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napolik

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  1. The second part of this question deals with estimating antecedent liability funding. The Red Book concludes that the contracting officer must estimate the expected net additional obligations to ensure that available appropriations are not committed to other purposes. Based on that cite in the Red Book, our Financial Manual has been revised to state that the contracting officer must provide an estimate for all future ECP changes. I do not believe this is realistic or appropriate. Again, in my mind changes are driven by the PM based on technical and funding considerations. Some contracting officers here have refused to provide these antecedent liability estimates. I was wondering how other agencies have dealt with estimating antecedent liability for major programs. In my mind, it's a task that needs to be performed by the PM but unfortunately the folks here point to the Red Book as their authority for making the contracting officer responsible.

    You are in a tough situation. In my experience, some project managers always set aside some percentage of contract funds to cover surprises. In other cases (e.g. ship repair), I actually obligated monies on the contract to cover growth work or things less foreseeable (e.g. Gov't delay).

    In the first case, I never asked the PMs how many $$ they stashed away. In the second, I generally used a % based upon experience.

    Can you not ask PMs to stash away a % to cover the antecedent liability? I cannot suggest a % as I do not have any empirical basis to make one. But, your money folks might know.

  2. This was posted by "Nell" on the Blogs. I am posting it here.

    "Under the Bona Fide Needs Rule discussion, B.7. Contract Modifications and Amendments Affecting Price, WIFCON states that "in order to avoid over-obligating the original appropriation, the contracting officer must estimate the expected net additional obligations to insure that available appropriations are not committed to other purposes." WIFCON then references Comp. Gen. 609, 612 (1982) for cost-reimbursement contracts and B-192036, Sept 11, 1978. I find the same information in the GAO Red Book. However, as I read the '78 decision, I cannot find where the contracting officer (CO) is specifically identified as the individual responsible for estimating antecedent liability (AL) funding. The decision states that "there should be an administrative reservation of sufficient funds to cover the excess of the estimated increases over decreases resulting from variations...". And, the decision concludes by stating that "the contracting agency is responsible for instituting administrative controls...". Clearly, the contracting agency encompasses all those supporting a contractual requirement but does not in and of itself apply solely to the contracting officer.

    Is there some other regulatory or legal basis for requiring the contracting officer to estimate AL? In my 25+ years of contracting experience, the responsibility for estimating antecedent liability or management reserve has always been a program manager (PM) function. In most situations, contracting officers do not sit on Change Control Boards. Often, until a funded PR for a change arrives on the CO's desk, the CO does not know about it. And, frankly, if I were a PM, I would not want the CO estimating the amount of my budget that is going to be spent on changes.

    In the agency where I work, the Financial Manual has been revised to state that the CO must provide an estimate for all future ECP changes. The COs do not make technical decisions on the program and they do not control the budget, but somehow they are being made responsible for estimating changes. I concur that the CO decides whether changes are in or out-of-scope. However, most PMs and Fiscal folks with appropriations law training understand the principle and are able to make planning and budgeting decisions in this regard. It may be that the Red Book used the CO nominally only intending that the reservation of funds be performed by the agency. Unfortunately, the specific naming of the CO as the individual responsible has had the consequence I described above."

    32.702 -- Policy.

    No officer or employee of the Government may create or authorize an obligation in excess of the funds available, or in advance of appropriations (Anti-Deficiency Act, 31 U.S.C. 1341), unless otherwise authorized by law. Before executing any contract, the contracting officer shall --

    (a) Obtain written assurance from responsible fiscal authority that adequate funds are available or

    (B) Expressly condition the contract upon availability of funds in accordance with 32.703-2.

    1.602 -- Contracting Officers.

    1.602-1 -- Authority.

    (a) Contracting officers have authority to enter into, administer, or terminate contracts and make related determinations and findings. Contracting officers may bind the Government only to the extent of the authority delegated to them. Contracting officers shall receive from the appointing authority (see 1.603-1) clear instructions in writing regarding the limits of their authority. Information on the limits of the contracting officers? authority shall be readily available to the public and agency personnel.

    (B) No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.

    1.602-2 -- Responsibilities.

    Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall --

    (a) Ensure that the requirements of 1.602-1(B) have been met, and that sufficient funds are available for obligation;

    (B) Ensure that contractors receive impartial, fair, and equitable treatment; and

    ? Request and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate.

