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napolik

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Posts posted by napolik


  1. 3 hours ago, Vern Edwards said:

    What do you mean by "proposal/offer"? Did the offeror promise to provide Mercedes, clearly and unequivocally?

    The solicitation stated that a proposal/ offer consisted of, inter alia, prices and an identification/ description of the vehicles to be used to meet the requirements set forth in the Section C/ SOW. The solicitation includes the SF 1449 which the contractor signed and which the contracting officer will sign to create a contract after signing in block 31a and after checking block 29 and entering info relevant to the proposal/ offer. 


  2. 3 minutes ago, Vern Edwards said:

    1. You say that the source selection will be a tradeoff. How will the government evaluate the cars? Will it look to see only whether a proposed car meets the spec or will it evaluate the cars on other value-adding attributes, as well?

    First, the cars must meet the minimum spec. Then, additional value will be assigned based upon horsepower, max velocity, seat space, IT mechanisms, etc.

    Quote

    2. What will the contract say? Will it retain the spec in the solicitation or will it specify the car by make and model?

    Like many, if not most, solicitations, there is no clause explicitly stating that the proposed vehicle must be furnished. However, the solicitation defines clearly the contents of the proposal/ offer, and the contracting officer will accept the proposal/ offer.

    PS - Another competitor will offer a Renault.


  3. 44 minutes ago, Michael11 said:

    In the absence of a specific solicitation requiring one to, does ‘relevant commentary’ suggestions, and the GAO’s reasoning where some interpretations could require contractors to notify an agency of a material change, equate to.. contractors must do so? 

    Quote

    We conclude that there was a material change in the awardee’s proposed staffing and EMS approach that occurred after CLF certified that its January 2005 FPR remained valid, but more than 2 months prior to the agency’s final evaluation and award of the M&M contract. Under these circumstances, CLF was required to advise the agency of the material change in its proposed resources and technical approach, in order to ensure that the evaluation was based on consideration of the staffing and EMS that CLF actually intended to use in performing the contract. See Dual, Inc., B-280719, Nov. 12, 1998, 98-2 CPD ¶ 133 at 3-6, as recently explained in SAMS El Segundo, LLC, B-291620, B-291620.2, Feb. 3, 2003, 2003 CPD ¶ 44 at 19-20. Because CLF failed to do so, the agency never evaluated CLF’s actual employees and EMS approach as they existed at the time of award; as a result, the evaluation--and, it follows, the award determination that was based on the results of the evaluation--were unreasonable. Dual, Inc., supra, at 6. To allow such an award to stand would call into question the integrity of the competition. Accordingly, we sustain the protest on this basis.

    Greenleaf Constr. Co, Inc., B-293105.18, B-293105.19, Jan. 17, 2006

    Quote

    Since the agency's evaluation of Camber's proposal was based upon Camber's representation that it would perform much of the TSA contract with its own employees, when, in fact, that will not be the case, the evaluation is flawed. Therefore, the SSA's best value determination and selection of Camber as the second awardee under the partial small business set-aside, which was based entirely upon the results of the flawed evaluation, is also suspect.

     In these circumstances, Camber had an obligation to advise the agency of the sale, at the very latest on June 28, when it agreed to the sale and lease back of facilities. See Professional Safety Consultants Co., Inc., B-247331, Apr. 29, 1992, 92-1 CPD Para. 404 at 4. See also Mantech Field Eng'g Corp., supra. Because Camber did not do so, the agency's evaluation and its selection of Camber were based upon representations concerning Camber's personnel that were no longer true. The award was based on Camber's proposal representations, and to allow such an award to stand in spite of the fact that Camber had not disclosed to the agency that it would not perform the contract as proposed would call into the question the integrity of the competition. See AAA Eng'g & Drafting, Inc., B-250323, Jan. 26, 1993, 93-1 CPD Para. 287 at 6. Accordingly, we are sustaining the protest on this ground.

    Dual, Inc., B-280719, Nov. 12, 1998


  4. 1 hour ago, REA'n Maker said:

    What would the government have to gain by maintaining a draconian approach to Key Personnel?   I'm convinced that there are Key Personnel provisions/clauses floating around out there that are probably illegal, as they read more like Mandates for Indentured Servitude than solicitation provisions.

