Professional Compensation Clause, FAR 52.222-46
Started by Tedd · Apr 17, 2013 · 3 replies
- TOriginal post
Tedd
Apr 17, 2013 · 13y ago
I am trying to determine if FAR 52.222-46 is required to be inserted into a services contract that is over the minimum ($650K) and will employ a significant number of professional employees where there is no incumbent contract. While the prescribing language of FAR 22.1103 states it as "shall", the analysis required appears to require an the use of the incumbents rates as a factor. Further, the proposed contract vehicle is an MAC IDIQ LPTA RFP. As such, the the prescribing language, which states that urealistically low-priced offers may be assessed adversely as one of the factors considered in making an award, doesn't seem to make sense in an LPTA environment.
Is the clause required to be inserted? Is it discretionary? Can it be inserted?
(I am familiar with CRAssociates, and the cases cited therein. They don't answer this question, but descibe the difficulty in implementing the clause.)
- j
ji20874
Apr 17, 2013 · 13y ago
The clause is required. FAR 22.1103 says so.
Paragraph ( a ) of the clause talks about recompetition in the first sentence, but paragraphs ( b ) and ( c ) of the clause are good, solid paragraphs that should be of interest to you. Do you want the sort of information that is asked for in paragraph ( a )? If so, insert the clause.
If you don't want the sort of information that is asked for in paragraph ( a ), well, remember that the clause is required, and you are required to evaluate the information as part of your selection process. If you don't want the clause, you will need a FAR deviation -- see FAR Subpart 1.4 -- some agencies put the approval level for deviations high up the ladder, some lower.
Are you really buying professional services? Really? This is a serious question. But if you are, I recommend including the clause and including the information called for in paragraph ( a ) in your technical evaluation. With LPTA, I suppose that is pass/fail.
- T
Tedd
Apr 18, 2013 · 13y ago
Thanks. I think you are probably correct, however, case after case (CRAssociates and OVM Medical) reject as legally insufficient an analysis that does not include a review of incumbent salaries. Since we have no incumbent, we will fall short. Perhaps the GAO would simply find that where there is NO incumbent, we simply judge the adequacy of the evaluation by looking at national salary information.
And that's the other problem with including the clause. We are buying locum tenens doctors, nurses, and other temporary medical services. There are no or very few salary averages for these positions, much less one that is clearly applicable to our locales. SO, we are required to insert the clause, but have NONE of the information the GAO tells us we need to do the analysis. It seems like a futile effort.
- j
ji20874
Apr 18, 2013 · 13y ago
Can you get the information? Maybe you reach out to a hospital or other medical services provider in your area as part of your market research efforts? Or maybe you contract with a medical services salary expert to assist you in the evaluation of offeror proposals? You may have thought about these approaches already...