Jamaal Valentine

Contracting officers may choose not to include price or cost as an evaluation factor for award when a solicitation, in relevant part, states that the Government intends to make an award to each and all qualifying offerors (see 2.101). “Qualifying offeror, as used in 13.106-1and 15.304, means an offeror that is determined to be a responsible source, submits a technically acceptable proposal that conforms to the requirements of the solicitation, and the contracting officer has no reason to believe would be likely to offer other than fair and reasonable pricing (10 U.S.C. 2305(a)(3)(D)).” (Emphasis Added) A commenter response in the Final Rule states “The definition of “qualifying offeror” is taken directly from the statute and included in the final rule at FAR 2.101, 13.106-1(a)(2)(iv)(A)(3), and 15.304(c)(1)(ii)(A)(3).” However, the cited statute doesn’t use the technically acceptable language. ”"qualifying offeror" means an offeror that— (i) is determined to be a responsible source; (ii) submits a proposal that conforms to the requirements of the solicitation; and (iii) the contracting officer has no reason to believe would likely offer other than fair and reasonable pricing.” Technically acceptable is not defined as far as I know. Do you think FAR 2.101’s definition of qualifying offeror means submits a proposal that meets all technical requirements and conforms to the requirements of the solicitation (technical factors/subfactors and legal sense of acceptable); or submits a proposal that conforms to the requirements of the solicitation (legal sense of acceptable)?

Read FAR Subpart 3.6 and direct any questions to your agency ethics official or legal.

Merry Christmas, everyone! Bob, thank you for the gift that is Wifcon 🎁 🎄

I don’t like FAR 13.105(c) as a supporting reference since it redirects you to FAR 13.106-1(b), Soliciting Single Sources. “(c) See 5.102(a)(6) for the requirement to post a brand name justification or documentation required by 13.106-1(b) or 13.501.” FAR 13.104 and FAR 11.105(a)(2)(ii) are ‘far’ more compelling to me.

@ji20874 I think now is as good a time as any to discuss it.

From the Government. The FAR System (including the FAR) is established for executive agencies (FAR 1.101). My poll probably sounds odd to many so let’s call it even.

Does FAR expressly require any brand-name documentation when soliciting brand-name requirements—below the simplified acquisition threshold—from more than one source? Let’s discuss and make arguments in the comments.

Probably right on the BOA aspect. I really wish the FAR Councils would rewrite FAR 5.202(a)(6) or (11). However, I think a careful read of FAR 16.504(c)(1)(ii)(B)* could lead to a single-award path, but you know your agency better than I do. *assuming you don’t reach FAR 16.504(c)(1)(ii)(D)(1)

Two or more single-award IDIQs or BOAs?

The concepts and principles have application in any evaluation that includes price and other factors. Me commentary is based on my Oct 2020 attendance.

@JeanJ Without knowing the particulars (e.g., grant or contract) I would suggest you check here for Service Contract Reporting applicability: https://www.sam.gov/SAM/transcript/SCR_QSG.pdf or here (e.g., SCR criteria in SCR Guidebook): https://dodprocurementtoolbox.com/site-pages/service-contract-reporting-scr

ECMRA was de-commissioned as of COB June 19th, 2020. I recommend contacting the contracting officer for instructions. I presume they will be modifying the contract.

Nobody will be able to answer this question with certainty unless they’ve read the contract or you provide some more details. We can make some assertions based on DARPA being a Defense Agency, but we don’t even know if it’s a FAR-based contract. If it is a DoD FAR-based contract it may include ECMRA (Enterprise Contractor Manpower Reporting Application) or SCR (service contract reporting) requirements depending on when it was awarded. For example, ECMRA applied to FFP contracts. ECMRA provided instructions on what contractors needed to report. The what should help determine the how. What manpower requirement was flowed down? How? Is your inquiry about a prime contract issued by DARPA?

Disciplinary action on the employee is a separate issue that government officials can’t seem to separate from unauthorized commitments. There isn’t enough information here for me to decide or make a recommendation on how this should be treated; I simply raised another solution that overcomes the Agency’s argument for not being able to ratify. The Agency appears to think they can’t ratify...I didn’t read that they don’t want to.

