govt2310

I am talking about post-award invoice submittal, contract type is FAR Part 12 commercial FFP with a travel CLIN that is reimbursement

Is it typical for agencies to allow the contractor to include in the Travel CLIN (which was assigned a NTE in the solicitation) "G&A on travel costs"? I know of one agency that has policy of not paying this, but I am also aware of another agency that did pay it in at least one instance. Is G&A for travel costs an "actual cost" per FAR 31.001"?

Thanks, Vern!

This is a ridiculous question, I know, but I'm wondering, does anyone know of any court decisions where an agency tried to do a class deviation to not follow a statute, such as CICA? I'm sure the agency lost, but we need to see the actual court decision.

In the two links above, this topic of "directed subcontract" came up before on Wifcon, in April 2015 and May 2010, respectively. As mentioned in the former, it is strange that the FAR requires a brand-name justification but not a "directed subcontract" justification, and Nash & Cibinic recommends that the CO execute a justification anyways for a directed subcontract situation. This is to prepare for a potential protest. However, for 8(a) direct sole-source contract awards, those cannot be protested. Therefore, while it would be nice for the CO to execute a justification, if the CO decides not to do that, what are the potential consequences? If it can't be protested, it can't be protested, right?

Can an agency require an 8(a) direct sole-source contractor -- such as an Alaska Native 8(a) -- to use a specific subcontractor (a "directed subcontract")? I am aware that "directed subcontract" is a method that is generally allowed, but the examples I saw in GAO and court decisions seemed to all involve competition. Here, this would be a sole-source, and further, the 8(a) direct award cannot be protested. Are there any requirements or protocols the CO must follow to justify why the agency needs to force the awardee to use a specific subcontractor, such as how this meets the agency's minimum needs? I don't see any such requirements in the FAR.

Yes, I know it should only take 3-5 hours typically, good point, but if the evaluators are taking a year, I'm thinking the best approach is baby steps. Get them down to a few days first, then try to get them to get down to a few hours.

The intelligent thing to do would be not to take a year to complete PP evaluation in the first place. Well, I think GAO is assuming that a PP evaluation should not take very long, maybe a few days or weeks at most, and then it is done. Also, what does GAO mean by "evaluation"? If there are, say 50 offerors, so there are 50 proposals, the evaluators obviously are going to go through proposals one-by-one. Is GAO saying, once the evaluators get to Offeror #3, for example, the evaluators must alert the CO, "we are ready to start evaluating Offeror #3," then within a day or two, the CO pulls the CPARS Reports for Offeror #3 and provides them to the evaluators, and about 3-5 days later, the evaluators have "completed" their PP evaluation of Offeror #3? So then the agency has no obligation after that to seek updated PP information? Or is GAO saying, the PP evaluation is "complete" only when the agency has finished evaluating PP for all 50 offerors, which say, takes a year? Therefore, the agency has a duty to, say, at month 11, to check CPARS again for updated CPARS Reports for each of the 50 offerors? If the agency did that, then it would take another year for the agency to "complete" the PP evaluation, and then the cycle would continue ad infinitum, see?

