napolik

1 hour ago, coolarmydude said:

I'm not saying that it's not appropriate; I'm saying it's not the sole tiebreaker method either.

Which are the other tiebreaker methods?

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.

1 hour ago, formerfed said:

An excellent, but time consuming approach, is go through an offers proposal and select the meaningful part.  When necessary change or add language so promises and the like are clearly set out.  Go through it thoroughly with the contractor and sign the agreement bilaterally. 

Bravo!

This is what you must do.

46 minutes ago, pricelesspearl said:

Can anyone point me to some case law to support that a unilateral POP extension, made as an administrative change and without any extra money is an out of scope, cardinal change?

Take a look here: http://www.wifcon.com/discussion/index.php?/topic/2121-out-of-scope-unilateral-modification/

18 minutes ago, ji20874 said:

napolik,

Multi-step acquisitions are becoming more common, with consideration of price and price/technical tradeoff in the final step.  I am personally aware of more than a dozen recent multi-step acquisitions where price was submitted in the second or final step, and none of them were protested for this reason (even though the competitive pools contained very sophisticated/savvy/litigious vendors) (this includes Part 15 source selections as well as ordering under Parts 8 and 16).

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.

23 minutes ago, joel hoffman said:

Is this a "source selection" process?  

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.

21 minutes ago, ji20874 said:

If price is the least important factor, and if good market research has been done, it can make sound business sense to leave the price evaluation to the last step, among only those offerors who have made it through the down-select process to the last step.  A practice (such as a down-select) is permissible under the guiding principles in FAR 1.102 when it uses sound business judgment and is otherwise not prohibited anywhere.

If a contracting officer is uncomfortable with a down-select process, he or she doesn't have to use it.  But if a contracting officer thinks it makes sense, and all the other players in the process are okay with it, then I'm also okay with it.

Based upon GAO decisions, if your source selection process is trade off, it appears you cannot down-select without considering price in each step.

35 minutes ago, ji20874 said:

Any assertion that price must be considered in every step in a multi-step evaluation process is also proven false by the FAR-approved process of two-step sealed bidding, where price is not considered in the first step.  See FAR subpart 14.5.

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.

36 minutes ago, ji20874 said:

The GAO decision in Sevatec, Inc. et al., B-413559.3 et al, Jan. 11, 2017, and the Court of Federal Claims decision in Octo Consulting Group, Inc. v. United States, 117 Fed Cl. 334 (2014), both indicate that your stretch is error.

Does this observation on the decision affect your conclusion?

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Next, the GAO addressed the need to consider price. GAO noted that in a tradeoff process, the agency cannot so minimize the impact of price as to make it a “nominal evaluation factor.” However, this solicitation involved no comparison of an offeror’s price relative to the benefits of its proposal. GAO concluded that here, the “relatively low importance of price in an evaluation scheme that does not contemplate tradeoffs” was unobjectionable. Further, because the selection process considered the price of every awardee and rejected those firms that lacked fair and reasonable pricing, GSA has satisfied the requirement to consider price to the government.

GAO’s ruling in Servatec was consistent with the earlier Court of Federal Claims ruling in Octo. There, the protester challenged the award of 43 contracts in the One Acquisition Solution for Integration Service-Small Business (“OASIS”). The solicitation appeared to be very similar to Servatec, and stated that “The best value basis for awards will be determined by the Highest Technically Rated Offerors with a Fair and Reasonable Price.” [] “Once the top 40 and/or top 20 highest scored offerors have been evaluated and validated, the [GSA] will then check to verify that these offerors have proposed fair and reasonable pricing [or eliminate them].”

The protester alleged that GSA failed to consider price, but the Court disagreed and denied the protest. It noted that even if its price had not been considered, Octo had already been eliminated from the competition, and there was no requirement to consider its price. The government had properly not conducted a price evaluation of those offers that failed to meet the technical threshold set in the solicitation.

The court further noted that if the solicitation had called for a traditional tradeoff analysis, it “could have been arbitrary and capricious not to consider price” but under the circumstances the evaluation was reasonable.

TAKEAWAYS: Agencies are now permitted to use a non-tradeoff evaluation scheme based solely on technical merit and fair and reasonable pricing. Offerors may be eliminated from consideration regardless of price, if they are technically not in the highest “bracket” set forth in a solicitation.

http://publiccontractinginstitute.com/gao-approves-new-best-value-method-highest-technically-rated-with-fair-and-reasonable-price-court-of-federal-claims-agrees/

19 minutes ago, ji20874 said:

 I can’t cite the case right now, but this suffices for this discussion.

You may be correct, but I must see the GAO decision to be persuaded. Please provide the cite.

1 hour ago, ji20874 said:

QUESTION 1:  Why do you think price must be evaluated in Step 1 and Step 2 (and again in Step 3)?

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 

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…, we disagree with the agency that it could ignore price in its initial screening evaluation. Cost or price to the government must be included in every RFP as an evaluation factor, and agencies must consider cost or price to the government in evaluating competitive proposals. /12/ 41 U.S.C. Sec. 253a(c)(1)(B) (1994); FAR Sec. 15-304(c)(1); S.J. Thomas Co., Inc., B-283192, Oct. 20, 1999, 99-2 CPD Para. at 3.

