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November 4, 2016 By AMK

Pentagon moves forward — unilaterally — on $6.1 billion contract for ninth F-35 lot

The Pentagon on Wednesday evening, Nov. 2nd, announced a $6.1 billion contract with Lockheed Martin for the ninth lot of joint strike fighter aircraft, but the F-35 manufacturer is not happy with the terms of the arrangement, which was not mutually agreed upon, according to a company spokesman.

f-35-lockheed-11-01-2016The contract covers 57 low rate initial production (LRIP) aircraft, which will be procured for 3.7 percent less than the LRIP 8 batch of jet, the F-35 joint program office stated.

The joint program office initially intended to broker a deal for LRIP 9 and 10 together, a contract F-35 program executive officer Lt. Gen. Christopher Bogdan had said would procure about 150 aircraft for a total contract value of about $14 billion. Lockheed and the government intended to finalize an agreement in the early months of this year, but as negotiations pressed on into the fourth quarter, the government opted to award a unilateral contract action — a decision Lockheed disputes.

“The definitized contract for LRIP 9 announced today was not a mutually agreed upon contract, it was a unilateral contract action, which obligates us to perform under standard terms and conditions, and previously agreed-to items,” said Lockheed spokesman Mike Rein.

Keep reading this article at: http://www.defensenews.com/articles/pentagon-moves-forward-unilaterally-on-61b-contract-for-ninth-f-35-lot

Filed Under: Government Contracting News Tagged With: DoD, F-35. Lockheed, LRIP, negotiations, Pentagon, unilateral modification

July 5, 2016 By AMK

Court affirms ‘especially great discretion’ of contracting officers

The U.S. Court of Federal Claims has found that an Air Force contracting officer’s decision to use the lowest price technically acceptable (LPTA) acquisition strategy in a negotiated procurement was within the “especially great discretion” afforded to contracting officers.

Phoenix Management, Inc. contested an Air Force solicitation’s format, arguing that the LPTA approach did not represent the best value to the Government.  According to Phoenix Management, the Air Force “failed to document specifically why” it believes that an LPTA methodology would result in the best value.  The company contended that if the Air Force proceeded with the LPTA strategy, coupled with the solicitations’ past performance evaluation procedure, “there is simply no way … that [the Air Force’s] ultimate selection would result in a ‘best value.’” In addition, the plaintiff contended that the Air Force’s planned integrated assessment “necessarily involve[s] trade off evaluations” which “are expressly prohibited.”

In its defense, the Air Force argued that its decision to select the LPTA format was within the broad discretion afforded to agency contracting officers. The Air Force also took issue with the  plaintiff’s argument that the solicitation’s integrated assessments require tradeoffs.

In its June 30, 2016 decision, the Court of Federal Claims noted that contracting officers “are entitled to exercise discretion upon a broad range of issues confronting them in the procurement process.”  And in negotiated procurements, the Court asserted, “the regulations entrust the contracting officer with especially great discretion.”  This discretion, the Court said, “extend[s] even to application of procurement regulations.” 

The implications of this case mean that when a contracting officer (CO) determines that there is a reasonable expectation that best value will be obtained from the selection of a technically acceptable proposal, the CO may employ the LPTA methodology.  Under the Federal Acquisition Regulation, “[a]n agency can obtain best value in negotiated acquisitions by using any one or a combination of source selection approaches” (FAR Subpart 15.101).  Thus, COs have the authority to select the approach that will provide the best overall value to the Government, understanding that the relative importance of cost of price may vary. 

In arguing its case, the Air Force determined that its requirements “have been stable for many years” and “are not expected to vary significantly from the current level.”  The CO also found that the Air Force’s requirements “are well defined and performance will be closely monitored.”  The Air Force noted that the solicitations further mitigate the risk with a two month orientation period.  During this period, the awardee will “shadow the current work-force on a non-interference basis to observe the operations ….”   The Air Force concluded that the “overall [performance] risk assessment is low.”

Phoenix Management disagreed with the CO’s conclusion and asserted the LPTA approach will not always represent the best value. In support of this argument, the company presented a hypothetical situation in which two offerors are technically acceptable with a nominal price differential but markedly different past performance.  The company argued that an award to the offeror with a slightly better price over the offeror with significantly better past performance does not represent best value.  Phoenix contended that once an agency selects the LPTA methodology, “[a] proposal is per se the best value if it meets the selection criteria and proposes the lowest price.”  The Court, however, found that the company’s hypothetical had no bearing on whether the CO articulated a rational basis for the decision to utilize the LPTA methodology.  

In making such a decision, the Court reviewed the agency’s stated rationale, considering “whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion ….”   This standard does not require that a CO’s approach will always result in the best value. The Court limited its review to the process behind the agency’s decision, not potential outcomes. The Court took note of the fact that the CO articulated a rational basis for the decision to use LPTA, namely that the overall performance risk for the solicitations was low and that emphasizing the price factor through the LPTA format would secure the best value to the Government.

