diverdave

I hope this request does not present any copyright or reproduction issues but I am looking for a copy of Nash and Cibinic's article "Multiple-Year Task and Delivery Order Contracts: Can Annual Funds be Used? 10 N&CR ¶ 31. If anyone has it could you post the text or a link, or PM it to me?

These are Science and Technology funds. I have looked at part 35 but I am not sure how that impacts the contract type. Depending on the nature of the work you can use a FFP or CR type contract for R&D work.

Thanks for the replies, I was under the impression that T&M contracts were considered cost reimbursement because of 16.101( B ) "The contract types are grouped into two broad categories: fixed-price contracts (see Subpart 16.2) and cost-reimbursement contracts (see Subpart 16.3)" and by 16.600 "Time and materials contracts and labor hours contracts are not fixed-price contracts." I have never seen anything in writing stating that T&M contracts were their own contract type. I had not considered 12.207( B ). It looks like I could structure it as an IDIQ contract with fixed prices for commercial services at the contract level. Then issue T&M/LH task orders with a not to exceed amount in each period. I would be required to execute a one-time D&F at the contract level (12.207( c )(3).

I'm putting together an RFP that will procure commercial services such as lab assistance, scientific data analysis, and other general laboratory work. The contract will be IDIQ and we will issue task orders as the ordering instrument. We will be able to establish the fixed hourly rate for the individuals but we will not know exactly how many hours these individuals will be needed in any given year, other than to say they cannot exceed 1,928. We intend to issue one task order per individual and each task order will have option periods for a maximum POP of 5 years. Essentially the task orders will be NTE T&M/labor hour in nature. However, these are commercial services and the use of cost reimbursement contracts are prohibited for commercial items. I see 16.207 FFP LOE Term Contracts, but the contract price is limited to $150,000 unless approved by the chief of the contracting office and these task orders will be over $150,000. I guess I could obtain approval from the CCO for each TO but I'm not sure how practical that is going to be. I don't have a lot of experience with fixed price contracts other than firm-fixed price and I was hoping to get suggestions how I might structure these task orders. Is there a FP contract type where you can establish a FP ceiling amount and work on a per hour basis up to that ceiling? I thought perhaps of establishing a base quantity of hours and then including optional incremental quantities of hours. However, administratively it would be much easier to establish the ceiling and pay on a per hour basis up to or below the ceiling. Obviously I don't want to do anything improper. Any suggestions would be appreciated.

The solicitation contains 52.215-1 instructing offerors to submit offer in U.S.D., other currency will not be used. When I said price adjustments in my first post I meant price evaluation adjustments.

I posted a solicitation for commercial services, full and open competition. A question was asked as to whether a responsible foreign company, with the work being performed overseas, would be considered for award. I've searched FAR parts 6, 9, 15, 25 and see no mention of precluding a responsible foreign offerer from award. Part 9.1 Responsible Prospective Contractors states: 9.102 Applicability. (a) This subpart applies to all proposed contracts with any prospective contractor that is located— (1) In the United States or its outlying areas; or (2) Elsewhere, unless application of the subpart would be inconsistent with the laws or customs where the contractor is located. Is it permissible to consider a foreign offer in this scenario? Are any price adjustments applicable?

Thanks for the input, I think I have the answer to my question, particularly from Don's "IDQ Minimum Guarantee" thread above. The remaining Qs I have will have to be answered by our attorneys, I think they are a little too specific for this forum or maybe I just can't phrase them clearly enough. HCuffage, The IDIQ contract has a 5 year ordering period, there are no option periods.

So I take it that obligating the funds at the contract level is not sufficient to satisfy the Requirement of Specificity (i.e. the requirment must be for specific goods or services). Meaning that even though the funds were obligated to a contract that contains a SOW for services, the Task Order provides the ordering mechanism for the specific services and therefore one must use current year funds for that task order? Assuming what I stated above is correct, the next question from the program office is going to be "can I swap out the 12/13 funds currently on the contract for 13/14 funds?" I believe the answer would be no, because the year that the legal liability occured is FY12 and 13/14 funds would not seem to be appropriate. Is the bottom line that the program either needs to issue a task order using the 12/13 funds by EOFY13 or they lose them? What I am having difficulty understanding is if the Government obligates 12/13 funds to satisfy the minimum and never issues a task order allowing the contractor to invoice against those funds, how is that satisfying the minimum? Lets say we never issue a task order, would we then just have to allow the contractor to issue an invoice against those 12/13 funds before they are cancelled?

