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metteec

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  1. Thanks for following up, Don. Very interesting case. GAO held that: “In sum, while the agency has significant discretion to tailor the procedures that it will use in placing delivery orders, it does not have discretion to use instruments that do not satisfy the requirements of FAR § 16.505(a)(7). The FBI’s contemplated award of a 5-year second-tier IDIQ instrument to a single contractor is inconsistent with the requirements of the applicable statutes and FAR provisions regarding what constitutes a “delivery order.” Those requirements are, at a minimum, that the delivery order be defined as to quantity, place of delivery and schedule. In essence, the two orders contemplated under these RFPs will deprive all the other TacCom contractors of a fair opportunity to compete for each of the delivery orders that will be issued in the future, despite their aggregate value of approximately $335 million. We therefore sustain this aspect of Harris’s protest.” Based upon GAO's broad interpretation, it would appear that an agency could run a risk of a protest if it attempted to issue a Delivery Order with FAR Clause 52.217-6, Option for Increased Quantity, if it did not either identify quantity, place of delivery, or schedule.
  2. Vern, that is scary. Prior to CICA, there were 15 relatively vague exemptions that agencies could use to justify non-competitive negotiated procedures through a D&F. By 1980, approximately 80-percent of all contract actions were awarded using negotiated procedures rather than competitive procedures (Perlman, "Guarding the Government's Coffers: The Need for Competition Requirements to Safeguard Federal Government Procurement," Fordham Law Review 75, no. 6 [2007]). Out of those hundreds of thousands of procurements, I wonder how much time and money the government spent writing those D&Fs and getting them approved?
  3. I thought it was interesting that the FAR did not always have Subpart 1.7, Determination and Findings. When OFPP first issued the FAR in 1983, Part 1 only went to Subpart 1.6. The FAR did not include Subpart 1.7 until 1985. I am assuming that the reason for the change was because of the disparity in how agencies were documenting their determinations. I wish acquisition.gov included FACs going back before 1995. When I first started as a contract specialist long ago, I thought that most of the terms were common sense, but a determination and findings always seemed like a verbose way to ask the CO to document his or her decision. From my research, I have not seen the term D&F used outside of state and federal acquisition.
  4. Desparado, do you think that GAO would sustain a protest where the agency awarded a Task Order with unit prices higher than the GSA FSS contract price? Do you consider the GSA FSS contract's scope to include the prices on the contract? Under Tarheel Specialties, Inc., GAO held: "Where an agency announces its intention to order from an existing FSS contractor, all items quoted and ordered are required to be within the scope of the vendor's FSS contract" (Tarheel Specialties, Inc., B‑298197.2, July 17, 2006). Personally, I consider the rate of those fixed price labor line items as one element that constitutes the scope of a contract.
  5. You did not identify the nature of the performance issues or the severity of those issues. Those factors could make a distinction in determining the direction the agency should take to address performance issues. There are many plausible instances where the agency could extend a contract despite performance being less than favorable. For example: - The Contractor is the only source for the supplies/services; - The agency believes it is possible for the contractor to improve performance; or - Onboarding a new contractor would be more costly in terms of time/money. The agency needs to determine whether the severity of the "unfavorable performance" and the potential for the contractor to correct its performance issues justifies the expense of exercising the option. You may be able to use this additional work as leverage to negotiate a mechanism that promotes positive performance. For example, some or all of the work could be reclassified to a CPAF to incentivize the contractor to better meet the agency's needs. Alternatively, you could talk to the contractor and tell them that the agency is hesitant to extend the contract because of unfavorable performance, and ask them to propose a plan to improve performance at no cost to the agency.
