REA'n Maker

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True; but our program office wants to know the invoice breakdown for labor, indirects, ODCs...etc. 

Have you considered the possibility that your program office is a bunch of idiots? Overheads, etc., are not in the program office's purview regardless of the contract type scenario.

Is the IDIQ single or multi-award? If it's under Part 36 that has implications as well.

40 minutes ago, Vern Edwards said:

They are not "immortal" and it's stupid to say so.

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The Chicken Tax is a 25% trade tariff (tax) originally imposed on brandy, dextrin, potato starch, and light trucks imported into the United States from other countries. Intended to restrict the importation of those goods, the Chicken Tax was imposed by President Lyndon Johnson in 1963 as a response to a similar tariff placed by West Germany and France on chicken meat imported from the United States. While the Chicken Tax tariff on brandy, dextrin, and potato starch was lifted years ago, the tariff on imported light trucks and cargo vans remains in place in an effort to protect U.S. automakers from foreign competition.

The Chicken Tax: Origins and Impact (thoughtco.com)

You're being disingenuous. Nothing is immortal, so you are certainly correct in the most pedantic way possible, however I'm fairly certain that no one took that statement to mean that any regulation enacted today will still be around when the sun goes supernova. According to you my professors at the GWU Graduate School of Business were also obviously stupid, because the tendency of regulations to persist once enacted was an axiom throughout the entire Business and Government Relations curriculum.

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Is this thread related to contracting issues or matters? 

Regulations are enacted through FAR clauses, so I'd say it's 100% related to contracting. The SNAFU regarding the COVID clause is a perfect example.

Yeah; good luck with that.  I basically had to assume the role of TET lead because the entire technical team was an arrogant, ignorant, incompetent bunch of stewed cabbages. My justification was that it was Part 16 therefore the technical team were 'advisors'.  I found out after award that the DHS PIL was holding meetings with the TET on an active competitive procurement without my knowledge. The protest decision is due in 2 weeks. 

For those of you in DoD, on the civilian side the program technical/engineering expertise is atrocious. I have Theatre majors acting as CORs on billion-dollar A-E contracts and no one bats an eye.

On 7/27/2024 at 11:57 AM, C Culham said:

Upon acceptance of the offering SBA approves (or not) of the firms proposed by the CO and can provide additional named firms in sufficient number that the agency has at least 3 8(a) A-E firms to discuss and base its selection of the highly qualified firms.   The full list of 8(a) firms that SBA has determined to be eligible for consideration for the sole source need is provided to the agency.

Selecting "at least 3 8(a) A-E firms to discuss and base its selection of the highly qualified firms" sounds exactly like Part 36.6 to me.  Where does "sole source" come into it?  Isn't a J&A required somewhere in there?   (If your argument turns on the vagaries of the 8(a) program, that is a rabbit hole I shall not follow you down.  8(a) awards are administration of a socio-economic program, not "acquisition".  I'm focused on the sole-source/36.6 aspect and will gladly defer to your 8(a) expertise).  

On 7/27/2024 at 11:57 AM, C Culham said:

In the CO’s offering, the CO can identify any 8(a) firm they believe have the qualifications to perform the services.

The FAR states that "Agencies shall evaluate each potential contractor..." using specific selection criteria detailed under 36.602-1, that "[t]o be considered for architect-engineer contracts, a firm must file with the appropriate office or board the Standard Form 330" (36.603), and that agencies shall conduct the A-E tech eval using specific people (36.602-2) following specific procedures (36.602-3). Also note that per 36.602-4, the CO is not the source selection authority and that all 3 ranked-order firms are considered "selected" in the SSA decision.  Saying the CO can restrict the pool of qualified vendors based on [insert unknown criteria here] does not make sense in this scenario.

I'm speaking from experience.  Our program attorney was of the (wrong...) opinion that Subpart 36.6 prohibits sole source, so rather than fight that battle we followed Brooks Act procedures using qualification criteria that were previously used to justify the sole source strategy.  The process led to the same result - solicitation of a non-competitive price proposal, C or P Data cert, negotiations, F&R cost determination, and award to the single most qualified firm.  

Why is it worth so much time and effort to force-feed any procurement into the sole-source lane when you can achieve the same result using Brooks Act procedures?

Interesting thought exercise.  As long as those terms are unambiguous there seems to be nothing that says you can't.  I would be more concerned about obtaining the necessary HCA-level pre-approvals for a PoP longer than 5 years (if it's base + 4).

Maybe they just like saying "cyber".   It's not as much fun to say as "Francisco", but it's close. 😐

23 hours ago, C Culham said:

NO!  Why?  You are confusing statutory allowance and authority with regulatory bureacracy that you alone are creating.  There is no regulation to support what you have suggested. 

