shikakenin

@Vern Edwards or anyone else. Any status on the appeal? All I can find is this: https://dockets.justia.com/docket/circuit-courts/cafc/21-1686 with the following last action. April 23, 2021 Filing 13 **TEXT ONLY** ORDER granting motion to extend time to file brief [ # 12 ] filed by Appellant US. The opening brief is due 06/25/2021. Service as of this date by the Clerk of Court. This order has been issued without an attached document and is official and binding. [770846] [EKD] [Entered: 04/23/2021 12:40 PM]

@Vern Edwards 😘

Sorry for being so late to the party. I like all the arguments and if they don't boot it for jurisdiction Tolliver just may prevail given the favorable long standing statutory, regulatory and shear raw power of the small business constituency. First I must go on a quick tangent about COFC jurisdiction. One of my fave excerpts from GUAM INDUSTRIAL SERVICES, INC., * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant, * * v. * * CABRAS MARINE CORP., * * Defendant-Intervenor. No. 15-588 C Filed: August 3, 2015 top of page 10: "But, FASA provides that “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order,” except in two circumstances not relevant to this case. 41 U.S.C. § 4106(f)(1). ...We acknowledge that this statute is somewhat unusual in that it effectively eliminates all judicial review for protests made in connection with a procurement designated as a task order—perhaps even in the event of an agency’s egregious, or even criminal conduct. Yet Congress’s intent to ban protests on the issuance of task orders is clear from FASA’s unambiguous language..." Will the Federal Circuit boot Tolliver on jurisdictional grounds? I sure hope not. No fun in that! Plus, Tolliver is "Mingled with MAS" so I doubt it gets the boot (COFC certainly DOES have jurisdiction to hear MAS matters). While I generally favor a court of competent jurisdiction over GAO, I like this solid piece of logical argument from Itility. : "Finally, if we adopted ITility’s and SBA’s interpretation that a Rule of Two analysis is required before an agency selects the IDIQ contract vehicle, it is not apparent how an agency can ever get “inside” the IDIQ and exercise the discretion afforded by 15 U.S.C. § 644(r) in connection with the issuance of an order. To this point, if the Rule of Two is satisfied, a contracting officer would be required to set aside the contract for small businesses. Alternatively, if the Rule of Two is not satisfied, the contracting officer would not need the discretion established by § 644(r) and the FAR because there would not be two small businesses capable of performing the order. Thus, SBA’s and ITility’s arguments are not actually proposing a basis on which to distinguish Edmond Scientific, but, rather, would require us to overturn the decision and adopt the parties’ position that the grant of discretion in the Jobs Act only provided an exception to the applicable fair opportunity requirements (which we reject for the reasons set forth above). Therefore, for the reasons above, we reject SBA’s and ITility’s efforts to distinguish Edmond Scientific." My Translation: Adopting Tolliver would render 15 USC 644(r) SQUATLESS (would not mean squat, like EVER, would be completely WORTHLESS). Additionally, adopting Tolliver would mean the FAR council erred in it's preamble to Federal Acquisition Regulation; Set-Asides Under Multiple-Award Contracts when replying to a comment taking the position that 15 USC 644(r) is SQUATLESS. Comment: Several respondents stated that because the court in [Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (2016)] held that a task order was a contract, “contract” as written in 15 U.S.C. 644(j) includes task orders issued from multiple-award contracts, making order set-asides on multiple-award contracts mandatory not discretionary when applying the “rule of two.” . . . Response: The “rule of two” described in Kingdomware refers to the [Veterans Affairs (VA)] statute, 38 U.S.C. 8127, not a requirement in the Small Business Act. The Kingdomware decision is silent on the construction of the Small Business Act. The VA statute and the Small Business Act are written differently, with the former statute applying only to acquisitions of the [VA]. The VA statute only speaks to contracts and is silent on the handling of orders. Because of this silence, the Court concluded that the mandate applicable to contracts also applied to orders, since orders have the legal effect of contracts. By contrast, the Small Business Act has separate and distinct provisions addressing contracts and orders and addresses each in a different manner. Section 1331 of the Jobs Act (15 U.S.C. 644(r)) addresses order set-asides and makes the application of the “rule of two” discretionary for orders placed under multiple-award contracts. 15 U.S.C. 644(j) applies to contracts and mandates application of the “rule of two” for contracts valued at the simplified acquisition threshold or less. 15 U.S.C 644(r) is specific in that it only applies to multiple-award contracts. Legislative history demonstrates that prior to 15 U.S.C. 644(r), there was a mixed record of small business participation on multiple-award contracts. Congress was clear in section 1331 of the Jobs Act that under a multiple-award contract, agencies may, at their discretion . . . conduct a set-aside of orders under a multiple-award contract.... While I covet GAO's position in Itility (I LOATHE being told what to do), if I were to wager, I would bet on Tolliver prevailing. Why? The "Rule of Two" is like Sauron's Ring in Lord of the Rings. One Ring to rule them all, One Ring to find them, One Ring to bring them all and in the darkness bind them. Not in the evil sense (Small business is the bright soul of America) but in its power. The Rule of Two has been around a long time. 15 USC 644(r) is akin to a little P-ant of a NEWB in comparison. However, I find myself stuck in a conundrum. That NEWB has been extremely successful under MAS. In fact, based on that success, SBA has EXEMPTED MAS from various requirements. For example, see this preamble in a recent SBA final rule: Because discretionary set-asides under the FSS programs have proven effective in making awards to small business under the program and SBA did not want to add unnecessary burdens to the program that might discourage the use of set-asides, the proposed rule provided that, except for orders or Blanket Purchase Agreements issued under any FSS contract, if an order under an unrestricted MAC is set-aside exclusively for small business (i.e., small business set-aside, 8(a) small business, service-disabled veteran-owned small business, HUBZone small business, or women-owned small business), a concern must recertify its size status and qualify as such at the time it submits its initial offer, which includes price, for the particular order. My final comment. Interesting how SBA covets the NEWB in the above pre-amble but squishes that same P-ant in Itilty and Tolliver.

