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napolik

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  1. The Feds take a (another) major step backward into infantilism. Now it appears we're teaching 1102s to use their fingers and thumbs instead of their brains. Of course, given the degradation of education and learning in the US over the past decade plus, I suppose one shouldn't be surprised.

    http://www.nextgov.com/emerging-tech/emerging-tech-blog/2014/01/gsa-wants-use-computer-games-teach-contracting/76226/?oref=govexec_today_nl.

  2. Vern - It will be nice when a re-write comes out. Since the current version specifically states, "... listed below in descending order of priority" many people interpret that as written... Even with the recent GAO decisions, my old boss interpreted it to be "Yes, you don't HAVE to buy from a non-mandatory source", but you have to consider it before you can go open market and justify why you're not using it." so the re-write needs to be done.

    A final rule implementing FAR case 2009-024 has been issued. It is effective January 30, 2014:

    https://www.federalregister.gov/articles/2013/12/31/2013-31149/federal-acquisition-regulation-prioritizing-sources-of-supplies-and-services-for-use-by-the.

  3. Regardless of the FAR Part you are following, any solicitation you issue must identify the evaluation factors, criteria, or selection bases you will use to evaluate the bids, proposals or quotes. Some FAR Parts (i.e. FAR Part 15) require more detailed information about the criteria and their relative importance than others (e.g. FAR Parts 8, 13 and 16). MATOCs may identify requirements for submission of proposals and evaluation criteria, or the basis upon which the selection will be made.

    In my experience, some kind of evaluation plan, or source selection plan, is prepared for every competitive procurement to assure, at a minimum, that the evaluation of contractor submissions is consistent with the criteria or factors identified in the solicitation or MATOC. Depending upon the agency and dollar value of the procurement, these plans can include much more information than a mere listing of the evaluation factors or their relative importance. They can identify roles, definitions of acceptability, and evaluation vocabularies and process methodologies.

    While a “source selection plan” is not mentioned in the FAR, source selection procedures and processes are mentioned in FAR Part 7. The DFARS does mention “source selection plan” in Part 215.

    1. I am in the process of doing a Source Selection Plan SSP, and wanted to know your thoughts on doing trade off with a task order.

    That depends upon the complexity of the supply or service and the familiarity one has with the contractors holding the MATOC. If the services are simple and straightforward or if you have had satisfactory experiences with all MATOC holders, you could rely on a LPTA approach.

    For $20 million orders, I suspect there is a degree of complexity that will require consideration of factors other than price (e.g. résumés of key personnel, staffing plan, experience, and past performance). However, recently appearing budget constraints may encourage greater use of LPTA.

    2. Is there really a simplified method of doing a source selection for task orders, if we are going to follow the steps for a source selection board?

    You must always provide guidance to the evaluators. Its length and complexity will depend upon agency policy and procedures, complexity of the service and / or dollar values. If you have experience with the MATOC holders, perhaps you may wish to evaluate only cost / price and past performance.

    3. Has anyone conducted a simplified source selection, if so, how was it different from the normal method?

    I have solicited only price, and I evaluated price and past performance. I did not solicit past performance information as I relied on the information we had gathered on the contractors' performances under earlier orders.

  4. I've seen a number of time-and-materials and labor-hour contracts that specified only an hourly rate for the options, but did not specify the estimated number of hours. I've always advised that without an estimate of hours, the option price cannot be determined and thus the option is unpriced; ergo, unexerciceable. I don't think the price can be reasonably determined without knowing how many hours of work the contractor is required to perform. Is this correct, or have I been giving bad advice?

    While I prefer to establish the IDQ service contract’s maximum quantity in dollars by summing the extensions of labor hours and labor rates, it is not mandatory to use this approach. See FAR 16.504 (a) (1):

    (a) Description. An indefinite-quantity contract provides for an indefinite quantity, within stated limits, of supplies or services during a fixed period. The Government places orders for individual requirements. Quantity limits may be stated as number of units or as dollar values.

