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Don Mansfield
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Posts posted by Don Mansfield
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13 hours ago, Vern Edwards said:
I think I know what you mean, but given the OP's request for explanation it might help if you explained.
Fair enough. Assume ji's pillow solicitation stated that softness was significantly more important than price, but he decides Pillow A is a better value. He trades off extra softness for a lower price. The offeror of Pillow B protests because their pillow was softer, the solicitation said softness was significantly more important than price, and the difference in price is only $2.
In deciding such protests, the GAO has historically focused on whether the tradeoff decision is rational--not whether enough emphasis was placed on a particular factor in making the tradeoff decision.
In "Relative Importance of Evaluation Factors: Much Ado About Nothing, 18 N&CR ¶ 30", Professor Nash analyzed several protest decisions where the protestor unsuccessfully tried to make an issue of the statement of relative importance not being consistent with the tradeoff decision. I can't find the article, but here's a response they provided to a letter they received criticizing their conclusion:
QuoteWe should have limited our commentary to the role of relative importance in making the ultimate trade-off decision between price and the nonprice evaluation factors. It is there that the statement of relative importance is of little importance because that decision should always be made based on a determination of whether the difference in the nonprice factors is worth the difference in price. After all, that is the essence of best value.
The OP's question suggests they think that the statement of relative importance matters more in a tradeoff decision than it actually does.
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43 minutes ago, BMac29 said:
Hi All,
Our company is currently a 30% ESOP. It will eventually transition to 100% ESOP at some point in the future. I know that we are required to notify the USG if we are the prime of a change of control, but what about at the subcontract to prime level? Is there a requirement to notify the prime if we are a subcontractor and if so, what is the timeline for that?
Wouldn't that be governed by the terms of your contract with the prime?
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@ji20874's pillow example is great. It illustrates that a tradeoff decision is a matter of judgment. The only thing I'd add is that when he decides whether to pay the extra $2 or not, what he said in his solicitation about the relative importance of price and softness is irrelevant.
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I can't tell from the e-mail, either. If there's still a chance of you getting the work, then I don't think you should withdraw your protest just to be nice. But if the work is done, what do you have to gain? Did you have a lot of bid and proposal costs or attorney's fees? If not, what outcome do you want?
A mischievous person in your position might request a written apology on DLA letterhead signed by the HCA and a DLA coin in exchange for dropping the protest.
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3 hours ago, hallowed said:
The amount to get from the job was about $12.000. What might be the process if i deny their request? Will they give the job to me or relist the solicitation?
A $12,000 job awarded in March? Are you sure the work isn't already completed? Or is your protest holding up the work?
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16 hours ago, Michele Valenza said:
Is this still considered a service?
For what purpose are you trying to classify the acquisition as a supply or service?
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31 minutes ago, joel hoffman said:
If an acquisition is highly competitive and numerous firms can show that they could (have a high probability to) successfully fulfill the requirements for a competitive price, how about a lottery to select the winner?
I like that.
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29 minutes ago, Mike Twardoski said:
Does anyone have any tips on bridging a communication gap between the PCO and customer?
I'm semi-new to the GovCon world, and as a contract specialist on the industry side, I have noticed a distinct lack of communication between the PCO and the customer as of late. It seems as if the only way to get them aligned is to schedule calls, and even then, sometimes one of them won't appear. The reason it's impacting me, specifically, is that the program is working on a significant mod, and PCO & customer continue to be misaligned on the expectations for it.
I'm interested to hear any feedback, especially from the government's perspective on what industry can (or can't) do in situations like these.
The obvious answer for in-person meetings is to bring donuts. Govies will show if there are donuts. I'm not sure about virtual meetings.
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2 hours ago, formerfed said:
Given this short time and ease in awarding BPAs, I’m amazed at how many agencies still do their own IDIQ contracts when the same work is available from GSA. There really is so few reasons for separate IDIQs - agency specific terms and conditions can be added as long as they don’t conflict, prices are all negotiable, contractors can easily subject for very specialized work they don’t presently have, and the administrative time and expense for awarding IDIQ contracts is many times more than the 0.75% fee GSA charges.
This is a topic that's ripe for study. I worked for an agency 20+ years ago that closely monitored the amount of funds being sent to GSA by its program offices. There was a concern about becoming an "ordering office for GSA". The concern was political--not a result of cost/benefit analysis based on data.
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Ok, so FAR 12.211 doesn't apply--correct?
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9 hours ago, Misty said:
We are using the clause 52.227-17 to establish unlimited rights in the technical data first produced under the contract, including source code, which is a deliverable.
Are you sure source code is technical data? The definition of "Technical data" at FAR 2.101 excludes software.
QuoteTechnical data means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer databases and computer software documentation). This term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration. The term includes recorded information of a scientific or technical nature that is included in computer databases (see 41 U.S.C. 116 ).
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Assuming the cost principles at FAR subpart 31.2 apply, then see FAR 31.202(a):
QuoteNo final cost objective shall have allocated to it as a direct cost any cost, if other costs incurred for the same purpose in like circumstances have been included in any indirect cost pool to be allocated to that or any other final cost objective. Direct costs of the contract shall be charged directly to the contract. All costs specifically identified with other final cost objectives of the contractor are direct costs of those cost objectives and are not to be charged to the contract directly or indirectly.
In the absence of a disclosure statement, what matters is consistency with past company practice.
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8 hours ago, Misty said:
Source code falls under technical data.
What do you mean by that?
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@Misty Are you with DoD?
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3 hours ago, DCDOD2020 said:
So on my reading e(i)(A) says you can’t have a base period exceeding 5 years, and e(i)(B) and (C) I read as saying that you can have a options, however the sum of the base period of the IDIQ and the option period can’t exceed 10 years? Thus, my idea isn’t in contradiction to it?
