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napolik

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Everything posted by napolik

  1. 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).
  2. 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?
  3. My aging eyes cannot seem to locate it. Could you post it again?
  4. 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.
  5. Take a look here: http://www.wifcon.com/discussion/index.php?/topic/2121-out-of-scope-unilateral-modification/
  6. I haven't seen them, so I cannot confirm or deny the non-evaluation of price in a tradeoff procurement. All I know is the GAO decision (i.e. Kathpal Technologies, Inc.; Computer & Hi-Tech Management, Inc.; B-283137.3; B-283137.4; B-283137.5; B-283137.6; Dec 30, 1999) and the 2017 Public Contracting Institute article.
  7. Yes, in a generic sense. The process of selecting a source encompasses IFBs, RFPs, and RFQs and leads to the awards of contracts, purchase orders, BPAs, and delivery or task orders.
  8. Based upon GAO decisions, if your source selection process is trade off, it appears you cannot down-select without considering price in each step.
  9. Years ago, I did a number of 2 step procurements. The FAR 14 2 step process is an equivalent of the LPTA process. It does not involve a trade off.
  10. Does this observation on the decision affect your conclusion? http://publiccontractinginstitute.com/gao-approves-new-best-value-method-highest-technically-rated-with-fair-and-reasonable-price-court-of-federal-claims-agrees/
  11. You may be correct, but I must see the GAO decision to be persuaded. Please provide the cite.
  12. Twenty years ago, the GAO issued a decision against Commerce for its failure to consider price while making an “initial screening” via oral presentations without considering price. After Commerce conducted the oral presentations, it reduced the competitive field to the offerors that were deemed highly competitive (i.e., attended oral presentations). The GAO stated that Kathpal Technologies, Inc.; Computer & Hi-Tech Management, Inc.; B-283137.3; B-283137.4; B-283137.5; B-283137.6; Dec 30, 1999. While the BPAs are awarded under the FAR 8.4, not FAR 15.3, procedures, both 8.405-3 and 15.304 require consideration of price in every best value determination or source selection. I believe GAO would apply the principle set out in Kathpal decision to the BPA source selection. Observer. A draft RFQ has been issued by GSA.
  13. An agency is looking to award multiple BPAs under a federal supply schedule using a multi-step selection process. Here are the evaluation factors: Here is the evaluation process: I note that Factor 5 - Price - is considered only in Step 3. I also note the FAR coverage of BPAs: I believe the the agency must evaluate Price in Steps 1 and 2 as well as in 3. Thoughts?
  14. You must state clearly what is the basis for your source selection: LPTA, tradeoff or HTRFRP. The contracting officer should be making the source selection, not the customer.
  15. Then, you should be OK. I suspect that Don is worried about a conflict with this GAO decision: Harris IT Services Corporation, B-411699,B-411796, Oct 2, 2015. He is well aware of it. See it here: https://www.gao.gov/products/B-411699,B-411796
  16. In reviewing FAR 19.805-2 and the clause 52.219-18, the answer appears to be February 20, 2019, the date responses to the solicitation are due. Normally, the responses include Section K Reps and Certs. Since the procurement is being conducted as an 8(a) competition pursuant to FAR 19.805, the solicitation must include clause 52.219-18:
  17. I didn't cite this because of these words: One can establish contracts of different types under other FAR Parts.
  18. 16.104 -- Factors in Selecting Contract Types. There are many factors that the contracting officer should consider in selecting and negotiating the contract type. They include the following: (e) Combining contract types. If the entire contract cannot be firm-fixed-price, the contracting officer shall consider whether or not a portion of the contract can be established on a firm-fixed-price basis.
  19. A: To answer both Qs 1 and 2, since you are talking about modifying a commercial contract then you will be referencing 52.212-4. This clause calls for all modifications to be bilateral (as stated in the clause part (c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties). You make mention in your question that you tailored the language in your contract to allow for administrative modifications to be unilateral. If this is the case, then proceed.
  20. Per Black's Law Dictionary: provision. 1. A clause in a statute, contract, or other legal instrument. 2. A stipulation made beforehand. See PROVISO. proviso: 1. A limitation, condition or stipulation upon whose compliance a legal or formal document's validity or application may depend.
  21. From the Fourth Edition of the Government Contracts Reference Book:
  22. https://www.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=3&cgiQuestionID=109722
  23. You may be able to modify the clause to permit the Government to issue unilateral changes if such a practice is consistent with customary commercial practice. If it is not consistent with customary commercial practice (I believe this to be the case), you may be able to modify the clause if you obtain a waiver per your agency's procedures. I believe it is unlikely you have the basis to do so, but you make that decision after you look a the the FAR and a GAO decision. See FAR 12.302( c): (c) Tailoring inconsistent with customary commercial practice. The contracting officer shall not tailor any clause or otherwise include any additional terms or conditions in a solicitation or contract for commercial items in a manner that is inconsistent with customary commercial practice for the item being acquired unless a waiver is approved in accordance with agency procedures. The request for waiver must describe the customary commercial practice found in the marketplace, support the need to include a term or condition that is inconsistent with that practice and include a determination that use of the customary commercial practice is inconsistent with the needs of the Government. A waiver may be requested for an individual or class of contracts for that specific item. See a discussion of such waivers in the GAO decision U.S. Foodservice, Inc.; Labatt Food Services, LP File: B-404786; B-404786.2; B-404786.3; B-404786.4, May 13, 2011: https://www.gao.gov/assets/400/392210.pdf. DIGEST Protest of the terms of solicitation for food distribution services on grounds that the terms are inconsistent with commercial practice and are otherwise unreasonable is denied where the agency properly issued a waiver in accordance with Federal Acquisition Regulation § 12.302(c) for commercial item solicitation requirements that may be inconsistent with customary commercial practice, and the record shows that the terms are reasonably justified. -------- On October 22, 2010, DLA Troop Support executed a class waiver to include provisions in the solicitation that are inconsistent with customary commercial practice. Agency Report (AR), Tab 11, Class Waiver. This waiver was signed by the contracting officer and approved by the Director of Subsistence Supplier Operations. Among other things, the waiver justified modifications to commercial practices involving economic price adjustments; rebates, discounts, and other price-related items; unilateral changes to the contract; and most favored customer warranties. Id. -------- The waiver here identified several terms that are inconsistent with commercial practice, including (among others): (1) the inclusion of a tailored economic price adjustment provision, (2) modifications to rebate, discounts, and other price-related provisions,3 and (3) the inclusion of a unilateral changes clause. AR, Tab 11, Class Waiver and Addendum. The agency explained that these deviations were necessary to insure transparency in food pricing and to prevent fraud, especially given that there had been several fraud indictments involving subsistence contracts outside the continental United States. Contracting Officer’s Supp. Statement at 1-2. In addition, the agency relied on a Department of Defense Inspector General report that found that DLA Troop Support did not provide sufficient oversight of costs of subsistence vendors in Afghanistan and recommended better contract administration of prime vendor costs. Id. -------- The waiver explained that customary commercial practice usually involves bilateral changes. However, the waiver justified the inclusion of a unilateral waiver provision because the government needs the right to make unilateral changes in delivery and shipment requirements in order to be able to supply food on a daily basis to its military customers, whose needs may change over the course of the contract. Id. at 1.
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