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napolik

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Posts posted by napolik


  1. On 8/31/2019 at 5:41 PM, Kaseybaja said:

    Under what circumstances may contract work be performed even though the fully executed contract has not been received?

    Quote

    31.205-32 Precontract costs.

    Precontract costs means costs incurred before the effective date of the contract directly pursuant to the negotiation and in anticipation of the contract award when such incurrence is necessary to comply with the proposed contract delivery schedule. These costs are allowable to the extent that they would have been allowable if incurred after the date of the contract (see 31.109 ).

     


  2. 3 hours ago, PepeTheFrog said:

    In the future, if your possibly incorrect opinion is demolished by logic, reality, law, regulation, court case, or written policy document, you simply pull out the trump card: valid and honorable. Do not bother to change your opinion or acknowledge that your opinion is incorrect or improper. Under no circumstances should you admit you were wrong or have learned something. That would be bad form.

    Phew! What an amazing Amphib!

    Let me hop onto another quote:

    Quote

    Frogs seem to have some pretty powerful superhero properties. Not only are they full of amazing traits that can be explored for medicinal purposes but they also help keep pest populations under control.  Without frogs, our lives would be a lot different, and not in a good way. So show some love for our frogs. They have our best interests at heart. We should do the same for them.

    http://amphibianrescue.org/2012/12/06/superhero-qualities-in-frogs/

     


  3. Quote
    19 hours ago, C Culham said:

    Yes but the agency must obligate to specific account and record. 

    Flash back to VE nearly 20 years, not 20 hours, ago:

    Quote

    Q. "How can I obligate the minimum at the same time as contract award? Fair opportunity to compete and all..."

    A. There is a lot of confusion over the concept of "obligate" in government contracting. An obligation is made when a CO enters into a legally binding agreement, i.e., a contract. What many 1102s call "obligating" is actually the act of recording the obligation by citing the applicable accounting data on the contract document and sending a copy to the agency's finance office. What the GAO requires is that agencies record an obligation at the time that it is made. At the time of award of an IDIQ contract the CO obligates the government in the amount of the minimum quantity. In order to obligate the minimum amount at the time of award, but before issuance of the first delivery or task order, you write down the appropriate fund citation and amount on each contract award document (e.g., SF33, blocks 20 and 21) and distribute a copy the the cognizant finance office. Later, when you issue the first delivery or task order, you refer to the amount of the minimum recorded on the original award document and you record the obligation of any additional amounts that you need to cover the total amount of the order.

    Some agencies require COs to issue an order to cover the minimum simultaneous with contract award. That is not necessary.

    Q. "Vern's comment: 'U.S. General Accounting Office requires agencies to obligate funds for the minimum quantity at the time of contract award.' Why would the FAR not also require this???"

    A. I don't know why the FAR does not expressly require agencies to record the obligation of the minimum quantity at the time of contract award.


     

     


  4. 2 hours ago, BZMANINTEXAS said:

    Why should a contractor on an FFP response, be required to give that breakdown of data?  It does not seem to fit an FFP -- In a CPFF environment, it would apply or even a T&M, but not here - - or am i missing something. 

    What are the evaluation criteria (Section M) and the proposal requirements (Section L)?


  5. 12 hours ago, joel hoffman said:

    Well, what happens if the firm doesn't meet the minimum requirement in a tradeoff, i.e., "has no recent or relevant experience" What's the difference between that and "no recent or relevant experience" in an LPTA?  

    Also, take a look at this blog:

    http://www.berenzweiglaw.com/sba-helps-on-responsibility-type-evaluations/

    I suggest reading this decision referenced in the blog: Competitive Range Sols., LLC, B-413104.10, Apr. 18, 2017.

    https://www.gao.gov/products/B-413104.10#mt=e-report

    Quote

    The solicitation advised offerors that the government would evaluate proposals in two phases.  Id. at M-1.  During phase 1, the government would evaluate the proposals based on four “Go/No-Go” requirements.[2]  Id. at M-3, M-4.  As relevant here, factor 2, management approach, subfactor 1, domain-specific capability in a health-related mission, was one of the go/no-go requirements to be evaluated during phase 1.[3]  Id. at M-4. 

