Services Ordering Solutions: Avoiding MAS Confusion: Recent Comments

Comment on Blog 5: NAICS Codes, Business Size and Schedule Orders [Linked]

2009-12-17T10:59:03Z

your article is so informative and interesting. nice shared.

Comment on Blog 5: NAICS Codes, Business Size and Schedule Orders [Linked]

2009-11-19T11:16:57Z

That is really very good article. I am glad to know. Thanks!

Comment on Blog 5: NAICS Codes, Business Size and Schedule Orders [Linked]

2009-11-10T05:46:51Z

I was just thinking about Business Size and Schedule Orders and you've really helped out. Thanks!

Comment on Blog 10: Options on Task Orders [Linked]

2009-07-10T20:06:16Z

Hi Steve -

Thanks for the comment.

There's no authority to place orders against a Schedule BPA when the Schedule contract expires. That position is based on GAO and court cases. One GAO case for those particular facts is
B-311254.2, Canon USA, Inc., June 10, 2008. In that decision, GAO said:

"Consistent with the position taken by the Army, GSA’s view is that, when a BPA holder’s FSS contract expires, the BPA is no longer viable as there is no longer an active contract against which orders may be placed. Thus, in this case, when Canon’s FSS contract expired, its BPA, established pursuant to that FSS contract, also expired as a valid ordering vehicle for new photocopier service leases."
...
"We agree with Canon that an FSS BPA is a separate agreement from its associated FSS contract. Nevertheless, we conclude that when Canon’s FSS contract expired, Canon’s BPA ceased to be a valid procurement vehicle for the placement of new orders because, as explained below, an FSS BPA is in effect solely a pass-through to the BPA holder’s FSS contract and does not provide an independent foundation for issuing orders."

But the facts you describe are distinguishable from GAO's holding in Canon and from the blog's Q&A.

A Schedule BPA, which is not a contract, depends for its continued existence on its Schedule contract. But, as the original blog post points out, a Schedule order, which is itself a contract action, does not depend on its Schedule contract for its continued existence.

There is no authority to issue any new orders against an expired Schedule BPA. You don't need the Schedule BPA to place a Schedule order anyway, as you can always issue new orders directly against the Schedule contract. (I'm assuming the Schedule contract is still in effect when I make that last statement.)

I know of no reason why you could not exercise an option on a Schedule order placed against a Schedule BPA when the Schedule BPA has expired. In an expired-BPA situation, you cannot issue new orders against it. And, as the Canon decision points out, a BPA dies when its Schedule contract dies.

But Canon was (a) about new orders and not options on existing orders, and (b) about a canceled Schedule contract rather than an expired Schedule BPA. I don't know of any GAO or court case specifically adressing your facts.

For cases on the distinction between BPAs and contracts see:

http://schedulesolutions.net/2009/01/22/is-a-bpa-a-contract.aspx

Note that the original blog post said that options on Schedule orders could still be exercised even if that Schedule contract no longer exists but that options on Schedule BPAs could not be exercised if that Schedule contract no longer exists. That is how the option exercise authority varies from BPA to order in the face of an expired Schedule contract. But what is discussed in the blog Q&A is different than your particular set of facts.

Thanks again,
Dave

Comment on Blog 10: Options on Task Orders [Linked]

2009-07-10T16:18:12Z

I awarded a task order with a Base Period of 12 months and 4 option periods of 12 months each. The BPA expired two years later. Why can't I exercise the two remaining option periods under this task order.

Comment on 14. Can Socioeconomic Status Be Used as a Weighted Best Value Evaluation Factor...

2009-06-02T20:24:47Z

But how could a factor called "Socioeconomic Status" have any evaluation score other than Pass or Fail? The Schedule contractor is either Large or Small, right?

