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napolik

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Posts posted by napolik

  1. Speaking of LPTA evaluations, look at the GAO decision issued today, B-414531, FreeAlliance.com, LLC, June 19, 2017:  

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    Proposals were to be evaluated under three factors:  technical capability, past performance, and price.  RFP at 138.  The technical capability factor was further divided into three subfactors:  (1) understanding and compliance with requirements; (2) certification; and (3) management and staffing plan.  Relevant here, under subfactor 1, understanding and compliance with requirements, proposals were required to “address each work area in sufficient detail to demonstrate a clear understanding” of the Performance Work Statement (PWS).  RFP at 138 (emphasis added).  The RFP also noted that, in evaluating proposals, the agency would assess whether the proposal described “a sound technical approach” as to “how the offeror will fulfill each requirement in the PWS.”  Id. (emphasis added).

    Subjectivity had to have entered this evaluation.

    http://www.gao.gov/products/B-414531

     

  2. I think you will need to provide a bit more detail as to the contents of the tech approach and the definitions/ characteristics of pass/ fail (e.g. staffing adequacy (i.e. types and volume of labor for tasks; personnel degree/ experience requirements); security clearances; source of resources (i.e. prime or subcontracts).

    The elements of the tech approach must be mirrored in the pass/ fail criteria. 

  3. DOD and Congress appear to discourage use of subjectivity in LPTA when conducting DoD source selections. Here is an excerpt from Appendix C of the current DoD Source Selection Procedures:

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    C.1 Introduction

    The LPTA process is appropriate when best value is expected to result from selection of the technically acceptable proposal with the lowest evaluated price. LPTAs may be used in situations where the Government would not place any value on a product or service exceeding the Government’s threshold technical or performance requirements and these requirements can be objectively defined in measurable terms. Such situations include acquisitions of commercial or non-complex services or supplies which are clearly and objectively defined. When LPTA is used, the solicitation and the Source Selection Plan must clearly describe the minimum requirements that will be used to determine the acceptability of the proposal. LPTA should not be used when the SSA will be required to make a judgment as to the desirability of one offeror’s proposal versus a competing proposal. Well-defined standards of performance and quality of services must be available to support the use of LPTA. When standards of performance and quality are subjective, or the Government places value on higher quality or performance, another approach should be used. The LPTA process does not permit tradeoffs among price and nonprice factors (see FAR 15.101-2).

    http://www.acq.osd.mil/dpap/policy/policyvault/USA004370-14-DPAP.pdf

    And Congress isn’t too thrilled with subjectivity in LPTA.See Section 813(b) of the FY 2017 NDAA:

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    Not later than 120 days after the date of the enactment of this Act, the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement to require that, for solicitations issued on or after the date that is 120 days after the date of the enactment of this Act, lowest price technically acceptable source selection criteria are used only in situations in which—

    (1) [DOD] is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;

    (2) [DOD] would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;

    (3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal;

    (4) the [SSA] has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to [DOD];

    (5) the contracting officer has included a justification for the use of a [LPTA] evaluation methodology in the contract file; and

    (6) [DOD] has determined that the lowest price reflects full life-cycle costs, including for operations and support.

    Section 813(c) further provides that

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    [t]o the maximum extent practicable, the use of [LPTA] source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of—

    (1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge based professional services;

    (2) personal protective equipment; or

    (3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.

    The DAR Council is working a case to implement Section 813 - Case Number 2017-D017. We should know shortly just what DARsters will do. Here is the status:

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    01/11/2017 DARC Director tasked Contract Placement Cmte. to draft proposed DFARS rule. Report due 03/01/2017. Report due date extended to 06/21/2017.

     

  4. Do not use FAR 15 procedures to conduct a simplified acquisition. Read this article from Monsieur Edwards: Competitive Processes in Government Contracting:  The FAR Part 15 Process Model and Process Inefficiency. You will find it here: http://www.wifcon.com/anal/analcomproc.htm.

    Here is a useful excerpt:

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    Do not follow the FAR Part 15 Process Model when making simplified acquisitions. When using simplified acquisition procedures to buy complex supplies or services worth in excess of $25,000 and for which a synopsis must be published, and if planning to ask for more information than just a price quote, either: (a) select one firm for one-on-one negotiations based on experience, past performance and a price quote and then negotiate to agreement on details, or (b) narrow the competitive field of competitors on the basis of experience, past performance and a price quote before asking for more detailed proposal information, providing a specification or statement of work and clauses for price quote development by fax or email. Do not use FAR Part 15 terminology or refer to FAR Part 15 in the RFQ. Do not establish a competitive range, negotiate with more than one firm at a time, or solicit revised quotes or offers from more than one competitor.

