General.Zhukov

Can an offerors history of bad-faith protest somehow be considered during source selection?

My basic very-much-not-an-expert understanding you'd have to pass two tests (note to the actual experts on wifcon, please correct me here)

1) you'd have to demonstrate how that is tied to your RFP's requirements/objectives, expected to a discriminator, and an indicator of best value.  Basically, FAR 15.3.

As @formerfed wrote, maybe...  if you could reasonably argue what's evidence of an offeror having a propensity to file frivolous or bad-faith protests, and how that would be a negative.  I think that is possible in some specific cases, but generally would be very difficult to do.

2) Isn't prohibited by law, policy, or convention (i.e., there is NO history of protest decisions effectively squashing what you want to do)   

See comment by @bob7947 

My hunch is that you wouldn't be the first person to do this, and there is precedent ('case law' / protest decisions).

Bing (which is ChatGPT 4) has the answer:

"I’ll try to explain in simple terms.

The American Recovery and Reinvestment Act of 2009 is a law that provides money to help create jobs and improve the economy. If someone wants to buy something using this money, they have to follow certain rules. One of these rules is that they have to use a special form called “Alternate II” when they make the purchase. This form helps make sure that the money is being used in the right way.

So, if someone wants to buy something using money from the American Recovery and Reinvestment Act of 2009, they have to use a special form called “Alternate II” to make sure everything is done correctly."

So I think this is true: GVT & you agree that they cannot require you to provide certified cost/price data.  Rather than demanding certification, they are asking for it.  That is, they want you to voluntarily certify the data you have already provided to them.  Correct?

If this is what's going on, the path of least resistance for you is to have the company owner (not you) certify the data and be done with it.     

Speculation: They are struggling to get to fair and reasonable pricing.  This is unfamiliar territory for a lot of contracting folks - over-budget for a non-commercial product, from a sole offeror, who is a very small non-traditional new-to-the-DoD company.  This eliminates the easy and routine ways to get to fair and reasonable pricing.  They are down to the seventh and "final" price analysis technique (FAR 15.404-1 b 2 vii) - other than certified cost or pricing data.  So what is normally a very straightforward and simple analysis is, in your case, unusually complicated and looks, at a glance, like it probably should have certified data. Some approving official unfamiliar with this complicated situation (mistakenly) skims the award docs, and kicks them back for missing the certification letter.  Rather than push back against that official, CO is going path of least resistance, and asking you for the certification so they can add that single-page file to the package, change nothing else, and re-route for approval.  We will never know, but that's my guess.

Aside: "Final" pricing technique in quotes because the FAR explicitly states these are examples, not an exhaustive list, but in practice, its sometimes treated as an exhaustive list.  Like everyone assumes a written pricing analysis MUST refer to one of those techniques.  Or worse - I've seen a checkboxes for which techniques were used, and there was no box for 'other.'  (This was not my office, btw)

As I understand the question, three facts:

1. a contractor has sold your third-party software to the government, and your software is currently being used by a government customer.
2. the prime has not paid you for the software that you owned, they sold, and is now being used by government.
3. the licenses have expired, so the government users are in violation of something (probably the EULA) and probably not allowed to use it.

• Can I use these facts as leverage to get the contractor to pay me?

Probably yes, however, I'm not a lawyer, certainly not your lawyer, nor will I be paying your legal fees.

If I want to immediately cause a crisis, I would identify the government end-users and the cognizant contracting authorities and then notify them that use of your software must immediately stop.  That will motivate them to discuss the issue with your prime.  Or, if technically possible and even more crisis-inducing, just active the kill switch remotely without warning.   

A more reasonable suggestion: It is very likely that the contractor is in violation of some part of their contract with the government.  You will probably need their specific contract to find out exactly what the contract states, and hence what part of the contract they are breaking.   You can (probably) get that contract - speak to a lawyer about it. In the meantime, it's very easy to find other publicly available federal contracts that may be pretty similar - that cover third party software.   This may help you get a general, generic, sense of what the terms and conditions are.  These contracts have terms and conditions, clauses, and often a separate software licensing agreement- where the issue of third-party software is discussed.  In there somewhere, you will find something to the effect of "You can't sell us third party software with expired licenses, and if you do, here are the bad things that will happen to you."  

ESI.MIL is probably the best source.  But GSA, NASA SEWP, NITAAC and many, many, other federal civilian and DoD entities have these types of contracts available online.

Add On:  The FAR is not good about software.  The FAR clauses that may apply to your situation are very broad, lacking important details, and I doubt you will find them helpful.  However, there are layers of regulations and some of the second and third layer regulations ARE pretty good about software, particularly within DoD.  If you know they government customer and can identify the applicable sub-FAR, you might be able to find some regulations/clauses that would be useful.  

