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So true. I’ve seen many instance where staggered deliveries instead of all at once occur due to things like contractor production capacity or the governments inability to accommodate large quantities.

Maybe maybe not. The issue is when does the need arise not when it will be met. In any event, we don't know what Birdsong's concern is with the order crossing 2 fiscal years. It might be a valid concern or it might not. We just don't know.

I just wonder as the 10 days seems inconsistent DFARS PGI 204.606 regarding "Express Reporting" that allows for monthly? I guess a person would have to dig deeper.

@Atlas STS if you’re going to work with the buyer on his/her WGL, you can try to make a strong case for Technology Incentive. Good luck!

1. TINA is a disclosure requirement, not a use requirement. 2. When a proposal will be subject to cost analysis, then the contractor should expect the government negotiators to challenge any costs deemed to be unallowable. In my experience, when a contractor has developed proprietary technology at its own expense, it is often in a strong bargaining position vis-a-vis the Government with respect to profit/fee negotiations. As has been noted, the WGL is used to develop pre-negotiation profit objectives, which may or may not be realized at the negotiating table.

I believe that there is a difference between adding 100% costs as direct costs or as additional “profit” for one or more possible contingencies that may or may not occur versus identifying possible risks and then considering the probability of individual or multiple risk occurrences in the direct cost portion of the proposal. Our Chemical Weapons Demilitarization, Systems contractor identified various risks and ran Monte Carlo probability simulations for the risk analysis in developing its CPAF direct cost estimate proposal for a task order for the design, construction and systemization of a plant to safely disassemble various types of chemical weapons munitions, drain and collect the agents, neutralize the agents, clean all the parts of the munitions and dunnage and dispose of the waste byproducts and metal components.

So the financial systems can't accommodate bulk funding (FAR 13.101(b)(4))?

I wouldn't recommend pricing a proposal which includes costs you don't knowingly expect to incur. I would imagine this could be considered defective cost and pricing data. However, I would recommend, due to the limitations of WGL, attempting to include in your proposal the costs associated with known risks instead of using a larger profit percentage to cover those risks. This could come in the form of additional labor hours to complete a task that is identified as a risk of occurring. In my experience, one thing to consider in this approach, is risks are needed to justify the profit percentage derived from the WGL form, so if you include costs in your proposal for all risks you may have a harder time supporting your proposed profit. It ends up being a balance between including and not including costs to cover risks.

Okay, you're right. Questions: Are these some accepted and common ways that a savvy contractor could increase profit while at the same time satisfying the customer's WGL requirements? Must a contractor attempting these ways beware of any pitfalls in the Truthful Cost or Pricing Data statute or in FAR 31.201-2 "Determining allowability"?

Good day and happy Friday! We hope you had a very productive week and are looking forward to the weekend. We have been, and will be, receiving some much-needed rain, so outdoor weekend activities might be a bit hit or miss here. It’s wonderful weather for all those recently planted gardens, however, as long as the storms aren’t bad! In federal government contracting news this week, be sure to check out the stories about the new sustainability rules (and our recent blog), as well as new legislation on solicitation language and buying technology. New rule cements sustainability mandate for federal buyers GSA announces new political appointees and departure Navy Posts Solicitation for Potential $200M Construction, Repair Services Contract Army commanders fail to adequately address all forms of harassment, DoD IG says Federal Trade Commission bars ‘noncompete’ agreements for US employees It’s April, but end-of-termism will start to slow federal contracting GSA’s new approach to small business matchmaking House panel advances bill to make federal contracting easier to understand Defense Federal Acquisition Regulation Supplement: Use of Fixed-Price Contracts for Certain Major Defense Acquisition Programs (DFARS Case 2023-D009) Hazelwood Company Owner Admits Contract Fraud Consolidated Nuclear Security Agrees to Pay $18.4 Million to Settle False Claims Act Allegations of Timecard Fraud Justice Department Announces Charges Against Four Iranian Nationals For Multi-Year Cyber Campaign Targeting U.S. Companies Ten Charged and One Arrested in Connection with Sanctions Evasion Scheme CISA’s chief data officer: Bias in AI models won’t be the same for every agency The post SmallGovCon Week in Review: April 22-26, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

An order being for supplies, by itself, is not an exception to the bona fide needs rule. It still matters when the need is, and Birdsong's original description doesn't say whether the 12-month initial delay and then monthly deliveries is an issue with order/production lead-time (which would likely be an exception) or if the Government maybe just doesn't need the widgets until 12 months from now and then will only need 250 per month thereafter (which would seem to make it a need for future fiscal years).