See http://smallgovcon.com/statutes-and-regulations/say-what-sba-says-the-runway-extension-act-doesnt-apply-to-sba/ Interesting article on the topic.

Sorry. Posted too quick. In the "interesting scenario" above the first tier subs (in Prime/sub CTA) and JV team members (not the JV itself) has the required experience.

Well said Freyr. Interesting Scenario: An all small business CTA Prime/Sub or JV submits an offer to the Professional Services Schedule when the prime (single entity with subs or JV itself) has zero experience. The solicitation requires the prime to have Two Years of corporate experience as a go/no go factor. The offer is highly likely to be rejected. Assume the Offeror is smart enough to estimate their annual sales at 125K in their offer (125K X 20 years=.$2.5M which reaches GSA's Substantial Bundling Threshold FAR 7.107-4(a)(1)(iii) thereby invoking 15 USC 644(q)(1)), they may be able to protest and win. Such a case would be an entertaining read indeed.

Freyr. Thanks for the response. Sorry if I was not clear in my Qs. Was not asking if JV is prime. Know that. Was asking in the statute if a "Prime" in a FAR 9.601(2) prime/sub CTA is being treated the same as the "JV itself" in a FAR 9.601(1) JV CTA. If so, then a Prime in a FAR 9.601(2) CTA with ZERO experience (like a JV itself with Zero experience, since the JV itself is the Prime in a FAR 9.601(1) CTA) can submit an offer using only the experience of the first tier subs. The statute makes pragmatic sense for JVs. Requiring experience from the JV itself is challenging since the JV itself is generally not long term and now must be "un-populated." However, it makes no sense to me that a "Prime" in a FAR 9.601(2) CTA be given the same "needs zero experience" privilege as the "JV itself." Thanks so much for B-405365, Valor Construction Management, LLC, October 24, 2011. However, that case was prior to the change in statute See PUBLIC LAW 114–92—NOV. 25, 2015 look to top of page (around page 209) 129 STAT. 933. Be interesting to see how GAO would rule on B-405365, Valor Construction Management, LLC, October 24, 2011 today.

