Navy_Contracting_4

I have never tried the scheme you suggest. What is the argument in favor of focusing on "overall proposal capabilities" over "technical capability"? On its face, it seems silly to me to favor companies that write great proposals over those that do great work, but if you're suggesting using it as a subsidiary factor, it might be useful.

There's nothing about using a letter in lieu of an SF-26 that makes this in any way inadequate. Whether it includes all the proper paperwork we can't tell. For example, does it include the text of, or references to, FAR 52.216-23, -24 and -25? All letter contracts are required to include them, along with "the clauses required by [the FAR] for the type of definitive contract contemplated. . ." (see FAR 16.603-4.) The risk of nonpayment is almost zero. We can't determine the risk of unlimited liability, because we don't know how specifically and definitively the work is described, or whether the "NTE" amount is effectively a "ceiling price." Does FAR 52.216-25 include a paragraph (d), capping the firm fixed price to be negotiated? If so, you need to ensure that it is high enough to cover completion of the work described. If the work described is open-ended, then you should be wary of including a ceiling on the firm fixed price to be negotiated. I agree with ji2074 and Vern Edwards that this risk is reasonably low, and that in the unlikely event that the client believes the CO determined a price unreasonably below market, there is an avenue for redress. I agree with Vern's comments. As a final note, in my experience, in emergency situations like this, CO's are interested in getting essential work going quickly, and not in stiffing contractors. Does your client want to help the country in recovering from disaster? Yes, it's a business decision, and you don't want to expose your client to undue risk, but it's more than just that.

Why do you think a hybrid between LPTA and tradeoff processes "violates" anything? It's not a true LPTA, so 15.101-2((2) doesn't govern. Are you suggesting that the hybrid approach described and executed in this case is prohibited? The closest I can find to a violation relates to FAR 15.305(a)(2)(iv), wherein offerors without a record of relevant past performance or for whom information on past performance is not available may not be evaluated unfavorably on past performance. One might argue that a scheme contemplating any past performance rating below "substantial confidence," (including, strangely, "satisfactory confidence,") to be considered unfavorably violates 15.305(a)(2)(iv).

Note: Discussions have commenced. Feel free to "discuss" anything and everything of concern to you with the contracting officer. And do it now, before discussions end on Friday.

See FAR 1.108(d) - "(d) Application of FAR changes to solicitations and contracts. Unless otherwise specified— (1) FAR changes apply to solicitations issued on or after the effective date of the change; (2) Contracting officers may, at their discretion, include the FAR changes in solicitations issued before the effective date, provided award of the resulting contract(s) occurs on or after the effective date; and (3) Contracting officers may, at their discretion, include the changes in any existing contract with appropriate consideration." Per (d)(1), I think there is not a requirement to update clauses, although, per (d)(2), the CO has discretion. For example, the CO may choose not to update clauses if award will be made without discussions, but if discussions are held, the CO may choose to update.

Why would anyone need back up timesheets for a firm-fixed-price contract? Was this a firm-fixed-price level-of-effort contract? Did you provide the full level-of-effort?

Where, exactly, do you and DCAA part company with Retreadfed? If you're referring to the checklist at http://www.dcaa.mil/...y_Checklist.pdf, I didn't see anything inconsistent with what Retreadfed said. As a matter of fact, it refers to FAR 42.1701(b ), which includes the parenthetical "(but see 15.407-3(c ))." 15.407-3(c ) says, "Contracting officers shall not require certification at the time of agreement for data supplied in support of FPRA’s or other advance agreements."

Then, I think you may have some room to negotiate. The adequacy of the consideration could be an issue, but if the improvement is, as you say, important to the government, it might not be a problem.

If deliveries have already been completed, I agree. I was thinking that the request for relieving a spec requirement would have to be prospective, and if deliveries were complete, this whole discussion would be moot, but perhaps that's not necessarily so.

However, if a product improvement was made in the past, without being made a requirement of the contract, wouldn’t it be legally sufficient to offer the addition of a spec requirement for the product improvement, as consideration for relieving some other spec requirement, thus committing the contractor to deliver improved products, as opposed to the current voluntary delivery of improved products?

Under what circumstances would there be dollars left at the end of a firm-fixed-price contract? What happens to those dollars may depend on the answer.

This cite should be "FAR 52.204-7 (g)(1)".

See also FAR 15.404-1(g): "(g) Unbalanced pricing. (1) Unbalanced pricing may increase performance risk and could result in payment of unreasonably high prices. Unbalanced pricing exists when, despite an acceptable total evaluated price, the price of one or more contract line items is significantly over or understated as indicated by the application of cost or price analysis techniques. The greatest risks associated with unbalanced pricing occur when— (i) Startup work, mobilization, first articles, or first article testing are separate line items; (ii) Base quantities and option quantities are separate line items; or (iii) The evaluated price is the aggregate of estimated quantities to be ordered under separate line items of an indefinite-delivery contract. (2) All offers with separately priced line items or subline items shall be analyzed to determine if the prices are unbalanced. If cost or price analysis techniques indicate that an offer is unbalanced, the contracting officer shall— (i) Consider the risks to the Government associated with the unbalanced pricing in determining the competitive range and in making the source selection decision; and (ii) Consider whether award of the contract will result in paying unreasonably high prices for contract performance. (3) An offer may be rejected if the contracting officer determines that the lack of balance poses an unacceptable risk to the Government." So it sounds like you may have a case of unbalanced pricing, but you must analyze the situation, as described, to, for example, determine if there are explanations or if overstatement and understatement exist, and if so, are they significant.

