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Mike:

Please clarify your question. I understood you to ask whether a competition that does not result in prices that are binding for future task orders satisfies CICA. Is that the question?

Vern, yes, that is my question. My understanding is that in order to comply with CICA for a fixed price IDIQ contract that the prices established in the base contract must be binding for the task orders. If not, all the base contract does is establish a pre-qualified list that awards a seed contract (if one is used) and limits competition on future procurements for the task orders without ever actually competing those prices on a full-and-open basis.

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Joel,

Thanks very much for the detailed response you gave above. Due to the issues discussed, I don't understand how you can comply with CICA without getting binding prices for the task orders at the time you award the base IDIQ. And given the problems you discussed (which I appreciate because I've been considering structuring an IDIQ based on RS Means coefficients or something similar) is it really possible to structure a good IDIQ for construction and comply with CICA.

I know you have a lot of examples of what has been done, and I've seen many myself, but that all being said, what argument can be made that you do NOT need binding unit prices (for example labor hours and material costs) that apply to task orders and have that be CICA compliant? Obviously the simple fact that it's been done without anyone getting caught doesn't mean that it is CICA compliant.

Mike

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Joel,

s it really possible to structure a good IDIQ for construction and comply with CICA.

I know you have a lot of examples of what has been done, and I've seen many myself, but that all being said, what argument can be made that you do NOT need binding unit prices (for example labor hours and material costs) that apply to task orders and have that be CICA compliant? Obviously the simple fact that it's been done without anyone getting caught doesn't mean that it is CICA compliant.

Mike

Mike, you ask a good question. I don't know if the standard of adequate price competition for multiple award construction ID/IQ's requires binding prices or unit prices for future task orders. But in the Decisions that I found, it appeared that the acceptable price competition was based upon one actual task order.

I admit that I'm not a lawyer and don't have the technical skill, resources or time to do a full research study on what constitutes adequate price competition for construction ID/IQ's. However, I think the bottom line of the Competition in Contracting Act of 1984 concerning price competition is that price must be evaluated in every competitive source selection and that the Comptroller General and Courts seem to have decided what constitutes "adequate price competition" or at least what was acceptable in certain construction MATOC competitions.

I'm not sure what you meant by "the simple fact that it's been done without anyone getting caught doesn't mean that it is CICA compliant." There have been some Decisions in which the method of pricing an actual "seed" (initial) task order with binding prices was apparently deemed to be acceptable price competition.

I read both the Military and Civilian versions of "CICA" this morning and couldn't find any specific mention or description of adequate price competition requirements. Among other things, Competition in Contracting Act of 1984 requires "full and open competition", except as specifically permitted by statute. It says that the government shall establish rules for that. So, I went to FAR 15.3 Source Selection, to see what it says about price competition:

15.304 -- Evaluation Factors and Significant Subfactors.

...(c ) The evaluation factors and significant subfactors that apply to an acquisition and their relative importance are within the broad discretion of agency acquisition officials, subject to the following requirements:

(1) Price or cost to the Government shall be evaluated in every source selection (10 U.S.C. 2305(a)(3)(A) (ii) and 41 U.S.C. 253a?(1)(B)) (also see Part 36 for architect-engineer contracts);"

OK, so what does 10 USC 2305(a), say about price evaluation?

For the Military, 10 USC 2305(a)(3)(A) says:

"(A) In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency—

...(ii) shall include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals;..."

I also checked my Third Edition of Formation of Government Contracts by Nash and Cibinic. It basically says that there is little coverage of price competition for ID/IQ's in Statutes or in FAR. It discusses "adequate price competition" under FAR 15.403-1?. Various decisions have developed that "adequate price competition will be found where price is a substantial evaluation factor and is so evaluated" (see pages 1291-1293 or so).

So, it appears that the Comp Gen and Courts have ruled what is adequate or meaningful price competition. I cited some construction ID/IQ decisions above where actual task orders with binding prices for those task orders were used for price competition on the basic award competition. The basis of price evaluation was challenged and the GAO considered the specifics in determining that the price competition was ok.

In Decisions, the GAO has said that "sample task orders", unless they contain binding prices, do not constitute adequate price competition. In other decisions, they have discussed the inadequacy of evaluating price by simply comparing binding unit prices unless there is meaningful way to also compare expected quantities of those units to be required, between proposers.

As for future task orders on multiple awards for construction, the FAR at 16.505 (b ) for orders under multiple award contracts and "Fair Opportunity" procedures prescribe that task orders are generally required to be competed among the pool members, at least for DoD procurements.