GAO has stated that an agency has no obligation to continue to seek updated past performance information "once its past performance evaluation is complete." GAO has also stated that agencies are not required to update past performance evaluations even where new CPARS reports are made available "before the source selection decision is made." What if the agency has been evaluating past performance for many proposals for over a year, and the evaluators still have NOT completed their evaluation? Obviously, no source selection decision has been made. And say that there are new CPARS Reports that were entered after the CO pulled the CPARS Reports over a year ago when the solicitation closed. The way GAO phrased its decision, that an agency has no obligation to check for updated CPARS after the PP evaluation is complete, leaves open the question, is GAO implying that an agency does have an obligation to check for updated CPARS up until the moment just before the evaluators complete their PP evaluation, but after the PP evaluation is "complete," but before a source selection decision is made, the agency has no obligation to seek updated past performance information such as new CPARS reports? Matter of: Theodor Wille Intertrade GmbH, B-419269.4, B-419269.5, B-419269.6, B-419269.7 Given that there is no general requirement that an agency continue to seek updated performance information once its past performance evaluation is complete, we find nothing objectionable in the agency's failure to seek out any available information regarding EFS's performance on its incumbent zone 2 contract since December 2019, or EFS's performance on its zone 3 contract awarded in September 2020. See Affordable Eng'g Servs., Inc., supra at 12-13 (finding the agency's past performance evaluation reasonable where one CPARS report remained incomplete, and another was completed only after the agency's final evaluation was complete). Accordingly, we deny these protest allegations. Matter of: GVI Inc., B-419397, B-419397.2 The agency explains, and GVI does not dispute, that these reports were not available when it completed its past performance evaluation. MOL at 19 n.3. We find nothing unobjectionable in the agency’s failure to review CPARS information that was not available at the time of proposal evaluation. See CMJR, LLC d/b/a Mokatron, B‑405170, Sept. 7, 2011, 2011 CPD ¶ 175 at 8; Affordable Eng’g Servs., B-407180.4 et al., Aug. 21, 2015, 2015 CPD ¶ 334 at 12-13 (agencies are not required to update past performance evaluations even where new CPARS reports are made available before the source selection decision is made).

These are all good points. I can understand why there is no GAO decision with the fact pattern I proposed. The agency's action must be reasonable, and it would be extremely difficult to show that an offeror with "unsatisfactory" Past Performance was somehow the "best value."

Has anyone ever seen a GAO or court decision upholding an agency's decision to make award to an offeror rated unsatisfactory (or "No Confidence") for past performance? I know it sounds ridiculous, but some agencies put in their adjectival ratings scale/definitions that "unsatisfactory" makes the proposal unawardable, and others do not. Well, in the scenario where the RFP did not state that "unsatisfactory" made a proposal unawardable, and if the agency chooses not to open discussions, can the agency, in its source selection decision trade-off narrative, still make award to that offeror? I have never seen this done, but I'm thinking this question must have come up before at GAO or the courts.

I had to go out of town for 2 months suddenly, but I'm back now. Thanks to all who responded. ji20874's observation that discussions cannot have been concluded/done properly because the price issue was not pointed out to the offeror makes sense to me.

Thanks, Vern. This is helpful.

Due to the circumstances, if the agency were to do a second round of discussions with the one offeror in the competitive range of one, it is impossible for that offeror to bring its total price under the "ceiling" and still remain technically acceptable. I did find this GAO decision, but it involved a IFB not a RFP, see https://www.gao.gov/assets/b-295533.2%2Cb-295533.3.pdf. This is SOS International from 2005. "Where solicitation provided for award of contract on indefinite quantity basis, bid that offered larger quantity than maximum specified in solicitation is responsive, where bid did not limit government’s right to purchase only up to the maximum quantity specified in the solicitation or otherwise condition the firm’s pricing or performance on the government’s buying the larger quantity." "OVERSTATED MAXIMUM QUANTITY" "SOS argues that McNeil’s bid was nonresponsive because it was based on an incorrect maximum number of hours for CLIN 0003. However, a bid based on a larger quantity than is required by the solicitation is nevertheless responsive, so long as it is not conditioned on the government’s award of a quantity larger than that called for under the solicitation, and the solicitation does not preclude award of a quantity smaller than the maximum quantity specified. Charles V. Clark Co., Inc, B-196712, Mar. 12, 1980, 80-1 CPD ¶ 194 at 2-3. Here, as noted, this is an IDIQ contract under which the government is obligated to order only the minimum guaranteed quantities, but may order additional quantities, up to the maximum specified in the solicitation. Thus, the agency is obligated to purchase the 1,000 hour minimum quantity under CLIN 0003, but may elect to purchase a larger quantity up to the specified maximum of 50,000 hours. As McNeil’s bid did not condition its obligation to perform on the government’s ordering the erroneous maximum quantity (66,000 hours), it follows that the agency could order any quantity up to the correct lower maximum of 50,000 hours without changing McNeil’s performance obligation, and would not be obligated to order the additional 16,000 hours specified in McNeil’s bid. McNeil’s bid’s inclusion of the incorrect maximum quantity for CLIN 0003 therefore was immaterial and did not render the bid nonresponsive." Thoughts?

