how to structure emergency service

By experience.  The BPA route lacks the ability to unilaterally order the emergency services that either a indefinite delivery requirements or single award IDIQ contract would allow.  The contractor under a BPA would usually respond but there were times when he/she would not and caused the need and extra effort to go beyond the BPA.

cdhames said:

How would one structure a long-term emergency services vehicle for the remediation/restoration of facilities (for example a water pipe rupturing)?

A requirements contract seems appropriate for the situation you've described.

That would be the natural assumption since both delivery and quantity are unknown (assuming single award).  The problem is that TO's couldn't be consistently issued with a 2-4 hour response time.  What if something broke on a Saturday or at Midnight?  The contractor is going to be required to be on call 24/7 to meet the 2-4 hour window but how do you issue a TO against it?  Do you park money on an annual TO? 

I don't think a C type service contract would be appropriate either (disregarding that fact that quantity and delivery are an unknown).  What kind of unit of issue would you use?  We've just been debating the scenario back and forth and no one's been able to propose a good answer.  Someone suggested a 5 year BPA to meet the "long-term" requirement but as in the IDV example, you either do a single award with J&A (assuming FAR 13.5 above SAT) to comply with the emergency nature and 2-4 hour response time, or are compelled to get competition which you would then be unable to comply with the 2-4 hour response time. 

Thoughts?

I think you're muddling together a lot of different concepts and potentially making this more complicated than it needs to be. Going back to the requirements contract suggestion, why couldn't a 2-4 hour window be written into the terms of the contract? Any potential awardee would need to show that it is capable of providing 24/7 standby support within a specific window. The consideration for this is the promise that the Government will go directly to that contractor when a need arises. In the solicitation for the work, you would provide the historical workload for these services so that contractors have the data to assess risk and provide sound pricing.

well, let's assume historical workload and pricing wouldn't be a concern.  Under a Requirements contract, how would you award a TO within 4 hours starting at 12AM on a Saturday?

Some agencies permit program ordering officers who can place orders against a vehicle up to a certain amount (I believe in my last agency it was $150k) using their GPC.

That got me thinking: Couldn't many of these services be done for less than the $2,500 micro-purchase threshold? Even if the price goes over that amount, wouldn't this be enough to start work and buy a CO time to cut a PO to finish the job? You may not need to set up a contract or ordering vehicle at all.

Good luck.

cdhames said:

well, let's assume historical workload and pricing wouldn't be a concern.  Under a Requirements contract, how would you award a TO within 4 hours starting at 12AM on a Saturday?

I assume there's an on-site Government representative at midnight on Saturday. The contracting officer could delegate authority to that representative to issue task orders orally.

Don Mansfield said:

The contracting officer could delegate authority

if they had redelegation authority

cdhames said:

How would one structure a long-term emergency services vehicle for the remediation/restoration of facilities (for example a water pipe rupturing)?

Competitive, multiple award BPA so competition won’t be required at the call level.  And it would give you an out in case someone refuses a call.  To offer the most flexibility as related to ordering, a CO could park money on a call.  If annual funds are used, don’t overestimate the call amount unless you don’t mind losing the surplus.

jwomack said:

Competitive, multiple award BPA so competition won’t be required at the call level.  And it would give you an out in case someone refuses a call.  To offer the most flexibility as related to ordering, a CO could park money on a call.  If annual funds are used, don’t overestimate the call amount unless you don’t mind losing the surplus.

1. Why would awarding multiple BPAs on a competitive basis relieve you from any competition requirements for purchases made under those BPAs?

2. What do you mean by "a CO could park money on a call"? Do you mean the CO could obligate funds in excess of what's currently required in anticipation of future work?

1.  Having a competitive process to get one of the BPAs in the first place is what satisfies the competition requirement.  Competition can be at the BPA level or call level if the solicitation says that's how the BPA will operate.  There is no requirement to have competition at both points.

2.  CO could place a call (obligate the funds) for a group of anticipated needs.  Then authorize others to place non-obligating work orders under that call.

See B-294974.6 https://www.gao.gov/decisions/bidpro/2949746.pdf

"Statutory requirement to obtain maximum practicable competition in simplified acquisitions is met where agency uses competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors; under those circumstances, there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs."

jwomack, that seems in direct contradiction to FAR 13.303-5(c) and (d).

jwomack,

I remember that case now, thanks.

I think you're #2 would result in the violation of the Recording statute (31 U.S.C. 1501). The CO would be overrecording the obligation for the work that was anticipated, but not yet identified or ordered. The Government wouldn't have any liability unless and until it ordered the anticipated work. That would not be a definite liability. From pp. 7-55 & 7-56 of the GAO Redbook:

Quote

[T]he core attribute of an obligation recordable under 31 U.S.C. § 1501 is that it creates a definite legal liability on the part of the federal government. While the precise amount of the liability may be undefined initially, an “obligational event,” reflecting a definite liability, may occur even though the amount of the liability at that time is undefined. A “contingent liability” is fundamentally different. In contrast to a definite liability, a contingent liability does not create an obligation unless and until the contingency materializes.

Contingent liabilities take different forms depending on the circumstances. However, whatever form it takes, a contingent liability by definition lacks the definiteness that is essential to the concept of an obligation. Thus, GAO defines a “contingent liability” generically as “[a]n existing condition, situation, or set of circumstances that poses the possibility of a loss to an agency that will ultimately be resolved when one or more events occur or fail to occur.”

What you propose would be similar to obligating funds at award for anticipated changes or obligating the amount for award fee before it has been earned. It's common practice, but that doesn't make it legal. I don't know what agency you work for, but DoD requires that funds be "committed" (i.e., administratively reserved) to cover expected future obligations (see DoD FMR Volume 3, Chapter 8).

jwomack said:

And it would give you an out in case someone refuses a call.

Whether a competitive BPA as suggested or a requirements as suggested for the former what do you do with a contractor who refuses, once, twice or more, kick them to the BPA curb?   For the latter if you want a guarantee that they will be available you will pay for it but you retain the unilateral right to order.  Their failure to honor the TO would mean T4D for the contract.

So you need to decide what you want an economical and simple tool where the contractor can always refuse at anytime and you have to start dialing for dollars for someone who will meet your need or a firm contract that requires performance.  You insist on need to respond but how the heck do you do the dialing on Sunday or Midnight when multiple vendors just do not answer the phone?  The ability of a firm contract (requirements or ???) establishes and provides a better guarantee that the contractor will set up an adequate response system.

On the funding issue I do not get it.  You either have money budgeted for the anticipated repairs or you do not and it should just be sitting there for the commitment when the BPA call or requirements TO is issued.  If the money is really the issue, which again escapes me, but if it is then do a Time and Materials contract that demands the response.

I have paraphrased the FAR below and added emphasis......

BPA - A blanket purchase agreement (BPA) is a simplified method of filling anticipated repetitive needs for supplies or services by establishing “charge accounts” with qualified sources of supply.

BPAs should be established for use by an organization responsible for providing supplies for its own operations or for other offices, installations, projects, or functions. Such organizations, for example, may be organized supply points, separate independent or detached field parties, or one-person posts or activities.

The use of BPAs does not exempt an agency from the responsibility for keeping obligations and expenditures within available funds.

The following are circumstances under which contracting officers may establish BPAs:

There is a wide variety of items in a broad class of supplies or services that are generally purchased, but the exact items, quantities, and delivery requirements are not known in advance and may vary considerably.

There is a need to provide commercial sources of supply for one or more offices or projects in a given area that do not have or need authority to purchase otherwise.

The use of this procedure would avoid the writing of numerous purchase orders.

There is no existing requirements contract for the same supply or service that the contracting activity is required to use.

Requirements -  Application.  (1) A requirements contract may be appropriate for acquiring any supplies or services when the Government anticipates recurring requirements but cannot predetermine the precise quantities of supplies or services that designated Government activities will need during a definite period.

Time and Materials - Application. A time-and-materials contract may be used only when it is not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence. See 12.207(b) for the use of time-and-material contracts for certain commercial services.

Quote

The only way I can think of doing this would be foregoing the "long-term" portion and single sourcing a BPA to a vendor 12 months at a time.

A FAR Part 13 BPA is nothing but a charge account---a paper and labor-saving billing agreement for when you expect to issue a lot of repetitive purchase orders. A BPA is not a contractual agreement. It is not a contracting "vehicle." It does not involve a binding commitment of any kind to do anything.

And you don't need a "competitive process" to establish a Part 13 BPA, because the establishment of a BPA is not an acquisition. You don't "single source" a BPA, either. A BPA does not establish a source. At best, it identifies a potential source.

Fifteen posts in response to the opener. Sixteen if you count this one, all in an attempt to sort out someone's thinking about one of the simplest of all no-brainer ideas: "Bill me once a month instead of for each purchase order."

This is a beginners only forum.

Right. I've edited.

On ‎3‎/‎27‎/‎2018 at 2:08 PM, cdhames said:

How would one structure a long-term emergency services vehicle for the remediation/restoration of facilities (for example a water pipe rupturing)?

cdhames said:

What if something broke on a Saturday or at Midnight?

cdhames said:

The contractor is going to be required to be on call 24/7 to meet the 2-4 hour window but how do you issue a TO against it?

cdhames said:

Do you park money on an annual TO?

cdhames said:

Under a Requirements contract, how would you award a TO within 4 hours starting at 12AM on a Saturday?

It seems that these were the questions of the OP which have been attempted to be answered.

Vern Edwards said:

Fifteen posts in response to the opener. Sixteen if you count this one, all in an attempt to sort out someone's thinking about one of the simplest of all no-brainer ideas: "Bill me once a month instead of for each purchase order."

So, to be clear, Vern, you once awarded a FFP contract for 24/7 ad hoc emergency services, and it worked out? That's wonderful.

Is it unreasonable for others to question that this will always result in the best arrangement?

Is your example one that might require actual experience in that specific situation to know what may or may not work?

Might there be other reasonable perspectives from the lesser 1102s who posted prior to you, or are they without merit now that you've given the authoritative response?

FrankJon said:

So, to be clear, Vern, you once awarded a FFP contract for 24/7 ad hoc services, and it worked out? That's wonderful.

Is it unreasonable for others to question that this will always result in the best arrangement?

@FrankJon

Where did you get the idea that I ever did that or suggested doing it? You must not have had your coffee before you read my post. That, or you were on other drugs.

If it were me, I'd rely on credit card micro-purchases, unpriced purchase orders, a requirements contract, or all of the foregoing, depending on the nature and history of the requirement. When I was a base contracting officer, before credit cards, we had emergency COs on-call from their homes to take care of such problems that couldn't be handled by base civil engineering personnel. 

Seven of the response posts were about BPAs. My complaint is that the OP (and at least one of the respondents) apparently thought a BPA would work, and somebody should have explained that a BPA is just a non-binding billing arrangement, sometimes with a nonbinding "call" feature (although FAR does not mention the latter).

