Matthew Fleharty

27 minutes ago, C Culham said:

What about FAR 13.003 (c) and (g)?

My reading of those paragraphs indicate that the limitation is applicable when one is acquiring supplies and services or making purchases.  In Vern's hypo, one is merely trying to obtain pricing information (a quote) so I do not think those paragraphs establish a restriction.

2 hours ago, Vern Edwards said:

Not necessarily. An RFQ might produce information showing that the value of a requirement will exceed the SAT or that the requirement cannot be fulfilled by a commercial item, in which case an RFP might follow. An RFI might produce information showing that the value of the requirement will be less than the SAT or that the requirement can be fulfilled by a commercial item that can be acquired using SAP, in which case a purchase order might follow.

Agreed, I could have been more clear and specific rather than using the term "may" to hedge - I'll revise the statements as follows (exempting discussion of FAR 8.4 for the moment since those acquisitions are solicited via a separate business system than FedBizOpps):

• for RFQs, the Government is presently utilizing/contemplating FAR Part 13 procedures and an offer/order from the Government will most likely follow.
• for RFIs, the Government is presently utilizing/contemplating FAR Part 15 procedures and a solicitation for offers will most likely follow.

2 hours ago, Vern Edwards said:

Convention is to use the term RFQ in association with Subpart 8.4 and Part 13 and to use the term RFI in association with Part 15. But are we bound by mere convention? Both are requests for information, and RFQs are specifically requests for information (quotes) about pricing.

If I am contemplating an acquisition pursuant to Part 15 and want some information about specs, pricing, and terms prior to issuing an RFP, why can't I send out an RFQ? Do you think industry cares which term we use as long as we are clear about the information we want and why we want it? Would we be violating any regulation that has the force and effect of law?

I never said one couldn't, I just said he/she wouldn't be consistent with the usage of the terms in the FAR.  It may be easy to dismiss the usage of one or the other as trivial, but an argument could be made that imprecise usage does matter in this case (I think it matters generally, but I won't go into an aside on habits here...).  Consider searching for "RFQ" vs "RFI" in FedBizOpps...those two search terms should turn up different results:

• RFQs for acquisitions in the solicitation/acquiring phase
• RFIs for those in the pre-solicitation phase

If one used the two interchangeably, those differences would not be evident and it would be more difficult to monitor and search for appropriate contracting opportunities; however, if an individual wants to simply buck convention because they prefer the term "RFQ" to "RFI," I do not know of a regulation that has the force and effect of law that would prohibit him or her from doing so.  Personally, though, I think there is enough confusion in the acquisition system without trying to inject more by using a "Q" for "Quote" for FAR Part 15 acquisitions when the "I" for "Information" also allows one to request the exact same information about pricing.

On 2/25/2017 at 6:24 AM, Vern Edwards said:

Does an RFQ have to be issued "under" a FAR part? Can't a CO just ask for quotes, maybe for budgeting purposes?

If one is trying to be consistent with the usage of terms in the FAR an RFI should be used when FAR Part 15 procedures are contemplated/required.  See FAR 15.201(e) which states:

Quote

RFIs may be used when the Government does not presently intend to award a contract, but wants to obtain price, delivery, other market information, or capabilities for planning purposes. Responses to these notices are not offers and cannot be accepted by the Government to form a binding contract. There is no required format for RFIs.

I consider the difference to be this:

• for RFQs, an offer/order from the Government may follow.
• for RFIs, a solicitation for offers may follow.

To piggy back on Vern's point, recommend you read FAR 13.004 "Legal Effect of Quotations" which states:

Quote

(a) A quotation is not an offer and, consequently, cannot be accepted by the Government to form a binding contract. Therefore, issuance by the Government of an order in response to a supplier’s quotation does not establish a contract. The order is an offer by the Government to the supplier to buy certain supplies or services upon specified terms and conditions. A contract is established when the supplier accepts the offer.

(b) When appropriate, the contracting officer may ask the supplier to indicate acceptance of an order by notification to the Government, preferably in writing, as defined at 2.101. In other circumstances, the supplier may indicate acceptance by furnishing the supplies or services ordered or by proceeding with the work to the point where substantial performance has occurred.

(c) If the Government issues an order resulting from a quotation, the Government may (by written notice to the supplier, at any time before acceptance occurs) withdraw, amend, or cancel its offer. (See 13.302-4 for procedures on termination or cancellation of purchase orders.)

42 minutes ago, Vern Edwards said:

(I must confess that I don't know whether there are separate goals for the various special categories of small businesses. If there aren't any, let me know and I'll try something else.)

I can confirm for you that agencies do receive goals down to the socioeconomic category level.

1 hour ago, Don Mansfield said:

I think that what jdude77 wants to do would be a deviation. However, that doesn't mean that it's wrong.

Ultimately j_dude77 is going to run into one of two situations:

• His agency is going to interpret the FAR as allowing him to set the MATOC aside for multiple small business socioeconomic categories; or
• His agency is going to interpret the FAR as not allowing the multiple small business socioeconomic categories and tell him "no."

