joel hoffman

ji20874, nobody would get a post award notice under a small business program using your stated practice of giving a pre-award notice or a post-award notice "but not both". That doesn't make any sense at all to me. By the way, I think that ALL firms - not just the unsuccessful offerors - must be given a pre-award notice under a small business program at 15.503 (a)(2): "(2) Preaward notices for small business programs. (i) In addition to the notice in paragraph (a)(1) of this section, the contracting officer shall notify each offeror in writing prior to award..." There are several reasons why that I say ALL firms get the (a)(2) pre-award notifces for small business programs. 1) Everyone but the apparently successful offeror would know who that firm is if only the unsuccessful offerors were notified under (a)(2). 2) The language at (a)(2)(i) specifically says "the contracting officer shall notify each offeror..." 3) In distinction, the language at (a)(1) specifically calls out pre-award notification of "offerors promptly in writing when their proposals are excluded from the competitive range or otherwise eliminated from the competition". 4) In distinction, the language at ( specifically calls out post-award "notification to each offeror whose proposal was in the competitive range but was not selected for award (10 U.S.C. 2305((5) and 41 U.S.C. 253b?) or had not been previously notified under paragraph (a) of this section."

Disregard - I pushed the wrong button. Was still typing...

Sorry - I tried last night but couldn't determine the URL for the earlier WIFCON thread on the @$#@%#^& Blackberry. Might have saved a lot of trouble and a couple of hours of my time last night. Inasmuch as it has contributed greatly to my Carpal Tunnel Syndrome, I'm thinking of taking it for a one way sail on Mobile Bay.

I apologize for searching the FAR on a Blackberry and trying to go back and forth between the FORUM and the FAR websites, late at night. It doesn't work. I was responding to your scenario plus I neglected to include any instance where the government failed to notify a firm of its exclusion from the competitive range or that it was otherwise eliminated before award under 15.503 (a)(1). I was trying to say (very awkwardly) that even though a firm in the competitive range received a pre-award notice, it still gets the post award notice and that the post award notice contains different information than the pre-award notice. Vern's post is succinct.

Don, while waiting for Vern's response, he answered the question in this archived thread: Your interpretation is correct, according to the thread. http://www.wifcon.com/discus/messages/8520...html?1204312343

Don, the phrase at 15.503 ( b ) ( 1) requires post notification of 1) those firms in the competitive range (which refers only to those firms), OR 2) notification of those not previously notified under FAR 15.503( a )( 2). I am assuming that this refers to all firms that submitted offers. This in the event that the government didn't notify anyone before award because of an urgent requirement to award without pre-notification. In the 2nd case above, the FAR requires all firms to be notified before award. However, there is an exception at 15.503 (a )( 2) (iii) to the pre-award notification requirement that allows government not to notify anybody: "The notice is not required when the contracting officer determines in writing that the urgency of the requirement necessitates award without delay or when the contract is entered into under the 8(a) program (see?19.805-2)." I don't believe that there is any prescription for only notifying certain firms and not others before award. I suppose that it would be possible but I don't envision such a scenario, with today's communications technology. So one will likely either notify everyone who submitted offers or no one. To state it another way, I believe that the post award notice is for the firms remaining in the competitive range UNLESS the government didn't notify anyone before award under the small business programs. In that case, everyone gets the more detailed post award notice. In addition, the post award notice contains different information than the pre-award notice. It is intended for the firms that were still in the competitive range. But if nobody was notified before award, the government then has to notify all those firms- not just those still in the competitive range- after the contract award with the full complement of information included in that notice.

Yes. The pre-award notice allows other firms who submitted offerors an opportunity to challenge or raise an objection to the status of the apparent successful offeror, if warranted. The post award notice and associated information is intended for those firms in the competitive range, which is who I think you asked about. Plus any firms that normally should or would have been but were not previously notified prior to award would also be included in the post award notice. I guess an example is where exigency precludes the pre-award notice. There was a discussion thread related to this question several years ago on this forum. Unless something has changed, I believe that was the gist of the discussion.

