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  2. The Government considered your experience and the winner's experience as the same. You haven't disagreed with that finding. Your price was higher than the winner's price. Sounds to me like the Government selected the right contractor. I see no fatal error in the Government's conduct of the acquisition, based only on your explanation of the facts. Three of us have explained our opinions based on our own past experiences -- I hope this has been helpful to you. Have you filed your protest yet? Please share the outcome when you get it -- this is how we all learn for the future.
  3. Edit to add: M.Braun, Inc., B‑298935.2, May 21, 2007 seems to rule that the incorporation of 52.212-1 changes the rules of an RFQ and any late submissions are to be considered late. A search also finds, among others, a more recent decision that seems very clear that incorporating 52.212-1 does change the rules for late submissions, etc, in Peers Health, B-413557.3
  4. The due date was not changed. All bidders (but only those bidders) who submitted by the due date, were allowed to send the missing information. While yes, this would normally be allowable under an RFQ/Simplified Acquisition, it appears that there are many examples of where that rule was changed by language inserted (often inadvertently) by the CO. I say inadvertently because in some of those cases, the COs thought they were correct in allowing late submissions while the GAO ruled otherwise.
  5. Last week
  6. Our dim-witted automated systems might contribute to the problem — it might be impossible for a contracting officer to approve a payment for less than the invoiced amount. My instruction in that case was for the contractor to show the withholding in its invoice. For example, if the earned fee was $100 and the withhold amount was 15%, I told the contractor to show this in the invoice with a payable amount of $85 and $15 shown as earned but withheld and added to the cumulative withheld amount.
  7. I check them, but only from time to time. It's mostly out of curiosity. I remember arguing with Vern that, when the Committee determines the price to be paid, that was exactly the type of exception envisioned by 15.403-1(c)(2). I'm not sure I ever convinced him...
  8. Our consultant (who's a former DCAA auditor) is telling us that DCAA's interpretation of 52.216-8 Fixed Fee (Jun 2011) is that the contractor is required to withhold 15% of the fixed fee, that the 15% is mandatory, and if contractors don't do this, they'll be cited with an accounting system deficiency. She's consulted for several other contractors and said that one of them was recently cited with an accounting system deficiency for this very reason, which was fully supported by the DCMA ACO. My interpretation of this clause is that it does not impose any kind of obligation on the contractor. The clause does contain a requirement for the Contracting Officer to withhold a certain amount/percentage of the fee, and to release a certain amount/percentage as stated in the clause, but there’s no obligation for the contractor to withhold any of the fixed fee (i.e. underbill the Government on the fee). I think the contractor should bill the full amount of the fee and the Contracting Officer is responsible for withholding the required amount of fee from payment. If the contractor were to underbill the fee, there would be nothing for the Contracting Officer to withhold. If the Contracting Officer doesn’t do any withholding of the fee, that should be on the Contracting Officer, not the contractor. Our auditor then told me that DCAA pamphlet 7641.90 ("Information for Contractors") also states that it's the contractor's responsibility to withhold 15% of the fixed fee. I reviewed the manual and it doesn't actually state that, but rather refers back to FAR 52.216-8 and provides a sample voucher where the Contracting Officer has designated a 15% reserve for the fixed fee. I certainly don't view this sample voucher as direction or a requirement for the contractor to withhold/underbill 15% of the fee. While a withhold amount less than 15% is apparently almost unheard of, the FAR does state that the amount of the withhold is a subjective "not to exceed 15%, or $100,000, whichever is less, to protect the Government's interest", so the reserve technically could be a lower percentage, based on what the Contracting Officer feels is adequate to protect the Government’s interest. That DCAA could cite a contractor for not doing something that isn’t required by contract is very frustrating and concerning to me. The clause/regulation states as clear as day that the Contracting Officer is to withhold a reserve not-to-exceed (discretionary amount) 15 percent of the total fixed fee, which is why I’m surprised that DCAA could expect contractors to interpret that to mean that the contractor must voluntarily underbill the fixed fee by exactly 15% (a non-discretionary amount). And apparently if contractors don't do the mental gymnastics required to arrive at this same bizarre interpretation of the clause, DCAA will cite the accounting system as deficient and may even require repayment of the fee reserve that "should have been withheld". I should also mention that our company has had several CPFF contracts with both the DoD and EPA over the years and we've never been required to withhold a percentage of our fixed fee from billings and have also never had any portion of fee withheld by the Gov't. I'm not saying it shouldn't have been withheld (it should have), but it just hasn't happened. Am I missing something here?? Has anyone else had to deal with this?
