relieve 1102s of the obligation and benefits of reading the regulations. Once a Luddite, always a Luddite.
  19. Don, The GAO considers 5 things when reviewing protests involving price realism: 1. If the solicitation doesn't provide for an eval of realism, the agency is not required to do so. 2. If the solicitation doesn't provide for the eval of realism, the agency must not evaluate realism. 3) If the solicitation provides for the evaluation of the realism of proposed prices, the agency must perform the analysis. Even if the solicitation doesn't use the term "price realism", an analysis is required if (1) the agency will consider if the proposed price is adequate/too low for the proposed tech approach and (2) the solicitation reserves the right to reject proposals or assess risk if the price is too low. 4. If FAR 52.222-46 requires agencies to assess the realism of professional compensation plans, it must do so. 5. If the solicitation provides for the evaluation of price realism, the agency has the discretion as to the manner and depth of the realism eval. See the Ralph White slides on realism here: https://www.acc.com/chapters/ncr/upload/Slides-BidProtest2015.pdf. I would require that the realism evaluation be stated explicitly in Section M, or its non-UCF equivalent. And, the section M factors must correspond to Section L submission requirements. I do not like solicitations that diffuse factors throughout the solicitation, particularly when they are buried in a clause incorporated by reference.. I wonder how many small businesses would read FAR clauses incorporated by reference and discover an eval factor in 52.222-46? XXXXXXXXXXXXXXXXXXXXX PS: Apparently, small businesses are not the only organizations susceptible to overlooking clauses incorporated by reference. It seems the Army did too, in at least one instance. Look at the first complete paragraph on page 26 of this COFC decision: http://www.uscfc.uscourts.gov/sites/default/files/opinions/ALLEGRA.CRASSOCIATES011812.pdf.
  20. As I remember this thread, there is no mention in Section M of how the labor rate data will be assessed. What evaluation factor will be used to assess the compensation plan? Will FAR 22.103 be cited in a section M factor? The last sentence of 22.103 says : "Plans indicating unrealistically low professional employee compensation may be assessed adversely as one of the factors considered in making an award." The last paragraph of FAR 52.222-46 says: "Failure to comply with these provisions may constitute sufficient cause to justify rejection of a proposal." I think a section M factor is needed, but the GAO disagrees with me "In the context of a fixed-price labor hour contract...". Quote As discussed above, FAR clause 52.222-46 states that the agency will evaluate an offeror’s proposed compensation plan "to assure that it reflects a sound management approach and understanding of the contract requirements," and further states that the evaluation "will include an assessment of the offeror’s ability to provide uninterrupted high-quality work." FAR § 52.222-46(a). As relevant here, the clause also states that the compensation plan "will be considered in terms of its impact upon recruiting and retention, its realism, and its consistency with a total plan for compensation." Id. In the context of a fixed-price labor hour contract, our Office has held that this FAR clause anticipates an evaluation of whether an awardee understands the contract requirements, and has proposed a compensation plan appropriate for those requirements--in effect, a price realism evaluation regarding an offeror’s proposed compensation. See Apptis Inc., B-403249, B-403249.3, Sept. 30, 2010, 2010 CPD ¶ 237 at 9. The depth of an agency’s price realism analysis is a matter within the sound exercise of the agency’s discretion. Navistar Defense, LLC; BAE Sys., Tactical Vehicles Sys. LP, B-401865 et al., Dec. 14, 2009, 2009 CPD ¶ 258 at 17. Unquote Portfolio Management Solutions, LLC; Competitive Choice, Inc., B-408846; B-408846.4, December 12, 2013. Live and learn!
  21. What evaluation factor will you use to assess the compensation plan?
  22. I cannot understand why the CO is asking for detailed rate info in a competitive environment. Assuming competition exists, price reasonableness is an easy determination to make. If the CO is concerned about excessively low rates, then different issues arise. Typically, requests for price breakdowns in competitive procurements are associated with price realism assessments. If price realism is the CO's concern, he or she needs to announce a price realism eval factor. Absent a factor for price realism (i.e. assessment of the correlation between proposed rates/ proposed price and proposed personnel/ materials/ technical approach), the CO's only way to deal with low prices would be a determination of non-responsibility. This can be thwarted by a firm "buying in" or by a small business viewed favorably by the SBA. Take a look at this recent GAO decision: Lily Timber Services, B-411435.2, August 5, 2015. http://www.gao.gov/products/B-411435.2#mt=e-report.
  23. Toy Delivery Contract

    Using an alias, Clause Industries holds a GSA Schedule: 451 1 EXPRESS SMALL PACKAGE AND EXPRESS HEAVYWEIGHT DELIVERY SERVICES Not sure if CI is a small biz.
  24. Toy Delivery Contract

    Bah! Humbug! Your automated procurement system will not generate a document in time. Call the toy provider to see if he/she will take an oral contract. If you haven't received the funding from the Comptroller, offer cookies and milk as consideration.
  25. Is the agency doing a price realism assessment?
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