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TyroneSlothrop

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  1. I wanted to come back and give a brief "after action" report since I don't think enough participants come back after they post their questions to say what happened and where the advice given went. So a timely GAO protest was filed on the basis of the specific facts that I wrote about here, no more and no less. Two attorneys filed for appearance for the Agency. Then approximately halfway through the timeframe allotted for the Agency to prepare an agency report, the Agency filed for the protest to be dismissed on the basis of corrective action by the Agency--they agreed with the protest's claim that based on the specific facts that I had written about above on 3/26, the Q&A's instruction to include letters of commitment without a corresponding change to the actual solicitation was precatory and not mandatory--and the agency decided that the offer should be re-evaluated without the requirement for letters of commitment. I know there appears to be some tension between some of the contributors here when answering questions, but personally I think this is only natural when you get a group of excellent professionals in their field together. The same would be true if you put a a tricky diagnosis or prognosis question to a (virtual) room of medical specialists. The commenters above all fall into this category in the field of being "FAR doctors" so I applaud all your discussion and feedback you gave in this particular case and encourage you to keep contributing your diagnoses and prognoses on other discussions, and know your comments do go somewhere useful. đź‘Ź
  2. Thanks for asking. In the case of this particular over-$10M civilian agency delivery order under a GWAC, the solicitation instructions were in a standalone document, "Instructions to Offerors and Evaluation Criteria", separate from the Terms and Conditions, and other RFP material. In this instructions document, it was stated: SUBMISSION INSTRUCTIONS 1. Proposal Submission Offerors shall submit proposals in accordance with the following two phases: Phase One: No later than XXXXXXXX (Transmittal/Cover Letter including Subcontractors/Teaming and Oral Presentation slides including Key Personnel resumes) – Electronically to the Contract Specialist, XXXXXXXX and Contracting Officer, XXXXXXXX. Then under "Phase One Instructions" it stated: Factor 1: Oral Presentation limit of 25 Oral Presentation slides, not including resumes; however, each Key Personnel resume is limited to 2 pages Volume I: Phase One Technical Submission Factor 1: Oral Presentation The offeror shall provide an oral presentation, virtually via Zoom, of their high-level technical approach for implementing the statement of work XXXXXXXX, with key personnel presenting. The Oral Presentation slides shall be submitted to the Contracting Officer and Contract Specialist on the due date of Phase One. Each oral presentation will be limited to 25 oral presentation slides and 60 minutes duration (45 minutes for the offeror presentation and 15 minutes for Q&A between the offeror and Government). The Government will contact offerors soon after the receipt of Phase One to schedule the oral presentation. All recording of the offeror’s presentation shall be performed by CMS. No other recordings are permitted. Under Phase One Evaluation Factor, it stated: Factor 1: Oral Presentation: XXXXXXXX will evaluate: ... Key personnel proposed to determine if they have the skills, experience, and/or certification necessary to successfully perform the role they are proposed for. Key positions not filled with a full-time person will be evaluated as deficient and, therefore not be eligible for award. At the end of the instructions document were printed the following lines: Sincerely, //Signed by// XXXXXXXX Contracting Officer Attachments: Attachment 1 – XXXXXXXX SOW Attachment 2 – Terms and Conditions Attachment 3 – Contractor Offeror Conflict of Interest Template Attachment 4 – Questions and Responses Attachment 5 – XXXXXXXX template Attachment 6 – XXXXXXXX In these ending lines, besides the "//Signed by//" and the printed name of the CO, there was neither ink nor digital signature. The only amendment that was posted was accompanied by just the 4 words, "Final RFP for XXXXXXXX", and then had two attachments: the aforementioned "Instructions to Offerors and Evaluation Criteria" and "Attachment 4 - Questions and Responses". There was no signature, digital or ink, associated with this 4-word line, and neither of the attachments was on an SF form. The former document is as described above. The latter document contained the header line, "Attachment 4 - Questions and Responses", followed by the actual Q&A. This Q&A document was unsigned and was not on an SF form, signed or otherwise. In the Q&A, there were two references to a letter of intent as follows: Q: Can key person come from Sub-contractor? Is key person need to be