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napolik

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Posts posted by napolik


  1. 3 hours ago, joel hoffman said:

    No basis of award was stated. The KO “anticipated” doing it as LPTA in its declaration but the RFQ, as written, didn’t limit it to that specific method. 

    Well, the bases for award are LPTA, tradeoff or HTRFRP. Does GAO say what is the basis?

    Quote

    Based upon our review of the record in this case, we find reasonable, for the reasons below, the agency’s method of resolving the tie between AVIS Jordan’s and Masafat’s lowest‑priced, technically acceptable quotations.

    Quote

    DIGEST

    In a lowest-priced, technically acceptable acquisition using commercial item and simplified acquisition procedures, where two vendors submitted technically acceptable quotations at the same price, and where the solicitation contained no tie-breaking procedures, the agency reasonably considered the quality of the quoted items to determine the award priority among equally low-priced vendors.

     


  2. 15 minutes ago, joel hoffman said:

    That was AVIS Jordan’s viewpoint.

    Quote

    Notably, AVIS Jordan has not identified any procurement law or regulation, or any provision of the RFQ, that the agency violated when considering model year to resolve the tie between two lowest-priced, technically acceptable vendors.  Rather, in support of its argument, the protester simply points to the absence of express authorization in the RFQ of the agency’s consideration of model year to give priority to Masafat’s quotation.  In circumstances, like here, where a solicitation does not contain tie-breaking procedures, our Office has rejected challenges to an agency’s chosen method of resolving a tie where the agency’s actions were reasonable.  Vetcorp, Inc., B-402519, May 14, 2010, 2010 CPD ¶ 114 at 2 (finding reasonable the agency’s use of FAR part 14 procedures for determining the award priority among equally low-priced proposals in a commercial items procurement under FAR subpart 12.6); seee.g.Raytheon Company, B-410719.10, B-410719.11, Nov. 15, 2016, 2019 CPD ¶ 119 at 11, 14-15 (finding reasonable an agency’s decision to amend the solicitation and seek revised proposals, rather than canceling the solicitation, to resolve a tie between low-price offerors).  Based upon our review of the record in this case, we find reasonable, for the reasons below, the agency’s method of resolving the tie between AVIS Jordan’s and Masafat’s lowest‑priced, technically acceptable quotations.

    Quote

    seee.g.Raytheon Company, B-410719.10, B-410719.11, Nov. 15, 2016,

    The solicitation, conducted in accordance with Federal Acquisition Regulation (FAR) part 15, anticipated award to the responsible offeror submitting a technically acceptable proposal and submitting the lowest price, as determined by the bestvalue assessment. 2013 RFP § M ¶ 1.1. The 2013 RFP provided for evaluation of proposals under three factors: technical, small business participation, and cost/price. 2013 RFP § M ¶ 2.1. The technical factor comprised three subfactors: system design and performance, system producibility and sustainability, and exportability. 6 Id. Proposals would be evaluated under each technical subfactor for compliance and risk on an acceptable/unacceptable basis. Id. A proposal receiving a rating of unacceptable would be considered unawardable. Id.

     


  3. 50 minutes ago, joel hoffman said:

    It wasn’t an LPTA acquisition, regardless of what the KO said that they intended to base the selection on. The RFQ did not commit to an LPTA selection process...

    Quote

    We also note that other than expressing its general dissatisfaction with the agency’s actions, AVIS Jordan does not identify the method or procedure it thinks the agency should have used to determine which of the lowest‑priced, technically acceptable vendors should have received award.  Consequently, we find no basis to conclude that the agency’s chosen tie-breaking method was unreasonable.

     


  4. On 3/8/2019 at 3:04 PM, G Smith said:

    What is the procedure to determine which vendor to use for the procurement since both submitted the same price.

    GAO just issued a thought provoking decision on this matter:

    Quote

    DIGEST

    In a lowest-priced, technically acceptable acquisition using commercial item and simplified acquisition procedures, where two vendors submitted technically acceptable quotations at the same price, and where the solicitation contained no tie-breaking procedures, the agency reasonably considered the quality of the quoted items to determine the award priority among equally low-priced vendors.

    https://www.gao.gov/products/B-417248?utm_campaign=usgao_email&utm_content=gcdecisions&utm_medium=email&utm_source=govdelivery#mt=e-report


  5. 2 hours ago, Contract Specialist Fitz said:

    Does anyone have experience in doing this? Is there any case law e.g. GAO Protests, etc that would expressly approve or forbid this?