    (1) The contract must require the Government to order and the contractor to furnish at least a stated minimum quantity of supplies or services. In addition, if ordered, the contractor must furnish any additional quantities, not to exceed the stated maximum. The contracting officer should establish a reasonable maximum quantity based on market research, trends on recent contracts for similar supplies or services, survey of potential users, or any other rational basis.

  5. You do not need to consider sources outside the FSS as FAR Subpart 8.4 applies only to orders placed against the Federal Supply Schedule contracts. See paragraph (a ) of FAR 8.403 -- Applicability:

    Procedures in this subpart apply to--

    (1) Individual orders placed for supplies or services placed against Federal Supply Schedules contracts; and

    (2) BPAs established against Federal Supply Schedule contracts.

    Thus, you would consider only GSA Schedule holders.

  6. Followup to the FAR 12/FAR 8 question ... If an agency wants to use FAR 8.4 the GSA FSS Schedule, but they are acquiring services priced at hourly rates (labor hour) and not FFP tasks, does the requirement at FAR 12.207 to do a D&F justifying the use of a T&M or labor hour contract type apply? Or can we assume that GSA already executed this D&F?

    If you are doing a buy under FAR Part 8, the policies and procedures of FAR Part 12 do not apply, but you must still prepare a D&F for a labor hour contract.

    First, take a look at FAR 12.102, Applicability. Specifically, look at paragraph (b ):

    (b )Contracting officers shall use the policies in this part in conjunction with the policies and procedures for solicitation, evaluation and award prescribed in Part 13, Simplified Acquisition Procedures; Part 14, Sealed Bidding; or Part 15, Contracting by Negotiation, as appropriate for the particular acquisition.

    Note that this does not mention FAR Part 8.

    Also, take a look at FAR 8.402(f ) and (f )(1 ):

    For administrative convenience, an ordering activity contracting officer may add items not on the Federal Supply Schedule (also referred to as open market items) to a Federal Supply Schedule blanket purchase agreement (BPA) or an individual task or delivery order only if--

    (1) All applicable acquisition regulations pertaining to the purchase of the items not on the Federal Supply Schedule have been followed (e.g., publicizing (Part 5), competition requirements (Part 6), acquisition of commercial items (Part 12), contracting methods (Parts 13, 14, and 15), and small business programs (Part 19));

    This subparagraph is telling you that FAR 12 regulations apply to FAR 8 only if you are not buying an item that is on the Schedule.

    Regarding a D&F for use of a labor hour contract, see the first 3 subparagraphs of FAR 8.404 (h )93 )(ii ):

    (i) A time-and-materials or labor-hour order may be used for the acquisition of commercial services only when it is not possible at the time of placing the order to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence.

    (ii) Prior to the issuance of a time-and-materials or labor-hour order, the contracting officer shall—

    (A) Execute a determination and findings (D&F) for the order, in accordance with paragraph (h)(3)(iii) of this section that a fixed-price order is not suitable;

    (B ) Include a ceiling price in the order that the contractor exceeds at its own risk; and

    (C ) When the total performance period, including options, is more than three years, the D&F prepared in accordance with this paragraph shall be signed by the contracting officer and approved by the head of the contracting activity prior to the execution of the base period.

    (iii) The D&F required by paragraph (h)(3)(ii)(A) of this section shall contain sufficient facts and rationale to justify that a fixed-price order is not suitable. At a minimum, the D&F shall—

    (A) Include a description of the market research conducted (see 8.404© and 10.002(e));

    (B ) Establish that it is not possible at the time of placing the order to accurately estimate the extent or duration of the work or anticipate costs with any reasonable degree of confidence;

    © Establish that the current requirement has been structured to maximize the use of fixed-price orders (e.g., by limiting the value or length of the time-and-materials/labor-hour order; or, establishing fixed prices for portions of the requirement) on future acquisitions for the same or similar requirements; and

    (D) Describe actions to maximize the use of fixed-price orders on future acquisitions for the same requirements.

  7. Assume that the agency will provide the SOW.

    If the ordering office must provide the SOW, then FAR 8.405-2 applies. As you pointed out, FAR 8.405-2 (d) requires you to consider the level of effort and the mix of labor proposed to perform a specific task.

