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ElBarz

Responding to RFP - Full and Open

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Hello - We're responding to a full and open task order RFP.  Under the IDIQ, we are a small business.  The Task Order does not (obviously) have the Limitation of Subcontracting clause in it, but it is in the IDIQ.  We are not required to submit the small business subcontracting plan in the RFP as it applies to large business offerors only.  Our question is as follows: Are we required to perform 51% of the work or since this is a full and open RFP, is this requirement waived?  Thank you and happy to answer additional qs.

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Are you talking about the Limitations on Subcontracting clause at FAR 52.219-14?

The clause applies for any one of the conditions in paragraph (b)(1) through (3) of the clause.  Think back to the original competition for the multiple-award contracts -- did you participate in an unrestricted manner, or did you participate as part of a set-aside or reserve for small businesses?  If you won your contract as part of a reserve for small businesses, then the clause applies to every order to your firm under the contract because of (b)(1). 

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The limitation on subcontracting clause is intended for set-aside contracts or task orders for small or small disadvantaged business or for sole source  contracts/task orders to such firms. By its own wording,  52.219-14 it shouldn’t  apply to unrestricted contracts or unrestricted task orders, where competing for the task order with large business firms without preference for small or small disadvantaged businesses. 

Assuming that the IDIQ was not restricted to small or small disadvantaged businesses in the first place, then it shouldnt apply to this task order. 

Why would it apply to an unrestricted task order even if a portion of the pool or subpool is sepately composed of small or small, disadvantaged business that some orders could be restricted to?  

It would seem to me that the small business firm should be subject to the same subcontracting restrictions as a large business firm when competing head to head with them for an unrestricted task order.

the prescriptions for the clause are:

19.508(e):

“(e) The contracting officer shall insert the clause at 52.219-14, Limitations on Subcontracting, in solicitations and contracts for supplies, services, and construction, if any portion of the requirement is to be set aside or reserved for small business and the contract amount is expected to exceed $150,000. This includes multiple-award contracts when orders may be set aside for small business concerns, as described in 8.405-5 and 16.505(b)(2)(i)(F).”

19.811-3 (e):

“(e) The contracting officer shall insert the clause at 52.219-14, Limitations on Subcontracting, in any solicitation and contract resulting from this subpart. This includes multiple-award contracts when orders may be set aside for 8(a) participants as described in 8.405-5 and 16.505(b)(2)(i)(F).”

 

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16.505(b)(2)(I)(f):

“(F) In accordance with section 1331 of Public Law 111-240 (15 U.S.C. 644(r)), contracting officers may, at their discretion, set aside orders for any of the small business concerns identified in 19.000(a)(3). When setting aside orders for small business concerns, the specific small business program eligibility requirements identified in part 19 apply.”

“8.405-5   Small business.

(a) Although the preference programs of part 19 are not mandatory in this subpart, in accordance with section 1331 of Public Law 111-240 (15 U.S.C. 644(r))—

(1) Ordering activity contracting officers may, at their discretion—

(i) Set aside orders for any of the small business concerns identified in 19.000(a)(3); and

(ii) Set aside BPAs for any of the small business concerns identified in 19.000(a)(3).

(2) When setting aside orders and BPAs—

(i) Follow the ordering procedures for Federal Supply Schedules at 8.405-1, 8.405-2, and 8.405-3; and

(ii) The specific small business program eligibility requirements identified in part 19 apply....”

 

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Joel,

The original poster said there is a subcontracting limitations clause in the parent IDIQ contract (you are I are presuming it is the clause at FAR 52.219-14).  Are you suggesting the clause should not be in the contract?

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21 minutes ago, ji20874 said:

Joel,

The original poster said there is a subcontracting limitations clause in the parent IDIQ contract (you are I are presuming it is the clause at FAR 52.219-14).  Are you suggesting the clause should not be in the contract?

Nope. I’m not suggesting that.  I’m saying that it would be applicable to an order set-aside for small or or small disadvantaged businesses. It is not applicable to unrestricted PARTS of the contract. That should include unrestricted task order competitions.

In such cases, if there is  a general restriction on subcontracting applicable to an unrestricted task order (example: 52.236-1 Performance of Work by the Contractor),  it should apply to all competing firms on an equal footing.

I remember reading where Congress prescribed the limitations on Subcontracting controls for restricted preference programs.

