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COFC confirms ‘rule of two’ analysis applies before agency decides to utilize a multiple-award vehicle

The U.S. Court of Federal Claims (COFC) issued a decision on Nov. 30, 2020 that supported the Small Business Administration’s position regarding the Rule of Two analysis requirements for government acquisitions.

The central question surrounding the case was whether the U.S. Army could cancel a Federal Acquisition Regulation (FAR) Part 8 service-disabled veteran-owned small business (SDVOSB) set-aside procurement under the General Services Administration’s Federal Supply Schedule (FSS) and move the requirement to a multiple-award indefinite-delivery, indefinite-quantity (MAIDIQ) contract vehicle that the plaintiff, The Tolliver Group, Inc. (Tolliver), did not hold.

In its protest, Tolliver argued, in part, that the Army’s actions violated the Rule of Two because the agency was required to determine whether two or more small businesses were capable of performing the requirement prior to choosing to put the procurement on the MAIDIQ contract.

The COFC’s decision confirms that the Rule of Two analysis applies before an agency elects to procure a requirement from a multiple-award contract (MAC) vehicle under FAR Part 16.5.

The Rule of Two requires contracting officers to set aside any acquisition over the simplified acquisition threshold for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns and (2) the award will be made at fair market prices.

In Tolliver, the Army argued that a Rule of Two analysis was not required because—according the Small Business Jobs Act, as implemented in 15 U.S.C. § 644(r)—federal agencies have the discretion to issue MACs without first conducting a Rule of Two analysis to determine whether it should be set aside for small businesses.

Keep reading this article at: https://www.jdsupra.com/legalnews/cofc-confirms-rule-of-two-analysis-83418/

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10 tantalizing topics testing procurement in the new fiscal year

Change is in the air.

The leaves are beginning to fall to the ground, the morning air is turning crisp, the days are getting shorter — all signaling that we are approaching the end of the government fiscal year.

The beginning of a new fiscal year provides an opportunity for reflection, during which, we can look ahead at the issues and questions that likely will shape procurement over the coming year.

With that in mind, here are 10 topics that surely will be of interest across the procurement stakeholder community.

Keep reading this article at: https://federalnewsnetwork.com/commentary/2020/09/10-tantalizing-topics-testing-procurement-in-the-new-fiscal-year/

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GAO affirms denial of protest by contractor who failed to submit an adequately written proposal

The Government Accountability Office (GAO) recently denied a protest brought by a contractor who failed to submit an adequately written proposal for the award of a federal contract. 

In Patriot Defense Group, LLC (B-418720.3, August 5, 2020, 2020 WL 4501318), the decision breaks no new ground legally but it serves as a timely reminder of how failure to identify the assumptions upon which a proposal is based will yield a disappointing result.

The details of this case begin with the Request for Proposals (RFP).

The U.S. Special Operations Command issued a request for proposals for multiple indefinite delivery/indefinite quantity (IDIQ) contracts to provide a variety of professional, technical, management, and administrative services.  The RFP recited that an award would be made to all “qualifying offerors,” defined as offerors that received a pass rating for administrative and responsibility matters, an acceptable rating for an IDIQ evaluation factor, and a substantial confidence rating for past performance.

Among other things, offerors were required to submit a minimum of three past performance information sheets for contracts which were relevant to each offeror’s ability to perform the work described in the RFP.  Prior contracts were to be assigned past performance relevancy ratings.  The RFP warned offerors that they were required to include a rationale supporting the assertion of relevance. They were also to describe in detail how the company’s past performance on each contract applies to the “relevancy criteria” identified in the RFP.

Keep reading this article at: https://www.mondaq.com/unitedstates/government-contracts-procurement-ppp/982362/gao-affirms-denial-of-protest-by-contractor-who-failed-to-submit-an-adequately-written-proposal

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Job order contracting: The Army’s own IDIQ procurement solution

Indefinite delivery, indefinite quantity (IDIQ) contracts have been used by the United States Armed Forces as a standard form of construction procurement for nearly a half century.

IDIQ contracts deliver both flexibility and cost by allowing owners to complete an unlimited number of construction projects under a single, longstanding contract rather than needing to take each individual project to bid. There are several types of IDIQ contracts, but one particularly effective method is Job Order Contracting (JOC), also referred to as a SATOC (Single Award Task Order Contract).

Originally created by the Army Corps of Engineers, JOC is now utilized by all levels of government. JOC’s popularity and success is due to its process design, which emphasizes collaboration, continuous improvement and LEAN principles. Every JOC program is based on a Unit Price Book, which provides preset prices to any tasks needed to complete projects detailed in the Scope of Work. Owners can order any job or task listed in the Unit Price Book from the awarded contractor without having to take an individual project through a bid process, since tasks are priced in advance.

Ken Davis helped implement the JOC program at Fort Stewart during his 38 years of service to the U.S. Army. Davis emphasized time saving as one of the advantages of Job Order Contracting

“We were bidding on everything one at a time with individual, standalone contracts. We had to come up with specifications for every single contract or task order. JOC allowed us to begin projects in about half the time it took to do a standalone contract.”

Keep reading this article at: https://federalnewsnetwork.com/federal-insights/2020/04/job-order-contracting-the-armys-own-idiq-procurement-solution/

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2019 NDAA analysis: Enhancing IDIQs and other provisions

Over the past several months, this blog has analyzed several key provisions of the Fiscal Year 2019 National Defense Authorization Act (NDAA) that impact government contractors. This post briefly summarizes a variety of other government contracts-related provisions of the FY 2019 NDAA that we have not yet discussed, including several that reflect a congressional intent to enhance the use of multiple-award, indefinite-delivery/indefinite-quantity (IDIQ) contracts and encourage commercial item contracting, several that concern subcontracting and supply-chain considerations, and assorted other issues.

Awarding IDIQ Contracts Without Considering Price to Increase Order-Level Competition.

Section 876 provides a limited exception to the general requirement in 41 U.S.C. § 3306 that agencies must include cost or price to the government as an evaluation factor in evaluating proposals. The exception applies to task-order contracts (i.e., IDIQ contracts) for services that are priced on the basis of hourly rates. Specifically, agencies need not consider price as an evaluation factor for such contracts if:

  1. the agency will award a base contract to every “qualifying offeror”—meaning a responsible source whose proposal conforms to solicitation requirements, meets all technical requirements, and is otherwise eligible for award; and
  2. the agency will consider cost or price to the government in competitions for individual task orders.

This provision applies to non-defense agencies. Defense agencies had previously been granted a similar exception in the FY 2017 NDAA. See 10 U.S.C. § 2305(a)(3)(C).

Congress’s goal, as evidenced by the title to section 876, is “Increasing Competition at the Task Order Level.” By awarding base IDIQ contracts to all compliant proposals, without discriminating between them based on price, agencies are likely to have more contract-holders available to compete for specific work at the task-order level. Use of this mechanism should reduce an important barrier to entry to many potential competitors—not holding the necessary IDIQ contract to compete for work solicited under task order solicitations—and, by increasing competition, could result in lower pricing and better technical offerings at the task order level.

 

 

Keep reading article at: http://www.mondaq.com/article.asp?articleid=810088

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