  9. I have to disagree. As has been stated in this forum several times, the FAR does not apply to contractors. Instead, it applies to government personnel when executing an acquisition. FAR 1.101 reads in part "The Federal Acquisition Regulations System is established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies." Contractors are required to comply with the terms of their contracts. If a contract term incorporates a FAR section, the contractor must comply with that section to the extent it applies to that contract.
  10. VipinOwl, throughout this posting, I have not been quite sure of your understanding about what party is required to comply with a particular FAR /FAR Supplement. For example, if a regulation states throughout it "contracting officer shall...," that regulation is not worded as applying to contractors. Vice versa is also true. I have met many contractor and government professionals that did not know or understanding the difference. FAR 15.403-1(c)(1) is one of those confusing areas. If your focus is adequate price competition regarding a prime contractor's subcontract, has it been your understanding that FAR 15.403-1(c)(1) applies to the transaction, and also applies to a government awarded contract? Just checking with you.
  11. Happy Memorial Day! Please take some time this weekend to remember those veterans who have sacrificed for our country. And amidst the fun of kicking off summer this weekend, you can read up on some of the latest happenings in government contracting. In this Memorial Day edition of the SmallGovCon Week in Review, you can read about GSA’s new e-commerce platform, a new federal civilian cloud platform, and whether cyber security failures can lead to a false claims case. How to support veterans and service members this Memorial Day in ways that actually make a difference. [Mic.com] HUD Is Hunting for Vendors for the Next Phase of the Centers of Excellence. [Nextgov] DISA eyes $170M in savings from Fourth Estate consolidation program. [FederalNewsNetwork] Court Allows Cybersecurity Fraud Case Under Federal False Claims Act. [SecurityBoulevard] OMB proposes creation of acquisition modernization test board. [ExecutiveGov] Federal Acquisition Service has fixed IT pricing problems found in 2016 audit, report says. [fedscoop] GSA digs into details for planned e-commerce portal. [FCW] DOD, civilian cloud office app contracts advance. [GCN] Agencies Agree to Do More to Identify Contractors With Tax Debts. [Nextgov] Thornberry unveils potential punishments for DoD’s slow implementation of acquisition reforms. [FederalNewsNetwork] Why OMB is ushering us into the second golden age of acquisition reform. [FederalNewsNetwork] View the full article
  12. PD, I think you are missing the point that ji made and that is the other offeror's quote would not have been late in this situation because the government changed the due date.
  13. As I drill down through the citations in Turner, etc... I get to M.Braun, Inc., B‑298935 wherein it states: Again, I see a trend of support that incorporation of 52.212-1 becomes a modification to the general rules of an RFQ.... Unless I am misunderstanding what I am seeing. I am not a lawyer.
  14. No. Certified cost or pricing data is required in the circumstances described in FAR 15.403. Note that 15.403-1 explicitly prohibits contracting officers from obtaining certified cost or pricing data when the conditions listed there exist. Note that 15.403-1 does not make any distinctions in regard to how the contract is priced. Thus, if the conditions in 15.403-1 exist, certified cost or pricing data may not be obtained in regard to a cost reimbursement contract. On the other hand, if the conditions in 15.403-1 exist, data other than certified cost or pricing data may be submitted if that is the only way the contracting officer can determine that the price quoted is fair and reasonable. This data is analyzed using price analysis. In short, there is no blanket requirement that certified cost or pricing data or even data other than certified cost or pricing data must be submitted when the government contemplates award of a cost reimbursement contract.
