FrankJon

Formation of Government Contracts (4th Ed.) also provides a wealth of information on this topic. Most pertinent, on pg. 1347 it states: I have to think about how "prescribing the mode of competition to be used" would work in this context.

These terms from The Government Contracts Reference Book (4th Ed.) were touched upon in a previous Wifcon post, but for posterity I'll flesh them out a bit more here and add emphasis and edits as appropriate to the topic. The second definition is particularly interesting, though most of the references date back at least 20 years so I don't know whether they'll be persuasive. Regardless I still plan to look into them.

Correct. We would like to have between two and four contractors performing a relatively even amount of work. No set-aside. I just ran to the office to grab my reference books. I’ll post some long-form quotes on this topic when I get home.

Carl - My plan here, if I were to use the "alternating order" approach, would be to borrow the 52.216-21 Alt. III language, tailor it accordingly, and put it somewhere in the PWS. So it wouldn't be a clause per se, but it would be a defined ordering procedure that contract awardees agree to. I don't understand this. There is no risk of a bait-and-switch on the part of the Government because we would have a contract defining how orders are distributed. If the Government doesn't follow that, it's in breach. When we talk about the allowability of the "alternating order" requirements contracts, we're really talking about whether that's sufficient consideration, right? There's no mandate that I see in the FAR that would prevent me from doing this. To the contrary, there seem to be specific loopholes carved out, despite the intent stated at 16.503(a). So this seems to be a case of "the FAR doesn't say I can't." Now, I'm not extremely well versed in the concept of illusory promises, but logically if the FAR is providing a specific means of splitting orders under Alt. III, the drafters must think this arrangement passes muster. This looks like a clear illusory promise to Contractor 2. There is no promise that any work will go to them, even if requirements arise.

I don’t think so. BOAs wouldn’t address my efficiency issue, as I’d still need to follow competition and posting requirements. Based on my reading of 16.5 trying to award two or more single award IDIQs to share the work would be an even more tenuous argument than awarding two or more requirements contracts. I’m going to have a battle either way. I think there’s a clearer argument for setting up this arrangement with requirements contracts.

Thanks all.

Can you clarify, Don? It sounds like you're saying ji's "regional" approach is a split award, and to your mind acceptable. I agree. This seems clear based on case law. But how would you describe the situation described by 52.216-21 (Alternate III)? Surely that must be multiple award, right? I'm not trying to be pedantic here. I would love to find a way to apply the flexibility of that clause to the large businesses in my situation and I'm looking for any plausible explanation to account for the apparent glaring contradiction that the clause creates.

I would expect nothing less from Wifcon’s resident rebel, ji!

In my case, because the customer seeks redundancy to mitigate against performance risk should one contractor fail or default. And the reason for a requirements contract rather than an IDIQ is because we need to place many orders every day with little ability to know what the requirement will be next week. Competing orders (which exceed the SAT) would create delay and waste. I can think of no other way to marry their need for redundancy with their need for rapid-fire ordering as unpredictable requirements arise.

Jeez. What an absolute mess of a section!! Two comments in response: 1. The drafters still haven’t “dispelled the implication” because there is a clause (52.216-21 (Alternate III)) that expressly provides permission to award two requirements contracts for the SAME work. (I suppose their counterargument would be that small business interests outweigh the interest in having a single requirement contract. To what end, who knows?) 2. I would still feel comfortable awarding multiple requirements contracts under a scenario such as the one ji mentioned, which is supported by the holding in JRS Management, B-401524.2.

At the heart of this issue is the question: “what constitutes sufficient consideration?” If indeed a promise to give part of a job to one contractor and a part to another is sufficient, then it’s hard to imagine that there would be any limitation based on the quantity of contractors you’re giving the work to (unless you’ve divided it to such an extent that it’s deemed token consideration, I suppose). It seems that how the distribution of work is described and executed will be key to determining the sufficiency of consideration. (For example, will a work distribution plan actually result in the apportionment promised?)

Is it possible legally to award two requirements contracts for the same requirement, promising each contractor approximately 50% of the work? In JRS Management, B-401524.2, GAO held that: A requirements contract is formed when the seller has the exclusive right and legal obligation to fill all of the buyer's needs for the goods or services described in the contract. The promise by the buyer to purchase the subject matter of the contract exclusively from the seller is an essential element of a requirements contract. A solicitation will not result in the award of an enforceable requirements contract where a solicitation provision disclaims the government's obligation to order its requirements from the contractor and therefore renders illusory the consideration necessary to enforce the contract. “All of the buyer’s needs.” ”Exclusively from the seller.” This language seems unambiguous: to be legally enforceable, ALL of the work associated with a specific requirement must be promised to a single contractor. And yet FAR 52.216-21 (Alternate III) allows for the work to be split 50/50 between a large and small business: (c) The Government’s requirements for each item or subitem of supplies or services described in the Schedule are being purchased through one non-set-aside contract and one set-aside contract. Therefore, the Government shall order from each Contractor approximately one-half of the total supplies or services specified in the Schedule that are required to be purchased by the specified Government activity or activities. The Government may choose between the set-aside Contractor and the non-set-aside Contractor in placing any particular order. However, the Government shall allocate successive orders, in accordance with its delivery requirements, to maintain as close a ratio as is reasonably practicable between the total quantities ordered from the two Contractors. Since business size has nothing to do with the concept of illusory promises, I see no reason why the same construct stated in 52.216-21 (Alternate III) couldn’t apply to any two businesses if the proper verbiage is included in the contract. I found two other Wifcon discussions that address this topic that don’t come to any strong conclusions. But to me it seems pretty clear that a promise to equitably divide the same work between two requirements contracts must be enforceable.

