napolik

I think you better get your small business specialist involved. See the following excerpt from the CFR: 13 CFR 125.2 - What are SBA's and the procuring agency's responsibilities when providing contracting assistance to small businesses? § 125.2 What are SBA's and the procuring agency's responsibilities when providing contracting assistance to small businesses? (a) General. The objective of the SBA's contracting programs is to assist small business concerns, including 8(a) BD Participants, HUBZone small business concerns, Service Disabled Veteran-Owned Small Business Concerns, Women-Owned Small Businesses and Economically Disadvantaged Women-Owned Small Businesses, in obtaining a fair share of Federal Government prime contracts, subcontracts, orders, and property sales. Therefore, these regulations apply to all types of Federal Government contracts, including Multiple Award Contracts, and contracts for architectural and engineering services, research, development, test and evaluation. Small business concerns must receive any award (including orders, and orders placed against Multiple Award Contracts) or contract, part of any such award or contract, and any contract for the sale of Government property, regardless of the place of performance, which SBA and the procuring or disposal agency determine to be in the interest of: (1) Maintaining or mobilizing the Nation's full productive capacity; (2) War or national defense programs; (3) Assuring that a fair proportion of the total purchases and contracts for property, services and construction for the Government in each industry category are placed with small business concerns; or (4) Assuring that a fair proportion of the total sales of Government property is made to small business concerns. ( b ) SBA's responsibilities in the acquisition planning process. (1) SBA Procurement Center Representative (PCR) Responsibilities. (i) PCR Review. (A) SBA has PCRs who are generally located at Federal agencies and buying activities that have major contracting programs. At the SBA's discretion, PCRs will review all acquisitions that are not set-aside or reserved for small businesses above or below the Simplified Acquisition Threshold, to determine whether a set-aside or sole source award to a small business under one of SBA's programs is appropriate and to identify alternative strategies to maximize the participation of small businesses in the procurement. This review includes acquisitions that are Multiple Award Contracts where the agency has not set-aside all or part of the acquisition or reserved the acquisition for small businesses. It also includes acquisitions where the agency has not set-aside orders placed against Multiple Award Contracts for small business concerns.

I think there is a salient factual difference between the circumstances involving the USAF set out in GAO decision B-259274 and those set out by duke 38 in his first post. The difference is found in the timing of the adjustment of the option periods. It leads me to conclude that it would not have been practical – if the action was legal – for duke 38 to have adjusted the option performance period. Duke 38’s June 13 post made it clear that his current contract period would lapse on 21 December 2013. His agency already exercised an option and obligated FY 13 monies covering the period to 21 December 2013. To advance the commencement of the next option period to 30 September 13 from 22 December 13, the agency would need to terminate the already exercised FY 13 option for the period from 30 September 13 to 21 December 13 and deobligate the associated FY 13 funds. After the termination and deobligation of FY 13 funds, I guess duke 38 could have created a new option period effective 30 September 2013 and running a length of time equivalent to the amount of remaining FY 13 funds his program office wanted to obligate. So, it seems that duke would have had to deobligate FY 13 funds in order to obligate more FY 13 funds. The facts of the GAO decision B-259274 involving the USAF are different. The AF changed the period of performance for the fourth option year during the third option year. The USAF did not terminate a portion of the performance period of the third option and deobligate monies to accommodate the creation of the period of performance for the fourth option period. The third option year elapsed on 31 August; the fourth option year began on 1 September. Assuming the GAO would accept a partial termination of FY 13 performance and deobligation of related FY 13 funding along with the adjustment of the final performance period and the reobligation of FY 13 funds, I suspect the duke 38’s customer and finance people would scratch their heads rather vigorously about such actions.

I wonder if he got any snickers?

