joel hoffman

I hope that DoD delays it as long as possible. The new limitations on subcontracting legalize and encourage brokering and storefront prime contractor arrangements on set-aside (exclusive, class preference) contracts.

I apologize profusely if it seemed like I was saying earlier that, when XYZ are read together, Q could be considered within scope. Q would have to be within the scope of either XY or Z to be within scope of the “current contract”. If it wasn’t within the scope of XY, then it must be within the scope of Z I should have said that initially.

So, I don’t understand if animal spirits is now indicating that the additional work is not within the scope of “X and Y” or “Z”, separately, but only when read as a whole “XYZ”. If so, that doesn’t make any sense to me. XY is distinct from Z but being done concurrently or separately within one contract vehicle. Z has no relevance to the initial competition. You cant add Z to XY to rationalize that, when XYZ is looked at together, then Q will be considered within scope because it should have been anticipated by the competitors for XY. Z wasn’t part of the original competition.

CICA analysis does not depend upon commerciality. For non-commercial item service contract, if the Additional work is within the scope of the contract then the changes clause authorizes the government to add it. If this is a contract for commercial services, the government is not allowed to add out of scope work absent an exception to CICA, regardless of whether or not both parties agree to add the work. For commercial services contract, both parties have to agree to any changes in the terms and conditions. What is so difficult about this? EDIT: To clarify, animal spirits indicated that the additional work was not within the original XY scope of the contract but was within the current scope of the contract after adding Z as an out of scope supplemental agreement. What you currently have is two distinctly separate scopes of work together in one contract for administrative convenience. Thus, whether or not the original scope of work contemplated adding Q has nothing to do with it, from the information originally supplied.

CICA analysis does not depend upon commerciality. For non-commercial item service contract, if the additional work is within the scope of the current contract then the changes clause authorizes the government to add it. As ji said, you can proceed to bilaterally add it but you could issue a change order to add it. If this is a contract for commercial services or for non-commercial services, the government is not allowed to add out of scope work absent an exception to CICA, regardless of whether or not both parties agree to add the work. For commercial services contract, both parties have to agree to any changes in the terms and conditions - whether in-scope or out of scope. What is so difficult about this?

Who said that? I was referring to the original poster’s statements.Your scenario involves out of scope additional work. EDIT: perhaps you are referring to animalspirits seemingly using Z to rationalize that XYZ -but not XY or Z sepately - should have led the competition to anticipate Q at the XY only stage. Which of course, makes no sense. Right?

Before you ask, if Q is for ADDITIONAL supplies, it isn’t within the current scope... Napolik, the GAO decision that you cited for your argument that one must examine the original scope of the competition did not involve a situation where work outside the scope of the original contract has already been added by supplemental agreement, as an exception to CICA. “In this case, considering these factors, GAO found that the modification did not substantially change the scope of the original contract, competitors for the initial solicitation could have reasonably anticipated the changes to the contract, and the changes to the contract would not have had a substantial impact on the field of competition for the original contract award.”

One needs to look at the current contract to see if Q is within the scope of the current contract. The OP said to assume for the sake of argument that it is. Then, read the applicable changes clause. One must understand that the out of scope work was added to the instant contract for administrative convenience. After obtaining an exception to full and open competition, it could have been issued to the contractor in a separate contract or added to an existing contract. It makes economic sense to piggy back the new work onto an existing contract - use existing management, supervisory and admin resources, avoid re-mobilizing, startup activities, etc. After adding the work, the terms and conditions of the contract, as modified, apply to the added scope, too.

I failed to specifically address a commercial item/service contract. If the government was required to compete the original requirement, the government generally isn’t allowed to add “new work” outside the scope of a contract be it a commercial item/service or not , without an exception to CICA. In a commercial contract, if the government is allowed to add it, the contractor would have to agree and the terms of the mod would have to be mutually agreed upon. That is applicable whether it is in or out of scope. The parties to a commercial type contract aren’t free to simply “mutually agree” to add anything they like, because “I am a contracting officer and here is my warrant number" and because the contractor is willing to accept the work. The real question here is whether the added work is within or outside of the current contract scope.

If the change is within scope of the current contract requirements, it is authorized by the changes clause.

Quote from Engineer Pamphlet EP 715-1-4 “Competing for Architect-Engineer Contracts Awarded by the U.S. Army Corps of Engineers”

ji, I agree entirely with your last point. It’s not a “source selection”. It is a competitive, Quality Based Selection, acquisition process. I believe that the only relevance to the source selection evaluation process in Part 15 is the procurement integrity coverage in FAR 3.104. [EDIT: I noticed also that the EP 715-1-7 refers to the A-E selection as a "source selection" in the "report" and in the appendices for reports and procurement integrity. Its not a FAR Part 15 "source selection".] The price and cost/price evaluation process in Part 15 applies to most negotiated pricing actions. It isnt specific to "source selections" As for your first point, the EP specifically referred to “discussions” in its initial use of the term “interviews”. The tie is there. The fact is that “interviews” is the industry wide term for those discussions, when they refer to the Brooks Act, QBS selection method,. Most States have also adopted similar QBS selection procedures in some form. State laws are often referred to as “Mini-Brooks Acts.” As a registered professional engineer, the two states that I am registered with prohibit registered architects and professional engineers from competing for services using price competition. There is no confusion between the USACE and the design industry. The USACE is and has historically been one of the largest federal agency users of the Brooks Act A-E contracting process.