Since this is related to or arising from a contract, the Agency could potentially settle the claims involving unauthorized commitments pursuant to FAR Subpart 33.2 instead of FAR 1.602-3(b)(2) and (c). (Ref. FAR 1.602-3( b )(5))

It’s invaluable if you really want to understand source selection more deeply and broadly. It’s a gateway to streamlining and innovation that many offices want. I’m not aware of anything similar. The course content is great, but the instruction and dialogue may be even better. (Vern was the instructor when I took it.) It’s usefulness may be limited or delayed by organizational norms and traditions that prevent or discourage students from applying what they learn. In my experience, contracting offices can’t be changed from the bottom up. This course should be required for contracting officers, reviewers, policy makers, clearance authorities, etc.

What law? Do you think inclusion of service clauses in leases is addressed in FAR or prohibited by law or some other rule? I don’t read but four clauses FAR 8.1104(e) says to exclude. Many (most) leasing of vehicles is going to be a commercial acquisition so the service vs supply clause set argument is moot. Nonetheless, in exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority. Well played!

Depends on the purpose of categorization, right? For example, if the purpose is for application of the non-manufacturer rule, 13 CFR § 121.406(b)(4) states that “[t]he rental of an item(s) is a service and should be treated as such in the application of the nonmanufacturer rule and the limitation on subcontracting.” Then the PSC Manual, Defense Acquisition Guidebook, and SBA regulations state equipment rentals/leasing are services. FAR Part 37 gives a definition for service contract for the purposes of that part (e.g., clauses, policies and procedures). FAR 8.1104(e) is simply stating what clauses to use and doesn’t really categorize anything. FAR Subpart 22.10 categorizes services for applicability of Service Contract Labor Standards.

@bob7947 Great catch...guess I better start calling you the Wizard of Wifcon and not just an oracle.

Seems to be some variation in FAR 2.101: Agency head or “head of the agency” means the Secretary, Attorney General, Administrator, Governor, Chairperson, or other chief official of an executive agency, unless otherwise indicated, including any deputy or assistant chief official of an executive agency. Head of the agency (see “agency head”). Executive agency means an executive department, a military department, or any independent establishment within the meaning of 5 U.S.C.101, 102, and 104(1), respectively, and any wholly owned Government corporation within the meaning of 31 U.S.C.9101. (Emphasis added)

I think risk-aversion is derived from basic human motivations for safety and security. In that sense, it is rational behavior. Under rules-based contracting, a term I’ve coined, the minimum is the maximum. Know what the rules (statutes, case law, regulations, policy, etc.) require; and satisfy those requirements. This concept relies on professionalism and competence and provides maximum flexibility and discretion to get things done within the rules (including grey areas and loopholes). My belief is that competent professionals can and should use the minimum force appropriate to the situation at hand (a use of force continuum). If a contracting officer is not required to furnish information they should decide based on what is necessary and permitted—to meet their overall objective(s)—under specific circumstances such as perceived risks and rewards. This may result in furnishing or withholding more than the bare minimum and that’s fine. Some may dislike this theory, but those people probably dislike LPTA simply because they misunderstand it and it’s proper application. FAR says “[t]he authority to make decisions and the accountability for the decisions made will be delegated to the lowest level within the System, consistent with law.” Let’s do that!

Since debriefings are hotly contested they are often less useful than they could (should?) be. Notifications and debriefings are uneven from office to office and contracting officer to contracting officer. For example, some offices/contracting officers won’t provide the successful offeror’s past performance rating and some will. The variation comes from inconsistent beliefs on whether or not the rules permit release of the rating.

You might want to start with the DoD FMR if you are DoD. (See pages 8-13 and 8-14 for definitions) https://comptroller.defense.gov/Portals/45/documents/fmr/current/03/03_08.pdf Principles of Federal Appropriations Law, also known as the Red Book, is a good place to look for civilian agency employees. (Chapter 5?) https://www.gao.gov/mobile/legal/appropriations-law-decisions/red-book

Both. Read it as either or. In other words, it’s required if either condition or both conditions are met.

FAR 15.503(b)(1) states that notifications to unsuccessful offerors shall include, in general terms, the reason(s) the offeror’s proposal was not accepted... FAR 15.506(d)(2) postaward debriefings include the overall evaluated cost or price (including unit prices) and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror... What are your thoughts on providing the past performance rating (e.g., Past Performance Confidence Assessment Rating) of the successful offeror on either document?