contractshelp

This is great advice. Thank you for your help.

No, of course not. I was just trying to figure out if there is another avenue for contact. Sorry, my post was poorly worded.

I am a former Contracting Officer looking for some help. We have a software company and are partnered with a SDVOSB who holds a GSA contract. We recently found a few sole source awards that had been made to a competitor of ours. I went into FPDS, got the information, and emailed the CO. He passed me over to the COR who said that she wasn't the end user but could forward my information along. In the process, I also reached out to the SBA rep for the agency who was so condescending that it blew my mind! So my question is: do I have to wait until a new sole source award is made to protest? is there another avenue for attempting to alert the involved parties that we can meet the same requirements? and if the RFQ is not requirements based, but instead is just a software maintenance renewal that requires "proprietary maintenance" for the existing solution, am I just out of luck? Oh, and the SBA rep also told me that there is no competition required under the SAT......... wow....

They are the same. I was just using the only terminology I know for this practice, which is "registered pricing" in the IT world. THANK YOU!! This information is EXTREMELY helpful!

Maybe I am reaching here - but it seems to me that you are saying anytime I interact with a vendor in a one on one context, there is an OCI. Even though the FAR allows me and encourages me to seek input from industry when in the planning phases of any project, I should not do so for fear of an OCI? That does not make sense and is not at all in line with what is coming down from both the Federal CIO and OFPP. In regards to the hard drives, that was an example that I had given, which I later retracted, stating that my logic in using that example was off. The actual questions that I was asking was: Does registered pricing, an accepted practice in the IT arena, hinder competition? My example is: I have a PM who knows what kind of system he needs, but, in order to clearly define his need, get actual part numbers and maybe receive a budgetary estimate, he works with a reseller (maybe multiple resellers) - this reseller will then take the information, go to the manufacturer and obtain "registered pricing." This pricing is the lowest that the manufacturer will offer to any reseller. Even if I solicit this as brand name or equal, the reseller bidding with registered pricing will be the lowest from that manufacturer. Other manufacturers may be a much more that the initial company, knocking them totally out of the competition - leaving only resellers that have bid with equipment from the initially specified manufacturer. The reseller may choose to pass this savings onto the government, or may choose to keep this as profit. Does this practice impact competition, should we be policing this practice, if so, why and how?

Jacques - Thank you! Both references are extremely helpful. outsidelegalguy - I see your point, but I think we may just have to a agree to disagree. I see the exemption applying to any situation in which a contractor (yes, even just one) provides input. What if I had a sole source acquisition, and had reasonably determined it was sole source through market research. The contractor that it must be awarded to participated as an industry representative in the determination of my specifications which later led me to determine that they were the only responsible source - according to your logic, since they were the only one to participate in the determination, not part of a group, they should not be allowed to submit a bid?

don - yes, that is why I stated that it helped to answer my question, kind of. although they are not exempt from the competitive process it still does not explain if their ability to register pricing is assumed to impact competition, therefore changing the outcome of an RFQ. outsidelegalguy - maybe I am missing something, but the fact that it says "contractors" just means it is applicable to any contractor. again, I could be wrong here, but if you read the first part it clearly uses "contractor" in the singular form, before moving on to say, "that contractor" and then moving on to "shall not apply to:" which in my mind cannot be followed by a singular noun because that would denote that there is a specific party in place instead of the language being applicable to any "contractors" that participate.

absolutely. but not quite my point. if i recieve specifications from a PM that requires a brand name justification (which they already provided) they have restricted competition to a single manufacturer, but not a single reseller. if, in order to build those specifications, they involved a reseller who then registered pricing with the manufacturer, did they also pre-select the reseller who will win because they recieved the opportunity ahead of time to get registered pricing from the manufacturer? just FYI - I found a partial answer to my question under FAR 9.505-2(a)(1)(ii) after a member of our group suggested that anyone who recieves registered pricing by working with a PM before an RFQ is published not be allowed to submit a quote. 9.505-2 Preparing specifications or work statements. (a)(1) If a contractor prepares and furnishes complete specifications covering nondevelopmental items, to be used in a competitive acquisition, that contractor shall not be allowed to furnish these items, either as a prime contractor or as a subcontractor, for a reasonable period of time including, at least, the duration of the initial production contract. This rule shall not apply to? (i) Contractors that furnish at Government request specifications or data regarding a product they provide, even though the specifications or data may have been paid for separately or in the price of the product; or (ii) Situations in which contractors, acting as industry representatives, help Government agencies prepare, refine, or coordinate specifications, regardless of source, provided this assistance is supervised and controlled by Government representatives. i am still convinced that registered pricing does not restrict competition - most of my office argues the other direction. hence why I am trying to find some validation here.

