The SEWP IV Contractual Model Darlene Coen

The SEWP IV Contractual Model Darlene Coen

FAR Part 19. 301 -2 5 Year Rerepresentation Ø FAR Part 19. 301 -2 requires small businesses who were awarded long-term contracts (5 years in duration or longer, including options) to rerepresent its size status for the North American Industry Classification System (NAICS) by updating their Representations and Certifications in ORCA before the end of the 5 th year of the contract’s period of performance. Ø This regulation ensures that federal agencies receive credit for making contract awards to small businesses provided that the contractors that receive such contracts remain “small”. This regulation makes federal contract reporting more accurate. More importantly, it increases the opportunities for small businesses. 2 Symposium ‘ 12

5 Year Rerepresentation (con’t) Ø Each year, by law, SBA establishes goals for each federal agency to award a percentage of its contracts to small businesses. Contracts generally span a number of years, including “base” and “option” periods. Before this new regulation, if an option was executed on a contract that was originally awarded to a small firm, and the firm subsequently grew to be other than small, the agency would still receive credit for contracting with a small business. 3 Symposium ‘ 12

5 Year Rerepresentation (con’t) Ø After a contractor rerepresents it is other than small in accordance with 52. 219 -28, the agency may no longer include the value of options exercised, modifications issued, orders issued, or purchases made under blanket purchase agreements on that contract in its small business prime contracting goal achievements. Ø This will encourage agencies to work harder to make opportunities available to small businesses, in order to achieve their small business contracting goals. Ø The regulation does not affect the terms and conditions of contracts. 4 Symposium ‘ 12

5 Year Rerepresentation (con’t) Ø For SEWP IV contracts awarded with NAICS Code 541519, the size standard is 150 employees regardless of a particular contract group. Groups B, C and D fall under this size standard. Ø For SEWP IV contracts awarded with NAICS Code 334111, the size standard is 1000 employees regardless of a particular contract group. Group A falls under this size standard. 5 Symposium ‘ 12

5 Year Rerepresentation (con’t) Ø Effective May 1, 2012, the following SEWP IV Contract Holders business size will change from “small” to “other than small”: Ø Group B – Micro. Tech LLC Ø Group C – Immix. Group Ø Group C – Inteligent Decisions Ø Group C – Technica Corporation Ø Group D - Immix. Group 6 Symposium ‘ 12

NAICS Codes / Business Size Ø NAICS code and the subsequent business size is defined at the contract level; not the delivery order Ø If a NAICS code needs to be cited on a delivery order, use the contract level NAICS code: • 541519 for Groups B, C and D fall under this size standard • 334111 for Group A Ø Current business sizes are listed on SEWP Website under Contract Holders Ø At the delivery order level, Do Not: • Cite a different NAICS code • Use the CCR to look up business sizes 7 Symposium ‘ 12

Small Business and SEWP Ø 38 Competed Prime Contract Holders • 21 Small Businesses include 2 Set-Aside Groups: - Small Business - Service Disabled Veteran-Owned (SDVOSB) - Small Business Usage in Terms of Percentage for SEWP IV: 48% Ø Non-Competed 8(a) Set-aside Contracts • Complement Prime Vendor (competed) contracts • Primarily product based services • Limited to $4. 0 million per contract 8 Symposium ‘ 12

SEWP IV Contracts Ø IDIQ Contract Vehicle for IT Product Solutions and Related Technologies and Services Ø Government-Wide Acquisition Contract (GWAC) - Available to all Federal Government Agencies • All Federal Agencies have utilized SEWP - Available to Authorized Federal Contractors 9 Symposium ‘ 12

Contract Holder Groups 4 Competed Groups • Group A: Original Equipment Manufacturers (OEM) and Value Added Resellers (VAR) - Full & Open Competition 9 Contract Holders • Group B: Service Disabled Veteran-Owned Small Business (SDVOSB) Set-Aside VARs 6 Contract Holders • Group C: Small Business Set-Aside VARs 12 Contract Holders • Group D: Full & Open Competition VARs 15 Contract Holders Ø Scope is the same for all groups listed above 10 Symposium ‘ 12

Fair Opportunity ØFair Opportunity MUST BE provided within a Group • Opportunity may be provided across multiple Groups ØFair Opportunity Applies to any Multi-award Contract • FAR 16. 505(b) • Process for Fair Opportunity (per FAR) is at CO’s Discretion • Does not apply: - Orders under $3000 - Group E Contracts Ø SEWP Quote Request tool is the only RECOMMENDED method 11 • Tool will be updated to match new business sizes • But update may be delayed – watch for info on the Create RFQ page on May 1 Symposium ‘ 12

Best Value Ø Once Fair Opportunity is provided, the ordering agency’s Contracting Officer’s technical requirements, past performance requirements, price, Agency policy and other factors related to the exercise of sound business judgment should be considered in making a best value determination for award. 12 Symposium ‘ 12

Product Solution Availability ØSEWP is ‘Catalog by Request’ not ‘Request by Catalog’ • Quote Request tool available on-line • No traditional searchable catalog • Quotes are verified against contract catalog ØDynamic Catalog • Items added to contract based on customer requests • Contract Holder requests to add products are reviewed and either approved or denied within 2 to 4 hours • On-line contract database of record 13 Symposium ‘ 12

