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I am working on a new A-E IDIQ award with a base year and 4 one-year option periods with a not to exceed amount over the TINA threshold of $750,000. The process has been on-going for over two years primarily because the Pre Price Negotiation Memorandum (PPNM) has not passed business clearance even though it has been rewritten and submitted several times. The #1 most highly qualified firm is a large business and even though the cost and pricing data was submitted, this contracting office (with several Level II certified specialists) does not have on-the-job experience with what to do with it (online courses and in-resident classes taken years ago do not equate to real knowledge) and how to extrapolate the information needed. The people reviewing the Business clearance have not approved the PPNM written for the 1st firm and have recommended we proceed to the 2nd most highly qualified firm ‘since the first choice refuses to negotiate.’ The chief of the contracting office has instructed us to follow that recommendation. I pointed out that 1) the 1st firm very much wants to negotiate and is in constant communication asking if any other information is required from them; 2) that if the government terminates efforts with the 1st firm they will very likely file a protest and 3) furthermore we will run into the same difficulties in trying to get the PPNM for the 2nd firm approved through the business clearance process since no real knowledge has been gained through this 2 year process in the evaluation of cost and pricing data. FAR 36.606 (A-E Negotiations) (a) says negotiations are conducted in accordance with FAR Part 15 beginning with the most preferred firm and paragraph (f) says “if a mutually satisfactory contract cannot be negotiated, the contracting officer shall obtain a written final proposal revision from the firm, and notify the firm that negotiations have been terminated.” My question is - can the government terminate efforts with the #1 firm if actual, come-to-the-table negotiations have not be attempted? If not, what do I tell the chief and if so, what do I tell the contractor?
Would love some input here from any knowledgeable folks about this. If an agency intends to issue a single solicitation for multiple A-E services IDIQ contracts, is that a "multiple award" as defined under FAR 16.505 and does the fair opportunity process apply at the task order level? FAR 16.5 exempts AE IDC's from the statutory multiple award preference, I get that. And the Brooks A-E Act as implemented by FAR 36.6 applies, i get that too. But by logic, if one solicitation results in multiple IDC's it seems that's a "multiple award" situation. And as for Fair Opportunity, I'd think the most appropriate COA would be to articulate in the synopsis how the agency will provide fair opportunity at the task order level by selecting the best A-E for each particulat task order SOW (using competency/qualifications criteria not price). In my experience this issue is consistently something that is discussed inconclusively, since, to me at least, the FAR is a bit convoluted on the topic. The DFARS used to have instruction under citation 216.505-70 (it was ¶(a)(4) I believe) that specificially exempted A-E contracts from fair opportunity under the IDIQ ordering process--however sometime in 2012 or 2013 that content was removed. The USACE's Architect-Engineering Contracting Guide (EP 715-1-7), which was updated in 2012 states at page 4-9 that the Contracting Officer must document the file as to why a particular contractor is selected. Although that's not policy that applies to any non-USACE contracting agencies, they are considered to be one of the premiere A-E contracting agencies across the federal Government. The EP also provides a standard synopsis template (appendix O) that states verbatim, "If multiple IDCs, state method to be used to allocate task orders among contracts when two or more IDCs contain the same or similar scopes of work such that a particular task order might be awarded under more than one IDC. See FAR 16.505 for guidance." Anyone have any experience with this issue?
I have a scenario where in an A-E source selection a CO is unable to negotiate a mutually satisfactory contract with the most highly qualified firm because the offered price is not considered fair and reasonable. This is based upon an analysis between the government cost estimate and the contractor’s proposed price. Engineering stands by their estimate. Discussions with the most qualified firm are terminated in accordance with FAR 36.606(f). Upon requesting a proposal and conducting discussions with the next highest qualified firm the overall price is only ever so slightly better. This additional price proposal being so close to the first seems to indicate the government cost estimate is not in line with market pricing for the service. Based on the price of the second firm there is now a basis to question the accuracy of the government cost estimate and the CO now has information to support a determination of price fair and reasonable that was not available during discussions with the highest rated firm. Is it appropriate to go back to the highest rated firm since their price could now be considered fair and reasonable? I did some research on Westlaw and could not find any such cases so far that discuss this scenario. I do not think going back to the highest rated firm would be appropriate since those discussions were terminated on a reasonable basis (comparison to the government estimate). Only through obtaining a proposal from the next highest rated firm did it become apparent the government estimate did not accurately reflect the market price. Now the CO has a reasonable basis to conclude the price of the second firm (albeit just slightly better than the highest rated firm) is fair and reasonable. Even if the price of the second firm were slightly higher, I don’t think it would be appropriate to conduct additional discussions with the highest rated firm. I did find policy from another Federal agency that stated negotiations could not be conducted a firm that negotiations have been terminated with, even if the second highest rated firms pricing is higher. However, that policy did not cite any reference for that position. I’m interested if others agree that this is appropriate course of action or not.
Outside of an acquisition following Brooks Act procedures (40 U.S.C. 1101-1104), is there a permissible method for contracting for service contractors to perform on-site engineering reviews, construction phase inspections, preparation &/or review of As-Built drawings, or similar services? I view these items as “services of an architectural or engineering nature, or incidental services, that members of the architectural and engineering professions (and individuals in their employ) may logically or justifiably perform, including studies, investigations, surveying and mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals, and other related services." FAR 2.101; 40 U.S.C 1102(2)(C ). Accordingly, it is my position that they must be procured by qualifications based selection under the Brooks Act, FAR 36.602-1 and applicable agency FAR supplements. That said, I’ve noted some single award Indefinite-Delivery/Indefinite-Quantity Contracts (IDIQs) for services (that it has been suggested I use) where “engineering technicians” and “design & construction project managers” are acquired for in-house/on-site support via IDIQ Task Orders. On making inquiries with the PCOs for these contracts, they have acknowledged to me that their IDIQs were either competed under FAR 15, or were direct awards under the 8(a) program. Under both scenarios, I am also of the understanding that specific selection criteria from FAR 36.6 were not utilized, even in the case of the FAR 15 procurement’s tradeoff analysis. Additionally, if engineering related services are acquired to provide on-site government support (but not through the statutory authorization of the Brooks Act), does the government convert an otherwise authorized service acquisition into a contract for personal services under FAR 37.104? Any thoughts would be appreciated.