  6. Vern, you are correct that there could be circumstances where a SSJ would not be required for a specification that identified a brand name. For example, if FAR Provision 52.211-6, Brand Name or Equal, was included and the specification identified the item as a brand name or equivalent. Alternatively, the specification could identify brand name(s), but not restrict to that particular brand, such as in the case of Veterans Contracting Group, Inc., B-405940, January 12, 2012. In that case, the agency identified several brand name products that "may" meet the requirement, but the agency improperly rejected a bid that proposed a different brand. GAO held that use of "may" did not imply that bidders must only propose those brand name products. However, restricting a specification to a single brand name can lead to trouble when you do not have a brand name justification. GAO has sustained protests where the construction specifications required a brand name, even when the agency instructions allowed alternatives. For example, in C. Lawrence Construction Company, Inc., GAO held that even though the agency's Instructions to Bidders section allowed Vendors to propose alternative brand products by seeking pre-approval by the agency, the restriction in the specification created an ambiguity that made bidders think the requirement was a brand name requirement. In this particular decision, the brand name specification was a very small part of the overall construction project. I cannot think of any example where you would want to include a brand name in specification unless you 1) were specifying a brand name or equal; or 2) you had a justification to limit competition and were restricting to a particular brand.
  7. Q: Does the FAR require a brand name justification when a project requires an expansion of an existing brand name security system? A: Yes, if you specify the Contractor can use brand name products for the expansion. "Where a single source is identified to provide a portion of a purchase because that portion of the purchase specifies a particular brand-name item, the [sole source justification] only applies to the portion of the purchase requiring the brand name" (FAR 13.106-1(B )(ii)). ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Q: Since none of the contractors protested the use of the brand name in the specifications, does this in any manner waive the liability assuming the regulatory sole source justification was required prior to issuing the solicitation? A: No, the agency must comply with federal law and regulations. Vendors participating during the solicitation may have lost the right to protest depending on whether the solicitation closed. Vendors that never saw the solicitation could protest within 10 calendar days of when they should have discovered the violation of law. "Protests based on alleged apparent improprieties in a solicitation shall be filed before bid opening or the closing date for receipt of proposals. In all other cases, protests shall be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier" (FAR 33.103(e)). ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Q: Does the fact that the brand name justification entitled the contractor to an equitable adjustment to the contract since it claimed that it only bid the expansion at a cost of $20,000 and has now found the cost from the brand name contractor to be in excess of $100,000? A: As Ji mentioned, you have not provided all of the information necessary to make this determination. In addition to the information that Ji mentioned, I would want to know if the Contractor's proposal was included in the contract, and what it said concerning the expansion.
  8. Hi Help - thanks for the interesting perspective. I guess you could equate it the government asking for half of a Snickers bar - the Mars does not sell a half of a bar, and have to find someone that buys a whole bar and split it with you, or you enter into a contract with Mars to make a half size. I inferred that you think the half Snickers bar might not be a commercial item. Could you consider it a modified commercial item because of the difference in size? Another potential solution I thought of (without knowing what is being purchased) is that another agency may purchase the commercial item. It may be possible to work with them to create an interagency agreement to have them supply the smaller than normal quantity.
  9. Step A: Determine if you have a contract: Did the Contractor accept the order through substantial performance or returning a signed copy of your Purchase Order? If not, it may not have accepted the order, and you will have no basis for a termination for cause. If yes, you have a contract, and consider whether a termination for cause is appropriate and take action. It is crazy to throw money at a company that has already demonstrated it not responsible to perform. Remember, in order to sign a contract, you need to determine the price to be fair and reasonable and that the Contractor is responsible. I think you will be hard pressed to make either determination in this scenario. Else, if no, cancel the order. Step B: Determine if your "urgent" need is truly urgent, see FAR 13.106-1(b )(1). If yes, document your sole source justification and consider one of the other Vendors that expressed interest and try to come to some sort of equitable arrangement. Else, if no, issue a new solicitation. Step C: If you issue a new solicitation, consider the issues you have experienced thus far. Maybe the issue is not just that you are competing with others to get this commercial supply or service, but that you have poorly described the work. Maybe the work cannot be described in a manner where a FFP makes sense? Could the combination of high performance risk associated with a FFP and the increased demand in the marketplace result in little Vendor interest? You could try to contact some of the Vendors in the marketplace and ask them why they did not submit a quote and ask what the best way is for you to get what you need quickly.
