RJ_Walther

I liked "Think of a large purchase you've made in your personal life, like a house or a new car. Describe how you made that purchase?" as an interview question. The goal was to see what relevant techniques (market research, negotiation, making trade-offs, etc.) they could explain and apply without falling back to just referencing the FAR.

I think the industry partner has a valid concern that they will be unable to make it to the future task order stage where they would be able to propose an efficient solution using fewer hours because of the IDIQ evaluation criteria. I assume an innovative, AI-driven approach is more expensive per labor hour (say, a technician supported by a multi-channel AI chatbot) than a more traditional approach (say, a technician sitting at a desk with a checklist), but will require significantly fewer labor hours to support the same number of customer service requests. If the AI approach is $200/labor hour and requires one FTE and the traditional approach is $100/labor hour but requires four FTEs but all offerors are required to price their proposal on the basis of four labor hours the traditional approach will have a much better evaluated price. You do say your ceiling hours don't prevent selecting the best technical approach, but are you going to be able to defend a 100% price tradeoff to go with the AI-driven solution (which is what would happen in my example, which don't think it is necessarily unrealistic for an AI chat-bot supported help desk versus a traditional help desk) against a technical approach that is obviously unrealistically-priced (i.e. the offeror with the AI-driven approach was forced to propose an unrealistically high number of hours which don't align with their technical solution) to GAO in the face of a protest? You say that the "ceiling hours [...] represent maximum capacity over the contract period" and "[you've] set ceiling hours as a maximum capacity for the full IDIQ." I assume this is the "reasonable maximum quantity based on market research, trends on recent contracts for similar supplies or services, survey of potential users, or any other rational basis" from FAR 16.504(a)(1) but since your market research seems to indicate that labor hours don't align well with capacity because of the different technical approaches you may need to look for a better way to measure capacity and use that to create a more reasonable maximum quantity. For example, assuming you have historical information on the number of service tickets supported maybe extrapolate the historical growth in service ticket numbers over the past three years forward over the life of the IDIQ and add 10% as a safety factor. I'm not sure whether you could subsequently convert your solicited maximum quantity in service tickets to a maximum quantity in hours based on the awardee's particular technical approach at award, if that makes it easier to administer, but that could be worth researching too.

For this reason I often recommend using the Army's contract attorney and fiscal law deskbooks here: https://tjaglcs.army.mil/publications as a read-along companion to the Redbook (e.g., find your topic in the deskbooks and then read what it references in the Redbook). Just know that if you aren't in the DOD you should be looking for alternate references for anything it says is from the DFARS or Title 10.

It appears that the DoD Source Selection Procedures says that quantitative evaluation can be used, and that the relative importance of factors cannot be numerical, but it never explicitly prohibits numerical scoring of factors (although it does mandate the use of a specific set of adjectival ratings, which I guess implicitly prohibits use of any other rating system, including numerical scoring). This does not appear to be a change from the 2016 or 2011 Procedures which have identical language, maybe he is referring to some change in the DFARS, but the one pre-2016 DFARS I looked at didn't mention it. I'll admit I had previously taken the Procedures to mean that numerical scoring was prohibited, until today's close read to try to interpret the article you referenced. So according to the article if you are in the DoD you can currently claim to be able to quantitatively assess the value of risk and a project plan (two examples from the article) on a unitless ordinal scale of 1 to 100 (I guess with a waiver to not use the mandatory adjectival ratings), but are prohibited by the DoD procedures from saying that the risk assessment is twice as important as the project plan. The author says that if this restriction were lifted it would reduce exposure to procurement fraud, but never explains how moving the obvious subjectivity in assessing risk and a project plan one step earlier in the process (from the trade-off analysis to the assignment of a quantitative value to an obviously qualitative assessment) would make a difference. I do buy the author's logic that some of the problems with numerical scoring are reduced by using a bigger scale (e.g. 1 to 100 instead of 0 to 4) to allow more differentiation of scores, but in the end the relative weighting of evaluation factors just isn't a very useful concept for source selection (e.g., it is meaningless to say risk is twice as important as price in making a source selection decision) but rather is really useful for letting potential offerors know where to focus their efforts (e.g., offerors can choose to submit a high-risk/low-priced proposal or a low-risk/high priced proposal or something in between, and it improves the process if the government indicates which it would prefer), and I'm not sure that using numerical relative weighting of non-numerical things is any better than a simple narrative description.

Gift link to the interview in the NYT for anyone without a subscription: https://www.nytimes.com/2024/08/04/opinion/neil-gorsuch-supreme-court.html?unlocked_article_code=1.Ak4.fvM3.rfbqIIMR864H&smid=url-share

If I could suggest a different tack, this sounds like something that could be considered prior to award in the responsibility determination. While FAR subpart 9.104-3(a) excepts situations where the prospective contractor "proposes to perform the contract be subcontracting", 9.104-4 gives you the option of determining subcontractor responsibility "when it is in the Government's interest to do so." Of course now you're going to be dealing with SBA Certificates of Competency, but if the alternative is awarding a contract only to have it fail in performance this might be worth it.