See Ekagra Partners, LLC B-408685.18: Feb 15, 2019 which is related but does not answer your Q. Here is my beef with the interpretation that 15 USC 644(q)(1)(B)'s "(B) Teams When evaluating an offer of a small business prime contractor that includes a proposed team of small business subcontractors for any multiple award contract above the substantial bundling threshold of the Federal agency, the head of the agency shall consider the capabilities and past performance of each first tier subcontractor that is part of the team as the capabilities and past performance of the small business prime contractor." is equal to "(C) Joint ventures When evaluating an offer of a joint venture of small business concerns for any multiple award contract above the substantial bundling threshold of the Federal agency, if the joint venture does not demonstrate sufficient capabilities or past performance to be considered for award of a contract opportunity, the head of the agency shall consider the capabilities and past performance of each member of the joint venture as the capabilities and past performance of the joint venture." When I say "equal to" I mean that the "Prime" in (B) is treated the same as the "JV Itself" in (C). In other words, the prime need no experience as "...the head of the agency shall consider the capabilities and past performance of each first tier subcontractor that is part of the team as the capabilities and past performance of the small business prime contractor..." See bold underlined difference. I have three questions: 1. Do you believe the "prime" in (B) is analogous to the "JV itself" in (C)? If so, why? 2. If the "prime" in (B) was meant to be analogous to the "JV itself" in (C) then why do you believe it is not written to have parity with (C) to include the same bold underline text like this? (B) Teams When evaluating an offer of a small business prime contractor that includes a proposed team of small business subcontractors for any multiple award contract above the substantial bundling threshold of the Federal agency, if the prime does not demonstrate sufficient capabilities or past performance to be considered for award of a contract opportunity, the head of the agency shall consider the capabilities and past performance of each first tier subcontractor that is part of the team as the capabilities and past performance of the small business prime contractor. 3. Do you believe that a solicitation subject to 15 USC 644(q)(1)(B) could mandate the "Prime" have demonstrated at least one experience project? Why or Why not?

Vern, Obviously I was referring to FAR 16.505. Otherwise my topic would have read "You cannot issue a BPA against a BPA." I didn't think I needed to explain it to you. Regardless, I speculate GAO would rule the same if one were to issue an ID/IQ order instrument against an established FAR 8.405-3 multiple award BPA. And your answer for issuing an ID/IQ order instrument under FAR 16.505 is to simply stay under the $10M protest threshold knowing the practice would not withstand one. Brilliant. Too bad FAR 8.4 orders cannot partake in the same GAO protest pass. The GSA FSS program could enjoy issuing BPA orders under BPAs.

While Vern Edwards disagreed with my bold assertion http://www.wifcon.com/discussion/index.php?/topic/2516-delivery-order-against-a-gsa-bpa/ (see post #11), looks like GAO agrees with me: B-411699,B-411796, Harris IT Services Corporation, October 2, 2015 http://www.gao.gov/products/B-411699,B-411796 My fave from the referenced Post Vern's Post # 15 "As for your protest speculation, who cares? I can come up with solutions to all of your concerns while making coffee in the morning half asleep. What do you think procurement is -- rocket science?" Well, apparently the FBI should have cared. Perhaps they should have consulted with a Rocket Scientist. Kudos to them for trying. I AM a fan of such innovation, however, as I speculated, such an order instrument would not withstand a protest and indeed it did not.

No, I do not believe the rules are too hard. Generally, I speculate it is policy, legal and COs accustomed to operating within FAR 15 who make it hard. I have seen where people lack reverence for the flexibility which exists within the gray. Not saying FAR 15 is black and white, but certainly more so than FAR 8.4. I have seen where it appears policy and legal don't want to afford COs the autonomy to operate fully within FAR 1.102(d) and generally don't like "gray" as that means giving COs more judgement power. The only piece of FSS that is too hard is FAR 8.402(f). My only wish is that it be re-written in such a way to afford it the same flexibility as any other IDIQ contract. Reference FAR 16.505 ( b )(3) Pricing Orders. Perhaps if FAR 8.402(f) were re-written as follows, then the FSS program would truly be compatible (ease of use wise to accommodate a total solution) to the breath of fresh air afforded by the likes of the un-priced OASIS (whose ceiling rates are ONLY for sole source T&M orders). REVISE FAR 8.402(f) TO READ: (f) For administrative convenience, an ordering activity contracting officer may add items or services not priced on the Federal Supply Schedule to a Federal Supply Schedule blanket purchase agreement (BPA) or an individual task or delivery order only if-- (1) The items or services are integral to and in support of the primary Federal Supply Schedule priced items/services being acquired under the Order; (2) The ordering activity contracting officer has determined the prices for the items or services not priced on the Federal Supply Schedule are fair and reasonable; (3) The items or services are clearly labeled on the order as items not priced on the Federal Supply Schedule.