I believe that the F & F Laboratories decision makes clear the need to state unambiguously to what line items, prices, specs, SOW, delivery or performance schedule and clauses the 2 parties are agreeing. While I understand Professor Nash’s admonition in Vern’s post 5, I am not sure that any definition of an “offer” contained in a solicitation provision could prevent in every case the kind of ambiguity seen in the candy bar contract. I believe one should always draft a 2 party contract containing the words defining the content of the agreement rather than referring to correspondence exchanged during the offer/ acceptance process. Years ago, I commenced my career using formally advertised solicitations containing requirements for the submission of descriptive literature demonstrating compliance with the solicitation’s specifications. I was taught via OJT to read carefully the full contents of the document containing the descriptive literature so that one did not accept an offer and create a contract that not only failed to meet the customer’s specs, but also failed to comply with solicitation clauses (e.g. T for D, delivery schedules, Buy American). Later, I learned to read very carefully cover letters accompanying bids and proposals to assure that there were not words buried in them that modified the content of “technical proposals” and of solicitation Ts and Cs. Unfortunately, today, too few 1102s are taught the principles of contract formation during their OJT. Instead, they are taught how to use automated procurement systems and to make FPDS entries. They are taught to “accept” blindly the contractor’s submissions and to incorporate them into the offer acceptance document. For these reasons, I favor the creation of a 2 party contract instead of “acceptance” of an offer and any of its modifications made during discussions.

In the GAO decisions I have found, and there are a number of them, each refers to a contract line item. If the solicitation to which you refer is asking for a single line item price, it would be difficult to demonstrate that a $3,000 limit has been broken. However, the specification must set out the content, format and language of the course and, perhaps, the qualifications of the individuals preparing the course. Your schedule must not describe a content, format, language and qualifications that are inconsistent with the requirements set out in the solicitation. With regard to the CTA, there is a GSA page that poses and answers a number of questions on CTAs: http://www.gsa.gov/portal/content/202257. Here is one Q and A: Quote How does the ordering activity know that all quoted items are on GSA Schedule? In providing a total solution to an agency's requirement under a Contractor Team Arrangement (CTA), the supplies and services proposed should be identified under each team member's GSA Schedule contract. Any proposed supplies and services that are not part of a GSA Schedule contract (i.e., open market items) can be included only after all applicable acquisition regulations have been followed (see Federal Acquisition Regulation (FAR) 8.402(f)) and must be clearly labeled as such. Unquote Did the solicitation specify a specific SIN? If so, it appears that each member of the CTA must have the SIN on its Schedule contract. Quote In response to our request, GSA provided the following comments on VHSS’s protest: Ordinarily, Contractor Team Arrangement (CTA) members’ combined capabilities are aimed at a “total solution” and allow for the members collectively to meet government needs that each may not otherwise be capable of doing individually. In a conventional CTA, each CTA member would have at least one SIN on its respective schedule contract in furtherance of meeting the Government’s needs. Here, however, the VA is setting up a BPA for a single SIN only (the items to be procured are solely available under Schedule 65II-A, SIN A-50A). * * * * * If the procurement at issue is for a single SIN, then it would stand that both/all members of a CTA would need to have the particular SIN on their respective FSS contract . . . . [F]or the RFQ at issue, if a CTA is being used (which is permitted by the solicitation terms), both/all team members would need to hold a Schedule 65II-A contract with SIN A-50A.[6] Unquote See B-409888, Veterans Healthcare Supply Solutions, Inc., Sep 5, 2014: http://www.gao.gov/products/D08720#mt=e-report.

When you said "Suppose a GSA RFQ asks for a fixed price", I inferred that you were responding to a RFQ issued by an agency under FAR 8.4? Are you, or are you responding to a FAR 13, 15 or 16.5 solicitation issued by GSA?

I do not know what you stated in your solicitation's Section L or its commercial item equivalent, but, assuming the solution is technically acceptable, and absent an express statement barring the incorporation of the solution, I see no reason why you cannot accept the solution and incorporate it into the contract. If the solicitation is ambiguous with regard to its acceptance and incorporation, prepare a 2 party contract incorporating the proposed solution and ask the contractor to sign it