The Court also found that the Air Force’s integrated assessment of the solicitations’ evaluation factors did not necessitate tradeoffs.  Indeed, Section M of the solicitation in question provided that the Air Force would award contracts to the lowest-priced offerors with an acceptable technical proposal, acceptable past performance, and reasonable/balanced pricing.  Although the solicitation referred to this process as an “integrated assessment,” the terms clearly indicated that the Air Force would evaluate the non-price factors on an acceptable/unacceptable basis and would not conduct tradeoffs based on these factors.

Bottom line, the Court found that the CO’s decision to employ the LPTA format was within the “especially great discretion” afforded to COs making decisions in negotiated procurements.  

(Phoenix Management, Inc. v. U. S. Nos. 16-78C & 16-77C, June 30, 2016)

Filed Under: Government Contracting News Tagged With: acquisition strategy, Air Force, Court of Federal Claims, discretion, FAR, lowest price technically acceptable, LPTA, negotiate, negotiation, negotiations

June 24, 2016 By AMK

GSA doubles-down on commercial supplier and end-user license agreements

Recently, the General Services Administration (“GSA”) issued a proposed rule to codify a class deviation regarding GSA’s approach to common Commercial Supplier Agreement (“CSA”) and End User License Agreement (“EULA”) terms.  

GSA logoThe class deviation has been previously addressed here and in an article for the Coalition for Government Procurement available here.  While the Proposed Rule apparently is intended to assuage contractor concerns about the class deviation, it falls short of this goal, so contractors must remain vigilant if and when the Proposed Rule is finalized and GSA begins to attempt to implement it through contract modifications.  Comments on the Proposed Rule are due by August 1, 2016.

Like the class deviation, the Proposed Rule would declare “unenforceable” 15 typical CSA/EULA terms and conditions that GSA believes are inconsistent with federal law. This change would thus allow GSA to ignore these clauses during negotiations, with the stated goal of reducing time and expense in negotiating CSAs/EULAs.

But the Proposed Rule does not stop there.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/06/gsa-proposed-rule-doubles-down-on-csaeula-deviation

Filed Under: Government Contracting News Tagged With: class deviation, clauses, commercial products, CSA, EULA, FAR, GSA, GSAR, licensing, negotiation, negotiations, order of precedence, software licenses

May 24, 2016 By AMK

Learn contract negotiation skills in June workshops

Are you a good negotiator?

You’ll discover the answer to that important question by participating in an upcoming workshop being conducted by The Contracting Education Academy at Georgia Tech.  The Negotiation Workshops are being conducted in Jackson, Missouri on June 28 and in Springfield, Missouri on June 30, 2016.

The University of Missouri is hosting the workshops to help businesses understand how government agencies negotiate their contracts.

By participating, business people will discover their own negotiating style and whether it works in the government contracting arena.  Participants will be challenged to ‘think outside the box’ and put good negotiation techniques into practice.

Attendees will:

  • Be briefed on the latest research identifying effective negotiation practices,
  • Learn when and how the government negotiates contracts,
  • Examine effective contract negotiation techniques,
  • Engage in a simulated contract negotiation for a critical purchase, and
  • Receive a debriefing on what negotiation tactics and strategies work and don’t work.

Negotiation Workshop - quotesIn addition to expert instruction, each attendee will receive a printed guide.

The workshops are being presented through special arrangements made by the Missouri Procurement Technical Assistance Centers (MOPTAC).  Specialists from The Contracting Education Academy at Georgia Tech, a recognized educational leader in the government contracting field, will lead the workshops and provide insights available nowhere else.  As a result of attending, participants will understand how to negotiate with government agencies, prime contractors, suppliers and even potential business partners.

To attend the Negotiation Workshop on Tuesday, June 28 from 10:00 a.m. to 4:00 p.m. in Jackson, Missouri, OR Thursday, June 30 from 9:00 a.m. to 3:00 p.m. in Springfield, Missouri, please visit http://missouribusiness.net/ptac/training to register at a discounted workshop fee.

 

Filed Under: Academy News Tagged With: acquisition training, bargaining process, Georgia Tech, government contracting, negotiate, negotiation, negotiations, training, training resources

June 18, 2015 By AMK

IG: USPS doesn’t know if it saved money renegotiating contracts

The Postal Service renegotiated contracts with its largest suppliers as a way to save money, but never tracked the results of the initiative to see if it actually saved anything, says a June 4 USPS inspector general report.

USPS logoIn fiscal 2009, USPS began an effort to renegotiate contracts with over 218 of its largest suppliers.

The Rapid Renegotiation Initiative, or RRI, identified cost savings the Postal Service could pursue in those contracts to improve its financial position.

Through the RRI, the supply management workers at USPS negotiated with the suppliers to reduce what it paid for goods and services and to limit the scope of the contract work.

Keep reading this article at: http://www.fiercegovernment.com/story/ig-usps-doesnt-know-if-saved-money-renegotiating-contracts/2015-06-10

Filed Under: Government Contracting News Tagged With: negotiations, renegotiate, USPS

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