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  1. Today
  2. Formerfed, Agreed and that is how we taught the clause. Evaluation Factors are generally meant to be discriminators in competitive source selections. Therefore, while recognizing that specific individuals might not be available for the length of the contract or even at the start, especially after an extended period before award, what was proposed becomes the new minimum qualifications if and when it exceeds the minimum solicitation requirement. Like I said above, don’t propose the A-Team to win the job, then furnish the B or C team. With key subcontractors, a proposed substitution requires more scrutiny in order to discourage bait and switch and/or bid shopping practices. Anti-bid shopping concerns and, thus measures for discouraging bid shopping are not uncommon in public contracting. If a proposed sub is being replaced, we want to have some control over bid shopping. It may be prudent and appropriate to require consideration or a credit . One could assume that the prime’s price was based upon the proposed subcontractors’ prices. Some prime contractors have a reputation for bid shopping.
  3. Yesterday
  4. Jumping back to contractually locking in certain positions (what is proposed must be delivered unless an equivalent substitute is approved), the Government must be reasonable in applying use. It’s a good idea, especially when quality of personnel is a major part of source selection. But in many instances, the Government acts unreasonably by demanding the proposed people get delivered immediately and without exception. Companies propose people and assume a contract award occurs in 4-6 weeks. Often that turns into 4-6 months. Reasons are many - multiple solicitation amendments, lots of Q&A’s, weather, evaluation team not ready, evaluation delayed by lack of time commitments by members, unplanned need for clarification or discussions, availability of funding, and so on. Companies don’t keep proposed staff just sitting around waiting for the government to make an award. Their employees must be billable as much as possible. Then there’s smaller companies that do an extremely good job and in demand. The problem is as they grow, it is progressively more difficult to recruit quality employees - the pool relative to size gets smaller. So people proposed often get assigned the award in hand. I’ve heard stories of small companies proposing the same employees a half dozen times. If this type of clause gets used, the CO needs to be fair and allow time for replacements if award gets delayed. A good practice is communicating with offerors to let them know status and get companies to verify employees are still available.
  5. High priority Construction contracts where time is of the essence. For department of defense construction it is not allowed by law to pay more for an earlier completion date without certain approvals (it is called “expediting”).
  6. I did some research and it seems to be really simple and innovative at the same time. Contractor comes through they get the daily rate as a bonus, on-time completion means the government wins/contractor is whole and late completion means they pay what it cost the government to wait. I really like it as a tool, but It would be hard to use in my current line of work for most instances (services). Hard to measure by a day or event. It has been a long day so maybe I am not thinking "Big Picture." Any ideas group?
  7. That's what I thought too. That passage states also: I'm actually in Texas. So deep in Texas the BBQ place near my house gives you a discount if you open carry. I didn't think we were allowed to apply a penalty in that fashion. That's why I was assuming the multiplier and the LD amount would be the same. Thanks for sharing all that- it was interesting!
  8. It’s Friday, and that means its time for another round of SmallGovCon updates as you ease on into your weekend. Hope everyone has a great one and enjoys these last few weekends of summer! Read on for some important updates from the government contracting world, including an amended solicitation for the Alliant 2 Small Business IT contract, discussions about how best to put data in the cloud, and satisfactory CPARS ratings. Small business contract to get new requirements, more awards. [FederalTimes] New FISMA Report Shows Progress, Gaps in Federal Cybersecurity. [darkreading] Government settles alleged False Claims Act Violations against Statesboro business. [savannahnow] GSA ‘controversially’ removing refurbished technology SIN during schedules consolidation. [fedscoop] Why a ‘satisfactory’ rating is bad thing for contractors. [FederalNewsNetwork] Texas defense contractor charged with using cheap, knockoff parts for US military vehicles. [taskandpurpose] Intelligence CIOs still figuring out how to be cost-effective in the cloud.[fedscoop] GSA extends price data pilot. [FCW] NOAA, NASA Launched Next-Gen Satellite With Known Issues, Scrubbed Performance Metrics from Contract. [Nextgov] HHS piling on the bad news for its assisted acquisition customers. [FederalNewsNetwork] View the full article
  9. A hydraulic hose happened to break in an excavator one day. So the DER required that hydraulic fluids on all construction equipment on the site be replaced with vegetable oil... To put this in some context, the site wasn’t contaminated. There were chemical weapons and bulk chemicals stored in hundreds of ammunition igloos that were being disposed of . Unfortunately, one of the sites was located in a tree hugging, Birkenstock wearing , Subaru Driving state. I suppose that the Mad Scientists who devised these weapons of mass destruction were as weird at the opposite end of the spectrum as the regulators, who were devious in their own right.