You have not set out clearly all the facts in your case. How many and what types of supplies or services is the agency buying? I infer that the agency is obtaining multiple items of supplies or services while asking for a single price covering the multiple items. I assume that each of the items sought by the agency is called out in the FSS schedule either as a line item or as a specification for a schedule line item. When the agency issues a solicitation under the Federal Supply Schedule (FSS) system, every item must be on the schedule of the contractor selected for award. The only exception is an item whose value does not exceed the micro-purchase threshold of $3,000. In the Rapiscan Systems, Inc., B-401773.2; B-401773.3, Mar 15, 2010 the GAO addressed a protest against the placement of an FSS order to a contractor that included non-FSS items priced at $0. Quote With respect to CLIN 7, freight, the agency concedes that SAIC’s FSS contract does not include an item for freight, but argues that it nevertheless properly issued the purchase order to SAIC because its quoted price for the item does not exceed the $3,000 micro‑purchase threshold. We find that CLIN 7 did not qualify as a micro-purchase item. SAIC’s initial quotation for CLIN 7 indicated that freight was an open market--rather than an FSS contract--item, and showed a unit price of $6,832. SAIC Quotation sect. 4.1. SAIC then submitted a revised quotation on June 13 that again showed a unit price of $6,832 for CLIN 7, but further indicated that this price was being discounted by $6,832, resulting in a CLIN 7 price of $0. However, the quotation also expressly stated that the price for CLIN 7 was “included in unit price of Item #1,” indicating a shifting of the initially quoted price for line item 7 to line item 1. Revised Quotation sect. 4.1. Based on this evidence, while SAIC’s quotation showed a price of $0 for freight, this price, in effect, was illusory; its quoted total price actually included an amount for freight that exceeded the $3,000 micro-purchase threshold. Under these circumstances, we find that CLIN 7 freight cannot be considered a micro-purchase item under SAIC’s quotation. It follows that, since freight was a required item and was not included on SAIC’s FSS contract, the purchase order could not properly be issued to SAIC. The micro‑purchase exception is a narrow one and was not intended as a means for vendors to provide non-FSS items as micro‑purchase items to avoid the general rule that all items under an FSS solicitation must be included on the successful vendor’s FSS contract. See SMS Sys. Maint. Servs., Inc., supra. Unquote In your circumstance, each item of supply or service provided by the selected contractor valued at $3,000 or more must be on the contractor’s schedule and each item must meet the schedule’s spec for the item. In your case, for example, if the single line item must be delivered FOB destination, but the selected contractor’s schedule does not cover freight, I believe you would have a problem should a competitor protest. Or, if the single item calls for the delivery of “office materials” (i.e. books, 3 ring binders and printer paper) and the contractor’s schedule does not include binders or offers only binders with 2 rings, I believe you would also have a problem in the event of a protest.

I found a different text for FAR 19.302(j): Did you mean to provide another cite?

There is something else wrong with the synopsis for the services you describe. Small Business Set Asides are not used to award sole source contracts:

The DFARS was recently changed to require the evaluation of past performance when acquiring supplies under FAR 13.5. See paragraph ( b )(i)( B ): Why is this limited solely to supplies, and not to services? Also, why is there a special mention of actions valued at less than or equal to $1 million?

I have seen MAC/ MATOCs with clauses called "On Ramps" or "Off Ramps". Using the latter, the contracting officer identifies the circumstances under which the contractor will no longer be eligible to compete on future task orders. See an example in post 4 here: http://www.wifcon.com/discussion/index.php?/topic/2660-matoc-8a-set-aside/. Do you think GSA obtained a deviation for this clause? . See also the answer to question 4 here: https://chess.army.mil/Content/files/MFD_FAQ.pdf and the clause at the bottom of page 17 here: https://chess.army.mil/Content/files/MFD_Ordering_Guide.pdf.

In my view, the addition of CLIN does not necessarily represent a change in scope. I used to award contracts for logistics support services for the Navy in Europe and Southwest Asia. I was always careful to identify and evaluate the major line items of support in the CLIN structure while including in the SOW or Ts and Cs a statement to the effect that other types of logistics support could be required by other services within DoD and in other ports and countries adjacent to the relevant bodies of water (e.g. the Med and Black Seas, Persian Gulf, Atlantic Ocean, etc.). Several times (e.g. during the war in the ex-Yugoslavia, and the run –up to the second Iraqi war), we added work for other DoD services and for supplies or services not included in the CLIN structure. I think you can too. Neither the GAO nor the COFC has set out a specific definition for determining whether a modification or change is “out of scope”. One needs to look at the specifics on a case-by-case basis and consider such issues as the following: Was there a change to the nature and type of work? Could the competitors have reasonably anticipated the change? If the change has appeared in the original solicitation, would the change have impacted the number of competitors? Was there a change to the quantity or volume of goods or services ordered? Was the period of performance substantially extended? How broadly written were the terms of the solicitation terms and its SOW? The GAO has set out its standard of review of scope issues as follows: In 2012, the COFC concluded that a contract mod was within scope even though it added 2 line items while increasing the contract cost from $20 million to $37 million: “Although Bluewater’s estimated contract price increased by approximately $17,187,887.08, the nature of the items procured under Bluewater’s contract remained the same.” . (American Apparel, Inc., v. U. S. and Bluewater Defense Inc., No. 12-293C, December 14, 2012). http://www.wifcon.com/cofc/12-293.pdf. You might also wish to read pages 382-396 of the fourth edition of Administration of Government Contracts, by Cibinic, Nash, and Nagle. Finally, Google “WIFCON” scope of contract” to read the threads on scope of contract.