I awarded an ID/IQ contract in FY12 and funded the minimum at the contract level with FY12/13 multiple year funds, no initial Task Order was issued. The program is now dealing with severe budget cuts and the first task order might not be issued until FY14. The services are fixed price, non-severable R&D. My question involves the timing for using the minimum funds obligated to the contract for task orders. Those 12/13 funds were obligated to the contract to satisfy the legal liability at time of award, but no task order was issued. If I issue a task order in FY14, can I still use those 12/13 funds to fund that task order? My thought is that the funds have been obligated and when I issue the task order, finance will then allocate the funds to the order therefore no deob/reob will occur. Its simply a matter of finance moving the funds to an order under which the contract can invoice. Or, is it that the funds will expire at the end of FY13 and will become unavailable for use on a task order at that time? I found this informative older thread but it doesn't exactly address my question, it mostly speaks to funding the minimum at time of award: http://www.wifcon.com/arc/a107.htm Thanks

At what point does one determine size standard for an offeror for a Small Business Set Aside award? FAR 19.805-2( states “The SBA will determine the eligibility of the firm for award of the contract. Eligibility will be determined by the SBA as of the time of submission of the initial offers which include price.” However, this section is for Competitive 8a awards and mine is a SB set-aside with no other socioeconomic consideration. It appears that the apparently successful offeror for my procurement has been acquired by a large business after submission of the proposal. The apparently successful offeror did self certify as a SB at the time of submitting its initial offer. I was able to find this Federal Register posting from SBA stating the following (see in red below), but have not been able to find the final ruling: http://www.gpo.gov/fdsys/pkg/FR-2012-05-16/html/2012-11317.htm Next, the SBA proposes to amend Sec. 121.404, which addresses when the size status of a small business concern is determined. In order to provide certainty in the procurement process, SBA's regulations require that size generally be determined at one specific point in time--size is determined as of the date a business concern self-certifies its size status as part of its initial offer including price. When a business represents that it is small, it is then considered small for the life of that specific contract, and the concern is not required to again certify that it qualifies as small for that contract unless the contract is a long term contract (i.e., the contract exceeds five years) or there is a merger, acquisition, or novation. If the contract is greater than five years, then the contractor must recertify its small business size status no more than 120 days prior to the end of the fifth year of the contract or prior to exercising any option thereafter. Similarly, a contractor must also recertify its size status whenever there has been a contract novation, or merger or acquisition and no novation has been required.

So SAM went live on 7/30/12 with a resounding thud. As with any new system there have been problems with the transition and one would certainly have to question the timing. Our contract writing system, Prism (another winner), pulls DUNS numbers and other contractor information directly from CCR/SAM so ever since the rollout of SAM we have not been able to make award to any new contractors who were not previously registered in CCR. The SAM helpdesk number is busy and there is no good information on FSD.gov other than to say the system is experiencing issues. Are other agencies experiencing the same issues with awarding contracts to new vendors? Does anyone have any idea what is going on? Our pending awards are starting to stack up and the EOFY aproacheth.

Thank you, I suspected that was the case but I was hoping there was something I hadn't thought of. I plan to explain the additional burden involved and that time spent processing these "swaps" is time taken away from processing new actions.

Yes

A FFP Purchase Order for Severable Services was issued in early FY 12 using 11/12 funds (our agency has two year appropriations). Invoices are paid every two weeks so much of the initial funding has been paid out. Several months have passed and now the program is asking contracts to switch out the remaining 11/12 funds and replace it with 12/13 funds. I suspect the program is playing some sort of shell game with their funding and I've been getting an increasing amount of these "fund swaps". These swaps are administratively burdensome for the contracts staff to process and I want them to stop. Does anyone know if this may be a violation of Appropriations Law and if so, which rule (i.e. Purpose, Time, Amount)? One other thing to note is that while the year of the appropriations may be the same (FY12), the other accounting information may not be the same (Budget Org Code, Object class, etc)

The company in Germany is a small business. Even if you count all of the employees in both companies, they still are a small business under the NAICS (500 employee size standard). I'm obviously not asking for a formal ruling out of this forum, I'm trying to tap into knowledge and experience, if/when the appropriate time comes I will contact SBA.

