contractor100

The cascading order matches exactly what's in 38 U.S. Code § 8127 (the statute at issue in Kingdomware) by putting SDVOSBs first, but I don't see where that statute says they explicitly do a cascading procurement but I am prob. wrong

VA establishing a MAC. Award of the contract will be made using a "tiered evaluation," in which Tier 1 is evaluated first, if not enough awards can be made in Tier 1, evaluation will move to Tier 2 and so on. The task orders under the contract will be awarded using the same scheme. Tier 1 - SDVOSBs that team/subcontract exclusively with SDVOSBs and VOSBs Tier 2 - SDVOSBs that team/subcontract with Small Businesses (Other than SDVOSBs and VOSBs), Joint Ventures that include Small Businesses Tier 3 - SDVOSBs that team/subcontract with Large Businesses, Joint Ventures that include Large Businesses Does VA have to have statutory authority to do this? Do they? Maybe here? 38 U.S. Code § 8127 (i)Priority for Contracting Preferences.—Preferences for awarding contracts to small business concerns shall be applied in the following order of priority: (1) Contracts awarded pursuant to subsection (b), (c), or (d) to small business concerns owned and controlled by veterans with service-connected disabilities. (2) Contracts awarded pursuant to subsection (b), (c), or (d) to small business concerns owned and controlled by veterans that are not covered by paragraph (1). (3)Contracts awarded pursuant to— (A) section 8(a) of the Small Business Act (15 U.S.C. 637(a)); or (B) section 31 of such Act (15 U.S.C. 657a). (4) Contracts awarded pursuant to any other small business contracting preference. thanks for any thoughts.

Just want to add, I frequently (at least 50 percent of the time) see SSNs saying things like "An organization that is not considered a small business under the applicable NAICS code should not submit a response to this notice." Does that mean this particular CO does not want to read anything that will not help her with the rule of two analysis? Does that mean that if a CO has NOT written such a commentary, he wants to read marketing materials - carefully crafted and tailored of course- - from large businesses?

So, Jamaal and Pepe, you are saying that CO's actually read responses from large businesses to SSNs - but how is that helpful to the large businesses? Do they get on any kind of "short list" for the opportunity if it comes out large? How does the CO's presumably favorable opinion of them transfer into an advantage in a subsequent open competition? (This is assuming as I say that the large cannot offer some new solution, to sway the competition.) If two qualified small businesses respond, how could the CO not set it aside, no matter what the large business wrote in their white paper? Would the large business say, you know, that the small businesses that are liable to respond are not responsible? Thanks so much to all, for your experience and advice!

Thank you!

When the government publishes a sources sought notice/synopsis, is there any good reason for a large business to respond? 1 If the CO finds that there are sufficient small businesses to set the procurement aside, I don't see there is any advantage to the large business in having responded, as they will not be able to bid as a prime. 2 If the CO finds that there are NOT sufficient small businesses, does a large business that answered the SSN have any advantage over a large business that did not respond to the SSN? (Leaving aside the possibility that the large business could give the CO information that meant the entire procurement strategy should be changed, i.e., the government should seek another technical solution or something like that.) Thanks to all for opinions

Thanks all! So, Jamaal, you are saying that offices doing interagency purchasing for other agencies, like franchise funds or something, sometimes make this a condition of using their services ? Could you share specific offices? That might explain what I am hearing.

Several different program people (from the same agency) have told me that, if an option is not exercised, their agency may not reprocure the items in the option for 12 months. That is certainly not in the FAR, not do I see it in the supplement - and seems like an insane policy for an agency to adopt. They must have misinterpreted some policy or rule to come up with this. Anyone else ever hear this?

Reviewing a solicitation from SSA right now where the purchases under the BPA are called "call orders."

Good points. That is interesting, I see a lot of FSS BPAs where the orders are called "calls." I guess just borrowed nomenclature.

Thank you, that is very helpful. I agree with you that the BPA clearly cannot qualify as a contract under this definition. But I am still wondering whether the BPA is an "order" or whether the BPA calls are the "orders." It makes quite a difference in how the relationship between the prime and its subs is structured! I am a potential sub; I will see if the prime will request a written interpretation. They are, naturally, inclined to make their own determination.

