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Everything posted by napolik

  1. The primary source of confusion is probably my statement in post #3. I wrote this very poorly. I was describing my views on what tech panels should be directed to evaluate given my experience with them. I was not stating GAO views. As you point out, the GAO has issued a number of decisions reaching back to the 80s on the use of “extrinsic evidence” that is outside the proposal so long as the use of extrinsic evidence is consistent with established procurement practice. I would not direct the evaluators to look for extrinsic evidence except in cases involving past performance / experience evaluation factors, but if it was discovered, its source and relevance to the evaluation must be examined carefully in light of the solicitation’s evaluation criteria and the GAO decisions. BTW, I could only locate a single COFC decision addressing extrinsic evidence and info outside the four corners of the proposal: Contracting, Consulting, Engineering, LLC v. U. S. and DYNCORP International, LLC , No. 12-97C, April 16, 2012. The case dealt with the use of evaluators’ “personal experience” to evaluate résumés. The judge allowed consideration of the evaluators' personal experience, but she concluded that it was applied irrationally.
  2. Upset? I only get upset when someone misspells Bologna or takes a bite from a soccer player's shoulder. I wouldn't make the analysis of the - 8 pricing too complex. With all but one - 8 option with which I have dealt, it is exercised after all the -9 options are exercised, and it is exercised for all line items. Thus, the price of the - 8 option becomes, at most, 50% of the price of the final - 9 option. So, for eval purposes, I multiply the final - 9 option price by .5. If there is a likelihood that the - 8 will be exercised at a different time and / or for less than the full list of line items, change accordingly the - 9 option period and the line items to which you apply it.
  3. Is this approach either more legal or more predictive of the actual likely cost/ price than the multiplication of the final 12 month option price by .5? Why give it a complexity is doesn't need?
  4. I have never asked the contractors to price a -8 option. The line item structure and pricing for the - 8 clause is the line item structure and pricing for period in effect when the - 8 option is exercised.
  5. No. I would state in the solicitation how the evaluated prices will be developed for the base and option periods. For the - 8 option, I would state that it will be 50% of the final - 9 option period's evaluated price. If the final - 9 option is less than 12 months, then the equation will change.
  6. Yes. Sum the evaluated prices or costs for the base period and for the -9 and -8 options. State your intent to do this in the solicitation.
  7. jmj, Personal experience or knowledge can be used in the evaluation of proposals when evaluating factors other than contractor experience or past performance. However, my personal experience with technical panels – primarily in field contracting vice major systems – has taught me to focus the panel’s attention on the facts contained in proposals rather than on the panel member’s personal experience with the contractors. The GAO has issued decisions approving the use of “extrinsic information” or “extrinsic evidence”, or of information that is not within the “four corners of the proposal”, when consideration of the information or evidence is “consistent with established procurement practice”. At least one COFC judge has issued a decision accepting the use of extrinsic information on a case decided by the GAO allowing the use of the evaluators’ personal knowledge, but she reached a different conclusion than GAO as to the rationality of the application of the knowledge. In my career, I have frequently dealt with panel members who have little experience evaluating proposals. Frequently, they wished to introduce considerations that are not covered by the evaluation criteria. This has been particularly true when the evaluators had experience with one or more of the competitors. I prefer to provide the panel with concise, specific, explicit guidelines on what information to consider and on how judge the information against the evaluation criteria. In those cases when the evaluation includes an assessment of contractor experience and past performance, I expect to see specific facts underlying their knowledge of or experience with the contractor, not merely expressions of opinion. When doing major systems competitions, I can understand the need to consider extrinsic information. In the few competitions I handled involving major systems, the circumstances were similar to those described in GAO’s Northrop decision - Northrop Grumman Systems Corporation, B-406411, B-406411.2, May 25, 2012. I first awarded multiple “concept definition” (CD) contracts for the development of studies and reports. The final source selections took into consideration the contents of the studies and reports developed by the competitors. Section M of the solicitations stated that they would be considered, and the directions to the tech panels referenced them. If I were to handle another major system’s competition, I would take your advice, but I would be sure to draft the solicitation in a manner consistent with the GAO decisions and to give explicit guidance to the panel on what to consider.
  8. Bologna! While there is no legal or regulatory requirement to remove the identity of contractors from proposals, I can understand why it would be done. In my career, I have not encountered any circumstances representing “bias or bad faith” leading to a GAO protest. However, I have encountered cases where members of technical panels evaluated proposals using not only the proposals’ narratives, but also their personal experience with the contractors, particularly incumbents. While use of evaluators’ personal experiences may be acceptable when assessing contractors’ experiences or past performances, it is not acceptable when evaluating other factors (e.g. résumés, staffing plans, technical approach, etc.). Given the possibility of evaluators inserting their personal experiences with contractors, it might not be a bad idea to remove the contractors' names from the proposals.
  9. I remember the ASPR, too. I kept mine in 4, 3 ring binders. I used the extra room to keep track of the hard copy changes made to the ASPR. It was the reading and filing of changes that kept me up to date on the current state and content of ASPR policies and clauses. Today, most 1102s do not know when a FAC or DAC is issued, much less its contents. Today, more 1102s are encouraged to try to stay up to date on changes in key strokes for the operation of automated procurement systems than on the substance of procurement law and regulations. Sadly, today, there has been a very substantial change in emphasis in procurement. Correct key stokes outweigh correct application of FAR policies and clauses. Errors are to be corrected by expanded usage of automated systems, not by intense on the job training on the FAR.
  10. I suggest that the FAR Council take the approach illustrated by FAR 32.705 and clause 52.232-39 – Unenforceability of Unauthorized Obligations. The approach is to create a clause for use in every Government solicitation or contract that says this “The Government is not bound by any provision or clause included in, or excluded from, this solicitation or contract if an appropriate Government bureaucrat later determines that a provision or clause was incorrectly used in, or excluded from, the solicitation or contract. The appropriate Government bureaucrat possesses the authority to exclude or insert a provision or clause if the bureaucrat believes the provision or clause was required by the correct application of the FAR matrix or by good business sense.” This will increase the likelihood, but may not guarantee, that every solicitation and contract, sooner or later, contains the words necessary to protect the Government's interest.
  11. napolik

