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joel hoffman

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  1. Wow, talk about rabbit holes! A light bulb woke me up this morning. I don’t think any of the above discussion concerning price evaluation requirements at award is applicable to award of an A/E contract. This wasn’t a competitive best value source selection. It was a qualifications based selection using the Brooks Act procedures without price competition. This is basically a short term extension of A/E services at the negotiated rates. I don’t think that this is an “unpriced” option. The Service Contract Act probably isn’t even applicable, except perhaps for some non-professional support labor? There should have been no price discussions with three firms prior to selection, which provides an answer to the initial question. I think we may be over complicating the situation, although I don’t understand what the government intends to do during the extension. Are you going to issue additional task orders for new work? If so, there might be a need for discussions here concerning expanding the scope, if this possibility wasn’t known to all firms that responded to the announcement.
  2. Those seem like reasonable approaches to propose, IF the government would go along with it. As one can see though, those or any other approach would make the initial price evaluation extremely complex if the government wants and/or needs the flexibility to exercise the -8 clause at any point other than at the end of the last available option. That assumes that the price evaluation for an extension of an option is comparative rather than simply a determination of fair and reasonableness. At any rate, if the KO has to evaluate all the option period pricing before selecting and awarding the contract and must further go through all the hoops at 17.207(c) before exercising each option, it would seem to me that the ASBCA’s decision is superfluous and needless.
  3. I remember that decision. I assumed that they meant that the price for extending an option had to be added to the price of the option to be extended during the price evaluation during the source selection. That was definitely different than many, if not all, agencies had been doing. I’m not sure that an agency can elect not to exercise a following option but instead extend the current period using the -8 clause, if necessary. But if they could, only if they had evaluated prices as part of the initial competition, it would seem overly complicated with all the different possibilities.
  4. Is access to this https site restricted? “Sorry, something went wrong An unexpected error has occurred. TECHNICAL DETAILS GO BACK TO SITE “ If so, is there another way to view the DAU Clause Matrix? Edit: I was able to go to the site today, although haven’t been able to view the matrix. I don’t have a .gov or .mil email address any more.
  5. This would be an out of scope supplemental agreement, presumably beneficial to both the contractor and to GSA, wouldn’t it? If so, what and who would provide “consideration”? Sorry for the interjection into your discussion.
  6. Yes, sorry about that. But I agree with Neil’s suggestion to contact the SBA directly.
  7. C100, Isn’t it possible to ask these questions of GSA? You’re asking questions regarding the GSA regulations and policies…
  8. Actually, if it were Contracting 101, it should describe the government’s freedom from liability. It should also caution or direct the contractor not to begin performance on a voluntary basis pending the government obligating necessary funding.
  9. Thanks. Makes perfect 101 sense. I started second guessing myself after reading the clause, which is completely silent regarding contractor actions and focuses on government liability for payment, e.g., “No legal liability on the part of the Government for any payment may arise until funds are made available to the Contracting Officer for this contract and until the Contractor receives notice of such availability, to be confirmed in writing by the Contracting Officer.” It could be interpreted by a contractor that it wont be paid until funds are obligated but is free to begin performance, pending funds being received and obligated. Something to the effect of “Proceed at your own risk until funds become available”.
  10. I suppose I should know the answer to this. Is the contractor obligated to perform at the beginning of the option period prior to funding being obligated? The -18 clause only addresses the liability of the government and that no payments can be made; it doesn’t address or excuse any obligation of the contractor to perform any work prior to funding.
  11. Don’t know the specific circumstances of the contract in question. However, it would seem that the -18 clause should have been included in the solicitation and contract or in the contract at award to fit the applicable circumstances, regardless of who would win the competition for the contract.
  12. So, if the contractor would agree, would it follow that the parties could bilaterally add the clause at 52.232-18 to the contract? It would appear here that it would be mutually beneficial. The option currently must be exercised or the notice must be issued prior to the availability of the next year’s funding.
  13. The contractor will have a contract price to the government for the service(s) or product(s). It will either self-perform all or part of the services or provide all or some of the product(s). If it is going to subcontract some or all of an order, then it would seek quotes, bids or proposals (unless it has already has subcontracts or subcontractors in place to perform work or provide product(s). Either way, the contract price should reflect the subcontract price or self-performed cost plus prime contractor costs for contract administration, overheads, profit, etc. The government pays the contract price to the prime, the prime pays the subs and suppliers. All that should be normal business practice.