If the latter situation occurs, please don't let that be the end of your pursuit j_dude77.  If it makes good business sense for your agency to have a MATOC with those multiple small business socioeconomic categories, make the best argument you can as to why that's the best course of action, support it, and pursue the deviation.  I think everyone here could, at least, agree on that.

1 hour ago, Don Mansfield said:

While FAR 6.203 may be open to interpretation, I don't think the implementing clause would be consistent with Vern's interpretation.

If clause language is the only thing holding one back, why not just get a deviation approved to modify the clause(s) to be consistent?  FAR 1.402 states (emphasis added):

Quote

Unless precluded by law, executive order, or regulation, deviations from the FAR may be granted as specified in this subpart when necessary to meet the specific needs and requirements of each agency. The development and testing of new techniques and methods of acquisition should not be stifled simply because such action would require a FAR deviation. The fact that deviation authority is required should not, of itself, deter agencies in their development and testing of new techniques and acquisition methods.

I agree with Vern as to the general exception one would cite for setting the acquisition aside for one or multiple socioeconomic categories; however, when setting up the 8(a) and EDWOSB set-asides be sure to comply with their more unique set-aside requirements.

I'd talk to your SBA representative regarding getting multiple 8(a)s onto the IDIQ contracts.

As for EDWOSB, see 19.1505...the more unique requirement is that the NAICS code(s) for your IDIQ must be underrepresented (for more information go to: https://www.sba.gov/contracting/government-contracting-programs/women-owned-small-businesses/what-you-need-know-if-you-are-federal-contracting-officer).

12 minutes ago, Don Mansfield said:

Note that the GAO sometimes uses the term "cardinal change" to describe a change that is outside the scope of the competition. I consider that careless.

After what I've read this weekend, I agree.  The article Vern referenced, Scope of the Competition Test: Is it valid?, The Nash & Cibinic Report (March 2013), was quite helpful in gaining a better understanding of the history of the scope of the competition standard and its merits (or lack thereof).

On ‎1‎/‎26‎/‎2017 at 3:34 PM, Don Mansfield said:

Currently enjoying How Not To Be Wrong: The Power of Mathematical Thinking by Jordan Ellenberg. 

I have about 50 pages left, but I don't need to finish to second Don's recommendation of this book.  There are some math focused/intensive sections, but the perspectives offered throughout the rest of the book were fantastic.  Thanks for sharing Don!

Don,

Thanks for pointing that out - I missed that nuance/distinction, but that makes sense because the "scope of the competition" test looks outside the four corners of the contract whereas a "cardinal change" (aka a breach) is concerned with what is inside the four corners of the contract.

26 minutes ago, govcon3684 said:

But there is a distinction/there is something wrong going on when the contracting officer breaks up a contract into 2 separate contracts to keep each contract under the $150,000 SAP threshold?

Yes.

On 2/11/2017 at 0:56 PM, govcon3684 said:

Is there a consequence for going over the SAP?  Or is it just more work for the contracting officer?

There could be more work for the contracting officer (namely, re-soliciting the requirement subject to different acquisition procedures) depending on whether to not the acquisition in question was for commercial items (FAR 13.5 allows SAP up to $7M); however, it could very well be the case the the agency's budget was only $150k so they purchased as many units as they could with that amount.  Remember, a quote is not an offer...the offer is the purchase order issued by the Government to the prospective awardee.  See FAR 13.004 which states:

Quote

(a) A quotation is not an offer and, consequently, cannot be accepted by the Government to form a binding contract. Therefore, issuance by the Government of an order in response to a supplier’s quotation does not establish a contract. The order is an offer by the Government to the supplier to buy certain supplies or services upon specified terms and conditions. A contract is established when the supplier accepts the offer.

(b) When appropriate, the contracting officer may ask the supplier to indicate acceptance of an order by notification to the Government, preferably in writing, as defined at 2.101. In other circumstances, the supplier may indicate acceptance by furnishing the supplies or services ordered or by proceeding with the work to the point where substantial performance has occurred.

(c) If the Government issues an order resulting from a quotation, the Government may (by written notice to the supplier, at any time before acceptance occurs) withdraw, amend, or cancel its offer. (See 13.302-4 for procedures on termination or cancellation of purchase orders.)

Now if the agency placed an order for 68 units and then subsequently placed another order for 4 more units, they'd be in violation of FAR 13.003(c)(2)...but no facts indicating as much have been presented here.

One last piece of advice - be careful using the terms "bid" and "quote" interchangeably (add the term "proposal" to that list) as you have throughout your posts.  As you can see from the reference provided above, a quote is different from a bid (as it is not an offer) so improper usage of terms may negatively impact the ability to receive sound advice from the nice individuals who frequent this forum.

53 minutes ago, Don Mansfield said:

The fact that a contract modification cannot be made under the Changes clause does not mean that it is outside the scope of the contract. The passage that you quoted just means that you can't change terms and conditions using a change order. 

Touche Don - I drop that portion of the argument.  Do you find the other half sound?

