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Found 18 results

  1. First, I want to say that I am a big fan of these forums. There is a ton of useful information here that has been very helpful to us. I want to pick the forums’ collective brain to see if anyone has advice on my particular and peculiar situation. We are running into the same issues over and over with an agency, and these issues seem to be in direct conflict with components of the FAR. It is totally possible that I am the one who doesn't understand the FAR (am I the jerk?). Please read on and share your thoughts! My business is a subcontractor to a prime under an IDIQ. We provide specialized services that meet a core need for this particular agency, and have an informal joint venture for this type of work with my prime. This IDIQ is being used for all non-IT related contracting for this agency, though the original solicitation didn’t make this at all clear, apparently, they announced that at an industry day that I wasn’t able to attend (the work I do, which is part of the core agency mission was not even described in the solicitation for the IDIQ). So for the next several years, my only mechanism to provide my services to this agency is through my working with my prime. This agency has a LONG history of using labor-hour contracts to hire contract employees in lieu of hiring federal employees. These contractors perform the exact same duties as federal employees, which are core components of the agency’s mission, and they are required to do it at federal offices in the same office as federal employees doing the same work. I know this because I worked at the agency for six years, and for those six years I share an office with contractors doing the exact same job as me (though they typically get paid much less). The contracts to support these positions are typically the 5-year, base + 4 option year approaches. All of this makes it look very much like personal service contracts, despite this being explicitly prohibited under the agency’s contracting mechanism. They don’t actually put any effort into disguising this fact when they write the contracts beyond the required statement saying “this is a non-personal services contract”. The appearance of using this as personal service even extends into the agency having contractors represent the agency in public and stakeholder/decision-making groups. When you ask one of the contractors who their supervisor is, most will provide the name of their NMFS project manager unless they were specifically coached to answer otherwise, and the contracting companies exercise no supervision of these employees. We have been pushing for 4 years to try to get the agency to move to a non-personal service approach at least in our area of expertise. We have brought up the personal services issue from the COR level to the IDIQ manager and the agency ombudsmen over this time frame. We have been offering a firm-fixed price approach to meeting the agency needs, which is less expensive than their labor hour approach, offers guaranteed work productivity, and compliant with the law and regulations. We have had one region use the method and that contract worked great, and that region is seeking another round of the fixed price approach. However, the entire rest of the agency has completely disregarded the approach, to the point of continuing to award labor hour contracts for personal services even when we offered a less expensive fixed-price approach. And to be clear, my prime partner and I have a solid past performance history. But our approach, which to the best of my understanding is the ONLY approach they have been offered that is actually compliant with FAR has for the most part passed over in favor of awarding to the incumbent contractor and their incumbent contract employees (which also goes even more to the point that the agency is treating the contract employees as though they are their employees). My understanding of the problems here are really: · These seem to be blatantly personal service contracts as they meet ALL of the criteria for evaluating whether a contract is personal services or not under 48 CFR § 37.104. · They are using labor hour contracts to hire for these positions despite having clearly stated criteria for number of hours requested (they are hiring in single full-time employee increments per line item), without performing a Determination & Finding to support the use of labor hours over firm fixed price or fixed price with economic adjustment (despite FAR 12.207 and FAR 16.601. · And just for fun, this agency has awarded more than $40 million in contracts in one year to one company under small business set-asides where the standard is $16.5 million, and has actually refused to do anything to remedy this to comply with the spirit (and letter) of the Small Business Act. I know that FAR hasn’t been updated, and technically what they are doing is within regulation, but they refuse to take any actions within their discretion to even limit their awards to one business under small business-set asides to $16.5 million per year, request a new small business certification, or even exercise individual CO judgment to implement the intent of the SBA. My prime offers a broader array of services and has other contracts, and is not willing to risk retaliation by appeal award decisions, and as a subcontractor, I don’t have standing to appeal or take the issue to the GAO. And the CO’s, IDIQ manager, small business advocate, and agency ombudsmen have all made it pretty clear that we would likely experience retaliation if we started appealing awards based on the use of personal services, mismatched contract types, or even our technical review ratings. I would say they have made it clear that we could expect retaliation without threatening retaliation, it would always come from somewhere else in the agency. I could appeal the expansion of scope for the IDIQ, but that ultimately leaves me with the same issues. I also want to be cautious on doing anything as it could potentially have pretty negative consequences for my prime partner if their name got associated with mine. So the advice I am seeking is how can we get the agency to move forward into a more FAR compliant approach. I understand there is a long history in doing the things the way they have for decades, and we are not trying to force them to change all at once. But we do want to see them make changes when they have the opportunity to do so (e.g. awarding contracts to proposals that are non-personal services approach and fixed-price over labor hours when the proposal is better than satisfactory and price competitive or cheaper!). I know that is a fair amount of information, so I hope I still made our issues clear. I also want to acknowledge that I could be wrong about all of this and totally be misunderstanding the FAR as I have not had comprehensive training on it, and am looking at specific components often in isolation. Any advice here is appreciated!