    See Harris IT Services Corporation, B-411699; B-411796, Oct 2, 2015.

    https://www.gao.gov/products/B-411699,B-411796#mt=e-report

    Quote

    DIGEST

    Protests challenging the agency’s issuance of two solicitations, under a multiple-award, indefinite-delivery, indefinite-quantity (IDIQ) contract program for the issuance of a single delivery order under each solicitation are sustained where the record shows that the solicitations:  (1) contemplate the issuance of what amounts to a single, second-tier IDIQ instrument, under which the agency will place subsequent delivery orders, without providing the multiple-award IDIQ contract holders a subsequent, fair opportunity to compete for those delivery orders; (2) contemplate the issuance of delivery orders that potentially exceed the scope of the underlying IDIQ contracts; and (3) include restrictive specifications that have not been justified.

     


  6. 6 hours ago, joel hoffman said:

    For analysis of whether Q is within the scope of the contract:

    1. If Q is within scope of X plusY but not Z,  then Q is within scope of the contract. 

    2.  If Q is within the scope of Z, but not X plus Y, then Q is within scope of the contract. 

    3.  If some parts of Q are within the scope of X plus Y and the rest are within the scope of Z, then Q is within scope of the contract. 

    4. If none of the above are true, then it looks like Q or parts of Q are out of scope. The government would have to justify an exception to full and open competition to sole source the out of scope Q or out of scope portion of Q  to the current contractor (unless the out of scope portion is minimal or otherwise inconsequential).

    What did I avoid, exclude, ignore or protect in the above scope analysis? 

    Let’s say that XY covered electrical system repair services for a US Navy ship located at sea. Let’s say that Z services cover ferry services to transport sailors and goods to and from the ship. Now, let’s say that Q covers motor repairs on the ship.

    If a motor repair contractor protested the issuance of the mod for Q services, do you think the GAO would look at the solicitation leading to the award of the electrical repair contract to determine if the motor repairs are in the scope of the electrical repair solicitation? Or, would GAO decline to review the scope of the competition leading to the award of the contract for XY services because the X services mod was issued?


  7. 3 hours ago, joel hoffman said:

    If the change is within scope of the current contract requirements, it is authorized by the changes clause. 

     

    2 hours ago, joel hoffman said:

    The real question here is whether the added work is within or outside of the current contract  scope. 

    How does one determine if it is authorized by the changes clause or within or outside the current contract  scope? 


  8. On 4/5/2019 at 2:57 PM, animalspirits said:

    For the sake of argument, assume the following: Q services are within scope of XYZ contract, but they are out of scope of XY contract.

    One infers that Q services are within scope of the Z services. But, suppose they weren't. Suppose the facts were these.

    Let’s say that XY covered electrical system repair services for a US Navy ship located at sea. Let’s say that Z services cover ferry services to transport sailors and goods to and from the ship. Now, let’s say that Q covers motor repairs on the ship.

    If a motor repair contractor protested the issuance of the mod for Q services, do you think the GAO would look at the solicitation leading to the award of the electrical repair contract to determine if the motor repairs are in the scope of the electrical repair solicitation? Or, would GAO decline to review the scope of the competition leading to the award of the contract for XY services because the X services mod was issued?


  9. 41 minutes ago, Retreadfed said:

    The general rule quoted above would not be applicable in this case.  Here, the contract has already been modified through a proper CICA compliant procedure.  In essence, what we have now is a single contract that satisfies two separate requirements that could have been satisfied through two separate contracts.  As stated above, the new requirement for Q is within the scope of the modified contract.  If that is the case, the modification is permissible under any of the standard FAR Changes clause that permit changes that are within the general scope of the contract and there is no cardinal change issue.  Remember, the contract includes all modifications that have been made to it, including any options that have been exercised.  See the definition of "contract" in FAR 2.101.  

    One needs to look at the original solicitation to see if Q is within the scope of the original competition.


  10. Quote

    In assessing whether there is a material difference, GAO will look to:

    [T]he extent of any changes in the type of work, performance period, and costs between the modification and the original contract, as well as whether the original solicitation adequately advised offerors of the potential for the change or whether the change was the type that reasonably could have been anticipated, and whether the modification materially changed the field of competition for the requirement.”

    http://smallgovcon.com/gaobidprotests/in-scope-vs-out-of-scope-modifications-gao-explains-the-difference/


  11. Quote

    Does the Contract holder require approval from NITAAC for subcontractors to perform work and/or be part of the team prior to submitting a task order proposal in response to an RFP?

