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FAR clause 52.219-27, Notice of Service Disabled Veteran-Owned Small Business Set Aside, states that SDVOSB concerns providing products as manufacturers agree that at least 50 percent of the costs of manufacturing will be performed by the concern or other SDVOSB concerns. The record, as described above, shows that the Air Force conducted ample market research in connection with its decision to set aside the acquisition for SDVOSB, including: (1) issuing a sources sought notice and questionnaire; (2) identifying potential small business offerors using available government contractor databases; (3) surveying those businesses regarding their socioeconomic status; and (4) contacting contracting officials at other Air Force bases to discuss recently conducted procurements for similar aircraft services. VA255P657SC1615, and the exercise of an option under that task order, by the Department of Veterans Affairs (VA) to Live Process, Inc., of Madison, New Jersey, under that firms Federal Supply Schedule (FSS) contract. 8127-28 (2006), requires the VA to consider setting aside a procurement for SDVOSBs, or veteran-owned small businesses (VOSB), before procuring its requirements under the FSS. Ordinarily, in order to qualify as a small business concern to provide manufactured products or other supply items, an offeror must either be the manufacturer or producer of the end item being procured, or if it does not manufacture the item being purchased, the offeror must comply with what is known as the nonmanufacturer rule. We agree with the agency that this market research is consistent with the requirements of the FAR, and we find no basis to sustain Starlights protest that the agency unreasonably set aside the procurement for SDVOSBs. The protesters argue that, had the agency issued a sources-sought notice, it would have discovered that at least two SDVOSBs were interested in competing. 8123, it was not required to set aside a procurement of prosthetic appliances for SDVOSBs. Section 8123 of Title 38 provides: The Secretary may procure prosthetic appliances and necessary services required in the fitting, supplying, and training and use of prosthetic appliances by purchase, manufacture, contract, or in such other manner as the Secretary may determine to be proper, without regard to any other provision of law. We dismiss the request because, as discussed below, our Office will no longer consider protests concerning the contention that the Veterans Benefits, Health Care, and Information Technology Act of 2006 (2006 VA Act), 38 U. On August 1, 2011, the VA issued the task order on a sole-source basis under Live Process FSS contract. Here, Encompass does not show that the VAs set-aside determination was unreasonable. In furtherance thereof, the first question is whether the statutory language provides an unambiguous expression of the intent of Congress. When SBA issues a waiver of the nonmanufacturer rule, a firm can supply the product of any size business without regard to the place of manufacture. The agency was not required to make a determination of responsibility in the course of conducting market research. We similarly see no basis to question the contracting officers conclusion that due to Aero Sages and Sage Cares common ownership, the VA Acts Rule of Two had not been met. The agency conducted searches of the Vet Biz database, reasonably focused its market research on the geographical area in which performance will take place, and considered the likelihood that firms from outside it would respond to the RFQ. 819.7004, 819.7005, the VA is required to set aside acquisitions for SDVOSBs whenever it determines that there is a reasonable expectation that offers will be received from at least two SDVOSB concerns and that award can be made at a fair and reasonable price. Those searches identified only one Minnesota-based SDVOSB courier service vendor. The phrase for purposes of meeting the goals is part of an introductory clause that establishes exceptions to the mandate (those exceptions being when subsections (b) and (c) apply). In essence, the VA seeks Chevron deference for a rulemaking it has never performed. Based on this subsection, the agency argues that if a SDVOSB/VOSB is not a FSS contract holder, it cannot be viewed as meeting the same requirements of that contracting preference, the FSS program, and, therefore, is not entitled to any priority preference. We disagree with the VAs characterization of the FSS program as a contracting preference. In sum, we find unreasonable, and inconsistent with the statute, the agencys failure to determine whether two or more SDVOSB concerns can meet the requirement at a reasonable price before using FSS procedures. As an initial matter, we disagree that Kingdomware is not an interested party to challenge the agency's actions. sections 3551-3556 (2006) and our Bid Protest Regulations, 4 C. Here, Kingdomware protested the terms of the RFQ, arguing among other things that the VA had not reasonably determined whether the procurement should be set aside for SDVOSBs. Here, as in Aldevra, the VA has not conducted market research to determine if there are two or more eligible SDVOSBs capable of performing the agency's requirements. Walker also argues that the agency failed to adequately assess whether the two identified firms could comply with the terms of the solicitation. As noted above, the agencys market research considered the capability of the vendors to meet the requirements. B-414365: May 18, 2017) Aero Sages allegations concern requirements under the Veterans Benefits, Health Care, and Information Technology Act of 2006 (the VA Act). Given the discretion afforded to contracting officers with regard to market research, Aero Sages arguments to the contrary provide no basis to question DLAs actions. 