What payment are you planning to withhold from? Under a T&M/LH contract, the contractor may invoice only for hours actually provided. If they haven't had someone in a position for 3 months, they couldn't have been invoicing for it, so what is the rationale for withholding?

Is the award you're asking about the award of a "single award task-order contract," or is it the award of an individual task order under a multiple award contract?

Prior to setting the procurement aside for small business, you determined that there was a reasonable expectation that award would be made at fair market prices. Now, you need to make a judgement about whether the proposed award price is fair and reasonable. If it is, then you may proceed and make the award.

It might be related to the question of whether the work entails inherently governmental functions. The government contracts for lots of services that don't apply to the integral effort of an agency or organization in support of an assigned function or mission. For example, building security, mail operations, operation of cafeterias, housekeeping, facilities operations and maintenance, warehouse operations, motor vehicle fleet management operations, or other routine electrical or mechanical services wouldn't normally be considered to apply to the integral effort of an agency or organization in support of an assigned function or mission. One may argue that these services are "in support" of the agency's function or mission, but I don't think that's what the subject reference is after.

In the references you're asking about, the "agency" being referred to is the contracting agency.

Have you read FAR 19.506? "19.506 Withdrawing or modifying small business set-asides. (a) If, before award of a contract involving a small business set-aside, the contracting officer considers that award would be detrimental to the public interest (e.g., payment of more than a fair market price), the contracting officer may withdraw the small business set-aside determination whether it was unilateral or joint. The contracting officer shall initiate a withdrawal of an individual small business set-aside by giving written notice to the agency small business specialist and the SBA procurement center representative (or, if a procurement center representative is not assigned, see 19.402(a)) stating the reasons. In a similar manner, the contracting officer may modify a unilateral or joint class small business set-aside to withdraw one or more individual acquisitions. (b ) If the agency small business specialist does not agree to a withdrawal or modification, the case shall be promptly referred to the SBA representative (or, if a procurement center representative is not assigned, see 19.402(a)) for review. (c ) The contracting officer shall prepare a written statement supporting any withdrawal or modification of a small business set-aside and include it in the contract file."

Vern, I stand corrected. Thank you for catching my error.

I've found nothing that requires a cost realism analysis be completed, or even conducted, before determination of the competitive range. Based on your description of the process as explained in the SSP and solicitation, it appears that the plan is to do the cost realism analysis after determination of the competitive range. I wouldn’t characterize the limited review of the business proposal as a cost realism analysis at all.

FAR 15.305(a)(1) requires that for cost-reimbursement contracts, “evaluations shall include a cost realism analysis.” Any cost realism analysis, whether before or after the competitive range determination, is, of necessity, going to be only as complete and thorough as the availability of information allows. I would argue that, when discussions are required, no cost realism analysis is “complete” until discussions have been held and final proposal revisions have been received and evaluated. Thus, isn't any cost realism analysis conducted before determining the competitive range “incomplete” in some way, by definition?

Isn't this addressed in your Source Selection Plan (SSP)? Or are you at an early phase of an acquisition where you don't have an SSP yet, and you're asking a philosophical question?

Are you thinking about FAR 16.201(b )? "Time-and-materials contracts and labor-hour contracts are not fixed-price contracts."

See FAR 15.403-4 Requiring certified cost or pricing data (10 U.S.C. 2306a and 41 U.S.C. 254b). " (a)(1) The contracting officer shall obtain certified cost or pricing data only if the contracting officer concludes that none of the exceptions in 15.403-1( applies. However, if the contracting officer has reason to believe exceptional circumstances exist and has sufficient data available to determine a fair and reasonable price, then the contracting officer should consider requesting a waiver under the exception at 15.403-1((4). The threshold for obtaining certified cost or pricing data is $700,000. Unless an exception applies, certified cost or pricing data are required before accomplishing any of the following actions expected to exceed the current threshold or, in the case of existing contracts, the threshold specified in the contract: " (i) The award of any negotiated contract (except for undefinitized actions such as letter contracts). " (ii) The award of a subcontract at any tier, if the contractor and each higher-tier subcontractor were required to furnish certified cost or pricing data (but see waivers at 15.403-1©(4)). " (iii) The modification of any sealed bid or negotiated contract (whether or not certified cost or pricing data were initially required) or any subcontract covered by paragraph (a)(1)(ii) of this subsection. Price adjustment amounts must consider both increases and decreases (e.g., a $200,000 modification resulting from a reduction of $500,000 and an increase of $300,000 is a pricing adjustment exceeding $700,000)" [emphasis added.]