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contractor100

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  1. hi Desperado, If I go to the mass mods page here: https://mcm.fas.gsa.gov/cmservlet/control?csnum=0 and type in any GSA K number, you can see the mass mods for that K and when/whether it was signed. You can also see what was in the mod. So any ordering agency can see what clauses were in a BPA/task order when the BPA/task order was issued, just like any member of the public. GSA, however, doesn't know what's in an ordering agency's BPA or task order - exactly as you say. But thank you for reminding me of a very very important point. I had forgotten that all GSA schedules allow either party to terminate the schedule contract at will. So, yeah, GSA can require contractors to agree to any mass mod. But not to make the terms retroactive to existing task orders, and I don't see where my GSA contract even suggests that. Jonmjohnson, thanks for the insight! From the contractor's perspective, I am going to try to see that any BPAs I sign in future are clear on this issue.
  2. I see the logistical issue, although the ordering agency can see all of the GSA clauses AND the mass mods AND whether the contractor has signed up to the mass mod. And the same issue applies to a task order or an IDIQ task order issued against GSA schedules. In further discussions with colleagues, some believe that existing task orders, as well as IDIQs, are automatically updated by the mass mods. In other words, when a contractor signs up to a GSA schedule, it is agreeing that all task orders will automatically be updated when it signs the mass mods (which are "MANDATORY" according to GSA, and that is a whole other question). I have never thought that was true, anymore than a contractor agrees to any FAR change (without consideration) when it signs a multiyear contract. But if there is some actual or implied agreement in the GSA contract in general to have the terms of an existing task order...I don't see it in the schedule clauses. Some clauses specifically require a GSA schedule holder to prospectively agree to unknown future changes on task order after a mass modification, I guess? The SCA clauses are an agreement to pay whatever's in a wage determination issued after award of the task order? That's not true for other clauses, though. Concrete example: Small business is awarded five year setaside TO today. 52.219-14 Nov 2011 is in its schedule contract. Nov 2016, FAR amended for the new legislation on computing SB's mandatory participation. May 2017, GSA mass mod incorporates the new rule. Which rule will apply to compute the SB's required participation? It doesn't seem reasonable to say the new rule applies, either for the period November 2014 to May 2017, OR to the entire period of performance. SB's initial bid, and all of its subcontracting, have been premised on complying with the old rule, not the new one.
  3. So you believe the BPA automatically is updated every time the schedule is updated? Without a modification? Unlike an IDIQ order?
  4. Evidence for the intention of the parties consists of only the language I've quoted, "The Contractor shall comply with all terms and conditions of the awarded GSA schedule." which Pythia herself could not beat for ambiguity. Nothing in the RFP or RFP questions. No post award guidance. I've never seen a GSA BPA that addressed this point in the text or the negotiation process. But there are a lot of BPAs out there, some with very large amounts of money passing through (AMCOM Express - $6B?). Guess I'll do a little more research.
  5. I am surprised no one has any answers to/speculations on this topic. Perhaps I described it too confusingly. Here is another example. Agency issued contractor a BPA in 2011. It says "The Contractor shall comply with all terms and conditions of the awarded GSA schedule," The GSA schedule against which the BPA was issued was modified in February 2014 to incorporate 52.204-15, which requires contractors to make a report of certain employment stats, by October 31 2014, covering "orders" over $2.5M issued in FY 2014. The contractor received a $3M call against the BPA 9/29/2014. Does the contractor have to make the 52.204-15 report on the call? Some here say no, because 52.204-15 is not included in the BPA. The BPA would have to have been modified to include 52.204-15. Other people here say yes, when the GSA schedule is refreshed, the BPA automatically is refreshed as well, because the BPA says the contractor has to comply with terms and conditions of the awarded GSA schedule. Opinions? Please?
