govt2310

I am the OP. I asked GSA. This is GSA's reply: "Thank you for your inquiry. Although there are several important considerations listed as it relates to no cost contracting, those considerations are GSA recommendations. Therefore, the OCO is not required to address the bulleted items." I take this to mean that GSA is saying that the agency ordering contracting officer who is placing a Solicitation for a No-Cost Contract for Conference Planning Services (SIN 561920) is not required to include Past Performance as an evaluation factor, even though GSA's webpage for this SIN says, "Past performance is a required evaluation criterion." Thank you to everyone who weighed in on this. Your contributions are always stimulating and make me see the issue from different angles than before.

This GSA webpage states that, for a No-Cost Contract for Conference Planning Services (SIN 561920), "Past performance is a required evaluation criterion." Why is PP required? Where in the FAR does it say this? https://www.gsa.gov/buy-through-us/purchasing-programs/multiple-award-schedule/sinspecific-guidance-for-buyers/nocost-contracting-guidance-for-sin-561920

Let's say an agency awards a contract to Acme to provide training services. Acme will provide virtual training to Agency employees. Acme does the training by doing live video webinars, giving a link to the training class attendee to download the training class handouts/PDFs, and after the class, Acme emails a link to the training class attendee so they can watch the video recording of the training for up to 30 days. Also, Acme emails a link to the training class attendee so they can download short video recordings that are high quality production generic explainer video summaries of the training material. After the training is over, the contract has expired, can the Agency re-use Acme's training materials, or would that be a copyright violation? Can the Agency employees email Acme's PDFs to other Agency employees? Also the links to the videos?

FAR 27.409 says not to use FAR 52.227-19 for GSA Schedule Orders. What is the rationale for this?

Assume that this is not Open Source Software (OSS). Let's say it is definitely commercial software owned by a private company that sells it for profit to the public. It cannot be a no cost contract because it is not like the vendor will be able to make money in any way. An example of a NCC is conference space, where the hotel or event planner is able to make money by charging a registration fee to the conference attendees. That is not the scenario here. And isn't this "property" (software license), which means the ADA's voluntary services prohibition applies?

Can an agency accept a "free" software license? Let's say the vendor approaches agency officials, offering to give the agency a trial period to use its software for X number of months. How does this not violate competition rules? Could it be done as a "gratuitous" service/product?

I am very grateful to Vern for sharing his wisdom with me and others on Wifcon all these years. Thank you so much, Vern! You are awesome!

I apologize. Vern did not say an agency should adopt a Go/No-Go approach in Phase 1 of a Phased Evaluation. I was thinking of something Vern said in a 2015 thread on Wifcon. Here is link. On "page 2" of this thread, Vern wrote a comment on October 10, 2015: FARmer: Phased evaluation is simply progressive winnowing of the field of competitors through phased application of the evaluation factors. The idea is to start with the easiest factors to evaluate -- generally: legal acceptability, experience, and bottom-line price -- so that by the time you reach more difficult factors to evaluate you won't have as much work to do. There is no reason for the concept to be controversial, except to the eternally blockheaded. You must consider price in each phase before eliminating anyone. However, if your solicitation says that you are going to award without discussions, then you do not have to consider the price of any offeror whose proposal is ineligible for award as submitted. For example, you don't have to consider the price of any firm whose offer does not conform to any material term of the prospective contract as stated in the solicitation. I think what I was thinking of is not a statement by Vern, but various legal decisions (GAO, courts) where an agency didn't evaluate/consider Price in Phase 1, the agency eliminated an offeror, and it was ok because the offeror was technically unacceptable. It was ok to eliminate an offeror in Phase 1 without considering Price, based on a GO/NO-GO factor.

Ah, I see. Sorry, my mistake.

I remember reading Vern Edwards' Source Selection Book years ago, how he recommended that, for FAR 15 and other procurements as well, if an agency does Phased Approach, then Phase 1 should be a GO/NO-GO, meaning that the agency would eliminate only the technically unacceptable proposals. Well, what happens if the agency, using FAR 8.4, issues a solicitation that has Phase 1 and Phase 2. Phase 1 includes only one factor: an Experience Factor. The agency can assign only one of 3 adjectival ratings to a proposal: High Confidence, Some Confidence, and Low Confidence. The solicitation states that there will be a "mandatory down-select" after Phase 1. The agency rates Offeror X's proposal as Low Confidence. Offeror X is eliminated from the competition and cannot move on to Phase 2. Offeror X files a timely protest at GAO. How do you think GAO would decide? The way I see it, the agency in this hypothetical didn't put any "technical" factors in Phase 1, so how can the agency find any proposal "technically unacceptable"? How is "Experience" a technical factor? And how is "Experience" something that could be deemed "technically unacceptable" if the solicitation's worst adjectival rating category for Experience is "Low Confidence"? Low Confidence is not No Confidence, see? This hypothetical is very similar to Central Care, Inc., B-420959.13 et al. (Jan. 11, 2024). GAO denied the protest, finding that it was ok for the agency to eliminate the "Low Confidence" protester after Phase 1.

Sort of.

Looks like GPC dispute procedures is what needs to be done in the case I presented for this thread. Thanks everyone! Much appreciated!

When I click your link, it brings me to the GSA link that I posted, and there is no SF 44 form to click on there.

I'm trying to find Form SF 44. The only link I found is https://www.gsa.gov/reference/forms/us-government-purchase-order-invoice-voucher. But the form is not there. What happened to SF 44?

ji20874, I see what you are saying. My scenario is dealing with a micro-purchase using the GPC, not a "purchase order." But still, while FAR 13.201(b) says the GPC "shall be the preferred method to purchase and to pay for micro-purchases," it also says at FAR 13.201(c) says purchases below the MPT "may be conducted using any of the methods described in subpart 13.3." So for next time, if we are doing a purchase that is below the MPT, but we do it using a Purchase Order instead of using the GPC, then FAR 13.302-4 applies (it brings in FAR 52.212-4 termination clauses), right? Note, FAR 2.101 Definitions defines "Purchase order" as Purchase order, when issued by the Government, means an offer by the Government to buy supplies or services, including construction and research and development, upon specified terms and conditions, using simplified acquisition procedures.