What’s puzzling is that agencies now ask more than ever if we’re WOSB/8(a)/HUB/SDVOSB, etc. Yet that information hasn't given us more awards. Actually, the opposite - our award rate has dropped 70% this year. This is the first decline we’ve seen in a decade (we had no set-aside certs for the last 10 years). This year we get set-aside certifications and suddenly plummet in awards.

Can anyone confirm if this suspicion has merit, or explain what’s driving such a sharp drop in awards right now?

Are socio-economic certs hurting us?

Is removing our WOSB & 8(a) from SAM a smart move or a mistake?

See GAO response to its FY2025 NDAA mandates:

First, the mandate required GAO to submit a proposal that includes a process under which GAO will apply enhanced pleading standards to an interested party with respect to a covered protest submitted by such interested party for which such interested party is seeking access to administrative records of the Department of Defense (DOD). FY2025 NDAA, §§ 885(a)(1), (b).

Second, the mandate required GAO to submit a proposal that includes benchmarks comprising the following categories of costs: (1) a chart of the average costs to DOD and GAO of a covered protest based on the value of the contract that is the subject of the covered protest; and (2) a chart of the costs of the lost profit rates of the contractor awarded a contract that was the subject of a covered protest after such award. FY2025 NDAA, §§ 885(a)(2), (c).

Third, the mandate required GAO to submit a proposal that includes a process for payment by an unsuccessful party in a covered protest to the government and the contractor awarded the contract that was the subject of the bid protest in accordance with the above-described benchmarks. FY2025 NDAA, § 885(a)(3).

GAO’s response to the mandate is enclosed...

GAO Response to Section 885 of the FY2025 NDAA | U.S. GAO

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Vern

This now means to the contracting community that attorney/client privilege cannot be relied upon.  In this instance, the attorney in question had a twenty year relationship with the company.  Then, using information obtained by the company relying upon attorney/client privilege, the attorney filed a Qui Tam action in the hopes of gaining the 15% fee.  Ironically, the company had relied upon the advice of the attorney in this matter.  The advice was then either faulty or made in bad faith.

The company in question appears to be without an actual problem but it appears, from the DOJ inquiry that mischaracterization of information was supplied to the DOJ.  

As a matter of public policy, the contracting community needs to be apprised that there is an erosion of attorney client privilege.

Since this fact is being hidden from the contracting community and public, a government contractor must now be very careful about trusting attorneys with any information that could be used against them later.  I'm not sure how this ends up other than to doubly enrich attorneys and give DOJ lawyers a pass on their ethical considerations.  

We are now in uncharted waters with this behavior by both DOJ and attorneys.

To the contracting companies out there: Watch what you say to your attorney.  That attorney may use that information to further enrich themselves.

I have been trying to reach Bob for two weeks, but have gotten no answer. I have finally located him in a hospital in Pennsylvania, where he is a patient. I have his room number and phone number, but have not yet been able to talk to him. II think he has been there for at least a week, maybe longer. I do not know his condition.

If and when I'm able to speak with him or otherwise learn of his condition, I will let you all know, with his permission, of course.

Keep him in your thoughts.

Vern

It is my sad duty to inform you that Bob Antonio has died. I was notified by the Kennett Township police just moments ago. I have no details. The police spoke with his family, who were at his house, and asked them to call me. If I learn anything more I will let you know. I do not know whether Bob made an arrangement for the continuity of Wifcon.com, but I doubt it. So this may be goodbye for now.

Vern

Here is the issue:  This agency gets Budget Authority (BA) 6.5 (RDT&E) funding.

Question: Can this DOD agency award against the BAA using BA 6.5 RDT&E funds.

The push back:  Apparently a BAA can only be used for BA 6.1, 6.2. or 6.3, i.e., basic or early R&D type efforts.

Question: Can this agency just put in language that this agency's BAA plans to award more mature R&D efforts and will use BA 6.5 to fund projects, or similar language?  

Any flexibility on this issue?

Deleted

In the following memo the Director, DPC, states, "[T]his memo reminds Contracting Officers (COs) that contractors may make an NDC determination about their suppliers and subcontractors, so long as the suppliers and subcontractors meet the definition of an NDC, as defined in 10 United States Code (U.S.C) § 3014." (Emphasis added).

https://www.acq.osd.mil/dpap/policy/policyvault/USA000996-24-DPC.pdf

Until case law challenges it, this statement settles a debate from the above thread.  The holes in DOD COs' noncommercial subcontract arguments make it not worth delaying award.  Instead, I will foot-stomp my advice to COs: "[R]ead, as your DFARS PGI 215.403-1 instructs, the DOD Guidebook for Acquiring Commercial Items Part B: 'Pricing Commercial Items'.  Be ready for sole-source contractors to challenge you by saying there is no requirement in your solicitation for their subcontractor to submit cost data...So embrace the challenge of having to throw out your old process and templates where the sub submits a cost build-up and gets audited, and begin gathering market research on your upcoming subcontract costs instead."