SEWP Manufacturers and Products Ø 38 Prime Contract Holders Ø 3800+ Manufacturers • Including Cisco, Apple, Net. App, EMC, APC, Microsoft, Oracle, etc. Ø 1, 700, 000+ Products & Product Based Services 14 Symposium ‘ 12

Pricing ØContract Price • Contract discount structure • Comparison to other contract prices • Less Than GSA Price ØQuoted Price • Purchases can be consolidated to maximize price discounts • Internal competition results in line item discounts • Product Prices may be negotiated/questioned ØDelivery Order With Options • Order awarded for recurring supplies/services needs with options to purchase from the same quote/initial order for a defined period of time • Delivery orders can be structured similar to a purchase agreement • Fair Opportunity required for initial order 15 Symposium ‘ 12

Delivery Orders with Options/Beyond 2014 Ø SEWP does not have a structure available that is identical to the GSA BPA arrangement. However, SEWP has the ability to be used for Delivery Orders with Options and along with the Fair Opportunity procedures in FAR Part 16. 505(b), some of the functionality related to Purchase Agreements can be applied to the SEWP process. This functionality is as follows: Ø If an Agency has a requirement to purchase a set of known in-scope items and products but is uncertain of the timing of those purchases, a Request for Quote (RFQ) can be submitted using Fair Opportunity guidelines to one or more SEWP Contract Groups; 16 Symposium ‘ 12

Delivery Orders with Options/Beyond 2014 (con’t) Ø The Agency may award one or more Delivery Orders based on the quotes received. This initial set-up Delivery Order would set the price of the items as quoted. The maximum time for the existence of this order and any instructions for exercising options / placing option calls against the original quote and initial Delivery Order should be noted in this initial order. Ø Agency officials may then follow the procedures as stated in the set-up Delivery Order to place orders against the initial quote. This is per the FAR Part 16 exception to Fair Opportunity for logical follow-ons to a Delivery Order, which was itself awarded based on Fair Opportunity. 17 Symposium ‘ 12

Delivery Orders with Options/Beyond 2014 (con’t) Ø Any substantive change to the initial quote and subsequent initial Delivery Order, such as increasing the scope of products quoted, would require a renewed Quoting and ordering cycle including issuing a new RFQ following Fair Opportunity procedures. Ø The actual usage and set-up of the initial Delivery Order is the Contracting Officer’s responsibility. Typically, the initial order is set up with an initial $0 Delivery Order listing the materials and prices included in the awarded quote. Subsequent Delivery Orders are issued options either as modifications or “calls” against the original order. Ø Delivery orders with options cannot exceed a period of performance of 5 years from date of award. 18 Symposium ‘ 12

Protests From FAR Part 16. 505: Ø All Orders • Fair Opportunity issues may be referred to an Ombudsman Ø $5 Million and less: • Post-award debriefs and award notification are at the awarding Contracting Officer’s’s discretion Ø $5 Million or more: • Post-award debriefs shall be provided • Contracting Officer shall notify unsuccessful bidders Ø Protests: • Orders under $10 M only protestable for period of performance -Follow SEWP Recommendations for orders extending past 2014 • Orders over $10 M may be protested (FAR 33. 104) 19 Symposium ‘ 12

Trade Act Agreement/Compliance Ø Contract Holders must ensure that all items offered are compliant with the Trade Agreements Act. The Trade Agreements Act (19 U. S. C. 2501, et seq. ) is the enabling statute that implements numerous multilateral and bilateral international trade agreements and other trade initiatives. Since the estimated dollar value of each SEWP Contract exceeds the established Trade Agreements Act (TAA) threshold, the TAA is applicable to all SEWP Contracts. In accordance with the TAA, only U. S. -made or designated country end products shall be purchased under SEWP contracts unless an exception exists and is documented by the Contracting Officer as noted in FAR 25. 401. Otherwise, the Contracting Officer must follow the Procedures as outlined in “FAR 25. 408 Procedures”. 20 Symposium ‘ 12

Terms and Conditions Ø Text A. 1. 2 Procedures for Orders permits the Government Contracting Officer to negotiate additional terms and conditions for a specific order. Ø However, adding agency specific terms may encourage contractors to propose their own terms and expect a negotiation of these terms to take place. Ø NASA does not recommend accepting contractor’s terms even if they are standard commercial terms. Ø Consult your agency’s legal counsel before agreeing to additional commercial terms. 21 Symposium ‘ 12

Problematic Terms and Conditions Ø Unilateral Assignments by Contractor Ø Unilateral Changes to Price by Contractor Ø Unilateral Changes to Terms by Subcontractor Ø Automatic Service Renewal Ø Restrictions on the right to terminate not in accordance with the Federal Acquisition Regulations (FAR) 22 Symposium ‘ 12

Problematic Terms and Conditions (con’t) Ø Change in Governing Law Ø Limitation of Legal Action not in accordance with the Basic Contract or the FAR Ø Limitation of Liability Ø Charges for late payment not in accordance with the Prompt Payment Act Ø Additional Taxes and Fees not in accordance with the Basic Contract Ø Tailoring of clauses contained in the SEWP IV basic contracts 23 Symposium ‘ 12