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Posts posted by napolik

  1. 5 hours ago, Corduroy Frog said:

    Question:  Is this situation so stark that the company is left with no alternative except to absorb the B&P cost, and effectively perform the contract for nothing?

    Either absorb the cost, or refuse to submit a quote/ proposal. Or, call the contracting officer, explain your concerns and hope for an amendment to the solicitation that reduces your burdens.

  2. 2 hours ago, Vern Edwards said:

    I don't think so. Those processes, often constructed on the basis of the FAR Part 15 Process Model, have been effected in the same way.

    Well, don't construct them like the 15.3 process. Try other approaches that are more efficient and , more importantly, more effective.


    Since FAR 15 does not apply, how does this approach strike readers?


    The agency will assess the résumés, experience, past performance, and the price of quotes in accordance with FAR Subpart 8.4. Non-price factors, when combined, are significantly more important than price. After this assessment, the contracting officer may award a contract to the contractor he or she determines to represent the best value, or may obtain additional information from and negotiate with that contractor to improve the terms of the deal reflected in its quote. If the contracting officer is unable to negotiate a favorable deal with the contractor, he or she reserves the right to negotiate and reach agreement with another firm submitting a quote that was not assessed initially to be the best. This process will continue until a contract has been reached or until all those firms submitting a quote have been considered. If agreement on a deal cannot be reached with any of the firms, negotiations may be reopened with all firms or the solicitation may be canceled.



  3. I would prefer to see the GAO retain bid protest jurisdiction. In fact, I would prefer that the COFC get out of the bid protest business. But, I know this will not happen.

    First, the GAO knows the procurement legislation and processes better than COFC judges. This superior knowledge allows the GAO to issue decisions more quickly than the COFC and to be more consistent with the practices flowing from procurement law and regulation. Second, the GAO will issue a single decision, and it will follow precedent. The COFC takes longer than GAO, and its 16 judges can issue different decisions on the same topics. Third, the GAO decisions are expressed more clearly and are, therefore, more readily comprehensible than the COFC decisions.

    These are my opinions based upon my years of experience in procurement. I do not have any empirical evidence to support them.

  4. In my experience, a clearance is a document setting out a plan of action and supporting information. The document can be prepared as an Acquisition Plan, as a Pre-negotiation plan, as a Post-negotiation summary and source selection or as an explanation/ justification of a contract administration action (e.g. option exercise). The approval or disapproval of the clearance is made by a contracting officer, an SSA, or another reviewer/review board within or above the contracting office.   

    The degree of detail contained in the clearance varies by contracting office.

    Some agencies address clearances in their FAR supplements. 

  5. Past performance can encompass "commercial" or private contract performance. See FAR 15.305(a)(2):


    Past performance evaluation.

    (i) Past performance information is one indicator of an offeror’s ability to perform the contract successfully. The currency and relevance of the information, source of the information, context of the data, and general trends in contractor’s performance shall be considered. This comparative assessment of past performance information is separate from the responsibility determination required under Subpart 9.1.

    (ii) The solicitation shall describe the approach for evaluating past performance, including evaluating offerors with no relevant performance history, and shall provide offerors an opportunity to identify past or current contracts (including Federal, State, and local government and private) for efforts similar to the Government requirement. The solicitation shall also authorize offerors to provide information on problems encountered on the identified contracts and the offeror corrective actions. The Government shall consider this information, as well as information obtained from any other sources, when evaluating the offeror past performance. The source selection authority shall determine the relevance of similar past performance information.

    (iii) The evaluation should take into account past performance information regarding predecessor companies, key personnel who have relevant experience, or subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition.

    (iv) In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance.

    (v) The evaluation should include the past performance of offerors in complying with subcontracting plan goals for small disadvantaged business (SDB) concerns (see Subpart 19.7).

    See also FAR 12.206:


    Past performance should be an important element of every evaluation and contract award for commercial items. Contracting officers should consider past performance data from a wide variety of sources both inside and outside the Federal Government in accordance with the policies and procedures contained in Subpart 9.113.106, or Subpart 15.3, as applicable.


  6. 1 hour ago, ContractingPeoplesHatred said:

    Can the now large business still compete on IDIQ requirements? FAR 16.505(b) states fair opportunity must be given, FAR 19.301-2 states that it does not change the terms and conditions of the contract, but does not FAR 19.502-2(b)(1) apply that I have two other small business vendors must I not set aside?