Whether Congress intended this, or if, instead, the rule's promulgators were unclear about contractors' authorization to make NDC determinations, would be up to the courts to decide.  Don't count on it - just do the price analysis!

Here is essence of the response - Waivers can be requested at the parent or order level.

Request made February 6, 2023 response received March 15, 2023.   

PS - My faith that the government can be responsive remains, all that you have to do is ask!

Problem: The FAR doesn’t describe a way to award two IDCs for the same requirement and allocate work between them. It specifically precludes allocation in a multiple-award IDIQ scenario (FAR 16.505(b)(ii)(B)) and stipulates that a requirements contract is for “one contractor” to fulfill the Government’s requirements (FAR 15.503(a)). In addition, FAR 8.405-3 establishes a multiple-award BPA ordering process that basically mirrors the multiple-award IDIQ ordering process.

Proposed Solution: After researching the issue, I landed on the strategy of awarding “split” requirements contracts (which I referred to at the time as multiple-award requirements contracts). We had a robust discussion about the merits of this approach here:

Outcome: Despite legal concurrence, neither the customer nor SSA would agree to this strategy. The SSA was uncomfortable operating this far outside of the seemingly clear language of FAR 16.503. The customer believed our projected quantities were too speculative to meet the legal standard of a requirements contract (and did not want to be locked into a promise we couldn’t keep). After several briefings to advocate for this approach, the SSA told the acquisition team to start over.

We looked at multiple avenues. We considered a deviation to fair-opportunity procedures (blocked by statute), FAR part 13 BPAs (ordering threshold too low), and very high guaranteed minimums in a multiple-award scenario (too risky). We considered other methods, too, but struggled to come to consensus on anything.

We were basically at the end of our rope when legal counsel joked, “I wish we could just award two single-award IDIQs.” On a whim, I started to look at how that could conceivably be accomplished under the FAR, and landed on the following path:

1. There would be no way to avoid fair-opportunity competition in a multiple-award scenario.
2. Every definition of “multiple-award contract” at FAR 2.101 contemplates a “single solicitation.” So to avoid classification as a multiple-award contract, we could issue two, substantially identical solicitations simultaneously, with each cross-referencing the other and encouraging offerors to respond to both.
3. Assuming each offeror responded to both solicitations with the same proposal, the question then became how to prevent one offeror from winning both awards. The answer was under FAR 6.202, which allows us to exclude a source from award in order to maintain another source. We would determine the awardee for one solicitation, then execute a D&F pursuant to FAR 6.202 excluding that source from consideration under the second award.

And this is exactly what we did. We called them “parallel” single-award IDIQs. Though nobody within my agency could articulate a strong reason why this approach would not work, we nevertheless faced a lot of skepticism and criticism. The SSA accused me of playing fast-and-loose with the rules (I responded that this is exactly what “acquisition innovation” looks like). Many said that this was all unnecessary because many agencies utilize allocation to place orders against their multiple-award IDIQs and BPAs (though no one could ever explain how this was allowable under the rules). Others said that having dual contract files would be administratively burdensome and that conducting the source selection under each solicitation would be too complicated (we considered the risks and didn’t agree; ultimately, ~95% of each contract file is composed of identical documents, including the proposals).

Luckily, a new SSA took over midway through this process and gave us the green light. We were careful to vet this with industry, too. We explained the delivery arrangement in a draft solicitation and gave contractors an opportunity to air concerns, but none did. We were also sure to explain within the solicitation the reason we needed to take this approach, the exact steps we would take to execute it, and the risks the contractors would be accepting if they received award. Nobody complained. Nobody questioned it. We’re presently scheduled to make award in December and thereafter will have total flexibility to utilize these IDIQs in a manner that best suits the Government, with virtually no concerns of protest mid-performance.

And that’s what happened. I’m proud of this one. It’s been a long time coming (too long), with many hard-fought and probably unnecessary battles along the way. It’s an important requirement with a troubled history and significant national security implications. The prices are good, the customer believes that these contracts give them exactly the flexibility they need to mitigate risk going forward, and I believe the contracts are defensible under the FAR. I’ve done contracting for 11 years now and can’t say I’ve derived much satisfaction from it in that time. But this one, in this moment, makes it all seem worth it.