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2 hours ago, joel hoffman said:

Nope. I’m not suggesting that.  

Okay.  We can presume the clause at FAR 52.219-14 is in the contract properly.  That means it is in the contract for either of the following reasons--

  1. The original competition involved a set-aside or reserve for small business concerns, and the contractor won its contract because of the set-aside or reserve; or
  2. The original competition was unrestricted, but provision was made for orders to be set-aside for small business concerns.

We don't know whether it is 1. or 2.  The original poster hasn't answered my question yet.

If it is 1., then the clause applies to every order under that contract based on paragraph (b)(1) of the clause.

If it is 2., then we get to your statement.

2 hours ago, joel hoffman said:

I’m saying that it would be applicable to an order set-aside for small or or small disadvantaged businesses.

If it is 2., then what you said is captured by paragraph (b)(3) of the clause.

But you know, really, the original poster really needs to get an answer from the contracting officer for that order opportunity.

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Hello - Either small or large businesses could apply to this IDIQ.  We qualified as small at the time.  The RFP is released under seaport which allows for small or large to bid on full and open bids.  I am thinking the Limitation on Subcontracting clause does not apply because of the criteria set forth in the FAR

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ElBarz,

The clause at FAR 52.219-14 is in the contract for either of the following reasons--

  1. The original competition for the IDIQ contract involved a set-aside or reserve for small business concerns, and the contractor won its contract because of the set-aside or reserve; or
  2. The original competition for the IDIQ contract was unrestricted, but provision was made for orders to be set-aside for small business concerns.

Why don't you tell us whether it is 1. or 2.?

Your conclusion will be correct if it is 2.

But what do we know?  Have you asked your contracting officer?

Edited by ji20874

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4 hours ago, ji20874 said:

But what do we know?  Have you asked your contracting officer?

I agree wholeheartedly.

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Ask your KO.

However, I think you answered ji’s Question number 1 as “no”.

You also said that this task order is not reserved for small business*. The 52.219-14 clause only applies to task orders that are set-aside for small business.**

But ask your KO anyway. That should have been my answer from the beginning. 

*The title of this thread used the term “full and open”, which technically is wrong for a task order competition. It is apparently an unrestricted “fair opportunity” competition for all IDIQ pool members.  “Full and open” would be a term associated with competition for multiple awards of the  original IDIQ contracts.

EDIT: **see, for instance, 15 USC 644 (a), (o) and (r) and FAR 16.505(b)(2)(I)(f) for application of the limitations on subcontracting. It applies, in a task order completion or sole source task order, to set-asides, reserves for sole source,  or where a small business is given a price advantage consideration.

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I understand the logic behind the generic "ask the CO/KO" that people often respond with and I don't fully disagree, but sadly enough many CO/KOs do not know the FAR as well as they should and contractors shouldn't have to suffer because of it.  One of the things I like about WIFCON is that this gives a contractor a forum to ask knowledgeable contracting professionals (from both the public and private sectors) these types of questions so that they can either confirm what their CO/KO has told them or discover some regulatory references that contradict the CO/KO might not be aware of.

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Pardon me - unrestricted bid.

We'll ask the question to the Government.

However, this is Seaport.  Seaport - the IDIQ - was not set aside for only small or large businesses.  They basically let anyone in.

This task order is not set aside for small businesses.  However, we are a small businesses under the Seaport IDIQ.

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Ok ok ok ok ! The limitations on subcontracting clause is inapplicable for this task order but please verify that with the government.  

5 minutes ago, ElBarz said:

Pardon me - unrestricted bid.

We'll ask the question to the Government.

However, this is Seaport.  Seaport - the IDIQ - was not set aside for only small or large businesses.  They basically let anyone in.

This task order is not set aside for small businesses.  However, we are a small businesses under the Seaport IDIQ.

I can’t guarantee that they will agree. At least you have some reasoning to argue that it doesn’t apply. 

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Elbarz,

You finally answered the question that was asked in the very first comment in this thread!  Now, we can answer your question (Joel just did) with a “No.”  If you won your contract in the original competition on an unrestricted basis (not as part of a set-aside or reserve), then the Limitations on Subcontracting clause in the contract applies to any orders that are set-aside as an exception to fair opportunity (para. (b)(3) of the clause), and does not apply to orders providing fair opportunity.

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