current employee of the firm? Can the Key Person be with a signed letter of commitment? A: At a minimum, the XXXXXXXX Key Personnel position must come from the prime contractor. Key personnel may be proposed if there is a signed letter of intent. Q: Regarding this statement -- "Key positions not filled with a full-time person will be evaluated as deficient and, therefore not be eligible for award." Does the Key Person has to be current employee of the firm? Can the Key Person be considered future employee upon award with a signed letter of commitment? A: At a minimum, the XXXXXXXX Key Personnel position must come from the prime contractor. Key personnel may be proposed if there is a signed letter of intent. As to why letters of intent weren't automatically included, in short, it was because of the two page limitation for resumes. There is a line of thinking that says anything which was not requested in a solicitation should fit within the page limitation of something which is requested, or risk non-compliance with solicitation page limitations. For example, NASA is known for determining non-responsiveness on this basis, and protests have been denied for offerors to NASA for solicitations which included extra unrequested material the exceeded page limitations, on the basis that the material was not requested and the page limitations were clear. In the case of the solicitation referenced here, that line of thinking would suggest that a letter of intent not requested in the instructions should nonetheless fit within the two page limitation of the resume that was requested. A resume plus a letter of intent, all within 2 pages would have been tough. A further note- What might also be relevant is that during the recorded oral presentation, where all the bid key personnel were required by the solicitation to be present, the CO did ask during the 15-minute Q&A if the key personnel were available full-time, and in the presence of those key personnel, an unequivocal affirmative answer was given. The evaluation factor identified above, does not state that only the submitted written material would be evaluated, so in what was evaluated (i.e., the entire oral presentation which contained both recorded video/oral material and written material) information was in fact given concerning the commitment/intent of the key personnel, although it hadn't taken the form of a written "letter of intent."
  3. If there is no instruction that one should include something in an offer (e.g., letters of commitment for the key personnel), but later the published Q&A in response to a vendor question indicates offerors should include that, can a proposal be found unacceptable even though the instruction is missing from the actual Addendum to FAR 52.212-1? That is, is the Q&A considered part of the Addendum to FAR 52.212-1 when it is not explicitly included by reference in that Addendum? In the example of letter of commitments, this is hardly only a "clarification", but a change/addition to the instructions provided in the Addendum to FAR 52.212-1.
  4. If a contractor is not violation of the Immigration and Naturalization Act (INA), is there anything in the FAR/CFR that might bar it from using a foreign national to produce contract work products and deliverables outside of the US under an unclassified contract, if such individuals do not have access to any USG computer systems? There are no deviations or FAR Supplements (not DoD or DHS), and the PWS does not address where the work must be done, or by whom, nor does the contract involve access to any CUI or sensitive information. The PWS is for work done in the US for an agency (not public), but does not specify who may produce work-products or deliverables, nor where they might be produced, prior to submission. The PWS does require that all contract staff sign an NDA which is very generic and doesn't specify who can and can't sign it. A quick review of the contract clauses and provisions don't reveal anything that seems to bear on this, so I'm reaching out for any other theories or rules I may have overlooked. Thoughts or ideas?
  5. If the provision at FAR 52.212-1 is included in a FAR 13 Simplified Acquisition, what is the order of precedence? That is, does the text of this provision have precedence over FAR 13 rules, where there are conflicts? Or vice versa? (As an example of such, 52.212-1 specifies content of debriefing.)
  6. Companies must report their annual revenue in SAM.gov so that a three year average may be computed. But is that only on completion of a company's fiscal year end? What about companies with fiscal year ends that do not coincide with December 31st? Are such companies also required to report their estimated receipts on January 1st to be compliant, or can they just report in SAM.gov at the end their latest/current fiscal year? Lastly, do $ size standards apply until a company's fiscal year end, or are they redetermined on calendar year start regardless of the company's fiscal year? Thank you!