  10. Here is a clause that USACE has been using for design-build solicitations and contracts: “Key Personnel, Subcontractors and Outside Associates or Consultants (MAY 2006) In connection with this contract, any in-house key personnel, key subcontractors, and outside associates or consultants will be limited to individuals or firms that were specifically identified in the Contractor's accepted proposal. The Contractor shall obtain the Contracting Officer's written consent before making any substitution for these designated in-house personnel, subcontractors, associates, or consultants. If the Contractor proposes a substitution, it shall submit the same type of information that was submitted in the accepted proposal to the Contracting Officer for evaluation and approval. The level of qualifications and experience submitted in the accepted proposal or that required by the Solicitation, whichever is greater, is the minimum standard for any substitution. (End of clause)” The clause only applies to those specific key personnel positions or key trades, if to be subcontracted, that the government identified to be submitted in the proposals for evaluation. Somewhere I have the proposal submission requirements and evaluation criteria with the forms, etc
  11. Last week
  12. I don’t remember what solicitation it was. I tried to google it and find it again on FBO but could not find it. I did find what appears to be commonly called A+B Bidding, which describes how the solicitation I saw evaluated price. Apparently federal and state DOTs use it. Top of PDF sheet 2 describes what it is. This document is dated in 2013, so I guess it’s not that new. http://onlinemanuals.txdot.gov/txdotmanuals/glo/glo.pdf From this document the multiplier (part b) is the Road user cost per day. It appears to be a value assigned for motorist delays based on wages, excess fuel, etc. as a result of road construction projects. I didn’t look at the liquidated damages clause in the solicitation I had seen previously. My guess would be if you assigned a cost per day during the solicitation, that would be the cost per day for liquidated damages. I don’t know enough about road user costs, but it appears to be a cost to the public and not a damage to the government, so I don’t know that the part B multiple would be appropriate for liquidated damages. But again I don’t know enough about the method or road user cost calculations. I just saw a solicitation that apparently was using it.
  13. A possible source for inexpensive consultant assistance is your local Procurement Technical Assistance Center. Do an internet search on APTAC to find yours. And then there is this... https://www.va.gov/opal/nac/fss/prospective.asp
  14. Nick, Have you sourced a competent consultant to advise you?
  15. That's interesting! Do you remember if there was a liquidated damages clause? If so, was it the same amount as the multiplier? Seems like that would be internally consistent . . . Also, which state? I'm working under state code now and it doesn't seem very flexible about that kind of thing, but maybe it's just Texas . . .
  16. PepeTheFrog's tiny little amphibious heart almost stopped absolutely insane
  17. The Court of Federal Claims recently wrote that “[t]here is no such thing as a perfect procurement.” To anyone familiar with federal government contracts, this commentary states the obvious. But springing from the Court’s observation is another important reality: “a flawed procurement is not necessarily an illegal one.” The setting for the quotes above is a recent bid protest before the Court of Federal Claims: FMS Inv. Corp v. United States, No. 19-308C, et al. (July 31, 2019). This decision relates to a previous COFC decision that my colleague, Matt Schoonover, blogged on last year. The details of the procurement’s history are complex. Suffice it to say that, in this most recent protest, a group of private collection agencies challenged the Department of Education’s “Next Generation Financial Services Environment” solicitations, which combined default debt collection with other debt servicing work. In short, the solicitations sought to consolidate the “full life-cycle” of student loans–from origination to payoff–with a single debt servicing entity. The protesting collection agencies, whose services are limited to default collection services, generally contended that imposing this structure unfairly excluded them from competing for contracts. They also challenged the cancellation of pre-Next Generation solicitations for debt collection services. Challenge to the Next Generation Solicitations The protesters attacked the Next Generation solicitations in two principal ways. First, they alleged that the solicitations violated the Competition in Contracting Act because they bundled distinct services without justification. In other words, the agency consolidated multiple procurement requirements even though it was not “rationally related” to the agency’s needs. And second, they argued that the solicitations violated consumer protection laws relative to debt collection. In finding that the protesters’ first principal argument failed, the Court held that the agency had a rational basis for its “cradle-to-grave” approach to student loan servicing because an appropriations law restricted the agency from awarding “funding for any solicitation for a new federal student loan servicing environment unless the environment provides for the full life-cycle of loans from disbursement to payoff.” And in the Court’s view, default collection clearly fell within the law’s “full life-cycle” language. Interestingly, the Court also noted that the agency had a rational basis for consolidation because, among other things, it responded to criticism (related to the agency’s apparent prioritization of collecting debts over borrowers’ long-term success) leveled by twelve U.S. senators. With respect to the protesters’ second principal argument, the Court found that the agency’s plan did not intrinsically violate the Fair Debt Collection Practices Act, which requires debt collectors to identity themselves when interacting with borrowers. Nor could the Court conclude that the procurement would violate applicable state laws. Challenge to the Cancellation of the Pre-Next Generation Solicitations The Court then addressed the agency’s cancellation of the pre-Next Generation solicitations that focused exclusively on debt collection. The agency justified the cancellation of these solicitations in several ways. For one, it argued that debt collectors were under contract until 2024 and could handle all accounts until the Next Generation contracts were up and running. The Court held that the agency reasonably relied on data provided by the existing contractors, which showed their capacity to handle collections until Next Generation contractors could take over. Also, the Court rejected protesters’ arguments that small contractors, who were already contracted to perform debt collection until 2024, do not perform as well as large debt collectors. The Court noted that even if this were true, if the agency rationally decides that the pre-Next Generation solicitations are incompatible with its needs, it does not have to continue with them just because they might generate more money. In the end, the Court found that Department of Education’s procurement was not arbitrary and capricious. Its decision to dump previously-issued solicitations in favor of a more robust series of new solicitations was rationally related to its needs and complied with the governing statutes. View the full article
  18. I saw a state solicitation for construction recently where price was evaluated using a cost and time method. The contractor would propose their cost for the project and then the number of days from NTP to completion. The number of days was multiplied by $X and added to the cost for the total evaluated price. The awarded price was the cost portion but the evaluated price included time also as a price related factor. I suppose the idea is you could pay more for the project but get it completed faster. I don’t know if it’s new, but it was the first time I had seen it.
