Breakout Session #: A14 Presented by: Bridget Gauer. Date: July 24, 2017 Time: 11:15AM-12:30PM

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2 Breakout Session #: A14 Presented by: Bridget Gauer Date: July 24, 2017 Time: 11:15AM-12:30PM 1

3 Is This You? 2

4 Can We Help? 3

5 What We Will Discuss Today? 1. What is a GWAC? 2. How Source Selection Procedures Can be Simplified Under the Flexibility of Fair Opportunity 3. How to Structure the Task/Delivery Order Request to Streamline the Evaluation Process and Reduce Timeframes 4. Understanding Exceptions to Fair Opportunity 5. Wide Latitude to Streamline Source Selection Procedures Versus the Strict Requirements and Definitions Under FAR 13 or What GAO Says? 7. How NITAAC Can Help? 4

6 GWAC Overview What is a GWAC? 5

7 Government-wide Acquisition Contracts (GWACs) are: Task Order (TO) or Delivery Order (DO) contracts (multiple award indefinite delivery indefinite quantity MAIDIQ contracts) for information technology supplies and services Established by one agency for government-wide use, as executive agent of the GWAC Established under section 5 l J 2(e) of the Clinger-Cohen Act. Office of Management and Budget (OMB) s Office of Federal Procurement Policy (OFPP) requires agencies who want to establish the GWACs to submit business cases for executive agency approval and quarterly reporting on facets of the GWAC activity. Not under The Economy Act since they are pursuant to the Clinger-Cohen Act. Awarded through FAR Part 15 source selection for original GWAC award and TOs, DOs under the GWAC are awarded under FAR 16.5 Limited Number of Awards under each GWAC with no additional contract holders unless a formal ramp-on o CIO-SP3 unrestricted - 53 contract holders o CIO-SP3 Small Business 94* contract holders o CIO-CS 65 contract holders *May change with Ramp-On 6

8 GWAC Versus GSA Schedules True or False GSA Schedules are the same as GWACs? 7

9 GWAC Versus GSA Schedules False 8

10 GWAC Versus GSA Schedules GSA Multiple Award Schedule (MAS) contracts, are indefinite delivery, indefinite quantity (IDIQ) contracts available to all federal agencies worldwide. GSA awards and administers MAS contracts pursuant to section 201 of the Federal Property and Administrative Services Act of 1949, as amended. MAS have FFP or T&M contract types w ODC limited to SAT; GWACs have FFP, T&M, CPFF, CPAF, CPIF, ODCs above SAT GSA Awards follow Procedures under FAR Part 8.4 Only Three Agencies have authority to issue IT GWACs: NIH, NASA and GSA. 9

11 GWAC Versus Open Market GWACs Fair opportunity required (unless exception applies) Pre-negotiated ceiling rates at master contract level (CIO-SP3) Already competed - additional competition drives down ceiling rates/catalog prices at task/delivery order level Timeframe for award from days based on complexity and whether flexibilities are used Wide latitude to streamline selection No protests under $10M (scope, period of performance, or ceiling) Open Market Must follow formal solicitation procedures (FAR 13 &15) Labor rates must be negotiated Must meet competition requirements of FAR Part 6 Must conduct source selection (IAW FAR 13&15) May be protested at any dollar value and both pre and post award Average solicitation awarded in days Labor intensive for Contract Professional 10

12 How Source Selection Procedures Can be Simplified Under the Flexibility of Fair Opportunity 11

13 Defining Fair Opportunity Fair opportunity is not defined in the FAR. What does FAR Part say? (1) Fair opportunity: (i) The contracting officer must provide each awardee a fair opportunity to be considered for each order exceeding $3,500 issued under multiple delivery-order contracts or multiple taskorder contracts, except as provided for in paragraph (b)(2) of this section. (ii) The contracting officer may exercise broad discretion in developing appropriate order placement procedures. 12

14 Fair Opportunity 13

15 FAR Part Guidance: What is Mandatory? Contracting Officers must provide Fair Opportunity for orders over $3,500 Develop placement procedures that will provide each awardee a fair opportunity to be considered for each order and that reflect the requirement and other aspects of the contracting environment Not use any method (such as allocation or designation of any preferred awardee) that would not result in fair consideration being given to all awardees prior to placing each order Consider price or cost under each order as one of the factors in the selection decision Performance-based acquisition methods must be used to the maximum extent practicable, if the contract or order is for services 14

16 Understanding Exceptions to Fair Opportunity 15

17 FAR Part Guidance What are the exceptions to Fair opportunity? A. The agency need for the supplies or services is so urgent that providing a fair opportunity would result in unacceptable delays. B. Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized. C. The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on. D. It is necessary to place an order to satisfy a minimum guarantee. E. For orders exceeding the simplified acquisition threshold, a statute expressly authorizes or requires that the purchase be made from a specified source. F. Contracting officers may, at their discretion, set aside orders for any of the small business concerns identified in (a)(3). 16