    If you are using the SOW in the Schedule, FAR 8.405-1 applies. Paragraph (a) states

    Ordering activities shall use the procedures of this subsection when ordering supplies and services that are listed in the schedules contracts at a fixed price for the performance of a specific task, where a statement of work is not required (e.g., installation, maintenance, and repair)

    FAR 8.405-1 does not require the assessment of the LOE.

  8. "Since this has happened, the Government no longer offers any small business set asides on this contracting vehicle. Instead they have chosen to go to another vehicle to compete small business procurements. We, unfortunately, do not have some of these chosen vehicles so we cannot compete for efforts. "

    I do not understand your problem. Is it that you are receiving no solicitations for task orders, or is it that none of the issued solicitations are set aside for small businesses?

  9. ipod24 - I don't see how one can reduce the duration of 52.217-9 based on the fact that 52.217-8 was exercised. In competing the requirement, Option XYZ was priced by the contractor for a duration of 12 months (you state section F identifies the option as a 12 month duration). You cannot then unilaterally change the terms (duration) of Option XYZ just because you exercised 52.217-8. I don't see that authority given anywhere in the contract or the clauses.

    A separate yet relevant question, Did you evaluate FAR 52.217-8 price as part of your initial competition? see ramifications GAO decision of B401472 Major Contracting Services

    http://www.gao.gov/decisions/bidpro/401472.htm

    In order to exercise 52.217-8 the option must have been evaluated as part of the initial competition and be exercisable at an amount specified in or reasonably determinable from the terms of the basic contract. if it was NOT evaluated, then the exercise of the option amounts to a contract extension beyond the scope of the contract and effectively constitutes a new procurement.

    Note: That the -8 price/cost was evaluated prior to award.

  10. Poor wording by GAO – “exercise of this option amounts to a contract extension beyond the scope of the contract”. I assume they meant “…beyond the scope of the J&A”.

    The scope of the contract is defined by the contract, not the J&A.

    The GAO means the "scope of the contract". However, there is another "scope" at play - the "scope of the competition". If the agency had evaluated prices associated with the -8 option as part of its competitive source selection, it could have exercised the option without a J&A.

    The same is true of any -9 option.

    See B-401472.2, Department of the Army--Reconsideration, December 7, 2009:

    “We sustained MCS's protest because we found that the exercise of the option did not comply with FAR requirements. Specifically, FAR sect. 17.207(f) requires that a contracting officer, before exercising an option, make a written determination that the exercise of the option is in accordance with the terms of the option and the requirements of FAR sect. 17.207 and FAR Part 6, and further specifies that in order to meet the requirements of FAR Part 6 regarding full and open competition, the option must have been evaluated as part of the initial competition and be exercisable at an amount specified in or reasonably determinable from the terms of the basic contract. We found that the option to extend DAV's contract had not been evaluated as part of the initial competition, so that the agency was required to justify the use of noncompetitive procurement procedures in accordance with FAR Subpart 6.3 before exercising this option.”

  11. So, if a LH or T&M contract is not a "level-of-effort" contract, and thus, doesn't 'buy hours,' it seems to be counterintuitive to specify the estimated hours under a LH or T&M contract. LCATs and fixed hourly rates yes. Does this really boil down to how much 'control' [or Government surveillance] is required "to give reasonable assurance that efficient methods and effective cost controls are being used."?

    Who said that a T&M or LH contract does not involve levels of effort? The T&M or LH is not a fixed price contract.

    Both contract types provide for acquiring supplies or services on the basis of direct labor hours at specified fixed hourly rates that include wages, overhead, general and administrative expenses, and profit.

  12. The GAO has consistently ruled that the contracting officer is not obligated to eliminate an incumbent’s competitive advantage unless there is evidence of preferential treatment or other improper action.

