joel hoffman

Jamaal, I haven’t researched any subsequent protests for comparison or currency of that Decision. The crux of that decision seemed to result from the Army assuming they could extend the contract period as an in-scope mod, using -8 option. GAO said it couldn’t, then critiqued it for awarding the new sole source action without evaluating the price or considering other qualified competitors from the (original task order field?) . The Army argued that the four month extension could be justified as an urgent and compelling exception to full and open competition. The GAO then said , yes BUT that exception also favors using as much competition as practicably available. Based upon the scope and the short duration of that extension, I think GAO was nuts to think that a new competition was practical.

https://www.wifcon.com/discussion/index.php?/topic/2653-dash-8-clause-far-52217-8-and-major-contracting-services-gao-decision/ Here was the link to the previous thread, which included a link to the Major Contracting Services GAO Decision, which was the focus of the thread (if you clicked on the embedded thread in my reply to REA’n Maker last Friday). However the link in that thread to the referenced Major Contracting Services Protest was changed. Here is a current link to that Protest Decision: https://www.wifcon.com/discussion/index.php?/topic/2653-dash-8-clause-far-52217-8-and-major-contracting-services-gao-decision/ In the scenario of that Protest, it was determined during the initial contract period that the Prime Contractor didn’t qualify as a Service-Disabled Veteran-Owned Small Business Concern (SDVOSBC) so the Army wasn’t allowed to exercise any.if the options. However, it exercised the -8 clause to extend the base period by four months to allow for a new competition. The GAO determined that the four month extension amounted to a new sole source acquisition, not an in-scope extension. Since the price of that extension had not been evaluated, the contract couldn’t be extended by the in-scope use of the -8 clause. Note that the Army may likely have exercised the -9 options had the contractor been an SDVOSBC. It was prevented from exercising even the first option. _____________________________ The GAO stated: The option to extend the contract here under FAR clause 52.217-8 was not evaluated as part of the initial competition, so that the exercise of this option amounts to a contract extension beyond the scope of the contract, and therefore effectively constitutes a new procurement. Laidlaw Envtl. Servs. (GS), Inc.; International Tech. Corp.--Claim for Costs, B-249452, B-250377.2, Nov. 23, 1992, 92'2 CPD para. 366 at 4; seeTechno-Scis., Inc., B-257686, B-257686.2, Oct. 31, 1994, 94-2 CPD para. 164 at 8 n.3. Thus, the agency could not have met the FAR Part 6 standards for full and open competition by simply exercising the option under FAR clause 52.217-8. FAR sect. 17.207(f); see Antmarin Inc.; Georgios P. Tzanakos; Domar S.r.l., B-296317, July 26, 2005, 2005 CPD para. 149 at 8 n. 8. In such circumstances, the agency must justify the use of noncompetitive procurement procedures in accordance with FAR Subpart 6.3 before exercising the unevaluated option. Laidlaw Envtl. Servs. (GS), Inc.; International Tech. Corp.--Claim for Costs, supra.” ____________________________ Since the most common course of action seems to be award of all the -9 options, it would be reasonable to anticipate only having to invoke the -8 option after the last of the options. If the agency doesn’t necessarily intend to award all the options, at the time of the initial contract/order, then it may have to evaluate other scenarios per the reasoning in this Protest Decision. But, consistent with the Major Contracting Services Protest Decision it doesn’t necessarily HAVE to evaluate a -8 extension for EVERY option - only for the one that it eventually extends.

Aye, Matey!!