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Guest Vern Edwards
Vern, yes, that is my question. My understanding is that in order to comply with CICA for a fixed price IDIQ contract that the prices established in the base contract must be binding for the task orders

Mike:

I hope you're still checking this thread after reading War and Peace about adequate price competition, which has nothing to do with CICA.

Your understanding is correct. The GAO has held that when using a sample task as the basis for evaluating competing proposals, in order to comply with CICA the offorors' proposed prices for the sample task must be based on rates that will be binding after contract award. See CW Government Travel, Inc.--Reconsideration, Comp. Gen. Dec. B-295530.2, 2005 CPD ? 139. The Court of Federal Claims has gone along with that interpretation of CICA. See Magnum Opus Technologies, Inc. v. United States, 94 Fed. Cl. 512 (2010).

Professor Nash discussed the issue in Sample Task Prices in IDIQ Contracting: Valid Only With Binding Rates?, 25 N&CR ? 20 (April 2011).

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Mike:

I hope you're still checking this thread after reading War and Peace about adequate price competition, which has nothing to do with CICA.

Your understanding is correct. The GAO has held that when using a sample task as the basis for evaluating competing proposals, in order to comply with CICA the offorors' proposed prices for the sample task must be based on rates that will be binding after contract award. See CW Government Travel, Inc.--Reconsideration, Comp. Gen. Dec. B-295530.2, 2005 CPD ? 139. The Court of Federal Claims has gone along with that interpretation of CICA. See Magnum Opus Technologies, Inc. v. United States, 94 Fed. Cl. 512 (2010).

Professor Nash discussed the issue in Sample Task Prices in IDIQ Contracting: Valid Only With Binding Rates?, 25 N&CR ? 20 (April 2011).

Thanks Vern. My N&CR subscription lapsed for a few months I believe (either that or our mail room lost them because I've started receiving them again) and I didn't get the April 2011 issue. Is there any way to get that article?

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Mike:

I hope you're still checking this thread after reading War and Peace about adequate price competition, which has nothing to do with CICA.

Your understanding is correct. The GAO has held that when using a sample task as the basis for evaluating competing proposals, in order to comply with CICA the offorors' proposed prices for the sample task must be based on rates that will be binding after contract award. See CW Government Travel, Inc.--Reconsideration, Comp. Gen. Dec. B-295530.2, 2005 CPD ? 139. The Court of Federal Claims has gone along with that interpretation of CICA. See Magnum Opus Technologies, Inc. v. United States, 94 Fed. Cl. 512 (2010).

Professor Nash discussed the issue in Sample Task Prices in IDIQ Contracting: Valid Only With Binding Rates?, 25 N&CR ? 20 (April 2011).

I think there is a distinction between a sample task order and a binding prices for a task order. In the CW Government Travel Decision, there were no binding prices or rates for anything. Thus, there was no basis for any kind of meaningful price evaluation. The GAO did mention pricing of future task orders. Since the services to be provided were recurring, it seemed logical to me that the proposers should be required to provide rates for future tasks.

However, it seems pretty difficult to overcome the discussion in Magnum Opus Technologies, Inc. v. United States (Filed Under Seal May 13, 2010 and Republished May 28, 2010) concerning "Competition for Task Orders is Not Sufficient to Establish Prices For the Options". http://www.uscfc.uscourts.gov/sites/defaul...STECH052810.pdf

"...It has been established, however, that “[t]he statutory requirement that cost to the government be considered in the evaluation and selection of proposals for award is not satisfied by the promise that cost or price will be considered later, during the award of individual task orders.” CW Gov’t Travel—Reconsideration, 2005 WL 1805945, at *4; MIL Corp., 2004 WL 3190217, at *7 (“[T]here is no exception to the requirement set forth in CICA that cost or price to the government be considered in selecting proposals for award because the selected awardees will be provided the opportunity to compete for task orders under the awarded contracts.”); see also Serco, Inc., 81 Fed. Cl. at 493 (rejecting the Government’s task order competition argument and finding that the agency “gave price neither the weight it was entitled to under the Solicitation nor that which it must be afforded under CICA and the FAR”). The Air Force may not substitute competition at the task order level for compliance with the applicable laws and regulations."

It would then seem from the Claims Court Case that 1) no option extensions for construction ID/IQ base contracts can be exercised unless they are meaningfully priced. 2) Construction ID/IQ's for other than basic recurring type construction work are almost impractical to price without some kind of common unit-price book with a price coefficient.