For example, three levels of regs:

1. FAR (Everyone)

2. DFAR (DoD)

3. AFAR (Army)

The Red Book | U.S. GAO, Chapter 5. This will have your answers, probably.

The rules are different depending on your situation. 

• Do you have a multiyear contract? (Which is a special thing, not just a contract whose total duration inc. options is > 1 year)
• Is funding multiple-year appropriations?
• The contract is for severable services?

Thank you all, very helpful, I think I get it better now.

As a US Army Engineer, I often dealt with little quick and unpredictable requirements that couldn't be reasonably priced in advance - so now seem suitable for an agreement - "We need 2-3 HAZMAT dump trucks to take all that contaminated soil to the remediation field.  Range control says it's our fault, so won't do it for us, and won't clear us from the range till the stuff is gone, inspection is at 10 AM tomorrow so chop chop Captain." 

You have to negotiate price for stuff like this each time, but the terms are pretty standard (license & certs, mil escort on-base, etc.). 

Help me understand these two concepts.

Basic Agreement. Defined n FAR 16.702.  A basic agreement should be used when a substantial number of separate contracts may be awarded to a contractor during a particular period and significant recurring negotiating problems have been experienced with the contractor.

Basic Ordering Agreement.  Defined in FAR 16.703.  A basic ordering agreement may be used to expedite contracting for uncertain requirements for supplies or services when specific items, quantities, and prices are not known at the time the agreement is executed, but a substantial number of requirements for the type of supplies or services covered by the agreement are anticipated to be purchased from the contractor. 

I don't fully comprehend the purpose and use cases for these agreements, despite the plain words of the FAR.  My contracting office never uses these two types of agreements, and I have no experience with them otherwise.  I have a weak intuition that they are, like fax machines and public notice boards in the lobby, vestiges of a past contracting age. 

Are they used routinely somewhere in federal contracting?  If so, please tell me more.  What are they used for?  Why an agreement instead of (among other things) a BPA, some indefinite contract, or one of the innumerable acquisition vehicles (GWACs, Federal Supply Schedules, federal-wide IDIQs, etc.) which cover nearly everything imaginable?  A concrete example or two may help me.

40 minutes ago, Voyager said:

a leader in a contracting office should voluntarily choose to permeate the office with the program office's mission

Agreed.  There is a goldilocks zone for mission-focus vs. technical focus when it comes to recruitment and retention.

Contracting has a lot of expert knowledge and procedures which are most effectively handled with a centralized and separated (from program) technical-focused contracting office.   The downside of centralization is that this type of office the particular mission doesn't matter that much, and in mission-driven federal agencies, that's a big opportunity cost.  I think of NASA.  'Join NASA and help build space telescopes!' is much more compelling than 'join NASA and audit cost-plus contracts!' On the other hand, many federal agencies aren't particularly mission-driven, it's just a job, and it's ridiculous to pretend otherwise, so this wouldn't work.   

The opposite - a program-centric or decentralized contracting office, your much closer to the program.  But two downsides.  First, as you state contracting needs to be a check on program, able to act independently and say no - hard to do to your best work friends and employer!  Second, contracting offices really must have some economy of scale and specialization.  

This is an evergreen debate in my particular contracting office.  In terms of recruitment and retention, I think the mission-focused approach is demonstrably more successful, but I have large doubts about whether we could actually do our jobs competently (job one: do not break the law, nor allow others to break the law!) were we less-centralized than we already are.  No obvious answer.  Smarter people than me have thought about this much more carefully than me, so there probably is an answer out there.

A story about deviations from the FAR.  I am unsure what is the moral of this story, but I take guess below.

HHS has, I think, three (maybe more?) deviations which change 52.212-5, one of which applies all the time.  If I understand how this works, then I'd expect all HHS contract to have clause 52.212-5 with at least one deviation, and some with 2+. 

I once did a hasty search for HHS combined s/s on sam.gov and found very few with any deviations for 52.212-5, and zero with more than one deviation.  

The letters/instructions and text of these HHS deviations, so far as I am aware, are found only behind a firewall, and not posted on any official HHS site which is publicly available.  

The deviations aren't included in HHS's own in-house clause library.  