Your suggestion of a requirements contract was pretty good, although it might have been accompanied with more explanation. But a requirements contract might not have been necessary or appropriate, depending on the nature of the requirement.

What seemed to bother the OP was that the agency might need someone for something in the middle of the night and he/she couldn't figure out how to "structure" a way to do it. There are a bunch of ways, but which is best depends on the nature of the agency's need. You might need different arrangements for electrical and plumbing, etc.

The fact is that a single contract, 24/7, 2-4 hour response time, all-purpose, on-call service might not be readily available, depending on the nature of the requirement.

Quote

Might there be other reasonable perspectives from the lesser 1102s who posted prior to you, or are they without merit now that you've given the authoritative response?

You still want an answer to that?

Vern:

Thank you.

On ‎3‎/‎28‎/‎2018 at 5:22 AM, FrankJon said:

A requirements contract seems appropriate for the situation you've described.

How would a requirements contract be appropriate in this situation?  Wouldn't an agency still have to issue a task order within 2-4 hours (midnight, Saturday)?

Vern Edwards said:

And you don't need a "competitive process" to establish a Part 13 BPA, because the establishment of a BPA is not an acquisition. You don't "single source" a BPA, either. A BPA does not establish a source. At best, it identifies a potential source.

I understand this, but I still have to comply with FAR 13.303-5(c) and (d) which would take time.  I think my question remains, how do you craft an agreement, or contracting "vehicle" that allows for execution within 2-4 hours on a Saturday at midnight when the delivery and quantity are undefined?  Let's continue to use the example of a water pipe bursting at midnight, and assume remediation is required immediately.

Cdhames - What is the ballpark historical cost of repair for these services?

Let's say above the micropurchase but below the SAT.  Sorry I should have input this somewhere above.

cdhames said:

I think my question remains, how do you craft an agreement, or contracting "vehicle" that allows for execution within 2-4 hours on a Saturday at midnight when the delivery and quantity are undefined?  Let's continue to use the example of a water pipe bursting at midnight, and assume remediation is required immediately.

No one can answer your questions, because:

1. we don't know anything about your office and its resources (it apparently wants 24/7 on-call emergency services, but can't provide emergency contracting), and

2. we don't know enough about your requirements.

What kind of "emergency service" are you talking about? You've mentioned a "ruptured water pipe." Just an overhead pipe or a water main? Not the same kind of emergency. What other kinds of emergency repairs. Electrical? HVAC? Elevators? What kind of facilities? Are they In a city or remote? Are they in good shape or bad? How frequently has your agency needed such emergency services in the past year?

Do you really want to award one "vehicle" (i.e., contract) under which you can order any old emergency service that might come up some time or never?

Come on, cdhames, THINK! I know that you're a beginner, but even a beginner should be able to see that no one can advise you without a lot more information. Are you asking for a complete tutorial on contracting methods and procedures? Do you want someone to tell you, start to finish, how to fulfill a requirement that you haven't described in detail? A complete contracting tutorial? No one has the time for that kind of thing. (Certainly not anyone who has a job.)

I hate to be impatient with you, but you're really not thinking and communicating like you're ready for prime time. You might as well have come up and asked, "How do I fly an airplane?"

If you've been tasked with coming up with this "vehicle" you keep asking about, you need to ask your boss for some help.

Vern Edwards said:

Come on, cdhames, THINK! I know that you're a beginner, but even a beginner should be able to see that no one can advise you without more information. Are you asking for a complete tutorial on contracting methods and procedures? Do you want someone to tell you, start to finish, how to fulfill a requirement that you haven't described in detail? A complete contracting tutorial? No one has the time for that kind of thing.

Hi Vern.  I'm not really asking for a full Source Selection Plan and AP.  We're just spitballing a scenario that I haven't found a decent answer to.  I have asked this scenario among my peers in my office and haven't received an answer I think is sufficient because it doesn't address the limitations of the FAR.  I also think I've provided enough information, other than agency which you could have assumed to be DoD since I mention bases.  Other than that, what do you need?  It's a water pipe inside a facility that burst.  Let's narrow it down to just water damage.  Would that be better?  Tomorrow, someone could leave a faucet plugged and overnight a building could flood.  I've given you the dollar value, under the SAT.  I've given you the response time, 2-4 hours.  I've given you quantity and delivery: undefined. 

By the way I'm not auditioning for prime time, thank you.  Just asking a question in the beginners forum, because I'd like to learn from my fellow peers and experts.  You've said it yourself, the state of our acquisition community is aweful.  Wifcon, however, is a repository for the expertise we seem to be missing and if you'd allow us to ask questions and allow others to provide mentorship (right or wrong) that might improve the community somewhat.

I feel stupid because when I have an emergency at home or in the office, we just call the repair folks and they come over. I know I have to pay extra for expedited or weekend service. I have also had home warranties (a type of insurance policy) where I called the administrator and described my problem. If my problem was covered (and it usually was) then they dispatched a repairperson or service team.

I'm feeling stupid because I can't figure out where the FAR wouldn't allow a contracting activity to have a BOA with a repair service (or more than one service) that would allow for a previously negotiated premium to be paid, over and above the normal "commercial item" services that were customarily provided, for expedited service. For example, the charge is $100 per visit, plus parts. If 2-4 hour turnaround time is desired, the BOA would say that the charge is $500 per visit. The BOA would allow the services to be initiated verbally (based on authorized government person making the request) and the contracting officer would followup with the paperwork later.

Again, I feel stupid because I just thought that's how it would work.

@cdhames

How often did you need such emergency plumbing services during the last fiscal year?

How often did the price for such services exceed $25,000 per event?

Vern Edwards said:

@cdhames

How often did you need such emergency plumbing services during the last fiscal year?

How often did the price for such services exceed $25,000 per event?

Does it matter how often it exceeds $25,000?  Let's say it exceeds $25,000, 5 times a year, which is 25% of the average total, historical data available so 20 times a year a rupture or flooding occurs inside a facility (this is just pure scenario by the way).

Okay, 20 ruptures per year, five of which are greater than $25,000. I would handle each event as a separate simplified acquisition of a commercial item. For the acquisitions that will  exceed $25,000 we'll use the synopsis exception at FAR 5.202(a)(2). Remember that FAR Part 6 does not apply.

I'd contact at least three local small business plumbers or as many as necessary in order to find three that will informally agree to provide emergency plumbing services on call, 24/7, with a two hour response time. I'd establish a priced BPA with each plumber, providing for fair and reasonable service rates and Davis-Bacon coverage. Purchase orders would be placed with the plumbers on a rotational basis. (I'm not including repair of flooding damage.)

I'd appoint an emergency services CO (ECO) and a backup (rotate through the staff on a monthly basis) to be on-call for such emergencies. I'd arrange for the ECO to be able to issue electronic unpriced purchase orders by email (see FAR 13.302-2) with a monetary limitation. I'd arrange for a quarterly block administrative commitment of funds to obtain said services.

When an emergency occurs, the base would contact the ECO. The ECO would contact a plumber on rotation that will agree to respond within 2 to 4 hours. (If none can do so for some reason the ECO would negotiate the best response available.) The ECO would then issue an unpriced purchase order citing the administratively committed funds and incorporating the terms of the BPA. The plumber would call the ECO if the actual price will exceed the monetary limitation.

Questions?

Vern Edwards said:

Where did you get the idea that I ever did that or suggested doing it? You must not have had your coffee before you read my post. That, or you were on other drugs.

Vern - We all shoot from the hip sometimes, surely you'd agree? 

If you weren't suggesting a FFP contract, I claim ignorance as to what this means in light of OP's scenario and concerns:

Vern Edwards said:

"Bill me once a month instead of for each purchase order."

Can you elaborate on how this could be a solution to OP?

Vern Edwards said:

You still want an answer to that?

 We're good.

FrankJon said:

Vern - We all shoot from the hip sometimes, surely you'd agree?

No. Go back and read the post. I wasn't proposing monthly billing as a solution. I was describing the way a Part 13 BPA works. Monthly billing instead of billing for each purchase order is what you do with a BPA. That's one of the reasons you establish a BPA. That's why they call it a charge account.

Vern Edwards said:

Questions?

Vern - How does your  overall suggestion that includes rotational use of the BPA's without competitively establishing the BPA's comply with the standard that competition to the maximum extent practicable is being obtained? 

Basis for my question is a full read of this decision by GAO - /legacy/a/cf306ca8d1a39c82.pdf - wherein GAO states with regard to purchase orders issued against a BPA that -

"Additionally, while DEA states that it plans to treat all competitors fairly by rotating the issuance of noncompetitive purchase orders among them, such action also does not comply with applicable competition requirements."

@C Culham

Carl:

Keep in mind that the requirement is for emergency services requiring a response within 2 to 4 hours and that I'm treating each event as a separate acquisition. FAR 5.202(a)(2) is applicable, so no synopsis over $25,000. There is no requirement to conduct a competition to establish a BPA.

With those facts in mind, consider:  

FAR 13.104(b):

Quote

(b) If using simplified acquisition procedures and not providing access to the notice of proposed contract action and solicitation information through the Governmentwide point of entry (GPE), maximum practicable competition ordinarily can be obtained by soliciting quotations or offers from sources within the local trade area. Unless the contract action requires synopsis pursuant to 5.101and an exception under 5.202 is not applicable, consider solicitation of at least three sources to promote competition to the maximum extent practicable. Whenever practicable, request quotations or offers from two sources not included in the previous solicitation.

FAR 13.106-1(a):

Quote

(a) Considerations. In soliciting competition, the contracting officer shall consider the guidance in 13.104 and the following before requesting quotations or offers... (iii) The urgency of the proposed purchase.

FAR 13.106-1(b):

Quote

(b) Soliciting from a single source.

(1) For purchases not exceeding the simplified acquisition threshold.

(i) Contracting officers may solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source reasonably available (e.g., urgency...).

I believe that those provisions of FAR Part 13 provide me enough ammunition to justify the use of my procedure. I will explain that the BPA's serve to make the plumbers aware of my need and to get them to agree (non-contractually) to respond if we call. I can't count on getting quotes and finding a plumber at 0200 Sunday morning (or Wednesday morning, for that matter) who can and will show up within 2 to 4 hours in response to a call out of the blue. The process of getting quotes, even if possible in that situation, would only slow the response.

I will argue that the BPA's were entered into after using SAP to get competitive quotes from small businesses. The BPAs will serve to keep three plumbers on hand in order to provide some form of competition and to increase the likelihood that at least one will respond. I'm rotating purchases among the BPA holders in order to provide the plumbers an incentive to stay on hand. After each event I'd call the manager of the company that's next in the rotation and say: You're on deck. Are we good? Rotational hiring is not a contractual obligation. I won't have to rotate, and I want the plumbers to know that if anyone jacks up prices unreasonably I will drop and replace them.