  6. I don't know why GSA wouldn't always require this. It is true the authority is discretionary. Supposedly that was because SBA thought it would be unfair to ask a contractpr whose recertification came so late in a contract that there were no opportunities to subcontract to file a plan (presumably after having been acquired). See below. A contract having its GSA schedule contract option exercised has five years to meet its subcontracting plan, so this doesn't apply. It doesn't seem right that a company that becomes large in the base period of its GSA subcontract can have another 15 years' exemption from filing a plan. https://www.federalregister.gov/articles/2013/07/16/2013-16967/small-business-subcontracting "SBA received several comments on proposed § 125.3(d)(10) (now § 125.3(d)(9)), which allows a contracting officer to require a subcontracting plan if a prime contractor's size status changes from small to other than small as a result of a size recertification. Some commenters recommended requiring the contracting officer to require a subcontracting plan rather than making it discretionary. SBA disagrees. This is not required by statute. Further, it may be impractical to require a subcontracting plan at or near the end of performance, or after all subcontracting opportunities have passed. Thus, SBA maintains that it should be left to the discretion of the contracting officer."
  7. Thanks to all for the thought and attention to my questions. This is the best forum for exchanging information among practitioners in this or any other field that I know of.
  8. Are GSA BPAs self-updating for refresh changes, unlike GSA IDIQs? IDIQs. GSA schedule is awarded Jan 1, 2014, with clauses “Clauses A.” Jan 2, an IDIQ is issued against the schedule. "Clauses A" govern that IDIQ. Jan 3, task order one is issued against the IDIQ. Jan 4, GSA issues a refresh mod, with new clauses, "Clauses B." Jan 5, task order two is issued against the IDIQ. Task order one AND task order two are governed by Clauses A, right? All task orders will be, unless the IDIQ is modified to incorporate the refresh mod? Now suppose a BPA was issued, not an IDIQ. The BPA says: “The Contractor shall comply with all terms and conditions of the awarded GSA schedule contract under this BP A and orders issued against the BPA. The terms and conditions of the Contractor's GSA Schedule contracts shall prevail over the BPA and task orders, except to the extent that lower prices established in the resulting BPA take precedence over GSA Schedule higher prices.” So, for the BPA, would task order two automatically be governed by Clauses B? Because the BPA is not a contract that needs to be modified except to the extent that the BPA + call = contract, so the BPA can just update itself, unlike the IDIQ contract? A contractor trying to flow down the correct clauses to its subcontractor needs to know the answer to this. I would like to offer this question to the topic posted elsewhere “Are the rules for using GSA schedule MAS/FSS contracts too complicated” if the opinion of vendors is sought.
  9. Doesn't Bayh-Doyle cover patentability "any invention of the contractor that is conceived of or first actually reduced to practice in the performance of work under a funding agreement"? As opposed to the reporting of research results, or the copyright on reports?
  10. It certainly seems to me that, while you aren't legally required to include this in your subcontract, you can't comply with your own contract obligation unless you do
  11. If the government is reserving prior approval to publish anything produced under the contract, doesn't MTL have to impose that requirement on his or her subcontractor?
  12. Thanks all for the good advice, you are both right, there are indeed personalities involved, and a bit of "Three Monkeys" going on.
  13. Prime thought of both of your first options, but neither is ideal from the point of view of client relations. Thanks for the answer
  14. Subcontractor will sign a letter contract agreeing to provide the service to the government (not the prime) but will not agree even to commercial flowdowns, or any of the terms a prime would ordinarily enforce for its own protections, such as termination rights, changes clause. Subcontractor has a very strong bargaining position. Sub offers an essential service, which was called out in RFP (brand name or better). Sub was named in RFP, and prime did not negotiate any advance agreement with subcontractor to sign a subcontract. Subcontractor has provided the service to previous primes for nine years, and has, or so it states, never had to sign a subcontract. What are the compliance risks to the prime of allowing the subcontractor to provide the service without the flowdowns? Prime understands the business risks, but is wondering about audit risks, sanctions. The prime has recently grown out of its small business status, but is not a large company, and will not be worrying about a CPSR any time soon.