    Here is a recent expression of GAO’s view as stated in Onsite Health Inc., B-408032; B-408032.2, May 30, 2013:

    “On the other hand, it is well settled that an offeror may possess unique information, advantages, and capabilities due to its prior experience under a government contract, including performance as the incumbent contractor. Our Office has held that the government is not required to equalize competition to compensate for such an advantage, unless there is evidence of preferential treatment or other improper action. See FAR § 9.505-2(a)(3); CACI, Inc.--Fed., B-403064.2, Jan. 28, 2011, 2011 CPD ¶ 31 at 10; MASAI Tech. Corp., B-298880.3, B-298880.4, Sept. 10, 2007, 2007 CPD ¶ 179 at 8. The existence of an advantage, in and of itself, does not constitute preferential treatment by the agency, nor is such a normally occurring advantage necessarily unfair. Council for Adult & Experiential Learning, B-299798.2, Aug. 28, 2007, 2007 CPD ¶ 151 at 6; Government Bus. Servs. Group, B-287052 et al., Mar. 27, 2001, 2001 CPD ¶ 58 at 10.”

    Here is an extract from a 1980 decision addressing startup costs as stated in Harris Systems Pest Control, Inc., B-198745, May 22, 1980:

    “Further, there is no requirement for the government to provide special consideration to a bidder because it will incur costs that the incumbent contractor may not incur or to equalize competition merely because one firm's advantageous position results from previous contract awards. See ABC refuse collection, Inc., B-194216, June 4, 1979, 79-1 CPD 388; Field Maintenance Services Corporation, B-185339, May 28, 1976, 76-1 CPDB 350. Any new bidder would be in the same situation as the protester, and there is no indication that any advantage accruing to the incumbent contract was unfairly gained. Lastly, there is no reason at this time to conclude the option periods should not be exercised.”

  13. The T&M standard payment clause – 52.232-7, Payments Under Time-and-Materials and Labor-Hour Contracts – does not preclude the use of either option one or option two.

    In my experience, the labor category hours are frequently stated in the solicitation and contract. In many cases, the sum of the extensions of the hourly rates times the labor category hours is integral to establishing the evaluated price for purposes of source selection and the contract ceiling price. However, you can use other methods to develop the evaluated price for purposes of source selection. See B-299873, General Dynamics Information Technology, September 19, 2007.

    With regard to the two options you identify, use the first option if you desire more control of the labor categories the contractor will use. Use the second if you are less concerned about which categories the contractor will use.

    Your contract ceiling may help you decide which option to select. If you established a generous ceiling, you may not need to control labor category use as rigidly as you would with a low ceiling. (Note: be careful to give yourself a generous ceiling or you may face a CICA issue if you seek to raise the ceiling. See Liebert Corporation, B-232234.5, Apr 29, 1991)

    I would advise against the approach suggested by ji20874 as I believe it represents a misguided amalgam of a fixed price and T&M contract. If you are paying the contractor a fixed price to complete the task, you have no right to control the expenditure of labor hours or the use of labor categories?

    In this regard, don’t overlook FAR 16.600 – Scope: “Time-and-materials contracts and labor-hour contracts are not fixed-price contracts.”

  14. Absent additional language in the – 9 clause, I do not see how one can unilaterally modify the length of the – 9 option so as to achieve a maximum of a 12 month extension via the exercises of the -8 and -9 options.

    The – 8 clause allows multiple exercises up to a total of 6 months. An option period covered by the -9 clause is fixed – 1 month, 6 months, or, more commonly, 12 months – and can be exercised only once for the specific option period.

    If one exercises the – 8 option for 2 months, how does one exercise an option pursuant to -9 that leads to a cumulative -8 and -9 total of no more than 12 months, unless the – 9 option period is defined as a period of 10 months or less?

    What does one do if the - 9 option period is 12 months?

    Paragraph (c ) of the -9 clause refers to the total contract length inclusive of all -9 option exercises, not to the length of a specific option.

  15. dcarver,

    Your beliefs about the force of source selection plans are outdated. See http://www.wifcon.com/cofc/09-602c.pdf.

