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Everything posted by metteec

  1. From my experience, the FSSI contracts have saved from 10 to 15 percent from already competed prices. Further, the process for ordering was relatively straightforward. They are like shake and bake mashed potatoes. Much to the chagrin of contract specialists of old, I see the simplistic ordering procedures of FSSI as a glimpse into the future of acquisition. Once GSA expands these FSSI contracts to other arenas (software, computers, periodicals, furniture, information security, audit services, groundskeeping/janitorial services, data analytics, etc.), agencies will be able to save time and money, and minimize the continual training and workforce competency issues discussed so often in this forum. If you cannot provide the robust training and professional knowledge to the acquisition workforce, make the job easier.
  2. Thanks for the link, H2H. Sounds like an interesting read.
  3. Interesting observation, Bob. The FAR Council must not be a fan of Valentine's Day, however.
  4. I think they could start by removing all of those blank "Reserved" sections. Either that, or put some motivational cat pictures there for inspiration. I have already started with FAR Part 20! I agree that a full FAR rewrite is probably not the best choice. The advantage of our current acquisition system is that we have years of contract case law on significant acquisition principles. I do not think it is fair to say that every part of the FAR is poorly written and requires an overhaul. Moreover, when training is already an issue currently, can you imagine having to reeducate the entire acquisition workforce on the new FAR? If anything, the FAR should be expanded. I would remove very little of the FAR. FAR Part 39 seems to receive a lot of hate, but I do not think removal is the answer. A huge gap in this part are the Government's policies and standards for cloud-based services. Lack of standardized data rights, privacy, and security protections for cloud-based services have already cost the taxpayer millions in disputes, and limitation of liability with data breaches will cost us even more. I think what the FAR is lacking is its ability to connect readers to relevant content. When I do research in the FAR, I need to supplement it by looking at other sources, including case law, OMB directives, agency-specific policies/guidance, etc. It would be far more helpful if you kept the FAR as is (or made minor changes), but linked relevant information to assist Contracting Officers in the decision-making process. For example: - Certain words could allow you to highlight over to have their definition identified; - Areas where the FAR was changed would be clearly identified. Users can mouse-over the paragraph or word that was changed, and the left-hand side would show the FAC Update that made the change; when the change was made; and links to the previous version; - If case law refers to a specific paragraph of the FAR, clicking on that section will show relevant parts of the case law. The user can click on that relevant paragraph to link to the decision; - Requirements that require a written document (i.e. determination and findings) can be selected to show samples of those documents; - Agency specific requirements, such as supplemental SBA guidance or GSA FSS policies, can be accessed by clicking on the relevant FAR Subpart. For example, if GSA has specific guidance for a particular requirement in FAR Subpart 8.4, I can click on it and it will take me the relevant information; and - Include a search function that actually works. You could get a group of Contracting Officers together from different agencies and think of additional ways to improve the FAR without actually making any regulatory changes. Improving the FAR through interactivity would be far cheaper than going through the regulatory process.
  5. There is no exception to the waiver process to the non-manufacturer rule based upon specific software OEMs. Some agencies may be successful in seeking individual waivers for specific software brands. The intent of the non-manufacturer waiver is to prevent a large business from rebranding its products/services as a small business to compete with other small businesses. If you have a brand name justification stating that only a certain large business-manufactured IT product can meet the needs of the Government, and a non-manufacturer waiver does not exist, then a small business set-aside is not appropriate. An alternative would be to work with your SBA representative to establish an individual waiver to the non-manufacturer rule and set-aside a class of acquisitions exclusively to small business concerns (see FAR Section 19.503). As I mentioned in Post #10, there is a way to circumvent the non-manufacturer rule for IT products, and still conduct your acquisition as a small business set-aside. NASA SEWP set-aside contracts are a great source for Cisco hardware and software. In the case of a small business set-aside GWAC, a non-manufacturer waiver is not required by the ordering contracting office provided the fair opportunity requirements are met.
  6. I agree with you that the order of precedence stated in the attachment vis-a-vis FAR Clause 52.212-4 conflicting and is ambiguous. The agency would need to have a deviation to FAR Clause 52.212-4 or state the revised order of precedent is a standard commercial practice per FAR Section 12.302 or seek a waiver. However, the ambiguity here is a patent ambiguity and the Offeror has a duty to inquire. By failing to inquire, the contractor forfeits the opportunity to rely on its unilateral, uninformed interpretation and bears the risk of misinterpretation, Triax Pac., Inc. v. West, 130 F.3d 1469 (Fed. Cir. 1997); Nielsen-Dillingham Builders, J.V. v. United States, 43 Fed. Cl. 5 (1999). Further, if the Offeror responds to the BPA solicitation and agrees to the terms in its proposal, it could be considered that it accepted a negotiated agreement, thereby accepting the Government's interpretation of the agreement, Cray Research, Inc. v. United States, 44 Fed. Cl. 327 (1999). One possible solution to circumvent the issue is to include the order of precedence language as part of the schedule on the SF1449.
