“Competition is the cornerstone of our acquisition system.” This opening statement, from the Administrator of the Office of Management and Budget (OMB) in his May 31, 2007 policy directive, Enhancing Competition in Federal Acquisition, formed the basis for requesting that all government agencies take advantage of full and open competition, particularly on task orders issued under IDIQ contracts. OMB noted that “the lack of meaningful competition” for task orders has increased as government agencies have awarded more IDIQ contracts with a corresponding rise in task and delivery orders.

OMB’s directive also expressed concern over the increase in the number of contract modifications, which obviously are accomplished on a sole source basis. In order to increase competition, OMB is encouraging each agency’s competition advocate to “promote competition and challenge the barriers” to increased competition. 

In addition to energizing the competition advocates, OMB also proposes that the Federal Acquisition Regulatory Council seek ways to maximize competition. Among the proposals that OMB would like the FAR Council to consider are the following:

 1) Limits on the duration of contracts awarded on a sole source, urgent basis to one year;

 2) Providing notice in FedBizOpps of sole source awards;

 3) Assuring the receipt of at least three proposals for  multiple award contracts; and

4) Identifying evaluation factors for large delivery and task orders that have statements of work that will enable meaningful comparison between competing proposals.      

The policy directive underscored the adage that competition saves the taxpayer money. The Administrator is concerned that the government is not taking full advantage of competitive acquisition tools “especially in the placement of task and delivery orders under indefinite-delivery vehicles.”

Engineering News Record has posted an interesting podcast of a conversation with the recently appointed Chief of the U.S. Army Corps of Engineers, Lt. General Robert S. Van Antwerp.  The General responds to questions about the on-going construction efforts in Iraq, and the completion of the flood protection systems in New Orleans.  The recorded conversation (podcast) may be heard by clicking the link on the ENR website at:

http://enr.construction.com//people/multimedia/podcasts/2007/070710.asp

As part of the President’s Management Agenda for Electronic Government, the Small Business Administration (SBA), the Integrated Acquisition Environment (IAE), and a number of Agency partners collaborated to develop the next generation of tools to collect subcontracting accomplishments. This government-wide tool is known as the eSRS. This Internet-based tool will streamline the process of reporting on subcontracting plans and provide agencies with access to analytical data on subcontracting performance. Specifically, the eSRS eliminates the need for paper submissions and processing of the SF 294’s, Individual Subcontracting Reports, and SF 295’s, Summary Subcontracting Reports, and replaces the paper with an easy-to-use electronic process to collect the data. With the first generation of eSRS, contractors and their business associates will report data through their web browser of choice, visiting this site and logging on to report accomplishments using an easy data entry process. However, future plans for the full operational capability state already include the development of a back-office interface for those businesses collecting accomplishments electronically.

Ultimately, with the eSRS launch the Government will be making big strides in providing an easier process for Federal contractors and their business associates to report subcontracting activity.

On May 17, 2007, we presented a seminar in Richmond where we discussed the “New World of Federal Construction Contracting” with a number of contractors interested in obtaining and performing Indefinite Delivery Indefinite Quantity (IDIQ) and Multiple Award Task Order (MATOC) contracts. Federal agencies are turning to IDIQ and MATOC contracts more and more often for construction projects, particularly in conjunction with the military construction involved in the Base Relocation and Closure Program (BRAC).

A recent article in the May 24, 2007 on-line publication Mid-Atlantic Construction stresses the substantial market opportunities for contractors in the Richmond area, as well as in all of Virginia.  Many of these opportunities involve military construction for the U.S. Army and the U.S. Navy.  Quoting Harold B. Kelly, president of the Virginia Chapter of the Associated Builders and Contractors, "2007 looks terrific for many, many of our members." He predicts that the consolidation of Army logistics units at Fort Lee in Prince George County alone will have a major impact on the market. The Army plans to spend at least $1 Billion to build 6 million square feet of new space. Chris Jarling, general manager of Turner Construction Company in Virginia, noted that he anticipated that the U.S. Army Corps of Engineers will use the design-build delivery method to construct many of the BRAC projects in Virginia.

For more information on the extent of BRAC projects in Virginia, please see the attached information provided by the Commonwealth of Virginia.