    In addition, read this protest decision: Finlen Complex, Inc., B-288280, Oct. 10, 2001: http://www.gao.gov/products/407353.

    You will see how the Army converted a FAR Part 13 simplified acquisition into an onerous FAR 15 negotiated procurement and fell victim to all the FAR 15.3 procedures.  

     

  5. Under FAR Part 13, you may issue either an RFP or an RFQ.

    When you issue an RFP, you can create a contract unilaterally by accepting the offer or proposal. When you use an RFQ, you cannot accept the quotation and create a contract. The contract arises from a RFQ when the contractor signs a contract document you provide or when the contractor commences performance of the work covered by the quotation.

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    13.106 -- Soliciting Competition, Evaluation of Quotations or Offers, Award and Documentation.

    13.106-1 -- Soliciting Competition.

    (a) Considerations. In soliciting competition, the contracting officer shall consider the guidance in 13.104 and the following before requesting quotations or offers:

    (1)

    (i) The nature of the article or service to be purchased and whether it is highly competitive and readily available in several makes or brands, or is relatively noncompetitive.

    (ii) An electronic commerce method that employs widespread electronic public notice in not available; and

    (iii) The urgency of the proposed purchase.

    (iv) The dollar value of the proposed purchase.

    (v) Past experience concerning specific dealers’ prices.

    (2) When soliciting quotations or offers, the contracting officer shall notify potential quoters or offerors of the basis on which award will be made (price alone or price and other factors, e.g., past performance and quality). Contracting officers are encouraged to use best value. Solicitations are not required to state the relative importance assigned to each evaluation factor and subfactor, nor are they required to include subfactors.

    2.101 -- Definitions.

    Offer” means a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract. Responses to invitations for bids (sealed bidding) are offers called “bids” or “sealed bids”; responses to requests for proposals (negotiation) are offers called “proposals”; however, responses to requests for quotations (simplified acquisition) are “quotations,” not offers. For unsolicited proposals, see Subpart 15.6.

    13.004 -- Legal Effect of Quotations.

    (a) A quotation is not an offer and, consequently, cannot be accepted by the Government to form a binding contract. Therefore, issuance by the Government of an order in response to a supplier’s quotation does not establish a contract. The order is an offer by the Government to the supplier to buy certain supplies or services upon specified terms and conditions. A contract is established when the supplier accepts the offer.

    (b) When appropriate, the contracting officer may ask the supplier to indicate acceptance of an order by notification to the Government, preferably in writing, as defined at 2.101. In other circumstances, the supplier may indicate acceptance by furnishing the supplies or services ordered or by proceeding with the work to the point where substantial performance has occurred.

    (c) If the Government issues an order resulting from a quotation, the Government may (by written notice to the supplier, at any time before acceptance occurs) withdraw, amend, or cancel its offer. (See 13.302-4 for procedures on termination or cancellation of purchase orders.)

     

  6. Here is the status of implementation of Section 825 of the 2017 NDAA:

    Open FAR Cases as of April 07, 2017

    Case Number: 2017-010

    Part Number: 13.106-1, 15.304, 16.505(b)(1), 16.505(b)(2)

    Title: (S) Evaluation Factors for Multiple-Award Contracts

    Synopsis: Implements section 825 of the NDAA for FY 2017 (Pub. L. 114-328). Section 825 amends 10 U.S.C. 2305(a)(3) to address the requirement to include cost or price to the Government as a factor in the evaluation of proposals for certain multiple-award task- or delivery-order contracts and 2304c(b) to modify the exceptions to fair opportunity. Applicable to DoD, NASA, and Coast Guard.

    Status: 03/23/2017 CAAC received DARC revisions to draft proposed FAR rule and FRN. CAAC discussed draft proposed FAR rule on 04/05/2017.

     

     

  7. Quote

    The function if a bureaucracy is to increase the number of subordinates and decreasing the number of rivals while making work for one another.  A bureaucrat's currency is budget and people, and they have incentive to grow both.  