    __________________________________________________________________

    As relevant here, the solicitation stated that under this subfactor the government would evaluate whether the offeror “demonstrates an inherent domain-specific capability in a health-related mission . . . . This capability can be demonstrated through experience examples or internal resources with substantial relevant experience.”  Id. at M-8.  The solicitation also stated that health-related missions were “broadly defined as those that contribute directly to human health and may include corporate expertise in fields such as healthcare, health-related/biomedical research and health science, clinical analytics and intelligence, health policy, health-related grant making, and regulation of health industries.”  Id.  The solicitation warned that proposals that fail to demonstrate domain-specific capability in a health-related mission would be deemed unacceptable and ineligible for further consideration for award.  Id.

    The agency received 552 proposals, including a proposal from CRS.  Agency Report (AR), Contracting Officer Statement of Facts (COS) at 2; AR, Memorandum of Law (MOL) at 4.  The agency evaluated the protester’s proposal under the service-disabled veteran-owned small business (SDVOSB) grouping.[4]  AR, MOL at 4. 

    As relevant here, the agency found CRS’s proposal unacceptable under the management approach factor, domain-specific capability in a health-related mission subfactor.  See AR, Tab 7, Go/No-Go Assessment, Factor 2, Subfactor 1- Domain Specific Capability in a Health-Related Mission Socioeconomic Group:  SDVOSB, at 4, 10.  Specifically, the agency found that the examples CRS provided in its proposal all involved “provision of IT services and solutions, which [was] not sufficient to demonstrate inherent capabilities in health-related missions.”  Id. at 10. The agency also noted that CRS’s proposal also did not demonstrate that it possessed the requisite capability through “internal resources with substantial relevant experience.”  Id.  As a result, the agency found CRS’s proposal ineligible for further consideration for award.  Id.

    _______________________________________________________________________________

    Here, the solicitation provided that in phase 1 of the evaluation, proposals were to be evaluated on a go/no-go basis, i.e., non-comparative basis.  See RFP at M-3, M-4.  The solicitation further provided that if rated unacceptable under any factor in phase 1, the entire proposal would be rendered unacceptable and ineligible for award.  See id. at M-4.  Further, the record provides no support for the agency’s argument that CRS’s proposal was eliminated because it was not responsive to the solicitation.  Contrary to the agency’s arguments, the record shows that the agency found that the examples provided by CRS in its proposal were “not sufficient to demonstrate inherent capabilities in health-related missions” and that CRS’s proposal did not demonstrate that it possessed the requisite capability through “internal resources with substantial relevant experience.”  See AR, Tab 7, Go/No-Go Assessment at 10.  On this record, we find that the agency’s conclusion relates to CRS’s capability to perform the contract, not simply the adequacy or completeness of its proposal submission.  See 22nd Century Team, LLC--Costs, B-412742.4, Dec. 15, 2016, 2016 CPD ¶ 369 at 6.  Accordingly, the Small Business Act requires that the agency should have referred CRS to the SBA for a COC review in accordance with 13 C.F.R. § 125.5(a)(2)(ii).  Cascadian Am. Enters., B-412208.3, B-412208.4, Feb. 5, 2016, 2016 CPD ¶ 29 at 7-8.

    In sum, the agency evaluated the small business offerors on an acceptable/unacceptable basis, as opposed to a comparative basis, with respect to relevant experience, a responsibility-type evaluation factor, and found CRS’s proposal unacceptable under that factor.  See 13 C.F.R. § 125.5(a)(2)(ii).  As such, rejection of CRS’s proposal based on its rating of unacceptable under the management approach, domain-specific capability in a health-related mission subfactor, without first referring the matter to the SBA for a COC determination, was improper.  Accordingly, we sustain the protest. 