657f, sets forth the provisions of the Veterans Benefits Act of 2003, Pub. The agencys inability to find an SDVOSB firm ultimately led the agency to issue a sole source contract to the incumbent contractor to perform the required services until the agency could conduct a new competition. Based on this record, we find that the agency reasonably concluded that there was no reasonable expectation that offers would be received from at least two SDVOSB firms capable of performing the required work at a fair and reasonable price. The contractor will be required to provide labor, equipment, and transportation services each weekday for pick-up and delivery between the MVAHCS in Minneapolis and 10 CBOCs located throughout Minnesota and western Wisconsin. As detailed above, the COs market research here included searches for Minnesota-based SDVOSB courier service vendors in VA, SBA, and GSA databases. 8127(d) mandates that the VA shall conduct its procurements using an SDVOSB (or VOSB) set-aside when there is a reasonable expectation that two or more SDVOSB (or VOSB) concerns can meet the requirement at a reasonable price. With respect to the VAs newly-raised argument that our Office should defer to its view that the phrase in section 8127(d) that states for purposes of meeting the goals under subsection (a) permits the agency to, in some circumstances, disregard the statute, we note first that this interpretation is nowhere to be found in the VAs 2009 notice and comment rulemaking. Once the agency makes this determination, the agency then can determine whether to apply another contracting preference or to proceed using FSS procedures. That is, a protester must be an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. Determining whether a party is interested involves consideration of a variety of factors, including the nature of issues raised, the benefit or relief sought by the protester, and the party's status in relation to the procurement. After considering DLAs response to the protest, our Office solicited the views of VA and SBA. (Spur Design, LLC B-412245.3: Feb 24, 2016) (pdf) FRM asserts that it was unreasonable for the agency to limit the market research to the local geographic area because, according to the protester, the majority of the support requirements for this contract will be performed at the contractors own facility. The agency responds that: it was necessary to limit . The agency initially searched only in Washington state and found that there were no SDVOSB firms under the relevant NAICS code that perform valet parking services. Kingdomware in its comments on the agency report did not rebut the agency's responses regarding the MOBIS reference or the social media notification capability requirement. Both SBA and the Federal Acquisition Regulatory Council have implemented these statutory provisions in regulations, which state that an agency may not issue an SDVOSB sole-source award if the requirement can be satisfied using Federal Prison Industries, the JWOD Act, or is currently being performed under the authority of the SBAs 8(a) Business Development program. See Singleton Enters.-GMT Mech., A Joint Venture, B-310552, Jan. Since we conclude that the agencys decision not to set aside any of these contracts was inconsistent with the requirements set forth in the VA Act and its implementing regulations, we sustain the protest. market research to the states of Oregon, Washington and Idaho because the solicitation clearly stated under the heading Construction Period Services that site visits would be expected . As noted above, in conducting its market research, the agency used the NAICS code for parking lots and garages to search the Vet Biz database to identify potential SDVOSB firms, then researched the firms websites to determine whether the company performed valet parking services. With regard to setting aside procurements exclusively for veteran-owned small businesses (VOSBs) or SDVOSBs, 38 U.

On August 18, Kingdomware became aware of the information on FPDS, and on August 27 protested to our Office both the 2011 award, and the 2012 exercise of the option. Although our Office is not bound by the courts decisions, its decision in Kingdomware, together with the VAs position on the meaning of this statute, effectively means that protesters who continue to pursue these arguments will be unable to obtain meaningful relief. The requirements of the 2006 VA Act do not dictate the use of any particular methodology in assessing the availability of SDVOSB firms to perform a requirement; measures such as prior procurement history, market surveys, advice from the agencys small business specialist, and information concerning prospective offerors business history and capability or capacity may all provide a reasonable basis for a decision to set aside, or not set aside, a requirement for SDVOSBs. In this regard, the statements of work for the two regions required the successful contractor to provide labor, equipment, and transportation services each week-day for pick-up and delivery between the VASLCHCS in Salt Lake City, Utah and four VA clinics each in the northern and/or southern regions (covering Utah, Idaho, and Nevada). While the RFP did not restrict competition to firms located in this geographical area, there was nothing unreasonable