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  3. B2B, you are welcome. I believe you are correctly understanding that my position is that neither the commercial item exception in (b)(1) (ii) nor its sub paragraphs (A), (B), (C),(D) or (E) are applicable to a subcontractor under that DFARS provision as written by DoD. I also have trouble understanding the flowdown of this provision. In paragraph (e), DoD wrote it such that the DoD contractor shall incorporate the substance of this provision in subcontracts, which to me means the entire DoD provision. On the other hand, it goes on to say that the subcontractor shall comply with paragraphs (c) and (d), but no mention of subcontractor compliance with paragraph (b), the commercial item exception. This is an awkward indication that (b) is not applicable to subcontractors. I believe the prime contractor was in error in substituting Buyer for Contracting Officer in (b). That substitution seems to invite making the commercial item exception applicable subcontractors. Thereafter, apparently the prime contractor took another look at (b) and responded to the subcontractor's request for a commercial item exception in the negative. Hence, the confusion and concern about whether to request cost or pricing data. If this provision and its Contracting Officer alteration was included in a contract between the prime contractor and the subcontractor, the contractor could be seen as in breach of contract by the subcontractor relative to (b). If the contractor went ahead and honored its contract language, it could be viewed in my opinion as an incorrect commercial item determination, which may have consequences with its DoD customer and/or approved purchasing system. The flowdown direction in (e) to Incorporate the substance of this provision in subcontracts is not as clear as it should be relative to paragraph (b).
  4. Thanks! Very helpful information!
  5. You are right, "exception" is the right one in this case, it would be an exception from submitting certified cost and pricing data. Thank you for the clarification. You are right, my question was on DFARs 252.215-7010. With the statement above I was referring the other 4 exceptions that are listed in DFARs 252.215-7010(b)(1)(ii), before the (E), I thought that all of them (or none of them if I got your position) should be applicable to the sub-contractor. Hopefully I clarified my understanding.
  6. In my view @joel hoffman should have included this paragraph from 13.003 as well... "(g) Authorized individuals shall make purchases in the simplified manner that is most suitable, efficient, and economical based on the circumstances of each acquisition. For acquisitions not expected to exceed -- (1) The simplified acquisition threshold for other than commercial items, use any appropriate combination of the procedures in Parts 13, 14, 15, 35, or 36, including the use of Standard Form 1442, Solicitation, Offer, and Award (Construction, Alteration, or Repair), for construction contracts (see 36.701(a)); or" And read 36.701. If you want firm offers the 1442 is ok but if you really want quotes then use a SF 18 or similar format and submit your offer to award on a 347 and ask the contractor to affirm acceptance. And a thought of performance bond for construction needs under $150k. Yes FAR part 28 doesnot encourage but it is unclear whether discreation would allow. I once worked for an agency that did federal construction on private property. The agency put in place a class deviation where work over $2000 would be bonded by both performance payment bonds to help ensure the private interests got the work anticipated and helped with potential liens by unpaid suppliers, subs, etc. against the private property. Sharing as I for one would consider individual deviations for performance and payment bonds if the critical nature of the work so dictated. A decision that is in the best interest of the government from the view that doing so may limit competition as not all mom and pops can get surety bonds and asking for them will generate a higher price for the work.
  7. You may be thinking about common exceptions to certified cost or pricing data per FAR 52.215-12 and FAR 15.403. Your posted question was solely about a DFARS provision. This DFARS provision did not delete FAR provisions or clauses. BTW, you seem to use "exemption" and "exception" interchangeably. They are not.
  8. See, http://www.uscfc.uscourts.gov/sites/default/files/opinions/BRADEN.ATKThiokol2.pdf
  9. If you go back to the promulgation comments regarding this clause in the Federal Register, one of the public comments related to applying the policy in the clause to subcontractors. DoD responded by stating that the statutory authority for the clause only gave DoD discretion to apply the policy. Further, this discretion only applied to the award of prime contracts. Consequently, DoD specifically refused to make the discretion given to DoD available to the prime in regard to subcontracts. I still do not see any connection between the definition of a NTDC and what you wrote in your original post. The fact that a prime contract is subject to full CAS coverage does not mean that all subcontracts under that prime contract are also subject to full CAS coverage. Instead, if the subcontract falls within one or more of the exceptions in the CAS rules, such as the subcontract being awarded to a small business concern or for commercial items, the subcontract is exempt from CAS coverage.
  10. Yes it does, specifically after 252.215-7010 "Contracting Officer means the Buyer", where the Buyer is defined as the Prime. is there a definition of sub-offeror? why the clause itself require the flowdown, if it cannot be used from a sub-contractor while sub-Offering? If this statement would be true, I think that we would have a bigger problem, because also the exceptions (b)(1)(ii)(A), (B), (C) and (D) would not apply to a sub-contractor... while it results to me are commonly used to require the exception for those categories of products. I do appreciate your point of view. Thank you.