    Don,

    GAO has not yet bought into the COFC judge's view of the role of the SSP. For GAO, the SSP represents "internal agency guidelines". Failure to follow the SSP does not present the basis of a protest at GAO. The most recent expression of GAO's view may be seen in footnote 7 of ABSG Consulting, Inc., B-407956; B-407956.2, Apr. 18, 2013:

    "Additionally, ABSG argues that this is one of several aspects of the Coast Guard’s source selection plan that were not followed. Supplemental Protest at 2-3. Such complaints concerning whether an agency followed internal guidelines do not state a valid ground of protest. Johnson Controls World Servs., Inc., B-289942, B-289942.2, May 24, 2002, 2002 CPD ¶ 88 at 6 n.6; see also Walsh Investors, LLC, B-407717, B-407717.2, Jan. 28, 2013, 2013 CPD ¶ 39 at 8 n.6 (source selection plan is an internal guide that does not give rights to parties)."

    The discussion in paragraph II C of the COFC's USFalcon decision is worth a careful read and consideration. Perhaps one could avoid a loss at the COFC by modifying formally the source selection plan and assuring the SSA approval of the modification.

  16. Has the contracting officer (CO) issued, or does the CO intend to issue, a change order adding additional work? Or, does the CO say that the work described by the COR is already encompassed in the statement of work and included in the estimated cost?

    If the contracting officer has issued, or will issue, a change order, you are entitled to an equitable adjustment in the estimated cost and in the fee. See the changes clause at 52.243-2 with alternate 1.

    By the way, a change order can be issued only if the work described in the change is within the scope of the contract.

    52.243-2 -- Changes -- Cost-Reimbursement.

    Changes -- Cost-Reimbursement (Aug 1987)

    (a) The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following:

    (1) Drawings, designs, or specifications when the supplies to be furnished are to be specially manufactured for the Government in accordance with the drawings, designs, or specifications.

    (2) Method of shipment or packing.

    (3) Place of delivery.

    (b ) If any such change causes an increase or decrease in the estimated cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, or otherwise affects any other terms and conditions of this contract, the Contracting Officer shall make an equitable adjustment in the --

    (1) Estimated cost, delivery or completion schedule, or both;

    (2) Amount of any fixed fee; and

    (3) Other affected terms and shall modify the contract accordingly.

    (c ) The Contractor must assert its right to an adjustment under this clause within 30 days from the date of receipt of the written order. However, if the Contracting Officer decides that the facts justify it, the Contracting Officer may receive and act upon a proposal submitted before final payment of the contract.

    (d) Failure to agree to any adjustment shall be a dispute under the Disputes clause. However, nothing in this clause shall excuse the Contractor from proceeding with the contract as changed.

    (e) Notwithstanding the terms and conditions of paragraphs (a) and (b ) above, the estimated cost of this contract and, if this contract is incrementally funded, the funds allotted for the performance of this contract, shall not be increased or considered to be increased except by specific written modification of the contract indicating the new contract estimated cost and, if this contract is incrementally funded, the new amount allotted to the contract. Until this modification is made, the Contractor shall not be obligated to continue performance or incur costs beyond the point established in the Limitation of Cost or Limitation of Funds clause of this contract.

    (End of Clause)

    Alternate I (Apr 1984). If the requirement is for services and no supplies are to be furnished, substitute the following paragraph (a) for paragraph (a) of the basic clause:

    (a) The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following:

    (1) Description of services to be performed.

    (2) Time of performance (i.e., hours of the day, days of the week, etc.).

    (3) Place of performance of the services.

  17. 37.106 -- Funding and Term of Service Contracts.

    (a) When contracts for services are funded by annual appropriations, the term of contracts so funded shall not extend beyond the end of the fiscal year of the appropriation except when authorized by law (see paragraph (b ) of this section for certain service contracts, 32.703-2 for contracts conditioned upon availability of funds, and 32.703-3 for contracts crossing fiscal years).

    (b ) The head of an executive agency, except NASA, may enter into a contract, exercise an option, or place an order under a contract for severable services for a period that begins in one fiscal year and ends in the next fiscal year if the period of the contract awarded, option exercised, or order placed does not exceed one year (10 U.S.C. 2410a and 41 U.S.C. 2531).. Funds made available for a fiscal year may be obligated for the total amount of an action entered into under this authority.