in the contracting officers market research focusing on that area and the likelihood of whether firms from outside it would respond to the RFP. Moreover, in this regard, we do not agree with the protesters apparent belief that the VA was required to determine prospective offerors technical acceptability or responsibility in order to determine whether it was likely that it would receive offers from two or more SDVOSBs that appeared capable of performing and that award could be made at a fair and reasonable price. The agency argues that the phrase for purpose of meeting the goals under subsection (a) signals that Congress did not . See FAR 8.002, Priorities for Use of Mandatory Sources; FAR 8.003, Use of Other Mandatory Sources; FAR 8.004, Use of Other Sources. Specifically, the record shows that DLA received responses from only Benchmade Knife, Gerber, and ARG Tactical concerning a long term IDPO, that prior acquisition history since 2010 showed that awards for the combat knives had only been made to these same three companies, and that DLA had contracted with ARG Tactical on the last two acquisitions for the knives. Therefore, we will generally dismiss a protest challenging a firms small business or socio-economic status. AR at 4; AR, Tab 7, ARG Tactical Quotation, at 19; Tab 8, ARG Tactical SAM Profile, at 1, 6. (Fiskars Brands, Inc., dba Gerber Legendary Blades B-412730, B-412730.2: May 20, 2016) (pdf) Spur argues that the VAs decision not to set the procurement aside for SDVOSB concerns was in contravention of the VA Acts Rule of Two, which is implemented by the VA Acquisition Regulation (VAAR) 819.7004 and 819.7005.[10] For the reasons set forth below, we agree. 8127 (VA Act), implemented by VAAR 819.7004 and 819.7005, created the Veterans First Contracting Program and provides the VA with independent authority to set aside contracts for SDVOSB and VOSB concerns. 15, 2010, 2010 CPD 245 at 2-3; Apex Ltd., Inc., B-402163, Jan. Under the Veterans First Contracting Program, acquisitions must be set aside for SDVOSB concerns if the VA determines that there is a reasonable expectation that offers will be received by at least two SDVOSB concerns and that award can be made at a fair and reasonable price. As a result, the VA concluded it was not required to set aside the procurement, or any subset of the procurement, for SDVOSB concerns. In addition, the agency does not argue that its implementing regulations exempt, or even address, whether the VA Acts Rule of Two applies to multiple-award IDIQ contracts. In this regard, the agency argues that blindly apply[ing] the [VA Acts] Rule of [Two] to require the agency to set aside a multiple-award IDIQ procurement for SDVOSB concerns would result in abandon[ing] the benefits of competition and simply award[ing] the 7-9 SDVOSBs with contracts. Congresss apparent intent when it passed the VA Act was to broadly foster participation in VA procurements by SDVOSB and VOSB concerns.[14] See Aldevra, B-406205, Mar. Prior to the enactment of the VA Act, contracting officers were allowed, but not required, to restrict competition to SDVOSB and VOSB concerns under the Small Business Act, as amended by the Veterans Benefits Act of 2003. However, we see no basis to conclude that the agency has the discretion to ignore the requirements of the VA Act and the VAs own implementing regulations because it anticipates making multiple awards under an IDIQ contract. The statement of work for this procurement requires the successful contractor to provide bonded, fully trained, experienced staff with valid Washington State driver licenses to perform valet parking services for approximately 650 to 750 vehicles daily at VA Puget Sound Health Care System facilities located in Seattle, Washington. In addition, the RFQ requires the successful contractor to have the valet parking site ready to provide full service by the February 1, 2015 start date. a contracting officer of the [VA] shall award contracts on the basis of competition restricted to [VOSBs or SDVOSBs] if the contracting officer has a reasonable expectation that two or more [VOSBs or SDVOSBs] will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States." 38 U. 25274 (May 5, 2004) (The law limits use of SDVOSB procurement authority to procurements that would not otherwise be made from Federal Prison Industries (section 4124 or 4125 of title 18, United States Code) or the [JWOD] Act (41 U. In addition, the FAR addresses the priorities for use of certain mandatory sources and the use of other sources, such as the GSAs FSS. In response, the FAR Council stated that [t]he use of FSS is not required and the use of FSS is not mandatory; however, agencies are encouraged to consider using certain existing non-mandatory sources before considering sources in the open market. Thus, there is nothing in statute or regulation stating that it is unlawful for an agency to issue an SDVOSB sole-source award when the requirement could be satisfied through an order under the FSS, as long as all conditions for a sole-source award are met. Market Research The Small Business Act states that an agency may issue a sole-source SDVOSB award if the contracting officer does not have a reasonable expectation that 2 or more small business concerns owned and controlled by service-disabled veterans will submit offers for the contracting opportunity. AR, Tab 4, Justification for Other than Full and Open Competition; Tab 5, Market Research. 