  11. I agree on this, it is the rule in DFARs 252.215-7013. This applies the Part 12 to the procurement which is a far more relaxed requirement than "just" the exemption from certified cost and pricing data, which is what the 7010(b)(1)(ii)(E) seems to allow. It contains the requirement to what is necessary to ask for the exemption, that for the NTDCs is just the written statement... This change was planned because many (all?) NTDC do not have in place systems to certify the data, even if quality and price of products/services may satisfy the Customer, this gap in system/processes was exposing them to potential following problems... which has been a fear preventing many to offer in this arena. The original intent was to enlarge the supplier base as far as I understood. Thank you for the time you have spent on this.
  12. @Jamaal Valentine Work is not out of scope for the IDIQ contract. For the task order, in this particular case the work is not out of scope, however I was leaning towards that not affecting the answer based on the FAR. @ji20874 That was my understanding as well. However, the topic recently came up in conversation and other KO's did not agree so I was curious what others thought.
  13. The proposed National Defense Authorization Act for fiscal year 2020 introduces new pathways for certain Department of Defense software acquisitions. These proposed software acquisition pathways would be separate from the traditional Department of Defense acquisitions process, and contain sweeping streamlining functions, especially within their supervisory structure. If passed, this new pathway could have a significant effect on how defense agencies acquire software. The proposed National Defense Authorization Act (“NDAA”) for fiscal year 2020 would create new pathways for certain Department of Defense (“DOD”) software acquisitions. Specifically, section 801 of the proposed NDAA introduces two new DOD acquisition pathways for the “rapid acquisition” of (1) software applications and (2) software upgrades. If you are an avid SmallGovCon reader, you may recall that this is not the first time that an NDAA has created a unique acquisition pathway or other transactional authority for certain DOD contracts. The two proposed software acquisition pathways would be for the rapid acquisition of software applications and software upgrades. The NDAA defines software applications eligible for a unique acquisition pathway as “rapid development and implementation of software applications to be used with commercially available hardware” and defines software upgrades eligible for a unique acquisition pathway as “rapid development and insertion of software upgrades for embedded weapon systems or another hardware system solely used by the Department of Defense.” These software acquisitions would appear to rely heavily on products or hardware already in use by the DOD, allowing for a more rapid acquisition process. In addition to meeting the specific definition of “software applications” or “software upgrades,” an acquisition must meet price and time restrictions to qualify. For an acquisition to qualify for one of these pathways, it would need to be under $50 million, and last no more than a year. The contract can contain a one-time option to extend the contract for a period of one year or less, but cannot be for an amount greater than $100 million. These proposed pathways are similar in some ways to other “streamlined” DOD pathways—like the middle-tier acquisition pathway—in that they will generally not be subject to the “joint capabilities integration and development system manual” nor be subject to “Department of Defense Directive 5000.01.” In general the joint capabilities integration and development system manual specifies procedures for each acquisition and how to integrate these acquisitions to best fit the priorities of the DOD established by the joint chiefs of staff; while DOD Directive 5000.01 sets the standards for the Defense Acquisition System. These proposed pathways will also require over-arching guidance to be issued by the Department of Defense. In addition to not being subject to certain DOD Directives, these proposed software pathways will have a reduced supervision structure. There will be a project manager with significant relevant experience appointed. This project manager will be a government employee and selected from a pool of civilian employees of the DOD or a military department to manage each acquisition. This project manager will then directly report to the service acquisition executive of the military department that submitted the solicitation. The proposed NDAA grants this project manager great leeway to conduct rapid software acquisitions. The project manager may hire a technical staff, including experts when needed, and may make trade-offs among costs, requirements, and schedules for each acquisition, so long as these trade-offs are coordinated with the users and testers of the software. The most interesting proposed power is that the project manager “shall be provided a process to expeditiously seek a waiver from Congress from any statutory or regulatory requirement that the project manager determines adds little or no value to the management of the acquisition.” If the proposed software acquisition pathways have implementations similar to other DOD rapid acquisition pathways, there may be some delays in the issuance of clear guidance on how these pathways should function, and some confusion on how the pathways should operate as different portions of DOD begin to utilize them. However, these pathways would be used for very short contracts that appear to build off of or supplement already existing DOD hardware. The most dramatic portion of these proposed software acquisition pathways appears to be the ability given to the project manager to seek a waiver from Congress for any codified requirement that adds no value to the acquisition. It seems that with this ability to request waivers, the project manager in these situations could avoid the established rule-making avenues, and simply request waivers from certain rules so long as Congress approves. The mind can run wild at what those requests for a waiver may look like and what a project manager may request, but it undoubtedly will result in unique issues for any contractor involved in these proposed pathways. Stay tuned to see if this provision stays in the final NDAA signed by the President and if so how DOD implements this new authority. View the full article
  14. B2B, when the Contractor included this DoD provision in the RFP, did the RFP include language that substituted parties in general throughout the RFP, or specifically with respect to this DoD provision, such as "Offeror means subcontractor" and "Contracting Officer means Contractor?" If so, some confusion may have been sowed by the prime contractor because the required flowdown direction does not indicate such a substitution and such a substitution does not seem warranted by the legislative history of the provision or the provision language itself. If there was no such substitution, (b)(1)(ii) clearly means the Offeror to DoD when such provision is included in a DoD solicitation. It does not change meanings when it is flowed down to subcontractors. Therefore, it has nothing to do with subcontractors. (b)(1)(ii)(E) is a subsection of (b)(1)(ii). To me, it means a DoD Offeror that is a non traditional defense contractor at this time and shall not, for 1-year prior, have been subject to full coverage CAS as a prior DoD Offeror or subcontractor to a DoD Offeror.