• An uncharitable moral of this story, which I don't necessarily agree btw, is that this shows 1) HHS COs don't know or don't care about the deviations, and 2) HHS doesn't know or doesn't care that its 1102 workforce doesn't know or doesn't care about its deviations.  
• A more charitable moral to the story is that a typical HHS COs - with dozens to hundreds of actions per year - cannot possibly do everything they are supposed to do every time, so they make a trade-off, and skip some less important stuff like deviations.  HHS knows this but choses to look the other way.
• My take-away from this story is that HHS, at least (and probably many or most other civilian agencies), is overwhelmed, and can't deal with deviations - so, as a tool, deviations should probably only be used only as a last resort or when necessary.  

In software development world, agile pricing is related may be of interest here -it is sort of like FUP (which I have no experience with).  

3 hours ago, Voyager said:

Talk all you want about mentorship, but especially in contracting, agents do need to learn from written policy exactly what the regulations leave to agency discretion.  If an agent cannot actually read the policy, guidance, and instructions written down by policy writers because the writers are incompetently phrasing things, using parentheses that never close, or just listing jargon terms that do not even apply to the policy subject, then it creates chaos where order is demanded. 

The broken windows theory, applied to contracting.  A glaring and uncorrected error in policy tells the reader that policy is not to be taken literally or seriously. 

27 minutes ago, here_2_help said:

the qui tam relator (whistleblower) received $69 million

The whistleblower isn't being secretive, the settlement is stickied to the top of her LinkedIn profile. 

(48) Sarah Feinberg | LinkedIn

18 hours ago, Retreadfed said:

Why in the world is a government agency asking for a potential contractor employee to provide a driver's license as a condition of employment?

Contractor employees with any type of access to GVT stuff (physical, "logical," etc.) need to be granted the appropriate access level (and a badge).  To get the badge, the contractor must (among other things, like a background check & fingerprinting) prove their identity and employment authorization by providing the documents to the GVT agency doing the badging.   Driver's license is the most common form of ID used.  In my agency, this happens many times every day.  

Its not entirely clear to me from the paperwork I see that these contractors who need to be badged are current employees of the contract-holder, or whether their employment is contingent upon getting them badged.  For us, it doesn't matter.

The pricing in 52.217-8 is typically fixed unless there is some exception like wage determination, or using a more exotic pricing arrangement, etc.  The vendor unilaterally increasing the amount isn't a sufficient justification for an approved JOFOC, unless there is more to the story.

Caveat: I have no particular expertise in subcontracts, but I have dealt with late payments (but not any DoD reg, I'm not DoD).  Obviously, the specifics of your situation matter a great deal, as do the contracts, consult with a lawyer, etc.  

FAR defines Untimely payment to subcontractors, I think it's more than 90 days past due from when gvt paid prime. 

There is some recourse in the FAR for untimely payment to subcontractors that might apply to you.  Again, consult with a lawyer.

FAR Clause 52.219-9 Small Business Subcontracting Plan - which states:

• (14) Assurances that the Contractor will not prohibit a subcontractor from discussing with the Contracting Officer any material matter pertaining to payment to or utilization of a subcontractor.

FAR Clause 52.242-5 Payments to Small Business Subcontractors

FAR 32.112-1 Subcontractor assertions of nonpayment (only for non-commercial)

1) Installation can involve both construction & commercial (non-construction) services.  Its not either-or. I suspect this is a key point here.  You very likely need both.

• Legal may be correct in that preparing a building to receive a bunch of radiology machines is, indeed, definitely construction and severable.  Altering a building.  May need to enlarge doors, add RF/magnetic/radiation shielding, lots of electricity/power work, reinforce load-bearing structures because MRI machines are very, very heavy.  etc.  This work is very likely necessary, entirely separate from anything involving the actual equipment, and can be separately competed and contracting for.  For example, adding RF and magnetic shielding - I'd bet a paycheck there are specialized construction firms that do exactly this, and there's probably a formal inspection & certification process.

• You are probably also correct.   Any work that touches the equipment or could affect it's operation isn't construction.  An MRI machine isn't a building or real property. Assembling it, QCing, testing, validating, calibration, maintaining, servicing etc. an MRI machine is commercial services, and obviously not construction. 

2) You mention its a best practice for OEMs to oversee install.  It's often more than that - OEMs of expensive/complicated/dangerous equipment often mandate how it must be installed.   An OEM may state that they will only sell to you if you agree to their terms about installation - which may be very detailed and extensive.  So legal can argue whatever they want, but if the OEM won't even sell you their MRI machine unless you agree that they (the OEM) will also install it, then it's a moot point about whether installation is separable.  Maybe in theory it is, but if want to buy Brand X MRI, then Brand X is also installing it.  Ask the OEMs.