I was saying both business processes lead to the same result, never suggested sole-source wasn't allowable (I asked "why do it" if it's not necessary), and deliberately didn't cite regulations and statutes because that wasn't my point.  I'm also not following the "regulatory bureaucracy I am creating" comment - there's no bureaucracy created by following 36.6 without exception.  

If your point is regarding the SBA aspect, that's a wash either way, correct?  It would be cleaner if we were not involving SBA, but that's the same for everything else in Federal contracting so why should this be any different...?

On 7/2/2024 at 3:32 PM, joel hoffman said:

This conflicts with the A-E selection procedures prescribed in 36.6 if the Agency skips the qualifications based competition selection procedures in 36.6 **edit- add: (to identify an 8(a) candidate for an ID/IQ to the SBA.) 

Yet another reason to just follow 36.6.  Put out your public notice regarding submission of SF-330's restricted to 8(a), evaluate them, rank them, negotiate price with the top ranked guy, and award.  The first 3 steps are essentially what you should do (informally) to properly support a sole-source J&A anyway.  Both processes lead to the same result, but only one constitutes competitive procedures.   Neither procurement involves competitive pricing, so C or P data requirements are a wash.  Sole-source Bad; Competition Good!

22 hours ago, Where did I leave my FAR copy said:

Is it permissible to award an 8(a) sole source single award AE IDIQ? FAR 36.101 appears to prevent such a contemplated award, as requirements exist within FAR Subpart 36.6 that may be challenging to meet under such an acquisition type.

Subpart 36.6 leads you to negotiating price with the (sole) source deemed most qualified, same as the sole-source/JEFO process*.  Why waste time and effort on the competition exemption process?

(*assuming we're talking about 6.302-1 as the justification)

42 minutes ago, Vern Edwards said:

How about:

Allowing the contractor to prepare for the new contract period, including updating necessary documentation or systems, staff, etc.

and

Providing more time for the contractor to plan for seamless continuity of services under the new contract terms.

I don't think the latter is "pure conjecture", but even if it is, it's not unreasonable conjecture.

 

1. Would you say it's appropriate for the government to engage with the new contractor during the limbo between award and PoP start date?  Or is the presumption that the vendor do all the planning and preparation and hope for the best? Every transition I've been involved with requires government involvement and approval.
2. Can the new awardee engage with the existing vendor when planning their seamless continuity of services?  Seems kind of pointless otherwise.
3. 99% of government contracts are not awarded early and yet all the stuff you mention happens anyway. i.e., "early award" is clearly not required for proper transition planning.  Where is the data that suggests otherwise?

Conjecture or not, contractors taking any action related to a contract with no coverage is a risk.  And when they file their claim the Government will be on record as tacitly encouraging them to incur those costs. 

Is it reasonable to assume all these actions can be accomplished at no cost?

[* The rationale I've seen so far reads like a "parade of horribles"]

16 minutes ago, Vern Edwards said:

Pay attention, people. The OP recently posted this:

Yes, but what on that list is in the Government's best interest?  "Beating PALT" is administrivia, "closing the protest window earlier" doesn't make a protest less likely to occur (and there is pretty much 0% chance a protest would be resolved by the start of the PoP anyway), "Enabling current TO to utilize any remaining funds on the current contract and minimize doing a De-Ob" has nothing to do with an early award, and "providing the contractor more time to plan" is pure conjecture and begs the question of unauthorized pre-contract costs.

So, my question still stands.  For the record, my point was more existential in nature, as in "every CO should ask themselves this question as Step 1".

37 minutes ago, ji20874 said:

there are many, many reasons that an experienced professional could imagine where it might make sense to have a space of time before date of award and the start of the performance period.

There are many, many reasons that an experienced professional could imagine where it might not make sense to have a space of time before date of award and the start of the performance period.

This scenario would also be somewhat applicable to an option exercise ("is there such a thing as exercising an option too early?").

What if your awardee ends up on the SAM/PPIRS naughty list between award and start of the PoP?  What if their SAM registration expires before the start of the PoP? The FAR requires a CO to check SAM for exclusions immediately before award (I was dinged in an audit for checking SAM the morning of the award, which occurred later that afternoon.) The obvious intent is to make sure you're not awarding to an ineligible vendor.  "They were fine when I checked them 2 months ago" won't fly.

What is the upside of awarding early?  Of all the posts on this topic I have yet to see anyone justify why it's in the best interest of the Government to award months before the start of the PoP (e.g., for supplies, supply chain lead-time might be a justification).

The requirement for the CO to accurately assign NAICS codes isn't just limited to OASIS (FAR 19.102(b)(2)(i)).  How that could apply to anything other than a task order/call is a mystery, but this is SBA we're talking about.