If the PCO needs the assistance of a COR, why would not the ACO?

Yes, if there are definitions of the area of agency operations and of the range of logistics support in some DoD or DOA pub.

Make sure you define your scope of contract broadly enough to support your customer's needs wherever your customer might need support. If you are not careful, you will find that a port, country, body of water or a key logistical function is not included in the scope of work. When Murphy's law kicks in, you may have difficulty providing a key logistical function (e.g. port services, transportation, potable water, security svcs.) if your scope is too limited. I suggest that you list all the countries, ports, bases, bodies of water, supplies and services to be encompassed by your contract in its Section B or C.

With an exception, I do not agree that requiring activities should take the lead in conducting market research. The exception is major systems' acquisitions where the program office is laden with staff including "acquisition professionals". The bulk of my experience has been in field contracting buying a wide range of supplies of services from hundreds of different customers. These field customers are not staffed to do market research. The contracting officer should be taking the lead. Unfortunately, an increasing number of contracting officers and offices are passing more and more elements of the contracting function to their customers. This transfer gives the contracting professionals more time to play with automated procurement systems and FPDS. V/r, I. M Luddite

I don't distinguish between paragraphs in a SOW or in solicitation provisions or contract clauses (e.g. FAR 52.212-1, 52-212-4, data rights or warranties) . I think market research covers both, particularly in areas involving commercial items. Take a look at slide 20 here: http://resources.ncmahq.org/chapters/middle_georgia/Education%20Corner/Education/NCMA%20MR%20Briefing(sep%2009-Mark%20Leslien).pdf I change my earlier statement: "There are some agencies, including at least two in DOD, that place the responsibility for market research on the requiring activity."

There are some agencies, including at least one in DOD, that place the responsibility for market research on the requiring activity. If market research encompasses discussion of specs/ SOWs, why not of Ts and Cs?

Take a look at this: 212.205 Offers. (c ) When using competitive procedures, if only one offer is received, the contracting officer shall follow the procedures at 215.371.

Does your rep think the DFARS 15.371-2 resolicitation policy applies to FAR 13.5?

If DoD wants the "Only One Offer" resolicitation policy to apply to FAR 13.5, one would think that the DAR Council would put the same kind of explicit statement in DFARS 13.5 as appears in DFARS 8.4, 214.404-1 and 216.505-70.

The DFARS coverage of “Only One Offer” has been confusing since the DAR Council implemented the Assad 2011 memo. It remains confusing despite, or because, of the 20 April “Technical Amendment” to DFARS 213.500. The DFARS expresses the “Only One Offer” policy at 208.404 (a)(i), 213.500-70, 214.404-1, 215.371, and 216.505-70. DFARS 213.500-70 appears not to require the issuance of a new solicitation if one receives only one offer after leaving a FAR 13.5 solicitation on the street for less than 30 days. The DFARS cite refers only to PGI 215.371, Only one offer. It does not refer to DFARS 215.371, Only one offer. Here is the text of the PGI reference. There is no requirement to resolicit expressed in the PGI 215.371. And, the DFARS 213.500-70 does not refer to DFARS 215.371. However, DFARS 215.371 includes 6 paragraphs. One of them is paragraph 215.371-2: Another paragraph in DFARS 215.371 is paragraph (4), Exceptions. Paragraph (a)(1) says: 2 questions. Is the 20 April 2015 change to the DFARS designed to eliminate only for FAR 13.5 buys the requirement to resolicit when one receives a single offer after leaving a solicitation open for less than 30 days? Or, is the 20 April “Technical Amendment” designed to add a requirement to FAR 13.5 procurements to get feedback and to document the file with the feedback?

Of course, one should check with the controlling operational organization. We checked with CINCUSNAVEUR to assure there was a need for the supplies or services we would place under contract. Sometimes, Army and AF needed our contracts for provisions, contingency support, ship repair, car rental, or air terminal services. So, we wrote them broadly.

While I worked in Europe, my office used to write contracts that would provide, as needed, fresh fruits and vegetables, water and other products required by forces afloat and in contingency ops. We had no problem with duplication of support provided by DLA or the Navy Commissary system.