While I agree this is how BPAs should be used, this may cause issues on the obligation recording side these days with automatic financial management systems. In the DOD obligations must be recorded within 10 days of incurring them, and I assume other agencies have similar rules, so the monthly roll-up thing no longer works and someone is either manually recording obligations for every call directly in the financial system, or a contracting officer is creating individual calls in their contract writing system so the obligations can flow through to the financial system, or the calls are being placed with the P-Card, which is what General.Zhukov was trying to avoid in the first place (possibly because in many cases the "automated" approval process for P-card purchases takes longer than the process for getting a purchase order). None of these are issues with the contracting regulations, they're all financial management regulations or financial system-driven problems. So that probably leaves the "lab supplies as-a-service" idea as the best option, maybe FFP if you have very steady/predictable usage and don't see significant price fluctuations in your supplies or T&M if it needs to be more flexible.

Your "questions" were directed toward H2H. Maybe he knows what you are asking, but I don't, because I don't see a question. You wrote "what if" and "or say" then set out facts, but don't say what the question is. Can you rephrase your questions?

Contracting agencies, and contractors, must always be aware of potential organizational conflicts of interest (OCIs). An OCI can result in a contractor being kicked off a federal procurement. One type of OCI is an impaired objectivity OCI, typically resulting from a contractor evaluating its own offer or its own performance. In a recent decision, the United States Court of Federal Claims (COFC) said that an agency was overly cautious in rejecting an offeror based on a perceived OCI. In Dist. Commc’ns Grp., LLC v. United States, 169 Fed. Cl. 538 (2024), the Court of Federal Claims reviewed a Department of Veterans Affairs (VA) decision to exclude a joint venture from a competition to provide support suicide prevention services for the VA. The procurement was called the “White House Priority Goal Support to Safeguard Against Veteran Suicide” (WHPG solicitation). As part of the evaluation process, the VA began to investigate potential OCIs. The procuring officials reviewed existing and future contracts for potentials OCIs involving the WHPG solicitation. Then, the VA issued an amendment to the WHPG solicitation that included a list of companies excluded from the procurement due to an “actual and/or potential significant conflict of interest.” And the protester, District Communications Group (DCG) was on that list due to its involvement working on a contract with J.R. Reingold & Associates (Reingold). The VA asserted that work under the Reingold contract would result in Reingold “could be put in a position to advise and/or recommend [the] VA employ any of the outreach efforts/methodologies Reingold currently implements on [the] VA’s behalf under its existing task order, to include conducting pilots that may be run under [the WHPG solicitation].” Similarly, the agency argued that “performance requirements and/or deliverables under Reingold’s [existing task] order are all examples of the types of tasks and services VA seeks advisory support for in considering its best course of action to meet the White House Priority Goals set forth in [this] solicitation ….” The court summarized the VA’s position by writing that the potential OCI could stem from “improper crossover” between Reingold’s existing task order and the WHPG solicitation. An impaired objectivity OCI can occur where a contractor is tasked with “evaluat[ing] its own offers for products or services, or those of a competitor.” FAR 9.505-3. The court noted that for purposes of determining if there is an impaired objectivity OCI, “it is wholly irrelevant whether the two efforts are same or similar in scope or size; instead, what is relevant is whether the contractor would be in a position of reviewing its own work or otherwise unable to perform its obligations in an impartial manner.” The court looked closely at the WHPG solicitation language. One aspect of it was an OCI clause, which stated: Please be advised that any Contractor, including its team members, that receives the award may be subject to an OCI. The prime and any/all subcontractor(s) on this contract shall, for the contract’s entire period of performance, plus three years after completion of the contract be restricted from participating in any procurements and/or requirements which stem and/or arise from any recommendations developed under this contract. Interpreting this language, the court wrote: The contracting officer based