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napolik

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Posts posted by napolik

  1. Hello All,

    I just read an interesting article in Govexec.com about Companies delingquent on federal taxes where contractors have obtained millions of dollars in awarded contracts while outstanding taxes are due. I am trying to determine how can contracting officers do this research before award. Will Dun& Bradstreet contain this info?

    First, see here: https://www.epls.gov/. Then, see here: https://www.fsd.gov/app/answers/detail/a_id/235.

  2. Say I have a customer who requests to purchase a COTS computer. In their market research they received a quote from a vendor for open market pricing.

    After requesting quotes from randomly selected vendors off the GSA schedule 70 it became apparent that the pricing initially quoted by the open market company (which was also used for budget determinations) was significantly lower than the GSA schedule.

    I know that you should not compare open market with GSA pricing and than the market research should not have included a quote in the first place, but knowing all of this, how do I truly do my due diligence to my customer. I tell them they have to spend an additional sum of money (in the thousands) instead of just buying from the lowest price?

    Take a look at B-298481, Murray-Benjamin Electric Company, LP, September 7, 2006:

    "Agency is not required to order supplies under non-mandatory Federal Supply Schedule (FSS) contract, and where it is in agency?s best interests--including

    need to establish ?best value? among potential offerors--agency may compete its requirements among commercial sources of supply instead of under non-

    mandatory FSS."

    ??, while the list of required sources found in FAR sect. 8.002 places non-mandatory FSS contracts above commercial sources in priority, it does not

    require an agency to order from the FSS.?

    ?[5] As explained by GSA, while agencies are encouraged to use the FSS, where an agency concludes that it is in its best interests to meet its needs through an open market procurement, it is free to do so.?

    See also this thread: http://www.wifcon.com/discussion/index.php?showtopic=176.

  3. Say I have a customer who requests to purchase a COTS computer. In their market research they received a quote from a vendor for open market pricing.

    After requesting quotes from randomly selected vendors off the GSA schedule 70 it became apparent that the pricing initially quoted by the open market company (which was also used for budget determinations) was significantly lower than the GSA schedule.

    I know that you should not compare open market with GSA pricing and than the market research should not have included a quote in the first place, but knowing all of this, how do I truly do my due diligence to my customer. I tell them they have to spend an additional sum of money (in the thousands) instead of just buying from the lowest price?

    There is no reason why your market research cannot delve into Federal Supply Schedule contractors and other contractors. Further, you are not obligated to use the Federal Supply Schedul unless it is "mandatory".

    If the "open market" computer is a better buy, cancel the RFQ, if you issued one, and write a memo to file saying you cancelled the RFQ because the same thing is available at a lower price on the open market. Then, do a FAR 13 competition.

  4. Carl's right. I think it depends entirely on what the solicitation says.

    If the solicitation did not state that the contracting officer reserved the right to evaluate websites to determine acceptability and price, how can the contracting officer issue a PO to Company X? How can the contracting officer assert that he or she complied with FAR 13.106-2 (a)(2):"Quotations or offers shall be evaluated on the basis established in the solicitation."?

    In reviewing a half dozen GAO cases involving the evaluation of quotes submitted against FAR 13 solicitations, GAO seems to be consistent in the application of this standard: ?? an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate quotations in accordance with the terms of the solicitation.? National Aerospace Group, Inc., B-281958, May 10, 1999.

  5. 1. No.

    2. Yes. We evaluated Company X on the basis established in the solicitation.

    3. No.

    But how does issuance of a request for quotations prevent a KO from evaluating companies that did not submit a quote if the RFQ did not say that submission of a quote was necessary for consideration? We did not invoke Part 14 or 15. Where in FAR Part 13 does it prohibit a KO from considering firms that did not submit quotes?

    You said two things that determine my response. First, you said "The agency posted a combined synopsis/solicitation asking for written quotes...". You said also that "The RFQ was very simple. It stated when quotes were due and the evaluation factors. It asked for a written response."

    So, you issued a solicitation asking for "written quotes" and "a written response". If you issue a PO to a company that failed to submit the required written quote or response, have you complied with FAR 13.106-2 (a)(2):"Quotations or offers shall be evaluated on the basis established in the solicitation."?