However, that case seems to conflict with the 3 later GAO Protest Decisions I cited.

1. http://www.gao.gov/decisions/bidpro/403797.htm (B-403797, Tetra Tech Tesoro, Inc., December 14, 2010)

2. http://www.gao.gov/decisions/bidpro/4026522.htm#_ftnref1 (B-402652.2, AIC International, Inc., June 28, 2010)

3.http://www.gao.gov/decisions/bidpro/4026523.htm (B-402652; B-402652.3, Reliable Builders, Inc., June 28, 2010)

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Guest Vern Edwards

Joel, I cannot figure out the point of your last post, and I don't know what bearing it has on Mike's question. Do you agree with something? Disagree? Have a different position entirely? What? Is it possible for you to state your point succinctly?

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Joel, I cannot figure out the point of your last post, and I don't know what bearing it has on Mike's question. Do you agree with something? Disagree? Have a different position entirely? What? Is it possible for you to state your point succinctly?

I said that there is a distinction between meaningless price evaluation on a sample, non-binding task order for a contract with recurring services and evaluating binding prices for an actual task order on a construction ID/IQ. And in the context of the (CW Government Travel Decision), it would make sense that the GAO expects the Government to evaluate prices for fees and other recurring costs for future services of a recurring nature as part of a meaningful price evaluation. It makes sense there that prices for recurring services could be evaluated. Indeed, on our Government travel services contract, the travel agency (Carlson Wagonlit Travel) is paid a fee of $14.50 for each travel ticket, whether it takes them 5 minutes or 20 minutes to arrange my travel.

I said that on the other hand, it was also hard to argue about the Court's discussion in Magnum Opus Technologies, Inc. v. United States in the paragraph entitled "Competition for Task Orders is Not Sufficient to Establish Prices For the Options". The Decision also stated that competition for an actual task order wasn't adequate to evaluate future task order pricing within the base contract period.

Finally, I said that the Magnum Opus Technologies case seems to conflict with 3 GAO Decisions that followed in the same year in which the GAO did indicate that the use of binding prices on seed task orders for construction ID/IQ base contracts constituted meaningful price evaluation.

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Guest Vern Edwards

Look -- this is very simple.

When an agency evaluates proposals for an IDIQ contract for services, including construction services, it may use proposed prices for sample tasks or actual ("seed") tasks to evaluate price. However, the GAO and the COFC require that the prices for the sample or actual tasks be based on contractually binding hourly rates or fees. In short, the rates or fees used to price the evaluated task -- sample or actual -- must be binding for all future work under the contract. The obvious reason is that otherwise the contractor could use low rates or fees for evaluation purposes, and then charge a higher rate or fee after award.

Professor Nash summed up the rule nicely in his discussion of the GAO's CW Government Travel decision:

This decision has been accepted as stating a mandatory requirement that agencies obtain binding promises of fixed unit prices for tasks or fixed labor rates for services in IDIQ contracts. See Magnum Opus Technologies, Inc. v. United States, 94 Fed. Cl. 512 (2010), 52 GC ? 243 (?It is therefore impermissible to evaluate relative cost based only upon non-binding proposals, because such a comparison is not meaningful.?); Rich, Multiple-Award Indefinite-Delivery, Indefinite-Quantity Contracts: Inclusion of a Price That Binds, 6 CP&A Rep. ? 1 (?to complete a meaningful evaluation of price to determine the cost to the Government, prices proposed at the [multiple award] IDIQ competition level must be binding and incorporated into the resultant contract awards.?).
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Vern and Joel,

Thanks much for the renewed discussion on this issue. I believe it has confirmed my understanding that we do need to have binding unit prices established in the base contract that are used in the competition of future task orders. That always seemed relatively clear to me except that the proliferation of contracts that do not comply with that that started to make me doubt my understanding.

I do also agree that it may not make sense in many ways to have such a requirement (although in other ways it does), since when does federal procurement laws and regs have to make sense in order to be required to be followed.

Mike

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Vern and Joel,

Thanks much for the renewed discussion on this issue. I believe it has confirmed my understanding that we do need to have binding unit prices established in the base contract that are used in the competition of future task orders. That always seemed relatively clear to me except that the proliferation of contracts that do not comply with that that started to make me doubt my understanding.

I do also agree that it may not make sense in many ways to have such a requirement (although in other ways it does), since when does federal procurement laws and regs have to make sense in order to be required to be followed.

