Mike_wolff

Joel, are you familiar with GSA PBS's use of GMP contracting, which we've termed "Construction Manager as Constructor" (CMc) (as opposed to the common industry term, Construction Manager at Risk). https://www.acquisition.gov/gsam/part-536#GSAM_Subpart_536_71 GSA PBS has been doing variations of CMc for 20+ years - the link above is to the current process, but I don't know how much it will (or won't) change with the RFO re-write - that part of the GSAR is still being worked on.

The first deviation only applies as follows: "This class deviation is limited to new acquisitions that are— a. For the award of indefinite delivery, indefinite quantity (IDIQ) multiple-award contracts for services that will be acquired on an hourly rate basis." So, it's not useful for a full construction IDIQ since that is not acquired on an hourly rate basis. The deviation for the second link posted only applies to the GSA FAS ITC Polaris Program. I appreciate the ideas though!

Sadly that's the FAR language - even in the new RFO. But it doesn't define what "qualifying" means, so that's where I had planned to be innovative.

Thank you all for the comments! What I'd REALLY like to do is pilot civilian agency use of 15.304(c)(1)(ii) [RFO 15.104(b)(1)(ii)] and not consider price at the master contract level and just make award to all qualifying offerors, and consider price only at the task order level where it makes sense, but I haven't been able to get approval to do that (at least not yet).

Thanks @C Culham ! I also just re-read Professor Nash's article Sample Task Prices in IDIQ Contracting: Valid Only With Binding Rates?, 25 N&CR ¶ 20 (April 2011) I think this was the key takeaway from that article: Having expressed our view that this rule makes little sense, we understand why the GAO has arrived at it. We put in under the heading of making a silk purse out of a sow’s ear. The sow’s ear is the fact that the statutes require price to be evaluated in competitively negotiated procurements, yet there is no way to price an IDIQ contract because the agency hasn’t decided what to buy. The silk purse is what we called a “level of fiction” in Evaluating Cost to the Government When Quantities Are Unknown: A Puzzlement, 14 N&CR ¶ 10. Agencies are required to call for a fictional price, either by using sample tasks or multiplying proposed unit “prices” by estimated quantities. In order to make the resulting fictional price seem real, the unit “prices” have to be “binding.”

Thanks @joel hoffman . We don't have the authority under 15.304(c)(1)(ii)(A) that DOD, NASA, and the Coast Guard have, so we are finding it more challenging, as we know that the best/real price competition actually occurs at the task order level. So I'm researching how other agencies are doing it - I should have clarified that if an agency is using a process developed with the 15.304(c)(1)(ii)(A) authority that I can't use that example.

I'm looking for examples of how different agencies (I'm at GSA PBS) are doing their construction IDIQ contracting, most specifically how they are complying with CICA on the base/master contract pricing, and subsequently how they are doing the task order contracts. I'm very familiar with multiple ways this has been done historically (and have been discussed on Wifcon), but all options I've reviewed have various..., well, I'll call them "challenges." Any samples you can link me to or email me (if you message me I'll send you my GSA email) would be greatly appreciated. Thanks! Mike

Per the RFO, 2.101 "Market prices means current prices that are established in the course of ordinary trade between buyers and sellers free to bargain and that can be substantiated through competition or from sources independent of the offerors." Therefore, even complex construction would, in competitive cases, have prices based on market prices as defined per the RFO. I'm not commenting on whether it's a good or bad idea to do them under Part 12, just highlighting what the RFO says regarding "market prices."

Thanks for the update Vern and all the work you do with regard to the site. I haven't been on much lately and I had missed the news of Bob's passing - very sad, he was such an awesome contributor to the federal acquisition community.

I really hope this gets implemented - it's long overdue and can greatly increase the efficiency in getting multiple award IDIQs in place, especially for services such as construction, and puts the price competition where it belongs - at the task order level. Does anyone have an educated guess as to the likelihood it gets put into the NDAA?

I too am very thankful for all Vern has done for this community over the many years - thanks Vern!!! I only met you in person once, but have gained uncounted knowledge for all the free counsel you share. Vern came and spoke to my division of about 100 contracting staff (mostly 1102s) and didn't even charge us a penny, because quoting Vern "that way you can't complain you didn't get what you paid for." LOL We've put on the conference every year since then (some 18 years ago) and that one was still the best by far - thanks to Vern and also Professor Nash's participation as well.

I know I'm late to this party, but in case Vern, you are still developing arguments, at the very least I would hope to see that if we are stuck with the current GAO protest venue, that Congress could change the process to REQUIRE that contractors first have a debriefing, and if they still want to protest after that they have to start with an agency-level protest. I've seen too often that a contractor protests to GAO without even getting a debriefing, when a debriefing or CO/agency protest could have likely resolved the issue much more quickly, and much more cheaply for all parties.

I think the quoted excerpt above is a great argument - there is a huge difference between having a GSA Schedule and getting a BPA under that Schedule, and having the BPA is a significant benefit. Although I guess one could argue similarly for Part 13 BPAs. This does make me think though, if the BPA provided an additional, more than nominal, guarantee that would undisputedly make the BPA a contract, per the definition in 2.101, because it would "obligate the Government to an expenditure of appropriated funds."

Using that same logic though, why wouldn't the FSS Contract (or any IDIQ contract) only be a "charge account" and the contracts only be the orders?

It was a BPA under a FSS Schedule. The Schedule contracts are IDIQ contracts, so the task orders under them are binding contractual actions in accordance with the terms of that IDIQ, so it makes no sense how a BPA negotiated under the terms of a contract (NOT a stand-alone Part 13 BPA) is not also a binding contract. I didn't want to debate this again, as I think the above thread already does that, but was hoping there was possibly some correcting court decisions that I wasn't aware of. I was a little surprised that USCG was using the argument about FSS BPAs.