My argument will be that I'm going above and beyond the strict requirements of FAR in order to ensure some competition in what otherwise might be a one source urgency situation. As for the GAO decision... I'm not worried about it in the least. I don't think it is applicable in light of the nature of the requirement. Among other things, DEA did not plead urgency.

C Culham said:

Vern - How does your  overall suggestion that includes rotational use of the BPA's without competitively establishing the BPA's comply with the standard that competition to the maximum extent practicable is being obtained? 

Basis for my question is a full read of this decision by GAO - /legacy/a/cf306ca8d1a39c82.pdf - wherein GAO states with regard to purchase orders issued against a BPA that -

"Additionally, while DEA states that it plans to treat all competitors fairly by rotating the issuance of noncompetitive purchase orders among them, such action also does not comply with applicable competition requirements."

The language you quoted addressed noncompetitive purchase orders issue against noncompetitive BPA's.

See the subsequent GAO decision involving the same procurement (posted earlier by Jwomack) stating that if competitive procedures are used to establish the BPAs, then orders may be rotated among the BPA holders.

In the hypothetical presented, we are dealing with simplified acquisition procedures under the SAT.  Under FAR 13.104, "maximum practicable competition" can be obtained by soliciting quotations from three sources within the local trade area.  Therefore, Vern's recommendation of soliciting and establishing priced BPAs with at least three local vendors satisfies the requirement for maximum practicable competition.  Because "competitive procedures" were used in establishing the BPAs, the orders may be rotated without additional competition.

All the BPAs do, really, is provide the requiring activity and chief of the contracting office evidence that you have a plan. You could just as easily call three plumbers, speak to the company owner or manager, establish a relationship, say that you might want to call from time to time for emergency service, say that Davis Bacon would apply, and ask if they'd respond in an emergency. If they say yes, write their names and numbers down on a sheet of paper. You could even invite each of them out to see the base. Then, when an event occurs, just call until you get somebody to come out and issue them an unpriced purchase order for the work pursuant to the single source urgency rule. Could you guarantee 2 to 4 hour response? Well, maybe 4 hours.

The BPAs are above and beyond.

What you've got to worry about is someone saying that you need to establish an emergency service "vehicle," i.e., a contract, for the service. That would be a major nuisance. Under the scenario we've been given it would be administratively much more time-consuming and costly to conduct a competition for a "vehicle" than to issue 20, or even 40, unpriced purchase orders on an ad hoc basis.

Vern Edwards said:

All the BPAs do, really, is provide the requiring activity and chief of the contracting office evidence that you have a plan. You could just as easily call three plumbers, speak to the company owner or manager, establish a relationship, say that you might want to call from time to time for emergency service, say that Davis Bacon would apply, and ask if they'd respond in an emergency. If they say yes, write their names and numbers down on a sheet of paper. You could even invite each of them out to see the base. Then, when an event occurs, just call until you get somebody to come out and issue them an unpriced purchase order for the work pursuant to the single source urgency rule. Could you guarantee 2 to 4 hour response? Well, maybe 4 hours.

The BPAs are above and beyond.

What you've got to worry about is someone saying that you need to establish an emergency service "vehicle," i.e., a contract, for the service. That would be a major nuisance. Under the scenario we've been given it would be administratively much more time-consuming and costly to conduct a competition for a "vehicle" than to issue 20, or even 40, unpriced purchase orders on an ad hoc basis.

“Like”

The local  Corps of Engineers District in my city established a suite of BPA’s for various geographical areas within the District, including military installations, to perform minor construction and repair orders not exceeding $25,000. It reportedly worked very well.

Vern - Thank you.   Not 100% convinced but see where you are going.   On the urgency matter GAO did opine in the decision an "if" with regard to single source at least by my read. In the end if me I would compete (advertise in FBO)the need for the BPA's.  Taking the time to do so makes sense to me and fits the rotational view better in my view.  But, to each their own.

Vern Edwards said:

The BPAs are above and beyond.

I agree but still would offer that a firm contract would not be overkill if the OP wanted a stronger guarantee of a vendor to provide the service.  Your ECO concept could work with such a procurement instrument.

Lionel Hutz-  Appreciate your heads up but what you note is the reason I specifically mentioned "competitively" in my question.   Not that it matters but  I might have been the first to bring both Logan and Envirosolve to the forefront of the WIFCON Forum (see below) based on issues I had to address when working at an agency that was called to task by GAO for having rotational BPAs that were issued without competition.   This brings me to a thought that will probably be lost but folks like the OP in doing their research should consider the WIFCON Forum as a research tool, it is a great asset.

 If a Before Your Post would have been done the OP would have found these to help in the office "debate".

/threads/2428-competitive-far-part-13-bpa

Joel - Not sure how your example fits and no need to respond but I am guessing local COE needs were not urgent and anticipate that the BPA's as established were not competitively (FBO advertised) established.  All in all relationship to the specific needs, questions, and issues relayed by the OP leave me wondering.

Great day to all!!!!!

Vern Edwards said:

I believe that those provisions of FAR Part 13 provide me enough ammunition to justify the use of my procedure.

Vern,

I agree and would add that if you had standing price quotations from the plumbers, then I don't think you would have to justify soliciting from a single source (because you wouldn't be).

Quote

13.103 Use of standing price quotations.

Authorized individuals do not have to obtain individual quotations for each purchase. Standing price quotations may be used if—

(a) The pricing information is current; and

(b) The Government obtains the benefit of maximum discounts before award.

It's customary commercial practice for plumbers to have hourly rates for emergency work.

@C Culham

I'm not surprised that you're not 100 percent convinced. Few people are 100 percent convinced by ideas that are not entirely consistent with their own.

The only real disagreement that I have with you is with regard to this:

C Culham said:

I agree but still would offer that a firm contract would not be overkill if the OP wanted a stronger guarantee of a vendor to provide the service.  Your ECO concept could work with such a procurement instrument.

Given the scenario of 20 emergencies with only five valued at more than $25,000, as chief of a contracting office I would never agree to conduct an acquisition to award a firm contract instead of a purchase order for each event. I see no merit in the notion of a stronger guarantee in this case, and if there is one concept in today's contracting world that has caused a lot of headaches, it is the idea of contract "vehicles." We have simplified acquisition procedures for a reason, and any kind of serious "guarantee" would cost a fortune. They'll get there when they get there. We're talking emergencies concerning water pipes, not ICBMs.

In any case, I'm pretty sure that cdhames's real requirement is a lot more complex than the scenario he gave me to respond to. I'm struck by the fact that so many beginners ask for suggested to solutions to poorly defined problems. He has complained about me:

On 3/29/2018 at 9:09 AM, cdhames said:

Just asking a question in the beginners forum, because I'd like to learn from my fellow peers and experts.  You've said it yourself, the state of our acquisition community is aweful.  Wifcon, however, is a repository for the expertise we seem to be missing and if you'd allow us to ask questions and allow others to provide mentorship (right or wrong) that might improve the community somewhat.

A sign of expertise is to tell someone who asks for a suggested solution to a problem to properly define the problem to be solved. I learned that early in my career when (as a GS-05)  I went to a boss with a question about a problem and she told me to go away until I properly defined the problem. Best thing she ever did for me. I never forgot it. For one thing, it forced me to think about how one should go about properly defining a problem. A sign of amateurism is to criticize somebody who tells you to go away until you properly define the problem. Sometimes the best response to a question is to tell you that your question sucks.

Finally, I see that I have become the subject of historical searches for instances of, what, inconsistency? That's fair. But with 7,615 posts under my belt, far more than anybody else, if I were never inconsistent I would consider myself to be an idiot. (I'll bet that at least some of you know the quote from Emerson that I'm think of right now.)

@Don Mansfield

Thanks, Don. Good info.

Vern

Vern Edwards said:

Finally, I see that I have become the subject of historical searches for instances of, what, inconsistency? That's fair. But with 7,615 posts under my belt, far more than anybody else, if I were never inconsistent I would consider myself to be an idiot. (I'll bet that at least some of you know the quote from Emerson that I'm think of right now.)

"A foolish consistency is the hobgoblin of little minds..."

Too much consistency is a sign of stubbornness, a lack of learning/thinking, and/or a lack of adapting to changing environments.

Well I see the Gang of Three is alive and well...

Vern Edwards said:

Given the scenario of 20 emergencies with only five valued at more than $25,000

Vern - You forgot one part of the scenario - possibility of a 5 year need so maybe 25 valued at $25,000 and 100 valued at who know what?   This chief of contracting thinks it has bearing.

Vern Edwards said:

Finally, I see that I have become the subject of historical searches for instances of, what, inconsistency? That's fair. But with 7,615 posts under my belt, far more than anybody else, if I were never inconsistent I would consider myself to be an idiot. (I'll bet that at least some of you know the quote from Emerson that I'm think of right now.)

.I disappointed that you want to invent what you believe my purpose is.  I could care less on what you posted in the past as it relates to this thread.  I use WIFCON as a primary research tool before I head other directions.    My search has nothing to do with inconsistency it had to do with doing the research while at the same time remembering I had post in the past on the matter of competition, BPA's as an easy way to find Logan and Envirosolve.  Nothing more nothing less.

Don Mansfield said:

It's customary commercial practice for plumbers to have hourly rates for emergency work.

Don -But the hourly effort may be only part of the need and lots of variables too.  It would be very interesting to see if the plumber down the street would in fact give a standing quote for the specific scenario being discussed here. My hands on experience is that they most likely would not.

Matthew Fleharty said:

"A foolish consistency is the hobgoblin of little minds..."

Too much consistency is a sign of stubbornness, a lack of learning/thinking, and/or a lack of adapting to changing environments.

Matthew - I would appreciate it if you would hold off on any comments that are based on false impression and false information attributed to me.   You are more than welcome to ask me directly and then fashion your posts based on my direct response.   I think doing so would add value to the discussion rather than detracting from it.  Thanks!

C Culham said:

Vern - You forgot one part of the scenario - possibility of a 5 year need so maybe 25 valued at $25,000 and 100 valued at who know what?

I'd be happy to issue purchase orders for five years.

C Culham said:

Matthew - I would appreciate it if you would hold off on any comments that are based on false impression and false information attributed to me.   You are more than welcome to ask me directly and then fashion your posts based on my direct response.   I think doing so would add value to the discussion rather than detracting from it.  Thanks!

Carl, 

Falsely assuming comments were directed at you detracts from the discussion - my comments were broad and general.  You’ll know if I’m directing a comment at you (like with this one).

C Culham said:

Well I see the Gang of Three is alive and well...

We prefer "The Three Amigos".