  3. My 2-cents: As an 1102 with DoD, I am beleaguered by the overwhelming financial software/systems now required in Contracting (particularly at base-level). In addition to the previously named systems, other DISA-bred contracting/financial intersect technologies that 1102s must endure, also include: ?ABSS? (to develop, process funding documents) into PD2? which, in-turn, pushes financial data into ?IAPS?, for storage in ?EDA/EDM? for retrieval via ?EFR?. All of these are accomplished before DISA?s ?WAWF? even comes into the equation. Then, the fun really amps up!! We, (by the use of WAWF) are alienating new vendors with this highly cumbersome finance-based software program. In the past month my office has lost several more good, small-business sources --- as they were all frustrated by WAWF and bailed. The basic construct for these systems is for financial data mining purposes --- albeit via contract related data. (Providing only the slightest degree of actual Contracting products.) If this level of systemic "interaction" were thrust upon senior leadership to suffer through (merely to accomplish a single, simple, quick task), I feel fairly certain that some serious revisions/reductions would be imminent.

    From personal experience, straight-forward acquisition functions that could previously be done in less than an hour, now (with the benefit of so many systems to ?help? me), takes on average of up to 3-hours. Where are the systems? performance proficiencies here?? the systemic LEAN concepts / Smart Ops / Root Cause Analysis fish-bones to alleviate this multifarious PC ?Hydra??

    Does anyone think an 1106 Procurement Assistant could create documents in SPS or other "Automated Procurement Systems", could pull documents from ABSS, could wrestle with WAWF or could do the keystrokes necessary for data entry in PPIRS?

  4. 8a is awarded an IDIQ for a base and 4 option years. In year 2 the firm graduates from the 8a program. Can optional years 2,3 and 4 be awarded if the firm is no longer in the program?

    Based upon the following extract from the CFR, I believe you can exercise the option. Check your agency regs to see if there is a discussion of what constitutes "best interests of the Government". Also, check your agency regs to see how you report the transaction in FPDS. You may not be able to code the action as one with an 8(a) firm.

    This is from 13CFR124.514, effective 1 January 2009. Paragraph b appears to apply to you.

    Quote

    TITLE 13--BUSINESS CREDIT AND ASSISTANCE

    CHAPTER I--SMALL BUSINESS ADMINISTRATION

    PART 124_8(a) BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS STATUS

    DETERMINATIONS--Table of Contents

    Subpart A_8(a) Business Development

    Sec. 124.514 Exercise of 8(a) options and modifications.

    (a) Unpriced options. The exercise of an unpriced option is

    considered to be a new contracting action.

    (1) If a concern has graduated or been terminated from the 8(a) BD

    program or is no longer small under the size standard corresponding to

    the SIC code for the requirement, negotiations to price the option

    cannot be entered into and the option cannot be exercised.

    (2) If the concern is still a Participant and otherwise eligible for

    the requirement on a sole source basis, the procuring activity

    contracting officer may negotiate price and exercise the option provided

    the option, considered a new contracting action, meets all regulatory

    requirements, including the procuring activity's offering and SBA's

    acceptance of the requirement for the 8(a) BD program.

    (3) If the estimated fair market price of the option exceeds the

    applicable threshold amount set forth in Sec. 124.506, the requirement

    must be competed as a new contract among eligible Participants.

    (B) Priced options. The procuring activity contracting officer may

    exercise a priced option to an 8(a) contract whether the concern that

    received the award has graduated or been terminated from the 8(a) BD

    program or is no longer eligible if to do so is in the best interests of

    the Government.

    © Modifications beyond the scope. A modification beyond the scope

    of the initial 8(a) contract award is considered to be a new contracting

    action. It will be treated the same as an unpriced option as described

    in paragraph (a) of this section.

    (d) Modifications within the scope. The procuring activity

    contracting officer may exercise a modification within the scope of the

    initial 8(a) contract whether the concern that received the award has

    graduated or been terminated from the 8(a) BD program or is no longer

    eligible if to do so is in the best interests of the Government.

    Unquote

  5. napolik,

    I agree with this:

    But what's also needed are a few 1102's that understand not only contracting but automated systems such as SPS and financial ones. We can't expect finance people to understand contracting needs nor can an entire office of 1102s, much less 1105s and 1106s, understand finance needs. Whether we like it or not, contracting and financial professional are highly dependent on automation and integrated systems. Some people in the contracts office to bridge that gap in the design, development, and operation of systems are required.

