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Everything posted by napolik

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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:
  6. The SBSP is a contract requirement; the SBPP appears to be an evaluation factor. http://posts.same.org/sbconference/presentations/Robinson-Burnette_WedPresentation.pdf
  7. 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?
  8. Then, why does the attorney object?
  9. 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?
  10. 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:
  11. 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.
  12. 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.
  13. 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.
  14. 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?
  15. 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?
  16. 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."
  17. Need Ideas - Acquisition Strategy

    Contracting is an art, and every contracting officer is an artist. So, there is more than one approach you can take. One approach is to solicit and evaluate proposals using a down select process combined with the award of purchase orders or contracts. Solicit and evaluate proposals, identify the 3 proposals representing best values, award three purchase orders requiring the analysis of samples, and use the evaluation of the samples and proposed prices to make your source selection.
  18. In its decisions involving the evaluation of quotes submitted under a FAR 8.4 procurement, the GAO has consistently stated that it “ … will review the record to ensure that the agency’s evaluation is reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations.” See a recent decision involving a FAR 8.4 competition: United Facility Services Corporation d/b/a EASTCO Building Services, B-408749.2, Jan. 17, 2014. http://www.gao.gov/assets/670/660296.pdf. For me, it is indisputable that you must evaluate all quotes you receive against the criteria you identify in your solicitation.
  19. The agency’s contracting officer is bound to evaluate the contractor's technical proposal against only the specific criteria set out in the solicitation when doing the technical evaluation of proposals. In making the determination of responsibility, the contracting officer should consider the contractor’s ability to execute the entire SOW set out in Section C.
  20. You can do a SDVOSB set aside if you wish. See FAR 13.003(b )(2). There is no FAR barrier to subcontracting the work. BTW, you would not use 52.219-14 under $150k. See FAR 19.508(e ). Also, subcontracting plans are not required from small businesses. See FAR 19.702(b )(1).
  21. You can do a SDVOSB set aside if you wish. See FAR 13.003(b )(2). There is no FAR barrier to subcontracting the work. BTW, you would not use 52.219-14 under $150k. See FAR 19.508(e ). Also, subcontracting plans are not required from small businesses. See FAR 19.702(b )(1).
  22. Ideally, there would be no condescension or ridicule in this forum or in life. Learn to ignore the ad hominem/ ad feminam. Focus on the knowledge you can gain from many of the posters.
  23. Why not create a FFP LOE and use this clause: Payment Monthly Payments: The contractor shall be paid based upon level of effort (LOE) expended for all sites, plus travel, training, and surge support costs incurred. The amount of the payment for the monthly LOE expended shall be developed by multiplying the percentage the month's LOE for all sites represents of the total annual LOE for all sites times the firm fixed price. Assuming the total firm fixed price is $5,000,000, the total annual LOE for all sites is 56,640 hours, and the monthly LOE expended for all sites is 4,700 hours, the monthly payment would be $414,901 plus any travel and training costs and surge support. Monthly payment = [(monthly LOE for all sites/ annual LOE for all sites) X firm fixed price] + travel costs+ training costs+ surge support. Monthly payment = [(4,700/56,640) X $5,000,000] + travel costs + training costs+ surge support Monthly payment = (.0083 X $5,000,000) + travel costs + training costs+ surge support Monthly payment = $414,901 + travel costs + training costs+ surge support Total Payments: The contractor shall be paid the entire firm fixed price only if the contractor expends the entire LOE for all sites. If the entire LOE for all sites is not expended, the total of monthly payments to the contractor shall be a percentage of the FFP equal to the total LOE expended for all sites divided by the total LOE for all sites set out in Section B. Assuming the contractor expends 56,000 hours, the total payments to the contractor would be $4,943,502.50 plus any travel and training costs and surge support. Total Payments = [(total LOE expended / total Section B LOE) X firm fixed price] + travel costs + training costs+ surge support Total payments = [(56,000 / 56,640) X $5,000,000] + travel costs + training costs+ surge support Total payments = (.9887 X $5,000,000) + travel costs + training costs+ surge support Total payments = $4,943,502.50 + travel costs + training costs+ surge support
  24. You are right, the key words include "ability to execute". While the contractor can buy in, the contracting officer must decide whether or not the contractor can perform the contract given its very low price. If the contracting officer does not think the contractor can perform at the buy-in price, he or she must determine the contractor to be non-responsible. Let me provide a couple of examples to illustrate that compliance with law and regulation is not the only consideration you make when facing a “buy in” circumstance. First, assume you need a contractor to provide security services for a Navy ship visiting a middle-eastern port. The price is 20% below the nearest competitor’s price and 35% below the government estimate. You ask the contractor to explain how he or she could obtain the barges, barriers and services needed to execute the contract per the SOW. The contractor is unable to demonstrate that it has identified sources and prices for the security barges and for the tugs needed to maneuver the barges, but the contractor insists that its competitors are greedy and making too much profit. Do you determine the contractor to be responsible because the contractor has never run afoul of a US or foreign law or regulation affecting port security services? Next, assume you are seeking to contract for household good shipment (HHG) services. The price is well below competitors’ prices and 10% below the existing contract. When you speak with the contractor, you discover that it lacks experience and sources associated with shipping HHG overseas. The contractor tells you not to worry because he has relatives located overseas who know sources that can handle the shipments. What is your decision concerning responsibility?
  25. Responsibility addresses a number of issues involving the contractor's ability to execute its proposal at the proposed price as well as its compliance with laws and regulations. Take a look at the standards the contractor must meet to be determined “responsible".