  7. DAMB, I do not believe that the Government's budgeted amount constitutes superior knowledge. To prevail on a claim for superior knowledge, a Contractor must show that: (1) it undertook to perform without vital knowledge of a fact that affects performance costs or direction; (2) the government was aware that the contractor had no knowledge of and had no reason to obtain such information; (3) any contract specification supplied misled the contractor or did not put it on notice to inquire; and (4) the government failed to provide the relevant information. AT&T Commcns, Inc. v. Perry, 296 F.3d 1307, 1312 (Fed. Cir. 2002); Resource Conservation Group, LLC v. United States, 96 Fed. Cl. 457, 466 (2011). If the Contractor thought that the work would take more money to complete than estimated by the agency, then it has a duty to inquire before submitting a proposal. An estimate is just that... an approximation for how much the work should cost. The budget amount reflects the amount committed in the government's coffers for the project.
  8. Southern Pipe & Supply Co, NASABCA No 570-7, 72-2 BCA ¶ 9512, NASABCA No 570-7, 73-2 BCA ¶ 10,118 That will be a quarter please.
  9. Yes, conduct market research, see FAR Subsection 19.202-2. You could issue an RFI and have that as one the questions that prospective HUBZone Offerors respond to. Alternatively, you could use the Small Business Dynamic Search Tool (http://dsbs.sba.gov/dsbs/search/dsp_dsbs.cfm) and find HUBZone small businesses and contact them directly. Based upon your market research, document your findings to the file and make your small business set-aside determination.
  10. If the solicitation specifies that the agency will conduct a tradeoff process, then the agency must conduct and document that tradeoff process, see FAR Subsection 15.305(a). I would then use the results of my tradeoff analysis to conduct negotiations with the three Offerors to get the best value for the agency. Though, in this scenario, there is a very low risk that you would get a protest for failing to conduct a tradeoff analysis. Next time, I would not quantify the number of multiple awards that you intend to make, or if you do, state that the Government intends to make awards to three different contractors, but reserves the right to award more or less if in its best interest.
  11. Summerlady is referring to conditional acceptance. Per FAR 46.407©: ©(1) In situations not covered by paragraph (b ) of this section, the contracting officer ordinarily must reject supplies or services when the nonconformance is critical or major or the supplies or services are otherwise incomplete. However, there may be circumstances (e.g., reasons of economy or urgency) when the contracting officer determines acceptance or conditional acceptance of supplies or services is in the best interest of the Government. The contracting officer must make this determination based upon— (i) Advice of the technical activity that the item is safe to use and will perform its intended purpose; (ii) Information regarding the nature and extent of the nonconformance or otherwise incomplete supplies or services; (iii) A request from the contractor for acceptance of the nonconforming or otherwise incomplete supplies or services (if feasible); (iv) A recommendation for acceptance, conditional acceptance, or rejection, with supporting rationale; and (v) The contract adjustment considered appropriate, including any adjustment offered by the contractor. With conditional acceptance, a contract modification is generally only required if the deficiencies involved critical or major nonconformances. See FAR 46.407(f): "When supplies or services are accepted with critical or major nonconformances as authorized in paragraph © of this section, the contracting officer must modify the contract to provide for an equitable price reduction or other consideration. In the case of conditional acceptance, amounts withheld from payments generally should be at least sufficient to cover the estimated cost and related profit to correct deficiencies and complete unfinished work. The contracting officer must document in the contract file the basis for the amounts withheld. For services, the contracting officer can consider identifying the value of the individual work requirements or tasks (subdivisions) that may be subject to price or fee reduction. This value may be used to determine an equitable adjustment for nonconforming services. However, when supplies or services involving minor nonconformances are accepted, the contract need not be modified unless it appears that the savings to the contractor in fabricating the nonconforming supplies or performing the nonconforming services will exceed the cost to the Government of processing the modification."
  12. There was a WIFCON thread a few years ago about this topic: http://www.wifcon.com/discussion/index.php?/topic/1584-basic-ordering-agreement-and-training/ The question that remained unanswered in that thread is whether outside training requirements through the SF182 process are exempt from the FAR. I have run into this issue and for training requests over the MPT, I have asked my HR office to have these requests completed through the normal contracting process. Generally, this has been a good thing because we have received significant discounts from the GSA schedule price through competition; we have been able to target small businesses; and all our training requirements are FFP so we can keep our high-risk contracting percentage down. My fear with the SF182 is that an HR person untrained in contracting would select the first contractor he or she found on their web search and pay the single student price advertised for all 30 students.