  14. What do you mean by a “reduced rate”? , Do you mean paying the subcontractor less than a contract unit price? Please clarify. Thanks.
  15. Another way to look at it is to ask what if an SCA wage adjustment resulted in a net decrease in direct costs? The contract’s indirect OH and G&A amounts or (likely) actual indirect costs would not be reduced. For mods under other clauses that provide for equitable adjustments, a net decrease in direct costs would generally include a credit for allocated, indirect costs - which reduce absorption of those indirect costs, regardless of whether or not they were reduced by the mod. So, in my opinion, you need not worry how the contractor/vendor accounts for fixed OH costs not being absorbed due to reduced (or increased) income.
  16. The G&A and OH costs to the contractor that it needs to recover should not be affected by the wage increase. It will receive the same amount. How it accounts for the income isnt relevant to the modification. The contract should be able to (“absorb”? I forget the accounting term) the SAME share of overall amount of overall OH and G&A Expenses/costs that were allocated to the contract as it would have.
  17. You asked: “Is this the proper method to apply to manage the price adjustments under SCA?” How much clearer could “must not otherwise include” and “any amount” be? So, “some Contracting Officers” in your agency are improperly modifying contracts by otherwise including any amounts for OH and G&A , without legal authorization, in violation of the contract terms. They aren’t authorized to modify those terms. They should stop the practice. And I agree with Don that it can still be CPPC (illegal-specifically prohibited by law) without including profit.
  18. With respect to my comments concerning some basics of acquisition planning and “acquisition teams”, the FAR states at 7.102 that “[a]gencies shall perform acquisition planning and conduct market research (see part 10) for all acquisitions”. My USACE Organizations routinely performed acquisition planning with key stakeholders and personnel assigned to a proposed contract or project. The KO would seek input, expertise and advice where ever necessary - particularly when the KO “needs help” considering various courses of action or possibilities.
  19. Here is WC79’s question. “ I need help on the interpretation of the statement "in the interest of economy and efficiency" . Does anyone know how this portion is being defined? “ One can readily look up the definitions of economy and efficiency as well as logical follow-on contracts. A better question might be “is there a standard or bar level for determining and justifying a sole source or limited sources follow-on acquisition? “ The examples cited in the responses provide some context to that based upon specific circumstances. Here is a Holland Knight Blog article discussing this GSA sole source authority at 8.405-6 and the Harmonia Holdings Group LLC GAO decision that Vern cited. https://www.hklaw.com/en/insights/publications/2019/11/court-rules-sole-source-fss-task-order-extension-permissible If one needs other contexts or examples of how the exception was applied, they can research other Protest decisions. I’m guessing here that if WC79 “needs help”, then he or she has a scenario that needs to be examined. Back to the Basics: Acquisition teams** contemplating applying this exception should have access to a legal office or representative who should be able to perform the legal research. It seems to me that this is appropriate area for legal research and legal advice during the acquisition planning phase (FAR 7.102) on whether your specific circumstances might fit the exception and be defensible, if challenged. But you can start with definitions of the terms you are asking about. ** See: FAR 1.102 Statement of guiding principles for the Federal Acquisition System. … 1.102-3 Acquisition Team. 1.102-4 Role of the Acquisition Team.
  20. From the WIFCON Forum terms of use: ”17. Original posters must not disappear after they post a question. Disappearing makes it impossible to provide clarifications of the original post so that others may respond intelligently. It is normal for the original poster to be asked for clarification.” acq20wl, I know that you are new but would you please clarify your original post ? Thanks.
  21. And you can state that you can make an award to a pool member for one or a combination of more than one or for all the CLINs.
  22. Why CANT you do it? You can use a combination of go/No and comparative evaluation criteria in a trade off competition. So, when making selections to award separate services or separate products for a (multiple award) MATOC pool or pools, why can’t you use separate eval criteria and bases of award for LPTA and for Trade-off to form your pool or pools (however you desire to organize the pool or pools)? Do you want sample evaluation criteria from such an approach? I don’t know why you can’t develop evaluation criteria and bases of award for LPTA and for trade off for the separate services or separate products, yourself.
  23. If a task order is still open for fulfillment, the basic contract is not “expired”. Only the ordering period has “expired”. All terms and conditions of the basic contract that apply to the task order should still be effective.
  24. The first question is this: What provision in the FFP ID/IQ provides for a price adjustment due to a “fee increase” (and what is the “fee”)? Can you quote the contract language? Thanks.
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