FAR 51 Deviation Authority is expired!

Here’s what you need to know.  Contracting officers were permitted to give contractors access to the Federal Supply Schedule (FSS) and GSA Global Supply Programs if appropriate, for the fulfillment of their agency requirements. They used the FAR 51 Deviation Authority vehicle for this purpose. On 23 October, the FAR 51 Deviation expired. It will no longer be used on orders placed after this date. Under Refresh 1, clause CI-FSS-056 Federal Acquisition Regulation (FAR) Part 51 Deviation Authority (Federal Supply Schedules) (Jan 2010) is deleted.

In lieu of FAR 51 Deviation, agencies may use Order Level Material (OLM) procedures to acquire other direct costs (OCDs) and material support items to meet specific order requirements. Additional information for OLMs may be found at www.gsa.gov/olm.

Many question if a contracting officer can issue a letter of authority (required by the Deviation) anytime during the life of the order, if the order or BPA was awarded on or before 23 October 2019. The short answer is yes, as long as the order was issued prior to the 23 October Deviation expiration date. However, if the BPA was awarded prior to then, and subsequent award terms were awarded after 23 October, those subsequent award terms may not use the deviation.

Wondering if you are grandfathered in and still able to take advantage of the FAR 51 Deviation Authority? Give us a call.

GSA, the Fed’s Amazon

Three months ago, GSA issued a solicitation for an e-marketplace so agencies can purchase off-the-shelf products. GSA intends for the portal to fulfill the Commercial Platforms pillar of its Federal Marketplace Strategy, while simultaneously streamlining agencies’ annual $260 million online spendings. (FedScoop, January 13, 2020)

Recently GSA clarified and added to the e-marketplace solicitation by stating, “offerors must have a functioning e-marketplace platform with B2B capabilities.” The amended RFP points out that “GSA is not seeking development services to build a new platform as that is not permissible under the authority granted under the [2018 National Defense Authorization Act] Section 846 legislation.” In addition, the updated RFP spells out that contracts will only be awarded to offerors receiving an “Acceptable” rating on both their performance work statement and live-test demonstration. This is a change from the original requirement that “all responsible offerors whose proposal meets the requirements outlined in this solicitation and is determined to provide the greatest overall benefit to the government in response to the requirement.”

The live-test demonstration section was updated allowing offerors up to 20 days post-award to meet the Mandatory Sources sections of the Statement of Objectives: Small Business Identification, AbilityOne and “Essentially the Same” items. (ibid)

Questions about all of the solicitation changes and updates? Give us a call.

 

Unpricing GSA

The Coalition for Government Procurement has been lobbying for an unpriced schedule, and Section 876 of Fiscal Year 2019 National Defense Authorization Act provides just that. It authorizes agencies, specifically GSA and its Schedules (41 USC 152) to not include price or cost as an evaluation criterion when awarding hourly rate and service contracts.  (Federal News Network, January 10, 2020)

An unpriced schedule is seen as more efficient by:

  • Allowing for evaluation against actual requirements
  • Reducing oversight activities associated with auditing of the award and the Price Reductions Clause
  • Honing competition by permitting customers to highlight speed and need for agency-specific service requirements
  • Allowing for common commercial practices in structuring contracts
  • Reducing hurdles to market entry for small businesses by allowing federal customers to leverage technology to meet end mission goals (ibid)

As we mentioned earlier in the week, GSA’s IG found that current pricing tools are resulting in insufficient price determinations. In many cases, the use of the CALC and CODCD pricing tools result in agency overpayment. The IG report stated, the “intent of the MAS Program is to leverage the government’s buying power in an effort to provide customer agencies with competitive, market-based pricing… GSA’s contracting officers are required to seek the best price granted to the contractor’s most favored commercial customer.”

The report outlines GSAM requirements that guide pricing determinations, such as requiring the government to pursue most favored customer pricing. It also defines methods that contracting officers should use to compare the terms and conditions of the MAS solicitation with those of the offeror’s commercial customers. MAS allows agencies to take advantage of the government’s purchasing power; moreover, it offers a channel for agencies to obtain commercial services and products swiftly. Per the statute, all responsible sources participate in the program, and all orders “result in the lowest overall cost alternative to meet the needs of the Federal Government (41 USC 152).” (ibid)

GSAR 538.270-1, states, “the Government recognizes that the terms and conditions of commercial sales vary and there may be legitimate reasons why the best price is not achieved.” This language actually reinforces leveraging the unpriced schedule. It highlights the complexity around contract-level pricing that is removed from government requirements reflected in a specific order. (ibid)

Federal News Network editorializes that an unpriced schedule focuses the price evaluation on actual requirements in real-time as they are being sought in the market. This type of competition, for agency-specific requirements, results in the most cost-effective, best value outcome for the agency.When resources are focused on competition, it’s a win for agencies, GSA and industry providers.