One of several problems associated with using the passive voice is ambiguity.

It appears that the requirement has changed from GF equipment and materials to Contractor furnished. It appears that negotiations have occurred for the new contract or at least discussions concerning scope of who provides the equipment. It appears that the contractor cannot afford to purchase the materials and equipment up front, to amortize over some period. The government agency apparently cannot afford to directly pay for or to reimburse the contractor up front, either and would require the contractor to spread the costs over the contract or some other means. We don't know what communications have occurred between the parties or if the Committee has been made aware of the change in requirements/circumstances.

I agree with post #4 concerning clarity of the question. EDIT: For instance, is pabner asking about actually obligating the funding or obligating the funding for execution of something beyond the CR period?

One must read the language of the Continuing Appropriations Act for FY 2012. I found the language of H.R.2608, enrolled bill. The text of the bill sent to the White House in Section 106 says: "Sec. 106. Unless otherwise provided for in this Act or in the applicable appropriations Act for fiscal year 2012, appropriations and funds made available and authority granted pursuant to this Act shall be available until whichever of the following first occurs: (1) the enactment into law of an appropriation for any project or activity provided for in this Act; (2) the enactment into law of the applicable appropriations Act for fiscal year 2012 without any provision for such project or activity; or (3) November 18, 2011. " See also any other restrictions. http://thomas.loc.gov/cgi-bin/query/D?c112...p/~c112Aap9oy:: It became Public Law No: 112-36 on October 5th but I haven't been able to find (I'm not good at it) the official text of the actual law.

Deleted.

I will email the information I learned to Farat Fasat.

Checking, however I recommend checking with one of the Regional PARC offices if you can contact them.

There are joint venture agreements to pursue contracts. A joint venture as a contractor entity is generally on a contract to contract basis.

I agree that it is informative. Regardless of what the JV says it is "going to do", I believe that a JV agreement is generally valid for one contract at a time. So many practices are not the recurring, standard, consistent, customary practice - set in stone, take it or leave it. Thus, it is possible that "how the JV operates" in charging the customer for materials purchased from its members should be at least negotiable, if they don't seem to be reasonable. I'm assuming in the case here that these aren't materials that the member firm normally produce or sell commercially. I know there are exceptions for that. For instance, many of the big construction companies have learned the trick of renting equipment from their equipment rental subsidiaries or affiliates, who also rent commercially, at the commercial rates, so they or their parent organization can legally collect twice, so to speak. Of course, if it identified the intended practice in its proposal, as Here mentioned, then the government had the opportunity to negotiate or challenge the practice.

Here, I agree that we don't know if either cost principle applies to the situation. We also don't know why or if it is necessary for one of the firms to purchase materials for this contract outside of the JV's role as the prime contractor.

I've found a general reluctance on the part of many government personnel to bargain for better pricing during source selection discussions. Even in this forum, there seems to be some trepidation throughout many threads. If the current solicitation is based upon award to the lowest priced, technically acceptable offer, then one would think that price is important enough to try to persuade a firm that its price is unreasonably high and to understand the implications of a price that one thinks is uncomfortably low. I've been involved with enough instances where extremely low prices resulted in poor performance, poor cooperation, lack of performance and default. Dealing with all that is a major pain in the Gazoo and requires a lot of extra time and resources. It's better to find out as much as possible before accepting a high risk, low offer and to take advantage of the discussions process the extent possible.

Shultzm, I noted that you aren't the original poster here. Are you still concerned about the situation in the other thread where one of the JV members is selling materials to the joint venture that it is part of, then the JV marks it up again? I'm not at my computer but FAR 31.2 contains a general principle that there is no presumption of reasonableness and the contractor must justify reasonableness. Why can't the JV buy the materials directly - why does one of the members have to individually purchase them, mark them up and sell to the JV, of which it is a member? Why is that reasonable? There might be a valid reason, I don't know. EDIT: See FAR 31.201-3 for general discussion of determining reasonableness.

