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Michael11

Procurement by Competitive (Subcontract) Propossals

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Purchasing policy requires competition of subcontracts > $250K via formal advertising. What method of publication have companies found to be the best? Besides emailing RFPs to vendors, or publicizing the requirement on company website, is there another method? I have heard of companies using FBO as a publication for sub RFPs but I have not seen it done.

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1 hour ago, Michael11 said:

I have heard of companies using FBO as a publication for sub RFPs but I have not seen it done.

See FAR 5.206

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Thanks Jamaal. This would seem applicable to contractors who have already secured an award in excess of the SAT. Same thing for the subcontractors which would again seem post award. 

What about as a prime responding to a competitive RFP (pre-award) where under uniform guidnce subcontract competition is required. Am I correct that this option to send to FBO would be excluded?

If you decide to secure subcontract partners for your proposal, chances are you have executed a teaming agreement. It wouldn't make sense to compete it after the fact, so I'm curious how organizations grapple with publishing an RFP for a subcontract, evaluating the proposals, select a (potential) awardee should they win the contract, and perform a price/cost analysis all in the short time they have to respond to the RFP as a prime.

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Michael:

It may help if you cite the policy that requires the competition. (e.g., FAR, RFP provision, contract clause)

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50 minutes ago, Michael11 said:

2 CFR 318 - 320 sums it up pretty well

You may have luck finding someone willing to read through several sections to locate the specific requirement.  You'll probably have better luck, getting free help, by citing a specific paragraph. (even more luck providing a link)

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https://www.law.cornell.edu/cfr/text/2/200.320

200.320 section D1 says:

(d) Procurement by competitive proposals. The technique of competitive proposals is normally conducted with more than one source submitting an offer, and either a fixed price or cost-reimbursement type contract is awarded. It is generally used when conditions are not appropriate for the use of sealed bids. If this method is used, the following requirements apply:

(1) Requests for proposals must be publicized and identify all evaluation factors and their relative importance. Any response to publicized requests for proposals must be considered to the maximum extent practical;

(2) Proposals must be solicited from an adequate number of qualified sources;

https://www.law.cornell.edu/cfr/text/2/200.318

https://www.law.cornell.edu/cfr/text/2/200.319

 

They seem straightforward especially when considering post award. But, preaward it seems unreasonable to comply competing everying subcontract over $250k.

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Michael:

Are you saying or asking if 200.320(d)(1) applies to prime contractors (companies), pre-award?

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Michael:

Since you still haven't identified the specific "uniform guidance" and only asked two general questions, I will leave you with the following:

Quote

What method of publication have companies found to be the best?

Company supplier portals (websites).; and FBO interested vendors list.

Quote

Besides emailing RFPs to vendors, or publicizing the requirement on company website, is there another method?

Yes.

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15 hours ago, Michael11 said:

https://www.law.cornell.edu/cfr/text/2/200.320

200.320 section D1 says:

(d) Procurement by competitive proposals. The technique of competitive proposals is normally conducted with more than one source submitting an offer, and either a fixed price or cost-reimbursement type contract is awarded. It is generally used when conditions are not appropriate for the use of sealed bids. If this method is used, the following requirements apply:

(1) Requests for proposals must be publicized and identify all evaluation factors and their relative importance. Any response to publicized requests for proposals must be considered to the maximum extent practical;

(2) Proposals must be solicited from an adequate number of qualified sources;

https://www.law.cornell.edu/cfr/text/2/200.318

https://www.law.cornell.edu/cfr/text/2/200.319

 

They seem straightforward especially when considering post award. But, preaward it seems unreasonable to comply competing everying subcontract over $250k.

Why do you think this must be done before award? The section you are referencing is in Subpart D--Post Federal Award Requirements.

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Thanks Don. If you’re submitting a competitive proposal and you need to include your subcontract costs for example, maybe you need the partner for tech requirements also, how do you negotiate a price before the bid is submitted if you don’t compete it or solicit quotes.

its often the case that the taming May indicate a general share of the Sow and as part of the government’s cost price analysis wouldn’t they want that performed before proposal submission. Post award doesn’t make a lot of sense to me

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@Michael11

The point I was making was that the regulation you cited applies after award. If you are responding to a solicitation, the proposal preparation instructions are what matter. These may or may not require that your subcontract cost estimate be based on an actual competition. The instructions could just request that you provide a basis for your estimate, in which case you could potentially use another reasonable basis (e.g., competitive prices of past subcontracts, prices obtained through market research, etc.). 