3) Ask people who actually know about this.  Run this issue by an actual radiologist, the building manager, an engineer who does this type of stuff, and an OEM rep or two.  They will probably tell you immediately what must happen, what must not happen, and what you should do.  Then you earn your paycheck by translating that into contracting.

Footnote: I am friendly with a radiologist, and he knows his equipment & instruments like a chef knows his knives.  He is also the King of radiology, and so would not be amendable to legal or an 1102 telling him about how he "must" go about getting his stuff installed.  Your mileage may vary.

I am in the midst of placing an order (for software development) against a single award BPA, FAR 8.405-3 (C) (1).  A part of the process is documenting what market research I have conducted.   It has been a very long time since I've done this type of thing.  I am now wondering - what type of market research do I actually *have to* do, given the procedures I am using?   Any?  A large portion of market research is about competition, commercial items, small business  - all of that was taken care of when the BPA was (competitively) established. 

My impression is that my market research for order is basically stating my requirement is in scope of the BPA - "I have a need, and so I am using this BPA - which was specifically created to meet this exact need. The End."  

Is a part of market research explaining why I am using this BPA to get software development services, rather than any of the other innumerable sources available to me?   I have my reasons, but I don't think I actually *have to* write down those reasons or justify my decision. (I could have met this requirement via  - using some other agency contract/IDEV,  a bilateral mod to add scope of my project to an existing order for software development,  using one of many different IT GWACs/acquisition vehicles, etc.)

On 5/28/2023 at 3:24 PM, formerfed said:

Valid points raised General.Zhukov.  But in practice, many orders for services take a very long time to award.  That largely is due to the huge number of contract holders and the requirement for fair opportunity....

As an alternative, I’ve seen agencies getting great results from using GSA Schedules.  They do upfront market research and identify a small pool of companies capable of meeting their requirements (often as few as 3-5). 

Agreed.  3-5 is about right.  COs are well aware of the costs of getting too-much competition, and have techniques to keep the pool to a reasonable number.   Some of these techniques are now endorsed by FAI, Periodic Table of Acquisition Innovations.   Personal fav is the 'down select' - its like a voluntary and much simplified competitive range. 

My agency, within HHS, is a heavy user of GWACs, and I love them.  They are great and should be praised.

CIO-SP3 & NITAAC are for IT.  Purchasing IT services and software using a GWAC is drastically easier and faster than open-market.  This is mostly because the GWAC has dealt with compliance and Terms & Conditions (all the stuff that needs to be done unrelated to actually meeting the government's requirement). Examples:

• Terms of Service.  Does the publisher have federally compliant mandatory ToS?  If not, you might have to negotiate a bespoke ToS, which is a big undertaking regardless of price.   At a minimum you may have to check with legal about it, which brings things to a halt for a week or two.
• Pricing.  A scientific software platform my agency uses a lot has something like 20+ different pricing models.  Just figuring out how to accurately code the pricing structure as line items in a federal contract can be a challenge.  When the software in question costs $5,000, this extra effort is not a good use of time.   For the most part, the pricing in GWACs is federal government friendly. (Note: its been >20 years, we need to have consumption-based pricing in the FAR).
• FAR 25.  IMO, this is the most complicated part of the FAR, by far.  If your widget might have FAR 25 apply to it, you really want to get it from a source that's taken care of all that stuff.  GWAC vendors are very good at policing each other.  You'll hear about it if a vendor is offering you a cheaper but non-TAA compliant printer.

Pricing?  My guess is on a per-unit basis pricing on GWACs is about the same as open-market.  But if you factor into your cost equation time and effort spent by all parties, then GWACs have big cost savings.

A major benefit of having redundant (overlapping in scope) GWACs is competition for buyers.  Its really important to have several comparable GWACs which we can pick from to procure stuff.    Incentives matter.  

34 minutes ago, ji20874 said:

For your commercial fixed-price contracts, can you make a one-page fillable-form-check-the-box AP template?  Then, check the N/A box as appropriate.  I think a one-page fillable form is far better than a 20-page Word document.

yes.  You haven't encountered policy people who respond "Good lord no, you have to state how pre-award IBR's don't apply when you're buying another $500K of Microsoft Office licenses."?

Yes, HHSAR does not explicitly say it has to cover "everything" in FAR 7.105.   The actual text leading to the generation of thousands of APs full of mostly empty or otherwise useless content is found in the AP template instructions and the obscure "Directive for the Acquisition Plan." 

For all acquisitions not requiring SPE review and approval, and are equal to or greater than the simplified acquisition threshold, including task orders under Indefinite Delivery, Indefinite Quantity (IDIQ) contracts (FAR 7.105),OPDIVs may use this AP Template or their own template which must meet, at a minimum, the AP content requirements outlined in the FAR 7.105 and HHSAR 307.105. 