    Brandes’s allegation that Amelex failed to inform the agency of a material change in its key personnel was not clearly meritorious at the time the agency filed its agency report. In this regard, our Office has held that offerors are obligated to advise agencies of changes in proposed staffing and resources, even after submission of proposals. Greenleaf Constr. Co., Inc., B-293105.18, B-293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 10. The failure of an offeror to inform the agency of a change in proposed staffing and resources may render the evaluation and subsequent award decision unreasonable where it results in the agency being unable to evaluate the actual employees as they existed at the time of award.


  5. What would one do in this scenario?

    A Fed agency covered by the FAR issues a solicitation calling for transportation services. The SOW includes a spec for the motor vehicles. The award will be made on a tradeoff basis. Quality of the motor vehicle is an evaluation factor.

    Contractor X will compete relying on a subcontractor to furnish the motor vehicles. One subcontractor,  Luxurious Imports Inc. (LMI) furnishes Mercedes. The other subcontractor, Cinque Cento (C2 )motors, provides Fiat 500s. Both meet the solicitation spec requirement. 

    Since the source selection will be a tradeoff, X proposes LMI vehicles. Later, after dispute breakouts our between X and LMI, X decides to use C2..

    Is X required to notify the contracting officer that it will provide Fiat 500s instead of Mercedes? 


  6. 2 hours ago, Vern Edwards said:

    The case cited by napolik had to do with task order proposals under a MATOC, which may involve different implications than proposals for new contracts.

    Would the MATOC, or GSA BPA, contain clauses governing submission and evaluation of quotes/ proposals? Maybe. I used those clauses.

    Every contract specialist must read the clauses contained in the MATOC or GSA BPA to see how they affect contract performance AND the solicitation and evaluation of quotes/ proposals. If the the MATOC or GSA BPA clauses don't contain proposal submission and evaluation language, the CO could add the same language on proposal submission and evaluation in the solicitation as seen in provisions in a solicitation for a new contract. 


  7. 13 hours ago, Deaner said:

    I’ve seen this as a special condition where it requires the contractor to notify the Government anytime their key personnel are changed from what was initially proposed. I don’t know that it’s in the FAR though, and while it doesn't specifically state unavailability, it's something similar in my agency supplement. 

    This is a clause is pertinent to the administration of a contract. It is not a solicitation provision relevant to the evaluation of proposals.


  8. Quote

    Government contractors frequently find themselves in a sticky situation where, after submitting a “best and final offer” (BAFO), but before award, they learn that material information provided in their proposal has become stale. This type of situation often arises when the contractor learns that proposed key personnel are no longer available, or otherwise will not be able to participate in the contract if awarded. The contractor facing such a situation must quickly decide whether, prior to contract award but after submission of its BAFO, it should notify the contracting officer of the newly discovered potential unavailability of such proposed key personnel. As discussed below, this is a gray area in the law, with Government Accountability Office decisions supporting either notification or remaining silent depending on the specific facts at issue.  

    Quote

    Despite these risks, contractors also should be aware that numerous GAO opinions could be interpreted to require pre-award notification of any “material change” in the offeror’s proposal. In Greenleaf Constr. Co, Inc., B-293105.18, 2006 CPD ¶ 19 (Comp. Gen. Jan. 17, 2006), for example, the GAO sustained a protest where, after submission of the awardee’s proposal but prior to award, both the offeror’s key personnel and the proposed technical approach had materially changed. The GAO reasoned that because of the material changes, “the agency never evaluated the awardee’s actual resources and technical approach as they existed at the time of award.” Similarly, in Paradigm Tech. Inc., B-409221.2, 2014 CPD ¶ 257 (Comp. Gen. Aug. 1, 2014), the GAO sustained a protest where the procuring agency was aware that the awardee’s proposal failed to satisfy a material solicitation requirement concerning key personnel. Citing Greenleaf, the GAO admonished the offeror that it “should not have allowed almost three months to pass before notifying the agency that one of its two key people was no longer available,” noting that identification of key personnel was a material term of the solicitation and any changes must be reported to the contracting officer.