Mike

Mike, if it doesn't make sense and will cost the taxpayers more money or doesn't work for industry, then we should try to get the the laws and regs changed. The lawyers and judges only work with what is there - the judge even said so in one of the Cases that Vern referenced. If those in the acquisition business are really "business advisors", "business professionals" or whatever you aspire to be known as - then we shouldn't simply fit square pegs into round holes that waste money or end up being a poor solution. Several here have pointed out the severe limitations of trying to unit price future complex, non-repetitive projects for follow-on INDEFINITE DELIVERY construction or design-build contracts. Recurring work like fixing plumbing or painting perhaps, but not entire buildings that very in location, time, scope, market conditions, site conditions, etc.

If it doesnt work then dont use an ID/IQ for construction. Above all, don't waste taxpayer money for the "convenience" of a task order contract if you are going to lock in pricing when it doesn't make economic sense to do so. Professor Ralph Nash has a lot of influence and ought to help make the case for something different where it is impractical to lock in pricing for future task orders.

By the way - using price and other competition among highly qualified firms selected to be pool members mirrors the authorized and PREFERRED 2 phase design-build method in FAR 36.3. Its a good fit when a MATOC is used for the right reasons. There ought to be some support in the industry, like the Design-Build Institute of America. Professor Ralph Nash knows them and has a long relationship with them.

It takes more than just knowing and blindly following the "rules"if they are dumb. It takes business judgement to do the right thing and a cry to fix broken contracting systems. The Comp Gen just this week came out , severely criticizing the government for sloppy contracting in Iraq and Afghanistan, wasting many tens of billions of dollars.

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The GAO ("Comp Gen") did not issue the report on contracting in Iraq and Afghanistan. The report was issued by the Commission on Wartime Contracting in Iraq and Afghanistan. http://www.wartimecontracting.gov/index.php/reports

Thanks for the correction, Vern. I knew as I typed that I should have verified the agency. I didn't specify the amount of losses was because there were numerous reasons for the waste and losses, not just our contracting "system" (and I'm not trying to single out contracting personnel here ).

One of my points, probably lost in my tirade above, is that for design-build construction, the industry was able to get Congress to implement a more practical method to acquire design-build construction, similar to a pre-qualified ID/IQ pool that competes for task orders. Due to the impracticability of establishing fixed unit prices for some (non-recurring) construction and design-build IDIQ's, perhaps there is a way that some special authorization could be obtained to adapt the 2 phase process for such ID/IQ pricing.

Its has been recently ongoing, whether technically legal or not. I know that several billion dollars of D-B task orders that have successfully been accomplished using such pricing methods. It should be codified if it works.

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Mike, if it doesn't make sense and will cost the taxpayers more money or doesn't work for industry, then we should try to get the the laws and regs changed. The lawyers and judges only work with what is there - the judge even said so in one of the Cases that Vern referenced. If those in the acquisition business are really "business advisors", "business professionals" or whatever you aspire to be known as - then we shouldn't simply fit square pegs into round holes that waste money or end up being a poor solution. Several here have pointed out the severe limitations of trying to unit price future complex, non-repetitive projects for follow-on INDEFINITE DELIVERY construction or design-build contracts. Recurring work like fixing plumbing or painting perhaps, but not entire buildings that very in location, time, scope, market conditions, site conditions, etc.

If it doesnt work then dont use an ID/IQ for construction. Above all, don't waste taxpayer money for the "convenience" of a task order contract if you are going to lock in pricing when it doesn't make economic sense to do so. Professor Ralph Nash has a lot of influence and ought to help make the case for something different where it is impractical to lock in pricing for future task orders.

By the way - using price and other competition among highly qualified firms selected to be pool members mirrors the authorized and PREFERRED 2 phase design-build method in FAR 36.3. Its a good fit when a MATOC is used for the right reasons. There ought to be some support in the industry, like the Design-Build Institute of America. Professor Ralph Nash knows them and has a long relationship with them.

It takes more than just knowing and blindly following the "rules"if they are dumb. It takes business judgement to do the right thing and a cry to fix broken contracting systems. The Comp Gen just this week came out , severely criticizing the government for sloppy contracting in Iraq and Afghanistan, wasting many tens of billions of dollars.

Joel,

I'm not sure if you're are speaking to a general audience with the above post, or if you think I'm trying to be one of the people fitting square pegs into round holes, but let me assure you that I definitely am not.