Unit priced contracts with estimated quantities are quite common in commercial, state and local municipal government contracting. Especially in horizontal and vertical construction and light and heavy civil works, also including US and state Departments of Transportation and US Army Corps of Engineers Civil Works contracts. In Germany, many or most construction line items are unit priced, even when the exact quantities were established and known. There are over 20,000 DIN (Deutsches Institut für Normung) standards, with standardized definitions, descriptions means of measurement and payment, etc. for most, if not all line items. It simplified measuring the work and facilitated collecting pricing data for estimating databases.. There are some drawbacks but that is beyond the topic of discussion here. Contracts are firm fixed price because the agreed unit prices were generally independent of the contractor’s actual cost/expense.. Im guessing that there are DIN standards for various services, too. Sorry for the edits. I had eye surgery this morning. It’s hard to read today,using me magnifying glass And an “aye patch”“Arrrr., Matey!!

I don’t think that the article addresses unit pricing variable quantities of a definable service (e.g. CDRLs, meals, number of mowings, acres of mowing, SFt of painting, etc.). Same thing in construction with variable quantities for a defined requirement, (e.g., estimated quantities of cubic yards of excavation, fill, LF of…., Cubic yards of dredging, etc.). One can establish line items for estimated quantities of such unit priced items, with controls on overruns and overall cost of the contract and/or orders. The article addressed variable, unknown or estimated hours of labor to perform various tasks, services, etc.

No. See my link to the previous thread. I agree with Vern’s 2014 comment in that thread: “Frankly, I think the GAO's decision was stupid, and the agency should have refused to follow their recommendation.” Extensions pursuant to the -8 clause had been made for years before that case arose. It is a simple concept, intended for situations where delays in follow on contracts occur or an agency otherwise needs to extend the final period of services for a short period. The clause was in the solicitation and contract- all the competitors were aware that the situation could arise once at some point.* Why overcomplicate by having to evaluate an extension for the possibility that it could occur at any one* of the contract periods? There are too many alternative possibilities. * clarifying that the extension would be to whatever is the final period (base or a final option period, if any options were exercised).

No. See my link to the previous thread.

If there is no CLIN for it at contract award, then why report it? Why would it be included in the total contract value at award? It will be an in-scope, unilateral mod to the contract, if utilized. It’s then reported as an in-scope mod (contract action) if the provision is exercised, like any other mod, correct?

What do you have to “report”? The -8 extension isn’t part of the contract price unless or until the government needs to extend performance using the option clause. See, for example:

I believe that the government is evaluating, as part of the price analysis, to compare pricing between competitors if the -8 clause would be exercised. I don’t think that the full potential government obligation is the concern. One can’t exercise the -8 extension unless it has funds available at that time.

The Army Corps of Engineers has had successful college intern programs for decades for architects and Engineers.

It a sad state of affairs. I can’t remember my former agency making political claims or giving credit for agency accomplishments at the Administration level, including the political appointees. No - it makes me angry that the Small Business Administration would do that. I do remember the agency sometimes acknowledging the work of specific congressional members or state delegations for various projects or programs. I think some of that was glad handing to keep the delegations happy. The Members of Congress released their own press releases. Happy delegations means more money…

This blatantly political, Official SBA Press Release was posted to the NEWS column of the WIFCN Home Page on 19 July 2023: “Biden-Harris Administration Sets Record-Breaking $163 Billion in Federal Procurement Opportunities to Small Businesses” PRESS RELEASE 23-47 Published on July 18, 2023 Here is the URL for the Press Release: https://www.sba.gov/article/2023/07/18/biden-harris-administration-sets-record-breaking-163-billion-federal-procurement-opportunities-small No criticism of WIFCON or its Webmaster intended. When I read the Press Release, it was obviously intended to specicially credit the current Administration and its political appointee for the magnitude of Small Business awards.

Why is this posted under contract administration?

I prefer this than new line items in the original contract award. The -8 clause didn’t intend a separate option but an extension of existing terms.

Voyager and Bob Antonio, Wouldn’t this thread be more appropriate under the Small Business Socioeconomic Programs topic area than under the Contracting Workforce topic area?