My concern is, since the Solicitation informed offerors that the agency would evaluate their total price for the IDIQ, and the Solicitation set forth a "ceiling" for the IDIQ, maybe offerors relied upon that "ceiling" in figuring out their total price. If they had known that the agency would raise the ceiling after award, maybe they would have bid differently. It is an issue of fairness and even playing field.

There are 5 offerors. 4 are technically unacceptable to such an extent that they are not capable of being made acceptable without a complete rewrite. These 4 did not make it into the competitive range. There was only 1 technically acceptable offeror, however, their price was way higher than the "ceiling" of the IDIQ.

Yes.

Assume that the 4 technically unacceptable offerors were so "technically unacceptable and not capable of being made technically acceptable without a complete rewrite." Assume that the program office desires to move forward with awarding to the offeror proposing $172 million, that they do not want to amend the solicitation, redo the competitive range and do discussions, and so forth. They just want to make award now. If the contract type is an IDIQ, is it possible to make award to an offeror whose proposal exceeded the "ceiling" in the Solicitation, or is that offeror non-compliant/non-conforming/ineligible for award?

Say the Solicitation is to award a Single-Award IDIQ. There is no task order included in this Solicitation. There is no Sample Task Order. The Solicitation stated that the maximum ceiling price/amount for this IDIQ was $148 million. For some unknown reason, the Solicitation included CLINs, even though this is a IDIQ. The Solicitation instructed offerors to fill out a pricing spreadsheet, and it required pricing each CLIN for each option year (base year plus 4 option years). There were 5 timely offerors/proposals. 4 of them are technically unacceptable or otherwise ineligible for award. So there was a competition range of one. Discussions were already held. No one pointed out to the offeror that its total price of $172 million exceeded the maximum ceiling set by the Solicitation. The final revised proposal has been received, and the price remains unchanged. Could the agency just make award to this offeror, and when the $148 million ceiling is hit (say in option year 2), just not exercise the options for years 3 and 4? Or is the agency required to revise the Solicitation and allow for revised proposals from all 5 offerors?

Ah, that's it: T&M is a pricing arrangement, not an ordering arrangement. Thank you.

FAR 16.601 address T&M contract type, and FAR 16.602 addresses Labor-Hour contract type. I do not see any requirement here to include a guaranteed minimum in these contract types. Yet I see examples of solicitations in the past that include a guaranteed minimum. Is there any requirement to include a guaranteed minimum? If you don't have a guaranteed minimum, is the contract illusory, as the agency could just order nothing?

Thanks, Vern. Ok, I see how to an RFP can be written to use two techniques.

The example RFP that I posted on Wednesday did not use two techniques. It evaluated all of the market segments the same way. My question is, could you make an RFP that does use two techniques? Your on-the-spot language answers my question. Thank you.

Yes, that is my question: could you use, say LPTA, to select the winners for one market segment, but use, say Trade-Off, to select the winners for the other market segments? ji20874 thinks there is no problem. Note, in that Air Force RFP, they did not use two different methods to select the winners. But I'm wondering, could you do that? And if you can, does anybody have an example solicitation of where this was done?

Ok, I need to provide more details. Say it is a RFP for a MATOC, similar to this RFP that the Air Force did for health services, and which was the subject of the Global Dynamis GAO decision here, https://www.gao.gov/assets/b-417776.pdf. The RFP is available at https://govtribe.com/opportunity/federal-contract-opportunity/defense-health-agency-medical-q-coded-services-mqs-acquisition-ht005016r0001, but depending on how many times you have accessed govtribe, it may be behind a paywall for you. Here is a screenshot of the pertinent section of the PWS (see attached).