The SEWP IV Contractual Model Darlene Coen

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The SEWP IV Contractual ModelDarlene Coen
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FAR Part 19.301-2 5 Year Rerepresentation

• 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 5th
  year of the contracts period of performance.
• 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.

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5 Year Rerepresentation (cont)

• 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.

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5 Year Rerepresentation (cont)

• 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.
• This will encourage agencies to work harder to
  make opportunities available to small businesses,
  in order to achieve their small business
  contracting goals.
• The regulation does not affect the terms and
  conditions of contracts.

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5 Year Rerepresentation (cont)

• 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 .
• 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.

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5 Year Rerepresentation (cont)

• Effective May 1, 2012, the following SEWP IV
  Contract Holders business size will change from
  small to other than small
• Group B MicroTech LLC
• Group C ImmixGroup
• Group C Inteligent Decisions
• Group C Technica Corporation
• Group D - ImmixGroup

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NAICS Codes / Business Size

• NAICS code and the subsequent business size is
  defined at the contract level not the delivery
  order
• 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
• Current business sizes are listed on SEWP Website
  under Contract Holders
• At the delivery order level, Do Not
• Cite a different NAICS code
• Use the CCR to look up business sizes

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Small Business and SEWP

• 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
• Non-Competed 8(a) Set-aside Contracts
• Complement Prime Vendor (competed) contracts
• Primarily product based services
• Limited to 4.0 million per contract

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SEWP IV Contracts

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

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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
• Scope is the same for all groups listed above

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Fair Opportunity

• Fair Opportunity MUST BE provided within a Group
• Opportunity may be provided across multiple
  Groups
• Fair Opportunity Applies to any Multi-award
  Contract
• FAR 16.505(b)
• Process for Fair Opportunity (per FAR) is at COs
  Discretion
• Does not apply
• Orders under 3000
• Group E Contracts
• SEWP Quote Request tool is the only RECOMMENDED
  method
• 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

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Best Value

• Once Fair Opportunity is provided, the ordering
  agencys Contracting Officers 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.

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Product Solution Availability

• SEWP is Catalog by Request not Request by
  Catalog
• Quote Request tool available on-line
• No traditional searchable catalog
• Quotes are verified against contract catalog
• Dynamic 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

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SEWP Manufacturers and Products

• 38 Prime Contract Holders
• 3800 Manufacturers
• Including Cisco, Apple, NetApp, EMC, APC,
  Microsoft, Oracle, etc.
• 1,700,000 Products Product Based Services

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Pricing

• Contract Price
• Contract discount structure
• Comparison to other contract prices
• Less Than GSA Price
• Quoted Price
• Purchases can be consolidated to maximize price
  discounts
• Internal competition results in line item
  discounts
• Product Prices may be negotiated/questioned
• Delivery 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

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Delivery Orders with Options/Beyond 2014

• 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
• 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

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Delivery Orders with Options/Beyond 2014 (cont)

• 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.
• 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.

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Delivery Orders with Options/Beyond 2014 (cont)

• 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.
• The actual usage and set-up of the initial
  Delivery Order is the Contracting Officers
  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.
• Delivery orders with options cannot exceed a
  period of performance of 5 years from date of
  award.

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Protests

• From FAR Part 16.505
• All Orders
• Fair Opportunity issues may be referred to an
  Ombudsman
• 5 Million and less
• Post-award debriefs and award notification are at
  the awarding Contracting Officerss discretion
• 5 Million or more
• Post-award debriefs shall be provided
• Contracting Officer shall notify unsuccessful
  bidders
• 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)

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Trade Act Agreement/Compliance

• 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.

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Terms and Conditions

• Text A.1.2 Procedures for Orders permits the
  Government Contracting Officer to negotiate
  additional terms and conditions for a specific
  order.
• However, adding agency specific terms may
  encourage contractors to propose their own terms
  and expect a negotiation of these terms to take
  place.
• NASA does not recommend accepting contractors
  terms even if they are standard commercial terms.
• Consult your agencys legal counsel before
  agreeing to additional commercial terms.

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Problematic Terms and Conditions

• Unilateral Assignments by Contractor
• Unilateral Changes to Price by Contractor
• Unilateral Changes to Terms by Subcontractor
• Automatic Service Renewal
• Restrictions on the right to terminate not in
  accordance with the Federal Acquisition
  Regulations (FAR)

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Problematic Terms and Conditions (cont)

• Change in Governing Law
• Limitation of Legal Action not in accordance with
  the Basic Contract or the FAR
• Limitation of Liability
• Charges for late payment not in accordance with
  the Prompt Payment Act
• Additional Taxes and Fees not in accordance with
  the Basic Contract
• Tailoring of clauses contained in the SEWP IV
  basic contracts

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