Whynot

Is there something more than a pre-solicitation market survey to determine if there is a commercial item that can meet the need that would validate that the expense and effort of a Mil Spec is necessary?

Thanks for the insights.

What would prevent an agency today from creating a Mil Spec type requirement for a hammer over that of a commercial hammer? Other than the direction to use commercial items where possible, what would prevent a Mil Spec hammer form being needed?

Are there statutory or regulatory prohibitions on the Federal Government purchasing in excess of their minimum needs or requirements? If so, where can I find reference to them. Thank you.

I know I used up my three strikes. Didn't the forum agree that you can't do an IDIQ within an IDIQ. There are multiple threads - here is one:

http://www.wifcon.com/discussion/index.php?/topic/3195-can-you-do-a-gsa-fss-mas-delivery-order-as-a-idiq/&tab=comments#comment-28540

The concept of minimum hours is not applicable to a T&M contract.There is no minimum and having no minimum does not mean that the minimum is zero but that it is not applicable.

I think the T for C recovery calculations are off:

DMI, however, could not know that 4583 or even 3437 hours was far beyond the number of hours of services actually possible.

This statement should have supported recovery of subcontrctor costs

Also the G&A and consequential limitations are off - G&A has not been recovered through the labor and diect damages are allowed

I was hoping for some support that a Commission Agreement did not meet the definition of a Subcontract - say per 19.701.

The prime is trying to flow down clauses to me. I have not accepted any of them. It is a constant battle.

I am a sales agent that gets paid commissions from the Prime when I bring in orders for products and services off of one their IDIQ schedule contracts – such as a GSA Schedule. Do flow downs from these schedule contracts apply to me? In a small business subcontracting plan would my commissions be included when reporting subcontracting dollars? Is a sales agent a personal services contract?

As a subcontractor, I will be performing exclusively as a sales agent of the prime (selling the prime's products and services to the customer). I will not be reselling, or providing any products or services being resold by the prime to the customer. How can one easily filter the prime contract clauses for those that applicable to a subcontractor sales agent?

Maybe the labor rates can be at fixed unit prices in the BPA and parts can be reimbursed at cost plus an fixed administrative fee percentage in the BPA. You can issue blanket POs that vendors can draw down against at these fixed prices.

It sounds like the first original CPFF contract is still ongoing. The government paid for the facility and equipment. The contractor currently has title to those assets. When that original contract ends, the contractor would likely have to transfer those assets to the government per the terms of the contract.

It sounds like the contractor wishes to bid on a separate and second contract and wants to use those assets in performing that second contract. Does the contractor have the right to use those assets on another contract while the original contract is ongoing, and if so, does the contractor have to identify the government interest in those assets in the proposal for that second contract?

If this is the case, I would get explicit written permission to use those assets on the second contract from the original contract, and second, I would disclose the status of those assets in the proposal for the second contract.

I hope you put some disclaimer in your "invented" estimate. If the government awards based on your false estimate, as found out by a protest from a losing bidder, or other means, you set yourself up for a potential false claims.

Maybe this a task order RFP under a schedule or IDIQ - and the government just wants to see how you got to your offer using established contract labor and rates.

Do you think it reasonable, under commercial contracts, for a negotiated change under that commercial contract per FAR 52.212-4(c) -- Contract Terms and Conditions -- Commercial Items (c) Changes, for the Contractor to include in its pricing of the change, pricing for the effort spent in preparing the change proposal? What would the government’s position be to not accept or allow change pricing to include pricing for the effort spent in preparing the change proposal?

From a math point of view:

Some prime’s treat contract labor and subcontract labor differently. Often, contract labor gets classified as direct labor and subcontract labor gets classified as ODC. So is direct labor equivalent to employee labor for purposes of complying with the LOS? I am not sure. Another aspect to consider is that virtually every person getting work through a contract labor firm has signed an agreement with that firm that makes that individual an independent contractor as opposed to an actual employee of the contractor labor firm. As such, virtually all contract labor is small business labor, although at the 2^nd tier not the 1^st tier if contract labor is considered as subcontract labor. The intent of the LOS clause is to prevent a pass through of the contract to a large business. I think using contract labor is consistent with this intent.

I was wondering if a FP LOE acquisition would be appropriate for this method. If you imagine a requirement to perform a study for a fixed budget, you could embed a trade off evaluation under a highest rated technical approach by using e a combination of skills and number of hours (technical evaluation) and fair and reasonable price. Say you get four offers for a $200,000 FPLOE study:

Most Skilled for 100 hours at $200/hour

2^nd Most Skilled for 160 hours at $125/hour

3^rd Most Skilled for 250 Hours at $80/hour

Least Skilled for 200 hours at $100/hour

All rates are determined to be fair and reasonable. Who wins?

If your highest rated technical evaluation looked only at skill level then the Most Skilled Offer should win. If your highest rated technical evaluation looked at both skill level and hours then you could conceivably award to anyone. It seems that a tradeoff methodology could still exist even in a highest rated technical approach, and probably could never be completely eliminated.

As another observation, all prices need to be fair and reasonable in all situations, even those in a LPTA award to those in a best value award

It seems that at the end of the day, you cannot buy more than you need and/or at more than you can afford- regardless if it is has the highest technical rating and is offered at a fair and reasonable price.

Without the follow on task order competitions you have no way to control this.

I wonder if there has to be some ceiling or cut off on awarding to the highest technically rated. What if the highest technically rated proposal far exceeds the government's bona fide needs? The solicitation would have to create some sort of boundaries that would pre vent this.  

If we use Vern's definition, from the vendor's perspective, the vendor need only be a non-government source, and make the item available.

I would like to know the definition of “commercially available” as a standalone requirement without the reference to COTS. Imagine an RFP specification that says:

All items must be commercially available at time of award.

What does that mean?

What if anything is the distinction in the FAR between something this is required to be a “commercial item” and something that is required to be “commercially available”? It appears that “commercially available” is frequently linked to COTS items but not always. If there is a standalone requirement for an item to be “commercially available” without the reference to COTS does the item still need to meet the “commercially available” COTS definition or can it just meet the “commercial item” definition or some other defintion?

I think the issue would be then how the communications were characterized. The protester would have to argue that the communications were discussions and the government would have to argue that they were clarifications. I don’t have any facts on the scenario. But is it strictly prohibited to be eliminated from the competitive range after discussions?

Is there any restriction on the timing of making a competitive range determination? Can it occur at anytime, say before or after discussions