Thanks all. Actually the course description says that the material is applicable to all acquisition procedures except FAR Part 14. I was surprised too given Vern's association and his past strict interpretation of the term "source selection." So interesting, Don and Jamaal. My management recently told me a group from our office attended the course a couple years ago and returned disappointed because it was completely focused on the mechanics of writing specific evaluation criteria. Seems like the exact opposite of the theory-based "big thinking" approach you describe. Perhaps that specific class was bad, or perhaps their account has been distorted over the years. I don't necessarily disagree with your 3 categories of contracting people, but the flood of PIL applications is certainly not evidence that the applicants are proven innovators or even qualified!! There are many other more plausible reasons I can give you for why so many people applied to those positions.

I’m interested in getting some honest feedback from any Wifconers who have taken the subject course. Did you consider it to be valuable learning experience? Are there any similar source selection courses you would recommend instead? Any caveats that might limit its usefulness for some individuals?

Appreciate the robust discussion on this. I work in a defense agency under USD Intelligence and Security. According to my policy people apparently Defense Pricing and Contracting has specified that USD Acquisition and Sustainment is the waiver approval authority, although I’ve seen nothing explicitly stated in writing to this effect. My policy people further interpret the *emergency* waiver authority to be the Director of our agency, based on the fact that that language refers to the “head of the agency” vice “head of an executive agency.” We’ve encountered another ambiguous topic regarding the exceptions. This rule is a mess. Your average 1102 has difficulty understanding which acquisition procedures s/he is using for a given procurement. S/he does not have the time, patience, or ability to sit with this and understand the nuance. Why the drafters could not craft clearer implementation guidance is beyond me.

Yes, these definitions exist under FAR Part 2 but they don’t provide context into what is meant by “head of an executive agency.” The FAR is written for and applicable to all executive agencies (1.101). Assuming the use of the word “executive” carries meaning here (I’m not convinced it does), what could that be?

Happy FY end, Wifcon! (Almost...) FAR 4.2104, which implements the Sec. 889 waiver process, alternately refers to the “head of the *executive* agency” (for standard waivers) and the “head of an agency” (for emergency waivers). Is this a distinction without a difference or does the word “executive” carry special meaning here?

Unsure. Maybe Bob knows.

Former friend of Wifcon PepeTheFrog and I used to discuss the value of an NCMA certification and ideas for improving the experience (we both received our CFCM around the same time). We both thought the exam itself was a poor measurement of knowledge and ability. It’s an exercise in rote memorization and the relevance of the material is questionable. Its value is mostly in getting your name to stand out among large pools of resumes. It shows you have some level of dedication to the contracting field because you’re willing to invest your own time and money into your development. (Although Pepe and I were lucky to work for an agency that reimbursed our costs with DAWDF funds.) I can’t say for certain whether it’s helped my candidacy for Government positions, but I do know that some agencies specifically require a CFCM or CPCM for their contracting support contractor personnel. (For what it’s worth, I don’t think highly of DAWIA or FAC-C certifications either. All they really show is that you’ve been around the 1102 field for varying lengths of time. At least an NCMA certification shows some level of personal motivation.)

I've seen more than one "old school" CO say this. I think it's a silly vestige based on how IDIQs and BPAs were traditionally "supposed" to be used (i.e., supplies, brief tasks). They can't get comfortable with the idea of separate 5-year contracts springing forth. They stopped updating their acquisition knowledge at some point in the 90s, and they're trapped there until they retire. Same ol' story, different day...

For those who are interested in this topic, OUSD(A&S) provides this explanation within its new Adaptive Acquisition Framework site: Source:https://aaf.dau.edu/aaf/services/references/

Thanks Don. That will work.

FWIW Virtual Acquisition Office did an Advisory on comparative evaluations a couple years ago. Those with a subscription may want to take a look to get a fresh perspective on the discussion.

On January 10, DODI 5000.74 was canceled and reissued. Does anyone know of an online explanation of what has changed? In the alternative does anyone know where the prior version may still exist to compare and contrast?

I think you might need an agency policy to do this. I agree, it would be useful if possible. I have a feeling you'd still want a J&A. FAR 13.203(a)(1) contemplates micro-purchases being distributed among vendors. If that's impossible because there is only one vendor, I think that merits justification. (At least as a CYA.)