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Don you make a really good point. I agree these regs are post award. But, in my experience, if you are including a subcontractor in your proposal, often times, not always, it’s because they are providing a technical qualification that you yourself may not possess. Maybe they have exceptional past performance doing xyz and you don’t. Maybe they have some highly qualified expert on their team. Wouldn’t the government be ticked if you included them in your bid, won, and then competed the subcontract post award and it had to go to someone else. If the government awards without discussions isn’t that sort of what you’re left with? Plus an unhappy teaming partner.

If the proposal instructions say one thing and post award you have a different set of rules that seems like a problem. 

Pending a contract award the majority of subcontract awards I have seen were done deals with the prime proposal submission. 

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8 hours ago, Michael11 said:

Don you make a really good point. I agree these regs are post award.

And that is what I was hoping you'd see. Those rules apply to Federal agencies that make Federal awards to non-Federal entities; and non-Federal entities through their post award Grants & Agreements.

Also, non-Federal entity means "a state, local government, Indian tribe, institution of higher education (IHE), or nonprofit organization that carries out a Federal award as a recipient or subrecipient."

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15 hours ago, Michael11 said:

But, in my experience, if you are including a subcontractor in your proposal, often times, not always, it’s because they are providing a technical qualification that you yourself may not possess. Maybe they have exceptional past performance doing xyz and you don’t. Maybe they have some highly qualified expert on their team. Wouldn’t the government be ticked if you included them in your bid, won, and then competed the subcontract post award and it had to go to someone else. If the government awards without discussions isn’t that sort of what you’re left with? Plus an unhappy teaming partner.

If the proposal instructions say one thing and post award you have a different set of rules that seems like a problem. 

Pending a contract award the majority of subcontract awards I have seen were done deals with the prime proposal submission. 

Seems to me that Michael11 is conflating a subcontractor price reasonableness determination with subcontractor source selection. Michael11, have you read the FAR Part 15 rules on submitting cost or pricing data related to your proposed subcontractor(s)? Have you read the provision 52.215-10 (and related provisions) that says, in pertinent part --

Quote

(b) Any reduction in the contract price under paragraph (a) of this clause due to defective data from a prospective subcontractor that was not subsequently awarded the subcontract shall be limited to the amount, plus applicable overhead and profit markup, by which (1) the actual subcontract or (2) the actual cost to the Contractor, if there was no subcontract, was less than the prospective subcontract cost estimate submitted by the Contractor; provided, that the actual subcontract price was not itself affected by defective certified cost or pricing data.

(Emphasis added.)

In other words, the regulatory requirements applied to your proposal are different from the requirements applied to your actual subcontract award, and the regulations themselves take those differences into account.

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15 hours ago, Michael11 said:

Wouldn’t the government be ticked if you included them in your bid, won, and then competed the subcontract post award and it had to go to someone else. If the government awards without discussions isn’t that sort of what you’re left with?

Maybe. If it were that important, the Government could make your use of a proposed subcontractor a term of the contract. 

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Michael11, 2 CFR 200 applies to grants and cooperative agreements.  Potential awardees do not submit bids. They submit responses to funding opportunities.  Further, FAR 5.206 does not apply to grants and cooperative agreements.  What is the nature of your organization?  The Uniform Guidance was not drafted with commercial organizations (or hospitals) in mind.

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what I am talking about is the development of procurement proedures for an institute of higher education, a university, or a non profit as indicated  in 2 CFR 200.318. It is also described in .319 and .320 describe specifically what methods of procurement must be followed. IN short, it says a covered entity should have procurement policies that sorta mimic the government's when it comes to soliciating subcontractors. don has aptly stated that this is a post award requirement and I am saying that it's rare that you haven't already picked your partner before your proposal goes to the government. i am looking for a way to reasonably select subcontractors that are included in a proposal when time does not permit a full and open competition. if you always selected/competed subs post award i am crystal clear. that is not my reality. I am missing something and my denseness is not by design. Im taking a rest from this and taking more time to research. appreciate the insights

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Pre-award: government's announcement (provisions, some clauses and instructions including references) apply

Post-award: government's award (terms and conditions including references) apply

We'd need to decide what the government's announcement requires (e.g., degree of competition, if any, for subcontracts). The post-award requirements may not impact the original award, but could be relevant to awards that anticipate or include subsequent post-award subcontracts in performance of the grant or agreement. I would definitely look to see how they define things like 'subcontract', 'subcontractor', and 'publicize' within context.

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