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Everything posted by napolik

  1. FYI, I learned at the Nash & Cibinic Roundtable that the 2017 National Defense Authorization Act (NDAA) includes a DoD recommendation to allow all agencies to select contractors for multiple award contracts without considering price. The consideration of price is deferred to the evaluation of task and delivery orders under the MACs. This will be a significant, beneficial change. Quote SEC. 825. EXCEPTION TO REQUIREMENT TO INCLUDE COST OR PRICE TO THE GOVERNMENT AS A FACTOR IN THE EVALUATION OF PROPOSALS FOR CERTAIN MULTIPLE-AWARD TASK OR DELIVERY ORDER CONTRACTS. (a) Exception To Requirement To Include Cost Or Price As Factor.—Section 2305(a)(3) of title 10, United States Code, is amended— (1) in subparagraph (A)— (A) in clause (i), by inserting “(except as provided in subparagraph (C))” after “shall”; and (B) in clause (ii), by inserting “(except as provided in subparagraph (C))” after “shall”; and (2) by adding at the end the following new subparagraphs: “(C) If the head of an agency issues a solicitation for multiple task or delivery order contracts under section 2304a(d)(1)(B) of this title for the same or similar services and intends to make a contract award to each qualifying offeror— “(i) cost or price to the Federal Government need not, at the Government’s discretion, be considered under clause (ii) of subparagraph (A) as an evaluation factor for the contract award; and “(ii) if, pursuant to clause (i), cost or price to the Federal Government is not considered as an evaluation factor for the contract award— “(I) the disclosure requirement of clause (iii) of subparagraph (A) shall not apply; and “(II) cost or price to the Federal Government shall be considered in conjunction with the issuance pursuant to section 2304c(b) of this title of a task or delivery order under any contract resulting from the solicitation. “(D) In subparagraph (C), the term ‘qualifying offeror’ means an offeror that— “(i) is determined to be a responsible source; “(ii) submits a proposal that conforms to the requirements of the solicitation; and “(iii) the contracting officer has no reason to believe would likely offer other than fair and reasonable pricing. “(E) Subparagraph (C) shall not apply to multiple task or delivery order contracts if the solicitation provides for sole source task or delivery order contracts pursuant to section 8(a) of the Small Business Act (15 U.S.C. 637(a)).”. Unquote
  2. napolik


    The abbreviation BAFO has been replaced by FPR (final proposal revision). The issuance of a FPR is commonplace whether the procurement method is tradeoff or LPTA. A proposal revision or a FPR must be requested following discussions. Contracting officers conduct discussions and request proposal revisions/ FPRs to obtain price reductions, to improve the quality of an acceptable proposal, and/ or to give a contractor an opportunity to make an unacceptable proposal acceptable. The contracting officer must obtain a proposal revision or a FPR when the solicitation document is being amended.
  3. A GSA spokeswoman issued a statement Wednesday contradicting the lawmakers' characterization of the discussions: GSA does not have a position that the lease provision requires the president-elect to divest of his financial interests. We can make no definitive statement at this time about what would constitute a breach of the agreement, and to do so now would be premature. In fact, no determination regarding the Old Post Office can be completed until the full circumstances surrounding the president-elect’s business arrangements have been finalized and he has assumed office. GSA is committed to responsibly administering all of the leases to which it is a party.
  4. napolik

    Inauguration Holiday?

    You need to look at your contract clauses. I issued many service contracts. In some cases, government holidays were irrelevant (e.g. ship repairs at contractor facilities or data analysis services that did not require access to government offices). In other cases, the contractor was required to provide on-site support at government offices. In the latter case, the contract contained a clause stating that support would, or would not, not be provided on holidays.
  5. napolik