  2. Good afternoon everyone, I have a couple questions concerning FAR 52.232-22 Limitation of Funds that I was hoping someone could answer. Does the LOF clause apply to each CLIN on a contract? In other words, if I have a contract containing a CPFF CLIN for Labor and a COST only CLIN for Travel, would I have to give separate notifications for each CLIN once 75% of the current funding is expended? Or is it based on the overall cumulative funded amount of both CLINS (Labor & Travel), in which case I would then give notice when 75% of the combined funding is expended. Is FAR 52.232-22 cost specific, or does it include incremental fixed fee funding as well? Section (b) of the LOF FAR states the following: " (b) The Schedule specifies the amount presently available for payment by the Government and allotted to this contract, the items covered, the Government’s share of the cost if this is a cost-sharing contract, and the period of performance it is estimated the allotted amount will cover. The parties contemplate that the Government will allot additional funds incrementally to the contract up to the full estimated cost to the Government specified in the Schedule, exclusive of any fee. The Contractor agrees to perform, or have performed, work on the contract up to the point at which the total amount paid and payable by the Government under the contract approximates but does not exceed the total amount actually allotted by the Government to the contract." Given this provision of the FAR I am assuming the LOF notification should be based on incremental COST funding only, and would exclude incremental Fixed Fee Funding, and would apply both to CPFF contracts and CPIF Cost Sharing Contracts . If anyone can provide any insight it would be much appreciated. Thank you.
  3. In many federal contracts as per the instruction to offerors, during the proposal stage, the bidders are advised to send their questions related to the RFP vide 'projnet' online portal and the same is answered by the Government there itself. This online portal is accessible to all the bidders who are bidding for that project and all the bidders are submitting their offer accordingly. But not all the clarifications given to the bidders inquiry in the projnet portal are updated on the specifications or drawings through an official amendment to the RFP due to the time constraints during the bidding stage. Most of the cases the clarifications are given till the last the minute of the proposal submission. Now the issue here, in general, when the Contract is awarded, the clarifications given vide the projnet, during the proposal stage, are not included as part of the Contract. So, at the time of construction, when scope dispute arises, the CO is NOT accepting the clarifications provided vide projnet during the proposal stage and demanding for the reference shown on any official amendment to the RFP or any reference from the Contract drawings or specifications. So, it will be great, if any one confirm whether the bidders inquiry clarified during the proposal stage is part of the final contract or not?
