Posts posted by krusem
The commercial item definition "published" catalog prices and "established" market prices; thus, the reasoning behind the wording. My concern was whether this particular requirement, believed to be sold competitively in substantial quantities in the commercial marketplace, is done so based upon "established" market prices that can be substantiated through competition.
In regards to the services, the contractor would assist the Government with strategic planning. The purpose of strategic planning is to develop organizational objectives for a wide array of mission-related areas.
In reading management and professional support services described in FAR 2.101, it would appear that the excerpt below aligns with our requirement. Do you disagree?
(1) Management and professional support services, i.e., contractual services that provide assistance, advice or training for the efficient and effective management and operation of organizations, activities (including management and support services for R&D activities), or systems. These services are normally closely related to the basic responsibilities and mission of the agency originating the requirement for the acquisition of services by contract. Included are efforts that support or contribute to improved organization of program management, logistics management, project monitoring and reporting, data collection, budgeting, accounting, performance auditing, and administrative technical support for conferences and training programs.
Thank you for the feedback.
Thank you for the information. I am currently reviewing guidance on that very topic. Initial market research indicates that this is a service commonly performed in the private sector, but further research is necessary to determine whether there is published catalog pricing or established market pricing.
In addition, I am also reviewing guidance on PBSA as it relates to A&AS. My initial belief was that developing a PWS would not be an issue, but in giving it more thought, maybe I was a bit naive. This is certainly something I will have to discuss more thoroughly with my customer.
Thank you very much!
Once again, I realize that if I read a bit more thoroughly I would likely find the answers to my own questions.
Thank you very much Vern! You're always a great source of knowledge and your willingness to help is greatly appreciated.
Thank you for the in-depth response Vern! I should have reviewed FAR 2.101 in addition to FAR 37.2, as the definition is quite expansive. There was some concern that our requirement might be prohibited IAW FAR 37.203(c)(1). I am not certain that our requirement aligns with FAR 37.203(c)(1), as it is our intent for the contractor to assist the Government in this effort and the contractor would not participate in policy, decision making, or etc.
If I may, let me ask a follow-up question.
Is the determination at FAR 37.204 specific to contractor personnel performing evaluations or analysis of proposals?
In reading FAR 37.204 and the Source Selection Answer Book (thanks Vern!), that is my understanding, but I do not understand the need for such a determination if contractor personnel are not performing such a service (such as with my requirement).
Is my understanding completely off on this?
Our organization has expressed an interest in contracting for a company to assist it with strategic planning. The contractor would assist a group of Government employees (i.e. leadership) with identifying strategic objectives and associated criteria to evaluate progress. This information would be compiled into a document and provided to the Government for further development of its strategic planning. Performance will occur over the course of a week long meeting by Government personnel, with a minor amount of time dedicated to gathering data prior to the meeting and compiling information after the meeting. The contractor would not assist with the development of policy or contribute to decision making. In short, the contractor would "coach" the Government during this process.
We are unfamiliar with this type of requirement and uncertain as to whether one might consider this consulting, advisory and assistance services, or simply a commercial service.
Because of our unfamiliarity, I want to ensure we are not overlooking a critical requirement associated with contracting for this type of requirement.
Thank you very much Vern. Great information. You should write a book!
...kidding, as I have your book on Source Selection - and it is quite good.
Vern, your response is incredibly helpful. I greatly appreciate the time you've taken to help explain my question. That being said, I am going to ask one last question and hope I haven't worn out my welcome.
In the interest of treating quoters fair, is it necessary to provide all (or even some) offerors the opportunity to revise quotes, or is it acceptable to ask a single offeror to revise its quote?
I am torn between each, since it doesn't seem fair to allow a single offeror to revise its quote and not others, but it also seems to go against the intent of SAP to allow each offeror an opportunity to revise its quote; especially considering you didn't reduce the offerors down to a limited number via a competitive range.
I have read here in this forum and elsewhere that asking a single offeror to revise its quote is perfectly acceptable, but I would very much like to hear your opinion on the subject.
Great thanks to everyone who responded so promptly on this post. Much appreciated.
I failed to ask this in my last post, but what about the following:
Although an agency is not required to establish a competitive range or conduct discussions under simplified acquisition procedures, we think that where an agency avails itself of these negotiated procurement procedures, the agency should fairly and reasonably treat quoters in establishing the competitive range and conducting discussions. See Finlen Complex, Inc., B-288280.