My question is whether the sort of arrangement I described in my original post is permissible or not. I thought the issue with this sort of arrangement would hinge on small business eligibility and/or subcontracting limitations or possibly something in part 25, however I have not been able to find preclusions in those sections. I wondered if there were any other FAR parts I hadn't considered or any case law that may be relevant. One clarification is that the US subsidiary would not perform 50% of the cost of contract performance for personnel, the bulk of the work would be done in Germany. Since the US company is a wholly owned subsidiary of the European company is the 50% requirement still applicable?

We issued a sources sought notice and received adequate responses and have determined to conduct a procurement as a total SB set-aside. The procurement involves a signifcant amount of highly technical laboratory work. I received a question from a contractor asking if it is permissible for them to submit a proposal out of their USA office, with the majority of the lab work being performed out of their Hamburg, Germany lab facility. The USA company is a wholly owned subsidiary of the European company, and combined, the two companies do not exceed the NAICS code size standard for SB. I see nothing in Part 19 or 25 addressing this situation. Anyone know whether this sort of arrangement is permissible or not, or where I might look to find futher information?

Vern, I have not been given a compelling argument against not having options, just a mention of concerns about a multi-year contracts and appropriations violations. I do understand the confusion about multi-year/multiple year contracts, it is a difficult subject. I think the GAO case that C Culham posted is about as clear and understandable an explanation as I've seen (thanks for that). I think it is clear that this is a multiple year contract. I suspect the resistance is coming more from never having done it this way before, rather than from a regulations-based standpoint. Thanks for the input.

Vern, The contract would include clause INDEFINITE QUANTITY (FAR 52.216-22) (OCT 1995), with paragraph (d) specifying the number of days beyond the contract expiration date that deliverables could be received. I thought that one could enter up to 365 days in that clause, essentially turning the contract into a 6 year contract. However, extending past 5 years is not the basis for my question and that is not the issue here. There is some disagreement in my office as to whether the Ordering Period of the base contract structure that I explained could be for a period of more than one year and up to 5 years and not have option periods. Some people in my office seem to think that you must have option periods in an IDIQ contract that is longer than 1 year and that you cannot have a base ordering period of 5 years with no options. The rates or fixed price of each contract year would obviously increase each year by some escalation factor.

The requirement is for a civilian agency for laboratory analysis services whereby the contractor will be provided chemical samples and will perform various analysis on those chemicals and provide a variety of reports. The anticipated contract type is FFP IDIQ with a min/max dollar amount. Task orders will be issued as an ordering mechanism, and the work ordered on those TOs is anticipated to last more than one year. Not all of the TOs will have the same POP. Some might last 2 years and some might last 4 years, it depends on the amount of samples and nature of the reports. It will be a completion contract. After discussions with the program office, I believe the best contract structure is an IDIQ contract with an ordering period of 5 years (no option periods). The TOs will have option periods and POPs based on the nature the SOW of the TO. This is not a Requirements contract and I am not buying known quantities so I believe the proposed contract would be a Multiple Year and not Multi-Year contract (FAR 17.104(a)). In terms of ordering period, FAR 16.501-1 and 16.504 both say ?during the period of the contract? or ?during a specific period of time? but remain silent on the limitations on the duration of the period. The contract will not be longer than 5 years so the various limits on exceeding 5 years is not at issue here. My question is, can you have a multiple year FFP IDIQ Task Order contract with an ordering period of 5 years (no option periods) and issue Task Orders against that contract which contain option periods in a civilian agency? I see nothing in the FAR, U.S.C., or Agency regulations precluding this contract structure, but I also see nothing specifically speaking to the allowable duration of this structure. Interestingly, DFAR 217.204 (e)(i)(A) seems to be clear in stating ?(A) May be for any period up to 5 years?.