    The contracting officer has the discretion to require the contract holders to recertify their small business size status when competing an order under an IDIQ. See InuTeq, LLC, B-411781, Oct. 21, 2015:


    With regard to long-term multiple-award contracts, including GSA schedule contracts, a contracting officer has the discretion to request recertification of offerors’ small business size status in connection with the issuance of task orders. 13 C.F.R. § 121.404(a)(1)(i); Enterprise Information Services, Inc., B-403028, Sept. 10, 2010, 2010 CPD ¶ 213 at 3-4. In issuing its regulations regarding small business size determinations under multiple-award long-term contracts, the Small Business Administration (SBA) has specifically stated: Allowing procuring agencies to request size certifications in connection with particular orders is consistent with the purposes of the Small Business Act (procurements meant for small businesses should be awarded to small businesses) . . . . The final rule gives contracting officers the discretion to request size certifications for individual orders, but does not require them to do so. . . .

    71 Fed. Reg. 66434, 66438 (2006).

    Also, see Title 13, Chapter I, Part 121 of the Code of Federal Regulations.


    §121.404   When is the size status of a business concern determined?

    (a) SBA determines the size status of a concern, including its affiliates, as of the date the concern submits a written self-certification that it is small to the procuring activity as part of its initial offer (or other formal response to a solicitation), which includes price.

    (1) With respect to Multiple Award Contracts and orders issued against a Multiple Award Contract:

    (i) SBA determines size at the time of initial offer (or other formal response to a solicitation), which includes price, for a Multiple Award Contract based upon the size standard set forth in the solicitation for the Multiple Award Contract if a single NAICS codes is assigned as set forth in §121.402(c)(i)(A). If a business is small at the time of offer for the Multiple Award Contract, it is small for each order issued against the contract, unless a contracting officer requests a new size certification in connection with a specific order.

    (ii) SBA determines size at the time of initial offer (or other formal response to a solicitation), which includes price, for a Multiple Award Contract based upon the size standard set forth for each discrete category (e.g., CLIN, SIN, Sector, FA or equivalent) for which a business concern submits an offer and represents it is small for the Multiple Award Contract as set forth in §121.402(c)(i)(B). If the business concern submits an offer for the entire Multiple Award Contract, SBA will determine whether it meets the size standard for each discrete category (CLIN, SIN, Sector, FA or equivalent). If a business is small at the time of offer for a discrete category on the Multiple Award Contract, it is small for each order issued against that category with the same NAICS code and corresponding size standard, unless a contracting officer requests a new size certification in connection with a specific order.

    (iii) SBA will determine size at the time of initial offer (or other formal response to a solicitation), which includes price, for an order issued against a Multiple Award Contract if the contracting officer requests a new size certification for the order.


    (g) A concern that represents itself as a small business and qualifies as small at the time of its initial offer (or other formal response to a solicitation), which includes price, is considered to be a small business throughout the life of that contract. This means that if a business concern is small at the time of initial offer for a Multiple Award Contract (see§121.1042(c) for designation of NAICS codes on a Multiple Award Contract), then it will be considered small for each order issued against the contract with the same NAICS code and size standard, unless a contracting officer requests a new size certification in connection with a specific order. ...


  7. Quote

    Due to a recent increase in the receipt of nonconforming material, DLA  Aviation has implemented the following proactive measures to protect the integrity of our supply chain.  Effective immediately, if an unrated supplier (domestic or foreign) is determined to be the best value, DLA Aviation will conduct the following steps to assist the contracting officer in making his or her affirmative responsibility determination prior to award:

    The contracting officer shall send the Vendor Capability Questionnaire to the unrated supplier for completion and give a one business day suspense. 

    Along with the Questionnaire, if the unrated supplier is a dealer/distributor of a part-numbered item, the contracting officer must also request traceability documentation demonstrating that the contractor will supply the product of the approved manufacturing source.

    If the supplier refuses, or does not provide the questionnaire and traceability documents within the suspense timeframe, the supplier may be removed from award consideration and the official contract file will be documented accordingly.

    Go to google and enter DLA Director's External Briefing Template - Defense Logistics Agency. This will give you a PPT.  Slides 10 to 13 specifically address the Questionnaire.

  8. 44 minutes ago, ContractingPeoplesHatred said:

    "this is just how we have always done it"

    A phrase used by far too many contracting professionals when explaining decisions from acquisition planning through source selection and contract admin.

    One can only hope that they will engage their brains to read the regulations and discern business practices as well as they engage their fingers to enter their automated procurement systems.

  9. 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. 

  10. 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.


    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.

  11. 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? 


    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


    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

  12. 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.

  13. 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? 

  14. 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.