Jamaal Valentine

'Source selection [information]' is mentioned once in FAR Part 14, but 'source selection' is used many times in FAR Part 15. FAR Part 15's usage includes descriptions of source selection processes and techniques such as the best value continuum. (source selection information relates to bids and proposals ... quotes are conspicuously missing because 'source selection' generally refers to the process of evaluating bids or proposals outside of Simplified Acquisition Procedures and Fair Opportunity) The title of this post is "What is 'Technical Evaluation'? Must a CO have one?". I think it's worth starting with a definition of 'technical' because technical isn't used consistently; for example, technical includes factors other than price/cost...in practice, sometimes it includes past performance and sometimes it doesn't. DoD Source Selection Procedures include the following note: "The term “technical,” as used below and throughout the document, refers to non-cost factors other than past performance." Similarly, there isn't a universal definition or usage of 'technical evaluation'. A technical evaluation can include evaluating conformity with material solicitation requirements; or comparing quotes or offers to stated solicitation evaluation factors. Technical evaluation is commonly used to refer to evaluations of solicitation factors other than price or cost; sometimes past performance is included and sometimes it isn't. In a legal sense, an argument can be made that technical evaluations are always required to ensure competitive quotes or offers conform to the material requirements of the solicitation. This is a requirement to be eligible for award (I believe this is tied to requirements for fairness). GAO often refers to failures to satisfy material requirements as technically unacceptable. See FAR 4.801( b ), FAR 13.106-3( b )(3)(ii) and any agency supplements. I am in agreement with ji on the other points and will not restate them.

Q: Why would we need to cite an authority? A1: So that the Contractor, Ombudsman, GAO, Board, or Court can identify the scope and applicability of any entitlements, and remedies (e.g., terms and conditions related to or arising from the modification authority). A2: FAR includes requirements, other than the form itself, that the contracting officer 'shall cite' [insert clause] as the authority (e.g., FAR 17.207(g)) I wonder what a reviewer would think if 'contracting officer [discretion, authority, or decision]' was cited.

Following FAR 1.108(a) convention, tailor means "make or adapt for a particular purpose." This case involved tailoring of 52.212-4 invoicing procedures: Crescent Helicopters File, B-284706; B-284707; B-284734; B-284735, May 30, 2000. The agency found a way around the tailoring restriction altogether.

The government-wide purchase card (GPC) is routinely used to pay for services and supplies before they are received, inspected, or accepted. In this case, the first payments are for the pitch and associated data. Watch the video here. (GPC discussion starts at 10:00 and answers the question around 16:00)

Wow! What a powerful message; thanks for sharing.

FAR 16.505(b)(1)(ii) states that the competition requirements in Part 6 and the policies in Subpart 15.3 do not apply to the ordering process. Multiple-award task orders require 'fair opportunity' (i.e., fair notice of the intent to make a purchase) or compliance with statutory exceptions to the fair opportunity process including a written justification for an exception to fair opportunity (JEFO). You assert that the modifications are within scope so FAR Part 43, Contract Modifications may not apply. (FAR 43.000(a)) Bottom-line: If you are talking about 'within scope' changes you shouldn't need a J&A, JEFO, Single Source Justification or any other justification & approval to make 'within scope' changes. *I am not sure that a JEFO is automatically the required document for cardinal changes to task orders ... for example, what about a task order modification that is out-of-scope regarding the IDIQ and the competition?

Guidance? Yes, in the form of commentary and case law regarding 'scope': (1) scope of the competition; and (2) scope of the contract. Since you have J&As, the scope issues related to modification are satisfied. The J&As approve new work; the dollar limitations that apply to new procurements may apply...the modification of an existing contract--citing a J&A--is arguably for administrative convenience.

@GtarJohn ji's process is more direct than mine. I would start there and validate any assumptions regarding 'less work'--within the context of 'added value, excessive pass-through charges'--as necessary.

I presume the government elected not to rely on inspection by the contractor and include higher-level contract quality requirements under FAR 46.202(b) and 46.202-4. What inspection clauses is including? Is it the standard 52.246-5, Inspection of Services -- Cost Reimbursement? Perhaps you can clarify what the 'less work for the prime' consistent of (e.g., performing - 52.215-22(c)(2), inspecting - inspection clause).

Ask the Source Selection Authority (and/or clearance approval authority) if they want the team to prepare one or both. No. (see cases cited above in previous post)

@ji20874 is generally correct. This is supported by case law. "When rules and regulations are promulgated for the benefit of the government and no one else, the other party to a contract cannot complain if such regulations are not complied with.” (C & L Constr. Co. v. United States (C & L), 6 Cl. Ct. 791, 804 (1984)) While there is no requirement for a source selection plan or pre-established definitions for use in scoring proposals, such evaluation tools can prove useful to an agency in achieving consistency in its evaluation. (see Nexant, Inc., B-407708, B-407708.2, Jan. 30, 2013, 2013) However, where a source selection plan exists, there is an expanding role of source selection plans in judicial review of procurements. (see Progressive Industries, Inc. v. U. S. and Irish Oxygen, Co., No. 14-1225C, December 6, 2016) "[the court] looks to the SSP to evaluate the rationality of the agency’s departure from its procurement plan. The court may consider whether the deviations from the SSP are reasoned departures. USfalcon, Inc., 92 Fed. Cl. at 454 (“Because the SSA relies on the evaluators working for him to follow source selection plan mandates, departures from the plan could undermine the rationality of the ultimate source selection decision.”)"