     


  6. 20 minutes ago, ji20874 said:

    I still say "No" to the question of requiring re-documentation of reps and certs for each and every order [under a multiple-award IDIQ contract], even though I am okay with recertification of small business status.

    In your organization, are/were you required to get the SBA specialist's concurrence before taking a contract action?


  7. 11 hours ago, joel hoffman said:

    Well, what happens if the firm doesn't meet the minimum requirement in a tradeoff, i.e., "has no recent or relevant experience" What's the difference between that and "no recent or relevant experience" in an LPTA?  

    So far, it appears that an unacceptable proposal of a small biz determined to be unacceptable based upon an LPTA evaluation of a responsibility related criterion (e.g. experience) must be referred to the SBA for a COC. However, it does not need to be referred if the small biz failed to provide documentation required by the solicitation:

    Quote

    As for the protester’s contention that the agency was required to refer Sea Box’s unacceptable proposal to the SBA, we disagree. Where an agency finds the proposal of a small business to be unacceptable under a responsibility-related factor, that is, a factor pertaining to its ability to perform, such as whether it has adequate corporate experience or production equipment and facilities, the determination is essentially one of nonresponsibility, meaning that referral to the SBA, which has the ultimate authority to determine the responsibility of small business concerns, is required. Tyonek Worldwide Servs., Inc.; DigiFlight, Inc., B-409326 et al., Mar. 11, 2014, 2014 CPD ¶ 97 at 12. Where an agency rejects a proposal as technically unacceptable on the basis of factors not related to responsibility, however, referral to the SBA is not required. Id. Likewise, where an agency rejects a proposal as technically unacceptable on the basis of a factor that is arguably responsibility related, but the finding of unacceptability is based on the offeror’s failure to submit specific documentation required by the solicitation, referral to the SBA is not required. AttainX, Inc.; FreeAlliance.com, LLC., B-413104.5, B-413104.6, Nov. 10, 2016, 2016 CPD ¶ 330 at 5.

    Sea Box, Inc., B-414742, Sept 6, 2017

    http://www.wifcon.com/cgen/414742.pdf

     


  8. 1 hour ago, ji20874 said:

    So I still say "No" to the question of requiring re-documentation of reps and certs for each and every order, even though I am okay with recertification of small business status.

    You are correct. My focus has been narrowly on what I consider to be the most important cert - small business status.


  9. 3 hours ago, C Culham said:

    Your application of the GAO decision is mis-placed in my view as it deals specifically with a FSS RFQ and a commercial item contract (52.212-3).

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

    Quote

    §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. ...

    Quote

    § 125.1 What definitions are important to SBA's Government Contracting Programs?

     Multiple Award Contract means a contract that is:

    (1) A Multiple Award Schedule contract issued by GSA (e.g., GSA Schedule Contract) or agencies granted Multiple Award Schedule contract authority by GSA (e.g.,Department of Veterans Affairs) as described in FAR part 38 and subpart 8.4;

    (2) A multiple award task-order or delivery-order contract issued in accordance with FAR subpart 16.5, including Governmentwide acquisition contracts; or

    (3) Any other indefinite-delivery, indefinite-quantity contract entered into with two or more sources pursuant to the same solicitation.

     


  10. 2 hours ago, C Culham said:

    If the GAO has expanded the 2002 decision to other than commercial item contracts (52.204-7, 8, 13 and 19) and other than FSS contracts I would appreciate seeing it. 

    The Oryza Group, LLC., B-416719,B-416719.2: Nov 26, 2018

    https://www.gao.gov/products/B-416719,B-416719.2#mt=e-report

    Quote

    BACKGROUND

    On June 22, 2018, the Army issued the TOR to holders of Veterans Technology Services 2 (VETS 2) indefinite-delivery, indefinite-quantity (IDIQ) governmentwide acquisition contracts (GWACs) pursuant to the procedures of Federal Acquisition Regulation (FAR) subpart 16.5.  