her OCI determination on the concern that if Reingold was awarded the WHPG contract, it could potentially recommend or advise the VA to purchase optional services from the existing Reingold task order. However, if the VA decided to purchase any of those services based on a recommendation from the plan submitted as part of the WHPG contract, they would constitute “requirements which stem and/or arise from any recommendations developed under this contract”; thus, Reingold would be “restricted from participating” in supplying those services. Therefore, by the contracting officer’s own reasoning, there could not be an actual or potential OCI because Reingold would have no obvious incentive to recommend its own services because it would be prohibited from providing them even if recommended. Accordingly, the contracting officer’s OCI determination is irrational. The court also noted that the agency failed to properly explain its conclusions regarding the OCI. “For instance, there is no real explanation as to why a subcontractor of Reingold, like DCG, has an actual or potential OCI that requires its exclusion from competition under the WHPG solicitation.” The agency simply repeated that for Reingold and subcontractors, “there is the potential … that the vendor performing this existing task order will be in a position to recommend the strategies and/or services it already provides under [the existing] task order, when advising [the] VA on potential methods to meet the goals and objectives [under the WHPG contract].” Normally, agencies are given quite a bit of discretion when it comes to evaluating potential OCIs. This case shows that there is some limit to this discretion. An agency must properly explain the basis for its OCI concerns. The agency cannot rest its fears of an OCI on a possibility that is unlikely to occur. To do so goes beyond reasonableness in evaluating an OCI. Questions about this post? Email us. Need legal assistance? Give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Contracting While Impaired: Court Rejects Overbroad Finding of OCI Based on Impaired Objectivity first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Any consolidation/bundling approvals would seem to be based on the total value of the IGCEs included under a single solicitation, rather than the largest IGCE, per their definitions in FAR 2.1. Reviewers may also be concerned about multiple requirements (i.e. multiple IGCEs) ending up on a single award, and breaking some threshold that wasn't considered using only the single largest IGCE as the estimated contract value. For example, maybe you have three requirements with IGCEs of $5M. Using the largest IGCE as your threshold you choose to use FAR 13.5, however one vendor wins two requirements and you choose to award a $10M contract to them, but now you're outside the range where you can use 13.5. That's a simple example but agencies may have all sorts of different thresholds for source selection plans, business clearances, etc. You might be able to explain in your acquisition plan (or similar document) that you will use the total of the IGCEs for any approval of consolidation/bundling that may be required but that otherwise no individual award will exceed the largest IGCE or something to give reviewers/approvers confidence that nothing will inadvertently break a threshold later.

What? This is very confusing as not a D type contract a mulitple award IDIQ? Now to this..... I would argue that if this is true then there should be 3 different IGCE. Why? How for example will proposal analysis be performed pursuant to FAR 15.404-1(b)(2)(v)? I used this particular cite just to get the thoughts rolling. The real question is how would the guiding principles of the whole of FAR part 15 be applied with only one IGCE? Then how about FAR part 7? How about the guiding principle of aligning the IGCE with the SOW/PWS? You have not mentioned setaside so how does your effort fit in with regard to the dicussion of "consoldiation"? Lots to consider, it would be nice of the reviewers to provide their reasoning as to why one could not have multiple IGCEs for mulitple price schdules that are included in one RFP where award of each contract (price schedule) would be made to one, all or some. PS - I was finishing this post just as the preceding post appeared. I left mine as is.

You might ask your procurement analysts to prove their FAR authority. My copy of the FAR says that silence does not mean prohibition; rather, good business sense is the goal. My copy of the FAR also does not include solicitation within the definition of contract or contract action. The FAR does explicitly contemplate a master solicitation as a substitute for multiple solicitations. See if that will help you. Best wishes. You might not prevail in this case, but your thinking is right.