Sadly, COs usually do have to follow (although not blindly - often our eyes are bulging at the stupidity) "dumb" rules - because they are usually based in law. No one has given any CO the right to ignore laws or regs they think are dumb. There are a lot of "dumb" rules Contracting Officers have to follow. We can - and do - work to change them, but just like one man's pork is another man's job program, one man's "dumb" is another man's great idea, so actually getting them changed is rare. This IDIQ issue is a perfect example. I know that it's been written about in N&CR many times, but nothing happens. Performance-based contracting is another one - it's pushed repeatedly but even OFPP has stated (I don't have the memo in front of me so I'm paraphrasing) that they can't prove that it actually works.

Mike

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Guest Vern Edwards

Joel started out by making a good point: Don't use an IDIQ contract for construction if it doesn't make sense to do it.

I'm not sure what laws and regulations he thinks we ought to change, what rules are "dumb," or what part of the contracting system is "broken" with respect to what Mike asked about. And I'm not sure what the recent report about contracting in Iraq and Afghanistan has to do with it.

As far as I'm concerned, the GAO/COFC "binding prices" rule makes perfectly good sense.

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I think I understand Joel's point--he can correct me if I'm wrong. Joel's beef is not so much with the "binding prices" rule as it is with the requirement for price competition when making the initial awards of IDIQ contracts under a multiple-award scenario. He would probably be in favor of a change in the law that permitted selection of IDIQ contractors based soley on nonprice factors, the assumption being that price competition would occur at the task order level.

Does that sum it up, Joel?

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As far as I'm concerned, the GAO/COFC "binding prices" rule makes perfectly good sense.

Vern, I don't think the rule makes economic sense to use binding prices for follow-on task orders for construction ID/IQ's for projects other than routine, small jobs with repetitive, similar work. I guess we disagree then.

I believe that there ought to be a carefully outlined exception for ID/IQ construction and design-build contracts projects where the scope of each task is unique or different. The process would use a seed task order with binding price competition for the base contract establishment, with follow-on task orders competed among the pool members . If it is practical to lock in any prices for subsequent task orders, that could be included, otherwise follow-on task order price or price and quality competition would be sufficient.

The establishment of the Base Contract pool or pools would follow the 2 phase design-build procedures in FAR 36.3, wherein only the most highly qualified proposers short-listed in phase 1 of the base contract competition compete for the seed task order in phase 2 and for the base contract pool(s) on a Trade-Off Best Value basis. The seed task order prices are binding if awarded the seed task order. Otherwise, the proposed prices along with non-price factors are considered in the selection of the base award pool members, who then will compete for follow-on task orders.

The design-build scenario is already established process in FAR and in industry for single award contracts. For D-B MATOC's the only difference would be in the price competition by not locking in prices for future tasks. By their very nature, Design-Build contracts allow enough flexibility that there will be design, scope, site, material selection, subcontractor selection, design criteria updates, market condition, new Davis-Bacon Act Project wage Decisions, etc. differences between each task order that would preclude locking in prices for future task orders.

The major difference would be allowing its use for straight construction MATOC's - again only authorized for projects other than routine, small jobs with repetitive, similar work. Most of the same variables exist for individual construction projects as for design-build projects.

Simply trying to administer the effects of individual DBA project Wage Decisions on contractually fixed unit prices is a monumental contract administration task that makes such pricing impractical, let alone all the other variables.

I may try to pursue this through the Design-Build Institute of America. They were involved in development of the original D-B coverage in FAR and also have ties to Professor Nash.

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I think I understand Joel's point--he can correct me if I'm wrong. Joel's beef is not so much with the "binding prices" rule as it is with the requirement for price competition when making the initial awards of IDIQ contracts under a multiple-award scenario. He would probably be in favor of a change in the law that permitted selection of IDIQ contractors based soley on nonprice factors, the assumption being that price competition would occur at the task order level.

Does that sum it up, Joel?

No, Don. My argument is just the opposite. Sorry that I cant get my point across. The binding seed task order competition for the base contract pool award is spot on. The problem - as I have tried to describe over and over - is with locked in prices for follow-on task orders for major construction projects or for design-build task orders, with too many variables to lock in prices. Since the 2 phase D-B process in FAR 36.3 is favored by industry and is for the most part the only authorization for D-B in the FAR, its use of a pool of highly qualified contractors for pricing task order competition ought to fit well for task order pools.

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Joel,

I'm not sure if you're are speaking to a general audience with the above post, or if you think I'm trying to be one of the people fitting square pegs into round holes, but let me assure you that I definitely am not.

