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  1. Level the playing field on your next IT procurement. In 1996, Congress passed what is now known as the Clinger-Cohen Act (CCA), which eliminated the General Services Administration (GSA) as the sole source for acquiring information technology (IT) and allowed other federal agencies to assume a lead contracting role. The Act was created with one mission in mind: To speed up IT purchasing so that by the time technology got to the buyer, it wasn’t obsolete. To achieve this, the CCA introduced Government-Wide Acquisition Contracts (GWACs). These were to be administered by Executive Agencies that met rigorous standards set by the Office of Management and Budget. Each GWAC made awards to a pre-competed, pre-qualified pool of vendors who could then bid on all its orders. As other agencies had specific IT needs, they could place fast turnaround task or delivery order requests against the GWAC and its pool of sellers, shrinking a years-long purchasing cycle down to mere months. This streamlined process was codified in the Federal Acquisition Regulations (FAR) as “fair opportunity” under FAR 16.505. NITAAC was one of the first Executive Agents to be granted GWAC authority and today, more than 25 years later, we still offer three GWACs to federal agencies looking to purchase IT faster, more easily, and from a level playing field of pre-qualified vendors. Fair opportunity explained. Fair opportunity is a requirement that federal agencies purchasing IT products and services must follow when using a GWAC. It states that if a purchase exceeds $3,500, every company that holds a contract with that GWAC must be given an equal opportunity to respond to a request for proposal (RFP) on services, or a request for quote (RFQ) on products. Fair opportunity is intended to prevent agencies from giving unfair advantage to one contractor over another. The concept of fair opportunity is mandated by FAR 16.505(b). There are other great benefits in FAR 16.505, like no protest on orders under $10M ($25M for the DoD), but let’s stick to fair opportunity for now. There are two good reasons for an agency to exercise fair opportunity. First, the FAR requires it. Second, fair opportunity is a great way to ensure that you get the best value for your agency. As a buyer, you strengthen your bargaining position when you give all the awardees on the contract a fair chance to compete. Whether you choose your incumbent or go in a new direction, fair opportunity will give everyone involved in the acquisition process assurance that you made the right decision for the right reasons. How NITAAC helps agencies meet fair opportunity. Unless using an exception to fair opportunity as described in FAR 16.505(b)(2), ordering contracting officers must provide fair opportunity, FAR 16.505(b)(1) for orders exceeding $3,500. In the case of small businesses, the ordering contracting officer also must determine if there is a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality and delivery unless one of the exceptions in FAR 16.505(b)(2)(i) applies. Rather than leave it up to the agencies to determine how to ensure fair opportunity, NITAAC has designed an Electronic Government Ordering System (e-GOS) that ensures fair opportunity is carried out correctly on every order. This web-based, secure system is fast and easy to use—allowing contracting professionals to walk through the entire solicitation process seamlessly, with FAR references at every applicable step. Meeting fair opportunity with e-GOS. e-GOS provides streamlined IT ordering, enabling agencies to quickly upload requirements and supporting documentation, manage the competition, handle questions and answers, submit amendments if necessary and finally, select and notify awardees. Agencies control the time frame based on the level of complexities, but responses can be received in, on average, as few as three days for products and 42 days for services. Additionally, the system features built-in FAR guidance and satisfies fair opportunity to be considered (FAR 16.505). e-GOS can also serve as a database of record, as all files are maintained indefinitely or, if you prefer, all documents stored can be downloaded and printed for your official file. NITAAC is here to ensure that every IT award an agency issues is carried out in a fair and equitable manner, according to all applicable laws. To learn more about NITAAC and fair opportunity, call us at 1.888.773.6542 or visit us at nitaac.nih.gov.
  2. I believe this has been asked before but, need some clarity on the issue: We have a task order against a GWAC to a large business Client would like us to direct some upcoming work to a specific small business subcontractor under a separate line item on the contract. I do not believe there is anything in the FAR that specifically prohibits this or is there? If we were to go that route, what would be the mechanism to get this accomplished? If prime does not agree to the work being directed to the specific sub, is there anything the Government can do?
  3. Is there a time limit for the duration of a follow-on task order under a GSA schedule contract for information technology (IT) services and supplies under FAR Subpart 8.4?