  10. Ji, I understand the point you made, but it is nigh the time to be reclassifying our FAR 16 acquisitions from "solicitations" (or RFQ or RFTOP, or whatever) to "notices of intent to make purchase." It is so much easier to type one word or a short acronym to describe our purchases. Your NIMP change would result in millions of dollars in lost productivity. All kidding aside, if your statement that “[t]he FAR drafters could have used the word 'solicitation,' … but they didn’t,” is true, why is “solicitation” mentioned just centimeters away under FAR Section 16.505(b )(1)((ii)(D )? Did those FAR drafters envision both a “notice of intent to make purchase” and a “solicitation” for each acquisition? I know we rarely see this, but could it instead have been a sloppy FAR writing where “notice of intent to make purchase” and “solicitation” are one in the same?
  11. Under an FFP LOE contract, the Contractor must "provide a specified level of effort, over a stated period of time, for work that can be described in only general terms" (FAR 16.207-1). I have used FFP LOE contracts for service contracts that involve the deliverable of a supply, such as a final report. I typically use monthly interim payments that are a fixed amount, then include a clause that allows for the agency to unilaterally adjust the price if the LOE is less than agreed. If the Contractor is supposed to provide a LOE of 1,920 hours a year, but the actual effort was 1,840 hours because the Contractor's personnel took a 2-week vacation, it cannot then invoice that it performed the entire LOE. Absent language to the contrary in the contract, the Contractor would need to either: Provide a new employee to perform during that 80 hours; Request that the agency increase the time to perform; or Request a downward adjustment to the contract for the reduction in LOE. Hope that helps.
  12. The first place I would look would be the contract and what it says about acceptance. If your contract does not say anything about it, then look towards the contract clauses that should be listed by reference. For example, FAR Clause 52.212-4 (a), which is required for every commercial item clause, states that acceptance occurs after delivery unless otherwise stated in the contract. Alternate 1 of that clause states that acceptance is 60 days after work is performed on a time-and-materials contract.
  13. The Government in this situation could have definitely provided a clearer pricing structure; it would have been simpler if they had just two items (one for the audits and another for reimbursement of travel). However, based solely upon the provided information, I think that there are no grounds for a protest. I cannot see how the pricing structure disadvantages any Vendor, and they clarified your question about profit. If I were in the situation, and absent any specific instructions in the RFP, I would provide a price for Line Item 1 along with a breakdown for the level of effort (labor category, number of hours, your GSA FSS labor rate, and your discounted price to the agency) and ODCs estimated. Then I would price Line Item 2 as 30-percent of Line Item 1, and state that you estimated your overhead as 30-percent of your direct costs, which is in-line with the Government's estimate.
  14. Someone once said, "A person who would spend a lot of time fretting over what to put in block 13 of SF 30 or posting a question about it at Wifcon should not be given anything else to think about. It would overload their circuits." Back to the original topic, I cannot think of any reason why an agency should not include FAR Clause 52.242-17 when not otherwise prohibited. I have never understood why MAC Servicing Agencies have not included this clause in their contracts; it would probably save agencies money and time not litigating government delays.
  15. From a legal perspective, I am in agreement with Retreadfed's assessment that the ship has sailed to dispute the T4D. However, from an ethical perspective, I am having a difficult time with that action. Originally, lbrob1 stated: From this statement, I inferred that the agency possibly erred in rejecting the Contractor's first article. This improper rejection might have influenced the Contractor's capability to perform on the remainder of the contract. While many of the details in this case are obfuscated, the Government might have set the Contractor up for failure, and ultimately the T4D. lbrob1's agency is within its rights to do absolutely nothing with the T4D. However, if I was in the situation, and knowing that the agency might have contributed to the Contractor's failure, I would offer the Contractor the option to convert the T4D to a termination for convenience with a no cost settlement agreement. TheT4C with a no cost settlement agreement would allow the Contractor to improve its business process while also eliminating any further hassle and cost of involving agency staff to defend against the Contractor's claims. A T4D has a devastating effect on a business. A T4D stays on the Contractor's record for up to six years and could prevent it from seeking future business. The Contractor has employees which rely on the Government's business for their livelihoods. Those employees are taxpayers. Even if I knew I could get away with it, I would prefer not to have the weight of those employees' future on my conscience if I knew that the Government was contributory to the Contractor's failure.