  7. A single-award FSS BPA solicitation asks for both labor categories at the BPA level, discounted from offeror’s GSA FSS, and pricing for certain initial and sample BPA orders based on further discounts from the BPA level labor category rates. There are both fixed price and labor hour BPA orders. While some labor categories for the BPA level are suggested, offerors are free to add their own labor categories at the BPA level for their offers. So different offerors may have different BPA labor categories. The evaluation critera and award basis states that source selection will be conducted using best value trade-off of both price and non-price factors, and that price is less important than all technical factors combined excluding past performance. The methodology for price evaluation states that there will be an evaluation of the offeror’s ability to meet the requirements at a fair and reasonable price, and that as part of this evaluation the “overall BPA pricing” will be evaluated, including the initial and sample BPA orders. Further, the overall evaluated price of the BPA includes the combined total of the total evaluated price for each of the initial and sample BPA orders. Nothing else is explicitly stated regarding the price evaluation. If, as above, it is not explicitly stated in such a FSS BPA solicitation, can cost realism analysis still be performed as a form of cost analysis to eliminate risky offers? One can imagine a hypothetical offeror that prices BPA labor categories with a high price and provides very steep discounts for the initial and sample BPA orders in the solicitation. Then after the BPA contract is awarded to them, the contractor could offer lesser discounts for future BPA orders, making future BPA orders expensive. The fact that, as stated, overall BPA pricing will be evaluated, should discourage this. However, from a practical source selection perspective, it is unclear how this can be done. If, as above, the evaluation methodology only specifically calls out the construction of an “overall evaluated price” made up of the total evaluated prices of all the initial and sample BPA orders, then this does not address evaluation of BPA labor category pricing in a way that would single out the high BPA labor category pricing in such a particular hypothetical offer. Since offerors can add their own labor categories at the BPA level, a sum of all labor category rates wouldn't be comparable. Perhaps an average labor category rate at the BPA level could be comparable, but even that would not be useful as such a hypothetical offeror could add many of their own labor categories and many of these could be low, which would result in a low average rate, even though the most important and useful labor categories would have a high price. And this is perhaps irrelevant anyways since the evaluation methodology doesn’t discuss adding rates or averaging them at the BPA level, or how an evaluation of the "overall BPA pricing" would be weighed in consideration relative to the "overall evaluated price" that is composed of the BPA orders. In the case above, what other ways might there be to evaluate the “overall BPA pricing” and how could that be fit in to the overall price evaluation which includes the evaluation of an "overall evaluated price"?
  8. Does FAR 19.1307 (HUBZone price evaluation preference) apply to task orders / delivery orders competed under a GSA Federal Supply Schedule? It appears not, since the list of contract clauses for an FSS contract omit FAR clause 52.219-4. So if this is the case, my follow-on question is that while it is clear why the price preference doesn't apply to the award of the FSS contract itself, what is the reason that FSSes are exempt from having to apply 19.1307 for task/delivery order competed under them?
  9. For a multiple-award ID/IQ acquisition where a portion of the awards will be set aside for SBs under different socioeconomic categories, but where the awards to offerors that are other than small businesses is strictly numerically limited, must the HUBZone price preference apply, and is it necessary to include FAR 52.219-4 in the solicitation? The competition is already structured so that a certain number of awards will be made to HUBZone or WOSB offerors. All offers will be made against a single solicitation, but after a certain number of awards are made without consideration of socioeconomic status, a number of additional awards may be made in different socioeconomic categories to ensure that small businesses of different socioeconomic categories are well represented in the final pool of awardees. Under these conditions, does the FAR require that the HUBZone price preference still apply to the HUBZone offerors when they are being evaluated against large businesses in the overall acquisition?
  10. Thanks for the replies. Yes, lowest offers. I did find GAO addressed my second question a few times already, and so I should have checked first before asking. Here is one of them: http://www.gao.gov/products/A82202#mt=e-report Even mandatory clauses which were not included in a solicitation are not included by force of law if omitted from the solicitation.
  11. I know that the HUBZone price evaluation preference does not apply to cases where all fair and reasonable offers are accepted. However, would it apply to the case of a multi-award full-and-open contract where the evaluation is by LPTA, but where the solicitation sets in advance the number of awards? Also, does the full force of FAR 19.1307 still apply in cases where clause 52.218-4 was not included in the solicitation?
  12. Hi all, I've followed discussions of WIFCON for the past year but have never posted anything until now. I have a question concerning price evaluations on a Part 15 solicitation. The solicitation includes an IDIQ (labor rate schedule) and a first task order, both of which require pricing. The evaluation criteria sets out that the government will "evaluate the price through an evaluation of the proposed labor rate schedules, a price analysis and realism analysis of the first task order and a determination on cost reasonableness". So let me pose a "for instance". Let's say two offerors end up in source selection with essentially similar technical evaluations and similar IDIQ price schedules when all option years are considered. But one has a higher task order price then the other, although the task order price for each of these offers are determined to be both reasonable and realistic. In the absence of any further discussion of price evaluation in the solicitation than the above line, could 15.404-1( b ) price analysis of the first task order be used to give greater preference to the bid with the lower task order price? Thanks in advance!
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