A client new to Federal contracting was requested recently to submit a "BAFO" by an agency contract specialist. Our client asked what was meant by a "BAFO," and the government representative responded "your best and final offer," and suggested that our client read the Federal Acquisition Regulation (FAR). When our client could not find any reference to a "BAFO" or a "best and final offer" our "baffled" client called us. "Best and Final Offer," or "BAFO" was a term used in the FAR many years ago, before the major revision to Part 15, "Contracting by Negotiation," in 1997. In a negotiated procurement, following the conclusion of discussions with offerors, the contracting officer would issue a request for best and final offers to all offerors still within the competitive range. The pre-1997 FAR contained an entire section that described the "best and final" process. In Federal procurement today, “BAFO” has been replaced by "final proposal revision," as referenced in FAR 15.307. However, some agencies still refer to an “FPR” as a “BAFO.”

Continue Reading Procurement Terminology Can Be "Baffling" To Contractors New To Federal Procurement

A recent GAO decision highlights the need for offerors to fully understand a Request for Proposals (RFP) and to pay close attention to the details when preparing a proposal in response to an RFP.  In C. Martin Company, Inc., the agency rejected the protestor’s proposal, determining that it was technically unacceptable.  The agency discovered that the offeror had referenced outdated regulations, standards, and procedures.  Some of the references were to processes and standards that had been obsolete for at least three years.  It became evident that the offeror had incorporated parts of a prior RFP submission years before on a similar project.

The agency’s technical review team concluded that the proposal was deficient and that the offeror did not have a clear understanding of the RFP’s requirements.  The offeror was not given an opportunity to cure the deficiencies. After the offeror learned of the basis of its rejection during a debriefing, it filed a protest contending that the deficiencies in its proposal were minor and that it should have been given the opportunity to correct its proposal. Its main argument was that its proposal could easily have been corrected. 

The GAO, in denying the protest, stated that neither the ease of the corrective effort nor the “minor” nature of the deficiencies were determinative of whether the proposal should be accepted or rejected. Instead, the GAO held that the need for numerous revisions “evidenced an inherent lack of understanding or awareness of the current RFP’s requirements.”    The GAO succinctly stated in upholding the agency’s rejection of the proposal: “Offerors are responsible for submitting an adequately written proposal, and run the risk that their proposals will be evaluated unfavorably where they fail to do so.”

Continue Reading It is Dangerous to Take Shortcuts When Preparing Your Proposal

The Society of American Military Engineers (SAME) reports, in its latest issue of the SAME Government & Industry e-News, that since the Department of Defense (DOD) Mentor-Protégé program began 16 years ago with one agreement, industry participants have formed nearly 1,000 more agreements. The scope of the program also has grown to include women-owned, service-disabled veteran-owned and historically underutilized business zone concerns.  In a recent Web-based survey of 48 former protégés conducted by the Government Accountability Office, most protégés reported that the program was a valuable experience that enhanced their business development and helped increase their contracts and revenues. Verifying the value of the Mentor-Protégé Program, 98 percent of the protégés reported that they would recommend the program to other eligible small businesses. Presently, more than 230 firms participate in the program, representing the manufacturing, service, construction, and research and development industries.

We recently presented a number of seminars on the topic “How to Succeed in the New World of Federal Construction Contracting” that dealt with the shift from sealed bidding to negotiated procurement in federal construction contracting, as well as the increased use of Indefinite Delivery Indefinite Quantity (IDIQ) and Multiple Award Task Order Contracts (MATOC).  (See our upcoming seminar schedule and agenda).  One of the byproducts of this shift in procurement policy has been a reduction in the number of competitive opportunities resulting from the combination of many smaller projects into very large negotiated contracts.  As the examples below demonstrate, the era of $320 million construction contracts and $9 million to $24 million task orders has arrived.

Shaw-Dick Pacific, LLC, Honolulu, Hawaii, was awarded a $175,983,523 (first increment) firm-fixed-price contract for construction of the Hawaii Regional Security Operations Center at Naval Computer and Telecommunications Area Master Station Pacific. An additional $144,016,477 will be funded upon the passage of FY2008 Military Construction Appropriation Bill making the total amount $320,000,000. The contract contains one option which may be exercised within three months, bringing the total cumulative value of the contract to $320,040,000.  Work will be performed at Wahiawa, Hawaii, and is expected to be completed by June 2010.  This contract was competitively procured with 38 proposals solicited and two offers received. The Naval Facilities Engineering Command, Pacific, Pearl Harbor, Hawaii, is the contracting activity (N62742-07-C-1329). 