    Given the facts you have presented, it is my view that you have not.

  6. Napolik, I'm no expert and have no practical experience on which to draw, but might FAR 13.103 on standing price quotations provide a potential hook?

    BTW, I spent a fair amount of time yesterday and today trying to find a discussion of the standing price quote (SPQ). The Government Contracts Reference Book, Third Edition, refers you to page 996 of The Formation of Government Contracts, Third Edition. However, Formation basically cites the FAR and advises the reader that VA uses SPQs.

    Via google, I was able to find some solicitations whose purpose was to create SPQs. Here is the best of the group: https://voa.marad.dot.gov/programs/ship_dis...p%20Disposa.pdf.

    Here is some text from the solicitation issued to create SPQs:

    Quote

    Pool of Standing Quotations

    1. MARAD issues RFQ DTMA1Q05006 requesting standing quotations for MARAD ship disposal contracts.

    2. Vendors may submit a new quotation, including technical proposal, at any time from the date the RFQ is posted until six weeks

    prior to December 31, 2005.

    3. MARAD will continuously evaluate proposals. Taking into consideration its workload at the time, MARAD will try to evaluate

    quotations as they are received. In any six-week period starting from the RFQ posting date, domestic vendors may expect an initial

    evaluation of their quotation within six-weeks from the date the quotation is submitted. The evaluation period for quotations

    involving vessel exports will be determined on a case by case basis.

    4. Based on the criteria set forth in this RFQ, MARAD will evaluate each proposal to determine whether it is either technically

    acceptable, technically unacceptable but susceptible to being made technically acceptable or technically unacceptable.

    5. MARAD shall advise the vendor of its evaluation results.

    (a) Technically unacceptable proposals - These proposals will receive no further consideration from MARAD.

    (B) Technical proposals which are unacceptable but susceptible to being made technically acceptable - MARAD will initiate

    discussions on these proposals to determine whether or not they can be made technically acceptable.

    © Technically acceptable proposals - These proposals will be included in the pool of Standing Quotations and allowed to

    submit revised price quotations for the disposal of specific obsolete vessels when requested by MARAD. These offerors will be asked

    to submit completed Representation and Certifications (FAR clause 52.212-03)

    Use of Standing Quotations to Select Awardees

    1. MARAD selects ship(s) for dismantling (generally MARAD shall dispose of its high priority vessel first).

    2. MARAD requests revised price quotations, schedule data and technical compliance plan updates from vendors in the pool of

    standing quotations.

    3. Vendors submit revised price quotation including maximum discounts and economies of scale as applicable along with their

    proposed scheduling data, taking into account all existing and planned work in their facility during the proposed timeframe, and

    updates to their technical compliance plan that provides new data to their original TCP submittal or provides processes and

    methodology updates specific to their proposed offer.

    4. MARAD evaluates the revised price quotations, schedule data and technical compliance plan updates in accordance with the

    Evaluation Criteria to identify the quote or quotes that represents apparent best value to the Government.

    5. MARAD may negotiate with the vendor(s) that represent apparent best value to the Government.

    6. MARAD makes award to the selected vendor(s).

    Unquote

    In this case, the SPQ appears to be a BPA held by a contractor on a type of Qualified Products or Services List.

    I did something similar years ago using BPAs. In those cases, we had standing price quotes for fresh fruits and vegetables to be delivered to Navy ships making port calls.

  7. Napolik, I'm no expert and have no practical experience on which to draw, but might FAR 13.103 on standing price quotations provide a potential hook?

    Perhaps, it depends if there really is a mechanism in place describing the standing price quote and the procedures for using it. I doubt one can designate a website, on an ad hoc basis, to be a standing price quote.

  8. Napolik, We didn't actually say that we would award to the quoter who submitted an acceptable quote. We said that we would evaluate quotes on the basis of X criteria. I can't quote the actual language because it may reveal who we are, but our RFQ does not say, "Gov't would issue a purchase order to that firm submitting an acceptable written quote." Does that make a difference?

    1. Did the solicitation provide an exemption from a requirement to submit a quote?

    2. Did you comply with FAR 13.106-2 (a)(2):"Quotations or offers shall be evaluated on the basis established in the solicitation."?