I'm not sure this is true, otherwise why would a for-profit company offer free trials? I assume they expect to influence future requirements for paid licenses (i.e. once you get used to using the software you will want to buy it when the trial period ends), or that some of their customers will fail to cancel the free trial in accordance with their terms and conditions and some auto-payment clause will kick in (this is what I would be concerned about from an ADA standpoint). If I had to determine whether a software license is property or a service, for the purpose of understanding ADA voluntary services prohibition applicability, I would consider it "property" because it really doesn't have any of the characteristics of a service, which are explored in depth here: https://www.wifcon.com/articles/BP_24-5_wbox.pdf I don't think the fact that non-perpetual software licenses were recently given a Product and Service Code (PSC) which starts with an alpha character would be determinative.

Sounds like it could be a gratuitous bailment or a no cost contract. Some previous discussion here: In particular this may be useful "At issue in the decisions was whether the no-cost contract violated the Antideficiency Act’s voluntary services prohibition. The voluntary services prohibition, by its own terms, would not be applicable if property, rather than services, were being provided." It seems like the biggest risk in this case is not establishing liability for loss/damage, as is typically the case for bailments, but ensuring that the license agreement doesn't create some unintended obligation for the government, for example an auto-renewal clause that kicks in at the end of the trial period and converts it to a paid license.

While it is difficult to interpret exactly what it means to "be consistent with the JTR" the JTR does require use of government quarters for travelers to US installations if they "are adequate and available" (page 2-30). Maybe the question would come down to whether a barracks is considered adequate. Meals appear to be treated similarly in the JTR, if they are available on the installation where the traveler is staying, the traveler doesn't get full per diem (page 2-37). I think in general when a contract says "travel will be in accordance with the JTR" both the Government and the contractor expect it to just mean flights should be economy class and lodging and per diem should be within established rates, but the actual JTR says a whole lot more. Of course since it also says it does not apply to contractors the issue is a little more confusing. It seems like a good practice would be for the contract to explicitly state which specific parts of the JTR are to apply under the contract, e.g. travel and per diem rates, and not just reference the entire thing.

For an extreme example of "is there any contract to exercise": We had some annual software license contracts with a 52.217-7 option for each successive year (e.g. base CLIN is one year software license from 7/16/2024-7/15/2025, option 1 is one year software license from 7/16/2025-7/15/2026, etc.), and a newly-implemented automatic closeout system began closing them early with options remaining because after each license CLIN was invoiced the contract would sit for a year with no unliquidated obligations. So although I believe our contracts were properly structured and didn't violate any rules, we didn't take into account how the various systems were coded to behave.

Consolidation and bundling are two different things, or rather bundling is a subset of consolidation where the work becomes unsuitable for small business after the consolidation. The definition you provide is for bundling, scroll up a bit in your CFR reference and see the definition of consolidation.

As you point out, according to FAR 2.101 Consolidation or consolidated requirement—(1) Means a solicitation for a [...] multiple-award contract [...] to satisfy [...] Requirements of the Federal agency for construction projects to be performed at two or more discrete sites. You say you are "soliciting a regional Construction MAC" which hits those three elements: 1) solicitation, 2) MAC, 3) regional=two or more discrete sites, so it seems like you have consolidation. FAR 7.107-2 says that "before conducting an acquisition that is a consolidation of requirements with an estimated total dollar value exceeding $2 million, the senior procurement executive (SPE) or chief acquisition officer (CAO) shall make a written determination that the consolidation is necessary and justified". Your agency supplement my have more to say on this. So since it seems you have consolidation you will need the "written determination" before conducting your acquisition. But, according to the FAR, you will not need a D&F, which is different from a Determination, this post has a good explanation of the difference:

May be worth noting, just for additional context in comparing the UCC and the FAR, that a termination for convenience under contract clause 52.212-4 would not be a breach of contract.

So it seems like the question for your situation would be: Do I need to treat it as a supply or service for determining which product line gets the requirement? If the product line best positioned to meet the requirement is the service line, because they also do leases, then it sounds like you should treat it as a service. I don't put much stock in PSCs alone in making the decision, because depending on where the product lines are drawn I would rather, for example, a hypothetical software product line handle both the DA10 (non-perpetual licenses) and the 7A21 (perpetual licenses) requirements than send one to a service line and the other to a supply line. But in your specific case I agree that a conference room rental seems to have more in common with other services (e.g. payment in arrears, scheduling of "periods of performance", cancellation charges/lead time, off the top of my head) than it does a supply, so maybe the service PSC can be the "reason" you need to send it that direction.

This is an age-old question, and I think whether you need to treat a space rental, or an equipment rental, or a software license, etc. a supply or a service depends on the particular aspect of the acquisition you are trying to answer the question for, and you may need to treat it as both at different times for different purposes during the same acquisition. Clearly, all of those things fall into "service" Produce & Service Codes for FPDS reporting, but they don't fall within the FAR Subpart 37 definition of a service contract (or the much better service definitions explored at length in these forums), so it may not be a good idea to treat them as services for the purposes of various aspects of the acquisition process, like acquisition strategies, CLIN structures, or clause selection (and honestly maybe it doesn't matter much for space rentals, but applying service logic in all aspects of an acquisition of software licenses simply because they have service PSCs is potentially messier). So maybe it is better to ask a set of questions throughout the process and then apply whatever answer makes the most sense (i.e. creates the best contract and best meets the intent of the specific rule, regulation, process, or use) differently for each aspect: Do I need to treat it as a supply or service for acquisition planning (including commerciality determination)? How about for requirement description/CLIN structure/invoicing? How about for clause selection? How about for FPDS-NG reporting (and does the PSC match with the Cbject Class Code or similar in your funding)? How about for quality assurance?