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napolik

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Everything posted by napolik

  1. 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.
  2. 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.
  3. 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!
  4. What evaluation factor will you use to assess the compensation plan?
  5. 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.
  6. 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.
  7. 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.
  8. Is the agency doing a price realism assessment?
  9. I am unaware of any collection / analysis of solely SBA OHA decisions. Try looking at contract lawyers desk books that address GAO, COFC, BCA and SBA OHA decisions. Here is an example: https://www.jagcnet.army.mil/ContractLawDocLib. For specific issues, you can go to the SBA OHA site here: https://www.sba.gov/oha/decisions. Or, you can use google after inserting the letters SBA OHA at the beginning of your search description.
  10. Perhaps you can extend your career by abandoning the QB position and taking up the placekicker role. Both score points for the team, but the QB expends much more physical and emotional energy.
  11. Bob, Didn't DHRA fail to implement a GAO recommendation in the sustained protest involving Metis Solutions and 5 or 6 other successful protestors? See B-411173.2; B-411173.4; B-411173.5; B-411173.6; B-411173.7; B‑411173.8; B-411173.9 issued on 20 July 2015.
  12. Consolidation

    E-go has grown along with E-mail, E-procurement, and E-learning.
  13. While I support the renewed “professionalization” of the contracting workforce, I am pessimistic that the workforce’s knowledge of law, regulation and market environment will improve. If anything happens to workforce knowledge, it will decline. This is due to the transfer of non-professional workload to the professional workforce. If I recall correctly, the professionalization of the contracting workforce began in the early 90s with the establishment of an educational requirement – a bachelor’s degree with 24 credit hours of business or business related subjects. Unfortunately, this laudable event was accompanied by other events that have undercut the effort to improve the professionalism of 1102s. First, there was the introduction of automated procurement systems (APS) driven, not by clerk typists (1106s), but by contract specialists. Increasingly, the contract specialists spend more time and effort learning how to create documents and to enter data in the APS than learning the substance of their profession. Currently, I work in a space adjacent to a staff of 1102s whose raison d’etre is an APS. All day long, 1102s line up to get help with the application of the APS to their specific procurements. If only they spent as much time reading the SOWs, the regs, the GAO and COFC decisions, and materials on the market they are seeking to use. Prior to my current experience, I cannot count the number of times I, or a colleague, was told a particular procurement strategy or tactic cannot be accomplished because SPS or PRISM won’t allow it. Because of the introduction of the APS, I believe contract specialists devote more time to learning their APS than to learning the substance of their “profession”. Closely related to the impact of APS is the impact of FPDS. FPDS entries and corrections are accomplished by 1102s. How many hours do contract specialists spend on the FPDS? Why can't 1106s do this? Next, while the procurement leaders were celebrating the new educational standards for 1102s, they were also eliminating 1105s, procurement agents. The work on small purchases – now simplified acquisitions – was transferred from 1105s to 1102s. I guarantee you that much/ most of the time 1102s spent/ spend on this new work was/ is spent on forcing the small purchases into the office APS. Until the procurement hierarchy demonstrates clearly the importance of procurement knowledge vice knowledge of APS, FPDS and small purchase, the test methodology is irrelevant. This demonstration will be the reduction or elimination of time 1102s spend on the creation of APS, FPDS and small purchase. Restore document preparation and reporting tasks to 1106s; return small purchases to 1105s.
  14. Absent a takeover of our culture and technology by the Luddites, multiple choice is the only type of test that can be administered. No narrative can be prepared using Ipads while the students are walking to the Starbucks!
  15. Don't forget that contract specialists must master their automated procurement systems! Capturing the right bits and bytes takes precedence over following the correct policies and procedures, using the correct provisions and clauses, and getting the best deal for the customer.
  16. Fair opportunity vs SBA recommendation

    I think you better get your small business specialist involved. See the following excerpt from the CFR: 13 CFR 125.2 - What are SBA's and the procuring agency's responsibilities when providing contracting assistance to small businesses? § 125.2 What are SBA's and the procuring agency's responsibilities when providing contracting assistance to small businesses? (a) General. The objective of the SBA's contracting programs is to assist small business concerns, including 8(a) BD Participants, HUBZone small business concerns, Service Disabled Veteran-Owned Small Business Concerns, Women-Owned Small Businesses and Economically Disadvantaged Women-Owned Small Businesses, in obtaining a fair share of Federal Government prime contracts, subcontracts, orders, and property sales. Therefore, these regulations apply to all types of Federal Government contracts, including Multiple Award Contracts, and contracts for architectural and engineering services, research, development, test and evaluation. Small business concerns must receive any award (including orders, and orders placed against Multiple Award Contracts) or contract, part of any such award or contract, and any contract for the sale of Government property, regardless of the place of performance, which SBA and the procuring or disposal agency determine to be in the interest of: (1) Maintaining or mobilizing the Nation's full productive capacity; (2) War or national defense programs; (3) Assuring that a fair proportion of the total purchases and contracts for property, services and construction for the Government in each industry category are placed with small business concerns; or (4) Assuring that a fair proportion of the total sales of Government property is made to small business concerns. ( b ) SBA's responsibilities in the acquisition planning process. (1) SBA Procurement Center Representative (PCR) Responsibilities. (i) PCR Review. (A) SBA has PCRs who are generally located at Federal agencies and buying activities that have major contracting programs. At the SBA's discretion, PCRs will review all acquisitions that are not set-aside or reserved for small businesses above or below the Simplified Acquisition Threshold, to determine whether a set-aside or sole source award to a small business under one of SBA's programs is appropriate and to identify alternative strategies to maximize the participation of small businesses in the procurement. This review includes acquisitions that are Multiple Award Contracts where the agency has not set-aside all or part of the acquisition or reserved the acquisition for small businesses. It also includes acquisitions where the agency has not set-aside orders placed against Multiple Award Contracts for small business concerns.
  17. Funding for options