Got it, glad to see we're primarily on the same page though I'd like to hear your thoughts more on the following issue:

5 hours ago, Vern Edwards said:

BTW, I don't agree that changing a fixed-price CLIN to a cost-reimbursement CLIN is necessarily a cardinal (out of scope) change, especially under the circumstances described. It would be a stupid change under the circumstances, but not cardinal. Moreover, even if the contractor thought it was cardinal, it would be very unlikely to prompt the contractor to complain.

Scope considerations generally include (1) the nature of the work, (2) period of performance, (3) contract cost/price, & (4) the scope of the competition.  For purposes of my position that conversion from FP to CR is a cardinal change, I'll only discuss "(4) the scope of the competition" for which the consideration is "whether the modification is of a nature which potential offerors would reasonably have anticipated under the changes clause" (Neil R. Gross & Co., 69 Comp. Gen. 247 (B-237434), 90-1 CPD ¶ 212).

One test for that question is whether or not the change would have impacted the pool of potential offerors. In the case of moving from an FP to a CR environment, I can think of no clearer way to do that as CR environments by their nature change/limit the pool of potential offerors due to limitations such as the requirement for an adequate accounting system (FAR 16.301-3(a)(3)).

Additionally, "a literal reading of the Changes clause would not permit the government to change the terms and conditions of the contract" Administration of Government Contracts 4 ed. (pg. 391) and moving from a solely FP environment to add a CR one would require the addition of numerous clauses (terms and conditions) that were not present or contemplated by the original solicitation or at the time of award.

As such, I consider changing from FP to CR a cardinal change based on that standard, but, as always, I'm all ears to hear yours and others' thoughts.

Lastly, while you're probably right that such a change would be very unlikely to prompt the contractor to complain, a cardinal change due the exceeding the scope of the competition opens the door for competitors to protest.  This particular situation seems too small to warrant such a complaint, but one never knows...as you said yourself, "we live in strange times in the contracting profession."

34 minutes ago, Vern Edwards said:

And no, you don't need a sole source justification. Just put a memo in the file that explains the situation. Stuff happens.

And no, it's not a cardinal change.

Are those two sentences in response to your alternative solution and not the proposed solution by the OP to change the contract type from fixed price (FP) to cost reimbursement (CR)?

I'm not especially clear on your situation other than the fact that you intend to take work that is currently a fixed price CLIN and convert it to a cost-reimbursable CLIN...not only is that is a cardinal change (which requires a J&A and a bilateral modification), but you also have to comply with the requirements/limitations provided by FAR 16.301 regarding the usage of cost-reimbursement contracts.

ICE-CO,

Recommend you take some time to think about Vern's point that without options, your office would be bound to order the supplies from only that one contractor for that, presumably, five year period of time.  When used properly, options can be a powerful incentive when it comes to contractor performance and they can also protect the Government's interests if the contractor performs poorly.

6 minutes ago, bkl14 said:

Thank you. If you don't mind me asking, how do you interpret the statement, "that have not been eliminated from competition."

That language does not establish a requirement to draw a competitive range, it merely addresses both situations (when it does happen and when it doesn't happen).  Consider the two scenarios:

If you haven't drawn a competitive range, all offerors receive the amendment as no one has been eliminated from the competition. 

If you have drawn a competitive range, only those remaining offerors will receive the amendment because some offerors have been eliminated from the competition.

8 minutes ago, bkl14 said:

Since this would be an amendment after the established time and date for receipt of proposals, I would have to determine the competitive range and open discussions.

According to what?

You must comply with the procedures in the solicitation...barring any other information or language in your solicitation that we're unaware of, if the solicitation merely states "up to 5 awards," you may not award 6 or more.  While I didn't find a GAO decision on the issue with your particular circumstances, reference 41 USC § 3701(a) which states "An executive agency shall evaluate sealed bids and competitive proposals, and award a contract, based solely on the factors specified in the solicitation."

If it's truly in the Government's best interest to award more than 5 contracts, consider amending the solicitation (FAR 15.206).

In case anyone missed it on the homepage:

http://www.wifcon.com/analy/highest.pdf

Are you referring to "prizes" when you use the term "award"?  If so, you may want to check out the following:

• https://www.challenge.gov/list/
• 15 U.S.C. Code § 3719: https://www.law.cornell.edu/uscode/text/15/3719 - with respect to your appropriated funds question see paragraph (m)

53 minutes ago, Jamaal Valentine said:

Negotiation Genuis by Deepak Malhotra and Max Bazerman (TBD - if anyone has read this, what is your take? I just checked it out from the library.)

Funny you mention this book - I'm reading it currently and despite the corniness of the title and usage of the term "negotiation genius," what I've read so far (144 of 303 pages) is fairly practical and diverse when it comes to the issues they cover.  Though with that diversity comes a lack of depth on most topics...still, there is enough (a brief example and some analysis) to provide an understanding of the points the authors make.  My favorite negotiations book is still "Getting to Yes" by William Ury and Roger Fisher.

Also recommend you read FAR Subpart 11.6 "Priorities and Allocations" and 15 CFR 700.13 "Acceptance and rejection of rated orders"  (https://www.law.cornell.edu/cfr/text/15/700.13)