  15. Today, Book: Bleak House. Human lives ruined by the Chancery Court and an irrational, inefficient, inconsistent legal regime. Spontaneous human combustion. Much, much more. Song: Just My Imagination, Smokey Robinson Album: L'incoronazione di Poppea, almost any recording Movie: Manchurian Candidate, 1962 version. The garden club scene cannot be improved on. Poet: Emily Dickinson, "Tell the truth, but tell it slant."
  16. In fact, it is a counselor that is advising me that, "once you are on GSA schedule, you are small for any order issued against it until you have to recertify at option extension." Because GSA will not allow contractors to recertify except at option, merger/acquisition, or novation, contractors can't recertify for new SINs. That seems to conflict with the language from the new rule below. So, are contractors misrepresenting their size if they certify they are "small under their GSA Schedule contract," even if they never represented as small for the NAICS on the RFQ? 'A concern that represents itself as a small business and qualifies as small at the time of its initial offer (or other formal response to a solicitation), which includes price, is considered to be a small business throughout the life of that contract. This means that if a business concern is small at the time of initial offer for a Multiple Award Contract...then it will be considered small for each order issued against the contract with the same NAICS code and size standard, unless a contracting officer requests a new size certification in connection with a specific order.'
  17. This question concerns GSA schedules, but I believe the rules on this are the same for GSA schedules and other MACs. New rules are Fed. Reg. 78 191 Oct 2, 2013 Company was awarded a GSA schedule, in a SIN with multiple NAICS, call the NAICS "A," "B," "C." Company certified itself as small for one of the NAICS in that SIN, say, "A". Company has now grown out of that size for all NAICS in that SIN, but has not been required to recertify its status on the GSA schedule and won't have to for another four years. So Company is still listed in GSA's systems and in FPDS as small for this MAC. Under the new rules, if a task order is issued against the SIN and the CO lists "B" as the one and only NAICS, Question 1: if Company is awarded the work, can government take small business credit for the award? Question 2: if the government sets aside the work for small businesses, can Company represent itself as small? Next question Company added another SIN after award. Company was not asked to certify its size on that SIN, but Company was not small for the NAICS associated with that SIN when Company added the SIN. Same questions. The commenter of 11/06/2013 on the GSA Interact blog states that the government will automatically get credit for Company's bids on both the old and the new SIN, because agencies' procurement systems are not able to recognize companies as small for some subsets of a contract and large for another. He says procurement systems will automatically give the government credit for the award. https://interact.gsa.gov/wiki/naics-codes-business-size-and-schedule-orders However, in cases where the task order had been setaside, wouldn't Company be liable for the penalties for misrepresenting its size status if it certified itself as small, for the NAICS for which it had never certified? A lot of moderately innocent contractors are going to be violating this rule, it is not at all clear.
  18. This question concerns GSA schedules, but I believe the rules on this are the same for GSA schedules and other MACs. New rules are Fed. Reg. 78 191 Oct 2, 2013 Company was awarded a GSA schedule, in a SIN with multiple NAICS, call the NAICS "A," "B," "C." Company certified itself as small for one of the NAICS in that SIN, say, "A". Company has now grown out of that size for all NAICS in that SIN, but has not been required to recertify its status on the GSA schedule and won't have to for another four years. So Company is still listed in GSA's systems and in FPDS as small for this MAC. Under the new rules, if a task order is issued against the SIN and the CO lists "B" as the one and only NAICS, Question 1: if Company is awarded the work, can government take small business credit for the award? Question 2: if the government sets aside the work for small businesses, can Company represent itself as small? Next question Company added another SIN after award. Company was not asked to certify its size on that SIN, but Company was not small for the NAICS associated with that SIN when Company added the SIN. Same questions. The commenter of 11/06/2013 on the GSA Interact blog states that the government will automatically get credit for Company's bids on both the old and the new SIN, because agencies' procurement systems are not able to recognize companies as small for some subsets of a contract and large for another. He says procurement systems will automatically give the government credit for the award. https://interact.gsa.gov/wiki/naics-codes-business-size-and-schedule-orders However, in cases where the task order had been setaside, wouldn't Company be liable for the penalties for misrepresenting its size status if it certified itself as small, for the NAICS for which it had never certified? A lot of moderately innocent contractors are going to be violating this rule, it is not at all clear.
