Sam101

Shouldn't agencies always send clarifications to apparent awardees asking if their proposed key personnel are still available (especially if the evaluation took a long time)? For example, if the agency in the case of COFC - No. 21-1966C (February 4, 2022) Golden IT v. US had asked the apparent awardee (right before making the award) if their proposed key person was still available and the apparent awardee said "no, they are not available anymore", the agency would have made award to Golden IT (probably, unless the agency opened "discussions" and allowed for quote revisions to allow for submission of revised key personnel). And another similar case, KPMG COFC No. 22-866: Even if the RFQ stated that a letter of commitment was required for each key personnel, I can't find any law that states that letters of commitment are legally binding between the employer and employee (the employee can just sign a letter of commitment without thinking and then not follow through after award), so even if the solicitation requires a letter of commitment, shouldn't the agency still clarify with the apparent awardee that their key personnel are available? And if a letter of commitment is not legally binding, what is the point of a letter of commitment anyways? I mean the only thing I can think of is that it may prevent offerors from proposing key personnel without that key person's consent. So, the way I see it is that there are only 2 answers that the apparent awardee must give in response to the agency’s request for clarification (which the agency sends right before making award) in order for award to be proper: 1) Yes, KeyPerson is still available and willing to start work upon award; or 2) KeyPerson is saying they are on the fence and might resign but maybe not, we are in communication with them. (But how will the Government have proof of this?) … If the apparent awardee responds with something like any of these then award will not be proper: 1) We can’t reach KeyPerson, they are not answering their phone and responding to email; or 2) KeyPerson left our company five days ago and is not available anymore; or 3) Apparent awardee doesn’t respond at all. Even if GAO (unlike COFC) says that offerors are required to notify the agency even after proposals are submitted but before award of key personnel unavailability, offerors may not comply with this GAO “rule”, so the agency should just send a quick email to clarify key personnel availability just in case. Has anyone here sent such a clarification before? If so, how did that work out for you?

I understand that this change will not change the price ceiling, but will it increase the burn rate? i.e., will the ceiling get reached faster? Did the Task Order have 2 senior researchers and now it has 3? This may be an issue.

I'm not a business owner but if I was I would like a tool which tells me how to make an end product be Buy American Act or Trade Agreements Act compliant. And if that tool was to be free that would be great.

To me recording an obligation means obligating funds in a computer... so if you issue a purchase order for nonseverable services or an item of supply on September 30th 2023 but the contractor does not accept the offer until October 5th 2023, I would imagine that the government is required to obtain FY23 funds to obligate to this now formed contract, unless the funds were already obligated in anticipation of acceptance. At the end of the day, either way counts as an obligation being properly recorded. As for severable services, the government will need to obligate FY24 funds... if FY23 funds were obligated on September 30th along with issuing the OF347 prior to acceptance then those will need to be deobligated since performance did not start before October 1st. If this is wrong then it's messed up and they need to re-write the red book to make this true.

Isn't this necessary though? Because even if the contractor does not provide written acceptance they can still begin performing, right? So how can they begin performing if there are no funds obligated?

Well, in the case of only the SOW needing to be changed, nothing. Unless the SOW is pasted the middle of the clauses, like section C would have a "custom clause" titled C-1 SOW and then the contents of the SOW are under that (I don't recommend this, as it's way easier to have the SOW be an attachment, for many reasons). But what if I made a typo in section B where in one of the CLINs I put the wrong period of performance? Then I would definitely need to modify the "offer to buy" somehow. Yes, the OF347 not having a block for the vendor countersignature is what is causing me to obligate funds without knowing if the contractor will even accept the order. Not all contract writing systems support the SF1449... I have no idea why that is... Would you use an SF1449 for a GSA FAR 8.4 buy? Or only for open market and FAR 16.5 buys? I guess I can do this even if it is commercial... but not on September 30th.

This makes sense in a perfect world without the constraints of a contract writing system. I usually process the award in the system and then send it out for contractor acceptance, meaning funds are obligated, and if I cancel it the funds in the system will go back to the program office account and a new requisition will need to be made before I can generate a new OF347... Perhaps I should not process the award in the system (and obligate the funds as a result) until I get acceptance, but if it's September 30th that's not good.

I'm talking about a situation where an OF347 is issued in response to an RFQ and then the contractor says that they won't accept the award because I forgot to add some part of their technical quote to the award's SOW. So now I must issue a modification to add some language to the SOW... but a modification to what? Surely not a contract, because a contract was not formed since the contractor did not accept the award or start performance yet.