Amazing how many famous threes there are:

Athos, Porthos, and Aramis

The Three Stooges

Faith, Hope, and Charity

The Good, The Bad, and The Ugly

Snap, Crackle, and Pop

The Three Heads of Cerberus

Mario, Luigi, and Bowser

The Cavalry Trilogy

Alvin and the Chipmunks

The Kingston Trio

The Three Mesquiteers (Stony Brook, Tucson Smith, and Lullaby Joslin)

The Magi

The Three Godfathers

Michael, Gabriel, and Raphael

The Bee Gees

The Three Spirits of Christmas

The Three Men in a Boat

Kirk, Spock, and Bones

Brahma, Vishnu, and Shiva

Roy Rogers, Trigger, and Bullet

(to be continued after Carl posts again)

Don Mansfield said:

We prefer "The Three Amigos".

An honest man and

Vern Edwards said:

to be continued after Carl posts again)

a perfect example of how to achieve Platinum membership and brag about it, lordy!

What's a Platinum membership? Membership in what? Does it come with points?

Oh, wait, I see it! Wow! Platinum!

Quote

Well I see the Gang of Three is alive and well...

I think Carl's on to something with his three thing:

The three Furies (of Greek mythology)

The three witches (of Macbeth)

The three Fates (again, of Greek mythology)

The three strikes (that put you out in baseball)

The three rings (of a circus)

The Three Billy Goats Gruff

The three sheets to the wind

The Nina, the Pinta, and the Santa Maria

The little kittens that lost their mittens

The three bears (of Goldilocks)

The three movie stars that always seem to die around the same time

Zeus, Neptune, and Hades

The three vectors (Three Vs) of Big Data (volume, velocity, and variety)

The three sides of a triangle (hypotenuse, opposite, adjacent)

The three little words that mean so much

and many more.

What is it about threes?

Vern:

In your list of threes, you mentioned:  Roy Rogers, Trigger, and Bullet.  My 2 poodles, Blue Jay and Lily, feel slighted about the order that places bullet last.  Your three should be Bullet, Trigger, and Roy Rogers.

That's another three I list in their order of age:  Ambrose (in Heaven), Lily (4th in their litter) and Blue Jay (7th and last in their litter).

Vern Edwards said:

What is it about threes?

Quote

Irving Berlin knew it when he wrote, "From the mountains, to the prairies, to the oceans white with foam." Emma Lazarus knew it when she wrote, "Give me your tired, your poor, your huddled masses yearning to breathe free." Abraham Lincoln knew it when he wrote, "Of the people, by the people, for the people." And Thomas Jefferson knew it when he wrote, near the beginning of the Declaration of Independence, "life, liberty and the pursuit of happiness," and, at the very end, "our lives, our fortunes, and our sacred honor." 

Rhetorically, three has magic properties. Something within us is affected by a series of three items, read or spoken, and skilled writers know how to use series of three to appeal to our aesthetic sense, our emotions, and perhaps to something even deeper.

https://www.visualthesaurus.com/cm/teachersatwork/the-magic-of-three-teaching-students-about-triplets/

The concept is called "The Rule of Three." See this: https://www.copyblogger.com/rule-of-three/ I had never heard of it before, inspired by Carl, I started researching trios.

Liberté, Égalité, Fraternité!

http://www.jonathancrossfield.com/blog/2009/06/writing-the-power-of-three.html

https://rule-of-three.co.uk/what-is-the-rule-of-three-copywriting/

https://www.enchantingmarketing.com/rule-of-three-in-writing/

But it's not just the rule of three in writing, which, I think, is largely about rhythm: Wynken, Blinken, and Nod. 

It's also that so many thoughts and ideas have involve the number 3. See this list of movie titles in which the word "three" appears https://www.ranker.com/list/best-movies-with-three-in-the-title/ranker-film

And see The Use of Three in The Bible https://bible.org/seriespage/3-use-three-bible

Fun research.

Thank you, Carl. Seriously. Just goes to show---you never know whence come the sparks of curiosity, knowledge, and inspiration.

On ‎3‎/‎28‎/‎2018 at 4:31 PM, cdhames said:

that seems in direct contradiction to FAR 13.303-5(c) and (d).

I disagree.

On ‎3‎/‎28‎/‎2018 at 4:58 PM, Don Mansfield said:

I think you're #2 would result in the violation of the Recording statute

As you said, right or wrong, many do it.  So I looked into this a while back and thought it was ok but can't remember the rationale.  I think there's some leeway for acquiring repetitive needs without having to establish a new obligation at each instance but can't remember the citations, etc.,  I may start another thread on this topic.

On ‎3‎/‎28‎/‎2018 at 5:32 PM, C Culham said:

what do you do with a contractor who refuses, once, twice or more, kick them to the BPA curb?

Depending on the circumstances, I would probably just stop ordering from them.

On ‎3‎/‎28‎/‎2018 at 4:58 PM, Don Mansfield said:

I think you're #2 would result in the violation of the Recording statute (31 U.S.C. 1501).

See B-321296, specifically Digest paragraph 2 and the Court Reporting portion of the decision.  As it would be relevant to funding a BPA call with an unknown but estimated quantity –

“At the time each contract was executed, NLRB, as a matter of fact, did not know with certainty the total amount it would ultimately spend on court reporting services ordered under the contract. The amount of NLRB's liability depends on various factors such as the number of proceedings, the length of the transcripts delivered, and the number of ancillary materials such as exhibits. NLRB knows the amount of its liability with certainty only at the conclusion of the performance period, after it has ordered all the services under the contract. To determine the amount to obligate when each contract was executed, NLRB calculated an estimate, based on past practices and trends, of the total amount of court reporting services it would need under a particular contract.

We have previously addressed the amount an agency should obligate when the amount of its obligation is uncertain. B-305484, June 2, 2006. In that case, the National Mediation Board (NMB) contracted for arbitrators, and incurred obligations, when it appointed an arbitrator to hear a specific case. However, the length of the arbitrator's appointment and, therefore, the amount of the obligation were uncertain at the time of appointment. We noted that "it is the amount of the commitment, not the commitment itself, that is uncertain." Id. We concluded that NMB should "record an obligation based on its best estimate of the costs of paying the arbitrator and adjust the obligation up or down as more information becomes available." Id.

Similarly, in this case, the quantity of court reporting services that NLRB would ultimately order was uncertain at the time each contract was executed. NLRB properly obligated an amount based upon a reasonable estimate. As the performance period continues, NLRB should deobligate amounts if it realizes that it overestimated the quantity of services that it would order under the contracts. Conversely, if NLRB determines that it will need to order more services than initially estimated, it should obligate additional funds in accordance with a revised estimate. Because NLRB initially obligated only fiscal year 2010 funds for the contracts, any adjustments to the obligations must also be made against fiscal year 2010 funds.”

jwomack said:

See B-321296, specifically Digest paragraph 2 and the Court Reporting portion of the decision.  As it would be relevant to funding a BPA call with an unknown but estimated quantity –

That's a good find, jwomack. However, I don't think the GAO was consistent with the Red Book in the decision. From p. 7-21 of the Red Book:

Quote

Thus, in a variable quantity contract with no guaranteed minimum—or any analogous situation in which there is no liability unless and until an order is placed—there would be no recordable obligation at the time of award. B-302358, Dec. 27, 2004; B-259274, May 22, 1996; 63 Comp. Gen. 129 (1983); 60 Comp. Gen. 219 (1981); 34 Comp. Gen. 459, 462 (1955); B-124901, Oct. 26, 1955 (“call contract”).11 Obligations are recorded as orders are placed.

The case that GAO relied on in the case you cited is inapposite, in my opinion. In that case (B-305484) the Government awarded contracts to arbitrators and was uncertain how much it was going to end up costing, so they obligated an estimate. At the time of the contract, the arbitrators were required to work and the Government was required to pay. The Government was liable and should have recorded an obligation at that time. This is the same rationale for recording an obligation of the estimated cost in a cost reimbursement contract. However, that doesn't seem to be the case in B-321296. In that case, the contractor was not required to perform court reporting until a need arose and the Government ordered them to do so. There was no liability unless and until the order was placed, so there was no recordable obligation at award (unless there was guaranteed minimum).

As far as an open-ended BPA call for emergency repair services, where the Government orders work as emergencies arise, there's no liability unless and until the Government orders the services. As such, there's no recordable obligation.

Don Mansfield said:

there's no liability unless and until the Government orders the services

A BPA call would be the order.  It would have an estimated quantity with details further definitized at the subordinate work order level.

I like it when GAO isn't consistent.  Contradictory decisions give me more tools to choose from.

jwomack said:

A BPA call would be the order.  It would have an estimated quantity with details further definitized at the subordinate work order level.

I like it when GAO isn't consistent.  Contradictory decisions give me more tools to choose from.

Yes, but at the time you placed the call, the contractor would not be required to work and the Government would not be required to pay. An emergency would have to arise and the Government would have to call the contractor.

Look, I get what you are proposing and you could probably convince a lot of folks that it's ok based on the case you found, but I'm still not convinced.

On ‎4‎/‎6‎/‎2018 at 12:04 PM, jwomack said:

A BPA call would be the order.  It would have an estimated quantity with details further definitized at the subordinate work order level.

So if I unravel your train of thought correctly -

1. You would compete the BPA's prior to issuance or in other words advertise in FBO.

2. Once competed you would issue the BPA's to one or multiple entities - not sure about this one?

3. Once the BPA's are issued you would issue a call to one (or more) of the BPA holders for undefinitized needs other than stating that it is plumbing and that the work will be done at certain rates and material prices.

4. As the emergencies arise you would then contact one of the entities to which you issued the call to have them come and do the work.   If you issued more than one BPA and more than one open ended call if the first one you contacted did not want to come and do the work then you would then call the next one and maybe the next one and......

If I have this correct then the questions that come up for me are -

1. As already mentioned by me where is the guarantee that you have an entity on call to do the work with little or no effort to get them there to do it?

2. What steps have you saved say as compared to issuing a fixed price time and materials requirements type contract?

3. Noting the long term inference of the need by the OP how would you address the bona fides need rule with regard to a call (noting that GAO addressed this matter in the decision you quoted)?

For me you may be on to something with regard to the recording statute but I am left wondering how the competed BPA route is any better than other firm contract types that are available as you have basically taken BPA's and made almost a firm contract.

Why use a requirements contract with only one firm?  What if they are not available to respond in time?  Most plumbing firms are not big enough to always respond immediately to one client. 

The ordering officer should be able to call around from the BPA list for availability, as the first priority, like you would do if you needed a plumber for an emergency.

joel hoffman said:

Why use a requirements contract with only one firm?  What if they are not available to respond in time?  Most plumbing firms are not big enough to always respond immediately to one client.

Joel - I understand the argument and without going into grand detail I have even issued BPA's of this nature but for fire and other  incident response (hurricane etc).   Anyone wondering read up on Incident BPA's (IBPA).  However in the case of the IBPA there is a structured (electronic) approach to use.  And as Don has noted the commitment and obligation occur when the Call is made and the details of the IBPA discuss their potential open ended possibility.  But for sure one IBPA Call is not issued for say 60 months.