    Ok, a few managers need to understand the interfaces between finance and contracting, but that does not mean working level 1102s need to spend inordinate amounts of time fighting with SPS. Back when my hair was brown and document copies were produced via carbon paper, a document preparation branch produced solicitations and contracts. 1106s did DD 350s, not to mention drafts of solicitation amendment, contract awards, and contract modifications. 1102s focused on the contents of solicitation and contracts, source selection processes and business deals.

    Why cannot these clerical functions be done today by staff supporting 1102s just as they were 40 years ago? Given today's IT infrastructures, this should be easy to do.

    k

  6. Last week I visited a contracting office, and the COs and contract specialists complained about having to use three different data systems to report contract actions. They said that some of the information is overlapping, so that they are inputting the same information more than once. I should add that these are first-rate people who know contracting very well. They are the most knowledgeable working-level people that I have encountered in a while. They are not mere whiners.

    My impression after talking to a lot of 1102s is that they must devote a lot of time to inputting report data and that much of it is financial in nature, rather than strictly contractual. I am told that all of the reporting takes up a lot of their time and keeps them from doing other things, like negotiating for better prices and administering their contracts.

    Are others of you having similar experiences?

    The automated procurement systems, whether or not integrated with financial management systems, have clericalized the very contracting workforce Congress and procurement managers sought to professionalize starting in the 1990s. While I do not have empirical data, only observations, I believe highly paid 1102s spend much, or most, of their time chasing electrons through the system in a vain attempt to create comprehensible procurement documents. The more serious consequences of this misdirected effort include the 1) issuance of documents that can't be read or understood, and 2) the creation of a demoralized workforce. The most serious consequence is the creation of a "professional" workforce that does not know the contents of the provisions and clauses contained in the documents it issues and that spends more time finding workarounds for obstacles in the procurement system than in defining and achieving good business deals.

    The solution is to turn the keystroke and mouse movements back to a support staff of 1106s and to hire 1105s to do simplified acquisitions. Let?s build a professional workforce that can apply the regulations and can create good business deals.

  7. DFAR 204.7103-1(a) supports this conclusion.

    Are you saying that if you have a cost reimbursable contract that you don't need a funding or payment clause? Or are you saying that you tailor those clauses?

    I think we will agree that you can not tailor the payment clause in 52.212-4, but I guess it would be OK for a new solicitation.

    DFARS subpart 204.7100 prescribes policies and procedures for assigning contract line item numbers. It does not prescribe clauses to be used.

    You fully fund the travel line item when you award the contract or place the order. You do not need a funding provision.

    You write a clause tying reimbursement of travel to the relevant parts of FAR 31.205-46. How does that conflict with 52.212-4?

    There is no need to tailor the payment paragraph of 52.212-4.

  8. We are a subcontractor, the prime is including a travel clause in the sub. In the clause the prime wants us to comply with the Federal Travel Regulations. We are a non-profit, therefore we comply with A-122, and this circular states we follow our own travel policy, not FTR. A-122 also says that if you are a subcontractor, you still comply with the circular. The prime is saying it doesn't matter and since they have to comply with FTR (they are a large biz), then we have to.

    Is there any case law that states that subs follow there own cost principles and not the primes? I think the prime is wrong, but it's hard to argue when they don't care what A-122 says. Is there any other place that would back up my arguement? Thanks all.

    Generally, the prime is flowing down the requirement of its contract with the Gov't. What does the prime contract say about travel?

    What type of contract is the prime contract- cost reimbursable?

    What does the proposed subcontract travel clause say about travel?

  9. With respect to 52.232-20 Limitation of Cost and 52.232-22 Limitation of Funds, these clauses are listed in the FAR Matrix as REQUIRED when applicable. You will need a funding clause one way or the other when you have a cost reimbursable CLIN/contract. They are not OPTIONAL.

    The clauses are not applicable.

    The travel line item is funded upon award. Or, if the contract is an ID type, it is funded when the orders are placed.

  10. I think you would need 52.216-7 Allowable Cost and Payment.

    If you already have a commercial fixed priced contract with the 52-212-4 clause you can not unilaterally add cost reimbursable CLINs. The addition and/or ommsion of clauses would have to be bilaterally agreed for any cost reimbursable work under an exisiting fixed price contract.