The Biden-Harris President's Management Agenda Vision | Performance.gov

There are those that might offer that the following is not authoritative.  I understand if one so concludes yet I followed through on what I offered in my closing posts in SCA Part 2.

I wrote a letter to the DOL Administrator for Wage and Hour(WH) with copy to the DOL  Regional Administrator for WH in San Francisco.  I can provide a copy of the letter whomever might want to see it.  Just know I am traveling right now. 

The letter was written pursuant to 29 CFR 4.101(g) and requested interpretation as whether a CO had authority to do interviews regarding SCA.

As a result of my letter I received a call yesterday from an investigator for WH.  I will verify the caller to anyone that requests.

The condensed version of the call is as follows.

Enforcement of SCA does lay in the hands of DOL yet an agency does have some ultimate authority.  Section 3 of the SCA Act as supported by 29 CFR 190 notes this authority, which is cancellation of a contract.

With regard to interviews it is an agreed gray area.  There is no "expectation" by DOL that an agency would do interviews but doing so is not "prohibted".

My conclusion as supported by the at length discussions in the two threads and the DOL WH telephone discussion of yesterday is doing interviews is left to the discretion of the CO/Agency.  

The two noted discussion threads will provide lots of food for thought as to the pros and cons of doing interviews or not. 

Thanks to all and while I am open to further discussion I hope my efforts help lay the interview matter to rest even though it is not the perfect yes or no answer we in acquisition eternally seek.

I thought I'd provide an update on how it ended. After issuing the termination notice and claim for reprocurement costs, the contractor challenged the termination at the Civilian Board of Contract Appeals. For context, the primary reason for terminating the contract for cause was because the contractor failed to deliver a working system within the 30-day extension the CO provided after having re-established the delivery schedule. The issue of re-establishing the delivery schedule was discussed separately on this Wifcon thread: 

Unfortunately, despite spending countless hours researching court/board decisions, legal blogs and other references, and drafting a series of notices to ensure our termination was procedurally solid, our attorneys did not believe they would prevail in court. They recommended we settle with the contractor. Part of the draft settlement agreement required the contractor to return a small portion of the amount we paid. Unfortunately, the contractor also demanded a satisfactory past performance rating in CPARS. Ultimately, we decided to walk away from the partial refund and instead converted the termination into a termination for convenience and gave the contractor a past performance rating that accurately reflected their performance.

From the date of termination, settlement discussions, to the Reviewing Official finalizing the evaluation in CPARS, the entire process took a year. There were some significant lessons learned from the contracting process on this procurement that got us to the point of having to terminate the contract. But there were also some lessons learned about the termination process itself. Among them:

1. Ensure that your attorneys and leadership are onboard and ready to support a termination for cause or default before embarking on that path.

2. Maintaining a strong working relationship with your attorneys will make it more likely that they will be willing to go to bat for you when the time comes.

3. Be aware of how time consuming it can be to build a case to support a termination for cause. Drafting lengthy notices and compiling documents and correspondence for a Rule 8 file for your attorneys is not a pleasant way to spend several weekends.

4. Sometimes in contracting, it doesn't matter how right you believe you are, or how strong a case you think you have against a contractor. The interests of the agency may dictate pursuing a different course of action. As a leader, you'll need to get behind that course of action.

In the end, contract B provided us the system we needed with all the required functionality and has performed beautifully to date.

So what happened. We negotiated a bit back and forth, then got notification we were awarded. Very close to the end of the FY.  Called the CO, and let her know that we didn't have the facility clearance. She removed the requirement! We signed the award.  I will note that our CAGE code was right there in the paperwork. If the CO would have checked, she would have seen we had no FCL before awarding.

What happened was I kept pushing back on the CO, referencing the FAR and explaining consideration.  The CO took it up her chain and eventually they let it go.  It doesn't help on all my new awards, but I did feel vindicated.

Thanks all!

Here is how you can use "What Happened?"  

1. Find the discussion or question you originally posted by going to it. 
2. While you are there, go to the "url address" window above and highlight it with your cursur.  Copy it.
3. Once you have it copied, return to this area and start your "What Happened" discussion.  Paste the url address that you copied into you initial post in this area.
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This is a test done for a member.  If it is used, it will stay.  If not, it will be removed.  If this area is removed, the posts will be moved to the original topic, if possible.

If you have any questions or suggestion let me know.

The Section 809 panel discussion area, that was once at the top of the page, is now listed at the bottom of this page.