  19. Thanks all, super helpful Retreadfed, can you tell me where in 2007, or later, GSA announced the position that "that 52.212-4 Alt I is the appropriate clause to use when T&M orders are issued against schedule contracts."? Is it in writing someplace, I can't find it? Leaving it in the schedule 70 contracts for six years doesn't seem consistent with such a policy I notice a very large number of 70 schedule catalogs on Advantage are still stating that 52.232-7 applies, even though the list of clauses applicable to the schedule says it doesn't. For example: http://www.gsaelibrary.gsa.gov/ElibMain/contractorInfo.do?contractNumber=GS-35F-0371N&contractorName=ACCENTURE+FEDERAL+SERVICES+LLC&executeQuery=NO Also, look at this document (from GSA from July 2012): http://www.gsa.gov/graphics/fas/2012_July_Schedule_70_Industry_Meet_QandA.pdf Here's the relevant portion "We were getting caught up on some of our IT Mass mods and noticed that in Mod 30 GSA appears to be adding clause 52.232-7 to IT Schedule 70. Am I missing something? Isn’t this the non commercial T&M clause which was replaced by 52.212-4 Alt I in all GSA schedule contracts? Wouldn’t this be in conflict with 52.212-4 Alt I? Time and Materials and Labor-Hour contracts, both commercial and non-commercial are "best effort" contracts that may be used only when it is not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of certainty. Service related MAS Solicitations and Contracts, such as Schedule 70, are required to use clause 52.232-7, as applicable. Payment on Time and Materials and Labor-Hour orders is in accordance with FAR Clause 52.232-7 (Feb 2007). The center will further discuss the applicability of this clause with GSA legal and policy office so that we can provide clear guidance in the near future." Desperado, I have heard a lot of stories about misuse of open market items on GSA schedule in the olden days - people ordering one hour of financial analyst time and, incidentally, a new mainframe computer to help her do her work - but I agree with you, it doesn't seem consistent that a buyer can order ODCs on any other IDIQ and on GSA schedule they can't. I guess that is because ATA Defense Industries v. U.S., and Pyxis Corp., only apply to GSA schedules, not to other IDIQs?
  20. Thanks for answering, Desperado! Let me clarify I am talking about ODCs that are either listed in the schedule, not OMI's. I suppose OMI markup would depend on how they had been purchased. I see the current GSA schedule solicitations require the indirect costs to be negotiated upfront for ODCs that are listed in the schedule. So what does this presentation from KC GSA office mean, see slide 20 https://interact.gsa.gov/sites/default/files/kc_pbs-notes.pdf Does that refer to instances in which the contractor didn't add indirect costs, e.g. "markup" to its ODCs upfront, because GSA had not made this policy clear at that point?? thanks for help again
  21. Just what is the current rule on indirect costs on materials in GSA task orders? Quickly scanning through the current GSA solicitations and some of the mass mods, it seems the noncommercial payment clause, 52.232-7, has been removed from all of the schedules, in some cases fairly recently. (For example it seems it was just taken out of schedule 70 last year by a mass mod last year. ) So now 52.212-4 CONTRACT TERMS AND CONDITIONS –COMMERCIAL ITEMS (FEB 2012) (ALTERNATE I – AUG 2012) (DEVIATION I – FEB 2007), section (i) is the only clause applicable to time and materials order issued against GSA schedules? Can anyone confirm that is true? Some may remember that both 52.232-7 and 52.212-4 Alt I Dev I were both included in GSA schedule contracts for a while. Since 52.232-7 provides that contractors can apply their approved material handling costs to materials and 52.212-4 Alt I Dev I provides the CO must affirmatively list a lump sum indirect cost amount to be paid out pro rata, there was quite a bit of confusion on how to treat these costs. Wonder if anyone has any experience with ordering agencies' implementation of 52.212-4(1)(i)i(D)(2): (2) Indirect Costs (Material Handling, Subcontract Administration, etc.). The ordering activity will reimburse the Contractor for indirect costs on a pro-rata basis over the period of contract performance at the following fixed price: Each order must list separately the fixed amount for the indirect costs and payment schedule or, if no reimbursement for indirect costs, insert ‘None’. Is anyone finding that ordering agencies using the schedules are ignoring this provision and neither directing vendors there will be no provision for indirect cost or specifying the amount of indirect costs that will be paid?