What would constitute an agency using negotiated procedures in lieu of simplified acquisition procedures? The aforementioend case seems to incidate that methodology used, not terminology, is the determining factor as to whether or not a KO is actually using negotiated procedures.
How does a KO ensure that an RFQ is not written in such a way that it is truly considered a negotiated procurement. In the event that negotiated procurement procedures are utilized, do the exchanges in FAR 15.306 become mandatory?
Thank you both for your responses.
Vern, that was a phenomenal response and provides me with exactly what I needed to wrap my head around it.
I have a question regarding FAR 13.106-2 that I cannot seem to solve on my own, so I hoped the smart folks on WIFCON could provide guidance. Many might consider this a rather basic question, but nonetheless, I have managed to overthink it.
To provide some context for this question, let's assume we are discussing the purchase of commercial supplies below the SAT.
The excerpt at FAR 13.106-2( (3) reads, "Formal evaluation plans and establishing a competitive range, conducting discussions, and scoring quotations or offers are not required."
The excerpt at FAR 12.203 reads, "Contracting officers shall use the policies unique to the acquisition of commercial items prescribed in this part in conjunction with the policies and procedures for solicitation, evaluation and award prescribed in Part 13, Simplified Acquisition Procedures; Part 14, Sealed Bidding; or Part 15, Contracting by Negotiation, as appropriate for the particular acquisition."
What is the proper method for conducting discussions when using Simplified Acquisition Procedures? Is FAR 13 indicating that discussions are simply not required, but if they are utilized, the KO must follow the procedures at FAR 15.306?
In the event that the procedures at FAR 15.306 are not required, how are discussions performed when using SAP?
I've discussed this with fellow coworkers, senior contracting personnel, and searched case law to find information that helps me to form a solid conclusion; however, I have not found anything that I find sufficient. As stated, this is likely way more simple than I have made it, but I am wrapped around the axle on this one.
Vern, you are very much correct in your assessment of the underlying issue that drives such questions. I have read the discussion regarding modification authority and agree that it is perplexing that a Contracting Officer must have an authority to modify a contract, but he/she does not have to cite an authority to award a contract.
That being said, the question at hand is whether or not a Contracting Officer is given the authority to extend the period of performance for a construction contract in FAR 52.249-10. I am of the opinion that it does, whereas others believe the regulatory authority is found elsewhere. My intent was to get a few additional opinions on the subject.
I appreciate the great responses. WIFCON never disappoints.
There is currently a topic of great debate in our office and I would like to get some additional opinions on the subject.
When a contractor has requested an extension to the period of performance based upon excusable delays due to unusually severe weather experienced on a construction contract, what is the proper modification authority? I would be highly interested in reviewing any associated case law on the subject.
The majority opinion is that the Contracting Officer may extend the period of performance citing FAR 52.249-10 - Default (Fixed-Price Construction) as the modification authority. The minority opinion is that this a misinterpretation of the Default Clause and authority should be found elsewhere in the FAR.
I reviewed Administration of Government Contracts by Cibinic, Nash, and Nagle and found discussion on this topic, but not a direct answer to that question. My hope is that I can provide case law or another definitive source that can settle this debate.
I appreciate the elaboration Joel.
Thanks for the post Joel.
I do have one question for you. I apologize if I am asking you to repeat yourself.
Why the reluctance to request the breakdown with the initial proposal? What benefit does three additional days provide to the contractor? Isn't there proposal backed by sufficient estimation prior to submission? I were to receive a proposal and found out that the contractor was not in a position to also provide a complete breakdown at that time, I would be a little concerned.
I would like to hear you elaborate on this. Maybe I am just not fully understanding the detail of the breakdown or how the three days benefits the contractor.
My computer will not allow me to grab a quote from my last post, but I did want to revise my question about design-build.
What I was attempting to ask is, whether or not there was less reason to open discussions for a design build solicitation that has minimal design requirements, versus a solicitation that has a full design, such as that found in traditional design bid build. The difference being the volume of detail provided between the two, and thus the associated potential for errors on either side (ambiguous specs or erroneous interpretation).
What a great discussion from both of you gentlemen.
In my limited constructoin experience with the National Guard, I can tell you that there appears to be some agreement between the process that Joel mentioned and what I has been distributed to the masses in the form of templates and guidance. Unlike the process that Joel mentioned, we typically ask for the supplemental price breakdown on an AF3052 Construction Cost Estimate Breakdown or an equivalent document. I agree with Vern, in that it would make more sense to have the offerors prepare it as part of their initial proposal, versus asking for it at a later date.