  16. Carl, thanks for the link. I just provided it to my staff. However, I think there are some sneaky contracting people playing that scatter game. The high score is 10.1 seconds from the same person ten times in a row.
  17. Hi Vern, can you elaborate on the definition that you provided? I would have thought you were describing a strength. An evaluation factor is a metric or standard to which the source selection authority compares the offer's "attributes... that contributes value to the government from their presence or absence" in a risk-based analysis.
  18. An evaluation factor is any material consideration that the source selection authority weighs when making his or her award decision. GAO has routinely held that price is an evaluation factor that agencies must consider for every evaluation, including commercial items purchased. See Cyberdata Technologies, Inc., B-406692 (Aug. 8, 2012) where GSA attempted to award a BPA without considering a Vendor's price in its best value trade off determination. GAO held "under the FAR, price is the one factor that, at a minimum, must always be considered when determining best value for purposes of establishing a BPA under the FSS ... we have previously held that a best value analysis necessarily encompasses consideration of an offerors price or cost since, to be meaningful, a best value determination requires a weighing of the value and benefits associated with a firms approach against their associated cost to the government. Ultimately, GAO sustained the protest because "the agency's elimination of technically acceptable quotations, such as Cyberdatas, without consideration of their price, was inconsistent with the requirement that price be considered in a best value analysis. Price and quality have historically been the two required evaluation factors. As a bit of trivia, in 1781, the Contental Congress appointed Robert Morris as the U.S. Army's first superintendent of finances. Morris took a radical approach to acquire revolutionary supplies. He publicized notices in newspapers seeking sources for food, clothing, and munitions at the most favorable price and meeting a certain quality. Morris called this the "cheapest, most certain, and consequently the best mode of obtaining those articles which are necessary." By today's standard, this was our modern day LPTA. For contrast, in 1793, in a British army contract, Mr. Merry, the Chief Examiner of Army Accounts, was awarded the contract to supply coal to the Gibralter Garrison because of his close relationship with the king (Knight, Sustaining the Fleet, 1793-1815: War, the British Navy and the Contractor State). Thank goodness that price is a mandatory evaluation factor.
  19. Considering the title of FAR 13.004 referring specifically to quotations, is it possible that this section does not apply to simplified acquisitions involving RFPs and receipt of offers? If it is not applicable, couldn't a unilateral purchase order be synonymous with a contract issued unilaterally (unilateral contract is the term that Don used)?
  20. Agreed. Thanks for posting the scenario, Deaner. It is an important subject and hopefully others that read the forums can use discussion to make the best decision possible.
  21. To Don's point, FAR 13.003(g)(2) specifies that: "Authorized individuals shall make purchases in the simplified manner that is most suitable, efficient, and economical based on the circumstances of each acquisition. For acquisitions not expected to exceed... $6.5 million ($12 million for acquisitions as described in 13.500(e)), for commercial items, use any appropriate combination of the procedures in Parts 12, 13, 14, and 15..." The Contracting Officer could use FAR Part 15 procedures to develop an RFP using FAR 13. The offerors' response to that FAR 13 RFP would be tantamount to an offer that the could be accepted through issuance of a unilateral Purchase Order. Therefore, it is possible to have a unilateral Purchase Order that becomes a contract without performance.
  22. Some people indicated the Contractor would be obligated to perform based upon the contract terms and conditions and that a modification providing an adjustment would be tantamount to a gift. Commercial items exceeding the SAT shall be issued using the SF-1449 except in certain instances (FAR 12.204). Block 29 on the SF-1449 states: AWARD OF CONTRACT: REF. OFFER ____________ DATED ____________. YOUR OFFER ON SOLICITATION (BLOCK 5), INCLUDING ANY ADDITIONS OR CHANGES WHICH ARE SET FORTH HEREIN, IS ACCEPTED AS TO ITEMS: ___________ Would it change anyone opinion for whether the agency could force the Contractor to perform without any consideration of the quotation if the CO included the Contractor's quotation number in Block 29 and indicated acceptance of all items? Would it make a difference if the statement identifying allowability of cost was an attachment?