My grasping of the requirement contract concept is that my read of the OP's comments is that they want the guarantee that someone will be there in 2 to 4 hours.   I just have trouble with the fact that a BPA will do this.   Heck I can't get a plumber that fast to my house, I know I have tried.   The plumber will use their own sift to determine who they want to meet the expectations of little ol Carl at his house or Mr. Got Rock's at the mansion, or the continual corporate/government plant or facility and vise-a-versa when say I am the plumbers borther.   The requirements contract or some other firm arrangement (now with a performance bond)  outside of the BPA encourages the plumber to put me always at the top of the list every day, every Call if in fact that is what the OP is shooting for.   If not then have at it with a BPA.

Carl, i just don’t think that there are many plumbers that would be foolish enough to bind themselves to a government contract (ESPECIALLY a government  contract with all its bureaucracy) to guarantee that they drop whatever else they are doing to make a typical service call. Maybe in a big city...

it would seem to me that responsiveness and availability would be more important than a $50 or $100 difference in price between plumbing firms for an emergency service call.  I guess it would depend upon the nature and amount of time needed for the fix, of course.  But $10-$20 per hour price savings isn’t important if they can’t respond...

C Culham said:

So if I unravel your train of thought correctly -

The steps you cited are correct.  To your questions -

1.  There is no guarantee/obligation on any party with a BPA.  Of course even if you had a contract in place that's still not a guarantee they'll show up.  While the contract may give the Government recourse after-the-fact, it still doesn't stop the leaking pipe in an urgent situation.  For something like these emergency repairs, my guess is the response rate from a BPA holder vs someone with a contract would be nearly identical.

2.  None that I can think of.  The goal isn't to save steps on the front end.  The goal is to get a vehicle in place so, when an emergency arises, the Government doesn't waste time in getting an available repairman to take action.  Requiring a KO to be in the loop during an actual emergency is an unnecessary time waster.

3.  I'd try to use no-year money if available.  Otherwise, assuming annual funds, I'd cite FAR 37.106 and the GAO decision.  And maybe FAR 1.102 (Guiding Principles).

I don't know that the BPA route is any better than the contract options.

It's curious to me that everyone is focused on dealing directly with local contractors. My initial thought process was that the contractor probably wouldn't be local. Intuitively, I would want a contractor that specializes in 24/7 support, which local independent contractors generally don't do, and can service my area. For example, a quick search for "24/7 emergency plumbing services" gave me Roto Rooter.

@bob7947 I just noticed my "Aquamarine" status. Is that change a result of this conversation, by chance? Is there a method to the madness?

No.  Things will change more.

FrankJon said:

My initial thought process was that the contractor probably wouldn't be local. Intuitively, I would want a contractor that specializes in 24/7 support, which local independent contractors generally don't do, and can service my area. For example, a quick search for "24/7 emergency plumbing services" gave me Roto Rooter.

No doubt the details of what the OP's needs really are would add much more context but I had the same thought and you beat me to the punch.   But then again you forgot the principles FAR subpart 8.000 and I went here https://www.gsaelibrary.gsa.gov/ElibMain/home.dohttp:/www.gsaelibrary.gsa.gov/ElibMain/scheduleSummary.do?scheduleNumber=03FAC   then I thought what about Ability One and then I just threw up my arms as I decided I have turned the wrench on this one way too long and time to move along.

jwomack said:

Otherwise, assuming annual funds, I'd cite FAR 37.106 and the GAO decision

Moving along here too with the parting drop that what you have is a BPA and then a Call that I agree turns into a contract.  Begs the question why not just create a contract in the first place especially if you really mean "vehicle" as opposed to vehicles as one BPA is a waste of time all the way around.  As stated before the facility would be left to "dialing for dollars" because as you note there is no guarantee most especially with a BPA.

C Culham said:

Joel - I understand the argument and without going into grand detail I have even issued BPA's of this nature but for fire and other  incident response (hurricane etc).   Anyone wondering read up on Incident BPA's (IBPA).  However in the case of the IBPA there is a structured (electronic) approach to use.  And as Don has noted the commitment and obligation occur when the Call is made and the details of the IBPA discuss their potential open ended possibility.  But for sure one IBPA Call is not issued for say 60 months.

My grasping of the requirement contract concept is that my read of the OP's comments is that they want the guarantee that someone will be there in 2 to 4 hours.   I just have trouble with the fact that a BPA will do this.   Heck I can't get a plumber that fast to my house, I know I have tried.   The plumber will use their own sift to determine who they want to meet the expectations of little ol Carl at his house or Mr. Got Rock's at the mansion, or the continual corporate/government plant or facility and vise-a-versa when say I am the plumbers borther.   The requirements contract or some other firm arrangement (now with a performance bond)  outside of the BPA encourages the plumber to put me always at the top of the list every day, every Call if in fact that is what the OP is shooting for.   If not then have at it with a BPA.

I think that some market research would be in order to see what the capabilities and interest are out there. I agree that we don’t know enough details about the scope or specific circumstances to provide strong recommendations here.

jwomack said:

There is no guarantee/obligation on any party with a BPA.  Of course even if you had a contract in place that's still not a guarantee they'll show up.  While the contract may give the Government recourse after-the-fact, it still doesn't stop the leaking pipe in an urgent situation.  For something like these emergency repairs, my guess is the response rate from a BPA holder vs someone with a contract would be nearly identical.

Requiring activities commonly want to set response deadlines or windows for the performance of "emergency" services. Such deadlines are commonly unrealistic. As a practical matter, if included in a contract they are not enforceable except through payment deductions (which will make matters worse) or, in an extreme case, contract termination. Any CO who agrees to make responses to such deadlines contractually binding will inevitably face a functional head and/or COR who has determined that the contractor has been late some percentage of the time and wants the contractor chastised or punished.

I would not, even under threat of torture, agree to award a T&M/requirements contract for the services described by the OP in his scenario just in order to get a "guarantee" of a response within 2 to 4 hours. I might do it if lives would be at stake, not because I thought it would buy us anything in terms of actual performance, but for the sake of public perception.

Vern Edwards said:

Such deadlines are commonly unrealistic.

Do you have examples?

What kind of information do you want?

What kind of reason or evidence do you have that supports the truth value your statement that such deadlines are commonly unrealistic

@C Culham

C Culham said:

What kind of reason or evidence do you have that supports the truth value your statement that such deadlines are commonly unrealistic

My experience with contracts for base ops services, as a CCO, CO, and contract specialist. As a contract reviewer I have also judged them to be unrealistic on the basis of my professional assessments of the explanations I was given for how the response time requirements were established. I was told things like:

(a) That's what it's always been.

(b) Commander's policy.

(c) Functional area chief's or COR's judgment.

(d) Agency published guidance (which was old).

(e) Asserted "industry standard" (which was never supported by documentation).

etc.

(By the way, I sometimes thought that the response time was unreasonably long in light of technological developments.)

As CCO, CO and reviewer I often explained to that the development of reasonable response times would take into account the nature of the mission, the nature of the event, the event context; the environmental conditions affecting response time; competing demands for service; availability of personnel, parts, and equipment; etc.

I would point out that such standards could could be challenged as unduly restrictive of competition, could have a direct impact on price or cost, and that the regulations (the ASPR in those days) required that requirements reflect actual needs. (See FAR 11.002(a).) I explained that contract admin files showed that response times were not always met, and that sometimes the requiring activity complained and sometimes not. I also pointed out that on some occasions when the requirement was not met the COR had admitted that the agency had not been adversely affected in any way.

I often explained that a court or board was unlikely to agree that such standards were absolute and enforceable in all circumstances and that I would not include any stipulation of absoluteness in the contract without ample justification and documentation from the requiring activity or written direction from the commander. I sometimes said that I would make the response time a guide for assessing overall performance if given a written explanation for the contract file of how the standard was established, and I sometimes offered to help write the explanation.

Vern Edwards said:

My experience

Thank you. 

Experience would also show that time and materials, requirements and IDIQ contracts have and do work for emergency services.   In fact history would show that the intent of the time and materials type was specific for the emergency need purpose.   There is not one size fits all as already stated.  A view of FBO today produced 1800 solicitations that discuss emergency services to one extent or another.   A review of a few of the many  solicitations listed provided response times.  This is todays quick market research that is supported by my experience in doing in depth market research in the past that included contacting many agencies to inquire as to the success of their particular contracts and even BPA's in filling their emergency response needs.

40 years experience as a CO and another 10 or so as an interested bystander a firm contract does provide a guarantee for more than perception.   There are in fact contractors that are competent and responsive that are not only willing to sign emergency needs contracts but perform without punishment.   Not always life safety either but by some reasoning either connected or more important.   Get the equipment up and running so a aerial tanker can fight a fire, solve plumbing ( sewer and water) problems in residence halls or private residences, clean up environmental spills of all kinds (think 500 gallons of jet fuel on a tarmac, drug labs hidden in National Forests, etc.), a leaking transformer at a government power producing facility, and the list goes on.

I have never met a CO tortured into doing a requirements contract but I have met many that have used it after exploring the specific need and found such a tool to be a fantastic answer.

Well, it's a matter of judgment and opinion, isn't it?

I would not use a requirements contract for the specific requirement of the scenario. If I can obtain reasonably reliable service through informal agreements with companies that normally provide such services, and if I can use simplified acquisition procedures to do so, then I'm going to do it.

If the aggregate estimate of the cost of the services under the requirements contract would exceed the SAT, then I'd have to use Part 15 source selection procedures to make the award. Even if I can use SAT, it's going to be more work than establishing a BPA. That's too much work just to get a guarantee that's really not a guarantee. Under Part 15, it could take as long as a year to do from initial planning through award, assuming no protest. Why would I put my office through that if I could generally get the service we need through BPA calls?

Moreover, getting a contractor to guarantee a 2 to 4 hour response (a requirement which, if you think about it, indicates some arbitrariness) under penalty of payment reduction, T for D, or a bad past performance report, is likely to cost more money than a BPA call and unpriced purchase order within 4 hours, more or less, to repair a broken pipe after the water has been cut off. That's speculative, of course, but I feel comfortable about it.

So you do it your way and I'll do it mine.

Vern Edwards said:

Well, it's a matter of judgment and opinion, isn't it?

I would not use a requirements contract for the specific requirement of the scenario. If I can obtain reasonably reliable service through informal agreements with companies that normally provide such services, and if I can use simplified acquisition procedures to do so, then I'm going to do it.

If the aggregate estimate of the cost of the services under the requirements contract would exceed the SAT, then I'd have to use Part 15 source selection procedures to make the award. Even if I can use SAT, it's going to be more work than establishing a BPA. That's too much work just to get a guarantee that's really not a guarantee. Under Part 15, it could take as long as a year to do from initial planning through award, assuming no protest. Why would I put my office through that if I could generally get the service we need through BPA calls?

