Has the "Professor" correctly answered this question? For that matter, what is his/her answer to the question? Is the question clear?

"What is the limitation on Award Fees? Is it 3%?
Posted to Pre-Award Procurement and Contracting on 12/14/01 by XXXXX

The Question
Simply looking to see if there is a maximum allowance for a fixed fee on a cost-type contract.

The Answer
Reference: AAP PA8255 Question: What is the limitation on award fees? Is it 3%? Simply looking to see if there is a maximum allowance for a fixed fee on a cost type contract? Answer: The question on the 3% for an award fee contract is the maximum base fee allowed on a CPAF contract. The contracting officer determines the award fee, using the guidelines in part 15.4 of the FAR. Also in FAR 15 is the list of fees for cost plus fixed fee contracts (FAR15.404-4). Rationale: FAR 15.4, 15.404-4, 15.404-4(c)(4)(i) and DFARS216.405-2 and 216.470"

By joel hoffman on Thursday, January 03, 2002 - 08:07 am:

The question is kind of ambiguous. Can't tell whether the questioner is asking about CPFF (cost-plus-fixed fee) or CPAF (cost-plus-award fee), the base fee (fixed) in a CPAF, the award fee (earned and awarded after evaluation) in a CPAF, or simply about a CPFF, in general.

Looks like the professor provided a shot gun answer to the shot gun question. The prof provided references so that the questioner could determine DOD policy on fees and award fees for both CPAF and CPFF (base fee in a DOD CPAF contract is limited to 3%, per DFARS 216.405-2). happy sails! joel hoffman

By Vern Edwards on Thursday, January 03, 2002 - 09:37 am:

Perhaps the questioner and the professor are related to the person who wrote FAC 2001-3. The professor should have written:

FAR 15.404-4(c)(4)(i) limits the amount of the fixed fee under cost-plus-fixed-fee contracts to 15 percent of the estimated cost of the contract if the contract is for research and development or 10 percent if the contract is for other work. FAR does not limit the amount of the incentive fee under cost-plus-incentive-fee contracts or the amount of either the award fee or the base fee under cost-plus-award-fee contracts. However, DFARS 216.405-2(c)(ii)(2)(B) limits the amount of the base fee under cost-plus-award-fee contracts to 3 percent of the estimated cost.

Instead of a bachelor's degree, maybe you should have to pass a writing test in order to be an 1102.

By Vern Edwards on Thursday, January 03, 2002 - 10:41 am:

Here's another AAP Q&A:

The Scenario: We had a solicitation on the street for several months. A number of contractors asked for extensions and we granted several of them. The proposals were to be received on 2:00pm of a certain date. 3 of four proposals received came in after the 2:00pm dead-line and the CO said that they were unresponsive and could not be considered.

The Question: Can a proposal be considered if it is received late?

The Answer: No, late is late, except as shown in the rationale listed below. Rationale: FAR 15.208 -- Submission, Modification, Revision, and Withdrawal of Proposals. (a) Offerors are responsible for submitting proposals, and any revisions, and modifications, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. Offerors may use any transmission method authorized by the solicitation (i.e., regular mail, electronic commerce, or facsimile). If no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that proposals are due. (b) (1) Any proposal, modification, or revision, that is received at the designated Government office after the exact time specified for receipt of proposals is "late" and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition; and- (i) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or (ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of proposals and was under the Government's control prior to the time set for receipt of proposals; or (iii) It was the only proposal received. (2) However, a late modification of an otherwise successful proposal, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted. (c) Acceptable evidence to establish the time of receipt at the Government installation includes the time/date stamp of that installation on the proposal wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel.

Is that a good answer in this scenario?

By Dave Barnett on Thursday, January 03, 2002 - 11:18 am:

Well, it parrots the FAR. But how can a late proposal be deemed nonresponsive (unresponsive?)? Responsiveness is a sealed bidding issue.

By Anonymous on Thursday, January 03, 2002 - 11:48 am:

The questioner said the KO declared the proposal unresponsive, not nonresponsive.

By joel hoffman on Thursday, January 03, 2002 - 12:10 pm:

Dave, I think the 'prof' limited the response to the actual question, not addressing the full scenario. Otherwise, the answer can get awfully involved. That AAP topic has a lot of questions to answer and the 'prof' is a part-time volunteer, not a full-time answerer.

I might have answered the question a little more directly for the specific circumstance, making a reference to the FAR exceptions, but I think the basic answer is correct - no, those proposals are late. happy sails! joel

By joel hoffman on Thursday, January 03, 2002 - 12:13 pm:

Well, on second thought, the question is broader than the scenario - so ok, what's wrong with the answer? Should he not have addressed the specific example? happy sails! joel

By Linda Koone on Thursday, January 03, 2002 - 12:41 pm:

I have a couple of thoughts on the answer, but the first thing that jumps out at me is that the Professor, when citing the FAR, completely omitted FAR 15.208(d) in the answer, which states:

"(d) If an emergency or unanticipated event interrupts normal Government processes so that proposals cannot be received at the Government office designated for receipt of proposals by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation closing date, the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume."

Now, considering that

1) AAP is a DoD website, and

2) the tightened security at all DoD installations and mailrooms as a result of the events on 9/11/01 and subsequent anthrax scares has resulted in delays in entering DoD installations and distributing mail at these installations, and

3) that 3 of the 4 offers were late,

I think that 15.208(d) should have at least been mentioned.

By Vern Edwards on Thursday, January 03, 2002 - 12:46 pm:

What would a professional know? What would a "business manager" CO do?

By Linda Koone on Thursday, January 03, 2002 - 01:07 pm:

I think that any 'reasonable' CO, upon finding only one timely offer when more than one was anticipated, would not open the offer, but would investigate what happened with the other offers (i.e., call the companies).