  15. Hi Ji20874, In Turner it states "FAR provisions in Parts 14 and 15, governing the late delivery of bids and proposals, generally do not apply to the late delivery of a quotation. However, where as here the RFQ contains a late submission provision that quotations must be received by a stated deadline to be considered, quotations cannot be considered if received after the deadline. See Data Integrators, Inc., B-310928, Jan. 31, 2008, 2008 CPD para. 27 at 2." In my instance, such provisions were made by the incorporation of the listed 52s in my original post... at least that is my argument. It seems supported by Turner wherein the inclusion of such provision changes the rules of the RFQ as it did in Turner where the protestor was considered late in their quotation. As you stated, late submissions are typically allowed but Turner points out that the rules are modified by provision in that case. This is why I have the question if the incorporation of 52.212-1, without modification, qualifies as a provision that changes the rules of an RFQ as it did in Turner, for instance.
  16. I also consider it a tool to determine whether a price is “fair and reasonable”. However, the Appeals Boards have carved out a distinction by saying, in essence, that “fair and reasonable” tends to look at the upper end while “cost realism” looks to see if it is unrealistically “low” for the scope and probable effort. For cost reimbursement price or cost evaluations, cost realism analysis is usually important for various reasons, as explained in 15.4. Due to the nature of cost plus, the contractor’s primary risk is a lower fee in order to be price competitive. The government’s risk is that it will have to pay more if the contractor uses the budget without completing the effort. Accidental or deliberate lowballing is possible with an unrealistically low price. For competitive fixed price evaluations, what one can do with the results of a cost realism analysis is more restrictive. You can ask the Offeror or contractor to verify their price. If there are discussions, you can raise the issue if you think that they can’t do the work for that price, particularly if you think that it would endanger performance or result in poor relations, corner cutting, trying to make up the difference through excess claims, etc. I’ve seen defaults and even bankruptcies by awarding contracts at unrealistically low prices. Accidental lowballing is not good for either the contractor or the government. I believe that the position of the boards and courts is that a contractor may assume the risk for lowballing on a firm fixed price contract effort. However, if the government determines that a lowball price would endanger performance, it can take that into consideration in a trade off. But to declare a low price disqualifying may be a responsibility matter, with all the restrictions and other ramifications. For either CP or FP, it is important to ensure that the firm understands the scope and complexity, etc. of the effort, to avoid pricing mistakes. There is much more to the concept of cost realism but we don’t need to discuss all the details here. It is part of cost analysis for Part 15 pricing procedures when applicable - yes, normally for CP. Sometimes for FP.
  17. Normally, the Committee for Purchase From People Who Are Blind or Severely Disabled publishes its proposed additions and deletions to its Procurement List each Friday. Since it involves government contracting, I post it to the Home Page in the Contracting Rules and Tools column whenever it appears without giving them much thought and I don't read the Committee's posts. I am not familiar with the Committee's rules but do know that its sources can be/are mandatory on the government. However, recently I have read the content of the Committee's weekly postings and was surprised that the items are proposed as required sources of supply for some individual federal agencies or some individual contracting activities. It made me realize that these postings are more important than I originally thought. As a result, I am posting a yes or no question with your answers being anonymous. If you answer no, after reading the Committee's posts, you too may realize these Committee postings are more important than you originally thought.
  18. I'm with ji. There are long-standing precedents allowing retroactive amendments and extensions; agencies are granted a lot of discretion to amend their solicitation. Even if your beliefs were true, GAO would likely permit retroactive amendment and extension to accommodate multiple otherwise-late quoters/offerors to correct their error (omission) and/or increase competition.