    3. Did the solicitation state that the contracting officer reserved the right to evaluate websites to determine acceptability and price?

    If the answer to any question is "No", I believe you would lose a protest.

  9. Yes. Quotes are not offers so there's nothing binding with a quote. The government makes the offer when it selects a source and issues a purchase order. What you have are quotes from sources that responded to your synopsis and another quote from your phone call/website referral. So evaluate the sources, select the most advantaheous, and issue the order.

    Ffed, I do not agree with your assessment and conclusion.

    I assume that the RFQ basis for award stated that the Gov't would issue a purchase order to that firm submitting an acceptable written quote and the lowest price or best value.

    How can the contracting officer award a purchase order to Company X if it failed to submit a quote with the information required to determine its acceptability and price? Apart from the discussion of Use of Standing Price Quotations, FAR Subpart 13.1 states that a contracting officer will evaluate quotes on the basis established in the solicitation. See FAR 13.106-2 (a)(2):

    Quote

    13.106-2 -- Evaluation of Quotations or Offers.

    (a) General.

    (1) The contracting officer shall evaluate quotations or offers --

    (i) In an impartial manner; and

    (ii) Inclusive of transportation charges from the shipping point of the supplier to the delivery destination.

    (2) Quotations or offers shall be evaluated on the basis established in the solicitation.

    Unquote

    If the solicitation did not state that the contracting officer reserved the right to evaluate websites to determine acceptability and price, how can the contracting officer issue a PO to Company X?

    If Company X is better and cheaper than the firms submitting quotes, it may be possible to cancel the solicitation, to establish different requirements for gathering and assessing contractor technical and price information, and to state a different basis for award. GAO has upheld the Gov?t?s right to cancel a solicitation when there is a prospect to obtain lower costs:

    ?In addition, while we have recognized that the potential for cost savings provides a reasonable basis for cancellation, RN Expertise, Inc., B-401020, Mar. 27, 2009, 2009 CPD para. 63 at 4?? JER 370 Third Street, LLC, B-402025.2; B-402541, June 1, 2010.

    Without cancelling the RFQ and reissuing a modified one, I do not know how Company X can receive the purchase order.

    Please provide a bit more support for your position.

  10. Some of my co-workers feel strongly that all solicitations under this section must be posted to e-Buy even if the amount is modest (say$1m) and you have conducted extensive market research that shows 3 long established vendors that supply the required service as the main part of their business and who are willing to submit a proposal. e-Buy is not a required system (unless brand name specifications are being asked for). My position is that CO's may send the solicitation to the identified 3 vendors and be fully compliant with the FAR. Please provide your thoughts about this issue.

    Thanks,

    dhdsas

    You are not required to use eBuy, unless you are in DoD or another agency that requires use of e-Buy in certain circumstances (e.g. >$150k). Check your agency regulations to see if you must use it.

  11. napolik,

    My interpretation is that conditions (2) (paper solicitation) and (3) (not using procedures at FAR 12.603) still must be met to use the SF 1449 below the SAT.

    I agree. The juxtaposition of the sentence - "Use of the SF 1449 ... threshold." - with condition (a) (3) had me scratching my head for awhile. To facilitate understanding of the FAR guidance, I would make that sentence a separate paragraph in section 12.204.

  12. FAR 12.603b When using the combined synopsis/solicitation procedure, the SF 1449 is not used for issuing the solicitation.

    To the original question one agency i worked at used the see block 31c method. We would also use period of performance start and end dates.

    What do you make of the last sentence in 12.204(a)(3)?

    12.204 -- Solicitation/Contract Form.

    (a) The contracting officer shall use the Standard Form 1449, Solicitation/Contract/Order for Commercial Items, if

    (1) the acquisition is expected to exceed the simplified acquisition threshold;

    (2) a paper solicitation or contract is being issued; and

    (3) procedures at 12.603 are not being used. Use of the SF 1449 is nonmandatory but encouraged for commercial acquisitions not exceeding the simplified acquisition threshold.