Then, the CO would extend, if necessary, the closing date of the RFP.

By Dave Barnett on Thursday, January 03, 2002 - 01:17 pm:

Joel, considering the broader aspects, what if this were a FAR 13.5 acquisition? Then could the KO consider quotes that are timely received pursuant to 13.003(h), assuming the KO is taking the use of SAP to his/her advantage, problem is that FAR 13.5 addresses "offers", and a "quote" is not an offer.

Amend the solicitation after the receipt deadline for proposals (under 15.206?)? Problem is that such an amendment is only issued to offerors who have not been eliminated from the competition, since a late proposal is not to be considered, it has been effectively eliminated from the competition.

I think the problem with AAP is not so much with the answer, it's with the questions. General questions are going to result in general answers.

While KOs are encouraged to exercise "business judgement", they still must comply with the FAR.

I still haven't found the term "unresponsive" in the FAR. When dealing with FAR 15 acquisitions, I've always used the term "unacceptable" not "nonresponsive" or "unresponsive".

By Vern Edwards on Thursday, January 03, 2002 - 01:23 pm:

Linda:

Are you suggesting that the CO could amend the RFP after the closing date in order to postpone the closing date and thus make the late offerors' proposals eligible for consideration?

Vern

By Eric ottinger on Thursday, January 03, 2002 - 01:51 pm:

Dave,

After reading numerous Comp. Gen. cases, I noted that agencies often find proposals to be "nonresponsive" notwithstanding that responsivenss only applies to sealed bidding. The Comp. Gen. merely puts the term "nonresponsive" in quotes to indicate that it isn't quite correct. If the Comp. Gen. can be this flexible, it won't hurt for the rest of us to do the same.

Responsiveness doesn't apply to negotiated procurements because there is at least the possibility that government's requirements can be changed in the process of negotiation.

The Comp. Gen. uses the terms "acceptable" and "technically acceptable" synonymously. It would not be an improvement to substitute "unacceptable" for "nonresponsive" in this situation.

If you are uncomfortable with "nonresponsive," it would be best just to say "late."

Linda,

I agree. If there is one thing which distinguishes the "business manager" CO, it is the desire to get all of the facts, ask all of the "dumb/obvious" questions, before making a decision.

Eric

By Linda on Thursday, January 03, 2002 - 01:52 pm:

Yes I am, Vern.

I did a quick check and it's been done before, protested, and determined to be acceptable if its done in the spirit of enhancing competition.

See Comp Gen decision "Ivey Mechanical Company",
B-272764 dated August 23, 1996.

By Vern Edwards on Thursday, January 03, 2002 - 02:04 pm:

Linda:

Good for you. It's been done several times. See Fort Biscuit Company, 71 Comp. Gen. 392, B-247319, 92-1 CPD P 440, May 12, 1992:

"While Federal Acquisition Regulation (FAR) § 15.410(a) contemplates that solicitation amendments ordinarily will be issued prior to the closing date, it does not prohibit the issuance of amendments extending the closing date after the closing date has passed. See Institute for Advanced Safety Studies--Recon., B-221330.2, July 25, 1986, 86-2 CPD ¶ 110 (issuance of an amendment extending the proposal due date for receipt of proposals 3 days after expiration of the original closing date was proper); see also Impact Instrumentation, Inc.--Recon., B-198704, Oct. 3, 1980, 80-2 CPD ¶ 239. Further, it is proper to extend the closing date for receipt of proposals in order to enhance competition, see Solar Resources Inc., B-193264, Feb. 9, 1979, 79-1 CPD ¶ 95, and, applying this principle in an invitation for bids context, we have held that issuance of an amendment extending the time for bid opening even after the deadline has passed is proper where its intent is to enhance competition by permitting an offeror sufficient time to prepare an offer. Coast Canvas Prods. II Co., Inc., B-225017, Nov. 7, 1986, 86-2 CPD ¶ 538. Furthermore, extending a BAFO due date to enhance competition is unobjectionable even where it is done at the request of a certain offeror. TRS Design & Consulting Servs.--Recon., B-218668.2, Oct. 2, 1985, 85-2 CPD ¶ 370."

Note that the decisions go back to 1980.

Why didn't the "professor" know that? It's not that his/her answer was "wrong"; but the answer didn't provide all of the information that it should have.

Linda, I think AAP ought to recruit you to answer some of the questions. Joel, what do you think?

Vern

By Linda Koone on Thursday, January 03, 2002 - 02:23 pm:

Vern:

You gotta be kidding! I've always tried to give you sufficient entertainment through my comments at this site!

Actually, I know we've picked on the AAP site and I haven't taken the time to really investigate the workings of that site.

I agree with Dave that a lot of the problem lies in the questions that are asked.

I still think the concept is a good idea and it could be an extremely valuable sharing tool. But, there seems to be a lack of quality assurance, both in the questions posted and the answers provided.

By Vern Edwards on Thursday, January 03, 2002 - 02:31 pm:

Linda:

I'm not prepared to cut AAP any slack. I agree that it's a good concept, and I know that the professors are part-timers and that some of them are volunteers, but that's no excuse. If a question is not clear, then clear it up, or write the kind of answer that I did in my earlier post.

It seems to me that the real problem at AAP is that some of the professors are not experts and don't know much more than the persons who write to ask questions. Moreover, they either haven't got the time or are not willing to take the time to do research before answering.

By Smokey on Thursday, January 03, 2002 - 03:02 pm:

Thanks for such an interesting conversation..of course, a "do what makes sense" CO will do just that, what makes sense.

I agree with Vern...not researching the answer can be very dangerous, especially with this crowd!