    I think there is a salient factual difference between the circumstances involving the USAF set out in GAO decision B-259274 and those set out by duke 38 in his first post. The difference is found in the timing of the adjustment of the option periods. It leads me to conclude that it would not have been practical – if the action was legal – for duke 38 to have adjusted the option performance period. Duke 38’s June 13 post made it clear that his current contract period would lapse on 21 December 2013. His agency already exercised an option and obligated FY 13 monies covering the period to 21 December 2013. To advance the commencement of the next option period to 30 September 13 from 22 December 13, the agency would need to terminate the already exercised FY 13 option for the period from 30 September 13 to 21 December 13 and deobligate the associated FY 13 funds. After the termination and deobligation of FY 13 funds, I guess duke 38 could have created a new option period effective 30 September 2013 and running a length of time equivalent to the amount of remaining FY 13 funds his program office wanted to obligate. So, it seems that duke would have had to deobligate FY 13 funds in order to obligate more FY 13 funds. The facts of the GAO decision B-259274 involving the USAF are different. The AF changed the period of performance for the fourth option year during the third option year. The USAF did not terminate a portion of the performance period of the third option and deobligate monies to accommodate the creation of the period of performance for the fourth option period. The third option year elapsed on 31 August; the fourth option year began on 1 September. Assuming the GAO would accept a partial termination of FY 13 performance and deobligation of related FY 13 funding along with the adjustment of the final performance period and the reobligation of FY 13 funds, I suspect the duke 38’s customer and finance people would scratch their heads rather vigorously about such actions.
  18. RFP states a proposed solution

    I wonder if he got any snickers?
  19. RFP states a proposed solution

    I believe that the F & F Laboratories decision makes clear the need to state unambiguously to what line items, prices, specs, SOW, delivery or performance schedule and clauses the 2 parties are agreeing. While I understand Professor Nash’s admonition in Vern’s post 5, I am not sure that any definition of an “offer” contained in a solicitation provision could prevent in every case the kind of ambiguity seen in the candy bar contract. I believe one should always draft a 2 party contract containing the words defining the content of the agreement rather than referring to correspondence exchanged during the offer/ acceptance process. Years ago, I commenced my career using formally advertised solicitations containing requirements for the submission of descriptive literature demonstrating compliance with the solicitation’s specifications. I was taught via OJT to read carefully the full contents of the document containing the descriptive literature so that one did not accept an offer and create a contract that not only failed to meet the customer’s specs, but also failed to comply with solicitation clauses (e.g. T for D, delivery schedules, Buy American). Later, I learned to read very carefully cover letters accompanying bids and proposals to assure that there were not words buried in them that modified the content of “technical proposals” and of solicitation Ts and Cs. Unfortunately, today, too few 1102s are taught the principles of contract formation during their OJT. Instead, they are taught how to use automated procurement systems and to make FPDS entries. They are taught to “accept” blindly the contractor’s submissions and to incorporate them into the offer acceptance document. For these reasons, I favor the creation of a 2 party contract instead of “acceptance” of an offer and any of its modifications made during discussions.
  20. In the GAO decisions I have found, and there are a number of them, each refers to a contract line item. If the solicitation to which you refer is asking for a single line item price, it would be difficult to demonstrate that a $3,000 limit has been broken. However, the specification must set out the content, format and language of the course and, perhaps, the qualifications of the individuals preparing the course. Your schedule must not describe a content, format, language and qualifications that are inconsistent with the requirements set out in the solicitation. With regard to the CTA, there is a GSA page that poses and answers a number of questions on CTAs: http://www.gsa.gov/portal/content/202257. Here is one Q and A: Quote How does the ordering activity know that all quoted items are on GSA Schedule? In providing a total solution to an agency's requirement under a Contractor Team Arrangement (CTA), the supplies and services proposed should be identified under each team member's GSA Schedule contract. Any proposed supplies and services that are not part of a GSA Schedule contract (i.e., open market items) can be included only after all applicable acquisition regulations have been followed (see Federal Acquisition Regulation (FAR) 8.402(f)) and must be clearly labeled as such. Unquote Did the solicitation specify a specific SIN? If so, it appears that each member of the CTA must have the SIN on its Schedule contract. Quote In response to our request, GSA provided the following comments on VHSS’s protest: Ordinarily, Contractor Team Arrangement (CTA) members’ combined capabilities are aimed at a “total solution” and allow for the members collectively to meet government needs that each may not otherwise be capable of doing individually. In a conventional CTA, each CTA member would have at least one SIN on its respective schedule contract in furtherance of meeting the Government’s needs. Here, however, the VA is setting up a BPA for a single SIN only (the items to be procured are solely available under Schedule 65II-A, SIN A-50A). * * * * * If the procurement at issue is for a single SIN, then it would stand that both/all members of a CTA would need to have the particular SIN on their respective FSS contract . . . . [F]or the RFQ at issue, if a CTA is being used (which is permitted by the solicitation terms), both/all team members would need to hold a Schedule 65II-A contract with SIN A-50A.[6] Unquote See B-409888, Veterans Healthcare Supply Solutions, Inc., Sep 5, 2014: http://www.gao.gov/products/D08720#mt=e-report.
  21. When you said "Suppose a GSA RFQ asks for a fixed price", I inferred that you were responding to a RFQ issued by an agency under FAR 8.4? Are you, or are you responding to a FAR 13, 15 or 16.5 solicitation issued by GSA?
  22. RFP states a proposed solution