Which many people interpret to mean, everything in 7.105 must be covered by every AP.   The HHS AP template, which we use in a slightly modified format, has 64 text fields, I counted.  Gotta fill in all 64 text fields, every time, even if this task may be repeatedly pasting in "Does not apply".  In some cases, the AP content does not ever apply- like, never ever, not even once.  Its Pre-Award IBR, we don't do that and the AP has four questions about it.   Yet, we paste in "does not apply" a few thousand times a year.  Its dramatic overkill and makes the process ridiculous.   Many thousands of hours wasted by poor PM's and CORs and such wondering "What is an IBR" and ultimately concluding, yet again, it doesn't apply.  

Situation:

My Department, HHS, mandates all acquisitions over $250K have a written AP which must cover everything in FAR 7.105.

My OPDIV (unnamed, but hi Ted if you are reading this) essentially passes down this mandate unchanged.

My OPDIV does perhaps 95% commercial fixed price contracts, mostly orders using various existing government-wide vehicles (GSA, NITAAC, Best-In-Class, etc.). We very rarely use FAR 15 procedures or award 'contracts'.  

Results:

HHS's policy regarding acquisition planning is terrible for my OPDIV, given our actual workload as described above.  Its drastic over-kill given the relatively simple stuff we do.

• Time-waste 1:  Large swaths of 7.105 are never applicable or extremely rarely applicable to us, yet we have to include them in an AP, every time.
• Time-waste 2: We get thousands of acquisition plans a year.  Want to buy $500K Dell Computers from NASA SEWP?  You need a 20+ page Acquisition Plan.  Somebody has to waste their time writing, and reading, all those APs.
• If everything is important, nothing is: Everyone knows much of the AP is completely unimportant, and leads to all involved discounting the importance and usefulness of the AP in its entirety.   
• Ignoring important stuff: Actual acquisition projects and programs - which cover multiple contract actions - do not have acquisition plans at all.  All the trivial procurements do, but not the project.  For example, the acquisition project is to to acquire a very large Widget.  Our big widget which consists of components A, B, & C,  assembled together by contractor D, and operated by contractor E.  That's five acquisition plans (A,B,C,D & E), but does the acquisition project to get the Widget have an AP?  No.   

Questions:

• What the heck was HHS (or anyone involved) thinking? 
• Is ignoring a thoughtless and counter-productive policy that bad a thing to do?
• How can the harms be fixed or mitigated, given my higher-up's narrow & literalist interpretation of the policy & the FAR? 
• If you were involved in Department or OPDIV policy regarding acquisition plans, what do you think?

On 6/28/2022 at 3:25 PM, Rusty Holden said:

Can a Subcontractor Charge 2 different Primes a different price for the same material?

Yes.  Circumstance matter.

Prime A.  I would like one widget please, delivered ASAP to Kwajalein Atoll, Marshall Islands.

Sub: That will be $50,000/ea.

Prime B. I would like one thousand widgets, delivery in six months, to the big depot across the street from your factory.

Sub: That will be $10,000/ea. 

On 5/6/2022 at 11:13 AM, CEE said:

are we required to appoint a COR for every single DO since the base contract is a service contract? Again, the contractor is strictly delivering supplies under this DO and nothing else.

The FAR itself doesn't prescribe exactly when a COR must be appointed for FFP.  Note the very large caveat in 1.602-2 "as appropriate."  So, per the FAR, the CO could reasonable determine a COR for your order wouldn't be appropriate.  So the short answer is "No."

However.. not end of story.  Other regs, policies or whatever could mean you do need a COR in your situation.  For example your department states you need a COR over a certain $ threshold, regardless of contract type. And your order is > $.  Or something about that specific contract or project.  Say, the Program Office wants all orders issued against a particular IDIQ to be assigned a particular COR, for centralized contract admin or whatever. 

So the longer answer is "No, but also maybe."

20 hours ago, Vern Edwards said:

The most probable cost must reflect the likely cost to each offeror based on its own method of performance.

Well, this isn't my area of expertise, so I definitely could be wrong about this.

I think the GVT must determine the probable cost.  GVT cannot take the proposal at face-value, right?   GVT may find that the proposal is, in fact, the most probable cost. But that is a result of mandatory cost realism analysis. 

In the case of an obviously low-ball proposal, GVT would certainly not agree with whatever the offeror states, and would find that the probable cost is higher (or has offeror has elevated risk, or both).

Right?