    Why do you need the clause 52.216.-7? Do you have a FAR cite?

    Of course, contracting officers cannot add new work unilaterally. If travel is being added, then both parties to the contract must sign the contract mod.

    I suspect we are at the solicitation stage. The solicitation contains the travel clin - with a maximum amount - and any SOW and relevant clauses. The contractor signs the 1449; the contracting officers countersigns. Voila! The contract is created with a travel line item, a travel $$ max, a travel SOW and a clause covering payment of travel.

  11. Under what circumstances (if any) would it be appropriate to inlcude FAR Clauses 52.232-20, Limitation of Cost and 52.232-22, Limitation of Funds in a fixed price service contract with a cost-reimbusrable travel CLIN? Travel will make up less than 10% of the total contract price, if that is a consideration.

    Please explain why or why not it is appropriate so I can educate myself - this is a new one for me. Thanks in advance for any help.

    I do not believe that either of the clauses should be used in your circumstance because they are not designed to address a single travel reimbursement line item in a FP contract and because there are more efficient ways to control the travel costs.

    Look as the prescriptions for the two clauses:

    52.232-20 Limitation of Cost.

    As prescribed in 32.705-2(a), insert the following clause in solicitations and contracts if a fully funded cost-reimbursement contract is contemplated, whether or not the contract provides for payment of a fee. The 60-day period may be varied from 30 to 90 days and the 75 percent from 75 to 85 percent. ?Task Order? or other appropriate designation may be substituted for ?Schedule? wherever that word appears in the clause.

    52.232-22 Limitation of Funds.

    As prescribed in 32.705-2(B), insert the following clause in solicitations and contracts if an incrementally funded cost-reimbursement contract is contemplated. The 60-day period may be varied from 30 to 90 days and the 75 percent from 75 to 85 percent. ?Task Order? or other appropriate designation may be substituted for ?Schedule? wherever that word appears in the clause.

    Each clause addresses too many circumstances and rules that do not apply to your case. One of these is the payment of fees. I would not pay fees on travel.

    Instead of using either of the Limitation clauses, I suggest you 1) specify in the pricing schedule the maximum amount of dollars available for the travel line item; 2) write a brief SOW or clause for the line item stating that there is a maximum beyond which no travel will be reimbursed; and 3) include, either in the SOW or in a clause, the pertinent restrictions set out in FAR 31.205-46, Travel costs (e.g. compliance with JTR).

  12. This is my first post. We are contemplating using LPTA for a Design Build to be competed among three IDIQ contractors. We have very little time, so we have thought of opening the prices, then giving the technical package of the lowest priced proposal to the evaluation team to have them say whether he is technically acceptable. the evaluation team will not be told what the other prices are.

    I note the concerns mentioned above about not opening the techanial proposals of the other contractors, but I think it is best that the evaluation team not be influenced by higher, or lower, quality proposals in grading. It's either go or no-go. Has anyone actually done this yet? If so., what was the result.

    Marv, I believe your approach is fine. However, let me add a suggestion. If you must send your source selection decision to a higher level for approval, I suggest you check with someone at the higher level to assure they support your approach. I have run across instances where the HQ did not like the approach you describe.

  13. New requirement Solicitation (rfp) released with requirement to have offeror provide past performance information from similar projects.

    Interested Contractor requests the requiring activity COR on an earlier, similar project to provide past performance on that project as part of their proposal preparation.

    The COR is a member of the Technical Evaluation Panel on the new requirement. Is there any conflict or impropriety with this COR providing the past performance for this offeror and serving on the panel for the new requirement?

    Yes, the COR may participate. If the COR does particpate and if he or she possesses knowledge of one of the competitor's performance, he or she must consider the information if it is relevant to the work to be performed.

    ?While we understand the Navy's rationale for initially not sending out a past performance survey on the PHNS contract, we do not understand the Navy's failure to consider the information in its possession regarding GTSD's performance on that contract. The record shows that this contract was deemed so relevant to the requirements at issue that it served as a basis for the government estimate. Post-Negotiation Business Clearance Memorandum at 54. Moreover, the COR for that contract, the individual who eventually completed the past performance survey, was a member of the TEB for this procurement. PHNS Past Performance Survey; Pre-Negotiation Business Clearance Memorandum at 6. Under the circumstances, the agency could not reasonably ignore personally known information about GTSD's prior experience on the PHNS contract merely because the firm did not submit a Contractor Past Performance Data Sheet for that contract. See Safeguard Maintenance Corp., B-260983.3, Oct. 13, 1995, 96-2 CPD para. 116 at 12. While there is no legal requirement that all past performance references be included in a valid review of past performance, some information is simply too close at hand to ignore. See International Bus. Sys., Inc., B-275554, Mar. 3, 1997, 97-1 CPD para. 114 at 5.?