    I do not know what you stated in your solicitation's Section L or its commercial item equivalent, but, assuming the solution is technically acceptable, and absent an express statement barring the incorporation of the solution, I see no reason why you cannot accept the solution and incorporate it into the contract. If the solicitation is ambiguous with regard to its acceptance and incorporation, prepare a 2 party contract incorporating the proposed solution and ask the contractor to sign it
  23. You have not set out clearly all the facts in your case. How many and what types of supplies or services is the agency buying? I infer that the agency is obtaining multiple items of supplies or services while asking for a single price covering the multiple items. I assume that each of the items sought by the agency is called out in the FSS schedule either as a line item or as a specification for a schedule line item. When the agency issues a solicitation under the Federal Supply Schedule (FSS) system, every item must be on the schedule of the contractor selected for award. The only exception is an item whose value does not exceed the micro-purchase threshold of $3,000. In the Rapiscan Systems, Inc., B-401773.2; B-401773.3, Mar 15, 2010 the GAO addressed a protest against the placement of an FSS order to a contractor that included non-FSS items priced at $0. Quote With respect to CLIN 7, freight, the agency concedes that SAIC’s FSS contract does not include an item for freight, but argues that it nevertheless properly issued the purchase order to SAIC because its quoted price for the item does not exceed the $3,000 micro‑purchase threshold. We find that CLIN 7 did not qualify as a micro-purchase item. SAIC’s initial quotation for CLIN 7 indicated that freight was an open market--rather than an FSS contract--item, and showed a unit price of $6,832. SAIC Quotation sect. 4.1. SAIC then submitted a revised quotation on June 13 that again showed a unit price of $6,832 for CLIN 7, but further indicated that this price was being discounted by $6,832, resulting in a CLIN 7 price of $0. However, the quotation also expressly stated that the price for CLIN 7 was “included in unit price of Item #1,” indicating a shifting of the initially quoted price for line item 7 to line item 1. Revised Quotation sect. 4.1. Based on this evidence, while SAIC’s quotation showed a price of $0 for freight, this price, in effect, was illusory; its quoted total price actually included an amount for freight that exceeded the $3,000 micro-purchase threshold. Under these circumstances, we find that CLIN 7 freight cannot be considered a micro-purchase item under SAIC’s quotation. It follows that, since freight was a required item and was not included on SAIC’s FSS contract, the purchase order could not properly be issued to SAIC. The micro‑purchase exception is a narrow one and was not intended as a means for vendors to provide non-FSS items as micro‑purchase items to avoid the general rule that all items under an FSS solicitation must be included on the successful vendor’s FSS contract. See SMS Sys. Maint. Servs., Inc., supra. Unquote In your circumstance, each item of supply or service provided by the selected contractor valued at $3,000 or more must be on the contractor’s schedule and each item must meet the schedule’s spec for the item. In your case, for example, if the single line item must be delivered FOB destination, but the selected contractor’s schedule does not cover freight, I believe you would have a problem should a competitor protest. Or, if the single item calls for the delivery of “office materials” (i.e. books, 3 ring binders and printer paper) and the contractor’s schedule does not include binders or offers only binders with 2 rings, I believe you would also have a problem in the event of a protest.
  24. I found a different text for FAR 19.302(j): Did you mean to provide another cite?
  25. There is something else wrong with the synopsis for the services you describe. Small Business Set Asides are not used to award sole source contracts:
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