    I have maintained, futilely, that procurement offices need to be staffed via a deductive approach, not an inductive one. The inductive approach assigns billets based upon number of actions and number of dollars awarded, degree of competition, types of contracts, etc. This provides no incentive to be efficient. In fact, I have seen it create deliberately inefficient behavior so staffing can be maintained and increased.

    It's time to go deductive. Tell each office your staff is being cut XX% and suggest it use more efficient means to issue solicitations, evaluate offers/ quotes, make awards and administer contracts. The FAR has plenty of flexibility to let offices do more with less.

  8. The general rule appears to be that subcontractors need not possess CAGE codes: https://www.federalregister.gov/documents/2014/05/30/2014-12387/federal-acquisition-regulation-commercial-and-government-entity-code.

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    I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal Register at 78 FR 23194 on April 18, 2013, soliciting public comments on the proposed rule and received one response.

    DoD, GSA, and NASA are revising the FAR to require that offerors provide their CAGE codes to contracting officers and that, if owned by another entity, offerors will provide, in a new provision with their representations and certifications, the CAGE codes and names of such entity or entities. For those offerors located in the United States or its outlying areas that register in the System for Award Management (SAM), a CAGE code is assigned as part of the registration process. If SAM registration is not required, the offeror must request and obtain a CAGE code from the Defense Logistics Agency (DLA) Contractor and Government Entity (CAGE) Branch. A CAGE code is not required when a condition described at FAR 4.605(c)(2) applies and the acquisition is funded by an agency other than DoD or NASA. Offerors located outside the United States will obtain an NCAGE from their NATO Codification Bureau or, if not a NATO member or sponsored nation, from the NATO Support Agency (NSPA).

    xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

    Comment: The respondent indicated that the proposed rule is unclear on the treatment of commercial entities. Will purely commercial companies be required to have CAGEs? How will primes deal with commercial companies that do not wish to obtain a CAGE? How will primes address hierarchy issues associated with commercial companies that have a CAGE? How will additional costs be addressed? Are primes responsible for the currency of their commercial company subcontractor reporting?

    Response: The rule applies to contractors with commercial contracts based upon the Councils' determination that applying this requirement to commercial contracts is necessary to fulfill the purpose of the rule. All entities reported as an immediate owner or highest-level owner of the offeror under the rule must have CAGE Codes. This final rule does not require subcontractors to have CAGE codes.

    However, agencies may sometimes require a subcontractor CAGE code (e.g. for security clearance or preaward survey or small business participation plan). See here for examples.

    http://www.gao.gov/assets/680/670041.pdf

    http://www.gao.gov/assets/670/669420.pdf

    http://www.gao.gov/assets/680/679880.pdf

  9. Quote

    The authority cited by napolik is the authority to cite on your J&A, not the authority to cite on SF 30.

    Go here: https://search.usa.gov/search?affiliate=acq_osd_mil_dpap&query=modification+training.

    Click on first result entitled “[PPTX] No Slide Title”.

    Go to slide 15. See “New work, requiring J&A” / "Cite the appropriate exemption to CICA"

    See also the second result entitled "[DOCX] MODIFICATIONS GUIDE"

    Go to page 2:

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    -For changes outside the scope of the contract, cite the particular authority used in your Justification and Approval permitting other than full and open competition (example:  10 USC 2304(c)(1) for only one responsible source)

     

  10. Cite the authority you choose under FAR 6.302.

    6.303-2 -- Content.

    (a) Each justification shall contain sufficient facts and rationale to justify the use of the specific authority cited.

    (b) As a minimum, each justification, except those for sole-source 8(a) contracts over $22 million (see paragraph (d) of this section), shall include the following information:

    (1) Identification of the agency and the contracting activity, and specific identification of the document as a “Justification for other than full and open competition.”

    (2) Nature and/or description of the action being approved.

    (3) A description of the supplies or services required to meet the agency’s needs (including the estimated value).

    (4) An identification of the statutory authority permitting other than full and open competition.

  11. Me thinks that you PUNKtuators are going a wee bit overboard. Let's get away from Oxford and put things into a greener perspective: Erin go Bragh!

    Here’s to a long life and a merry one, a quick death and an easy one. A pretty girl and an honest one. A cold beer-and another one.

  12. What does the written agreement say?

    See FAR 17.502-1(b )(1)

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    (1) Assisted acquisitions.