Moreover, getting a contractor to guarantee a 2 to 4 hour response (a requirement which, if you think about it, indicates some arbitrariness) under penalty of payment reduction, T for D, or a bad past performance report, is likely to cost more money than a BPA call and unpriced purchase order within 4 hours, more or less, to repair a broken pipe after the water has been cut off. That's speculative, of course, but I feel comfortable about it.

So you do it your way and I'll do it mine.

Exceed the SAT?

Use the SAT?

Have to use FAR part 15?

A year?

Commercial Item FAR part 12 and 14, even 8, have been deleted from the FAR?

You keep doing it that way!  I will use ALL the tools the FAR provides but thanks for verifying my way is ok!

Your way is consistent with regulations and you can certainly do it that way. But your way is not efficient. It is needlessly time-consuming and cumbersome for the scenario requirement we were given.

We're not talking fire suppression aircraft services, Carl. According to the scenario we were given we're talking occasional broken water pipes.

Quote

It's a water pipe inside a facility that burst.  Let's narrow it down to just water damage... Let's say it exceeds $25,000, 5 times a year, which is 25% of the average total, historical data available so 20 times a year a rupture or flooding occurs inside a facility (this is just pure scenario by the way).

As for using all the tools--you want to use a chain saw to trim some 1/2-inch branches? Be my guest, if that's what you learned over the course of 40 years.

I can establish three BPAs with local companies in a week or two with a few phone calls, maybe some meetings, and maybe some site visits. The individual BPA calls in the middle of the night would take maybe an hour.

Vern - All quotes are those made by the OP.

I beg the question that using FAR part 12 is not efficient?   Can I not use a combined synopsis/solicitation?  Could I not post in FBO for say 5 days?   Could I not use simplified acquisition evaluation procedures?  Could I not make an award determination in two weeks?

Further, I understand we are not talking fire suppression aircraft services and I have acknowledged that and discussed experience with other than such services in my posts.   What we are talking about "remediation/restoration of facilities" after a broken water pipe.  I read this to not to be simply fixing the pipe but work beyond such as "water damage" that remediation and restoration suggests.

I also read that that the occurrence could happen on a "Saturday or at Midnight" and that the contractor is "going to be REQUIRED (emphasis added) to be on call 24/7 to meet the 2-4 hour window".  

A BPA cannot accomplish the REQUIRED on call specific as stated by the OP because a BPA is not an enforceable contract.   Likewise a Call against a BPA is not an enforceable contract until the vendor accepts the Call.  A requirements, time and material, IDIQ, and labor hour contract  are enforceable contracts and attempts to offer logical fallacies will not get around this fact.

An enforceable contract is my way!

C Culham said:

I beg the question that using FAR part 12 is not efficient?

What do you mean by "beg the question"? Why the question mark? Are you asking me something? I don't understand.

In any case, who said FAR Part 12 is not efficient? Not me. FAR parts are neither efficient or inefficient. Processes structured on the basis of FAR parts are efficient or inefficient. Besides, there is more to your way than "FAR Part 12."

How do you plan to select a contractor for a Part 12 T&M/requirements contract? You're not talking about a fixed-price or unpriced purchase order. You're talking about a rather more complex pricing arrangement, especially when combined with a requirements contract and a 2 to 4 hour response time. What evaluation factors are you going to use? Price only? Price and something else? LPTA? Sealed bidding?

No, I don't think you can make an award determination for such a contract in two weeks. It might take that long to prepare the documentation required by FAR 12.207(b) and (c). It will take you that long to explain FAR 52.212-4, Alt. I, to the quoters (or should I say offerors), unless you just assume that they already understand and press on for your "guarantee".

Under a standard T&M contract each order must have a ceiling price based on an estimate of the total cost of performance. FAR 52.212-4, Alt. I, paragraph (i)(2) requires an estimate of the total cost to the government, which is to be the basis for the order ceiling price. An estimate of the total cost and a T&M ceiling price is more than the "realistic monetary limitation" required for an unpriced purchase order. Are you going to issue undefinitized T&M orders and negotiate a ceiling price later? Letter orders? I think issuing task orders under a T&M/requirements contract might be more complicated that issuing an unpriced purchase order against a BPA.

You're resorting to all that in order to get a "guarantee." But, Carl, you're a contracts pro, and you know you don't get "guarantees" with contracts. You get only promises, and there is no guarantee that you can enforce them, not even in court.

No one in my shop is going to award a T&M/requirements contract for 20 emergency repairs of water damage in a year, 15 of which will be at or below $25,000. Never happen.

We'll just have to agree to disagree. Our readers can decide which way they would go--yours or mine.

Vern Edwards said:

you don't get "guarantees" with contracts. You get only promises, and there is no guarantee that you can enforce them, not even in court.

If there was a book of contracting aphorisms, this statement would certainly be in there.

Vern Edwards said:

What do you mean by "beg the question"? Why the question mark? Are you asking me something? I don't understand.

In any case, who said FAR Part 12 is not efficient? Not me. FAR parts are neither efficient or inefficient. Processes structured on the basis of FAR parts are efficient or inefficient. Besides, there is more to your way than "FAR Part 12."

How do you plan to select a contractor for a Part 12 T&M/requirements contract? You're not talking about a fixed-price or unpriced purchase order. You're talking about a rather more complex pricing arrangement, especially when combined with a requirements contract and a 2 to 4 hour response time. What evaluation factors are you going to use? Price only? Price and something else? LPTA? Sealed bidding?

No, I don't think you can make an award determination for such a contract in two weeks. It might take that long to prepare the documentation required by FAR 12.207(b) and (c). It will take you that long to explain FAR 52.212-4, Alt. I, to the quoters (or should I say offerors), unless you just assume that they already understand and press on for your "guarantee".

Under a standard T&M contract each order must have a ceiling price based on an estimate of the total cost of performance. FAR 52.212-4, Alt. I, paragraph (i)(2) requires an estimate of the total cost to the government, which is to be the basis for the order ceiling price. An estimate of the total cost and a T&M ceiling price is more than the "realistic monetary limitation" required for an unpriced purchase order. Are you going to issue undefinitized T&M orders and negotiate a ceiling price later? Letter orders? I think issuing task orders under a T&M/requirements contract might be more complicated that issuing an unpriced purchase order against a BPA.

You're resorting to all that in order to get a "guarantee." But, Carl, you're a contracts pro, and you know you don't get "guarantees" with contracts. You get only promises, and there is no guarantee that you can enforce them, not even in court.

No one in my shop is going to award a T&M/requirements contract for 20 emergency repairs of water damage in a year, 15 of which will be at or below $25,000. Never happen.

We'll just have to agree to disagree. Our readers can decide which way they would go--yours or mine.

Love it, more opportunity to achieve my Platinum status!

What do I mean - you said my way was inefficient and I specifically stated FAR part 12.  Much more efficient than "have to use" FAR part 15 don't ya think?

Not talking fixed price?  You bet I am fixed price labor rates and it works.   Evidence that it does is found everyday in FBO and in the commercial sector.  Geez even GSA FSS contracts have this!

Evaluation factors? I am going to use the procedures of FAR subpart 13.106-2.    By the way LPTA is FAR Part 15 so are on that "have to" band wagon again?

Can't make an award decision in two weeks?  Where does the FAR say I can't as I actually believe I could make the award decision in an hour if I want to.  Show me where I am wrong please.  Oh and by the way no explanation needed on the T&M needed as I will tailor the clause to show commercial practice.  That's the standard and I fear you are wanting to force a old FAR standard on me.  Does not have to happen and ain't happening I am going to be innovative!

I will accept promise and I will bank on the competent contractors that live by their promises which provides me with a whole lot more confidence than just setting up some charge accounts.   I have a whole bunch of those and the only promise I get from them is well - zip, nothing.  

Agreed to disagree.

Carl:

There is no more platinum.  You're an emerald now.  Who knows, it may change again today.

The top of the post chain is now 10,000 posts.  I think that is a pink diamond.  What may be next: biggest bugs, most prolific wild animal, largest barnyard animal (but someone will be a hog), most know mathemetician, first 10 presidents . . . ?

Oh my, I just noticed, someone is going to confuse the Spinel gem with a body part.

C Culham said:

What do I mean - you said my way was inefficient and I specifically stated FAR part 12.  Much more efficient than "have to use" FAR part 15 don't ya think?

You don't know what you meant by "beg the question," do you? 

Your method will be only as simple as you make it. FAR 52.212-1 still applies when using the Part 12 combined synopsis/solicitation procedure. See FAR 12.603(c)(2)(viii). How simple will your evaluation/selection/award procedure be? You haven't described it to us in any detail (unless I missed it).

You must have evaluation factors. See FAR 13.106-1(a)(2). What will yours be? You don't have to disclose nonprice/price relative importance, but what will be the relationship between nonprice/price factors? Or will you award strictly on price? FAR 52.212-1(b) instructs offerors as follows:

Quote

Submission of offers. Submit signed and dated offers to the office specified in this solicitation at or before the exact time specified in this solicitation. Offers may be submitted on the SF 1449, letterhead stationery, or as otherwise specified in the solicitation. As a minimum, offers must show—

(1) The solicitation number;

(2) The time specified in the solicitation for receipt of offers;

(3) The name, address, and telephone number of the offeror;

(4) A technical description of the items being offered in sufficient detail to evaluate compliance with the requirements in the solicitation. This may include product literature, or other documents, if necessary;

(5) Terms of any express warranty;

(6) Price and any discount terms;

(7) “Remit to” address, if different than mailing address;

(8) A completed copy of the representations and certifications at FAR 52.212-3 (see FAR 52.212-3(b) for those representations and certifications that the offeror shall complete electronically);

(9) Acknowledgment of Solicitation Amendments;

(10) Past performance information, when included as an evaluation factor, to include recent and relevant contracts for the same or similar items and other references (including contract numbers, points of contact with telephone numbers and other relevant information); and

(11) If the offer is not submitted on the SF 1449, include a statement specifying the extent of agreement with all terms, conditions, and provisions included in the solicitation. Offers that fail to furnish required representations or information, or reject the terms and conditions of the solicitation may be excluded from consideration.

Are you going to tailor FAR 52.212-1? If so, why don't you let us see what you'll say in your addendum? 

Remember that you'll have to synopsize and give offerors reasonable time to read your more complex than usual SAP solicitation and develop their quotes (or offers). How much time will you give them? A couple of days? How much time will you allow for questions? See FAR 13.106-1(f). Will you be at all concerned about whether the quoters/offerors understand what they are getting into?  How much of a "guarantee" will you have if you don't make sure. The contract terms required for commercial item T&M contracts are much more complex than used in typical fixed-price or unpriced purchase orders. (Have you considered the possibility that resort to FAR Part 12 will make your procedure more complicated than it needs to be? What does FAR Part 12 buy you if you're proceeding under SAP?)  So why don't you describe your procedure for us in more detail?