As a practical matter, to illustrate how it looks like in real life, consider the SF30. Item 11 (I usually call these "blocks" in order to not confuse anyone with "line item (as in section B)" in a fast-paced conversation) is used for amendments and Item 13 is used for modifications. Also see Items 9 and 10. Item 14 is used to describe the amendment or modification. Yes, amendments are changes to a solicitation and modifications are changes to a contract. I suspect that Item 13 says "CONTRACT/ORDER" because in FAR part 2 Contract means, in part: So technically when a contract is not yet formed (no written acceptance or start of performance did not occur) in the case of a response to an RFQ the government may modify the "order that is not a 'contract' yet". I don't know if this happened to me before, it probably did, such as when there was a typo in the SOW and I had to modify the order before the contractor accepted the order. If there is no distinction between contract and order in terms of if Item 13's "CONTRACT/ORDER" means contracts or "orders that are already contracts" then saying "CONTRACT/ORDER" does not make sense, in that case it should only say "CONTRACT", since orders are contracts after they are accepted or performance starts. While I'm ranting, I might as well describe what I think about the term "Call Order" under agency awarded BPAs formed under GSA procedures as in FAR 8.405-3. I know we call the Tasks Orders awarded off of those type of BPAs "Call Orders" instead of "Task Orders" but they are really Task Orders, or they don't have names, so might as well call them Task Orders, because you issue Task Orders to GSA holders, you have a BPA so that you can issue Task Orders off of the BPA... Don't worry, a BPA won't magically turn into an IDIQ just because you call it a Task Order instead of a Call Order.

No, see WHR Group, Inc. B-420776; B-420776.2: In my original post's sample section M, the stated evaluation criteria is: M.1 Corporate Experience: The government will determine whether the offeror has sufficient experience based on the three past contracts that they described. The "rating" method, i.e., "how the stated criteria will be assessed" is not stated if using Choice 1, because saying "Acceptable means The offeror meets requirements" is the same thing as not disclosing how the stated criteria will be assessed. Choice 2, saying "Acceptable means all three past contracts are relevant" IS disclosing how the stated criteria will be assessed.

Because my sample Section M’s “sufficient experience” means “The government will determine whether the offeror has at least three years of experience cooking beef” however that definition is not stated in the RFP because FAR 15.304(d) says that it is not required to be. Does FAR 15.304(d)’s “The rating method need not be disclosed in the solicitation.” not apply to FAR 15.101-2 Lowest price technically acceptable source selection process? I understand that 15.101-2(c)(1) states “The agency can comprehensively and clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers” however I believe that this comprehensive and clear description can just be documented in the agency’s internal acquisition plan, and it does not need to be disclosed in the RFP. It appears to me that 15.304 applies to both trade-off and LPTA, because the beginning of FAR Subpart 15.3 - Source Selection says in FAR 15.300 that “This subpart prescribes policies and procedures for selection of a source or sources in competitive negotiated acquisitions.”… and I believe that negotiated acquisitions can be either trade-off or LPTA. B-414531 FreeAlliance.com, LLC is a good example of an LPTA procurement that through a quick glance has an RFP (W912CN-16-R-0026, which is found on SAM.gov with the inactive filter on) that doesn’t seem to describe in extreme detail as to what “the rating method is” although I’m sure it was in their acquisition plan, or if it wasn’t in the acquisition plan it was in the government’s mind, so if someone asked the government “can you comprehensively and clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers?” the government would answer “well, yes, we can.” But I do agree that it’s better to comprehensively and clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers in the RFP if using LPTA. And the other alternative is to use a technically acceptable corporate experience trade-off, if that’s even a thing.

Well, no, because the threshold for technical responsibility might be higher than it is for FAR 9.104-1(e)’s “experience”, here is an example: Technical Acceptability’s Corporate Experience: The government will determine whether the offeror has at least three years of experience cooking beef. FAR 9.104-1(e)’s “experience”: 1) Does the apparent awardee have the at least three years of experience cooking beef? No. They only have two years of experience. 2) Does the apparent awardee have the at least three years of experience cooking any sort of meat? Yes. 3) Does the apparent awardee’s project manager have at least three years of experience cooking beef? Yes. That’s two “yes” and one “no”, that is pretty good, I guess they are well of their way to being found responsible because they have 1/5 of FAR 9.104-1(e) covered.

In the case of LPTA, yes, the lowest price as long as they meet the minimum criteria, i.e., technically acceptable. In the case of trade-off it would not necessarily be the lowest price.

You got me, thank you Joel... I messed up on the RFQ, the only thing I can say is that since no pre-award protest was filed then I should be safe documenting the award decision and hope for the best.

Thank you Joel, Your post is very informative, thank you. I just have one question, does the fact that it's a request for quote make the original post's propositions true or false?