An anonymous but creative 1102 suggested this approach in a hypothetical RFQ:

[Instructions] Socioeconomic Status
Your quote shall identify the business size and socioeconomic status of each team member, based upon both your basic GSA Schedule contract and your self-certification at time of RFQ closing. The Contracting Officer will compare your self-certification against what is designated for your firm within CCR, and in the event of a conflict, may refer any final Small Business determinations to the Small Business Administration. If the size status listed in CCR is different than the size status in the Schedule contract, this difference should be explained in narrative form. Task Order contracting officers may, at their discretion, allow recertifications for individual Task Orders but are under no obligation to do so. This submission shall not exceed two pages in length.

[Evaluation] Socioeconomic Status
It is the policy of the Government to encourage the full participation of small businesses in the procurement process. As a result, this RFQ includes a preference for small businesses. The Government will review the size standard of you and your Team Members under both your basic GSA Schedule contract and your self-certification at time of RFQ closing. The Contracting Officer will compare the self-certification against what is designated for you within CCR, and in the event of a conflict, may refer any final Small Business determinations to the Small Business Administration. A Team Member composition in which the majority of the members are designated as small businesses under BOTH their basic GSA Schedule contracts and under their verified self-certifications, will be rated more favorably than a Team Member composition in which a majority of the proposed Team Members are designated as small under ONE BUT NOT THE OTHER. In turn, a composition in which a majority of the Team Members are designated as large businesses under BOTH their basic GSA Schedule contracts and their verified self certifications, will be evaluated least favorably under this Factor.

Anybody have any thoughts on this approach?

What about the (different than above) use of Socioeconomic Status as a factor but only as a "Pass-Fail" evaluation factor? Is that somehow too close to being an impermissible set-aside? Why or why not? A set-aside says you won't evaluate the quotes from Large businesses, but a pass-fail Socioeconomic Status factor means you aren't rejecting the Large Business quotes out-of-hand - - simply that all the Large business quotes will get "0" (or "Fail") for that factor. That may be a big deal or maybe it won't, depending on how the various factors are weighted with respect to the Socioeconomic Status factor.

Comment on Recovery Act Conference on March 5, 2009

2009-04-20T17:45:21Z

Brad -

This looks like good information as of the March 5, 2009 date it was presented.

Will you be updating it to reflect...

1. On March 31, 2009 the FAR was revised in FAC 2005-32 to include the clauses and procedural requirements related to the Recovery Act. When you gave the presentation, all of that was only proposed language.

2. On April 3, 2009 OMB issued M-09-15 "Updated Implementing Guidance for the American Recovery and Reinvestment Act of 2009." This memo revised the earlier 2/18/09 OMB Memo M-09-10 referenced in the slides.

3. On April 9, 2009 the GSA Acting Chief Acquisition Officer issued GSA Acquisition Letter V-09-01 "American Recovery & Reinvestment Act Implementation."

In your Recovery Act update, could you please address (and cite references for):

a. Does the requirement to post Recovery Act Schedule procurements to FedBizOpps also extend to the Request for Information (RFI) to Schedule contractors an agency would previously post only on GSA eBuy?

b. Slide #4 mentions only pre-solicitation notices. None of the slides specifically mentions award notices. Do you have any slides with respect to posting notice after award for Recovery Act Schedule orders?

c. FAR Part 6 does not apply to Schedule orders. During the presentation you speculated on whether or not Recovery Act Schedule orders with a FAR 8.405-6 limited sources justification would be considered "non-competitive" for the purpose of the posting requirements. How has this been resolved?

d. Slide #5 lists six Schedules covered in the presentation. As of the date I am writing this comment (4/20/09) none of those six Schedules include the Recovery Act clauses from FAC 2005-32. Should agencies now be adding those new clauses to their Recovery Act orders (or BPAs)? At what point (event) should agencies stop adding the FAC 2005-32 clauses?

e. Is a Labor Hour or Time & Material order against a Schedule considered "fixed price" for the purpose of the Recovery Act notice requirements?

Thanks,
Dave

Comment on Blog 10: Options on Task Orders [Linked]

2009-04-20T15:55:57Z

Hi Chris -

Thanks for the comment. Your interpretations certainly seem reasonable to me. GSA has done a lousy job in writing that fourth bullet on its "Options on Orders" web page. In fact, some people interpret "inclusive of options" there as refering to options on the Schedule contract. Others believe the options referred to in that fourth bullet actually mean options on the orders. The fourth bullet can be read in two contradictory ways, depending on what the reader believes the words "inclusive of options" are actually modifying there.