@rsenn Sounds like your team would benefit from some standard work, expectation management, and adequate controls. I've been on industry teams that use boilerplate agreements and limit changes, without higher-level approvals, to key areas. It may be inefficient, but it works to a degree, esp. when combined with the fundamentals Matthew mentioned. *How do you know the BD folks resist negotiating? Have you witnessed their efforts or are they being judged by their results?

A defective extension is nothing more than an improper sole source contract (see Vern's sixth post here). GAO will consider protests alleging that an agency's determination to exercise an option in an existing contract, rather than conduct a new procurement, is unreasonable or violates law or regulation. (Test Sys. Assocs., Inc., B‑244007.6, Mar. 29, 1993, 93-1 CPD para. 274 at 4-5.) The Agency Head, Senior Procurement Executive and their delegates know of the shutdown and can provide agency guidance, class deviations, and pretty much any other approval required in this scenario (for expiring contracts). However, in the absence of guidance, contracting officers who are left to make their own way should simply 1) communicate their defective option plan and associated risks with their leadership; 2) execute accordingly. Nonetheless, always try to leverage the tools to do things right (waivers, deviations, and approvals in advance)...but remember, the doctrine of implied ratification is still at work everyday...make a decision, document the reasoning, get supervisor buy-in, and execute accordingly. (I know there is a lack of awareness regarding the number of defective 52.217-8 & -9 options)

You may be able to get specifics from 703-571-2996 or by sending an email to Sec809@dau.mil. "Congress seemed to buy in this time – nearly all of the statutory recommendations made by the Panel’s Interim Report were adopted into the FY 2018 NDAA." https://www.deltek.com/en/learn/blogs/government-contracting/2018/08/section-809-panel-results "The National Defense Authorization Act (NDAA) for fiscal year (FY) 2016 commissioned the Section 809 Panel to advise Congress on streamlining and codifying U.S. Department of Defense (DoD) acquisition regulations. The Panel released the first volume of its three-volume report on January 31, 2018. (The Panel previously released an "Interim Report" in May 2017, setting forth three statutory recommendations that were all enacted into law in the FY 2018 NDAA.)" https://m.venable.com/small-businesses-stand-to-benefit-from-section-809-panel-recommendations-02-26-2018/

Sorry. That wasn't my intention. I simply asked a clarifying question - that you artfully dodged. (the OP asked you a specific question too: Can a third party challenge the belated option exercise?) Nonetheless, the OP was looking for something very specific...something I cannot provide: "any legal precedent or GAO decisions that will allow us to revive the contract" Since the OP was looking for something very specific, why not focus on that first? Then add any additional commentary. As-is, your comment seems to suggest skirting the rules. Since this is a beginners forum, I think it would be fair to explain the options rules and then potential courses of action (e.g., FAR deviation or sole source approval - should be easy given the circumstances; or award what amounts to a sole source contract via so-called exercising the option).

Do you mean that it's not proper, because an option must be exercised in strict accordance, but who cares if it's not challenged or audited?

"...for all commercial item review requests submitted to DCMA."

In a contract, one consideration (thing of value given) is exchanged for another consideration. Not doing an act (forbearance) can be consideration. Maybe you can find something in a critical to X factor--Ct(x)--in the arena of time, quality, or cost.

Pre-award: government's announcement (provisions, some clauses and instructions including references) apply Post-award: government's award (terms and conditions including references) apply We'd need to decide what the government's announcement requires (e.g., degree of competition, if any, for subcontracts). The post-award requirements may not impact the original award, but could be relevant to awards that anticipate or include subsequent post-award subcontracts in performance of the grant or agreement. I would definitely look to see how they define things like 'subcontract', 'subcontractor', and 'publicize' within context.

@Joe2713 Keep in mind, generally, when issuing RFIs/Sources Sought you are not conducting a competition (selecting contractors to provide supplies or perform services). As such, using 'acquisition' policies and procedures related to 'solicitations' may not be required or appropriate.

And that is what I was hoping you'd see. Those rules apply to Federal agencies that make Federal awards to non-Federal entities; and non-Federal entities through their post award Grants & Agreements. Also, non-Federal entity means "a state, local government, Indian tribe, institution of higher education (IHE), or nonprofit organization that carries out a Federal award as a recipient or subrecipient."

Michael: Since you still haven't identified the specific "uniform guidance" and only asked two general questions, I will leave you with the following: Company supplier portals (websites).; and FBO interested vendors list. Yes.

Michael: Are you saying or asking if 200.320(d)(1) applies to prime contractors (companies), pre-award?

You may have luck finding someone willing to read through several sections to locate the specific requirement. You'll probably have better luck, getting free help, by citing a specific paragraph. (even more luck providing a link)