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2 hours ago, Vern Edwards said:

Have I missed a decision? The one you cite doesn't address the issue I have raised.

You have not.  The decision implies application of part 15 but like you I could not find a decision specific to the issue.  My "no" leaned more on the FAR reference than the decision.

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  • 2 weeks later...
On 3/5/2021 at 9:34 AM, Vern Edwards said:

Two questions:

1. When the government makes "multiple awards" pursuant to FAR 16.505(c)(1), is it---

     (A) awarding a single contract with multiple parties, each of which is severally liable or

     (B) establishing a pool of multiple separate contracts with the same terms?

2. As a practical matter, does it make a difference?

These are not "trick" questions. I am trying to answer them for myself and want to see what others think.

 

Based on a FAR Case that @Don Mansfield shared with me in November on a topic pertaining to the award of multiple/split requirements contracts, my responses are:

(1) a single contract with multiple parties; and

(2) I don't know about IDIQs, but in the context of requirements contracts, it matters.

In 2010, the FAR Council explained FAR Case 2008-006, in part, as follows:

Quote

Requirements contracts. The Councils amended the language at FAR 16.503(a) to clarify that a requirements contract is awarded to one contractor. This change is made to dispel the implication at FAR 16.503(b)(2) that a requirements contract may be awarded to multiple sources.

https://www.federalregister.gov/documents/2010/03/19/2010-5989/federal-acquisition-regulation-far-case-2008-006-enhanced-competition-for-task--and-delivery-order

Despite this, they left FAR 52.216-21 Alt. III in place. This states:

Quote

(c) The Government’s requirements for each item or subitem of supplies or services described in the Schedule are being purchased through one non-set-aside contract and one set-aside contract. Therefore, the Government shall order from each Contractor approximately one-half of the total supplies or services specified in the Schedule that are required to be purchased by the specified Government activity or activities. The Government may choose between the set-aside Contractor and the non-set-aside Contractor in placing any particular order. However, the Government shall allocate successive orders, in accordance with its delivery requirements, to maintain as close a ratio as is reasonably practicable between the total quantities ordered from the two Contractors.

On one hand the Council is stating that "a" requirements contract cannot "be awarded to multiple sources." On the other, it permits the award of 2 distinct requirements contracts for the same subject matter. Based on the use of the singular in the former, I believe what distinguishes these ideas is that "multiple-award" refers to one contract that is "shared" among parties. I also think this idea extends to IDIQs, though I don't know whether this "matters" for IDIQs. But it does matter in the context of two or more requirements contracts, as we want to avoid the fair opportunity requirements of FAR 16.505(b). 

It's nice to see you "unretired" from Wifcon, Vern. We spoke a bit at the 2019 N&CR Roundtable, a million years ago. You advised me to avoid outings with birders at all costs. 😉

 

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@FrankJon Hey Frank! Good input. Thanks!

I have softened a little on the birding thing. I don't remember if we spoke after I got back from Iceland or Ireland. Probably Iceland. I had a great experience on both trips, but I had a sensational birder experience on the Saltee Islands off Ireland, one I'll never forget. So good, in fact, that I went back to Ireland for a longer visit about four months later.

But I still have little patience for standing around looking through binoculars for hours at a time while people whisper, "There it is! There it is!" referring to something only a little bigger than a golf ball. I don't have an infantryman's eyes anymore.

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  • 3 weeks later...

Sensitized by this topic, I was interested to see that in the daily DOD list of contracts for April 8, 2021, the Army (ACC, Aberdeen Proving Ground) awarded five unique contracts to five contractors, each in the same amount of $25,000,000. Each contract was described as being of the type called "order dependent," which is a term I have not seen before.

Here's an example of what I'm talking about:

Quote

HUBZone Headquarters Inc.,* Virginia Beach, Virginia, was awarded a $25,000,000 order-dependent contract to create and strengthen networks that connect the Combat Capabilities Development Command with academia, industry and government agencies to facilitate the exchange of scientific ideas, the production of knowledge and the development of a STEM (Science, Technology, Engineering and Math) workforce. Bids were solicited via the internet with 12 received. Work locations and funding will be determined with each order, with an estimated completion date of April 7, 2026. U.S. Army Contracting Command, Aberdeen Proving Ground, Maryland, is the contracting activity (W911NF-21-D-0005).

Again, I'm not sure what an "order dependent" contract is, but it seems to be akin to an ID/IQ or requirements contract. So I thought it was worth mentioning here. In this case, five individual contracts to five individual contractors were awarded. Each has the same $25M contract value, so I have to assume the Army is willing to issue up to $25M in future orders to each contractor, for a cumulative award of $125M.

 

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30 minutes ago, Vern Edwards said:

After a little research, I think they are other transaction (OTA) awards that resulted from broad agency announcements. They appear to be IDIQ-type contracts that are not subject to FAR Subpart 16.5 and other IDIQ rules.

Thank you, Vern. A follow-up question: Is it usual to award five apparently identical contracts in the same amount to five offerors who are responding to a BAA? In my (limited) experience, that has not been the case.

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@here_2_help

31 minutes ago, here_2_help said:

Thank you, Vern. A follow-up question: Is it usual to award five apparently identical contracts in the same amount to five offerors who are responding to a BAA? In my (limited) experience, that has not been the case.

It's not unusual.

The  program is as follows:

Quote

Army Futures Command (AFC) requires the Awardee to collaboratively prototype the Army’s first Soldier-led Software Factory. The Factory shall be staffed, built, and operated from zero existing infrastructure or policy precedent, to ultimately transition to Army self-sustaining operation as a fully-soldier/Army civilian-run agile software development unit without reliance on contracted presence. The Factory will train using a wide range of cross-cutting, loosely-scoped problem sets for software development and the Factory must organize, train, and operate in-line with modern commercial technology standards prototyping a reproducible force design and associated processes for widespread implementation in the future operating environment.

DOD is scared to death of falling behind China in the development of hi-tech weaponry. This program is apparently designed to improve the Army's capability in that regard.

The award of five more or less identical contracts is an example of competitive prototyping. That approach is not at all unusual at the outset of a development program and has long been in use. The Army apparently wants to develop a software "factory," and it has given five firms money to develop competitive prototypes. In the long run they will probably choose one or more firm/factory for long-term funding and operation based on program performance.

The Army used broad agency announcements and OTAs to bypass the b***s*** in FAR Part 6, Part 15, and Subpart 16.5.

 

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Sooner or later a big portion of the government’s acquisition system needs revised.  DoD and a few civilian agencies successfully use OTAs for things like this cited program.  It is important for DoD to not fall behind China and other nations.  But much of the rest of government needs similar flexibilities whether it’s fighting viruses, drug interdiction, border protection, or natural disaster relief.  Processes like OTA allows innovation and creative solutions from a broad range of sources and not just traditional ones that know how to deal with the government.

Of course, this means a government workforce that can handle the changes.  One scary thing that keeps coming up are thoughts like standardizing OTAs so they become more uniform and employees can be better trained.  But standardized practices can lead to more oversight,  more criticism, more policy to correct perceived problems, and even greater structuring to the point where all flexibility is gone.

 

 

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