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C Culham

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About C Culham

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  1. Your use of "change" with "modification" is confusing and misinterprets my question. Think about it! No where did I provide that a unilateral modification was prohibited by an untailored 52.212-4 paragraph (c). Other clauses (as noted by Jamaal) allow unilateral rights to change a contract within its scope. Your initial statement and subsequent confusion of stating "modification" are too general in my view. We are talking about a "change" of which pursuant to the FAR there are three (43.103). The one that is paramount to this discussion thread is one category of a unilateral modification a "administrative change" stated as one that does not go to substance of the contract. Administrative changes may well be okay but the OP has presented examples that in my view go to substance. Deobligations of excess funds due to unutilized work presents many questions in my view most specific "unutilized" in who's view not to mention what type of contract and the funds unutilized as related to? As to "forward-priced "change orders" for the commercial item already procured under the contract" there is no such authority for a change order under 52.212-4 (c) if not tailored. You just can't get there unless you tailor the whole of t paragraph (c) to allow change orders in the first place. In both these cases I would offer that each is essential to the sufficiency and validity of the contract. If the OP said something like a contract action to correct a fund code or the paying office I might be on board but if I were a contractor and you started taking money out of the contract or did a forward priced change order without my input you are messing with the substance of my contract. In the end it is my belief that absent a process as noted by napolik the OP's intentions are mis-placed and could cause unintended complications. Do it the easy way, send the dang modification to the contractor and ask them to sign it. If they do then done deal if they do not and state a reason for not signing then you are on the track to find out why the contractor thinks its of "substance". Remember just because government thinks it is not substantive, does not mean the contractor agrees.
  2. ji - Can you explain your statement in light 43.101 which states "“Administrative change” means a unilateral (see 43.103(b)) contract change, in writing, that does not affect the substantive rights of the parties (e.g.,a change in the paying office or the appropriation data)." as your statement seems inconsistent with this definition?
  3. C Culham

    Wage Rate Requirements (Construction)

    I do not think you incorporate any updated determination. While the IDIQ is un-priced yet the IDIQ contained the appropriate general wage determination, and if that general determination was included based on all other stipulations for inclusion (appropriate geographical area etc.) and the IDIQ does not have options I find no FAR or USDOL reference that provides a "trigger" to incorporate a new determination. Rather "22.404-1 Types of wage determinations. (a) General wage determinations." provides in part at "(1)...Once incorporated in a contract, a general wage determination normally remains effective for the life of the contract, unless the contracting officer exercises an option to extend the term of the contract (see 22.404-12)." FAR 22.404-6 by my read only applies if the 10 day receipt stipulations apply or if the contract award is delayed beyond 90 days. To an extent, and beyond my FAR 22.404-1 reference it would seem that prescriptions of the FAR for inclusion of the Davis-Bacon (sorry I am old school) Wage Determination price adjustment clauses, 52.222-30 thru 32, and the clauses themselves speak to "options" and clause 52.222-6 is absent any wording about price adjustments support my conclusion. Noting that a contractor has the ultimate responsibility to comply and USDOL has the ultimate responsibility to enforce, to ensure whatever conclusion you may come to on your interesting question is a fair and appropriate one I would suggest that you pose your question to the USDOL.
  4. Many responses lacking specific references concerns me in this Beginner forum discussion. Notably, FAR subpart 32.11 specifically provides that use of the GCPC is a EFT means. Further the same subpart does provide some guiding principles to use of a GCPC as a third party payment method, notably see FAR 52.232-36. Take a step further and consider DFARS subpart 232.11. (Again) I highly recommend that the OP seek guidance and opinion from his/her agency FAR supplements and policy and possible SME's within his/her agency and not depend on responses found in this discussion trail.
  5. My bad, I apologize. I did not grasp adequately that you are talking a commercial item. Your certification as to small business, if not in your annual certification would be provided via FAR provision 52.212-3 as it relates to the indication of size standard on the face form or otherwise referenced in the solicitation. In the end it as how Pepe has stated.
  6. Many agencies have policies related to use of GPC for such an effort. Usually the guidance is contained in a guide regarding use of the GPC along with use as alternative payment method. Have you researched internal agency documents first to find an answer to your question? As an aside there are many more considerations besides the one you note with regard to using the GPC as the ordering/payment method when stipulated in a contract/purchase order.
  7. Importantly you should be looking for FAR provision 52.219-1 in the solicitation package as well, not solely depend on what is stated on the cover form SF-1449. It will confirm and otherwise state the size standard to which you would be representing your status as a small business or not and this provision confirms the advice that Pepe has provided. Also see FAR subpart 19.702 for more information regarding subcontracting plans. 19.702....."(b) Subcontracting plans (see paragraphs (a)(1) and (2) of this section) are not required- (1) From small business concerns...." "
  8. C Culham

    Overriding the evaluators

    Paint me old school but I think there are a whole bunch of reasons it shouldn't be changed. I will start with this principle which isn't just a pipe dream but a principle that has a sturdy base in my view - FAR 1.102 Statement of guiding principles for the Federal Acquisition System. (a) The vision for the Federal Acquisition System is to deliver on a timely basis the best value product or service to the customer, while maintaining the public’s trust and fulfilling public policy objectives. Participants in the acquisition process should work together as a team and should be empowered to make decisions within their area of responsibility...... In reflecting my old school ways here is another thought that I will simply let the FAR state - FAR 1.602-2 Responsibilities...(b) Ensure that contractors receive impartial, fair, and equitable treatment;...... Allied with the fact that in a quick search of the FAR I can not find "win" stated anywhere. No doubt this thread will get wrapped around the axle further but in the end while the source selection authority has by regulation the authority "override" the evaluators all the reasons leading up to why a SSA might has many, many factors and taking a broad brush view that it is not good regulatory allowance to allow the "override" gets lost in the details in my view.
  9. C Culham

    Overriding the evaluators

    FAR 15.303
  10. C Culham

    Why all the "Award without discussions" talk?