Good question. The BPA has been awarded. All of the clauses included in the GSA master contract are included in the BPA (by reference and by regulation.) The GSA schedule includes 52.219-14, Limitations on Subcontracting. That FAR clause states it applies to (1) Contracts that have been set aside or reserved for small business concerns or 8(a) concerns; (2) Part or parts of a multiple-award contract that have been set aside for small business concerns or 8(a) concerns; and (3) Orders set aside for small business or 8(a) concerns under multiple-award contracts as described in 8.405-5 and 16.505(B )(2)(i)(F). Assuming the BPA can only fall under (3), is the BPA the "order", in which case awardee must do 50 percent of the labor over the entire period of the BPA, or are the individual orders under the BPA the "orders," in which case the awardee must do 50 percent of the labor on each order? Or is the BPA a "contract that has been set aside for [a] small business concern" in which case, according to the SBA rule, the awardee must "comply with the applicable limitations on subcontracting provisions (see§ 125.6) and the nonmanufacturer rule (see§ 121.406(B )), if applicable, during each performance period of the contract (e.g., the base term and each subsequent option period)."

A BPA was setaside against a GSA schedule. The GSA schedule is not setaside for small businesses. The BPA is setaside for small businesses. The BPA has a base ordering period, with up to five optional ordering periods. Does the awardee have to comply with the limitations on subcontracting: 1 For each call on the BPA 2 For the period of the BPA 3 For the individual ordering periods of the BPA The BPA does not address this question. I think it is 1., because the calls are orders and each order under the BPA has effectively been setaside and 125.2(6)(v) applies: (v) A business must comply with applicable limitations on subcontracting provisions (see§ 125.6) and the nonmanufacturer rule (see§ 121.406(B )), if applicable in the performance of each order that is set-aside against the contract. Alternative views are that the BPA itself is an order, and that the limitation applies for the entire period of the BPA or that the BPA itself is a kind of MAC and that the language applies that says that awardees have to meet the limitation for the "performance period of the contract (e.g., during the base term and then during option period thereafter). (I feel this last one is wrong.)

Thanks as always!!

Getting back to the original question: Does a WOSB have to submit docs to the repository or register in CCR for a prime to count her firm against its subcontract goals? I am not sure what the language below, from the SBA's website (https://www.sba.gov/sites/default/files/files/WOSB%20Compliance%20Guide_April2011.pdf), means: I have already checked the box in CCR stating that I am women-owned. Do I have to check any other boxes? Yes. There are actually three different types of WOSBs that can be represented in CCR. The first representation in CCR is a for a women-owned business, which is a business concern owned and controlled by women if at least 51 percent of the business concern is owned by one or more women or, in the case of any publicly owned business at least 51 percent of the stock of which is owned by one or more women, and the management and daily business operations of the business are controlled by one or more women. This does not mean that a business checking this box is eligible for a set-aside under SBA’s program as a WOSB or EDWOSB. The next two are directly related to SBA’s WOSB Program; a WOSB or EDWOSB eligible for a set-aside under this program, which is 51% owned and controlled by women U.S. citizens. A WOSB or EDWOSB eligible for a set-aside under this program must make a certain representation in ORCA and submit documents to the WOSB Program Repository, but a women-owned business does not have to. So, a WOSB or EDWOSB eligible for a set-aside under this program must also check the box in CCR showing that they are such.

Thanks for all the advice. Boat very tippy, cannot provide specific information, very sorry. I appreciate everyone's chipping in, I thought perhaps this structure was the result of some new reg of which I was unaware. I will let all know what happens now the proposal has been submitted!

I've never seen anything like this before either. My best thought is it's a confusion with the requirement to bid indirect costs on materials as a fixed price on time and materials commercial (52.212-4 Alt 1 (I)(ii)(D)(2). Very good idea on the protest, but you are so right about the waves. And yes to the point about separating the overhead out of the direct labor. What is even more odd, which I forgot to mention, is that this is a GSA schedule bid, (using part 12), so that presumably the overhead is already part of the market based rates.

Government is buying audits. There will be five, all to be completed in one year. The RFP states the award will be FFP. The RFP has no instructions to bidders as to what they should be provided as support for the fixed price. The RFP does say that price will be evaluated for fairness and reasonableness. It is under FAR Part 12. The format for pricing consists of a table with three CLINs CLIN 1 - Direct labor for audits. Quantity - 1. Unit - YR CLIN 2 - Overhead for audits. Quantity - 1. Unit - YR CLIN 2 - Travel. NTE. Quantity Unit - LT When the government was asked why direct labor and overhead are separate, the government responded: Overhead costs are expected to be approximately 30% of direct labor costs. Profit/fee will not be broken out. This will be a Firm Fixed Price Contract, so any profit is built into the price. Other direct costs, such as software licenses could be listed under the direct labor CLIN as a direct cost. Will the awarded contract have a separate fixed price CLIN for overhead? What is the purpose of this? Is the "rate" of overhead an evaluation factor? How can that be, without more detail as to what the "overhead rate" represents? Again, this is NOT a T&M contract, it is FFP. No more questions will be answered by government. Any ideas gratefully received.