  4. WIFCON community, My team is in the second phase of a product specifically built for 1102s (Contract Specialists and Contract Officers), to help them efficiently identify rules/regulations/etc. that address questions that come up during their work, including: procurement of supplies, services, construction, or research & development evaluation of contract price proposals, and the administration or termination and close out of contracts. While designing this tool, we've found it challenging to find & run our prototypes by folks whose job it is to reference the FAR and its supplements, or other rules/regulations which might apply. This has led to some guesswork on our end. We want to minimize that guesswork, so our tool would actually meet the needs of 1102s (starting with our current customer). Some examples of invaluable insights I'm looking for (from Contract Specialists and Officers) include: what tools they use right now, and how effective they are (if at all) challenges posed by current duties that a tool like this could address how they'd use this tool — what queries would they make give feedback on prototypes If you are interested in helping, please reply below, or reach out to me directly. Otherwise, I’ll be posting some polls in the coming days & weeks. We’d appreciate any insights you can provide. Thanks a million! Dave Marsee Senior UX Designer ARiA (Applied Research in Acoustics) Dave -dot- Marsee -at- ariacoustics -dot- com
  5. In February the General Service Administration (GSA) rolled out a new contracting clause addressing Commercial Supplier Agreements (CSA). It expands a 2013 clause that made some common commercial license terms unenforceable. Now, many other terms found in commercial licenses (especially for IT) no longer apply to GSA contracts. The clause invalidates these terms – even if they make it into the contract. Read on to learn about which parts of such agreements are targeted, at Petrillo & Powell's Patterns of Procurement.
  6. Department of Defense uses form DD2579, Small Business Coordination Record, in accordance with DFARS 219.201 and DFARS PGI 253.219-70. (1) What other forms do civilian, non-DoD agencies use to document the contracting officer's decision re: small business set-asides and coordination with the Office of Small and Disadvantaged Business Utilization? DHS? VA? NASA? Energy? GSA? (2) Do any frogs have Internet links to see these documents in PDF or Word? From this thread, PepeTheFrog sees that GSA uses the "2689."
  7. Federal contractors often hire former agency employees. But rules exist that can place limitations on the business activities of past officials who seek to work with the agency by which they were previously employed. So what happens when a bidder thinks that a competitor has an unfair advantage because it has hired such a former official? A recent protest decision sheds some light on how agencies and GAO proceed when facing such a perceived conflict of interest. Read the full article at Petrillo & Powell's Patterns of Procurement.
  8. Hello! I thought this would be a good question for this forum to get a good idea on how things are done in other agencies. How often do you check the System for Award Management (SAM) for active exclusions? Do you check it for every contract action? That is how I was trained but someone brought up today that this may not be necessary. The FAR prohibits soliciting, or awarding to vendors that are on the excluded parties list but does not specifically require the Contracting Officer to check for every modification (e.g. admin changes). I found two applicable references which are verbose but nothing specific to requiring the check for every contract action - FAR 4.11 and 9.404-9.405: FAR 4.1103(a)(1) says that the Contracting Officer "(1) Shall verify that the prospective contractor is registered in the SAM database before awarding a contract or agreement. Contracting officers are encouraged to check the SAM early in the acquisition process, after the competitive range has been established, and then communicate to the unregistered offerors that they shall register;" FAR 9.404(c)(7) says that each agency must "(7) Establish procedures to ensure that the agency does not solicit offers from, award contracts to, or consent to subcontracts with contractors whose names are in the SAM Exclusions, except as otherwise provided in this subpart;" I'm at the Dept of Homeland Security. I can't find any agency specific information to requiring a check for every contract action either. Do you think this is something that was passed down as a best practice but not a requirement? This could also adversely affect a CO if they award a modification and find out that a vendor has been suspended so it could result in more dire consequences. I would love to know what you think!
