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  1. I don't have anywhere near Vern's experience or intellect, but I would do what I can with what I've got. I'd write up a normal, public-funded, FP performance-based contract, with strict quality levels equating to your success outcome. Deductions up to 100% of the contract value could be written in for specific undesirable outcomes (AQL). I have done that before, though normally using deductions that are not so large as to leave contractors with absolutely nothing, for fairness' sake. The contractor can still get private funding, and the funder can get paid first, by their going to a private party, such as a bank, and putting in an Assignment of Claims -- the contract, its payments, and maybe other things, as collateral. The result might not be equitable if the required outcomes aren't met, so Legal would need to be up to speed. Still affected by apparent authority, constructive changes, terminations, and so forth. I can imagine several other ways this could be done, too. The overall price would be lower, I expect, if the contractor's reward/risk wasn't all or nothing. I suppose one way do to this, other than avoiding a 100% AQL deduction, would be to consider an initial period an unpaid trial run/demo, and paid option periods as potential rewards, even a period as a Requirements contract.
  2. I would do a Novation (changing the name), after the JV and both entities sign off that they transferred all performance assets and responsibilities to the Italian firm and attesting that they release all claims to each other and the USG (to avoid issues if they disagree about this later on). That's assuming you did your standard due diligence (Responsibility Determination, etc.) on the Italian firm.
  3. In the old system, the contractor could add the contract and all the details themselves. If that's no longer the case, I would screenshot the reports page to show the contract is not there and email it to the CO. Then, you're off the hook.
  4. Most Contracting professionals I've worked with in Government contracting, at least those trained through DAU, no longer work in Government contracting and refuse to go back to it. Even if it pays better. Their complaints, overall, are similar to everything you've been saying, Vern. The sad part being that it's a bit like Ayn Rand's Atlas Shrugged, as it leaves policy to be dictated and interpreted by the remnants.
  5. Joel: What happened is that the agency head demands that it be done as "best value where technical is more important than price," or to write that in so it looks that way, but those lower in the food chain don't have the time or patience to review a bunch of proposals (main reason) and also want the lowest price. So, by determining that we have "substantial confidence" in the lowest-priced guy, we basically do both, awarding as IF it were LPTA even though it's not, and we only have to evaluate just that one proposal and dump the rest. To be honest, the lowest guy isn't really "substantial confidence" material at all, but it gets justified that way so that no one can argue against it in a post-award protest. As Vern mentioned, someone could maybe argue it pre-award, but once we get to post-award we're apparently home free. The language in the evaluation criteria goes like this: Offerors are advised that the Government may not evaluate the past performance proposals of all offerors under this RFP. The government will first review the total evaluated price of all proposals received. The past performance proposals of those offerors whose pricing is determined by the Contracting Officer to be most competitive may be reviewed prior to, or instead of, other past performance proposals received. Based on the initial review of these past performance proposals, the government may not evaluate the past performance proposals of other offerors, whose total evaluated pricing was higher than that of one already evaluated and already assigned the highest possible past performance rating. This would occur when the Contracting Officer determines that any possible past performance superiority of an unevaluated (and higher priced) past performance proposal, over (a lower priced) one that was already evaluated and assigned the highest possible past performance rating, would not warrant any additional price premium. In practice, the timeline typically looks like this: (1) Solicit with the language above as best value where technical is more important than price; (2) memo that the lowest-priced offer (or one of the lowest) has the highest possible technical rating, even if it's hard to keep a straight face about it; (3) ignore all the other offers (based on the verbiage above); (4) award to that lowest guy; (5) debrief everybody else that their offer wasn't fully evaluated because their price was higher than an offeror that had the maximum possible confidence rating. It's been done successfully before, and there seem to be quite a few cases where the GAO basically said the SSA can do whatever they want regarding the technical rating and it can't be questioned, so long as a good memo (I hate to say it, but good BS) about relevancy is done. No one can say there was unequal treatment because no other proposal was evaluated. And the evaluation criteria (above) was followed to a T. I don't see any cases where a contractor's protest didn't get denied. It looks like they're right and the GAO is fine with all this. As Vern said, for now, anyway. I wish I had a better argument to make for others to stop doing this, but I haven't found anything.
  6. Wow, Vern. I truly appreciate your gracing my question with your attention. Your knowledge, deductive reasoning, and advice is unparalleled, as always. I don't really want to do this thing. I'm in a position where I set up awards but also get subbed, and I didn't want someone to do this to me someday. Having to tell offerors or to be told: "Yeah, I didn't even look at that offer you spent weeks writing, but don't feel bad, I didn't look at anyone else's, either." Peer pressure: "Why waste your time, do it and lets go get a beer. Everybody's doing it. The GAO doesn't care." Sealed bidding was clean, honest. Will try to work that in. Thanks.
  7. The requirement is a somewhat complex service with some unique military requirements and systems, but we consider it commercial. LPTA is a big no-no. I am ordered to do a best value tradeoff with past performance being more important than price. And then my boss wants to do a quick award to the lowest. Doing it this way feels a bit unfair (will be throwing away dozens of proposals without looking at them, probably the incumbent, too), but I'm told it's allowed if the RFP says that's what we're going to do. That is, give the lowest priced offeror a substantial confidence rating and award without looking at any other proposal. From past experience, it's likely the lowest priced offeror will not be that impressive, often these haven't done any government work, but I'm told to write a good memo and pass them as substantial and no one will question it. I found another Wifcon thread where this was discussed and everyone seemed to be fine with it, even the GAO: http://www.wifcon.com/discussion/index.php?/topic/2910-can-agency-just-award-to-highest-rated-highest-priced-proposal-without-explaining-the-tradeoff-ppt-question/ So, is this a common practice? Even with other factors being more important than price, we really can just award to the lowest offer we can dress up as substantial confidence and ignore all those other proposals?
  8. If a C.O. wants to award LPTA, but the agency doesn't allow it (politics!), instead requiring a time-consuming Best Value analysis where past performance is more important than price, does anything stop the C.O. from very simply determining that the lowest-priced offeror has the highest possible past performance rating and awarding to them without looking at any other proposal? Considering that if protested, the GAO almost always protects the C.O.'s judgment in their technical evaluation of the awardee so long as a nice and flowery reasonable-judgment memo is done and all that, this is a workable strategy, right? Even if the memo isn't perfect, it seems to work: Compare Dorado Services, B-401930.3 (June 7, 2010) (finding that the contracting officer's assignment of a "substantial confidence" rating to the awardee was not unreasonable despite the fact that the awardee had received lower ratings and more unfavorable comments from its references and experienced more performance problems under its contracts) than the protestor. In fact, since the none of the other proposals were evaluated, those offerors won't even have this kind of ammunition.
  9. The FAR Council ruled that FAR 19 does not apply to work performed overseas. When the SBA debated the point, the GAO ruled in favor of the FAR Council. http://www.gao.gov/assets/660/657944.pdf
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