    (c ) Agencies with statutory multiyear authority shall consider the use of this authority to encourage and promote economical business operations when acquiring services.

    32.703-3 -- Contracts Crossing Fiscal Years.

    (a) A contract that is funded by annual appropriations may not cross fiscal years, except in accordance with statutory authorization (e.g., 41 U.S.C. 11a, 31 U.S.C. 1308, 42 U.S.C. 2459a, 42 U.S.C. 3515, and paragraph (b ) of this subsection), or when the contract calls for an end product that cannot feasibly be subdivided for separate performance in each fiscal year (e.g., contracts for expert or consultant services).

    (b ) The head of an executive agency except NASA, may enter into a contract, exercise an option, or place an order under a contract for severable services for a period that begins in one fiscal year and ends in the next fiscal year if the period of the contract awarded, option exercised, or order placed does not exceed one year (10 U.S.C. 2410a and 41 U.S.C. 2531). Funds made available for a fiscal year may be obligated for the total amount of an action entered into under this authority.

  18. With regard to the recognition of the benefits of incumbency unrelated to the contents of a proposal, see Quest Diagnostics, Inc., B-405081.5, Dec 19, 2012:

    “In response, the agency explains that Quest’s proposal did not receive a technical capability rating of excellent because it did not demonstrate the superior understanding and exceptional strengths required for such a rating.1 In the foregoing connection, the contracting officer (who served as the SSA) noted as follows:

    Instead of adequately describing its understanding of the requirements of the performance work statement and describing its technical approach for performing the required services in a manner that would justify a higher adjectival rating under the solicitation, Quest mainly referred to its status as the incumbent. Since the technical proposal submitted by Quest only met the definition of “Good” in the solicitation, I rated its technical proposal as “Good” and did not use my personal beliefs concerning the technical capabilities of Quest to increase the technical rating. . . . Quest did not receive an “Excellent” rating for Factor 1 because its technical proposal did not demonstrate a superior understanding of the requirement listed in the solicitation and its technical proposal did not have several exceptional strengths that would significantly benefit the government.

    Contracting Officer’s Statement, Oct. 25, 2012, at 7.

    Although Quest argues at length that the information in its proposal concerning its status as the incumbent should have been viewed more favorably, and resulted in a higher rating under the technical capability factor, Quest’s arguments in this regard reflect nothing more than disagreement with the agency’s judgment that its proposal warranted a rating of good rather than excellent. Accordingly, we have no basis to find the agency’s evaluation in this regard unreasonable.2

    2 Quest repeatedly cites Johnson Controls Security Sys., B-296490, B-296490.2, Aug. 29, 2005, 2007 CPD ¶ 102, and Systems Research and Applications Corp.; Booz Allen Hamilton, Inc., B-299818 et al., Sept. 6, 2007, 2008 CPD ¶ 28 as authority for the proposition that an agency’s evaluation is inherently unreasonable where it fails to recognize the benefits associated with incumbency. Johnson Controls, however, stands for the proposition that where an agency identifies strengths associated with incumbency, it is improper for the agency to fail to consider those strengths in its comparison of proposals--it does not stand for the proposition that the agency is required to identify strengths associated with incumbency in the first place. Likewise, contrary to the protester’s position, Systems Research does not stand for the proposition that we will sustain a protest where an agency fails to assess the real advantages attributable to an offeror’s incumbency; it stands for the proposition that we will sustain a protest where the record fails to demonstrate that the source selection officials reasonably considered identified differences between proposals.”

  19. Was the contract you currently hold awarded to your firm after a competition?

    If it was, chances are very high that the new contract will be competed.

    If the solicitation contains Sections L and M (or their equivalents) describing proposal requirements and setting out evaluation criteria, there is a clear implication of competition.

    Rather than infer an answer, why not ask the contracting officer, or get someone else to ask him or her, via phone or e-mail?

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