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1) Assume that FAR 52.244-5, Competition in Subcontracting, is (will be) included in an upcoming GSA IDIQ Phase III SBIR contract, awarded to our small business, against which multiple Task Orders will be awarded. The Phase III SBIR itself is not competed; the “competition” is considered to have occurred in Phases I and II. Similarly, TOs awarded under the Ph III SBIR IDIQ are not competed; as they are customer – not SBIR – funded. TO awards are made subject to Alpha Contracting rules, which allows for detailed negotiations with the end customer and GSA on scope, price, and technical approach prior to award. (The use of Alpha contracting may or may not matter to the questions below.) 2) Assume further that our company’s intent is to establish a Contractor Purchasing System that would fulfill the requirements of DFARS 252.244-7000 et seq., and that this clause will be included either at the IDIQ level or for each TO. We have neither an objection nor an impediment to implementing a purchasing system that would be compliant and pass a review, but we’re only now growing to the point where we need one. And so we now have to understand the work required. 3) In the WIFCON post Teaming Agreements and the FAR (https://www.wifcon.com/discussion/index.php?/topic/682-teaming-agreements-and-the-far) Vern Edwards makes a point about the difference between “practical” and “practicable,” with respect to competing sub-contracts. (a) It’s hard to discern a meaningful difference in definitions from Merriam-Webster.com. Some drill-downs into the difference are made at: (i) Gramarist: “Think of practical as a synonym of useful, and practicable as a synonym of doable and feasible," and (ii) Vocabulary.com: “Do you mean to say that a thing is sensible? Choose practical. Do you want to say it is possible? Choose practicable.” However: (b) DFARS 244.305-71, Contract clause, indicates that both DFARS 252.244-7001, Contractor Purchasing System Administration, and FAR 52.244-5, Competition in Subcontracting, should be used in tandem (“Use the Contractor Purchasing System Administration basic clause … (a) … 252.244-7001 , Contractor Purchasing System Administration—Basic, in solicitations and contracts containing the clause at FAR 52.244-2, Subcontracts”). And each uses a different word: (i) DFARS 252.244-7001 (c) (7) indicates that a Contractor’s Purchasing System “Use competitive sourcing to the maximum extent practicable…” [“doable” or “possible,” according to the distinctions above] (ii) while FAR 52.244-5, Competition in Subcontracting, requires subcontractors (and suppliers) to be selected “on a competitive basis to the maximum practical extent.” [“useful” or “sensible,” again according to the distinctions above]. 4) So here’s my first set of questions: Though there might be a difference in meaning, is there really a difference in intent? Especially when these clauses are to be used in tandem? If so, what would that difference be? And most importantly, can anyone discern what the intent of the paired clauses would be? (Possible? Or sensible?) 5) And then the second set: Does (could) the Alpha contracting process play a role in fulfilling either the practical or practicable competitive sourcing / competitive basis requirement(s)? If we identify subcontractors and suppliers in our pre-award discussions, and then include those in our technical and/or price proposals, and those proposals are incorporated into the subsequent Task Orders, does that not fulfill the intent of either or both DFARS 252.244-7001 or FAR 52.244-5? (Not very SBIR-like, but if we propose to paint your hallways using Sherwin-Williams paint, do we have to still go out and get quotes from Benjamin Moore, Behr, and Valspar? If we propose to set up your cloud using Amazon Web Services, then after award do we also have to get a quote for Microsoft Azure? If Dell is my teaming partner – not via a CTA, but having set up a Teaming Agreement with them to target an opportunity with a prospective client who would fund a TO award – then do I need to get quotes for IBM and HP hardware?) Thanks in advance for any help. I have to admit to being a lurker on this forum for years, and those of you who've sustained these discussions and provided your insights and guidance have been wonderful mentors and teachers - thanks!! -
Scenario – a small business has an SBIR contract. One of its subcontractors is a large business. The SBIR data rights clause (DFARS 252.227-7018) is in the prime contract. The clause grants SBIR data rights to all technical data developed under the contract (essentially equivalent to limited rights). The clause (at (k)(2)) says that it is to be inserted in all subcontracts without alteration except to identify the parties. It also says that no other clause shall be used to enlarge or diminish the rights of the government, or the contractor in any subcontractor's technical data. The question – can the large business assert SBIR data rights in any data it has to deliver, thus getting the same 20-year protection as the SBIR prime? On the one hand, the clause does not limit its application to only small business subcontractors. If it goes in the subcontract without alteration, as (k)(2) says, then the large sub can deliver any data it develops with SBIR data rights. Also, SBA materials on its SBIR website do not distinguish between large and small subcontractors, which suggests they get treated the same. I could find nothing that limits the SBIR data rights protection only to a small business subcontractor. On the other hand, one would think that the favorable treatment of data developed under an SBIR contract would only be extended to the SBIR contractor or to other small businesses.
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Funding threshold requiring Congressional approval.
KR_2016 posted a topic in Contract Award Process
The company I work for is currently working with the SBIR office on a Phase III award, and the sponsor would like the award to be a three year delivery order. My question is, what funding threshold would facilitate a fast award as to avoid the process of Congressional approval. I appreciate any guidance you can give. -
If I requirement was previously competed and no further competition is required to award follow-on work, is this new follow-on work now considered non-competitive? Or is it an extension of the prior competition? Example A: FAR-based follow-on production contract derived from a successful (and competed) prototype OTA. Example B: FAR-based Phase III SBIR for production following a prior competitive Phase I SBIR. Identify the actions as either competitive or non-competitive will have a major impact on approval levels.
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As a contractor holding a Phase II SBIR Contract from Army, can we subcontract a portion of the R&D to a foreign company to have their workers perform that work in another country? I understand the E-Verify requirements, but they don't apply to work done outside the US. I also understand the limits on the amount of work we can subcontract. But I am not seeing an actual prohibition on having a foreign subcontractor. What am I missing? The contract deliverable at issue is to do a first production run of a product that we will use for testing, evaluation and improvement. I've concluded that we can use a foreign supplier to make a first production run. The product is not a contract deliverable, but it is an element of the SOW for that deliverable. The research results are the deliverable. Thanks for any guidance or input!