  22. Thanks for the helpful responses, and sorry for typing "small business" not "small purchase," and the truncated citation. The entire reg is now pasted at the end of this message. The issue is that 226.44((2) requires grantees to make a notification when making a purchase "in excess of the small purchase threshold." ((2) does not define what dollar value that is. But later, 226.44(e)(2), which outlines an entirely different requirement - making certain documentation available to USAID for purchases over the "small purchase threshold" - refers to the "small purchase threshold fixed at 41 U.S.C. 403(11)." So can the requirement at ((2) kick in at the FAR SAT level ($150,000 etc,) because the "small purchase threshold" in the regulation was renamed "simplified acquisition threshold (SAT)" in FASA, while the requirement at (e)(2) clearly has to kick in at $100,000, because 41 USC 403(11) /41 USC 134 specifically says $100,000? (thanks dude77) It doesn't seem right for the words "small purchase threshold" in the same reg to mean two different numbers. Title 22: Foreign Relations CHAPTER II: AGENCY FOR INTERNATIONAL DEVELOPMENT PART 226: ADMINISTRATION OF ASSISTANCE AWARDS TO U.S. NON-GOVERNMENTAL ORGANIZATIONS Subpart C: Post-award Requirements : Procurement Standards 226.44 - Procurement procedures. (a) All recipients shall establish written procurement procedures. These procedures shall provide, at a minimum, that: (1) Recipients avoid purchasing unnecessary items, (2) Where appropriate, an analysis is made of lease and purchase alternatives to determine which would be the most economical and practical procurement for the Federal Government, and (3) Solicitations for goods and services provide for all of the following. (i) A clear and accurate description of the technical requirements for the material, product or service to be procured. In competitive procurements, such a description shall not contain features which unduly restrict competition. (ii) Requirements which the bidder/offeror must fulfill and all other factors to be used in evaluating bids or proposals. (iii) A description, whenever practicable, of technical requirements in terms of functions to be performed or performance required, including the range of acceptable characteristics or minimum acceptable standards. (iv) The specific features of ?brand name or equal? descriptions that bidders are required to meet when such items are included in the solicitation. (v) The acceptance, to the extent practicable and economically feasible, of products and services dimensioned in the metric system of measurement. (vi) Preference, to the extent practicable and economically feasible, for products and services that conserve natural resources and protect the environment and are energy efficient. ( Positive efforts shall be made by recipients to utilize small businesses, minority-owned firms, and women's business enterprises, whenever possible. Recipients of USAID awards shall take all of the following steps to further this goal. (1) Ensure that small businesses, minority-owned firms, and women's business enterprises are used to the fullest extent practicable. (2) Make information on forthcoming opportunities available and arrange time frames for purchases and contracts to encourage and facilitate participation by small businesses, minority-owned firms, and women's business enterprises. To permit USAID, in accordance with the small business provisions of the Foreign Assistance Act of 1961, as amended, to give United States small business firms an opportunity to participate in supplying commodities and services procured under the award, the recipient shall to the maximum extent possible provide the following information to the Office of Small Disadvantaged Business Utilization (OSDBU/MRC), USAID Washington, DC 20523, at least 45 days prior to placing any order or contract in excess of the small purchase threshold: (i) Brief general description and quantity of goods or services; (ii) Closing date for receiving quotations, proposals or bids; and (iii) Address where solicitations or specifications can be obtained. (3) Consider in the contract process whether firms competing for larger contracts intend to subcontract with small businesses, minority-owned firms, and women's business