  15. Friend, you asked if there is an alternative to obtaining quotes for construction contracts under the SAT. I was unaware that “quotes” must be used for construction or other non-commercial acquisitions under the SAT. “13.003 (h) In addition to other considerations, contracting officers shall— (1) Promote competition to the maximum extent practicable (see 13.104); (2) Establish deadlines for the submission of responses to solicitations that afford suppliers a reasonable opportunity to respond (see 5.203); (3) Consider all quotations or offers that are timely received. For evaluation of quotations or offers received electronically, see 13.106-2(b)(3); and (4) Use innovative approaches, to the maximum extent practicable, in awarding contracts using simplified acquisition procedures.“ Also - you mentioned that the SF1442 was used for award. Apparently your office used the SF 1442 for the solicitation... it doesn’t mention “quotes”. It refers to offers or bids.
  16. I think that the earlier thread explains pretty well what todo and what not to do.
  17. Correct, I said that you have leverage... the contractor signed a contract but can’t perform for that price. We don’t know how much extra it would cost to make the contractor whole... but I wouldn’t rule that out if it is in the government’s best interest (e.g., small amount, well under what it would cost to hire another “quoter” and within the IGE or to reprocure. No to settlement costs! Your position should be that the contractor was negligent and didn’t ask questions when his sub was way below his other quotes and after the government supposedly asked him to verify that he could do the project for the amount of his quote. It’s due to the contractor’s negligence. Unless - you agree that the specs were truly patently ambiguous.
  18. The contractor stated over email that they would like to be relieved from the contract or allowed to resubmit a revised quote and provided more money. @ji20874 I agree and believe my contracting officer is on the same page with you about not wanting to forfeit the leverage and first consider our case for T4D in this situation. @joel hoffman I am eager to take lessons learned from this situation as most of my work now is small dollar construction. Is there an alternative to obtaining quotes for construction projects under the SAT? Also, I recently read the thread at FAR 13.106-2 - Discussions and am curious if this is what you mean by "simple process available to clarify or to bargain" with industry to come to a mutual understanding before entering into a small project. ... Thank you all for the references, lessons learned, and possible solutions; it has really helped my research. I do appreciate your time and thoughts. As suggested, the discussion will be continued further with legal and the Contracting Officer to develop the best solution for the government.
  19. I wouldn't make a no-T4D decision until after the contractor to accepted a rescinding of the contract or a no-cost settlement agreement (or simultaneously as part of the agreement of the parties). If I did make a no-T4D decision too soon, I would be forfeiting my leverage. If the contracting officer forswears T4D, and the contractor refuses to accept a rescinding of the contract or a no-cost settlement agreement, then what? T4C and pay the contractor settlement expenses? Or increase the contract price to make the contractor whole and happy? I don't like either one of those, based on the facts shared by the original poster.
  20. Too small a contract to fool with TFD plus there is no performance bond.
  21. As I understand things, the DFARS permits a government contracting officer to use commercial item procedures to acquire goods and services from a NTDC, without making a commercial item determination. If one looks at the public law authorizing the treatment (Section 857 of the FY 2016 NDAA) it is clearly aimed at DOD and not prime contractors. It does not seem to grant that authority to contractors. Further, I don't read the authority as granting an exemption from submitting (certified) cost or pricing data. Instead, I read it as authorizing use of Part 12 acquisition procedures. Looking at 12.209, FAR 15.4 may be used to determine price reasonableness when Part 12 procedures are used. If 15.4 is used, then there is an exemption for a commercial item -- but not for goods/services for which a CID has not been made (i.e., for goods/services sourced from a NTDC). Thus, I'm not on board with the subcontractor's line of reasoning.
  22. Do you have this in writing? You haven’t T4D’d yet? Anticipatory repudiation is a perfect reason for a T4D. You don’t even need a cure notice if the anticipatory repudiation was clearly communicated — if it was wishy-washy, you could do a cure notice based on what you thought might have been an anticipatory repudiation and let the contractor unequivocally confirm or deny. FAR 49.402-4(c) allows for a no-cost settlement agreement as a procedure in lieu of termination for default in some situations.
  23. I appreciate your reply, It is connected with the definition of NTDC, as far as I understand prime's position is that if you performed as subcontractor of a prime on a contract that for the prime is full CAS covered, you cannot claim the exemption because you do not fall anymore in the definition below. "Nontraditional defense contractor means an entity that is not currently performing and has not performed any contract or subcontract for DoD that is subject to full coverage under the cost accounting standards prescribed pursuant to 41 U.S.C. 1502 and the regulations implementing such section, for at least the 1-year period preceding the solicitation of sources by DoD for the procurement" Could you please help me understanding where is written that this esemption is not applicable to subcontractors? The flowdown seems to me to be mandatory. Thank you
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