If you’re interested in learning more, give us a call.

GSA Pricing Tools, Untooling

A GSA internal watchdog has found the two comparative labor pricing tools contain flawed data and recommends GSA stop using the pricing tools. GSA however, plans to keep the current pricing tools in place for now. (FCS, January 2, 2020)

This report shows the use of discrepant data in flawed equations, thus arriving at unreliable pricing data. GSA’s Inspector General (IG) said, “the data and calculations are so flawed, they’re dulling the federal government’s buying power edge, as well as possibly resulting in the overpayment on contracts.” (ibid)

Julie Dunne, FAS Acting Commissioner, agrees with the IG that the two tools, Contract-Awarded Labor Category tool (CALC)  and Contract Operations Division Contractors Database (CODCD) used for labor pricing, are not the optimal. She also agrees about a need for pricing comparison capabilities; however, she refrains from wanting to scrap these tools in lieu of something else that might bring even greater inaccuracies. 

Dunne went on to say that without the current tools, labor pricing would be determined by individual searches via the internet resulting in more inaccuracies. She acknowledged that decisions on comparison pricing for labor have always been the judgment of FAS contracting officers. “Disallowing access to aggregated information about previously-awarded MAS contracts does not further our goal of improving pricing. Quality price analyses are the result of training, expertise and appropriate controls. FAS believes our continued focus in these areas will improve how comparative data is used in our MAS award documentation.” (ibid)

Have questions concerning your current labor pricing? Give us a call.

Government Contracting Automation?

Recent survey results of federal acquisition senior procurement executives and chief acquisition officers provide a window into the world of government procurement and what should occur over the next few years, according to Kraig Conrad CEO of the National Contract Management Association (NCMA), who conducted the survey. (Federal News Network, January 7, 2020)

According to NCMA, the three major findings from the survey are:

  • The role of the contracting officer is changing
  • The business of contracting is changing.
  • The workforce is changing.

The survey found that respondents are looking to shorten the procurement cycle while giving the Contracting Officer the ability to be less restricted and able to focus on providing solutions as opposed to getting mired in the routine administrative tasks. According to Conrad, the acquisition professional should see their role as a solution maker and not a compliance “police” officer, which ultimately limits the Contracting Officer’s impact. (ibid)

One element that threads itself through all of the findings is the need for top cover from agency executives to allow contracting officers as well as program managers the leeway and freedom to try different things and bring new ideas to the table. Conrad gives the example of the Air Force pitch days, in which 51 contracts were awarded to companies that have little or no experience with the military. The service doled out $3.5 million to those small businesses on a Wednesday — each in 15 minutes or less. The first installments of the companies’ contracts were in their bank accounts almost immediately. (ibid)

Conrad noted, “we heard from a lot of our senior procurement executives that in an environment where they feel they have top cover, the risk aversion conversation is easier to overcome. Otherwise, you will go right back to the same old model where everyone is trying to protect themselves. That top cover really only comes when someone in a leadership structure is not afraid to get in trouble. You run into situations where the senior leadership doesn’t feel they are covered or protected. It will take leaders stepping out and leaning over these challenges to be able to open challenges for their workforce.” (ibid)

Another area of impact on federal acquisition is technology. The survey white paper states “Several senior leaders even described a future in which an encyclopedic knowledge of the rules and regulations will be devalued as artificial intelligence further automates their application to acquisitions or incorporates regulatory provisions and requirements into contracting app algorithms.” (ibid)

According to Conrad, “we need to get better at how we train into the workforce. Those that have data science understanding need to tell a really good story with data. How are the contracting officers the solution makers? That really comes down to competency. What is those balance of skills that will allow someone to be competent as a business leader in this function? That is one of the areas, because of technology advances, that the technical components will soon be outweighed by the software skill needs.” Conrad feels the “softer skills” include a baseline knowledge of the actual problem/mission, products, and their related markets. (ibid)

Most senior leaders interviewed expect a shift from tactical to strategic work as technology is used for repetitive or routine tasks. It’s expected that many administrative tasks, for example, contract modifications, will become fully automated. Some senior leaders look to AI to further automate regulatory provisions and requirements into contracting app algorithms. (ibid)

Conrad expects to meet with federal acquisition leaders to discuss the survey results and begin the process of changing the role of the contracting officer.

Wondering if this will affect how you work with a Contracting Officer? Give us a call.