In regards to whether or not to conduct discussions, it seems like it is the common philosophy to award without discussions whenever possible, at least in many operational Air Force contracting squadrons and National Guard contracting offices. I was surprised to see that the Department of Defense Source Selection Procedures encouraged discussions, and even went as far as to say that they are the rule and not the exception.
I think that a significant number of contracting professionals, or at least those of us who are less experienced and unfamiliar with GAO case law, tend to shy away from discussions for the fear of a protest. It might be the process of conducting discussions that we need to become more comfortable with, not the actual discussions themselves. I am not saying that I want to establish a range and conduct discussions for every project that comes across my desk, but I do think there is tremendous value in having frank and open discussions with offerors.
Here is another question just for the purpose of picking your brains, especially those with heavy design-build experience. When soliciting offers for with a nominal criteria RFP (15% design), is there less of a reason to open discussions since there is significant design control on the contractor's side, thus mitigating the potential ambiguities found in design bid build? I am curious on how the use of design-build procedures effect the use of discussions, if at all.
Once again, thanks to everyone for their contributions to this thread and patience with my questions.
Vern, your response at #11 was put very well.
I think another thing that helped to ruin me on this topic was our use of 8(a) direct awards through the Partnership Agreement with the SBA. In these procurements we generally rely heavily upon the government estimate during negotiations, and that mentality has carried over into our competitive procurements. My organization should rely more heavily upon competition and less upon the government estimate going forward.
Based upon what I have read, when discussions are opened for the purpose of determining the reasonableness of the offeror's proposed prices, the negotiation objectives should be more fact-finding in nature, and not an attempt to obtain price reductions. Depending on what is discovered during discussions would determine whether or not you do in fact ask for a price reduction or issue and amendment to address shortcomings in the solicitation.
The two examples that you provided are a great help as well. I will have to remember them for future reference.
Thank you for the response Vern.
I believe you and I are speaking the same language on this topic - for the most part. What you are saying, if I am understanding you correctly, is that just because the government's estimate leads us believe that we have unreasonable offers, in terms of cost, it should be the results of our competition that tell us this.
Is the fact that they are comparable in terms of cost reason enough to determine that they are fair and reasonable, and thus not open discussions? My personal logic would say yes, but it would also say that if they are all above the government's estimate, it is worth opening discussing and performing a bit of fact finding to ensure that they are in fact fair and reasonable.
Is that where you were attempting to lead me Vern?
It seems, at least here in the ANG, that we bust our estimates quite often and then want to automatically assume the offerors are unreasonable and not us. We are quick to open discussions for the purpose of beating up their price instead of trying to figure out the basis for that difference in cost.
The question was general in nature, but for the purposes of our discussion, you can consider it to be plain design bid build construction using FAR 15 procedures.
The reason I asked this question is because it is not uncommon for some proposals to come in that exceed our IGE, especially some of our smaller in house projects that require local estimation.
I have always opened up discussions to negotiate price, but the other day when researching LPTA, I ran across a discussion from a 2010 post by mskity where Vern indicated that asking a contractor to lower their price (sharpen pencil) is unethical, and that made me question myself.
My assumption is that he said it was unethical due to the fact that the government is asking a contractor to further reduce an already fair and reasonable price happens to exceed the budget, not because it exceeds the government's estimate, and is therefore considered to be unreasonable.
In sum, I guess my question was really whether or not it is acceptable to establish a competitive range and conduct negotiations with technically acceptable offerors in an effort to bring their proposal cost below the government's estimate.
Now that we are on the subject, what about technically unacceptable proposals? I have read advice on wifcon that says unacceptable proposals can be included in the range if the government can help them become acceptable. Is this allowable and/or recommended when using LPTA?
I have been around Federal contracting for about 13 years, but unfortunately my skill set is somewhat weak in the source selection arena. I have researched this question on WIFCON, AAP, and the DOD SS Guide, but I think I have over-saturated my noggin and would like to see if I can get a straightforward answer from you fine folks.
When utilizing LPTA under FAR 15, what recourse does a contracting officer have, if any, when all proposals exceed the government's estimate, and the government believes its estimate is valid (correctly priced).
There is a reference in FAR 15.306(e)(3) that mentions that you can tell an offeror that their proposal is high in terms of price, but is that reason alone to enter into discussions?
I am sure that I could ramble on with questions, but I will let you folks respond first.
Thank you very much!
in Contract Award Process
As usual, your insight is simply outstanding and provides a great deal to consider as we move forward with this requirement.
Thank you to everyone that commented on this thread.