  9. Hello all, I'm new to this contracting forum so please forgive me if this question has already been asked and answered before. So I am in the middle of writing up my formal response to a protest I've received. I've been searching the FAR up and down and can't seem to find the exact FAR reference I am looking for and was wondering if this forum could be of assistance. I’ve looked in FAR parts 5, 10, 12, 13, 14, and 15, including DFARS references. The back story is: a vendor provided us with a market research quote on 6/29/17. Solicitation was posted on GSA from 8/14/17 - 8/18/17 and I received 3 quotes, including this vendor’s quote. Their quote was found to be technically acceptable but was higher than their original market research quote and was not chosen for award because they did not provide the best value to the government with price being the determining factor. They are protesting that we should have accepted their original quote from 6/29/17. The FAR reference I am looking for should say something like "Quotes from offerors in response to a solicitation can only accepted." Does anyone know of a reference like that in the FAR or a similar one that I can use for my formal protest letter? The FAR references that I think might talk to this is: FAR 13.106-2(a)(2), FAR 14.103-2, FAR 14.301(a)(1), FAR 15.201(c)(3), and FAR 15.208(a). I attempted to resolve this issue through cordial conversations, according to the guidance in FAR 33 “Protests”, prior to the protest and I explained to the vendor that quotes can only be accepted in response to a solicitation, not market research quotes. He didn't like that answer. So now I'm in a protest. I want to make it crystal clear to the vendor in my letter so as to avoid a GAO protest. Thank you for your time and assistance!
  10. Contracts with the Federal Government represent big bucks for technology companies. According to ITDashboard.gov, government agencies spent a whopping $82.8 billion on information technology investments in FY2016, a number that’s poised to grow in the next two years. It’s no wonder, then, that technology companies take government contracts seriously. So when tech giant Palantir Technologies could not get the Army to consider its commercial IT system, they protested. And ultimately, the Court of Federal Claims decided in their favor. View the full article here.
  11. For losing contractors, the question of whether to protest is a tricky one. Contractors often move to protest when the requirements seem to favor one competitor over another, or when the rules of the procurement are unclear. But there’s an important difference between an agency displaying an abuse of discretion and simply utilizing the flexibility written into the Federal Acquisition Regulation (FAR). Two recent cases shed light on where that distinction may lie. Professional Service Industries,Inc. v. United States, et al., 129 Fed. Cl. 190 (2016) SSI, B-413486, et al., Nov. 3, 2016. View the full article here.
  12. The Contractor Performance Assessment Reports System (CPARS) is a tool used by federal agencies to record their evaluations of contractors’ performance. A poor evaluation will jeopardize a contractor’s chance of winning new contract awards. Contractors can respond to poor evaluations by providing input when they feel they’ve been unfairly assessed. Yet in the recent case of CompuCraft, a successful appeal to the Civilian Board of Contract Appeals found that there were limits to how completely they could correct their poor evaluation. Nonetheless, their efforts at redressing their improper negative rating provide an important template for other contractors who find themselves in similar circumstances. CompuCraft, Inc., CBCA No., 2017., Mar. 1, 2017 View the full article here.
  13. How does one distinguish between FAR/DFARS clauses to be flowed down by reference vs. in full text?
  14. If you terminate a contract for Default and fail to notify the SBA offices in accordance with FAR 48 CFR 49.402-3 (e)(4), is this a big deal or not? Is it worse if this occurred 10 times over the course of two years? What are they supposed to do with this info, anyway?
  15. I see on WIFCON and on acquisition.gov that the previous FAR versions go back to 1999. I am interested in doing research on versions that go back further than that, particularly on changes to FAR Part 15. Does anyone know of an online resource that would be best suited for this?
  16. I know you can ask for discounted pricing from GSA Scheduled contractors but can you actually negotiate with them? Let's say we put out an RFQ and we get quotes in, can we then start negotiating with one of the vedors? How does one "negotiate" better pricing with GSA vendors?
  17. I have a general question. If there is a FAR Supplement term and condition that has additonal conditons when compared to the same FAR term, what term controls ? My understanding is that the Agency FAR supplement controls in these instances but I wanted to open up a discusson about this as I have been unable to find anything that definitively states as such.
  18. What are the main differences between the Code of Federal Regulations and Federal Acquisition Regulations? Does one take precedence over the other? In what instances is the CFR applicable and when is the FAR applicable?
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