    Innovative Procurement Methods

    Years ago, I used similar approaches as part of major systems source selections, but the contractors were paid. In both cases – one for hardware and one for services, the initial competition led to the award of what we’ll call “concept definition” contracts. During the performance of the “concept definition” contracts, the contractors were, in effect, developing proposals over a period of 180 days. After the period of performance ended, the contractors delivered studies, amounting to technical proposals containing specs / statements of work, along with pricing. These submissions were evaluated, and they were addressed during discussions. After several months of evaluation and discussions, awards were made. Each concept definition contract cost hundreds of thousands of dollars. Uncle received unlimited rights to the data contained in the submissions. The total lead times for the supply and service contracts were 9 to 12 months.
  12. If the primary purpose of the contract is to furnish hardware or software, code it as a supply. See this extract from the PSC Code Manual: If you are buying it from the GSA schedule, look at the contractor's Schedule Terms and Conditions. Frequently, they will identify the PSC Code.
  13. As suggested by Retreadfed, look at the definition of a service contract in FAR 37.101. If that doesn’t answer your question, look at the definitions of services contained in the Product and Service Codes (PSC) Manual. In either case, I believe one would conclude that IT Hardware Maintenance is a service if that is the primary purpose of the contract. FAR 37.101 describes areas in which service contracts are found. One area is “Maintenance, overhaul, repair, servicing, rehabilitation, salvage, modernization, or modification of supplies, systems, or equipment”. The PSC Manual provides categories and groups of codes to describe products, services, and research and development (R&D) purchased by the federal government. One uses these codes to describe what was bought for each contract action reported in the Federal Procurement Data System (FPDS). The 2 broad categories that appear to be most appropriate as a descriptor of IT Hardware Services are services categories D3 and J0. Category D3 covers Information Technology and Telecommunication Services, and Category J0 covers Maintenance, Repair, and Rebuilding of Equipment. Given the definitions in the FAR and in the PSC manual, one would expect to identify a contract for IT hardware maintenance as a service.
  14. No. Source selection decisions and price reasonableness determinations are 2 different steps. See FAR FAR 15.308 and 15.305(a)(1). You document 2 different steps. You need not "dollarize" tradeoffs. See Kay and Associates, Inc. File: B-258243.7 Date: September 7, 1995:
  15. The SBSP is a contract requirement; the SBPP appears to be an evaluation factor. http://posts.same.org/sbconference/presentations/Robinson-Burnette_WedPresentation.pdf
  16. In your solicitation, you should have a definition of "evaluated price" (e.g. sum of Section B line items' extended prices, plus line item extended prices of options for additional quantities). What does your solicitation say?
  17. Then, why does the attorney object?
  18. In my experience, it is unusual that an attorney would not want to incorporate the contents of the solicitation. It could be that your attorney is concerned that the solicitation no longer reflects the intent of the parties or of the procurement regulations. I have reviewed proposed awards following discussions when the exchanges between the contracting specialist and the contractor addressed the solicitation’s contents. By this I mean that the exchanges represented a de facto amendment of the solicitation. Had we simply incorporated the solicitation without amending it correctly, the contract would not have accurately reflected the intent of the parties. By chance, did you have discussions during which you addressed the contents of your solicitation (e.g. CLIN structure, SOW, delivery or performance schedule, clauses)? Or, subsequent to the solicitation’s issuance, was the FAR or your agency FAR supplement modified to add a clause that should or must be included in the contract? If either case occurred, did you officially amend the solicitation?
  19. There is no question that a contracting officer may issue a unilateral purchase order. However, it is important to remember that the issuance of the unilateral purchase order does not create a contract. The contract embodied in the purchase order comes into effect when the contractor either countersigns the purchase order or commences its performance. See the definition of “Contract” in FAR 2.101:
  20. napolik