  13. I do not see why you could not have the vendor sign the non-disclosure agreement thing before performance/acceptance of the order. However, why not setup a BPA or IDIQ contract that includes those terms and conditions and allow oral orders using the GPC?
  14. I do not think that it would be an attempt to "game" the offerors if there was some basis for that estimate. As a standard practice, the Government should not be using its budget as its estimating tool. The Government Estimate and the Budget should be two distinct amounts; i.e., how much does the Government think the work will cost and how much money is available to spend, respectively? If you give away the latter, then it is likely you will pay what you have budgeted. If you give away the estimate, though, the price that you will pay will be between the estimate and the budget. In negotiation, this is called bracketing.
  15. If you were at a position to release your budget amount, would it not be prudent from a negotiating standpoint to publicize an estimate moderately less than your budget? Maybe 10-15-percent less, that way you have room to negotiate.
  16. It used to be a common practice to issue a formal amendment for Q&As. For better or worse, procurement tools are making it easier for COs to respond to questions without a formal amendment. For example, GSA e-Buy and NASA SEWP have attempted to simplify the Q&A process and encourage agencies to respond to questions without amending the solicitation. About a year ago, GSA "amended" its e-Buy system to allow agencies to "Respond to Questions" - it allows you to write in the responses to questions or attach a document, but does not consider those responses as an amendment to the solicitation. NASA SEWP's web portal features a similar option. SEWP added a feature several months ago that allows you to provide an extension to a Solicitation using the "Extend RFQ" button in response to a Vendor's request to extend; that button does not give you an option to attach an SF-30. Further, FedConnect also allows Vendors to submit questions, and agency's respond, through a mere text box. It is my impression that these procurement tools are attempting to make the Q&A process less formal and make it easier to ask and receive a response to those questions. I agree with the agency's procedural guidance; it provides CO with discretion for whether an amendment is needed. It seems like a waste of time to issue an SF-30 to respond to a single Vendor question about whether a routine supply requirement is a small business set-aside when the SF-1449 cover page has all the information they need in right-hand corner (probably the most common question my office receives). If I received several questions, with some resulting in a change to the solicitation terms, then a formal amendment is preferable.
  17. I keep a copy of the False Claims Act in my nightstand, next to the Bible and the FAR. Seriously though, the last time I read the whole thing was probably two years ago (it is only a couple of sections). I have also read Nash, Cibinic, and Nagle's Administration of Government Contracts which includes several pages that speak to it. I enjoy reading the FCA cases identified on Wifcon. The last big one I can think of was the CA qui tam case. Further, I have assisted agency IGs on two FCA cases brought on by the agency, both which were settled. I have not been involved in a qui tam lawsuit. Back to the topic, I said "incorrect quantities" because the Contractor was aware of the number of vehicles in the Government's inventory, and the number of kits requested exceeded the number of vehicles in that inventory. A reasonable person would have questioned why there was a difference. Not questioning shows either ignorance or moral ineptness. In order to receive payment, the Contractor's invoice would need to reference the contract line item number and description per FAR Clause 52.212-4. If the Contractor included that information, but actually installed less than the stated number of kits, then it would violate 31 U.S.C 3729(a)(1)(A). Based upon the contractor not notifying the Government of the apparent incorrect quantities, and then submitting an invoice when it installed less quantities, I think a judge would rule the contractor had the intent to make a fraudulent claim. I wish that I could give you a case law reference to prove my point but so many FCA cases are settled in the government's favor.
  18. Depending on how it is worded in the solicitation, I think that this could end up to be a False Claims issue. For example, the contract line item stated: 0001 - FFP: Install Kits into 450 vehicles - QTY: 1 LOT $400,000 Yet, the Contractor could only install kits into 350 vehicles because of the gross mistake. The Contractor knew or should have known at time of the order that the quantity was incorrect, but failed to notify the agency of the gross mistake. If the Contractor submitted an invoice for the entire $400,000, don't you think it would be a false claim because he did not meet the terms and conditions of the contract and knew that the quantity was incorrect?
  19. Would your answers be different if the solicitation had identified a specific quantity of vehicles, but the Contractor, in its role of maintaining those vehicles, knew or should have known that the quantity was grossly incorrect? Would then the Contractor have "a duty to seek clarification from the Government" of the patent ambiguity (Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007))?
  20. Thanks Don. I bequeath the analogy to you ;p
  21. In many cases, the provincial bishops limit the fee that can be charged for the celebration of Mass per Can. 1264 n2 (source: http://www.vatican.va/archive/ENG1104/__P4Q.HTM).%C2'> Based upon provincial bishops removing the fee, you could have an interesting situation in FedBid where you have multiple firms that propose $0 to perform the services. In my career, I have never drawn lots to select equally an equally low bidder per FAR Subsection 14.408-6. The FAR makes it seem like quite a party!