    This is an extract from GTS Duratek, Inc. B-280511.2; B-280511.3, October 19, 1998.

    The decision is set forth here: http://redbook.gao.gov/17/fl0084720.php.

  14. I am in the planning stages of a multiple award IDIQ recompete for a travel management service and am interested in learning about source selection downselect best practices while I wait for Amazon to deliver my newly purchased copy of the Source Selection Answer Book (thanks Vern!). The service is complex and can interface with variety of agency systems as defined and needed by the agency--ERP, financial systems, email, etc. The government's travel market is finite--only so many travel dollars are available each year--but the government's travel rules are many that the service will have to account for (and to make it more complex, agencies have the ability to further tailor some of the rules to suit their needs and service providers will have to meet FISMA requirements). Agencies are interested in choice among service providers, but there isn't enough business to make the effort financially viable among industry providers if several awards are made. Everything I've been able to find on the topic of downselect approaches centers around R&D or construction and I'm hoping to be able to use some best practices around this on my effort. I want to be able to use a phased evaluation approach to get to meet both agency needs for choice and industry needs for ROI (and my needs for an efficient procurement). Any best practices out there?

    In the absence of more detail on the prior competition and the SOW, I have two recommendations. First, practice KISS. Think about using very few evaluation factors (e.g. price, experience and past performance). Second, do market research. Call the competitors for the current contract. Ask them what they thought about the types and number of evaluation factors, the basis of the award and any other aspect of the competition (e.g. the SOW and Ts and Cs).

  15. No. Unfortunately. If it's possible to do a timeframe extension, couldn't I also add 52.217-9 at the same time?

    It is easy to become confused when reading the FAR coverage of options. Some - like 52.217-7 - deal with increased quantities. Others deal with extension of the contract term. Absent 52.217-9, you need to write a J&A to extend the contract. Are you sure that your order did not incorporate the -9 clause by reference? Was it in the solicitation but not picked up when preparing the award of the order?

    How is the contract term identified in your order?

  16. Hi. I have a question concerning a GSA order for hardware. The CLIN structure is set up based on five years of requirements identified as base CLINs with option CLINs for each fiscal year. The order includes clause 52.217-7 "Option for Increased Quantity?Separately Priced Line Item" which provides a number of days given to exercise the next set of option CLINs. The customer has indicated there is no need to exercise the next fiscal years requirements, but there is still a need for the following year.

    My question is: Is it possible to extend out the validity time to exercise the next Option CLINs for a whole year to keep the contract alive? Would I have to limit the contract to five years if the modifying the timeframe carries the contract out beyond the five year limit for a supply-type contract as stated in FAR 17.204(e)?

    Thanks.

    Does your order include this clause: "52.217-9 OPTION TO EXTEND THE TERM OF THE CONTRACT (MAR 2000)"?

  17. I have 232.501-1. I would like to set a payment method based on accepted supplies and services (partial deliveries). Is such a payment method in conflict with the progress payment clause? Or does the progress payment clause merely limit the amount of the last payment based on final acceptance - as stated in the clause it is not less than 20%?

    Please look at the definition of "contract financing payment" in FAR 32.001. Paragraph 92) of the definition says this

    "Contract financing payments do not include--

    (i) Invoice payments;

    (ii) Payments for partial deliveries; or

    (iii) Lease and rental payments."

    You should get paid the unit price for each unit of the supplies or services you are providing. You do not need to deliver all the units to invoice and receive payment for deliveries / performances. Check the payment clause of your solicitation. There are several clauses depending upon the method of acquisition being used. In any event, for a firm fixed price contract, the clause should say will get paid for delivery of supplies accepted or for services rendered and accepted. If your solicitation has the DFARS clause, ask the CO why you cannot propose firm fixed unit price for the items.