Good point. Thanks again. Just want to say, I am not trying to "get around the rules" on OMIs, just trying to figure out how to document the contract best for the GSA IOA visit.

Yes, an agency requesting a quote under 8.4. Would open market items be an issue otherwise? Thanks again for your help

Thank you for the response and the interesting citation! I am selling training, which includes: 1 labor to deliver the training, 2 preexisting courseware that is going to be adapted, and 3 labor to do the adaptation. The labor for 1 and 3 is on my schedule. I am procuring the preexisting courseware from another vendor that has this courseware on its schedule. In Rapiscan, the agency asked for separate quotes on eight CLINs. CLIN 7 was for an item (freight) that was not on SAIC's schedule. SAIC first showed a price of $6,832 for the freight, then revised its quote to show CLIN 7 was being discounted by $6. 832, to $0, while stating that CLIN 1 included the price for CLIN 7. From this it was clear that the price of the freight was more than the micropurchase threshold and that the government was paying for the freight. My case differs from RapiScan in that the agency has not asked for a breakout of the fixed price and there is therefore no way to show that any OMI is greater than $3K. The RFP has a single line item for "Training", broken down as follows: Description - seminar for 200 participants, June 1, 2015-June 3, 2015 Unit - "Each" Quantity - "One" Price - For me to quote When asked, agency said it did not require any support for the dollar value I am to enter in "Price." As it happens, I can enter into a CTA with the vendor of the preexisting courseware, to cover a protest that the courseware isn't on my schedule. But, is that necessary? How can it be determined that the courseware costs more than $3K? The price I pay the vendor for it is not relevant, because that is not the price the government is paying for it, and it is not possible to determine what the price is. Even the price shown on the vendor's schedule is not relevant, because they could be offering it to me at a discount (which might cause them a problem with their price reduction clause, but that is another issue.)

Suppose a GSA RFQ asks for a fixed price, and specifically asks bidders not to break the price out, just to quote a single line item for the FFP. Contractor's solution includes OMIs. Should contractor footnote the fixed price/ Given that the bid is fixed price, how does contractor determine the price of the OMIs? The micropurchase is how much the government pays, not how much the contractor buys the item for.

Thanks for you input,

Thanks in advance to anyone that is willing to read these questions. Agency awarded Company an FFP contract with reimbursable ODCs. The contract is for ten months, all in the same FY. Two ODCs at issue: 1. A software license. The manufacturer does not sell the license for anything less than one year. Company has a reseller agreement with manufacturer. Company purchased the one-year license and resold it to Agency, transferring the license in accordance with the terms of the reseller agreement, (click wrap acceptance of manufacturer's terms of use is all that's required). The term of the license is stated in Company's proposal and contract. Agency has paid Company the full amount for the license and Company has paid manufacturer. Contract expired 4/2015. Agency asserts to Company that Agency cannot use the license for May and June, because Agency did not pay manufacturer directly for the license. Agency asserts that Company owns the license for the remaining two months of the license and that Agency has no rights to it. Agency is NOT asking for a rebate for the last two months of the license. Agency generally knows what it is talking about, why is it saying this? And is it consistent with the following? 2. Agency has also agreed to buy one year of monthly software maintenance services (again, the contract is only for ten months.) The product being sold, which integrates several softwares and other IT services, will not work without the monthly software maintenance. Because Agency has had lapses in funding and product has historically been unavailable during those lapses, Contractor proposed, and Agency agreed to purchase, 12 months of the service, supposedly so that Agency could keep the product running after Company's ten-month agreement expired. Company purchases the services from another manufacturer by the month. Contractor had offered to purchase the last two months of the service in the last month for Agency. In the two weeks preceding the end of the contract, Agency decided it did not want to keep the product and so doesn't want the last two months of the service. Manufacturer requires 30 days' notice to terminate the services so Company will have to pay for one month. Is Agency's decision not to purchase the last two months of the service a T4C?

Desperado: Thanks, good point on the SCA reporting! I guess, now I look at the clause, contractors have to report ANY order against a BPA of $2.5M or greater during FY2014, even if the order was issued before the contractor accepted the mass mod, and the same must be true of orders against a GSA IDIQ task order, as those are also "orders," albeit second tier orders. (B ) The Contractor shall report, in accordance with paragraphs (c ) and (d) of this clause, annually by October 31, for services performed during the preceding Government fiscal year (October 1– September 30) under this contract for orders that exceed the thresholds established in 4.1703(a)(2).