  19. By Barbara S. Kinosky, Esq. The big news from MAS PMO Director Stephanie Shutt is that the Consolidated Schedule will be out October 1, 2019. She is very definite on that date. What does that mean for existing GSA Schedule holders? We understand modifications to add the new consolidated SINs will not be accepted after September 30 until sometime in mid-January 2020 after contractors have accepted the mass modification incorporating the new consolidated Schedule terms and conditions. New offers for new Schedules that have been submitted prior to September 30 but not finalized will still be reviewed and awarded. This includes the streamlined/successful legacy offers. E-mod will remain open and will not be affected by the consolidation. GSA will transition companies with one Schedule to the new Schedule first. In early 2020, GSA will begin the process of working with companies holding multiple Schedules. Those Schedules will be consolidated into one Schedule. GSA has indicated that it will allow companies with Blanket Purchase Agreements (BPAs) off GSA Schedules to continue those schedules until the BPAs end. On other news, the GSA Small Business GWAC Division has announced the draft solicitation for the 8(a) STARS III GWAC is out. Both industry and federal agencies are able to review and provide feedback on the content of the draft solicitation up until September 6th. Review the details by visiting FedBizOpps. GSA is asking everyone to please spread the word! Centre Law’s GSA team is here to answer any of your questions on the consolidated schedule. You can contact me by email at bkinosky@centrelawgroup.com. About the Author: Barbara Kinosky Managing Partner Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act, and she has served as an expert witness for federal government contracting cases. View the full article
  20. How does one become a registered / approved / certified IDIQ vendor for the VA without prior government contract experience?
  21. The MSDS for "Wite Out" can be found here: http://productsafety.biclink.com/MSDSSheets.aspx
  22. Hmm, can you state the initial counterpoint to yours more fairly than this? The mandate to do small business set-asides in support of overall Agency Objectives was eliminated in the 809 Panel's recommendations...but authority to set-aside for small business remains, as do the overall Agency Objectives...with new additional support of a 5% price preference.
  23. Amen and Amen!!!! I HATE those written reference questionnaires. Bull crap. Call and speak with the references! I got much better info by speaking directly to the references. I will clarify my above post... Unfortunately, it means that government employees actually have to TALK to somebody- oh NO!!! And take notes - Double OH NO NO!!! Look at it from the references’ perspective. I hated getting a questionnaire to fill out and return - especially when contractors repeatedly cited me as a reference on multiple projects and/or for multiple source selections. I also stated that we reserved the right to call references to verify a performance rating. If we were already familiar with a project, there was no need to keep bothering the references to verify or repeat what they said previously.
  24. Past performance is an excellent factor but only a handful of offices really leverage it the way they could. Most in the government are afraid. They only want to use CPARS and email questionnaires sent to just offerer provided references. To really benefit from past performance, one needs to talk with relevant customers of offerers. By talk, I mean using a phone or visiting customers. By customers, I mean anyone that did business with the offer whose work is deemed significant in terms of size, scope and complexity, including commercial sources. It also means going way beyond just using references provided by the offeror. There’s also a notion that you have to ask the same questions of every source, which is crazy. Doing it this way is closer to the way you might seek a contractor to remodel your house.
  25. • Recent relevant experience, with a past performance rating including names and contact info for customer references for those specific govt or no-govt projects . EDIT: Use a standardized format for the experience submission. •. Proposed key personnel (define the positions) with a contract clause that makes the qualifications of those proposed and evaluated for award the new minimum for proposed substitutions if they exceed any RFP minimums and substitutions. Substitutions are subject to government approval . If you propose the A team, you must provide an A-team, not a B or C-team as substitutes. EDIT: use a standardized format for each key personnel submission. • same submission and evaluation criteria for your key subcontractors (define what is the key work, if subcontracted). If much or most of the key aspects of work is subcontracted, you don’t want to simply rely upon prime qualifications and experience. EDIT: Use a standardized format for each proposed key sub submission.
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