  18. Now agencies are making the multiple awards to comply with the wishes of Congress, but essentially making the task orders single award IDIQs. I don't know that such a practice is legal (or illegal), but I expect it to catch on since Congress recently made it more difficult to enter into single award IDIQ contracts over $100,000,000. I give it a few years before Congress catches wind of this (if they haven't already), and requires competition for IDIQ task orders (i.e., task orders that are essentially single award IDIQs) under IDIQ contracts or somehow cracks down on the practice. We could also see a decision stating that the practice doesn't provide all awardees a fair opportunity.

    For FY 10, DOD has revised the way it develops its competition goals to consider competition for task orders issued under multiple award contracts. It has also modified its data collection mechanism to capture information on the degree of competition obtained when issuing a task order under a multiple award contract. If only one source is solicited, the action is non-competitive.

  19. Vern, the Navy refers to multiple award ID/IQ contracts as "Multiple Award Contracts" ("MAC's or a "MAC" for short).

    While Monsieur Edwards is correct as to the FAR definition of MAC, the acronym is commonly used in DOD to represent "Multiple Award Contract". Here is an extract from the DFARS:

    "216.501-1 Definitions.

    ?Multiple award contract,? as used in this subpart, means--

    (1) A multiple award task order contract entered into in accordance with FAR 16.504©; or

    (2) Any other indefinite-delivery, indefinite-quantity contract that an agency enters into with two or more sources under the same solicitation."

  20. A DoD contractor has a noncommercial time-and-materials contract above the simplified acquisition threshold. The contractor intends to enter into a fixed-price subcontract that exceeds both the simplified acquisition threshold and 5% of the estimated cost of the contract. Is the contractor required to provide advance notification before awarding the subcontract?

    Interesting question.

    If the prime has an approved purchasing system, FAR 44.201-1 (a) requires consent for subcontracts specifically identified by the contracting officer in the Subcontracts clause of the contract - FAR 52.244-2. The Subcontracts clause expands the requirement for consent and establishes a requirement for advance notification when consent is required.

    Paragraph (e) (1) of the Subcontracts clause says that ?The Contractor shall notify the Contracting Officer reasonably in advance of placing any subcontract or modification thereof for which consent is required under paragraph (B), ©, or (d) of this clause??

    Paragraph (B) of the clause says

    ?(B) When this clause is included in a fixed-price type contract, consent to subcontract is required only on unpriced contract actions (including unpriced modifications or unpriced delivery orders), and only if required in accordance with paragraph © or (d) of this clause.?

    Since the prime contract is a T&M contract, paragraph (B) does not apply.

    Paragraph © says

    ?c) If the Contractor does not have an approved purchasing system, consent to subcontract is required for any subcontract that-

    (1) Is of the cost-reimbursement, time-and-materials, or labor-hour type; or

    (2) Is fixed-price and exceeds?

    (i) For a contract awarded by the Department of Defense, the Coast Guard, or the National Aeronautics and Space Administration, the greater of the simplified acquisition threshold or 5 percent of the total estimated cost of the contract?.

    So, if the prime does not have an approved purchasing system, it must provide advance notification per clause paragraph (e) (1).

    Paragraph (d) says

    ?(d) If the Contractor has an approved purchasing system, the Contractor nevertheless shall obtain the Contracting Officer?s written consent before placing the following subcontracts:

    ________________________________________________________________________

    ________________________________________________________________________

    _______________________________________________________________________?

    So, consent would be required if the contracting officer required consent of a fixed-price subcontract that exceeds both the simplified acquisition threshold and 5% of the estimated cost of the contract. If consent is required, clause paragraph (e) (1) requires advance notification.

    To summarize, consent would be required either if the contracting officer required consent in clause paragraph (d) or if the prime contractor does not have an approved system as described in clause paragraph ©. If consent is required per paragraphs © or (d), clause paragraph (e) (1) requires advance notification.

  21. I spoke with the GAO rep who understands well the significance of the issue. He said that the GAO attorneys are still looking at the issue and that he expects an answer in another day or two.

    The GAO "informal" opinion is that a shift in contract type is outside the scope of the competition. Since GAO no longer issues "advance opinions" on protest issues, only appropriations issues, we will not receive a definitive opinion until GAO receives and decides a protest on this point.

  22. Can someone please explain how price can be the third most important factor in descending order of importance but price is equal to all non-price factors in overall importance? I can't seem to envision where, if design and performance capability are both more important than price, then price = both of the more important factors...