  13. Is there a difference between designating and appointing (or delegating) an Ordering Official to merely place orders? If the order(s) have already been determined fair and reasonable by the CO at time of award, and the Ordering Official(s) are specified in the BPA or contract, along with the terms and conditions of their ordering authority, why does/should the CO issue an appointment letter?

    Different agencies handle appointments of cardholders and ordering officers in different ways. Some require the issuances of warrants and letters of appointments to ordering officers (e.g. Navy and Marines); others don't. In any case, I have always issued letters of appointment to ordering officers and to CORs to set out clearly for them their responsibilities. The list of responsibilities varies depending upon whether the ordering officer/ COR is handling supplies or services. After issuing a letter to an ordering officer or COR, I have always conducted reviews annually or semi-annually to assure that they are fulfilling their responsibilities.

  14. Don, agree and Vern thanks for pointing out the oversight on my part.

    To Don's point above, do you agree than that a CO can consider a late submission (if within the criteria described herein)? This post leads me to believe you don't think so.

    See 15.208 (B)(1) (iii) and (B)(2):

    (B)

    (1) Any proposal, modification, or revision, that is received at the designated Government office after the exact time specified for receipt of proposals is ?late? and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition ; and?

    (i) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or

    (ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of proposals and was under the Government?s control prior to the time set for receipt of proposals; or

    (iii) It was the only proposal received.

    (2) However, a late modification of an otherwise successful proposal, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.

  15. Vern - Internal policy says, "Ordering Official: An individual identified in a BPA or IDC as one authorized to place orders under the BPA or contract. Ordering Officials do not have acquisition authority and can only place orders as specified in the BPA or contract." Is it safe to say this is left up to agency procedures? Does this violate the FAR in any way if I, as the CO, designate ordering officials under either a BPA or IDC to place orders; whether above or below the MPT?

    Yes. No.

    I recommend that you designate the ordering officer (OO) in a letter and that you confirm the appointment in the BPA or contract. Before appointing the OO, you should obtain information on the prospective OOs qualifications to assure he or she is capable of performing the OO function competently. See here for a discussion of OOs as COs: http://www.hqmc.usmc.mil/cmpg/usmc_cmpg/Co...rantProcess.htm.

    Some agencies delegate ordering authority to purchase card holders. See here: https://www.navsup.navy.mil/ccpmd/purchase_...pt#911,34,Slide 34.

    I also suggest that your letter set out your expectations for the ordering officer and that you inspect the OO's performance periodically, just as you review CORs.

  16. The CO obligated funds covering the entire option period.

    Then, there is no funding gap. You are obligated to perform the contract through 9/30/11. Having said that, be aware that your contracting officer may give you direction concerning performance should the Gov't shut down at 12:01 AM Saturday morning. The direction could be to suspend performance, reduce performance or continue as if nothing happened. See the separate thread on the impacts of a shut down initiated by Vern Edwards last week.

  17. My option, which commenced 10/01/10, was exercised on 10/01/10 without funding and subject to availability of FY11 funds IAW 52.232-18.

    On 10/18/10 the CO obligated funds for the contract/fiscal year (10/01/10-09/30/11), and incorporated a price increase for an SCA wage adjustment - presumably from its P.L. 111-242 CR apportionment or allocation, which expired after 12/03/10. We continued to perform services during the funding gap.

    I do not understand the facts. Did the contracting officer obligate funds covering the entire option period, or only for the period through 3 December. Please advise.

  18. One of our Task Orders does include 52.241-17 Govt delay of work, but it seems to be the exception.

    best regards, D

    Most clauses governing your task order will be found in the underlying contract, not in the task order. Remember, a contract incorporates the clauses contained in the solicitation signed by the contractor and accepted by the contracting officer. Look in the contract document.

  19. Unfortunately, no.

    One of our Task Orders does include 52.241-17 Govt delay of work, but it seems to be the exception.

    best regards, D

    I just looked at the current solicitation for MOBIS. See it here: https://www.fbo.gov/index?s=opportunity&amp...re&_cview=1.

    You will find 52.212-4 in it along with a number of other provisions and clauses. See page iii for 52.212-4.

    I am surprised that it is not in your version of the MOBIS contract.