enterprises. (4) Encourage contracting with consortiums of small businesses, minority-owned firms and women's business enterprises when a contract is too large for one of these firms to handle individually. (5) Use the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Department of Commerce's Minority Business Development Agency in the solicitation and utilization of small businesses, minority-owned firms and women's business enterprises. © The type of procuring instruments used (e.g., fixed price contracts, cost reimbursable contracts, purchase orders, and incentive contracts) shall be determined by the recipient but shall be appropriate for the particular procurement and for promoting the best interest of the program or project involved. The ?cost-plus-a-percentage-of-cost? or ?percentage of construction cost? methods of contracting shall not be used. (d) Contracts shall be made only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of the proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources or accessibility to other necessary resources. In certain circumstances, contracts with certain parties are restricted by agencies' implementation of E.O.s 12549 and 12689, ?Debarment and Suspension.? (e) Recipients shall, on request, make available for USAID, pre-award review and procurement documents, such as request for proposals or invitations for bids, independent cost estimates, etc., when any of the following conditions apply. (1) A recipient's procurement procedures or operation fails to comply with the procurement standards in this part. (2) The procurement is expected to exceed the small purchase threshold fixed at 41 U.S.C. 403(11) and is to be awarded without competition or only one bid or offer is received in response to a solicitation. (3) The procurement, which is expected to exceed the small purchase threshold, specifies a ?brand name? product. (4) The proposed award over the small purchase threshold is to be awarded to other than the apparent low bidder under a sealed bid procurement. (5) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the amount of the small purchase threshold.
  23. USAID regs require grantees to notify USAID OSDBU 45 days before making purchases, so that USAID can satisfy a statutory obligation to increase US small businesses' access to these opportunities. The reference is below, with the difficult language in bold. What does "small business threshold" mean and how much is it? Later in this reg, at 22 CFR 226.44(e)(2), in another context, USAID refers to "the small business threshold fixed at 41 USC 403(11)." That would be the SAT, correct, "small business threshold" in 41 USC 403(11) was changed to "simplified acquisition threshold"? So the threshold is $100,000, until USAID changes to $150,000 in this reg? Or is it $100,000? Why do many people think it is $25,000? Any help much appreciated. 22 CFR 226.44 ( Positive efforts shall be made by recipients to utilize small businesses, minority-owned firms, and women's business enterprises, whenever possible. Recipients of USAID awards shall take all of the following steps to further this goal. (1) Ensure that small businesses, minority-owned firms, and women's business enterprises are used to the fullest extent practicable. (2) Make information on forthcoming opportunities available and arrange time frames for purchases and contracts to encourage and facilitate participation by small businesses, minority-owned firms, and women's business enterprises. To permit USAID, in accordance with the small business provisions of the Foreign Assistance Act of 1961, as amended, to give United States small business firms an opportunity to participate in supplying commodities and services procured under the award, the recipient shall to the maximum extent possible provide the following information to the Office of Small Disadvantaged Business Utilization (OSDBU/MRC), USAID Washington, DC 20523, at least 45 days prior to placing any order or contract in excess of the small purchase threshold: (i) Brief general description and quantity of goods or services; <a name="b_2_ii">(ii) Closing date for receiving quotations, proposals or bids; and (iii) Address where solicitations or specifications can be obtained.
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