    Industry has repeatedly told our agency that when we state that price = all the other factors combined, then price must be the most important individual factor.

    In a recent protest (Clark/Caddell Joint Venture, B-402055, January 7, 2010), the protest decision stated the following: "Under the RFP, proposals were to be evaluated for ?best value? on the basis of the following evaluation factors listed in descending order of importance: ?design technical,? performance capability, and price. RFP at 4 and 5. The two non-price evaluation factors when combined, were equal to price.

    See FAR 15.304 -- "Evaluation Factors and Significant Subfactors" for the requirement to describe relative importance of each factor and ALSO state the relative importance of price with respect to all evaluation factors other than price, when combined.

    "...(d) All factors and significant subfactors that will affect contract award and their relative importance shall be stated clearly in the solicitation (10 U.S.C. 2305(a)(2)(A)(i) and 41 U.S.C. 253a(B)(1)(A)) (see 15.204-5( c)). The rating method need not be disclosed in the solicitation. The general approach for evaluating past performance information shall be described.

    (e) The solicitation shall also state, at a minimum, whether all evaluation factors other than cost or price, when combined, are --

    (1) Significantly more important than cost or price;

    (2) Approximately equal to cost or price; or

    (3) Significantly less important than cost or price (10 U.S.C. 2305(a)(3)(A)(iii) and 41 U.S.C. 253a?(1)( C))."

    Some people erroneously argue that "price or cost" is not a "factor". However, "price or cost" is discussed as a factor under 15.304 ( c). The folks who argue this with me are confused because they only evaluate technical factors, not price. They assume that since price is evaluated differently than the technical factors and by different people that it isn't a "factor".

    15.304 ( c) "The evaluation factors and significant subfactors that apply to an acquisition and their relative importance are within the broad discretion of agency acquisition officials, subject to the following requirements:

    (1) Price or cost to the Government shall be evaluated in every source selection (10 U.S.C. 2305(a)(3)(A) (ii) and 41 U.S.C. 253a( c)(1)(B)) (also see Part 36 for architect-engineer contracts);

    (2) The quality of the product or service shall be addressed in every source selection through consideration of one or more non-cost evaluation factors such as past performance, compliance with solicitation requirements, technical excellence, management capability, personnel qualifications, and prior experience (10 U.S.C. 2305(a)(3)(A)(i) and 41 U.S.C. 253a( c)(1)(A)); and

    (3)

    (i) Except as set forth in paragraph ( c)(3)(iii) of this section, past performance shall be evaluated in all source selections for negotiated competitive acquisitions expected to exceed the simplified acquisition threshold.

    (ii) For solicitations involving bundling that offer a significant opportunity for subcontracting, the contracting officer must include a factor to evaluate past performance indicating the extent to which the offeror attained applicable goals for small business participation under contracts that required subcontracting plans (15 U.S.C. 637(d)(4)(G)(ii)).

    (iii) Past performance need not be evaluated if the contracting officer documents the reason past performance is not an appropriate evaluation factor for the acquisition.

    (4) The extent of participation of small disadvantaged business concerns in performance of the contract shall be evaluated in unrestricted acquisitions expected to exceed $550,000 ($1,000,000 for construction) subject to certain limitations (see 19.201 and 19.1202).

    (5) For solicitations involving bundling that offer a significant opportunity for subcontracting, the contracting officer must include proposed small business subcontracting participation in the subcontracting plan as an evaluation factor (15 U.S.C. 637(d)(4)(G)(i))..."

    (P.S., I disabled moticons but they still appeared in my preview post. I had to add a space...)

    It is a bit difficult to reply without seeing the wording in the specific Section M to which you seem to refer. Let me offer the following with regard to the ultimate importance of price in a source selection: Regardless of the stated relative importance of price in the solicitation, its importance increases as the assessment of the non-price factors approaches equality.

    See this quote from DIT-MCO International Corporation, B-311403, June 18, 2008:

    ?Although the RFP provided that the non-price evaluation factors were significantly more important than price, it also provided that, as proposals became more equal under the non-price factors, the importance of price would increase. RFP at 60. In this regard, in a negotiated procurement with a best value evaluation methodology, where selection officials reasonably regard proposals as being essentially equal technically, price properly may become the determining factor in making award, notwithstanding that the solicitation assigned price less importance?.

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