I don't think this long-standing dispute will be resolved without the GSAR 538 re-write. And remember that the GSAR change is still only proposed as of the date I'm writing this comment. I've recently heard that some people within GSA are actually lobbying against the GSAR re-write on this issue: they firmly believe that ordering agencies have no authority to exercise a previously-included and evaluated task order option if the Schedule contract no longer exists at the time of task order option exercise. When I ask them to cite a reference for such a prohibition (and you really need something solid if you ever start a sentence with "Ordering officers shall not..."), I don't get anything meaningful. And some of those dissenters would say that ordering officers can INCLUDE task order options in accordance with that fourth bullet but just could not later EXERCISE those same options if something happens to the Schedule contract. (I don't buy that restrictive reading either.)

I am reading the proposed GSAR 538 re-write (which is not a model of clarity either, and to which I have submitted comments) the same way you are, assuming you are using "expiration of the schedule contract" to mean the "maximum 20-year-expiration date" (that is, the full period of performance inclusive of Schedule contract options) and not simply the next "five-year-expiration date" of the Schedule contract.

If the GSAM change is adopted in a form similar to the proposed rule I've commented on, I think GSA will need to then revise the "Options on Orders" page (and the MAS Desk Reference, Page 22).

But, who am I? Not a GSA policy maker, certainly. Just an 1102 with an opinion. And we've got plenty of those running around. Which is to be expected in a policy vacuum.

At least the GSAR re-write is a step in the right direction on this issue, so I am thankful for that. But it will require some implementing guidance on the scenario you raise and a clarification at the "Options on Orders" web page. (But I won't be holding my breath for either, I'm afraid.)

I agree with you that the fourth bullet on the "Options of Orders" pages gives a different implementation than the one in the proposed GSAR re-write, which adds a five-year-beyond limitation.

Thanks again.
Dave

Comment on Blog 10: Options on Task Orders [Linked]

2009-04-20T14:14:01Z

Dave,

Thank you for taking the time to post this Blog. It has been very informative. However, I did want to try to obtain a clarification on the "inclusion of options." According to GSA “Options on Orders” web page, options may be included in an order as long as those order options “do not extend beyond the maximum period of the Schedule contract, including option year periods.” I believe you were answering my question in your "Question A" section. However, I think it is beneficial to bring the issue/question up again...
Based on the way the GSA page/guidance is written, I believe the below is a proper interpretation:
If a schedule contract has 3 years left in its current period of performance and 1 more potential option period of 5 years, then the maximum period of performance on this specific schedule contract is 8 years. A contracting officer would have no problem issuing an order with a base + 4 option periods. However, if the schedule contract only had 3 years left in its maximum performance period, then the contracting officer would have to reduce the number of option periods so that the last option period on the order may be exercised prior to the expiration of the schedule contract so that the services on the order would not extend "too far beyond the expiration of the schedule contract."
However, with the proposed GSAR 538 rewrite, my interpretation is changed completely. The rewrite contains language stating "no orders may extend more than five (5) years after the expiration of the basic contract." I interpret this to mean that a contracting officer may include options in a task order regardless of the amount of time left on its maximum performance period as long as the order (inclusive of options) does not extend more than 5 years after the expiration of the schedule contract.

I write this question/comment because I believe that some may continue to have questions regarding the inclusion of options based on the fourth bullet from the GSA Options on Orders web page.

Thank you again for this blog and I would appreciate if you had the time to provide a response to this "lengthy" comment.

Comment on About this Site

2009-04-02T19:57:38Z

Susan -

Thank you so much for the kind words. I'm glad you are finding useful information here at our little home grown web site. I hardly think we rise to the level of an Innovation in Government Award but I appreciate the thought nonetheless. Of course, if you would like to nominate us for one, we wouldn't turn you away!

Thanks, again!

-Brad