ji20874

I suppose Serco's saving grace is that Serco is also a Seaport-NxG contract holder.

What NITAAC has done has made the past performance evaluation so broad that every offeror will get the highest rating, and the factor will be useless in helping to select the best value.  

As a general matter, I am okay with limiting past performance to the prime offeror's experience only -- that is real and meaningful.  If I for some reason did allow for subcontractor experience, I would find more confidence in examples where the prime and sub have a history of working together as opposed to examples where they did not.

Well, for right or wrong, for good or bad, it seems the result is that those local clauses are migrating to SOWs, as you observed.  You asked "What's going on here?" In response, I gave my supposition as to what's going on, based on what I hear from colleagues in DoD.  I still have to wonder if the DoD red tape is too burdensome.  You said, "not a single local clause has been incorporated in the CFR since the new policy was implemented." 

I'm not in DoD, so I can only operate based on what I hear.  I heard that all local clauses were deleted, but since many of them served valid and useful purposes, the text of those clauses seems to be ending up in SOWs, as you observed.  I also heard that the ban reached to Section H and SCRs.  But the reviewers only make sure that Section H is empty, but don't apply rigor to SOWs, so the needed text migrates to SOWs.

Perhaps the DoD ban is too burdensome?  

A supposition.

Quote

What's going on here?

I don't know for certain, but I suppose people are trying to support their organizational missions as best they can.  If they cannot put needed contract text in Section H (or similar approach for non-UCF contracts), they might put it in the SOW.  

Good decision by the GAO...

I wholly agree with the agency and the GAO.

Thank you!  

This is a messy area.  In addition to the messiness in figuring out what portion of the contract may be subcontracted, there is also messiness in what a subcontract is.  FAR 19.701 and FAR 44.101 have two different definitions!

Good decision by the GAO!

I was once questioned by an offeror on my use of the word "robust" in an evaluation factor description.  I declined to define the word in the solicitation.  My use of "robust" was fair.  This agency's use of "tactical" was fair.

The excusable delays doctrine prevents the contracting officer from terminating for default, but it does not provide for any adjustments in the contract price.  

FAR subpart 50.1, Extraordinary Contractual Actions, can be seen as contemplating a pandemic.  It provides all sorts of remedies.  The process starts with a contractor request.

By all means, if the protester (or anyone else) knows a better way to evaluate risk for a lunar mission, they should share their thoughts with NASA -- it's their duty as patriotic citizens. 

Really, the GAO made the only decision it could under the circumstances.  I’m satisfied with it.  

Good answer by GAO.

In the protester's favor, this was not a sealed bid procurement -- there, its price would have been public.  But in this case, its price was unknown to competitors -- and would have remained unknown except for the protest that it elected to file.

Maybe ProTech should have protested before proposals were due (such as after issuance of Amendment -0004), rather than waiting until it was excluded?  If it had, the protest facts, argument, and possibly the outcome could have been entirely different.

This is an important decision.  Many among us cannot tell the difference between a contract and a BPA, and we do everything when establishing a BPA that we do when awarding a contract.  But when the FAR says contract, it means contract, and a BPA is not a contract.  Hurrah for the GAO!  Hurrah for this decision!  A pox on all the reviewers and attorneys in government offices who cannot tell the difference between a contract and a BPA!

That's right.  Back in the 1990s I terminated for default a grounds maintenance contract at a military base in the U.S. because the contractor's foreman lost his security clearance and base access for beating his girlfriend over the weekend, and the contractor couldn't/wouldn't/didn't provide a qualified replacement within the time period I allowed.

I think contracting officers are innocent in these matters.  What else can a contracting officer do, except rely on the offeror's self-certification?  There is no place for the contracting officer to learn anything contrary to the offeror's self-certification.

If this really is a problem that needs a solution, how about one of these?

• Let IRS add these contractors to the excluded parties list.
• Connect agency automated contract-writing systems to the IRS and get an IRS pre-approval for every award.

If there is a real problem to solve, let's solve the problem -- blaming contracting officers (when contracting officers have ZERO ability or knowledge) is stupid.

Great decision from the GAO!

It is generally true that offerors must be registered in SAM at time of proposal submission, but it isn't absolutely true.  FAR 4.1102(a) lists seven exceptions to the general rule.

I don't want to discourage registrations -- I just don't want anyone to rely on your statement ("Registration is now required for ALL federal contractors at the time they submit bids") as an absolute truth.

Here's my initial understanding of the problem--

• Supplier A = $112/ea for on-time delivery, or $71/ea for late delivery, with about a 1-in-3 chance of late delivery;
• Supplier B = $106/ea for on-time delivery, or $65/ea for late delivery, with about a 1-in-5 chance of late delivery; and
• Supplier C = $100/ea for on-time delivery, or $59/ea for late delivery, with about a 1-in-25 chance of late delivery.

Am I understanding correctly?

Or does the quoted price include the delivery incentive?--

• Supplier A = $71/ea for on-time delivery, or $30 for late delivery, with about a 1-in-3 chance of late delivery;
• Supplier B = $65/ea for on-time delivery, or $24 for late delivery,  with about a 1-in-5 chance of late delivery; and
• Supplier C = $59/ea for on-time delivery, or $18 for late delivery, with about a 1-in-25 chance of late delivery.

I like your paragraph allowing for an extended deadline for emergency or unanticipated events.

I suppose your working assumption is that the text can be improved?

It is a shame that this matter is being argued in 2018, when the rules for ordering in fair opportunity considerations were established so long ago.  Some agency contracting officers and many agency attorneys are as clueless as this protester, so I am glad for a very clear decision by the GAO.  However, contracting officers and attorneys who actually read the FAR will not be surprised by this decision.

Excellent decision, fully compliant with our rules.  Outside VA, the Rule-of-Two simply does not apply to ordering processes under Schedule contracts or multiple-award contracts.  That’s a fact of life.

The exception is if the parent Schedule or IDIQ contracts themselves [foolishly] self-impose this requirement.  

An offeror intending to submit a proposal by e-mail really, really, really should make its submission by “5:00 p.m. one working day prior to the date specified for receipt of offers."

An offeror who fails to do so, and whose proposal is late, should protest to the Court of Federal Claims instead of to the GAO.  I'm with the GAO on this matter.

Desparado, I've done a number of bid openings but I've never had that pressing situation -- I have had situations where a bidder arrived late and he knew he was late, so there was no complaint.  At a bid opening, I always clearly announce when the time set for bid opening has arrived, as you probably do, too.  In training others to do bid openings, I remind them that they must have the professional backbone to declare the time and then to stand by their announcement.  I tend to discern that many of our younger colleagues do not have sufficient backbone to do it.