Jump to content

Use Agreements with Commercial Firms


baierle

Recommended Posts

Good day--

We are seeking any guidance to assist us with a requirement that is new and we have never done.

Our client (researcher) needs to obtain equipment from a commercial firm to evaluate as part of research for several months---a precursor to a possible procurement.

We are calling it a "usage agreement", but we are only familiar with interagency agreements.

Q: Once Market Research and other hurdles are completed, how do we structure this document? Do we issue a commercial RFP/ order with the intention of at least some value (consideration of $1.00)? Is there anything prohibiting us from preparing an agreement with a commercial firm for zero consideration? The whole point (we imagine) is that if the testing works well, the client will want to sole source this equipment.

I will appreciate a gentle nudge in the right direction from anyone who has had to do something like this.

V/r--EB

Link to comment
Share on other sites

Guest Vern Edwards

So you want to test the thing and, if it works, buy it on a sole source basis? Are you going to test other such equipment offered by other firms?

Link to comment
Share on other sites

So you want to test the thing and, if it works, buy it on a sole source basis? Are you going to test other such equipment offered by other firms?

Hi, Vern--

We are still doing Market Research as this just came in. Among other things, we intend to issue sources sought/RFI on FedBizOpps for sources capable of meeting the salient characteristics of the system researcher knows.

If we found other firms capable of meeting our needs other than the known firm, it would have to be a competitive process.

This is where we are stumped.

Q: Would the proper structure of the resultant document be a contract, agreement, or other document of which we are unaware; we have never have done this before.

And, we doubt sole source could be justified if our RFI indicates other sources.

Thank you. Any guidance is certainly appreciated. We just need a little "clue" to get us going....

EB

Link to comment
Share on other sites

Good day--

We are seeking any guidance to assist us with a requirement that is new and we have never done.

Our client (researcher) needs to obtain equipment from a commercial firm to evaluate as part of research for several months---a precursor to a possible procurement.

We are calling it a "usage agreement", but we are only familiar with interagency agreements.

Q: Once Market Research and other hurdles are completed, how do we structure this document? Do we issue a commercial RFP/ order with the intention of at least some value (consideration of $1.00)? Is there anything prohibiting us from preparing an agreement with a commercial firm for zero consideration? The whole point (we imagine) is that if the testing works well, the client will want to sole source this equipment.

I will appreciate a gentle nudge in the right direction from anyone who has had to do something like this.

V/r--EB

Have you considered a bailment agreement? As Vern implies, you will need to be careful not to give this one firm an unfair competitive advantage, though. Are there other firms who have equipment that might be competitive?

Link to comment
Share on other sites

Have you considered a bailment agreement? As Vern implies, you will need to be careful not to give this one firm an unfair competitive advantage, though. Are there other firms who have equipment that might be competitive?

No. We did not think of this....actually had to look it up to understand what it meant.

Seems like what we need, though.

Is this done in Government? The RFI may indicate competition is out there; we understand this. Q: How would we structure this document (RFP??) and its resultant document (contract, agreement?). We have some sample commercial agreements and can adapt some language and structure. We are just without a clue right now....

Of course we will get legal involved, but need to have a PLAN before we do this.

Link to comment
Share on other sites

Guest Vern Edwards

Why would you pay anything? Why don't you simply explain to the firm what you want to do and ask it to provide you with one of the things at no cost so you can test it. Ask the contractor to provide it with a letter saying that the government is not responsible for loss or damage. Agree on a date on which you'll return the thing. Ask the contractor to be responsible for packing and shipping.

Alternatively, ask the contractor to test the thing in accordance with your test specification at no cost to the government and with the government permitted to observe.

Link to comment
Share on other sites

Why don't you simply explain to the contractor what you want to do and ask it to provide you with one of the things at no cost so you can test it. Ask the contractor to provide it with a letter saying that the government is not responsible for loss or damage. Agree on a date on which you'll return the thing. Alternatively, ask the contractor to test the thing in accordance with your test specification at no cost to the government and with the government permitted to observe.

Okay--we can do this. I am sure contractor would not have a problem as they are salivating at the potential business.

But, this may lead to the researcher wanting the equipment (sole source) after testing it. We were thinking that we needed to do some sort of competitive process since this would ultimately result in the use of appropriated funds under a purchase contract and would be "FAR applicable".

Link to comment
Share on other sites

Why would you pay anything? Why don't you simply explain to the firm what you want to do and ask it to provide you with one of the things at no cost so you can test it. Ask the contractor to provide it with a letter saying that the government is not responsible for loss or damage. Agree on a date on which you'll return the thing. Ask the contractor to be responsible for packing and shipping.

Alternatively, ask the contractor to test the thing in accordance with your test specification at no cost to the government and with the government permitted to observe.

Certainly, the contractor would be very agreeable with regard to loaning / testing this as they are certain it will fit our needs and be a great sale for them.

For our part, we wanted to be careful about showing a bias this early in the game, hence all the questions.

Q: If more than one capable firm is found through our sources sought, would we set this up as an RFP to solicit and select best value firm to allow us to use this at no cost for our research/testing? Would a bailment be the resultant document?

Link to comment
Share on other sites

It sounds to me like you're talking about a commercial item. It is customary in many parts of the commercial marketplace for sellers to allow test drives, so to speak, of their products. You haven't spoken to dollar amount, so I'm not sure whether your competition standard is full and open competition of FAR Subpart 6.1 or maximum practicable competition of FAR 13.104, or whether the equipment is available on GSA schedule or other source. So, there's a lot we don't know.

But assuming the equipment is a commercial item, and assuming sellers in your part of the commercial marketplace allow test drives, so to speak, of their products, you could easily prepare a solicitation inviting potential sellers to provide some data regarding their product, establish a testing period where some small number of responders (maybe even one) will provide the equipment at no cost for your testing/use, and ask for a price to purchase the product which best meets your needs. This will meet your competition and advertising requirements, if any, and will allow you to select one or a small number of products for on-site testing and a decision to actually purchase one.

The solicitation could incorporate Vern's advice: "Why don't you simply explain to the firm what you want to do and ask it to provide you with one of the things at no cost so you can test it. Ask the contractor to provide it with a letter saying that the government is not responsible for loss or damage. Agree on a date on which you'll return the thing. Ask the contractor to be responsible for packing and shipping." Invite all firms to provide some data, and then select which of the responding firms from which you will invite the delivery of their product on a test basis.

Link to comment
Share on other sites

If the item is going to be used, rather than just tested, I worry that if the Government accepts it at no cost there could at least be a perception of the government accepting inappropriate supplemental funding unless there is a procurement process and the consideration provided to the contractor's benefit is defined.

I would be inclined to run it as an RFP, and state in the solicitation that the only consideration to the contractor will be the benefit they will receive from having their product tested and evaluated by the government for the government's future research needs.

The research might benefit if there could be testing of more than one product - and not have this initial procurement specd to a particular products salient characteristics, but more to what they want to accomplish in their research.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
×
×
  • Create New...