  20. napolik wrote:

    At first blush, I don?t think you can support the prohibition, but I am not an ITer. Is subcontracting for data storage prohibited now? Don?t Gov?t contracts for data storage on terra firma present the same issue you raise? Would you not have the same remedies against a prime that subcontracted the work?

    My answer:

    Well, to be practical, even though the agency could pursue its remedy against the prime ktr, in reality, the agency would be going without its precious Government Data, probably for months or years (litigation can be very slow), and in essence, the agency could not perform its mission.

    It appears that subcontracting in the Cloud is not uncommon in the commercial world: https://www.infosecisland.com/blogview/8738...-of-Rights.html

  21. Previously there was a thread on Any Subcontracting Limits on Unrestricted Procurements, see http://www.wifcon.com/discussion/index.php?showtopic=732.

    To take it a step further, my question is, Can an agency deliberately set a subcontracting limit on a procurement? Can an agency require that the prime contractor not subcontract at all? I'm thinking that the standard for whether this is OK or not is if the requirement is "reasonable."

    Here is an example in which a blanket restriction on subcontracting might be considered reasonable: for IT cloud computing IaaS/PaaS/SaaS services, including data storage and maintenance, it is quite a risk for an agency to allow a contractor to subcontract out this work, because what if the subcontractor refuses to return government data to the agency? Then the agency will lack privity of contract with the sub and it will likely halt the agency's performance of its mission.

    Does anyone see anything wrong with doing it this way?

    Any requirement (i.e. restriction) established by the Government can be challenged as non-competitive. If the requirement is challenged, the Gov?t must demonstrate that the requirement is reasonably related to its needs. See this extract from a GAO decision published today - Airforce Turbine Service, Ltd., B-404478, Feb. 16, 2011:

    Quote

    The determination of a contracting agency's needs and the best method of accommodating them are matters primarily within the agency's discretion. Systems Application & Techs., Inc., B-270672, Apr. 8, 1996, 96-1 CPD para. 182 at 3. However, where a protester challenges a specification as unduly restrictive of competition, we will review the record to determine whether the restrictions imposed are reasonably related to the agency's needs. Id.; LBM, Inc., B-286271, Dec. 1, 2000, 2000 CPD para. 194 at 3.

    Unquote

    If you can demonstrate that a prohibition against subcontracting in the Cloud is necessary to meeting your agency mission, you will be OK.

    At first blush, I don?t think you can support the prohibition, but I am not an ITer. Is subcontracting for data storage prohibited now? Don?t Gov?t contracts for data storage on terra firma present the same issue you raise? Would you not have the same remedies against a prime that subcontracted the work?

  22. Napolik, Thanks for your quick reply. Yes, you are correct, I have found guidance on the template provided by the Marine Corps but, the "if applicable" caveat seems to raise its head throughout the directions. This is the part that is throwing me for a loop. The sample BCMs, I have managed to collect, have a lot of material that common sense tells me I dont need to include in mine...but I don't want to use my common sense and get stepped on, so I am hoping I can get advice on what is the most critical information needed and I don't get too wordy. I guess what I am looking for is to see if a streamlined BCM exists for such situations; We intend to award without discussions. Thanks for yout help.

    You need to get guidance from someone in your office. Ask your boss what he or she expects to see in the BCM.

  23. I am a contrats specialist intern with the Marine Corps and attempting to complete my first BCM. I have been told this BCM should be relatively easy but the samples I have available are from extremely large and more complicated aquisitions. The template I have to follow applies to all BCMs so there are parts I am sure are not applicable to me. I am looking for a sample BCM that is closer to my situation, or advice on what parts are applicable for my situation.

    Here are the facts:

    LPTA; commercial item; competitive; three proposals recieved; One proposal passed technical evaluation; Two proposals did not. The proposal that passed technically is also the lowest priced. Determining who to award to is easy; constructing a proper BCM is my problem. I appreciate all help.

    BoomerMan...(ex-bubblehead)

    Is BCM an acronym for Business Clearance Memorandum? If so, the Marine Corps should have guidance on the form and content of BCMs. Each agency, sometimes each contracting office, provides this guidance to its contracting officers.

    Take a look here: http://www.hqmc.usmc.mil/cmpg/usmc_cmpg/bcm.htm.

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