Sadly, COs usually do have to follow (although not blindly - often our eyes are bulging at the stupidity) "dumb" rules - because they are usually based in law. No one has given any CO the right to ignore laws or regs they think are dumb. There are a lot of "dumb" rules Contracting Officers have to follow. We can - and do - work to change them, but just like one man's pork is another man's job program, one man's "dumb" is another man's great idea, so actually getting them changed is rare. This IDIQ issue is a perfect example. I know that it's been written about in N&CR many times, but nothing happens. Performance-based contracting is another one - it's pushed repeatedly but even OFPP has stated (I don't have the memo in front of me so I'm paraphrasing) that they can't prove that it actually works.

Mike

Mike - speaking to a general audience, I'm not singlying you out.

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Guest Vern Edwards
Vern, I don't think the rule makes economic sense to use binding prices for follow-on task orders for construction ID/IQ's for projects other than routine, small jobs with repetitive, similar work. I guess we disagree then.

No, we don't disagree on that. But my thought is that one should not use an IDIQ contract for other than routine, small construction jobs with repetitive work.

What we may disagree about is the principle that in order to have price competition to satisfy CICA, offerors must compete on the basis of binding prices. If I understand you rightly, you think that there ought to be an exception to that principle for certain kinds of construction work. I don't see why that should be the case. In my opinion, it is foolish to think that there can be meaningful price competition on the basis of prices that will not be binding after award.

Joel, your posts would be easier to understand if you would be succinct. You have written thousands of words since Mike revived this thread (I quit counting at 2,000), and yet you are still trying to get your point across. Think things through, then post. The fewer words the better. And it is not always necessary to quote every post to which you are responding or to quote a prior post in its entirety. The less you make people read the more effective your posts will be. I love ya' buddy, but you do go on a bit too long.

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Vern, the Judge in the Tyler Construction v US case I cited earlier wrote in some detail why such design-build MATOC's can be necessary, reasonable and useful.

The price competition would be the same as the 2 phase D-B concept already deemed acceptable..

I agree with the current requirements being adequate for simple, repetitive construction tasks.

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No, we don't disagree on that. But my thought is that one should not use an IDIQ contract for other than routine, small construction jobs with repetitive work.

Verrn, I do agree with you that one should not use a multiple award IDIQ contract for other than routine, small STRAIGHT construction jobs with repetitive work. It isn't necessary for individual, fully designed construction jobs that would require extensive take-offs and estimates to prepare a price proposal. There is nothing extra-special about that. Most all construction companies are capable of doing that. I should have said that earlier and have felt that way for sometime. I was focusing on design-build MATOCs and mistakenly included "construction". A Construction MATOC might possibly be justifiable in some type of contingency operation - but then there is the Commission on Wartime Contracting Report...

I do feel that design-build MATOCS can be very useful for design-build projects, due to the various time and resource savings possible in not having to go through the 1st phase of identifying the most highly qualified firms for each project, if it is applied properly. Our organization requires Acquisition Plans for such MATOC's that get extensively reviewed from an acquisition planning perspective before they may be used. Large, time sensitive programs with many individual projects have been a good fit for this D-B acquisition approach. Design-build projects include many variables by their nature and firms not only compete for task orders on price but on their design, continuing past performance evaluations and often other management aspects, such as time and key subs and key personnel.

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Guest Vern Edwards

Joel:

I think that what you have been saying is that the rules about IDIQ contracts should be changed so that agencies can award design-build MATOCs that do not include binding prices in the base contract. If that is what you are saying, then I have no opinion one way or another. I'm sure that design-build MATOCs can be a good idea, but it appears that agencies are stuck with the binding prices rule whether it makes sense for design-build or not. I don't know how you would go about getting the rule changed without legislation.

MIke's question was whether, when conducting a competition for the award of a construction task order contract, you have to have binding prices in the contract in order to satisfy CICA. The answer, according to the GAO and the COFC, is yes.

When I decide to answer a question, I try to provide a short, clear, and correct answer to the question that was asked. I try to be as to the point, as clear, and as brief as possible. I may edit my answer 20 times in pursuit of that goal. [i keep a coffee mug on my desk bearing the writer's motto: "REVISE. (You know you want to.)"] Once the question has been answered, if possible, then it's fine with me if others want to elaborate, postulate, and speculate.

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Vern, 10-4, understood and agreed concerning Mikes question.

As for pricing design-build MATOC's, there have been several GAO and at least one Claims Court case in which the price evaluation method was at least mentioned and not shot down.

But the case law that you cited would appear to require some legislation to clearly allow price competition for follow on D-B tasks without the need for fixed or maximum unit-pricing.

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