P.S., I like the SBA coverage of the LOS a lot. But I don’t see FAR reference to it or FAR implementation of the specific detailed guidance (e.g.,examples) and procedures in Part 19 or referenced in actual contract language. I didn’t see where the SBA procedures , data requirements or penalties under LOS are in contract language between the contractor and SBA or the Agency. Such details are extensively covered in contract clauses for subcontracting programs and subcontracting plans.

Thanks for the clarification, Voyager. Apparently this paragraph is part of the paragraph referring to LOS on competitive set-asides for small businesses. However, technically, “small business set-asides” constitute only one type of the contract acquisition types or contract actions that are subject to the LOS, of course. Various sub-classes of disadvantaged small business and HubZone small businesses also have set-asides, or sole source awards or price preferences, etc. The policy writer conflates the LOS clause with Subcontracting Plan contractual requirements, which aren’t applicable to these contracts, and the other requirements or actions discussed in the initial post for these type of acquisitions. I’m glad to see that the SBA, at least, has put some teeth into enforcement of the LOS clause. The penalty in 13 CFR 125.6(h) is an SBA authority. So are some of the data collection techniques which may be necessary to determine compliance, at least on non-construction contracts. The LOS doesn’t address these. I can agree with an agency “pursu[ing] collection of penalties” but, unless covered elsewhere in a contract, the agency can’t determine or collect a penalty. I think that any penalty would be deposited into the Treasury. Voyager, if you meant in your initial post that agency oversight and active (not passive) contract administration of the LOS and the other contract performance requirements are not important, I disagree. I do agree that the policy guidance is poorly written. It may or may not be the “worst guidance ever”.

Voyager, does your agency assess and collect “penalties” from small business prime contractors who exceed “established” subcontracting limitations? Is the policy writer confusing “penalties” (liquidated damages) associated with subcontracting plans with the limitations on subcontracting clause? They are mutually exclusive…

The clause goes in ALL contracts(?????)…NO “19.507(e): The contracting officer shall insert the clause at 52.219-14, Limitations on Subcontracting, in solicitations-and contracts— (1)For supplies, services, and construction, if any portion of the requirement is to be set aside for small business and the contract amount is expected to exceed the simplified acquisition threshold, and in any solicitations and contracts that are set aside or awarded on a sole-source basis in accordance with subparts 19.8, 19.13, 19.14, or 19.15, regardless of dollar value. This includes multiple-award contracts when orders may be set aside for small business concerns, as described in 8.405-5and 16.505(b)(2)(i)(F), and when orders may be issued directly to a small business concern as described in 19.504(c)(1)(ii). For contracts that are set aside, the contracting officer shall indicate in paragraph (f) of the clause whether compliance with the limitations on subcontracting is required at the contract or order level; (2) Using the HUBZone price evaluation preference. However, if the prospective contractor waived the use of the price evaluation preference, or is an other than small business, do not insert the clause in the resultant contract.” • The clause isn’t applicable to large business primes or where there is no set-aside, partial set-aside or sole source for various applicable classes of small businesses. • The clause doesn’t address ANY of the performance requirements listed above (including “failure to comply with Limitations on Subcontracting”). The clause cannot “ensure that all contracts comply with those specifically listed (“I.e.”) performance requirements. • Subcontracting Plans aren’t applicable to such small business set-asides, hub zones and sole source small business awards. Subcontracting plans and the Limitations on Subcontracting -14 clause are mutually exclusive. That’s not what I’m saying. The policy is poorly written, erroneous and is apparent that the policy writer doesn’t know what they are talking about.

I agree that it is ridiculous and erroneous policy .

Is this for an Other Transaction Authority contract? This may or may not be accurate: https://nstxl.org/traditional-vs-non-traditional-contracting/#:~:text=Non-traditional defense contractors qualify,contracts only under commercial procedures

Jamaal, Lawyergirl’s profile indicates that she works for a contractor.

https://www.dla.mil/Aviation/Offers/Industrial-Plant-Equipment/Acquisitions/ Is this what you are referring to as IPE?

Lottery - yes!