    _________________________________________________________________________________________________________________________________________________________

    When a firm is awarded an IDIQ contract (including a multiple award contract like the VETS 2 GWAC) as an SDVOSB, the firm is generally considered an SDVOSB throughout the life of that contract, and is not required to recertify its size status for each order issued under the contract.[4]  13 C.F.R. § 125.18(e)(1); see Enterprise Info. Servs., Inc., B-403028, Sept. 10, 2010, 2010 CPD ¶ 213 at 3.  Agencies have the discretion, however, to request that offerors recertify their business status in response to a solicitation for an order.  13 C.F.R. § 125.18(e)(5);  see Technica Corp., B-413339, Sept. 19, 2016, 2016 CPD ¶ 264 at 3.  If a solicitation expressly requires a vendor to recertify its size status in response to a solicitation for an order, the size status of the vendor will be determined as of the date of the recertification.  13 C.F.R. § 125.18(e)(5).

     


  11. 1 hour ago, C Culham said:

    Conclusion – Unless an exception applies the representations and certifications for an ID contract are carried in the contractors SAM registration and included in the contract via various clauses such as 52.204-7, 52,204-8, 52.204-13 and  52.219-28* all of which provide for the SAM registration and its updates as required or at least annually.  FAR 52.204-19 is simply a reference to these certifications the contractor has made via SAM.

    While the CO is not required to get a recertification, if the CO wants a recertification at the time of issuance of an RFQ under the IDC, the CO can do so.

    Quote

    This protest relates solely to the small business certification requirement. Specifically, CMS asserts that it is improper for the agency to require it to certify its small business size status as of the time it submits its quotation. According to the protester, it certified its small size status in 1997, at the time it submitted its initial offer to the General Services Administration (GSA) for award of its FSS contract; it maintains that its small business status for purposes of receiving task order awards was established by this certification, and that it should remain in effect for the duration of its FSS contract. /2/ CMS maintains that the Small Business Administration's (SBA) regulations at 13 C.F.R. Sec. 121.404 (2002) support its position by establishing the date of initial offer submission as the time when SBA will determine a firm's size status. CMS concludes that, if it is required to recertify its status as of the time it submits its quote, it will in essence be improperly excluded from participation in the acquisition because it cannot currently represent itself as small.

    We find nothing improper in the challenged requirement. The purpose of the Small Business Act as it relates to government acquisitions is to ensure that a fair proportion of all government contracts be placed with small business concerns. 15 U.S.C. Sec. 644 (2000). Implicit in this is the notion that the work under the contract will actually be performed by a small business. Toward this end, the Federal Acquisition Regulation (FAR) is designed, for example, to ensure that small businesses perform a majority of the work under a set-aside contract. FAR Sec. 52.219-14. The self-certification requirement in the RFQ is consistent with these purposes. /3/

    CMS Information Services, Inc., B-290541, Aug 7, 2002

    https://www.gao.gov/products/402788#mt=e-report

    Also, see this recent discussion of size recertification:

    https://www.linkedin.com/pulse/brief-history-size-status-recertification-kenneth-dodds


  12. 9 hours ago, joel hoffman said:

    Jamaal, the GAO has said that the government could set a requirement for some minimum amount of experience as a technical requirement.  It has also said that the government could use it as a comparative factor. 

    Quote

    Under the SBA’s COC program, authorized pursuant to the Small Business Act, 15 U.S.C. § 637(b)(7), and implementing regulations, 13 C.F.R. § 125.5, see also FAR subpart 19.6, agencies must refer a determination that a small business is not responsible to SBA if the determination would preclude the small business from receiving an award. 15 U.S.C. § 637(b)(7); 13 C.F.R. § 125.5; FAR subpart 19.6. In this regard, the Small Business Act provides that it is the SBA’s duty to certify to government procurement officers with respect to all elements of responsibility (including capability, competency, capacity, credit, integrity, perseverance, and tenacity) of any one or a group of small business concerns to receive and perform a specific government contract. 15 U.S.C. § 637(b)(7)(A). Further, SBA’s regulations specifically require a contracting officer to refer a small business concern to SBA for consideration for a COC when the contracting officer:

    Refuses to consider a small business concern for award of a contract or order after evaluating the concern’s offer on a non-comparative basis (e.g., a pass/fail, go/no go, or acceptable/unacceptable) under one or more responsibility type evaluation factors (such as experience of the company or key personnel or past performance) . . . .