18 How to Structure the Task/Delivery Order Request to Streamline the Evaluation Process and Reduce Timeframes 17

19 Streamline Enablers-Advisory Multi- Phase Down-Select Process 1. Using a multi-phased approach when effort required to respond to a potential order may be resource intensive o o o e.g., requirements are complex or need continued development, operational concept demonstration that requires offerors to develop prototypes) Where the government issues general description of scope or purpose of the acquisition Requests info such as statement of qualifications and other considerations as appropriate (e.g., proposed conceptual approach, past performance) 2. Interested offerors respond 3. All responding offerors are initially considered on price considerations (e.g., rough estimates) and other considerations. Government advises each respondent of invitation to participate in resultant acquisition or based on info submitted, it is unlikely to be a viable competitor 4. Offerors then decide if they will to continue to invest Bid & Proposal funds to continue proposal efforts even those advised that they were unlikely to be viable competitors may continue 18

20 Streamline Enablers-Due Diligence Due diligence is when the Government (usually involves those on TEB and CO) meets one-on-one with offerors to discuss: 1. The objectives and requirements for the upcoming requirement. 2. Suggestions for refining requirements. 3. Evaluation criteria that may promote or restrict competition. 4. Risk reduction measures. Due diligence can support market research. It can be done before draft solicitation or after to gain feedback on the draft. The Government can set the scope of discussion (and what is off-limits for discussion). 19

21 Streamline Enablers Reduce submission requirements Use CPARS instead of past performance submissions. Develop price templates for contractors to fill in. Only ask for what you need to determine the highest rated contractor. Do you use the same evaluation criteria for all your procurements? Take the time to come up with true discriminators. Think about acquisition that resulted in the best contractor performance what was the real differentiator to choose that proposal during source selection? Does your evaluation criteria reflect that differentiator and eliminate criteria that did not separate excellent from acceptable? If you reduce the submission requirements to only what is necessary, your timeframes can be shorter! 20

22 Streamline Enablers Comparative Analysis is allowed under FAR Part Requires documentation of differences under each evaluation factor but does not require use of a scoring system. There is also no requirement to document significant strengths, weaknesses, or deficiencies Comparative Analysis may be easier for technical personnel to determine who is the highest rated Use Oral Presentations Record Session (transcription or video) Gives you the opportunity to evaluate key personnel based on more than their resume Questions and answers reveal which Offerors truly know the subject matter and their proposed solution There is a comfort-level since there are procedures in FAR Part 15 Can reduce the evaluation timeframes 21

23 Wide Latitude to Streamline Source Selection Procedures Versus the Strict Requirements and Definitions Under FAR 13 or 15 22

24 FAR PART 16 Guidance: What Should Contracting Officers Consider? 1. How can the source selection be streamlined? 2. Past performance on earlier orders under the contract, including quality, timeliness and cost control. 3. Potential impact on other orders placed with the contractor. 4. Minimum order requirements. 5. When acquiring information technology and related services, consider the use of modular contracting to reduce program risk (e.g., agile software development.) 6. Tailor procedures to each acquisition but repeat/leverage best practices of prior acquisitions. (See NITAAC website) 7. Don t ask for more than you need to foster meaningful competition at the TO/DO level. 8. Use of performance-based acquisition methods, to the maximum extent practicable, if the order is for services. 23

25 Things to Remember When Using GWACs and Fair Opportunity 1. GWACs are not exempt from the development of acquisition plans in accordance with FAR 7 and FAR 39. When developing the acquisition plan, the competition requirements in FAR 6 and the policies in FAR 15.3 do not automatically apply to the ordering process. 2. May not be used to circumvent conditions and limitations imposed on the use of funds (e.g., 31 U.S.C. 1501(a)(1)). 3. Shall comply with all FAR requirements for a consolidated or bundled contract when the order meets the definition at 2.101(b) of consolidation or bundling. 4. The OCO shall document a Determination of Best Procurement Approach in accordance with FAR and any exception to Fair Opportunity is applicable. 5. In general, the contracting officer does not synopsize orders under indefinite-delivery contracts; except when restricting fair opportunity or making awards under the Recovery Act (see (a)(4) and (11), and (b)(2)(ii)(D) for more information regarding synopsis requirements). 6. The competition requirements in Part 6 and the policies in subpart 15.3 do not apply to the ordering process. Formal evaluation plans or scoring of quotes or offers are not required. 24

26 Order Requirements FAR Part states: Individual orders shall clearly describe all services to be performed or supplies to be delivered so the full cost or price for the performance of the work can be established when the order is placed. Orders shall be within the scope, issued within the period of performance, and be within the maximum value of the contract. Options may be used 25

27 Fair Opportunity Case Law: B Harris maintains that both of these RFPs improperly contemplate the issuance of a single, second-tier, indefinitedelivery, indefinite-quantity (IDIQ) instrument (labelled by the FBI as a delivery order), under which the agency will place subsequent delivery orders for this equipment without providing Harris a fair opportunity to compete for those orders, in violation of the statute authorizing the use of multiple-award IDIQ contracts. We sustain the protests. In sum, while the agency has significant discretion to tailor the procedures that it will use in placing delivery orders, it does not have discretion to use instruments that do not satisfy the requirements of FAR (a)(7). 26