     A number of recent GAO cases cite Greenleaf as mandating that “offerors are obligated to advise agencies of changes in proposed staffing and resources, even after submission of proposals.” See, e.g., Brandes Assoc. Inc., B-412548.5, 2016 CPD ¶ 245 (Comp. Gen. Aug. 24, 2016) (citing Greenleaf as holding: “The failure of an offeror to inform the agency of a change in proposed staffing and resources may render the evaluation and subsequent award decision unreasonable where it results in the agency being unable to evaluate the actual employees as they existed at the time of award.”). Additionally, relevant commentary suggests that an offeror likely should notify the government of the change. See, e.g., Steven W. Feldman, Government Contract Awards: Negotiation and Sealed Bidding §10.26 (Oct. 2016) (suggesting that “if in the interval between submission of revisions and the award the offeror learns that the key personnel representations are no longer accurate,” the offeror should “volunteer the information to the agency so as to avoid tainting the award with a possible misrepresentation”).

    https://www.law360.com/articles/928640/risks-for-contractor-with-new-info-after-proposal-submission

    Quote

    Brandes’s allegation that Amelex failed to inform the agency of a material change in its key personnel was not clearly meritorious at the time the agency filed its agency report. In this regard, our Office has held that offerors are obligated to advise agencies of changes in proposed staffing and resources, even after submission of proposals. Greenleaf Constr. Co., Inc., B-293105.18, B-293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 10. The failure of an offeror to inform the agency of a change in proposed staffing and resources may render the evaluation and subsequent award decision unreasonable where it results in the agency being unable to evaluate the actual employees as they existed at the time of award.

    Brandes Associates Inc., B-412548.5, Aug. 24, 2016

    https://www.gao.gov/assets/680/679861.pdf

     

     

     

     


  9. 21 hours ago, Vern Edwards said:

    You can use FY16-17 funds for the needs of FY17, but I don't know if you can use them for the needs of FY18.

    It appears that you cannot use the FY 16/ 17 funds in FY 18. See B-317636, April 21, 2009.

    https://www.gao.gov/special.pubs/appforum2010/contract_law.pdf

    Go to the bottom of page 3 and the top of page 4:

    Quote

    The bona fide needs rule is derived from the so-called time statute, 31 U.S.C. § 1502(a). B-308010, Apr. 20, 2007. Section 1502(a) provides that—

     “an appropriation . . . limited for obligation to a definite period is available only for payment of expenses properly incurred during the period of availability . . . . However, the appropriation . . . is not available for expenditure for a period beyond the period otherwise authorized by law.”

     Section 1502(a) applies to appropriations limited to a definite period, and no-year funds are not so limited. Thus, neither it, nor the bona fide needs rule derived from it, applies to no-year funds. While a multiple year appropriation is available for a definite period of time, it is available by its very terms for the bona fide needs of the agency arising during that multiple year period. As stated above, severable services are considered a bona fide need of the appropriation current at the time rendered. Consequently, an agency using a multiple year appropriation would not violate the bona fide needs rule if it enters into a severable services contract for more than 1 year as long as the period of contract performance does not exceed the period of availability of the multiple year appropriation.

     


  10. 3 hours ago, napolik said:

    I wonder if the COs today have the knowledge, skills and disposition to swing on the pendulum.

    I suspect not. But, perhaps the automated procurement systems, or a more sophisticated AI cousin, can empower them to read, assess, decide and act correctly.

    B-414785, Bluewater Management Group, LLC, September 18, 2017
    http://www.gao.gov/products/B-414785

    Quote

    The FSS program, directed and managed by GSA, gives federal agencies a simplified process for obtaining commonly used commercial supplies and services.  FAR § 8.401(a).  Orders placed using the procedures established for the FSS program satisfy the requirement for full and open competition.  41 U.S.C. § 259(b)(3); FAR § 6.102(d)(3).  Non-FSS products and services may not be purchased using FSS procedures; instead, their purchase requires compliance with the applicable procurement laws and regulations, including those requiring the use of competitive procedures.  Symplicity Corp., B-291902, Apr. 29, 2003, 2003 CPD ¶ 89 at 4.  Where an agency orders from an existing FSS, all items quoted and ordered are required to be on the vendor's schedule contract as a precondition to receiving an orderScience Applications Int'l Corp., B-401773, Nov. 10, 2009, 2009 CPD ¶ 229 at 2. 