Rogers-Quinn Construction, Inc., Bonsall, Calif., was awarded $9,820,000 for firm-fixed-price Task Order 0009 under a previously awarded indefinite-delivery/indefinite-quantity multiple award construction contract (N68711-02-D-8062) for construction of the Reserve Training Center at Marine Corps Air Ground Combat Center, Twentynine Palms.  The work to be performed provides for the construction of a single-story, steel framed structure with spread footing foundation, concrete floor, reinforced masonry walls, standing seam metal roofing system, fire protection system, heating, ventilation and air conditioning systems, specially constructed weapons storage area (armory), lithium battery storage area, staging areas, classrooms, storage and supply areas, drill hall, administrative spaces, locker and shower rooms, workshops, electrical utilities and mechanical utilities. Work will be performed in Twentynine Palms, Calif., and is expected to be completed by June 2008.  The Naval Facilities Engineering Command, Southwest, San Diego, Calif., is the contracting activity.

Harper Construction Co., Inc., San Diego, Calif., was awarded $24,855,000 for firm-fixed price Task Order 0005 under a previously awarded multiple award construction contract (N68711-02-D-8019) for family housing replacement in the Desert View and Club Street Area at Marine Corps Logistics Base, Barstow.  The work to be performed provides for design and construction services for 74 family housing units and a community center, consisting of all necessary site clearing, grading, demolition, improvements, structures, and off-site work as required. Work will be performed in Barstow, Calif., and is expected to be completed by June 2008.  The Naval Facilities Engineering Command, Southwest, San Diego, Calif., is the contracting activity.

One of the most important factors considered by agencies in negotiated procurements is the past performance of an offeror. In addition to the information that an offeror might provide in response to a solicitation, source selection officials can access the performance evaluations from an offeror’s prior federal contracts.  It is important, therefore, for Federal construction contractors to know what information on their past performance is available to procurement officials.

A contractor can review its own performance evaluations on the internet by accessing the Business Partner Network website. and clicking on the link Past Performance Information Retrieval System, PPIRS. [www.ppirs.gov].  The PPIRS is maintained for the government by the Department of the Navy.  The Navy requires that, before accessing the system, a senior management representative must register by submitting a Senior Management Access Request Form to the office identified on the form.

In addition, before accessing the PPIRS a contractor must not only be registered with the Central Contractor Registration (CCR), [www.ccr.gov] but also must have created a Marketing Partner Identification Number (MPIN) in its CCR profile. Instructions on creating an MPIN are available on the CCR website.

As everyone who has dealings with the federal government is learning, access to government information is becoming more difficult, particularly information from the Department of Defense.  Obtaining the past performance information on your federal contracts is no exception.  As of November 1, 2006, contractors must also have a valid DoD PKI (Public Key Infrastructure) certificate.  For most federal construction contractors, this certificate must be obtained from an External Certificate Authority (ECA). The approved ECA vendors for the Department of Defense are VeriSign, Inc. and Operations Research Consultants, Inc.

Continue Reading Accessing Performance Evaluations in Federal Contracting

In what we regard as a somewhat unusual decision by the GAO, given its reluctance to interfere with matters of agency discretion, the GAO has concluded that the Air Force failed to make reasonable efforts to ascertain whether an acquisition was suitable for an SDVOSBC set-aside.  The GAO ruled that a procuring agency is required to make reasonable efforts to ascertain whether an acquisition is suitable for a set-aside for service-disabled veteran-owned small business concerns (SDVOSBC) before it can proceed with a small business set-aside. Under the circumstances presented in a decision issued on March 28, 2007, MCS Portable Restroom Service, B-299291, the GAO concluded that the Air Force failed to make reasonable efforts to ascertain whether this acquisition was suitable for an SDVOSBC set-aside and the protest was sustained.

The GAO reiterated that, generally, a procurement set-aside determination is a matter of business judgment within the contracting officer’s discretion, which “our Office will not disturb absent a showing that it was unreasonable.” The GAO further commented that although the use of any particular method of assessing the availability of firms for a set-aside is not required, measures such as prior procurement history, market surveys, and advice from the agency’s small business specialist may all constitute adequate grounds for a contracting officer’s decision to set aside, or not to set aside, a procurement. The assessment must be based on sufficient evidence so as to establish its reasonableness.

Continue Reading Determination of Suitability of Service-Disabled Veteran-Owned Small Business Set-Aside