So, if the government cannot determine if the risk indicates that the proposal is technically acceptable for the lowest priced offer and the other offer is clearly unreasonable, it would seem to me that another round of discussions is warranted. The first round apparently didn't produce satisfactory results. Even if the government determines that the risk is unacceptable for responsibility determination based upon unacceptable risk, the only other price is (apparently) not fair and reasonable. That is reason enough to try to salvage this effort with further discussions.

I was waiting for the answers to the specific question that ipod24 asked before expressing some doubt about the effectiveness of price discussions already conducted, which were described as "meaningful". If "no changes were made", I wonder if the government made a very strong case for questioning the reasonableness of either proposed price. You said that the government's estimate for the required services is "substantiated". If you are still concerned about the low proposer's price, I wonder if the government probed the firm's understanding of and technical approach to providing the required service or if they specifically indicated concerns that the price might be so low as to face a risk of failure (as Vern indicated as performing poorly or defaulting), while also taking into account that it is a large business. The incumbent's final, unchanged price is 42% higher than what the government believes is a substantiated estimate of reasonable cost. I seriously wonder how strongly the government challenged the reasonableness of the price or if there was much bargaining or persuasion to lower the price. I agree with Vern's advice concerning a negotiation approach with each of the two firms. Bottom line seems to lean toward the conclusion that the government still isn't satisfied that either price is fair and reasonable or that if the lower priced offeror "can perform at a loss without defaulting or performing poorly", and that the government isn't satisfied that the lower priced firm is financially capable to endure performing at a loss.

So, you are essentially saying that a member of a joint venture would purchase materials as a subcontractor to the JV entity of which it is a member, marking it up once, then essentially selling it to itself as a JV ? The JV would sell it to the government and the firm will share again in the profit. Would the pyramiding of profit by simply assigning one or more of the firms the role of a subcontractor to furnish itself with materials or services be considered unreasonable? There may be some coverage elsewhere, but see 31.205-26(e) and 52.215-23. "(e) Allowance for all materials, supplies, and services that are sold or transferred between any divisions, subdivisions, subsidiaries, or affiliates of the contractor under a common control shall be on the basis of cost incurred in accordance with this subpart. However, allowance may be price when-- (1) It is the established practice of the transferring organization to price interorganizational transfers at other than cost for commercial work of the contractor or any division, subsidiary, or affiliate of the contractor under a common control; and (2) The item being transferred qualifies for an exception under 15.403-1( and the contracting officer has not determined the price to be unreasonable. (f) When a commercial item under paragraph (e) of this subsection is transferred at a price based on a catalog or market price, the contractor-- (1) Should adjust the price to reflect the quantities being acquired; and (2) May adjust the price to reflect the actual cost of any modifications necessary because of contract requirements." Now, if the transaction passed the first smell test, clause 52.215-23 ? Limitations on Pass-Through Charges could apply. I believe that this would preclude the JV charging fee or G&A type overhead for the material, except for the value added by the JV to the materials, if any. I might have the wrong substantiation here but the principle to me would be not allowing a scheme for individual JV members to perform contract functions at a full markup, essentially acting as a sub to the JV, then the JV takes a full markup on the members' contributions to the contract effort.

Carl, I simply mean, in conversing with the SBA, it might be better to include the FAR language that you are referring to rather than simply referencing the FAR numbering system. Its not their primary CFR. They likely have their own cross references.

Carl, not trying to be cynical - but wouldn't it be better to quote the FAR reference to the SBA, who operates under a separate Code of Federal Regulations than 48 CFR?

Vern, the poster indicated that the maximum total quantity of services (to be acquired under the contract) has been expressed as a "value" (consistent with 16.505 (a) (2)). Of $1 million, not as a maximum physical quantity of services . Maybe I'm missing something but it would seem that in-scope changes involving services would count toward the total maximum (monetary) quantity of the services to be acquired under the contract (consistent with the requirement in 16.504 (a) (4)) . I'm assuming the contract is primarily for services because it uses task orders, not delivery orders. I suppose it could include both but still includes a maximum quantity, value, dollar amount or whatever.