I'm not arguing - I'm inquiring. I'd like to know your answers to my questions.

S/he is one of the reviewers as is a Procurement Analyst. It is all one action is the reasoning, so it all must be added together. This totally overlooking the fact that the RFP is only a method of delivery to get the info posted. IMO, the multiple awards make the result multiple actions. That reason is not in the FAR as far as I know and is the reason I was trying to find if there is a rule somewhere that I didn't know about.

Reviewers are irrelevant. Who is the big boss in your office? What does he or she say? He or she can consider your input, and their input, and make a decision.

I also prefer the former. There are 2 sets of reviewers who do not see it that way and have refused to sign off. I had figured that it was not in the FAR and there was no SOP referenced in the note. There is just an expectation that I would split everything apart and do multiple RFP to receive multiple exactly the same proposals over the now multiple RFPs for which the SSB would then have to unnecessarily review and score. Streamlining at it best.

And not to be overlooked is the possilbe use of the P Card as the payment vehicle for the BPA's. Agency policy, cardholder delegation, etc may come into play but I would suggest it should be explored. Reference FAR 13.301.

As many know, a prominent goal of President Biden’s administration has been to promote green initiatives, and help reduce America’s carbon footprint. That initiative has now found its way to federal contracting. In a recent final rule, the FAR is being updated to facilitate federal contracting’s move, closer to net-zero emissions. This FAR update, updates and sets requirements for agencies to procure “sustainable products and services”, outlines what those products and services actually are, and places new expectations on contractors. On April 22, 2024 a final rule was published in the federal register to amend the Federal Acquisition Regulation (“FAR”) to “focus on current environmental and sustainability matters and to implement a requirement for agencies to procure sustainable products and services to the maximum extent practicable.” Specifically, this FAR update was conducted in direct response to Executive Order (E.O.) 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability. This E.O. focuses on how the Government itself can help promote sustainability and reduce its emissions, and multiple memorandums following it have helped further clarify the E.O.’s aims. The Final Rule sums up the E.O.’s goals as federal agencies should “reduce emissions, promote environmental stewardship, support resilient supply chains, drive innovation, and incentivize markets for sustainable products and services by purchasing sustainable products and services in accordance with relevant statutory requirements, and, to the maximum extent practicable, as identified or recommended by the Environmental Protection Agency (EPA).” With the goals of the E.O. in mind, let’s look at a quick rundown of the changes to the FAR that will go into effect May 22, 2024. In line with that Executive Order and its directions, this final rule updates the FAR as follows: Dedicates FAR Part 23 to “environmental matters” by moving certain content to it, including drug-free workplaces content. Consolidates/updates already existing environmental purchasing program requirements into FAR SubPart 23.1. Dedicates FAR SubPart 23.2 to “energy savings performance contracts.” Consolidates requirements related to hazardous and radioactive material in FAR SubPart 23.3. Consolidates/updates Federal facility and pollution prevention requirements in FAR SubPart 23.4. Redesignates FAR SubPart 23.8 as FAR SubPart 23.5. Adds a definition of ‘‘sustainable products and services’’ to FAR 2.101 (we discuss this further below) Creates a new “omnibus” contract clause at FAR 52.223–23, Sustainable Products and Services, discussing Government requirements for sustainable products and services. (we discuss this further below as well) Makes other conforming changes throughout the FAR to align with revisions within FAR Part 23. Updates agency requirements at FAR 36.104(b)(1) for construction and architect-engineer contracts to align with “CEQ’s Guiding Principles for Sustainable Federal Buildings and Associated instructions.” Removes certain contractor reporting requirements in the FAR 52.223–11, Ozone Depleting Substances and High Global Warming Potential Hydrofluorocarbons; FAR 52.223–12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners; and alternates to FAR 52.223–5, Pollution Prevention and Right-to-Know Information. Finalizes the interim rule published under FAR Case 2010–001. This seems like a pretty exhaustive list, but much of it is done in order to help make it easier to find applicable provisions (many now under FAR Part 23), and amend FAR provisions so they are consistent across the board. The crux of these updates is that once this rule goes into effect, agencies will need to prioritize procuring what the FAR deems is “sustainable products and services.” So, that