This requirement means that an agency cannot eliminate a technically acceptable proposal from consideration for award without taking into account the relative cost of that proposal to the government. SCIENTECH, Inc., B-277805.2, Jan. 20, 1998, 98-1 CPD Para. 33 at 7.

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.

1 hour ago, ji20874 said:

QUESTION 2:  What is your role in the procurement?  [contracting officer, reviewer, observer, prospective offeror...]

Observer.

1 hour ago, ji20874 said:

QUESTION 3:  Is the solicitation already on the street?

A draft RFQ has been issued by GSA.

An agency is looking to award multiple BPAs under a federal supply schedule using a multi-step selection process. Here are the evaluation factors: 

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Factor 1 - Past Experience

Factor 2 – Technical Approach

Factor 3 – Management Approach

Factor 4 – Coding Challenge exercise

Factor 5 – Price

Here is the evaluation process:

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Multi-Step Evaluation

The Government intends to use a three step approach to evaluate offers under FAR 8.405-3, as follows:

(1) First Step Consideration. The Government will consider all offerors using Factor 1. Those offerors rated as “high confidence” for Factor 1 will be invited to advance to the second step consideration. If necessary to provide for adequate competition in the second step, the Government may select one or more offers rated as “some confidence” for Factor 1 to proceed to the second step consideration.  The Government will determine the appropriate number of Offerors for Step 2 that is most beneficial to the Government.  No additional considerations will be given to the small business size standard of any offeror at this step.

(2) Second Step Consideration. The Government will continue its consideration by evaluating Factors 2 and 3. The Government intends to select offerors based on a trade-off of Factors 1, 2, and 3 to proceed to the third step consideration. For this step, all three factors are of relatively equal importance.  No additional considerations will be given to the small business size standard of any offeror at this step.

(3) Third Step Consideration. The Government will continue its consideration by inviting coding challenge exercises (Factor 4) and evaluating Factor 5, Price. The Government intends to select the best value offers for BPA awards, based a trade-off of Factors 1, 2, 3, 4, and 5. For this step, all five factors are of relatively equal importance, and the non-price factors (when combined) are more important than the price factor.  BPA awards made in the third step will be on a non-set-aside basis (ie unrestricted) and open to small and/or large businesses.

Set-Aside Portion BPA Awards

After all Non-set-aside awards have been made in Step 3, the Contracting Officer will negotiate with eligible small business concern offerors who were selected to continue to Step 3, but did not receive a BPA award on a non-set-aside basis.  These offerors must represent as a small business under the NAICS code of the COMET BPA.

  The Government will make additional small business BPA awards using the same best value tradeoff process among the remaining Step 3 small business concerns offerors.  The amount of non-set-aside awards will be at the Government’s discretion.

I note that Factor 5 - Price - is considered only in Step 3.

I also note the FAR coverage of BPAs:

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8.405-3 – Blanket Purchase Agreements (BPAs).

(a) Establishment.

(1) Ordering activities may establish BPAs under any schedule contract to fill repetitive needs for supplies or services. Ordering activities shall establish the BPA with the schedule contractor(s) that can provide the supply or service that represents the best value.

(2) In addition to price (see 8.404(d) and 8.405-4), when determining the best value, the ordering activity may consider, among other factors, the following:

I believe the the agency must evaluate Price in Steps 1 and 2 as well as in 3.

Thoughts?

7 hours ago, nkd9 said:

I am looking to possibly "trade off" price for the non-price factor.

You must state clearly what is the basis for your source selection: LPTA, tradeoff or HTRFRP. 

7 hours ago, nkd9 said:

I would have the requirement owner justify their decision at source selection. 

The contracting officer should be making the source selection, not the customer.

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

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.

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19.805 -- Competitive 8(a).

19.805-1 -- General.

19.805-2 -- Procedures.

(a) Offers shall be solicited from those sources identified in accordance with 19.804-3.

(b) The SBA will determine the eligibility of the participants for award of the contract. Eligibility will be determined by the SBA as of the time of submission of initial offers which include price. Eligibility is based on Section 8(a) program criteria. An 8(a) participant must represent that it is a small business in accordance with the size standard corresponding to the NAICS code assigned to the contract.

Since the procurement is being conducted as an 8(a) competition pursuant to FAR 19.805, the solicitation must include clause 52.219-18:

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52.219-18 -- Notification of Competition Limited to Eligible 8(a) Participants.

Notification of Competition Limited to Eligible 8(a) Participants (Jan 2017)

(a) Offers are solicited only from small business concerns expressly certified by the Small Business Administration (SBA) for participation in the SBA’s 8(a) Program and which meet the following criteria at the time of submission of offer --

(1) The Offeror is in conformance with the 8(a) support limitation set forth in its approved business plan; and

(2) The Offeror is in conformance with the Business Activity Targets set forth in its approved business plan or any remedial action directed by the SBA.