  19. Joel, It's interesting you say that. I never considered cost realism as a tool for other than a fair and reasonable price determination. Per the FAR, "Use techniques such as, but not limited to, price analysis, cost analysis, and/or cost realism analysis to establish a fair and reasonable price". I also consider cost realism, a form of cost analysis.
  20. Agencies have some discretion to seek clarification of a question after reviewing a proposal. But when must the agency do so? GAO allows agencies substantial discretion in choosing whether or not to seek proposal clarifications. But the Court of Federal Claims has a dramatically different standard than GAO for reviewing when an agency must seek clarification for a proposal. A recent Court of Federal Claims decision confirms (as in a 2016 decision) that agencies should seek clarification for obvious proposal errors. But according to the court, there is a difference between an obvious proposal error and a calculated decision on the contractor’s part. This decision was about how to tell the difference. In Telesis Corp. v. United States, 140 Fed. Cl. 765 (2018), the court reviewed a bid protest by Telesis Corporation of an award by the GSA under the Alliant 2 Small Business GWAC for information technology services. As part of the proposal, offerors had to provide a Scoring Worksheet to score their own proposals. In particular, “offerors could claim points for having relevant experience” in certain technology categories and had to submit projects and could claim points for each qualifying project. In order to claim the points for a project, the proposal had to include a completed relevant experience project template (“Experience Form”) signed by the cognizant contracting officer (“CO”) for each project. If offerors could not reach the CO, the GSA permitted the CO’s representative (“COR”) directly associated with the project to sign the Experience Form. Offerors who relied on the COR’s signature were also required to provide (1) the CO’s and COR’s contact information and (2) an electronic-mail (“e-mail”) message from the COR to the CO containing the completed Experience Form. The GSA requested the e-mail message to “provide verification that the CO was made aware of the COR’s concurrence with the [Experience Form].” The evaluation had multiple steps. As part of that process, the agency “determines whether a support document substantiates each claimed point on the Scoring Worksheet.” The agency would also evaluate pricing and “the process would continue until the top eighty proposals (or more, in the case of a tie for the last spot) were identified, at which point evaluations cease and contracts would be awarded to the offerors of those proposals.” “Offerors were also informed that the GSA did not intend to hold discussions but would conduct clarifications as necessary.” In its proposal, Telesis claimed it was entitled to a certain number of points for various qualifying projects. “For each of those projects, Telesis attempted to substantiate its points by submitting (1) an e-mail message from Telesis to the cognizant CO and COR requesting a signature on the attached Experience Form and (2) the form signed by the COR. But Telesis did not include an e-mail message from the applicable COR to the CO for any of the projects.” In its evaluation, GSA deducted points because Telesis failed to substantiate “because it relied on the COR’s signature but did not provide the required e-mail message from the COR to the CO.” Telesis then filed its bid protest with the court. Telesis argues that its failure to include the requisite e-mail messages in its proposal was an apparent clerical error such that the GSA abused its discretion by not seeking clarification regarding the missing messages. Telesis asserts that this failure was a clerical error because the omission of the messages did not change the proposal’s substance—the substantive information sought by the GSA was contained on the signed Experience Forms, which were included in the proposal. Telesis further contends that the error was apparent because its intent to obtain the necessary documentation from the government was clear from the submission of the e-mail messages it sent to the CO and COR. Defendant counters that Telesis did not make an apparent clerical error because it failed to submit the correct materials for multiple projects. Defendant also argues that the missing e-mail messages were an essential part of the GSA’s verification process such that their omission was a material deficiency not subject to clarification. The court reviewed the standard for when an agency must seek clarification based on whether it perceives something as an error versus a calculated decision. “Clarifications are limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.” FAR 15.306(a)(1). ” Under the same FAR provision, “offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors.” Based on this provision, the court noted that “the GSA’s decision to seek (or not to seek) clarification is within its discretion.” But the court will evaluate the reasonableness of an agency’s decision. “A critical component of evaluating the GSA’s decision to not seek clarification is whether it should have discerned that the protestor made an error rather than a deliberate decision” based, in part, on the “the obviousness of the error.” The court denied the protest because “Telesis does not direct the court to any record evidence before the GSA during the evaluation stage suggesting that Telesis’s submission of the e-mail messages it sent to the COs and CORs rather than the messages sent by the CORs to the COs was an apparent error rather than a deliberate choice.” The court relied on the fact that “Telesis relied on the COR’s signature seven times to substantiate the claimed relevant experience, and each time Telesis repeated the same error: submitting the wrong e-mail message. The repetition suggests a calculated decision.” In addition, the court noted that including emails “that are relevant to (but insufficient for) substantiating the claimed points . . . is not so peculiar that the GSA was obligated to seek clarification.” I interpret the court as saying, if you’re going to err, err in a spectacular manner. If you make a minor error, it’s possible the agency could think you were doing it deliberately. This comes down to a judgment call on whether an error was so “peculiar” and “obvious” that the agency should have noticed. In that type of situation, the court may sustain a bid protest, even if GAO would not. View the full article
  21. In a simplified acquisition, FAR part 13 only requires the agency to furnish a supplier “a brief explanation of the basis for the contract award decision,” not an actual “debriefing.” The provision at FAR 52.212-1 does not promise a debriefing. If you have a basis for a post-award protest, it is due 10 days after notice of award (not after the alleged debriefing which really was not a required debriefing). It appears that you already objected to the contracting officer's e-mail (after quotes were received) to all responders to submit their experience information on a particular form. You filed an agency protest, and lost that protest. You did not follow-up with a GAO protest. This matter is probably untimely for protest now (being more than ten days since you learned). Even if not untimely, you would have to show that you were prejudiced by the contracting officer's action, but it seems as though everyone was treated equally. So, what is left? You and the winner rated equally on experience and its price was lower. In Turner, B-400421, the RFQ did not include the provision at FAR 52.212-1, so I don't think it makes the point you think it does. If the winner submitted its experience form by the new time set by the e-mail to all responders, it wasn't late (in essence, the contracting officer's e-mail was a solicitation amendment). Besides, you don't know whether the winner submitted up front (like you did) or later (as all respondents were allowed to). Even if the latter is true, I don't think a protest attempt on your part to disqualify the winner's experience submission will be successful (all responders were treated equally, e-mail was effectively an amendment, and you were not prejudiced).
  22. Patrick, I performed price and cost analysis for many years on new construction contracts and mods, changes and claims thereto. Cost realism is a form of cost analysis but generally for a separate purpose than determining that a price is “fair and reasonable”. It doesn’t matter that cost realism is also discussed in more detail in a separate paragraph (d). That paragraph merely describes cost realism analysis in more detail. Note that “technical analysis” is also an element of and an input into the cost analysis process, where applicable. It is especially applicable to construction contracting. Its discussed in detail in a separate paragraph (e). A technical analysis is particularly useful in forward pricing negotiations. It is incorporated into the cost analysis documentation and pre-negotiations objectives. In fact, the DCAA auditors always mentioned whether or not we had performed a technical analysis for input to the audit.
  23. A side question for you.... how long did it take you to get approved with the JCO? I was approved after some months of waiting... but came to find out I need additional permissions/coordination to access cfolders drawings. It's been just a very long and arduous process.