C Culham said:

I actually believe I could make the award decision in an hour if I want to.

Carl, anyone is search of a "guarantee" who would award a T&M/requirements contract in an hour, even if they could, would be an idiot. I don't think you're an idiot. So I take what you said to be something uttered in the thrill of the moment.

On 3/29/2018 at 8:38 AM, cdhames said:

I think my question remains, how do you craft an agreement, or contracting "vehicle" that allows for execution within 2-4 hours on a Saturday at midnight when the delivery and quantity are undefined?  Let's continue to use the example of a water pipe bursting at midnight, and assume remediation is required immediately.

Oh, for Pete's sake.

Vern Edwards said:

(Have you considered the possibility that resort to FAR Part 12 will make your procedure more complicated than it needs to be? What does FAR Part 12 buy you if you're proceeding under SAP?)

I am interested in this.

C Culham said:

Love it, more opportunity to achieve my Platinum status!

You're not paying attention, Carl! It's now Orange Diamond status that you seek.

Jamaal Valentine said:

I am interested in this.

Jamaal:

That comment popped into my head while I was writing to Carl. It was just a thought, and it was groundless. Ignore it.

Vern Edwards said:

You don't know what you meant by "beg the question," do you? 

You obviously do not, not my problem.  Just another logical fallacy to the argument at hand where you attempt to hide .

Vern Edwards said:

Your method will be only as simple as you make it. FAR 52.212-1 still applies when using the Part 12 combined synopsis/solicitation procedure. See FAR 12.603(c)(2)(viii). How simple will your evaluation/selection/award procedure be?

Why ask? You already told me I could do it my way so therefore I will.  No need to repeat you will not win me over.  If you hope is to win over others so be it have we not settled on that? 

Vern Edwards said:

Remember that you'll have to synopsize and give offerors reasonable time to read your more complex than usual SAP solicitation and develop their quotes (or offers). How much time will you give them? A couple of days? How much time will you allow for questions? See FAR 13.106-1(f). Will you be at all concerned about whether the quoters/offerors understand what they are getting into?  How much of a "guarantee" will you have if you don't make sure. The contract terms required for commercial item T&M contracts are much more complex than used in typical fixed-price or unpriced purchase orders. (Have you considered the possibility that resort to FAR Part 12 will make your procedure more complicated than it needs to be? What does FAR Part 12 buy you if you're proceeding under SAP?)  So why don't you describe your procedure for us in more detail?

Why? Because I do not have to that is why.  And before you call me out for ducking please tell me why the following statement is true?  Did someone torture you to make you have to or does the FAR say you have to?  Why Vern?

C Culham said:

If the aggregate estimate of the cost of the services under the requirements contract would exceed the SAT, then I'd have to use Part 15 source selection procedures to make the award.

Vern Edwards said:

Carl, anyone is search of a "guarantee" who would award a T&M/requirements contract in an hour, even if they could, would be an idiot. I don't think you're an idiot. So I take what you said to be something uttered in the thrill of the moment.

Get over your logical fallacies would you please and stick to the meat of the discussion and read my posts.   I agreed that guarantee would actually be a "promise".    Hopefully I am not an idiot for appreciating those that adhere to a promise of a contract and even believe in them.

Vern Edwards said:

(Have you considered the possibility that resort to FAR Part 12 will make your procedure more complicated than it needs to be? What does FAR Part 12 buy you if you're proceeding under SAP?)

Well Vern what doesn't it buy me?

bob7947 said:

Carl:

There is no more platinum.  You're an emerald now.  Who knows, it may change again today.

The top of the post chain is now 10,000 posts.  I think that is a pink diamond.  What may be next: biggest bugs, most prolific wild animal, largest barnyard animal (but someone will be a hog), most know mathemetician, first 10 presidents . . . ?

Oh my, I just noticed, someone is going to confuse the Spinel gem with a body part.

Thanks Bob, I need to pay better attention!

FrankJon said:

You're not paying attention, Carl! It's now Orange Diamond status that you seek.

Oh yes I am and I am really trying but then again I need to get in some additional "Delete" posts to boost me!

C Culham said:

Why? Because I do not have to that is why.  And before you call me out for ducking please tell me why the following statement is true?  Did someone torture you to make you have to or does the FAR say you have to?  Why Vern?

Et cetera.

Gosh, Carl. You are ducking, but it's worse than that. Much of that post, like the quote above, didn't make sense. You asked if "the following statement" were true, but then you wrote a question. A statement does not end with a question mark, Carl. A question is not a statement. A question is not true or false.

If you're ever going to be in White Salmon or Hood River, send me an email. I'll buy you a beer or take you up to the winery, where we can sip in the sun and look at the Gorge. We won't even think about contracting.

Vern

Thanks for the offer Vern I actually pass through weekly on mostly day trips but will definitely consider.  Actually my favorite haunt was the HRD Tasting Room until they sold my favorite to another entity.  So finding new options would be great.

And just to clarify as you have called me out once again here is how my post actually was made and continues to look, your view of the thread and my question regarding your post (while attributed me below on 4/10 /2018 at 9:36PM) is really a direct statement you made in your post on April 10 10:06AM.   Seriously follow the thread you will see it and you posted it!  So I am not ducking you are and the horribly worse part is that it was statement that you made, you won't admit it, and now you won't answer why you  posted it!     Logical fallacy once again!

C Culham said:

Why? Because I do not have to that is why.  And before you call me out for ducking please tell me why the following statement is true?  Did someone torture you to make you have to or does the FAR say you have to?  Why Vern?

On ‎4‎/‎10‎/‎2018 at 9:36 PM, C Culham said:

If the aggregate estimate of the cost of the services under the requirements contract would exceed the SAT, then I'd have to use Part 15 source selection procedures to make the award.

Vern and Carl,

1. Using Carl's approach (Requirements contract), what is the probability of the contractor not showing up to respond to an emergency (the type described by the OP) within four hours of being notified? Give me your best estimate. Assume contractor is responsible. If you want to make further assumptions, you can. Just let us know what they are.

2. Using Vern's approach (BPA), what is the probability of an individual BPA holder not showing up to respond to an emergency (the type described by the OP) within four hours of being notified? Give me your best estimate. Make the same assumptions about the BPA holder and the requirement you did for #1. Everything's the same, but the instrument used (BPA instead of requirements contract.

Don Mansfield said:

Vern and Carl,

1. Using Carl's approach (Requirements contract), what is the probability of the contractor not showing up to respond to an emergency (the type described by the OP) within four hours of being notified? Give me your best estimate. Assume contractor is responsible. If you want to make further assumptions, you can. Just let us know what they are.

2. Using Vern's approach (BPA), what is the probability of an individual BPA holder not showing up to respond to an emergency (the type described by the OP) within four hours of being notified? Give me your best estimate. Make the same assumptions about the BPA holder and the requirement you did for #1. Everything's the same, but the instrument used (BPA instead of requirements contract.

In order to do a thoughtful analysis we would have to consider (a) day of the week, (b) time of day, (c) environmental conditions that might affect general demand (e.g., flooding), (d) environmental conditions that could affect movement (e.g., weather, traffic, public events), (e) location of the government's facility (Fort George G. Meade in Maryland near DC and Baltimore or Fort Huachuca in southern Arizona), and (f) location of the contractor's point of departure, etc. (We should also consider the degree of lateness. The probability of five minutes late might not be the same as the probability of 30 minutes late.)

But let's say Los Angeles AFB in El Segundo, California, in the wee hours of a Sunday morning, under normal environmental conditions, with a contractor located in the Hawthorne-South Bay area. Under either arrangement I'd say the probability of the contractor not showing up absolutely on time would be no worse than 5 out of 100. (Stuff happens, even to the best of companies.) If the call came on a weekday at 4p.m. I'd put the probability of late arrival at 10 out of 100.

But one advantage of the multiple-BPA approach is that you would have more than one company to choose from, and you could query them about their willingness and ability to respond within 4 hours. If in the middle of the night a BPA-holder said that it could and would respond on time, I'd put the probability of a late arrival at no worse than 1 out of 100 (Stuff happens.)

Under the requirements contract you have would no choice, unless the contractor tells you that they cannot comply, at which point you might be up the creek. In order to get a contractor to absolutely guarantee that it would always respond on time might cost you a premium. And when competing for a contract that would require an absolute guarantee, an offeror is not likely to admit that it cannot really absolutely guarantee that it will never be late. It is likely to think that if it is late it will be able to work things out with the government. A BPA-holder, not being bound, would probably not worry about it. If it gets a call, then if it wants to promise, it will. If it doesn't, it won't.

Carl,

For argument's sake, when coming up with your estimate please make the same assumptions about the requirement as Vern:

Vern Edwards said:

Los Angeles AFB in El Segundo, California, in the wee hours of a Sunday morning, under normal environmental conditions, with a contractor located in the Hawthorne-South Bay area.

Don:

I want to point out that my probabilities are entirely subjective. If you asked me how I came up with them, all I could say is intuition. I do not know how to calculate the probability of an event (late response) that is so contingent upon so many factors.

I don't think timeliness would be a matter of diligence on the part of a contractor or BPA-holder. I think it would be more a matter of circumstance. They would try to respond on time---neither would have a motive to be late---but just can't pull it off. It would be difficult and/or expensive for a contractor to arrange for contingencies with respect to such an unscheduled event as a broken water pipe, even if a break is expected to happen within some period of time. Who knows what the weather or traffic will be like, or where human and equipment resources will be, when a break occurs, if ever? It's not the same problem as being on time for a regularly scheduled event. Of course, if the requirements contractor set up a 24/7 office dedicated entirely to the requirements contract and to the possibility of as many as 20 unscheduled events, it might be on time 100 percent of the time. But at what cost to the government?

I simply do not believe that the probabilities would be very different under the different arrangements. Carl might argue that the contractor, being legally bound, will make an extra effort. I have already argued that having found a BPA-holder who says it will respond within the limits, there is no reason to believe that they wouldn't, since once a BPA call has been made and accepted the BPA holder is a contractor and has the same legal motivation as the contractor under a requirements contract. So I don't think we can resolve the issue on the basis of different expected results based on different legal motivations. And if none of the BPA-holders will accept the job, I presume that its because of the circumstances, in which case the circumstances are likely such that the requirements contractor would be facing those same circumstances and that a timely response will be difficult if not impossible.

Vern Edwards said:

I want to point out that my probabilities are entirely subjective.

Understood. That's all I'm asking.

Vern Edwards said:

Of course, if the requirements contractor set up a 24/7 office dedicated entirely to the requirements contract and to the possibility of as many as 20 unscheduled events, it might be on time 100 percent of the time. But at what cost to the government?