(b) By submission of its offer, the Offeror represents that it meets all of the criteria set forth in paragraph (a) of this clause.

22 hours ago, Retreadfed said:

See FAR 16.102(b).

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16.102 -- Policies.

(a) Contracts resulting from sealed bidding shall be firm-fixed-price contracts or fixed-price contracts with economic price adjustment.

(b) Contracts negotiated under Part 15 may be of any type or combination of types that will promote the Government’s interest, except as restricted in this part (see 10 U.S.C. 2306(a) and 41 U.S.C. 3901). Contract types not described in this regulation shall not be used, except as a deviation under Subpart 1.4.

I didn't cite this because of these words: 

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Contracts negotiated under Part 15 ...

One can establish contracts of different types under other FAR Parts.

1 hour ago, litai said:

Can you have a hybrid contract that is it is titled as a FIRM FIXED PRICE but some of the CLINS are on labor hours?  Kindly advise where I can find information in the FAR regarding this topic.

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.

2 hours ago, ji20874 said:

If you will agree that a contracting officer may make “administrative changes and unilateral changes expressly permitted by a contract clause” in a contract for commercial items, then we are in agreement because this belies the common error that all modifications must be bilateral.

 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.  

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. 

1 hour ago, Retreadfed said:

As Don and maybe others have asked, what is meant by "terms and conditions"?  No one has attempted to answer that fundamental question.  For example, are blocks 15, 16, 17a and 18a of the SF 1449 terms or conditions of the contract?

From the Fourth Edition of the Government Contracts Reference Book: 

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TERMS AND CONDITIONS  All the provisions of a contract. FAR 14.201-1 and FAR 15.204-1 require that the terms and conditions follow the UNIFORM CONTRACT FORMAT, with exceptions listed in FAR 14.201-1(a) and FAR 15.204. Standard terms and conditions are set forth in FAR Part 52. 

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Question -

 1. If a buyer has tailored the language in 52.212-4(c ) so that unilateral changes are permitted and they have a minor address change which necessitates doing an administrative mod should they: a) Fill out Block 13(B) on the SF 30 which is an administrative mod? This block sites 43.103(b) as the authority. This reference defines unilateral mods. OR b) Fill out Block 13(D) and site 52.212-4( c), the Changes Clause for commercial contracts, as the authority? 2. I had been advised that FAR 43 does not cover commercial contracts. Is this correct? It seems to me that FAR 43 does not differentiate between commercial and non-commercial acquisitons and, thus commercial contracts can be covered by FAR 43. That being said, is it incorrect to check block 13(B) or is checking 13(D) and zeroing in on the appropriate authority for the commercial contract just more accurate? Is either choice acceptable?

 Scenario - I am trying to obtain the proper modification authority for an administration mod to a commercial contract. I have been advised that FAR 43 does not cover FAR 12 acquisitions, but I question the accuracy of this. This led me to the below questions.

 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.  

https://www.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=3&cgiQuestionID=109722

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.

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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.

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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.

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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.

15 hours ago, Jamaal Valentine said:

QUESTION: At what point, if ever, do you incorporate any updated Wage Determinations?

The CO either modifies the contract to incorporate the WD and adjust contract price after receiving post award notification of a wage modification, or the CO solely adds the WD number and date if the WD doesn't increase or decrease the wage rates.

22.404-6 Modifications of wage determinations.

 (b) The following applies when contracting by sealed bidding:

(5) If an effective modification is received by the contracting officer after award, the contracting officer shall modify the contract to incorporate the wage modification retroactive to the date of award and equitably adjust the contract price for any increased or decreased cost of performance resulting from any changed wage rates. If the modification does not change any wage rates and would not warrant contract price adjustment, the contracting officer shall modify the contract to include the number and date of the modification.

 (c) The following applies when contracting by negotiation:

 (1) All written actions modifying wage determinations received by the contracting agency before contract award, or modifications to general wage determinations published on the WDOL before award, shall be effective.

(2) If an effective wage modification is received by the contracting officer before award, the contracting officer shall follow the procedures in 22.404-5(c)(3) or (4).

(3) If an effective wage modification is received by the contracting officer after award, the contracting officer shall follow the procedures in 22.404-6(b)(5).

5 hours ago, Guardian said:

Evaluate a furnished sampling of workstations out of a total of 500 and provide summary reports on 110 of them.

I like style as well as substance. But, first, substance.

I think 110 sample size represents an increase in 10 and an adequate consideration for a delay in filing the report.

As to style, (i.e.font size, italics, page limits, margin sizes, etc.), look at the "proposal" (i.e. essay) preparation direction given to contractors by COs in the solicitations they issue.

Style seems to carry a weight for the COs during the pre-award stage. Why not during the post-award stage?

15 hours ago, Guardian said:

To strike some reasonable balance, I thought we could agree to them upgrading the product by at least a modest degree.

Ask the contractor to increase the font size and to change the color of the font for the Section titles of the report.

Throw in italics and underlines if you want to deter the contractor from further tardiness.