28 Order Requirements Orders placed under indefinite-delivery contracts must contain the following information: (i) Date of order (ii) Contract number and order number (iii) For supplies and services, contract item number and description, quantity, and unit price or estimated cost or fee (iv) Delivery or performance schedule (v) Place of delivery or performance (including consignee) (vi) Any packaging, packing, and shipping instructions (vii) Accounting and appropriation data (viii) Method of payment and payment office, if not specified in the contract (see (e)) 27

29 How Does GAO View FAR PART 16 Procedures? In a November 2008 protest decision, GAO noted: Although the protestors argue that excluding the policies of FAR Subpart 15.3 does not prohibit the import of the procedures set forth in those provisions, we conclude that FAR Part 15 procedures do not, as a general rule, govern task and delivery order competitions conducted under FAR Part 16. Instead, we will review task order competitions to ensure that the competition is conducted in accordance with the solicitation and applicable procurement laws and regulations. 28

30 Case Law: B : April 27,2017 The task order competition here was conducted pursuant to FAR subpart The evaluation of proposals in a task order competition, including the determination of the relative merits of proposals, is primarily a matter within the agency s discretion, since the agency is responsible for defining its needs and the best method of accommodating them. Wyle Labs., Inc., B , Feb. 19, 2013, 2013 CPD 63 at 6. An offeror s disagreement with the agency s judgment, without more, is insufficient to establish that the agency acted unreasonably. STG, Inc., B et al., Jan. 12, 2012, 2012 CPD 48 at 7. In reviewing protests challenging an agency s evaluation of proposals, our Office does not reevaluate proposals or substitute our judgment for that of the agency, but rather examines the record to determine whether the agency s judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement laws and regulations. MicroTechnologies, LLC, B , B , Aug. 11, 2016, 2016 CPD 219 at 4-5; GeoSystems Analysis, Inc., B , July 25, 2016, 2016 CPD 190 at 4. 29

31 Fair Opportunity Case Law: B The fact that IRS gave all TIPPS-2 contractors an opportunity to be considered for the four OrgMod task areas does not satisfy FASA s fair opportunity requirement, which applies to individual task orders and which IRS disregarded with respect to the 37 OrgMod task orders resulting from the master RFI. Because IRS gave no consideration to any contractor other than the pre-selected contractor for any of the individual OrgMod orders, we do not view these task orders as competitively placed, but as unjustified exceptions to FASA s fair opportunity requirement. 30

32 Past Performance Case Law: B An agency s evaluation of past performance is a matter of agency discretion which we will not disturb unless the agency s assessments are unreasonable or inconsistent with the solicitation criteria. Recogniti, LLP, supra; see Presidio Networked Solutions, Inc., et al., B et al., Oct. 31, 2014, 2014 CPD 316 at 14; AT&T Gov t Solutions, Inc., B et al., Oct. 2, 2012, 2013 CPD 88 at In assessing past performance, it is proper for the agency s evaluation to reflect the totality of an offeror s prior contract performance, and an agency may reasonably assign a satisfactory rating to an offeror despite the fact that portions of its prior performance have been unsatisfactory. Nuclear Production Partners LLC; Integrated Nuclear Production Solutions LLC, B et al., Apr. 29, 2013, 2013 CPD 112 at As noted, the RFO provided for a limited, pass/fail consideration of past performance. Offerors were not to submit past performance proposals. RFO at Rather, the RFO stated that, following proposal receipt, the contracting officer would review the Past Performance Retrieval System (PPIRS) to locate relevant past performance information for the offerors since March 31, 2010, the date of the master contract award. RFO at If the agency located adverse past performance information, it would contact the offeror and allow it to provide a written response addressing the adverse information. Id. The RFO stated that an offeror would receive a rating of fail: only in the event that its relevant past performance history since March 31, 2010 reflects significant performance issues (e.g. spacecraft failures, extensive contractor caused delays) which were inadequately explained in their written response. 31

33 Key Takeaways When Using GWACs and Fair Opportunity Consider Using the flexibilities of FAR Part Remember contractors have already been pre-qualified; therefore, only include evaluation criteria needed to determine the best contractor for the job. 2. You can use GWACs to meet your agency s small business goals under an exception to fair opportunity. 3. Use meaningful selection criteria developed specifically for the requirement. 32

34 Key Takeaways 1. GWACs can reduce your timeframes and workload. 2. Inform contractors on how you will determine the highest qualified contractor and evaluate that way. 3. Take time to determine true differentiators to reduce submission requirements and timeframes. 4. Agency procedures should be followed when placing orders against GWACs. 5. All GWAC contractors have already been evaluated and can meet your requirements. 6. Consult NITAAC for any additional assistance. 33

35 Fair Opportunity and GWAC Resources NITAAC website URL for templates & samples: Acquisition IT Hallway: GSA SOO Cloud Templates: 34

36 Thank You! Phone: Web: nitaac.nih.gov 35