7, 2015, 2015 CPD 28 at 4; Hydroid LLC, B-299072, Jan. Here, the protester argues that publicly available information, but not anything on the face of ARG Tacticals proposal, calls into question its SDVOSB status. The record shows that the agency reviewed ARG Tacticals quotation and SAM profile prior to award, and both showed that ARG Tactical represented that it was an SDVOSB. Nonetheless, the agency maintains that because it needs a minimum of 14 contracts, the number of SDVOSB concerns capable of performing the required work was insufficient to meet its needs. Nothing in the language of the VA Act supports the agencys position that in the context of multiple-award contracts, the VA Acts Rule of Two requires set asides only when there will be two or more SDVOSB or VOSB offers per contract. We recognize it is within the agencys discretion to determine the number of IDIQ contracts required to satisfy its needs. that the A/E shall visit proposed project site, as required . Under the Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U. We conclude that the agencys market research and resulting set-aside decision were reasonable. In response to the allegation regarding the market research, DLA asserts that its market research was sufficient under the circumstances. Finally, in response to Aero Sages allegation regarding the contracting officers decision that the VA Acts Rule of Two had not been met, DLA states that because of the firms common ownership, the contracting officer did not view them to be independent. On this basis, VA requested that our Office deny the protest. SBA commented on DLAs market research as follows: [T]he agency limited its search to verified SDVOSBs that had Wisconsin included in their service area list. For the reasons that follow, we agree with DLA, VA, and SBA that Aero Sages protest should be denied. Finally, the agency removed all geographic restrictions and identified five other firms nationwide under the relevant NAICS code that perform valet parking services. Accordingly, it was not improper for the agency here not to set this requirement aside for SDVOSBs, and Kingdomware's arguments to the contrary provide no basis on which to sustain the protest. The agency further explains that the social media notification capability is useful for reaching employees when they are not in the workplace. Washington-Harris Group, B-401794, B-401794.2, Nov. Protest (B‑405492) at 1; Protest (B-405493) at 1; Comments at 1. Thus, she was concerned that since the only two SDVOSBs that were identified as being reasonably likely to submit quotations were under common ownership, there was not adequate price competition, and, therefore, there was not a reasonable expectation that award could be made at a fair and reasonable price. In response, VA commented that DLA adhered to the market research requirements of the VAAR by reviewing the VIP database to identify whether there were two SDVOSBs or VOSBs capable of meeting the requirement that were likely to submit a quotation at a fair and reasonable price.[3] VA Comments at 1. The agency then expanded its search to the nearby states of Oregon, Idaho, and California, and found only one SDVOSB firm (located in California) under the relevant NAICS code that performs valet parking services. Consequently, we consider these protest grounds to be abandoned. 230 at 5 n.3; Strategic Res., Inc., B-287398, B-287398.2, June 18, 2001, 2001 CPD para. (Kingdomware Technologies, Inc., B-405533.2, November 10, 2011) (pdf) The protester contends that the sole-source awards are improper because the VA failed to consider other qualified SDVOSBs for award. The protester argues that the VA should have set aside these procurements for SDVOSBs--and not have awarded sole-source contracts--because two or more SDVOSBs would have submitted offers for the work.

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See DNO Inc., B-406256, B-406256.2, March 22, 2012, 2012 CPD 136 at 4. Further, this Office has stated that an agency may issue an SDVOSB sole-source award even where another SDVOSB exists that could conceivably perform the contract, but has expressed no interest in the work. 28, 2007, 2007 CPD 55 at 7; see also Chicago Dryer Co., B-401888, Dec. 8127, and the VAs implementing regulations, VA Acquisition Regulation, 48 C. Further, as indicated above, the contract specialist, in a database search specifically directed by the contracting officer, found more than 127 profiles of SDVOSB concerns nationwide matching the criteria. Thus, it appears that had the agency expanded its market research beyond the VISN 20 region it would have discovered numerous SDVOSB A/E concerns doing fire protection work. B-411552: Aug 20, 2015) (pdf) IOVC asserts that the VA failed to perform sufficient market research to ascertain the interest and capability of SDVOSBs [service-disabled veteran-owned small business] to perform the requirement. 30, 2012, 2012 CPD 333 at 3; Buy Rite Transp., B-403729, B-403768, Oct. The requirements of the 2006 VA Act do not dictate the use of any particular methodology in assessing the availability of SDVOSB firms to perform a requirement; measures such as prior procurement history, market surveys, advice from the agencys small business specialist, and information concerning prospective offerors business history and capability or capacity may all provide a reasonable basis for a decision to set aside, or not set aside, a requirement for SDVOSBs. but will not exceed $5,000,000; and (3) in the estimation of the contracting officer, the contract award can be made at a fair and reasonable price that offers best value to the United States.

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