  24. Hi Everyone, I am a new member here and am from the vendor side of things. This is my first post so I hope I am posting in the right area. I have recently bid a project that is identified as an RFQ on the 1449 although it is also referred to as a RFP in the SOW. After the due date, an email was sent to all offerors asking for them to submit their relevant experience with the explanation that a form, on which to do so, was accidentally omitted from the solicitation docs. I did protest, pre-award at the agency level, that such an allowance should not be made since the solicitation clearly stated the the evaluation would be based on price and experience. A bidder should know what that means and should have submitted an experience profile of some sort. The agency disagreed. Now, here we are post-award. We were not the successful bidder. I requested a debriefing that asked a number of questions, including when each bidder submitted their experience profile and what the base bids were (this solicitation had base items and option items). The response was that this was a solicitation under FAR part 13 and therefor the agency was not required to answer my questions to that extent. I was simply informed that the awardee price was X and my price was Y and that both of our experience evaluations were the same. The solicitation did incorporate the following as listed: FAR 52.212-1, Instructions to Offerors – Commercial, does apply to this acquisition with no addenda to the provision. FAR 52.212-2, Evaluation – Commercial Items, does apply to this acquisition. The specific evaluation criteria to be included are detailed in Section M of this combined synopsis/solicitation. FAR 52.212-3, Offeror Representations and Certifications – Commercial Items, does apply to this acquisition with no addenda to the provision, and is located in Section K of this combined synopsis/solicitation. FAR 52.212-4, Contract Terms and Conditions – Commercial Items, does apply to this acquisition with no addenda to the provision. The incorporation of the above seems to modify some aspects of this being a FAR 13 solicitation. 52.212-1 raises the level of debrief criteria AND makes any modification after the due date unacceptable. I am trying to determine to what extent the incorporation of the above FAR 52s modifies the rules of a simplified acquisition. It seems that it does so quite tremendously. I feel that in Turner Consulting Group, Inc., B-400421, Oct. 29, 2008, it is determined that the inclusion of FAR 52.212-1, without modification, changed the rules of a simplified acquisition so that it must conform with the incorporated rules. I suspect that most or all OTHER bidders may not have included their experience in a timely manner. I recognized the need to include it and did so in time. I am still awaiting the agency to fulfill my debriefing request which they might be convinced to now do (after I cited case law in support of doing so). If I cannot get satisfactory answers or if those answers support my belief that other bidders were late with submitting their experience, I will have to file a protest. But of course who wants to do that unnecessarily? The other aspect of this matter is the evaluation of the submissions. They are price and experience with experience being nearly equal to price. Is there a formula that might make this more clear? Let's assume that none of the others submitted experience in time but that does not mean their bid is considered non-responsive or late (they just don't have the benefit of experience added into their score for award), how much does experience bear in the overall score aka how much higher can I have bid if I am the only one with experience? Thank you all so much for any input. I've really enjoyed reading through this forum and am sure I'll get some very informed responses.
  25. As an offeror myself, I tend to ask a lot of questions. I am fairly new to gov contracting but have been awarded two projects. On both of them, I asked a ton of questions post award. Both project CORs admitted later on that they didn't think I could do the jobs (I assume because of my questioning practice). Upon completion of both projects, the CORs and the contracting officers heaped praise upon me for jobs well done. I tend to be detail oriented and am not eager to accept answers that are not clear. Not to cause offense, but I feel like many of the projects I have bid were very poorly written and the responses to my questions are too often vague. I get the impression that many contracting officers are busy with many things and my questions are an additional burden so the answers are lackluster. I have also read the questions that other bidders submit on published Q&As and I have to cringe sometimes. I do understand your position on those who appear less than "intelligent". I see the same thing but I don't think the qualifiers you've laid out are proper indications of intelligence. Perhaps repetition comes from lack of clarity in answers or probably more so that the asker and the answerer are not on the same page and don't quite realize it. I think most potential bidders are careful or afraid of aggravating the CO, especially prior to award lol. Perhaps this too is a reason their questions aren't as pointed as need be? My biggest pet peeve are non-responsive COs during the bid phase and even worse, non-responsive COs after the bid date. I have had at least two projects that I have bid that I never heard the result of and can only assume were abandoned without notice to any bidders. I think it is important to realize that we bidders do typically put a lot of time into our bids and it that needs to be taken into account. FYI, this is my first post here. Don't take anything as criticism but as honest input from the bidding side.
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