    Laxity in Lexicography

    The words do not need to be in the FAR to have meaning. The meaning can be obtained or inferred from a reference to Black's Law Dictionary, the Government Contracts Reference Book, or a dictionary. Government contract "professionals" need to use theses resources in addition to the definitions set out in FAR Part 2 and other FAR Parts and Subparts.
  21. napolik

    IDIQ Task/Delivery Order Awards

    Typically, an order under an IDQ contract is issued unilaterally by the government's contracting officer. Your IDQ contract should contain a Section B listing all the items of supply or service covered by the contract along with the unit prices for each item. When you submit a proposal to the contracting officer, you should be using the Section B lisitng to identify the items and prices you are proposing.under your contract. Since the contracting officer is placing an order for the items and prices listed in your contract, he or she does not need your signature.
  22. As you pointed out, the clause 52.216-18 makes the delivery order subject to the Limitation of Subcontracting clause. Paragraph (b ) of the -18 clause makes very explicit the applicability of the Limitation clause. If the contractor has stated that it will not comply with the clause, it is unacceptable. See this recent GAO decision - Sealift, Inc., B-409001 (Jan. 6, 2014): If it is unclear that the contractor will comply with the Limitations on Subcontracting clause, I would send an e-mail to the contractor: If you are concerned that other contractors may not be in compliance, send the e-mail to all the competitors. Since the contractor cannot revise its proposal, you have not held discussions.
  23. DPAP just issued a deviation to FAR 8.404(d) : http://www.acq.osd.mil/dpap/policy/policyvault/USA001004-14-DPAP.pdf. FAR 8.404 (d) tells one to do a price evaluation in accordance with FAR 8.405-2(d). The latter paragraph includes this sentence: "The ordering activity is responsible for considering the level of effort and the mix of labor proposed to perform a specific task being ordered, and for determining that the total price is reasonable." Given the explicit words in 8.405-2(d), does anyone know why DPAP felt obligated to issue a deviation?
  24. Those orders not requiring a statement of work list fixed price items with a spec or SOW contained in the schedule. The fixed prices for FAR 8.405-1 tasks or items were subject to competition when GSA awarded the schedule. If a contracting officer leaves the RFQ open for 30 days, but receives only a single quote, can the CO cite the competition leading to the award of the schedule as a basis for price fairness and reasonableness?
  25. napolik

    Fiscal Law, Bonafide Need

    I just received the following e-mail: Note that the document is " ... a cumulative supplement to the published third edition text that includes all relevant decisions from January 1 to December 31, 2013."