Wow, that's helpful. So what you are really interested in is ridicule. You did complete your mission. Nice work. I am sure you will respond with more of the same. That seems to make you feel better, and it is entertaining. I am happy I could assist!

Ok, enlighten us with your solution to the fair opportunity problem.

Vern, Pretend for a moment that the phrase “A BPA against a BPA or an ID/IQ against an ID/IQ” is God. Now imagine that I said “There is no such thing as God. “ Prove to me that I am wrong. You cannot. Nor can I prove that I am right. Now back to the issue. You are correct. There is no explicit prohibition I am aware of against issuing a BPA against a BPA or an ID/IQ against an ID/IQ. There is also no prohibition in the FAR against me stating that a Chipmunk is in fact Cinderblock. Does the absence of explicit prohibition of an action justify its implementation? I speculate that if a CO competed and issued a BPA as an order instrument against an existing Multiple Award GSA BPA program and it were protested on the grounds that any future order issued against that BPA order instrument (or whatever “innovative” term you assign to it (e.g. “Supplemental Ordering Protocol” (SOP)) violates the fair opportunity requirements, the CO would lose. The risk of losing would increase regarding a BPA program awarded with hourly rates. There would be no way to compete price at SOP establishment for the future SOP orders with regard to labor mix/LOE as that is the nature of an indefinite quantity. Since they cannot be priced or known at the time of SOP establishment, then issuing them without competition violates the requirement for fair opportunity under the multiple award GSA BPA program. Unless, of course, you are Leonardo DiCaprio trying to achieve inception and are diving down a few dream levels. He would have no qualms about issuing a “Subordinate Ordering Arrangement” against an existing “Auxiliary Ordering Arrangement” that was issued from a SOP that originated from a multiple award BPA from which the FSS contract holder had its contract cancelled by an extraction dream guardian. So, I DARE a CO to do it. Go ahead and issue a BPA against an existing BPA. Why the hell not? Just because the FAR is silent on the fact that a Chipmunk is NOT a Cinderblock should not hold you back. Don’t be a wuss. DO IT.

jonmjohson nailed it. To add, when using the Deviation the contractor can only buy items/fixed priced services (e.g., oil change at $X). In other words, they can only issue FAR 8.405-1 orders, NOT FAR 8.405-2 orders. This is where everyone gets confused. To turn on the deviation, the CLIN must be T&M/LH, but the contractor using the deviation can only place FAR 8.405-1 orders. They cannot place an order for hourly rate services (FAR 8.405-2). I can tell you that contractors do not like the FAR 51 deviation. Why? because they cannot charge ONE RED CENT for managing the order as the procedures state "The contractor passes through the purchase price of items procured under FAR Part 51 with no fee or markup" . This restriction does not exist in a GSA Contractor Teaming Arrangement as a Services FSS holder who Teams with a Products FSS Holder can charge hours to manage the coordination of supplies needed. No can do on FAR 51 Deviation process as it must be a straight pass through. At least that is how I have heard it is being enforced. Here is a copy of the actual signed deviation: http://www.gsa.gov/portal/mediaId/170991/fileName/Part_51_Deviation__II.action There is another challenge. If your order can be accomplished as an FFP order, but you need FAR 51 Deviation ability to achieve a Total FSS Solution (the whole purpose of why the Deviation was created in the first place), then the only way to do so is make part of your order T&M/LH. The T&M/LH determination required in FAR 8.404(h) does not include in its rationale "because that is the only way I can use the FAR 51 Deviation" now does it. Additionally, you would be limited to an order lasting no more than 3 years unless you get HCA approval. While I applaud GSA for getting the deviation through (which expires, in October this year BTW (but I am sure it will be extended)) GSA should have gone the extra mile and made it applicable to ALL order types and not require them to have a T&M/LH CLIN (which mandates the D&F in FAR 8.404(h). However, I am sure I am just being a semantic FAR Curmudgeon as I doubt that many are following FAR 8.404(h) properly and just stating a sentence or two that "T&M/LH must be used for FAR 51 Deviation Authority" as their rationale for the T&M/LH D&F.