  23. This is great advice here. I should have stated my opinion more tactfully to show respect towards you and Carl as professionals. Sometimes I let my fingers type quicker than I think, but maybe we are both guilty of this? Your implication about not knowing “the basics” does nothing to further your argument; it was a meaningless barb that you added to attack someone that you had a disagreement. While I can take it, I have not been your only target in this thread and others, but thankfully you edited those posts. However, it may be off-putting to others. Acquisition is important but esoteric area of discussion – people that frequent this forum do so because they care about the subject and want to expand their knowledge. I think professionalism and respect are essential in promoting that environment. With that said… Vern, where I am getting confused with your argument is that on the one hand, a FFUP is a pricing arrangement, but on the other, when described within this thread it has manifested into something more. Post #42 states that “the strongest leg of [your] argument… is FAR 16.102(b ), which lets a CO use any contract pricing arrangement described in the FAR.” However, FAR 16.102(b ) actually states: “Contracts negotiated under Part 15 may be of any type or combination of types that will promote the Government’s interest, except as restricted in this part (see 10 U.S.C. 2306(a) and 41 U.S.C. 3901). Contract types not described in this regulation shall not be used except as a deviation under Subpart 1.4.” I cannot see the term “pricing arrangement” in FAR 16.102(b ). Instead, I see contract type, which is a categorization of risk that takes both price and quantity into consideration. If you take a FFUP pricing arrangement, you can include an estimated quantity, then add a VEQ clause to create a FFP contract pursuant to FAR 16.202. The contract type name that I like today is a FFP Estimated Quantity contract. Regardless, FAR 16.102(b ) provides you with authority to use a FFP contract type, but makes no mention about FFUP. In Post #35, you stated you can use a FFUP in any contract because of the wording of the prohibition in FAR 16.102(b ) – “regulation” instead of “this part.” Per your argument, since FAR 36.207 which allows lump sum and FFUP pricing arrangements, is part of the “regulation,” it is allowable. However, FAR 36.000, Scope, specifies that this part of the FAR applies to contracts for construction and architect-engineer services (and certain other contracts). By that logic, FAR 36.207 is also only applicable to those specific areas, and not applicable for those services that do not fall within the confines of those requirements. Therefore, if FAR 36.207 is not applicable to a services acquisition, it cannot rest as the sole authority to use a FFUP (or Lump Sum) pricing arrangement. I believe that the authority for a Contracting Officer to enter into a FFUP pricing arrangement rests with the delegation of authority provided in his or her warrant by operation of law. See FAR 1.601(a ): “Unless specifically prohibited by another provision of law, authority and responsibility to contract for authorized supplies and services are vested in the agency head. The agency head may establish contracting activities and delegate broad authority to manage the agency’s contracting functions to heads of such contracting activities.” Agency heads delegate many of those authorities to the Contracting Officer, including the authority of executive discretion. Executive discretion is a powerful and longstanding legal doctrine. FAR 16.102(b ) and FAR 36.207 could be removed from the FAR tomorrow, and Contracting Officers could still use FFUP pricing arrangements. Because no rule exists that expressly prohibits a FFUP pricing arrangement, the Contracting Officer is committed to agency discretion by law. The Contracting Officer may exercise that executive discretion provided his or her decision is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In conclusion, FAR 16.102(b ) is irrelevant to the discussion of whether a FFUP pricing arrangement is allowable because it discusses contract type, and FFUP is not a contract type. Furthermore, FAR 36.207 is also not applicable, as it applies to construction and other specific contracts. Instead, the authority to use a FFUP pricing arrangement is deeply rooted in law. The FAR does not prescribe any limitations on using a FFUP pricing arrangement. Consequently, absent of a specific legal or regulatory limitation, a FFUP pricing arrangement is allowable from the principal of executive discretion. I may have created additional confusion when I brought up the topic of IDIQ contracts. The point which I did not clearly make was that an IDIQ contract and a FFP Estimated Quantity Contract have similarities. In some cases, those similarities may be so significant that the only difference is the inclusion/absence of certain clauses. With limitations on single-award contracts included for certain types of advisory and assistance IDIQ contracts, a FFP Estimated Quantity contract may provide an alternative approach to acquire those services.
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