    Category: 
    Question: 
    Does the Contract holder require approval from NITAAC for subcontractors to perform work and/or be part of the team prior to submitting a task order proposal in response to an RFP?

    Proposing subcontractors to perform work at the task order level does not require NITAAC approval. Approval will reside with the OCO.  Contractors that are awarded a contract based on a FAR 9.601(1) Contractor Team Arrangement (CTA) are required to obtain NITAAC PCO approval prior to replacing, adding, or deleting team members. Reference Replacement of Team Members under a FAR 9.601(1) Contractor Team Arrangement (CTA) in your contract.

    https://nitaac.nih.gov/customer-support/faqs/does-contract-holder-require-approval-nitaac-subcontractors-perform-work-andor


  12. 7 hours ago, 2FARGone said:

    Any guidance would be greatly appreciated.  Thank you!

    Quote

    As one might expect, an agency’s choice of NAICS code is often more art than science, and reasonable minds may disagree what the best NAICS code may be for a given procurement.  Because different NAICS codes may correspond to different size standards, the agency’s code choice in a set-aside procurement may result in a particular firm being eligible or ineligible to compete for award.  Exclusion from a competition is a powerful incentive for firms to challenge an unfavorable NAICS code selection.

    Unlike normal pre-award solicitation challenges, a challenge to a NAICS code is not a bid protest that can be filed with the Government Accountability Office (GAO), Court of Federal Claims, or the procuring agency.  Instead, an aggrieved potential offeror must file a NAICS Appeal with the SBA Office of Hearings and Appeals (OHA), within 10 calendar days after issuance of the solicitation containing the objectionable NAICS code.  See 13 C.F.R. § 121.1103.  OHA does not require the agency’s selected NAICS code to be perfect.  Rather, an appellant has the burden of proving that the chosen code is based upon a clear error of fact or law and does not best describe the principal purpose of the product or service being acquired.  If OHA issues an adverse decision, a party with standing may then appeal OHA’s decision to the Court of Federal Claims.

    http://govcon.mofo.com/acquisition-regulations/naics-code-appeals-one-size-does-not-fit-all/

    Quote

    A newly released Government Accountability Office report provides a rare peek behind the curtain of how contracting officers assign North American Industry Classification System codes.

    Contracting officers are required by 13 C.F.R. § 121.402(b) to designate the NAICS code that “best describes” the work to be performed. It sounds simple enough, but the report reveals that it can be tricky.

    The contracting officers interviewed by GAO as part of its December 2017 Report to the Committee on Small Business, House of Representatives said as much, telling GAO that assigning a NAICS can be challenging, especially “when one or more codes could apply to a contract.”

    http://smallgovconhttp://smallgovcon.com/naics-code-appeals/gao-reports-on-how-contracting-officers-select-naics-codes/


  13. 3 hours ago, joel hoffman said:

    Then consider whether a “more timely proposal submission”amounts to using unstated evaluation criteria in the award decision.  

    Even if the LPTA solicitation included a statement that the earliest submitted proposal would receive the award in the event that more than one proposal/ quote contained the same evaluated price, I suspect that a protest against this criterion would be successful. In my view, to base a source selection upon the timeliness of proposal/ quote submission would be deemed to be unreasonable since the timing of proposal/ quote submission has nothing to do with the integrity of the selection decision or with legislation addressing the resolution of ties (i.e. socioeconomic factors or drawing by lots). 


  14. 1 minute ago, coolarmydude said:

    I'm saying that if there is a tie between technically acceptable offers with the same lowest price, then I would choose the one that submitted their offer first.

    So, if the time for submission of offers or quotes is 4:30PM, if 3 offers or quotes are submitted at 2:00 PM, 2:01 PM and 2:02 PM, and if there are 3 equal evaluated prices, then the 2:00 PM submission wins?


  15. 3 hours ago, Desparado said:

    There's no reason why past performance cannot be part of an LPTA competition.  Part of the TA could be that the contractor must have acceptable past performance based on XX. It would be a pass/fail criteria as with the technical factors.

    If you do this under LPTA and if you determine a small business has unacceptable past performance, you must go to the SBA for a CoC. See FitNet Purchasing Alliance; B-410263; Nov 26, 2014.

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