    Or why they won. I always appreciated the rare contractor that won that asked for a debriefing!
  11. C Culham

    Why all the "Award without discussions" talk?

    Considering that this is a beginners forum my question is rhetorical in that continued discussion will take this thread down the rabbit hole even further but your statement suggests to me that you would do away with the FAR imperative regarding sealed bidding and possibly even the FAR permissive use of LTPA? I pose the question in light of the appearance, or even the fact, that even today a procurement cloaked in a FAR part 15 process is awarded on the basis of price. The system is not broke the system is not utilized under the intentions it was created. 6.401 -- Sealed Bidding and Competitive Proposals. Sealed bidding and competitive proposals, as described in Parts 14 and 15, are both acceptable procedures for use under Subparts 6.1, 6.2; and, when appropriate, under Subpart 6.3. (a) Sealed bids. (See Part 14 for procedures.) Contracting officers shall solicit sealed bids if -- (1) Time permits the solicitation, submission, and evaluation of sealed bids; (2) The award will be made on the basis of price and other price-related factors; (3) It is not necessary to conduct discussions with the responding offerors about their bids; and (4) There is a reasonable expectation of receiving more than one sealed bid. (b) Competitive proposals. (See Part 15 for procedures.) (1) Contracting officers may request competitive proposals if sealed bids are not appropriate under paragraph (a) above. (2) Because of differences in areas such as law, regulations, and business practices, it is generally necessary to conduct discussions with offerors relative to proposed contracts to be made and performed outside the United States and its outlying areas. Competitive proposals will therefore be used for these contracts unless discussions are not required and the use of sealed bids is otherwise appropriate.
  12. C Culham

    Overriding the evaluators

    Federal Acquisition Regulation subpart 15.308 Source selection decision. (emphasis added) The source selection authority’s (SSA) decision shall be based on a comparative assessment of proposals against all source selection criteria in the solicitation. While the SSA may use reports and analyses prepared by others, the source selection decision shall represent the SSA’s independent judgment. The source selection decision shall be documented, and the documentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs. Although the rationale for the selection decision must be documented, that documentation need not quantify the tradeoffs that led to the decision.
  13. C Culham

    Why all the "Award without discussions" talk?

    "Why is the government's default position that competitively "negotiated" contracts will be awarded without discussions?" I believe the answer to the question would only be found in the discussions that lead to the development of the Federal Acquisition Regulations however I believe it as has been noted, but in my words, it provides for the option rather than the absolute of there will be discussions. In understanding this is a beginners forum my above answer is based on the following references that may be of interest. The FAR in 1983 carried the allowance for award without discussion (FAR 15.610) and based on some quick limited research the principles now stated in FAR 15.306 have evolved to its current wording based in part on providing for more interaction with industry and most likely GAO case law while retaining the option rather than the absolute of discussions must occur. In September of 1997 the rewrite of FAR part 15 took place. Reference -https://www.gpo.gov/fdsys/pkg/FR-1997-09-30/pdf/97-25666.pdf Of note in the evolution GAO case law indicates even in the context of the statement now in 52.215-1 and with a setting of competitive range, and of course the specifics of the situation, award without discussions can occur. Here are a few references that form the basis for my response – 1983 FAR at FAR 15.601 (6) where the requirement for written or oral discussions need not be applied - “In which adequate competition or accurate prior cost experience with- the product or service clearly demonstrates that acceptance of the most favorable initial proposal without discussion would result in a fair and reasonable price; provided, that (i) The solicitation notified all offerors of the possibility that award might be made without discussion; and (ii) The award is in fact made without any written or oral discussion with any offeror. (b) Except as provided in paragraph (a) above, the contracting officer shall conduct written or oral discussion with all responsible offerors who submit proposals within the competitive range.” GAO Protest Decisions - https://www.gao.gov/products/405366#mt=e-report “That is, where the solicitation notified offerors that the agency reserved the right to make award without discussions, see FAR Sec. 15.306(a)(3), and the agency established a competitive range but proceeded to make award without holding discussions with any offeror, we would not entertain a protest by a competitive range offeror complaining that no discussions had been held.” https://www.gao.gov/products/D18455#mt=e-report (Found language found in this decision in many more decisions. “Further, the solicitation expressly advised that the agency contemplated making award without discussions. RFP at 168 ("The Government intends to award without discussions, but reserve the right to hold discussions if it is in the Governments best interest..." https://www.gao.gov/products/466172#mt=e-report (No specific quote from this decision is provided but my quick research indicates that this decision has had lasting impact with regard to the interpretation of the matter of award without discussions. This decision was pre the 1997 FAR part 15 rewrite.
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