    Cascadian American Enterprises, B-412208.3; B-412208.4, Feb 5, 2016

    https://www.gao.gov/assets/680/675014.pdf

    Quote

    COs should be aware that FAR 15.101-2 does not state the full rule. As can be seen from the above quotation from Nomura [Nomura Enterprises, Inc., Comp. Gen. Dec. B-277768, 97-2 CPD ¶ 148], the requirement to permit an offeror to obtain a Certificate of Competency from the SBA when there is a go/no-go evaluation applies not only to past performance but to all “traditional responsibility factors.” This means that almost all evaluations of the capability of the offerors are subject to the same rule. This would include experience, the capability of key personnel, the availability of necessary equipment, and financial capability among other factors. If COs want to evaluate such factors without subjecting the procurement to the Certificate of Competency process, the factors should be made comparative evaluation factors.

    See Alternative Procurement Strategies: An Obscure Aspect Of The FARThe Nash & Cibinic Report, May 2001.


  13. 2 minutes ago, ji20874 said:

    Do you read the acquisition being discussed in this thread as one “where the agency required offerors to prepare detailed written proposals addressing unique government requirements”?  I don’t.

    I was responding to the Awesome Amphibian's post:
     4 hours ago, PepeTheFrog said:

    Your theory that the government has waded into the pool of more complex contracting via inclusion of certain clauses has merit. From PepeTheFrog's memory, there have been GAO cases where the government uses too many FAR Part 15 terms, concepts, processes, clauses, provisions, etc. while maintaining that the procurement is under FAR Part 13. Sometimes, the GAO recommends that the procurement be treated under the higher standards of FAR Part 15, despite the FAR Part 13 label and intent (favoring substance over form). 


  14. 4 hours ago, PepeTheFrog said:

    Your theory that the government has waded into the pool of more complex contracting via inclusion of certain clauses has merit. From PepeTheFrog's memory, there have been GAO cases where the government uses too many FAR Part 15 terms, concepts, processes, clauses, provisions, etc. while maintaining that the procurement is under FAR Part 13. Sometimes, the GAO recommends that the procurement be treated under the higher standards of FAR Part 15, despite the FAR Part 13 label and intent (favoring substance over form). 

    Finlen Complex, Inc., B-288280, October 10, 2001

    DIGEST

    1. Notwithstanding statement in solicitation that simplified acquisition procedures were being used and authority at Federal Acquisition Regulation (FAR) Sec. 12.602(a) not to disclose the relative weight of evaluation factors when using simplified procedures, an agency's failure to disclose the relative weight of evaluation factors was unreasonable because basic fairness dictated disclosure of the relative weights where the agency required offerors to prepare detailed written proposals addressing unique government requirements. 2. Protester's contention that an agency's decision to assign a weight of 5 percent to a solicitation's past performance evaluation factor violates FAR Sec. 12.206 (providing that past performance should be an important element of every evaluation) is denied as the FAR provision is discretionary, not mandatory. 3. Even in a commercial acquisition using simplified procedures, where an agency requests detailed written proposals, a selection decision is improper where it lacks a rationale which sets forth a basis for the tradeoffs made, including an explanation of any perceived benefits associated with additional costs.

    https://www.gao.gov/products/407353


  15. 38 minutes ago, Sunstrider said:

    What were you thinking if it's multiple award set-aside to small businesses?

    There could be circumstances when a recertification of socioeconomic status would be in order: after 5 years of the contract term; after a merger, sale, acquisition, or contract novation; or if you believe the contract holder may have become large and if you want to dispose of that contractor for whatever reason..

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