Vern - This statement assumes that there are not already 24/7 repair companies - national or local - accessible to most of the country within a 4-hour window. I'm willing to bet that there are (to test this, I did a Google search for "24/7 emergency repair services Montana" and got a string of contractors across the state). In my market research, I wouldn't ask for contractors to adapt to me; rather, I'd seek out businesses who have experience providing 24/7 service and therefore better understand what is plausible and what it takes to get a repairman out of bed at 3:00 AM and what the contingency plan is if he doesn't answer the phone. Also, these companies (particularly the national ones) would ostensibly have a greater interest in protecting their reputations as "24/7 emergency repair" companies.

And I realize that "accessibility" and "responsiveness" are not the same. My point is that the "24/7 emergency responsiveness" aspect doesn't necessarily need to be an expensive, Government-tailored service.

FrankJon said:

And I realize that "accessibility" and "responsiveness" are not the same. My point is that the "24/7 emergency responsiveness" aspect doesn't necessarily need to be an expensive, Government-tailored service.

I agree. There are plenty of 24/7 plumbers, but I don't know many that "guarantee" a response within a given short timeframe with liability for breach of contract. Do you?

Don – Using all the stipulations you have stated my estimate for your number 1 is 5% or less for not showing up within the 4 hours.  For your number 2 10 to 15% of the time the first contractor contacted would not accept the call and that if accepted they would not meet the expected 4 hours 75-80% of the time.

My caveat.   Water damage restoration/renovation that may or may not include plumbing services as well.  

Percent of successful response is based on research that there are several firms in the geographical area of El Segundo that perform such work and specifically state 24/7 response.    Included is the thought that GSA FSS contractors are available (131 total possibilities SIN 426 4F) for the same type of effort and could result in a GSA Order that provides a requirements contract methodology in setting up the order.

I understand I have the advantage of what Vern has already posted but have attempted to hold to thoughts and positions I have stated in this thread to this point.  Using an entity such as SERVPRO, as the example that might be an awardee under a requirements type arrangement or accept a BPA, I will remain with my position, now stated in the context of your exercise,  that probability of response within stated time lines would be greater under a firm contract.

What conflicts me throughout this discussion thread is that if there is a “required” need for anything, not just the El Segundo example,  the promise is reinforced with a contract (requirements or ?).    If this is not true for this example then why is true for other Federal government needs?    Why have contracts (promises again and not guarantees) at all, the Federal government should just move to competitive BPA’s for everything.

I do appreciate the exercise as made me think just a little more but as you can see my overall view has not changed.

PS – Do not forget that I have already agreed that a requirements contract might be more costly and that cost might even increase if I wanted to emphasize the promise by requiring a performance bond.  Considerations,  just like  those considerations already debated, such as  true emergency needs, or just need a plumber in a timely manner, is there really justification for “required” response, etc. etc. being the deciding factor of what the acquisition method used would be.

C Culham said:

What conflicts me throughout this discussion thread is that if there is a “required” need for anything, not just the El Segundo example,  the promise is reinforced with a contract (requirements or ?).    If this is not true for this example then why is true for other Federal government needs?    Why have contracts (promises again and not guarantees) at all, the Federal government should just move to competitive BPA’s for everything.

Actually, "Why have contracts?" is a very good question. Most of us get all kinds of work done without formal contracts or with very simple contracts. See "Non-contractual Relations in Business: A Preliminary Study," by Stewart Macaulay, American Sociological Review (Feb. 1963):

Quote

As one businessman put it, "You can settle any dispute if you keep the lawyers and accountants out of it."

Every contracting officer or would-be contracting officer should read that article.

Having a contract does not guarantee performance, and not having one does not guarantee failure. Even when we have voluminous contracts, we don't always get what we bargained for. Contracting parties often end up in litigation. The government often gets only partial success under contract. Consider the F-35, the littoral combat ship, and other major system programs. Remember the A-12, the biggest termination for default in the nation's history, which spent more than a decade in litigation? Software development is a notorious example. Construction is another. And think of the apparatus the government has constructed to award and administer contracts and what it costs in addition to the contracts themselves.

According to the Norton Rose Fulbright 2017 Litigation Trends Annual Survey, 43 percent of the 318 corporate counsels surveyed reported that contracts were the second most numerous source of their pending litigation, exceeded only by labor/employment. According to the survey, contract litigation was continuing to grow.

http://www.nortonrosefulbright.com/knowledge/publications/157833/2017-litigation-trends-annual-survey 

Corporate counsel consider contracts litigation to be significantly more "concerning" than personal injury and business tort litigation and slightly more concerning than labor/employment litigation.

All that said, I think contracts are necessary for large and complex endeavors to document the expectations of the parties. They force the parties to plan. Those may be their principal merits. The value of the contract as a guarantee of performance is questionable.

As for Carl's prediction of a (much) higher rate of lateness under BPA calls than under orders placed against a requirements contract, I wonder about his intuition or reasoning. If both contractors are responsible, as Don stipulated, why should the BPA contractor be late more often? A BPA call, once accepted, is as much of a contract as an order placed against a requirements contract. BPAs are in writing and contain all necessary contract clauses. See FAR 13.303-4. Acceptance of a call creates a contract that includes those terms. So why should the contractor with a contract based on a BPA call be considered so much more likely to fail? I'm not demanding an answer to that question from Carl, but I do want other readers to ponder it.

Vern Edwards said:

I wonder about his intuition or reasoning.

Personal experience in both acquisition as it applies to the Federal sector and my personal life.   I have lost count on the number of times my furnace quite in winter, a pipe was broken by happenstance or foolish work of my own, or that I contacted a entity as a CO to get prompt service (without a contract) only to have them agree and then not perform (be on time)  to the expectation as agreed when they accepted the work.   Excuses such as I had another call, the call I was on delayed me, I couldn't find your location, couldn't find the parts I thought I would need, my laborer stood me up, the list goes on and these are just a few of the excuses I can instantly remember.  While I have had but one or two contracts in personal life for what I will call immediate needs, I have experienced scores of contracts where promises, expectations, a required performance metric and even the personal guarantees of the contractor were met.

Conclusions about BPA's also interest me in that in almost all case folks have indicated that the power of the BPA is to have an option when the first BPA holder (second BPA holder , or more?) is not responsive.   Suggests to me that it is acknowledgement that a BPA has a lower expectancy on the promised hoped for.   In comparison I have never heard of having a contract to back a contract in case the first contractor will not be responsive.   Most likely exists somewhere but never in my experience.

 If others have had better successes with what I will call responsiveness where there was not a contract they must live in a idyllic place that I have not found yet!

My years of experience in government and the private sector have taught me that a reputable company will perform like a reputable company. It's not the method of contracting or the contracting instrument that determines outcomes, it's the relationship between the customer and the company with which it does business.

I have a business of my own. It has been quite successful for more than a decade, in the U.S. and several countries overseas. We depend on several suppliers and service providers, large and small. I don't have a written contract with a single one. We do business with each other informally. I pay well and on time, and they want my business. That's all I have to say, except that nobody is perfect. Stuff happens. Mature business people know that and act accordingly.

I'm done.

Vern Edwards said:

My years of experience

Granted.  

I as a 10 year consultant business owner too have had the same experiences, probably not as extensive but all the same experiences.  I have had the same experiences personally  as a trustee for a family member, a member of organizations that have put on community to world class events, as contracted hand for a local wheat rancher or helping my in-laws run a small farm for profit.   The salient issues of this thread, often derailed to issues other than, has been a "required" need that is as described are "emergency" services. 

At best in all my personal cases (except in my capacity as a trustee and organizer for a world class event) I would describe there were times of exigency but never emergency.  Whether for the regular stuff, the exigency, and in  the rare case of an emergency  I have experienced failures to perform.  In my Federal experience an emergency was experienced many more times, not just for incident response but with regard to native American health care, environmental spills, criminal activity, along with other situations and in this experience the promise of the contract in my view provided a much better track record of required performance.  I hope this clarity helps those that have followed this thread.

In the end as it has been stated application of contract method to a specific need will depend on its specifics.   But for the situation specifically stated by the OP, even as clarified by the OP's subsequent posts, that started this thread my experience still suggests a contract versus a BPA.  All the other what ifs thrown out lead to the other conclusion - it depends.

C Culham said:

Don – Using all the stipulations you have stated my estimate for your number 1 is 5% or less for not showing up within the 4 hours.  For your number 2 10 to 15% of the time the first contractor contacted would not accept the call and that if accepted they would not meet the expected 4 hours 75-80% of the time.

Carl,

75-80% of the time seems high to me. Suppose the same contractor had a requirements contract to support Base A and a BPA to support Base B. All other things equal, you think that the contractor would respond to 95% of Base A orders within 4 hours and only 20-25% of Base B calls within 4 hours?

Don Mansfield said:

All other things equal, you think that the contractor would respond to 95% of Base A orders within 4 hours and only 20-25% of Base B calls within 4 hours?

Yes.  My thinking in stating it is the specifics of the all the other things equal is that on the smaller needs there is less incentive for the contractor to be prompt.  Does being late on one BPA call cause the contractor for that call to be worried about not meeting the performance metric on a charge account?  My assumption is no the contractor would not be as worried as it relates to their worry with regard to response on a task order on a long term and specific requirements contract.

I've been following this back and forth trying to figure out where I come down. Intuitively, I believe whether requirements vs BPA affects response time depends on how sophisticated the contractor is.

If you're doing business with Joe the Plumber, he probably doesn't know a BPA from a contract, and there's a good chance he didn't even bother to read the agreement or contract through (let alone have an attorney review it). He understands what he's expected to do and what he'll be paid if he does it. Moreover, he probably never expected to do business with the government in the first place and therefore isn't overly concerned about retaining the government's business, regardless of the nature of the award (obviously, this perception could change if the government begins to account for a significant portion of his revenue). Finally, if he's a sole proprietor, he's got limited resources. If he's unavailable for any number of reasons or simply doesn't hear the call, there's no fallback option to reallocate resources. Again, the nature of the award would have no bearing on this situation.

So in that sense, I don't think I agree with Carl. But if we're dealing with a large business or a small business that actively seeks government work, I can see how the difference of contract vs. BPA could make a difference in terms of how the business plans and responds.

Those are my 2 cents, which admittedly lie well outside my circle of knowledge and experience.

On ‎4‎/‎14‎/‎2018 at 7:31 AM, C Culham said:

Yes.  My thinking in stating it is the specifics of the all the other things equal is that on the smaller needs there is less incentive for the contractor to be prompt.  Does being late on one BPA call cause the contractor for that call to be worried about not meeting the performance metric on a charge account?  My assumption is no the contractor would not be as worried as it relates to their worry with regard to response on a task order on a long term and specific requirements contract.

Ok, now I understand why you think what you think.