ji, I’m happy for you and that you aren’t confused. Neither is the industry when referring to interviews. 😃

Reading through the USACE procedures, I think that there is some latitude for additional personnel including another KO and the engineers. See specifically the discussion of that, but they would have to be formally added to the team and would have sign on to procurement integrity rules and procedures. It would make sense to me for the other KO to be allowed to attend for training purposes.

ji, industry is familiar and comfortable with the term “interview” used by USACE. Examples: https://www.acec.org/advocacy/qbs/brooks2/ http://www.afg.quebec/uploads/documentation/etudes/2006_APWA_RedBook_QBS.pdf https://aiagr.org/sites/default/files/QBS Info.pdf http://qbs-mi.org/files/QBS_Workbook.pdf The EP uses the term “interviews” in conjunction with “discussions”. The Brooks Act doesn’t define the procedures for “discussions”. The architect and engineering industry commonly uses the term “interviews” in describing the Quality Based Selection (QBS) procedures for A-E and consulting engineer selections, based upon or derived from the Brooks A-E Act. I prefer “interviews” as commonly understood over the term “discussions”, which is commonly associated with best value (quality and price) competitions, e.g., Part 15 source selections. The Brooks Architect -Engineer Act precedes the Federal Acquisition Regulations by over a decade and the two types of “discussions” are not the same.

Ah, the authority for the Mod on SF30 would then be the Government property clause...just sayin’....

https://www.publications.usace.army.mil/portals/76/publications/engineerpamphlets/ep_715-1-7.pdf

Hallowed, I suggest contacting the procurement technical assistance center and ask them. The PCA is inapplicable to commercial item purchases. So you can ask if there another reason that you would have to identify as either a dealer or manufactuter.

Are they government spec’d assemblies , govt provided designs, your designs or what? Or are they Commercially sold items ?

Not claiming to be an expert here. One requirement of the Walsh-Healy Public Contracts Act is that the supplier certify that they are either the manufacturer or a regular dealer. The PCA does not apply to certain contracts, including... Items bought on the open market (commercial items). “Supplies manufactured outside the U.S. (including Puerto Rico) or the Virgin Islands...” So, are you acting as a broker for the foreign manufacturer? Are you the seller to the government or is the manufacturer? You said that the manufacturer produces the items for you. The definition of broker can include a seller or one who acts as an agent for the manufacturer from what I’m reading in Google searches. But that doesn’t qualify it as a supply contractor to the government. This isn’t a set-aside, so the non-manufacturer rule or exceptions aren’t applicable - I think. At any rate, the manufacturer would have to be a small business in the US under those rules. None of those rules override any other restrictions, like BAA, etc. However, I freely admit that I am confused.🤪

Oops! On the road for now but I missed or overlooked that this is a CPFF services contract. Will read some more in 32.7 and 232.7 and edit or add more info.

I didn’t know if it involved real property installed equipment or something else. Thanks for the clarification.

Curious - How does one “install” supplies? Servicing equipment perhaps? If so, wouldn’t the servicing of equipment or like be the primary purpose of the contract, even though the major cost is thesupplies?

I just noticed this March 15 post. Here to help can chime in if he wants to but I will try to tackle it. You said that the contract is firm fixed price. Therefore it must have a separate Other Direct Cost CLIN, correct? Or is it a reimbursable travel CLIN? What does the contract say regarding allowable payments for the applicable CLIN? What is your standard accounting practice for allocating general and administrative expenses? Are such other direct costs included in the cost base? If there is a reimbursable “travel CLIN“, the cost principle in 31.205-46 only addresses the direct costs for travel. Any indirect cost markups on those costs would seem to me to be allowable only if the applicable contract line item allows other than the direct travel costs.

So, I assume that you have read FAR 32.7 as well as DFARS 232.7, which discusses contract funding requirements (“funding the contract”), including incrementally funded fixed price contracts, contracts crossing fiscal years, etc. If all funding for the current fiscal year requirements is available, see 232.702, Policy: ”Fixed-price contracts [shall] be fully funded except as permitted by 232.703-1.” See also: 232.703-1 General, especially 232.703-1 (2): ”(2) An incrementally funded fixed-price contract [shall] be fully funded as soon as funds are available”. If all funds for the current FY efforts are not available, comply with the requirements for incrementally funded contracts in 32.7 and 232.7. You must also consider necessary funding to cover termination costs if additional funding idoesnt become available. I didn’t look at Navy supplements or regs. Of course, the FAR and DFARS also discuss how to address the portion of the work to be funded and performed during the next FY. Cost remibursement contracts are also covered. If this doesn’t lead you to answer, I have no idea what you are asking. It seems clear enough to me to be able to deduce what is necessary for funding (“putting funds on”) a DoD contract.