govt2310
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Posts posted by govt2310
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Hypothetical: An agency establishes a BPA with 10 BPA Holders for software development services. Agency issues a Call Order to BPA Holder #1, where that Call Order is characterized as "an IDIQ." Agency issues a Task Order #1 off of the Call Order for BPA Holder #1 to develop software #1. Then Agency issues Task Order #2 off of the Call Order for BPA Holder #1 to develop software #2. BPA Holders #2 to #10 file a protest asserting that the Agency has violated competition rules. Thoughts on how this would play out?
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I think the answer is no. But I can't find any authority that directly addresses this question. Does anyone know?
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The DHS HSAM used to have a Debriefing Guide at Appendix AA. DHS revised the HSAM in 2023, and now it is gone. But it is still mentioned within the HSAM. Does anyone have the link to the current DHS Debriefing Guide? Link to HSAM https://www.dhs.gov/homeland-security-acquisition-manual
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Thanks, Vern! Link to EPAAR 1532.003
EPAAR 1532.003 Simplified acquisition procedures financing.
(a) Scope. This subpart provides for authorization of advance and interim payments on commercial item orders not exceeding the simplified acquisition threshold. Advance payments are payments that are made prior to performance. Interim payments are payments that are made during the order period according to a payment schedule.
(b) Procedures for micropurchases. Contracting officers may authorize advance and interim payments on orders for commercial items only at or below the micropurchase threshold.
(c) Procedures for purchases exceeding micropurchase threshold. Contracting officers must secure approval at one level above the contracting officer, on a case-by-case basis, for advance and interim payments on orders for commercial items exceeding the micropurchase threshold and not exceeding the simplified acquisition threshold. The contracting officer shall submit a recommendation for approval of financing terms, along with the supporting rationale for the action, to one level above the contracting officer. Remote simplified acquisition contracting officers (SACO) without one level above contracting officers at their locations shall forward recommendations through their OAM Advisors to secure one level above approval.
(d) Supporting rationale. Regardless of dollar value, the contracting officer shall document the file with supporting rationale demonstrating that the purchase meets the conditions of FAR 32.202-1(b)(1), (3) and (4).
(e) Administration. Regardless of dollar value, the contracting officer is responsible for ensuring that supplies or services have been delivered. The contracting officer shall document the file with evidence of receipt of supplies or services throughout the order period as appropriate to the acquisition.
(f) Clause. The contracting officer shall insert the clause at 1552.232-74, Payments - Simplified Acquisition Procedures Financing, in solicitations and orders that will provide simplified acquisition procedures financing.
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Thanks, C Culham! Well, I looked at your two links. The VA policy mentions, as examples, prosthetics, subscriptions, and training. Advance Payment for subscriptions and training is authorized by their own statutes, and they are not limited to Micro-Purchases. I don't know if there is a statute that authorizes advance payment for prosthetics. The Army AFARS also talks about subscriptions and training. What I'm interested in is an example of where an agency promulgated regulations/policy saying it is ok to do advance payment for a Micro-Purchase regardless of what product/service is being purchased. For example, something that allows a Cardholder to pay in advance for a Hotel Agreement (conference space).
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FAR 32.003 states, "Unless agency regulations otherwise permit, contract financing shall not be provided for purchases made under the authority of part 13." Well, if an agency simply promulgates regulations permitting advance payment for FAR 13 Micro-Purchase, then the agency can pay in advance for a Micro-Purchase, right? Does anyone read FAR 32.003 differently? Does anyone know of an agency that has promulgated such regulations?
It seems so simple, so I am surprised that I cannot find an example of an agency that has promulgated such regulations. That makes me think it cannot be done. But then what do these words in FAR 32.003? It says the agency can write into its regulations to "permit" otherwise.
Typically, a Micro-Purchase is for a commercial product/service. FAR 32.201 provides that you can do advance payment if it is "appropriate or customary in the commercial marketplace." And FAR 32.202-1 states that contract financing is allowed if it is in the best interest of the United States. And FAR 12.210 states that "Customary market practice for some commercial products and commercial services may include buyer contract financing," and the CO "may offer Government financing in accordance with" FAR Part 32. Note, FAR 32.202-2 still applies (the advance payment shall not exceed 15 percent of the contract price).
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The DoD Source Selection Procedures at 2.3.2.1 prohibited numerical scoring of proposals. This DAU article says that DoD changed that rule in August 2022, https://www.dau.edu/library/damag/july-aug2024/distinct-numeric-scoring-protocol. However, when I look at the revised DoD Source Selection Procedures dated August 2022, https://www.acq.osd.mil/dpap/policy/policyvault/USA000740-22-DPC.pdf, it still prohibits numerical scoring of proposals. It appears the DAU article author is wrong. Am I missing something?
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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.
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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?
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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?
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FAR 27.409 says not to use FAR 52.227-19 for GSA Schedule Orders. What is the rationale for this?
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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?
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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?
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14 hours ago, Vern Edwards said:
@govt2310I cannot find where I supposedly said that an agency should adopt a Go/No-Go approach in the first phase of a phased evaluation. I have checked both editions of my book. I'm not saying I didn't say it, although I doubt it. But you should not attribute a statement to a person without being able to cite something to which others can refer to verify your assertion.
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.
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Quote9 hours ago, joel hoffman said:
govt2310, since this is a “hypothetical” situation, did the solicitation state that the basis for the phase one “mandatory down-select” is “go/no-go” and describe a minimum standard of acceptability (“go”)?
You said the circumstances were “very similar” to the Central Care, Inc. Decision.
In that Decision, the solicitation stated that it was a best value, trade off process, with only the highest rated vendors in phase one invited to proceed with the submission of phase II quotations. Those vendors that were not amongst the most highly rated would be eliminated from the competition.
Ah, I see. Sorry, my mistake.
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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.
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3 hours ago, formerfed said:
Try this. https://www.acquisition.gov/far/13.306
The form shows up at the beginning in a pdf link
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.
NEWS
in What Happened?
This is wonderful news! Thank you, Vern!