  4. I'm a Contracting Officer tasked with soliciting for a construction project that involves a brand name specification under the CICA waiver authority under FAR 6.302-1 Only One Responsible Source. The item is a major component of the construction project, but the value of the item is expected NOT to exceed $700k (the total construction project will be much larger). My read of the regs has always been that a 6.302-1 CICA waiver justification must include evidence that a notice of intent was posted to the GPE and interested sources responding to that notice were considered in accordance with FAR 6.302-1(d)(2), FAR 5.201, and FAR 5.207. HOWEVER, we are planning to solicit the project as a task order RFP under a multiple award IDC, and so the question was raised, does CICA and FAR Part 6 even apply? FAR 5.202(a)(6) provides an exception to the FAR 5.201 synopsis requirement for IDC orders and refers to FAR 16.505(a)(4). FAR 16.505(a)(4) states that items peculiar to one manufacturer must be justified in accordance with FAR 16.505( b)(2) (aka Fair Opportunity Exception). BOTTOM LINE: I've nearly concluded that FAR Subpart 16.5 may be the applicable regulation and not FAR Subpart 6.3, and so a FAR 16.505(b )(2) Fair Opportunity Exception would be required instead of a FAR 6.303 Justification. But I have a nagging suspicion that that's not quite right. My hesitations with a FAR 16.505(b )(2) Fair Opportunity Exception are that #1 I can't quite see how this is would restrict competition among the IDC contractors, so I can't really see how the concept of "fair opportunity" is at play. And, #2 I'm surprised to find that there is no requirement at FAR 16.505( b)(2) to post a notice of intent to the GPE--since in our situation for a brand name component, it seems to me that would be compelling information to include in the justification if we get no acceptable response from industry. And I'm also surprised because FAR 16.505 ( b)(2)(d) DOES require that the final approved Fair Opportunity Exception be posted to the GPE within 14 days (for orders >SAT). Whereas under FAR Subpart 6.3, for brand name justifications, all that is required is to attach the final approved J&A with the solicitation. I suppose that's because Fair Opportunity Exceptions under 16.505( b)(2) would never be publicized if only distributed with the solicitation because the solicitation isn't made public--it's only sent the multiple IDC contractors. Anyone have any thoughts on this? Appreciate the feedback.
  5. Three multiple award IDIQs were awarded a few years ago to procure systems for testing and possible deployment if it passed testing requirements. The agency intended to compete among the multiple awardees to determine which systems to deploy. It turns out only one awardee passed testing, so the agency closed out the contracts with the awardees who had products that did not pass testing. Given there is only one contract to order supplies and services, is this contract still considered a multiple award contract? I'm trying to determine if I need to execute a justification to procure using exception to fair opportunity or not when placing an order under the IDIQ with the awardee who did pass testing. It's been recommended I complete one just in case, but I'm not convinced it's necessary since there are no other awardees to give fair opportunity to. Appreciate your thoughts and insight in advance.
  6. Hi, We have a multiple award IDIQ that we will be preparing a solicitation under (someone told me these arent called RFTOPs anymore, is this true?). Our technical team would like the prime to partner with a certain specific organization as a sub. This organization would likely be eligible for sole sourcing according to the the FAR or our assistance guidelines if we were contracting with them directly. I suggested we do that, but the technical team feels that the management burden of dealing with this sub would be too much for their office to handle. I just wanted to get some opinions on whether this is possible or if there is a specific way to structure this that would make it feasible. Instinctually, I feel that this violates the Fair Opportunity procedures and the rules of competition. The only thing in the FAR that was remotely on point that I could find was FAR 44.203 (B )(3) does not allow any subcontracts that obligate the CO to deal directly with the contractor. Any guidance would be greatly appreciated.
  7. Would love some input here from any knowledgeable folks about this. If an agency intends to issue a single solicitation for multiple A-E services IDIQ contracts, is that a "multiple award" as defined under FAR 16.505 and does the fair opportunity process apply at the task order level? FAR 16.5 exempts AE IDC's from the statutory multiple award preference, I get that. And the Brooks A-E Act as implemented by FAR 36.6 applies, i get that too. But by logic, if one solicitation results in multiple IDC's it seems that's a "multiple award" situation. And as for Fair Opportunity, I'd think the most appropriate COA would be to articulate in the synopsis how the agency will provide fair opportunity at the task order level by selecting the best A-E for each particulat task order SOW (using competency/qualifications criteria not price). In my experience this issue is consistently something that is discussed inconclusively, since, to me at least, the FAR is a bit convoluted on the topic. The DFARS used to have instruction under citation 216.505-70 (it was ¶(a)(4) I believe) that specificially exempted A-E contracts from fair opportunity under the IDIQ ordering process--however sometime in 2012 or 2013 that content was removed. The USACE's Architect-Engineering Contracting Guide (EP 715-1-7), which was updated in 2012 states at page 4-9 that the Contracting Officer must document the file as to why a particular contractor is selected. Although that's not policy that applies to any non-USACE contracting agencies, they are considered to be one of the premiere A-E contracting agencies across the federal Government. The EP also provides a standard synopsis template (appendix O) that states verbatim, "If multiple IDCs, state method to be used to allocate task orders among contracts when two or more IDCs contain the same or similar scopes of work such that a particular task order might be awarded under more than one IDC. See FAR 16.505 for guidance." Anyone have any experience with this issue?
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