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Found 12 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. Hi Everyone- New here, and love the forum. Lots of interesting topics, and an equal amount of intelligent discussion and opinions!
  3. Latvian Connection is at it again. This time GAO dropped a 2 year ban on ol' Keven. Next up, according to the decision, could be a permanent ban. http://www.gao.gov/products/B-415043.3
  4. 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!
  5. http://www.wifcon.com/cgen/414223.pdf I just read this protest on my lunch break and found it very odd. Correct me if I am wrong, but did the incumbent contractor just try to protest away its 'incumbent advantage'?! 1. Protest challenging the terms of the solicitation as ambiguous is denied, where the solicitation provides offerors with sufficient information to compete intelligently and on a relatively equal basis, and where the information requested, much of which is proprietary to the protester, is not necessary for offerors to be able to draft their proposals. 2. Protest arguing that the solicitation should resolve an alleged ambiguity by including the protester’s proprietary data, after the protester waives its rights in the data, is dismissed where the protester failed to establish that it is an interested party to challenge the lack of data in the absence of any competitive prejudice.
  6. The authority of the GAO to hear bid protests regarding civilian agency task and delivery orders over $10 Million will expire on Sep. 30, 2016, unless the Congress acts to eliminate or extend the sunset provision of 41 USC 4106(f)(3). I support 41 USC 4106(f)(3) as it is now written. I support the sunset provision for protests to GAO on task and delivery orders for civilian agencies. The task and delivery order ombudsman process of 41 USC 4106(g) will never become meaningful unless the sunset is allowed to occur -- and I want the ombudsman provision to become meaningful; therefore, I want the sunset to occur. Accordingly, I oppose Section 502 of H.R. 4341, Defending America’s Small Contractors Act of 2016, because Sec. 502 would eliminate the sunset. Sunsets are beautiful, don’t you think? Below is the pertinent text from H.R.4341 and 41 USC 4106: Defending America's Small Contractors Act of 2016 H.R. 4341 Sec. 502. Protecting task order competition. Section 4106(f) of title 41, United States Code, is amended by striking paragraph (3). Orders 41 USC 4106 (f) Protests. (1) Protest not authorized. A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for: (A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or (B) a protest of an order valued in excess of $10,000,000. (2) Jurisdiction over protests. Notwithstanding section 3556 of title 31, the Comptroller General shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B). (3) Effective period. Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016. (g) Task and Delivery Order Ombudsman. (1) Appointment or designation and responsibilities. The head of each executive agency who awards multiple task or delivery order contracts under section 4103(d)(1)(B) or 4105(f) of this title shall appoint or designate a task and delivery order ombudsman who shall be responsible for reviewing complaints from the contractors on those contracts and ensuring that all of the contractors are afforded a fair opportunity to be considered for task or delivery orders when required under subsection (c). (2) Who is eligible. The task and delivery order ombudsman shall be a senior agency official who is independent of the contracting officer for the contracts and may be the executive agency’s advocate for competition.
  7. An Agency Level Protest was filled with our office on March 15, 2016. Yesterday, April 13, 2016, (prior to the Agency decision) the Agency received notice from the Contractor that a GAO Protest had been filled. My Question... Should a protestor file with GAO while an Agency protest is pending, is the Agency then absolved from issuing a decision? I will continue to look in Part 33 as well as 4 CFR Part 21, etc.; however, I have yet to find this scenario addressed. My gut tells me that once a protest is filled with GAO, any pending Agency decision would now be irrelevant (for lack of a better word this early in the morning).
  8. My Procurement Exec and one Attorney believe GAO recently used the so-called "10%" rule to determine a contract modification was within scope and therefore denied a protest. Neither has been able to produce anything other than their own recollection. Everything I have found in my previous and recent research indicates they are seriously mistaken. So if anyone out there has seen anything from GAO to support their statements, please post a link.
  9. I'm interested in feedback... My Assertion No. 1: A size standard protest under FAR 19.302 is not a protest to the agency under FAR 33.103. It's not a protest to the agency because the agency cannot decide the protest. My Assertion No. 2: Accordingly, FAR 33.103( f ) (with its prohibition on awarding the not-yet-awarded contract or requirement to suspend performance of the already-awarded contract) does not apply to size standard protests. Rather, for size standard protests, FAR 19.302( h ) applies. This seems so simple and self-evident to me. But others tell me that FAR Subpart 33.1 applies simply because of the word "protest." Has anyone else faced this question?
  10. Here is the background....We are the prospective Subcontractor on an award expected mid-June. Our prime anticipates a protest and subsequent stop work order, but has approached us about proceeding with work until the protest is decided. Assuming we receive appropriate contractual assurances from our Prime that we will be paid, are there any consequences (for either us or the Prime) to what appears to be a violation of a stop work?
  11. Can one protest a BPA (off the FSS) even though no TO/PO have been issued?
  12. Good morning. My scenario: The government agency has released a FFP/LH/CR type solicitation. I don't feel the contract type is reflective of the PWS, and doesn't adequately/evenly address the PWS risk. I've been researching preaward protests that involve FAR Part 11 and agencies adequately describing their needs. However, I haven't found one that's tied to contract type. Or, am I missing the boat on the proper section to reference? I'm hoping that someone can point me in a better direction than the one I'm headed now. Thanks in advanced. Jill
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