    Informal Price Analysis for Options

    It appears that contracting officers can have pecuniary liability. See this discussion from Ask a Professor: https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=3&cgiQuestionID=18532 Quote Up until a few years ago, Contracting Officers were not considered "Accountable Officials." In the second edition of the Government Accountability Office (GAO) "Principles of Federal Appropriations Law" (commonly known as the GAO Redbook) Volume II Chapter Nine the following definition of an "accountable officer is provided. An accountable officer is any government officer or employee who by reason of his or her employment is responsible for or has custody of government funds. 62 Comp. Gen.476, 479 (1983); 59 Comp. Gen. 113, 114 (1979); B-188894, September 29, 1977. Accountable officers encompass such officials as certifying officers, civilian and military disbursing officers, collecting officers, and other employees who by virtue of their employment have custody of government funds. With rare exceptions, other officials who may have a role in authorizing expenditures (contracting officers, for example) are not accountable officers for purposes of the laws discussed in this chapter, although they may be made accountable in varying degrees by agency regulation. See B-241856.2, September 23, 1992. However, this was recently changed. The current same section of the GAO redbook reads as follows: An accountable officer is any government officer or employee who by reason of his or her employment is responsible for or has custody of government funds. B-288163, June 4, 2002; 62 Comp. Gen. 476, 479 (1983); 59 Comp. Gen. 113, 114 (1979); B-257068, Oct. 22, 1994; B-188894, Sept. 29, 1977. Accountable officers encompass such officials as certifying officers, disbursing officers, collecting officers, and other employees who by virtue of their employment have custody of government funds. Clearly, the relevant statutory provisions are the first place one looks for the source of authority conferring the status of "accountable officer" and establishing the responsibilities and liabilities that go with it. Does this leave any room for agencies to create "accountable officers" by administrative action? Until recently, GAO decisions indicated that agencies could impose accountable officer status and liability so long as they did so by specific regulation. See B-247563.3, Apr. 5, 1996; B-260369, June 15, 1995; 72 Comp. Gen. 49, 52 (1992); B-241856, Sept. 23, 1992, and decisions cited. These decisions reasoned that such liability, duly imposed by regulation, could be regarded as part of the employee's "employment contract." However, in B-280764, May 4, 2000, GAO reconsidered its position and held that accountable officer status and liability can only be created by statute. The 2000 decision overruled prior inconsistent decisions. The change between these two Redbook editions resulted from Congress passing the 2003 National Defense Authorization Act (codified at 10 U.S.C. § 2773a), which provided a statutory authority defining individuals who are responsible in the performance of their duties for providing to a certifying officer information, data, or services that the certifying officer directly relies upon in the certification of vouchers for payment as "accountable officials." While the statute does not further define this, the DoD Financial Management Regulation (FMR) DoD 7000.14-R (http://www.dod.mil/comptroller/fmr/) does specifically include both the Contracting Officer and the Administrative Contracting Officer in their list of "accountable officials" since, in the course of their duties, they provide accounting information to certifying officials. Thus Contracting Officers are possibly pecuniarily liable for erroneous payments resulting from their negligent actions in accordance with 10 U.S.C. § 2773a. Unquote See 10 U.S. Code § 2773a - Departmental accountable officials here: https://www.law.cornell.edu/uscode/text/10/2773a. Also, I found a power point presentation entitled “Certifying Officer Legislation Training” here: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwips9KjhdHQAhUBhiYKHcAwAc8QFggbMAA&url=http%3A%2F%2Fsill-www.army.mil%2FUSAG%2FDOC%2Fppt%2FCOL%2520TRAINING.PPTX&usg=AFQjCNG6wWsRutS_3MFQpraKsyha-9svQA&bvm=bv.139782543,d.eWE. I found this on slide 12 of the power point presentation Quote Departmental Accountable officials are responsible for providing to a Certifying Officer information, data, or services that are directly relied upon by the Certifying Officer in the certification of vouchers for payment. Two examples of individuals who could be appointed as Departmental Accountable Officials are: Receiving Officials and Contracting Officers. Unquote Next, I found this on page 33-9 of the DoD 7000.14-R Financial Management Regulation VOLUME 5, CHAPTER 33: “CERTIFYING OFFICERS, DEPARTMENTAL ACCOUNTABLE OFFICIALS, AND REVIEW OFFICIALS” Quote *330305. Departmental Accountable Officials (DAOs) A. DAOs are responsible in the performance of their duties to provide certifying officers with information, data, or services to support the payment certification process. They have unique mission area responsibilities that require supervisors and appointing officials to not only decide if DAO appointments are required, but also define clearly each DAO’s functions. Appointment of DAOs in not mandatory; examples of persons whose duties could be considered as appropriate to support their being appointed as DAOs include, but are not limited to, receiving officials, contracting officers, personnel who make payment eligibility determinations, time and attendance personnel, and travel approving officials. Unquote Finally, DoD 7000.14-R Financial Management Regulation Volume 10, Chapter 23 seems to focus only on contracting officers involved with purchase cards: http://comptroller.defense.gov/Portals/45/documents/fmr/Volume_10.pdf.
  6. napolik

    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
  7. napolik

    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
  8. 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.
  9. 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.”
  10. 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.
  11. napolik

    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."
  12. 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.
  13. napolik

    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.
  14. 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.
  15. I always preferred hard copies anyhow!
  16. 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?
  17. Thank you for using the future tense.
  18. 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.
  19. napolik

    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
  20. napolik

    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.
  21. napolik

    Data Madness?

    SPS preserves a lot:
  22. napolik

    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.
  23. napolik

    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.
  24. 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.
  25. 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!