No, it's not. What you're proposing is compliant.
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18 hours ago, DCDOD2020 said:
Also, someone said FAR part 22 might forbid my proposed plan, but I think they are confused with a straight 10 year contract vice what I have spelled.
Your proposed plan is not a new idea. Assuming that you are DoD, see DFARS 217.204(e)(i):
QuoteNotwithstanding FAR 17.204(e), the ordering period of a task order or delivery order contract (including a contract for information technology) awarded by DoD pursuant to 10 U.S.C. 2304a—
(A) May be for any period up to 5 years;
(B) May be subsequently extended for one or more successive periods in accordance with an option provided in the contract or a modification of the contract; and
(C) Shall not exceed 10 years unless the head of the agency determines in writing that exceptional circumstances require a longer ordering period.
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I think your proposal is fine. Instead of deciding now to re-compete after five years, you make that decision later when you have a better idea of whether a re-competition is in the Government's best interest.
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On 6/2/2021 at 10:52 AM, dsmith101abn said:
See https://www.gao.gov/products/b-419111 and https://www.gao.gov/products/b-419515
I have a sealed bid solicitation that was set-aside for small businesses and opened bids yesterday. The low bidder was not registered in SAM.gov at the time their submitted their bid; they actually were not aware they were supposed to register in SAM (apparently they generally perform work at a State and County level). The IFB included FAR Provisions 52.204-7 System for Award Management (Oct 2018).
On the surface my initial reaction was the low bidder should be non-responsive. After reading the two GAO cases above, apparently GAO looks at SAM registration as a matter of responsibility. I can't see how a provision requiring registration in SAM prior to offer is responsibility. I suppose 9.104-1(g) leaves room for being eligible for award.
52.204-7 changed in 2018. It used to say offers had to be registered in SAM prior to award and now is at time of offer and with these two decisions it's basically unenforceable. What am i to do, refer the matter to the SBA for a certificate of competency? What I'll do is just tell the low bidder to register and be done with it, but I think these two decisions, together with the FAR provision 52.204-7 is ridiculous.
So is GAO right or wrong in their decisions? either way i think they should be wrong or they should revert 52.204-7 to a similar pre-2018 change.
The decision doesn't explain why SAM registration is necessarily a matter of responsibility, so I can't determine whether they are right or wrong. I didn't read any of the cited cases to support their position, though. I think the explanation that it's not a matter of responsiveness and should be viewed as a minor informality or irregularity makes sense. I don't know why they didn't leave it at that.
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Just now, Vern Edwards said:
🤯
You deserved that.
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1 hour ago, ji20874 said:
You incorrectly characterize my premise. Please engage honestly.
@ji20874 wrote:
On 6/8/2021 at 3:23 PM, ji20874 said:But if the bid is the low offer and the apparently successful offer, consider its bid as responsive and the apparently successful bid -- then, later the same day, ask for the registration and declare the low bidder non-responsible if it does not deliver -- the bidder is not "qualified and eligible to receive an award." FAR 9.104-1(g). You see, the bid is responsive but the bidder is non-responsible.
and
On 6/8/2021 at 3:23 PM, ji20874 said:You do not need to delay award to allow the bidder time to obtain the registration. If you need to award tomorrow, ask for the SAM registration today -- if you don't get it, declare the bidder non-responsible and move on to the next low bidder. You don't need a Certificate of Competency referral in case of a small business. FAR 19.602-1(a)(2)(i). Just do it.
If you interpret @ji20874 as meaning that failure to register in SAM meant a bidder was "unqualified or ineligible" as used in FAR 19.602-1(a)(2)(i), then you are dishonest.
Is there someone honest out there who can interpret what @ji20874 meant?
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1 hour ago, Vern Edwards said:
The definition of "ineligible" in FAR 2.101 merely says what the word means when found in the FAR. It does not dictate other uses in other contexts.
Right, and we're discussing the use of the word in the FAR.
Maybe pay attention to the discussion before lecturing me?
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50 minutes ago, ji20874 said:
I believe you are in error. But, assuming arguendo that I am in error, you would insist that the contracting officer must delay award until the apparently successful offeror gets around to doing its SAM registration -- is that right?
No, I haven't reached any conclusions. There may be a way to avoid a delay. However, I'm not convinced by your reasoning. Your premise is that failure to register in SAM makes a bidder "unqualified and ineligible" as used at FAR 19.602-1(a)(2)(i). Given the definition of "ineligible" at FAR 2.101, I reject your premise.
1 hour ago, ji20874 said:I think that is wrong, but I am trying to make sense of what you are saying.
I don't know how to express myself more clearly. Sorry.
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1 hour ago, Vern Edwards said:
Emphasis added. Is that usage consistent with FAR 2.101?
I don't think so. What is your point?
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@ji20874I'm only pointing out that your reliance on FAR 19.602-1(a)(2)(i) is misplaced. Nothing more.
Quote(a) Upon determining and documenting that an apparent successful small business offeror lacks certain elements of responsibility (including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting, but for sureties see 28.101-3(f) and 28.203-1(e)), the contracting officer shall-[...]
(2) Refer the matter to the cognizant SBA Government Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located, in accordance with agency procedures, except that referral is not necessary if the small business concern-
(i) Is determined to be unqualified and ineligible because it does not meet the standard in 9.104-1(g), provided, that the determination is approved by the chief of the contracting office
Failure to register in SAM does not make a bidder ineligible as defined at FAR 2.101.
Justifying award to higher priced
in Contract Award Process
Posted
COs are probably doing that to comply with FAR. What do those COs do when including a statement of relative importance is not required (e.g., SAP, FSS ordering, orders under multiple-award contracts < $6 million)?