PII is not an administrative issue and likely would involve multiple, high-level agency reviews and approvals.   That's a heckuva' last-minute add.

Did it have CLINs in it or any other indication of how pricing was to be submitted?

If so, then it is definitely not the worst solicitation in the history of procurement.  That honor would go to an RFP released by a former 1102 "colleague", who, after wearing down his paper-thin reputation here to the lowest level possible, got a job at another agency, only to find he couldn't pass the CO competency exam.  For the same job he held for the prior 10 years.

Absent any specific prohibitions in the RFP, past performance as a JV member is often treated much like past performance as a sub.  Just make sure the relationship hierarchy is clearly explained and that it's clear what part of the work you did.  

I really like the idea to eliminate the decision itself as grounds for protest, if for no other reason that the current system is based on the premise that two parties can be forced into a contractual relationship without regard to the will of one of the parties.  No one outside government would ever consider such a preposterous concept. The goal of a protest is to win the contract in question, not "increase confidence in the system".

“The threat of protest has valuable regulatory effects; it both deters and corrects inappropriate awards”

Nonsense.  How many actual "inappropriate awards" have been deterred by the protest process?  In all of my reading of GAO decisions, I have never seen an award that was deemed anything other than "incompatible" with the forest of laws, rules, regulations, directives, policies, clauses, provisions, and random thoughts of program and policy offices which comprise the basis of the Federal contract award process.   If a protest has ever actually uncovered malfeasance, I'd like to see it.

"increasing bidders’ confidence in the integrity of the procurement system"

More nonsense.  A protest is the weapon of the lawyered-up, entitled, corporate entity with the resources to engage in prolonged litigation.  One more advantage for the big guy.  If the one granted the CICA stay is the incumbent as they almost always are, protests do the exact opposite of increasing confidence in the system.

"increasing the public’s confidence in the integrity of the system,"

Get over yourself pal; the public has no idea what GAO does or doesn't do.  (And I'm not sure who you think is talking GAO up to the "public" because it sure ain't me.)

"He artfully characterized the costs as “real"

Unlike the billions of dollars raked in over the years by undeserving incumbent contractors as the result of frivolous CICA stays? (who by the way have no incentive to do a good job while working under a stay).

When I was a contractor PM, much of my day was consumed by documenting and reporting the activities of my team.  Even though we were under an FFP arrangement, the fact Government CORs are apparently only able to count butts in seats compelled me to treat it like a cost-type effort (drove me nuts, but a topic for another day).

The Government is like the biggest elephant in the world: slow-moving and clumsy, but it never forgets.   I knew certain (incompetent) contractor PMs who would smugly believe they didn't have to report anything because they were so awesome and the client loved them and doesn't want a report anyway, only to have to retroactively document 2-year-old activities when they got caught in an audit.  No matter how often I told them the monthly report was actually for us (the contractor) they didn't believe it until they got burned firsthand.

Two words: Covid clauses.

Truly the most bass-ackwards attempt ever to shove a political litmus test down our throats in the form of 'procurement policy'.  I'm still waiting for the explanation of how unelected bureaucrats were able to make going to work illegal - my agency actually gave me a "freedom of movement authorization letter" in 2020 (because we were special, AKA, "good enough for thee but not for me").

6 hours ago, Retreadfed said:

I have always contended that the government cannot issue a change order after final acceptance and delivery/performance of the contract.

Are you talking about modifications citing the Changes clause as the authority, or any modification?    My point is that cost-type contracts are modified all the time after they are physically complete (not necessarily under the Changes clause).  

20 minutes ago, Retreadfed said:

What do you mean by OTFFP contract?  That is a new one on me.

Other Than Firm Fixed Price (CPFF, etc.).  Also see FAR 42.705.

2 hours ago, Retreadfed said:

I have always contended that the government cannot issue a change order after final acceptance and delivery/performance of the contract.

How do you handle a final rate determination on a physically complete OTFFP contract?

2 hours ago, Vern Edwards said:

I don't know that it "incentivizes" protests.

Maybe I should limit that comment to the CICA stay, which is a huge incentive to file a protest regardless of merit.  The incumbent can make way more money continuing to bill for a month or two on a $100M contract than they will ever spend on a protest.  All they have to do is ask and viola, CICA stay, and the money keeps rolling in!

(I have to say; I got a good laugh out of Vern's post regarding approach. So true.  Everybody uses it as a key term in solicitations and evaluations, but the implication in common English is that to approach something is a precursor to actually doing something.  "OK, now that you've approached it, what do you plan to do when you actually get there?" 🤔😄🤣)