  22. First, let me say that the Federal Acquisition Institute (FAI), which provides training policy and direction for all non-DOD agencies, has 13 people in it. They do a tremendous job with the resources that they have. I cannot imagine what the acquisition workforce would look like without the hard work invested by FAI. I see three primary issues with the current state of training. Acquisition training in the Federal Government is like a zookeeper feeding all of the animals the same food; all the animals are fed, but most are malnourished. Second, as Don keenly stated, the “check the block” issue. Third, you may have heard of No Child Left Behind? Well, the state of acquisition training is No Contract Specialist Left Behind. If you ask any acquisition training institution and ask about the number of times someone has failed an acquisition-related course, they can count the number on one hand. With these three issues combined, you have an acquisition workforce that looks like rockstars on paper but is actually nominally trained. The solution to these issues is better training, not more. The amount of training is already a financial and productivity problem for some agencies. I do not know how some agencies are handling the “new” FCN 190, FAR Fundamentals , course. For those not familiar, this course is the Level 1 capstone that runs for four weeks straight, covering all parts of the FAR. When I say better, I mean: More relevant to the agency; More perspective; and More accountability. More Relevant: Training should consider the agency’s internal policies and procedures, and how those apply with existing regulatory requirements. Hands-on training should use a similar version of the agency’s Contract Writing System to assist in preparation of mock solicitations and contracts. If the agency does not purchase non-commercial items, then explaining the Uniform Contract Format and non-commercial item financing is irrelevant in a beginning acquisition training course. There are a few agencies that just do Federal Supply Schedule purchases. In those cases, training should be tailored to be relevant to the agency. More Perspective: Standard training is currently more instructional rather than informative (i.e. do this if the contract value is that), and fails in that it does not explain key acquisition principles. For example, your current class will teach you about FAR Part 6 and competition, but does not explain why we have FAR Part 6. I will never forget reading Lani Perlman’s “Guarding the Government’s Coffers” in the Fordham Law Review where prior to CICA, over 80-percent of contracts were non-competitively awarded through 15 broad exceptions. Too many Contract Specialists today act on what they were told to do, not because they understood the problem and used critical thinking to make a decision. More Accountability: The standards for passing an acquisition course are high, 80-percent. However, instructors will currently tell students where the test questions are as they are preparing for the test. Further, most tests are open book. The classes become a test of whose highlighter works best rather than learning and studying the information. I had an instructor tell me, “[company name] will rarely let me fail someone. People who fail are mostly the ones that do not show up.” Take away the open book tests, stop giving away the answers, and hold people that do not pass accountable. And accountability does not necessarily mean firing. Use the areas where the person failed as an opportunity to provide additional and focused on-the-job training.
  23. An alternative approach would be to use a Government-Wide Acquisition Contract like NASA SEWP or GSA Alliant and take advantage of their small business only contracts.
  24. Martin, to answer your original question, there are no self-performance requirements for nonmanufacturers if the software is manufactured by a small business. Otherwise, either more than 50-percent of the total value needs to be performed by a small business or the SBA provides a waiver to the non-manufacturer rule. See FAR 19.102(f)(2): FAR Section 19.102(f)(2) states: "(f) Any concern submitting a bid or offer in its own name... that proposes to furnish an end product it did not manufacture (a "nonmanufacturer"), is a small business if it has no more than 500 employees, and... (2) A concern which purchases items and packages them into a kit is considered to be a nonmanufacturer small business and can qualify as such for a given acquisition if it meets the size qualifications of a small nonmanufacturer for the acquisition, and if more than 50 percent of the total value of the kit and its contents is accounted for by items manufactured by small business." Note: FAR Clause 52.219-14, Limitations on Subcontracting, paragraph (b )(2) includes an exception for nonmanufacturers. SBA Size Standard Guidance concerning Footnote 18 that speaks to NAICS 541519 for IT VARs (with a size standard of 150 people) may have led to confusion. There is a formula for determining whether a firm falls within this NAICS code: If they provide "value-added services" between 15 to 49-percent" of the end-product (link: http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf). FAR 19.102 is based upon statute, whereas the SBA Size Standard is just guidance. The SBA Size Standard does not have the authority to override the nonmanufacturer rule. As for which NAICS code to use, I have seen COs use several codes for software (334614, 423430, 519130, 541519, and 551210). Take a look at those NAICS codes and pick the one you think fits the best. I have always classified software as you described as a supply.
  25. I hope they include all of the correct commercial item clauses or it will be quite a holy contract. Thankfully, the Christian doctrine applies!
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