DGM - is this commercial or non-commercial? Under SAP, you could just issue a combined synopsis/solicitation (FAR 13.105) Steve - Maybe this is different because I am non DoD, but Micro purchase is below 3k, if you are looking at posting requirements between 15k and 25k then you aren't even dealing with a Micro purchase. Again, I could be wrong if DoD has different definition and requirements.

Formerfed - I agree totally. The issue that is being raised in our office is this: If the PM reaches out to one business to help him configure the system, then that business will register pricing which yes, does compensate them for the additional work that they put in. But, has our PM negated competition by choosing a vendor (most likely someone that he already has a relationship with) and allowing that vendor access to information that the rest of the community will not have access to until the RFQ is posted?

I am replying to my own post after noticing the error of my logic. The two situations are different, our agency reached out to a vendor in one, and our agency did nothing to impact the fact that a reseller had these hard drives in another.

Frequently, our PMs work with resellers to obtain baseline pricing for various IT equipment. They reach out to resellers to figure configurations for computers, or what additional connections they will need for a large system of servers. This reseller is then able to obtain "special pricing" from the manufacturer. One of my colleagues argues that this is restricting competition since the manufacturer only offers special pricing to one reseller. I would agree except for the fact that that reseller will probably just tack on an additional markup to the price that they received, making their offer competitive, but not always the lowest. In my mind, this is not restricting competition since the free market allows resellers to obtain requested products from any source. For instance, I recently put out an RFQ for HP specific hard drives. The end user had worked with a particular reseller to price these drives. When I made an award the reseller came forward and asked me who won, I let him know who had won, and that the difference was by almost 1k per drive. He immediately said, they must be grey market - I had registered pricing. Turns out, the reseller that won had been sitting on these hard drives for a couple years, hence the low pricing. To me, this is the same concept - by circumstances outside of the contracting offices control, there is a difference in pricing between resellers. Isn't that what competition is? It is not about who is willing to make the least amount of profit, but instead who can provide the best product for the best price?

I need to purchase a specific type of computer hardware. In building this hardware system my COTR reached out to a vendor to help him configure and design the system (get correct part numbers, find all necessary software etc.) After posting this requirement on a GWAC I started to get feedback from vendors with whom I work with on a regular basis saying that they would not bid because the large company that manufactures these products offers select pricing to the vendor that works with them to design the system. I was told that this manufacturer offers two categories of pricing, gold at a 40% reduction and silver at a 20% reduction, and allows only ONE reseller gold pricing essentially pre-selecting who would win this RFQ. I encouraged some of the small businesses that I usually work with to ask for pricing and submit a quote as socio-economic status will also be a part of the decision process. After a few days each vendor came to me saying that the larger manufacturer will not return their phone calls even after they tried multiple times through multiple people. I received ONE quote. Which I assume is also inflated in price. I requested price reductions and the company said that this was their best and final (I am assuming they know just like every other vendor that no one else can quote for this). How do I proceed? Although I submitted an RFQ on a system that allows for adequate competition and I know has no protest up to 10 million, I still feel swindled by this larger company. Is there any remedy for this?

Say I have a customer who requests to purchase a COTS computer. In their market research they received a quote from a vendor for open market pricing. After requesting quotes from randomly selected vendors off the GSA schedule 70 it became apparent that the pricing initially quoted by the open market company (which was also used for budget determinations) was significantly lower than the GSA schedule. I know that you should not compare open market with GSA pricing and than the market research should not have included a quote in the first place, but knowing all of this, how do I truly do my due diligence to my customer. I tell them they have to spend an additional sum of money (in the thousands) instead of just buying from the lowest price?

When using 52.212-5, what is your interpretation of "tailoring" the clause? I interpret this as meaning one cannot change ANY portion of the clause, including deleting the unchecked, not applicable clauses. I can't find any clarification on this issue and am hoping someone out there knows something!