    • (i) Prior to the issuance of a solicitation, the servicing agency and the requesting agency shall both sign a written interagency agreement that establishes the general terms and conditions governing the relationship between the parties, including roles and responsibilities for acquisition planning, contract execution, and administration and management of the contract(s) or order(s). The requesting agency shall provide to the servicing agency any unique terms, conditions, and applicable agency-specific statutes, regulations, directives, and other applicable requirements for incorporation into the order or contract. In the event there are no agency unique requirements beyond the FAR, the requesting agency shall so inform the servicing agency contracting officer in writing. For acquisitions on behalf of the Department of Defense, also see subpart 17.7. For patent rights, see 27.304-2. In preparing interagency agreements to support assisted acquisitions, agencies should review the Office of Federal Procurement Policy guidance, Interagency Acquisitions, available at http://www.whitehouse.gov/omb/assets/procurement/iac_revised.pdf.

    What does your agreement with the other agency say?

  13. You might wish to read Camden Shipping Corporation, B-406171; B-406323, Feb.27, 2012: http://www.gao.gov/assets/590/588932.pdf

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    2. Agency had a reasonable basis to cancel a solicitation for the operation and maintenance of a vessel that was set-aside for small businesses, and reissue the solicitation for the same services on an unrestricted basis, where the record supports the agency’s determination that prices offered by the small businesses in response to the solicitation set aside for small businesses were unreasonable. 

    ______________________________________________________________________

    A determination of price reasonableness for a small business set-aside is within the discretion of the contracting agency, and we will not disturb such a determination unless it is unreasonable. A. Hirsh, Inc., B-271829, July 26, 1996, 96-2 CPD ¶ 55 at 2. In making such a determination, the agency may consider such factors as the government estimate, the procurement history for the solicited services, the current market climate, and the “courtesy bid” of an otherwise ineligible large business offeror. Id.; Nutech Laundry & Textiles, Inc., B-291739, Feb. 10, 2003, 2003 CPD ¶ 34 at 4; see FAR §§ 19.202-6, 15.404-1(b). We have recognized that, in view of the congressional policy favoring small businesses, contracts may be awarded under small business set-aside procedures to small business firms at premium prices, so long as those prices are not unreasonable.3 Hardcore DuPont Composites, L.L.C., B-278371, Jan. 20, 1998, 98-1 CPD ¶ 28 at 3. The determination of whether a small business price premium is unreasonable depends on the circumstances of each case, Olsen Envtl. Servs., Inc., B-241475, Feb. 6, 1991, 91-1 CPD ¶ 126 at 2-3, and we have found cancellations proper where the protester’s price exceeded the government estimate by as little as 7.2 percent. See Building Maint. Specialists, Inc., B-186441, Sept. 10, 1976, 76-2 CPD ¶ 233 at 4. The record here provides a reasonable basis for the agency’s decision to cancel RFP 10-2501, a small business set-aside, and issue RFP 12-2501, which is essentially the same solicitation, on an unrestricted basis. As previously noted, prior to canceling RFP 10-2501 and withdrawing the set-aside, the agency first found, and the record confirms, that the three small business offerors’ prices were significantly higher than the IGE and the price proposed by Seaward. The agency next conducted a market survey to gain more information on which to base a determination of price reasonableness. The record further reflects that after confirming through the market survey that the prices offered by the small businesses were unreasonably high, the contracting officer engaged in multiple rounds of discussions in an attempt to get the small business offerors to lower their prices to a point that they could be determined fair and reasonable. It was only after this lengthy and relatively involved process that MSC, with the concurrence of SBA, ultimately determined that an award could not be made to any of the small business offerors under RFP 10-2501 because their prices were not fair and reasonable. Although the protester clearly disagrees with the agency’s determination, that disagreement does not provide a basis on which to find the agency’s determination unreasonable.

     

  14. 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.

  15. Speaking of FPDS, the GAO likes it, sufficiently:

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    To identify trends in defense and civilian agencies’ contract spending, we analyzed obligation data from the archive files of the Federal Procurement Data System-Next Generation (FPDS-NG)—the government’s procurement database—for fiscal years 2011 through 2015.3 We assessed the reliability of FPDS-NG data by (1) performing electronic testing of selected data elements, and (2) reviewing existing information about the FPDS-NG system and the data it produces. We determined that the FPDS-NG data were sufficiently reliable for our purposes.

    http://www.gao.gov/assets/690/683273.pdf

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