    Quote

    [6] While we sustain the protest on the basis that the transportation services were beyond the scope of DMC's schedule contract, we note that the statement of work for SIN 653-9 states that task orders for lodging services under that SIN must be at least 30 days in duration.  AR, Tab 14, SIN 653-9 Statement of Work, at 1 (emphasis added).  This minimum stay is similarly reflected in DMC's and Bluewater's schedule 48 contract brochures.  See AR, Tab 16, DMC Schedule 48 Brochure, at 1; see also AR, Tab 18, Bluewater Schedule 48 Brochure, at 4.  However, the scope of work in the solicitation expressly states that the task order is not intended for stays in excess of 30 days.  RFQ at 8. 

     


  11. Call order is still in GAO's dictionary:

    Quote

    [1]  A "call order" is an order placed against a BPA pursuant to the authority in Federal Acquisition Regulation (FAR) § 8.405-3(c)(2)(iii).

    [2] The agency's independent government cost estimate (IGCE) of $46,000,000 and 341 total call orders encompassed the base period and all option years.  The agency's estimates were based on actual obligations from the recently-expired incumbent BPA held by FedResults, adjusted for anticipated program growth, additional BPA requirements and inflation.  Contracting Officer Statement (COS) at 4; AR, Tab 36, Award Summary, at 17.  At 341 call orders and an IGCE of $46 million, the scenario call order pricing is $134,898.  FedResults did not challenge either the basis for the agency's IGCE nor its estimate of the scenario pricing.

    See B-414641, FedResults, Inc., August 8, 2017 at http://www.gao.gov/products/B-414641

     


  12. 1 hour ago, Boof said:

    OK so I post my requirement to Alliant SB  and if I do not get two acceptable proposals, I repost it to Alliant LB.  

    I am not speaking about orders under the MACs. I am speaking of the award of the MACs.

    How could GSA award Alliant 2 without setting it aside given the close similarity of its Section C and labor categories to those seen in Alliant 2 SB?

    What exception to the Rule of Two applies?


  13. 1 hour ago, formerfed said:

    My thought is since both Alliant and Alliant SB are very large IDIQ contracts, the scope is relatively open.  Individual needs are met at the task order basis.  So ordering agencies decide which vehicle to use based on the specifics of their work.  The work is the same for both (same section c and labor categories); it's the magnitude of the jobs that differentiate. 

    Yes, but FAR 19.502-2(b) says the Rule of Two applies to any acquisition over $150k. It doesn’t exempt MACs.


  14. 47 minutes ago, formerfed said:

    Napolik,

    Back to your original question, it seems to me GSA did exactly that with Alliant.  They determined that a total set-aside is not feasible so they did a partial.  The partial is Alliant SB.

     

    The Section Cs are virtually identical. So are the labor categories.

    Since GSA asks for the same work from the same labor categories and since GSA issued an Alliant 2 SB set aside, how can a set aside not be feasible?

    Thanks


  15. 1 hour ago, contractor100 said:

    Okay, Napolik, it does not.  Because it is an RFQ.  

    I have submitted at least 350 responses to GSA RFQs.  I have never, not once, had any post submission discussions or whatever they are called on GSA procurements.

    Has anyone else?

    I've had plenty post award!  Where we actually determined what work we would do.   

    So, the contractor's submission isn't incorporated into the order.

    In your opinion, what is the purpose of the very carefully coiffed 10 page submission?

    Typically, does the contracting officer have any discussions with you affecting the quality or price of the effort reflected in your quote?


  16. 2 hours ago, contractor100 said:

     But there are solicitations where ten pages just isn't enough and we really fail to see how the government can get the information it needs to compare offers or to enter into a contract ...

    Does that 10 page "technical approach"  represent an "offer"  to be accepted and incorporated into the contract?


  17. 2 hours ago, policyguy said:

    I'm not a fan of page limitations in offers but I understand the argument for using them.  

    Does that 10 page "technical approach"  represent an "offer"  to be accepted and incorporated into the contract?

    Given a 50+ page SOW, why do you need 5, 10 or 50 pages of blather cut and pasted from the contractor's last proposal?

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