definition is quite crucial. The definition of “sustainable products and services,” in updated FAR 2.101 is: products and services “that are subject to and meet . . . applicable statutory mandates and directives for purchasing” and “Required EPA purchasing programs.” Naturally, the next question is, what are these statutory mandates, and EPA purchasing programs. The definition provides: “Applicable statutory mandates and directives for purchasing” include, but are not limited to: products containing recovered material designated by the EPA; energy and water efficient products certified by “Energy Star” or FEMP; biobased products meeting Department of Agriculture’s “BioPreferred” program; and items meeting EPA’s SNAP program. “Required EPA purchasing programs” are: “WaterSense” labeled products or services; “Safer Choice” certified products; and products or services that meet “EPA Recommendations of Specifications, Standards, and Ecolabels” as of October 2023. The Final Rule also states that under these updates, when agencies look at procuring sustainable products and services, the agency should consider “life-cycle costs” of the product when considering if the sustainable product or service can be procured at a reasonable price. Additionally, solicitations will identify the “sustainable products and services” (along with details about programs etc.) that the agency sees as “applicable to the acquisition.” So, once the FAR updates go into effect, agencies will be responsible for identifying clearly the “sustainable products and services” it sees as applicable to the solicitation. Under the FAR update, contractors will soon also face new requirements. Contractors “must provide sustainable products and services, including products that meet the definition of sustainable products and services” if the product or service meets the following four criteria: 1.) the product or service is delivered to the Government; 2.) the product or services are furnished for Government use; 3.) the product or service are “incorporated into the construction of a public building or public work”; and 4.) the product or service are used by the contractor “in performing services under a Government contract where the cost of the products is a direct cost to the Government.” Also, “contractors performing management and operation of Government-owned facilities are required to use products that meet the definition of sustainable products and services to the same extent that an agency would be required to comply if an agency operated or supported the facility.” In line with all of this, is the new “omnibus” contract clause found at FAR 52.223-23. This FAR clause discusses the definition of “sustainable products and services” explained earlier from FAR 2.101, while laying out the requirements placed on parties also explained above in this blog post. This FAR clause makes it clear that the “sustainable products and services” must meet the standards laid out “at time of quote or offer submission” and must meet “the EPA Recommendations of Specifications, Standards, and Ecolabels” as of October 2023. This FAR clause closes by providing a “Green Procurement Compilation” website which has a “list of sustainable products and services and sustainable acquisition guidance.” The FAR suggests contractors review this site. This is certainly not the first time that federal contracting has received an update aimed at helping curb emissions (see our blog on greenhouse gas regulations here), nor would we expect it to be the last. However, this final rule does shift how solicitations will look going forward, and what contractors need to keep in mind when proposing products or services. Contractors should expect to start seeing solicitations discuss “sustainable products and services” while incorporating FAR 52.223-23. Those same contractors need to also be prepared to address in their proposal and performance, how they will provide those specific sustainable products and services. This FAR update’s final rule is quite large. This update had 52 respondents send in comments on its proposed rule and 23 respondents send in comments on its interim rule prior to this final rule. As such, there is some great detail within the final rule that we encourage contractors to review when they have time. We here at SmallGovCon will of course keep you updated on any new FAR changes, and you should expect to see the changes discussed here to go into effect on May 22, 2024. Questions about this post? Email us. Need legal assistance? Give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post New FAR Final Rule Promotes Sustainability first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Some organizations base reviews and approvals on the dollar value of the anticipated individual contract awards. Other organizations base reviews and approvals on the total aggregate dollar value that might be awarded from t the solicitation. I prefer the former. But if your "legal dept is saying its ok," what is the problem?

Voyager, what is your point? Are you arguing that profit is a cost of a contractor?