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C Culham

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About C Culham

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  1. In my view @joel hoffman should have included this paragraph from 13.003 as well... "(g) Authorized individuals shall make purchases in the simplified manner that is most suitable, efficient, and economical based on the circumstances of each acquisition. For acquisitions not expected to exceed -- (1) The simplified acquisition threshold for other than commercial items, use any appropriate combination of the procedures in Parts 13, 14, 15, 35, or 36, including the use of Standard Form 1442, Solicitation, Offer, and Award (Construction, Alteration, or Repair), for construction contracts (see 36.701(a)); or" And read 36.701. If you want firm offers the 1442 is ok but if you really want quotes then use a SF 18 or similar format and submit your offer to award on a 347 and ask the contractor to affirm acceptance. And a thought of performance bond for construction needs under $150k. Yes FAR part 28 doesnot encourage but it is unclear whether discreation would allow. I once worked for an agency that did federal construction on private property. The agency put in place a class deviation where work over $2000 would be bonded by both performance payment bonds to help ensure the private interests got the work anticipated and helped with potential liens by unpaid suppliers, subs, etc. against the private property. Sharing as I for one would consider individual deviations for performance and payment bonds if the critical nature of the work so dictated. A decision that is in the best interest of the government from the view that doing so may limit competition as not all mom and pops can get surety bonds and asking for them will generate a higher price for the work.
  2. Try a very close read of FAR part 49 concentrating on no cost settlement and no cost termination. Hint the later with regard to a close read of the subpart regarding T4D.
  3. Oh the dribbling facts along with assumptions........ SF 1442 used - While quote and LPTA have also been described I am going guess that if the matter went to litigation the solicitation would be considered to be a request for offers and not quotes as bet the RFP block of the 1442 was checked and the contractor signed the 1442 at the offer stage. Going to also guess 52.215-1 was in the solicitation. All this has me conclude that the government received a firm offer which the government has accepted by making award. On this basis the Ts and no cost are the avenues available. That is if ambiguity as @Retreadfed has advised is not existent. Performance bond if held would be leverage and assist on the T4D side but since nonexistant the options are back to the Ts and no cost (and ambiguity?). While I imagine the assist provided in this thread has been helpful in figuring out angles I highly recommend an internal agency discussion inclusive of legal counsel to chart a strategy that is in the best interest of the government and that can solve this matter at the level of the CO.
  4. I suggest stepping this back a little and consider the following. Noting @Neil Roberts recent post the OP has not stated what the solicitation rules were. If in fact a true RFQ package absent FAR 52.212-1, FAR 52.214-7, or 52.215-1 then it would seem that FAR 13.004 applies. I read nothing in the thread to indicate that the contractor has verified its acceptance of the offer from the government. If the contractor has in writing then the route of T4D, TDC, no cost termination is appropriate but if the contractor has not you then go to the next standard, whether the contractors actions have indicated acceptance through substantial performance. If substantial performance has not occurred then again pursuant to FAR 13.004 the governments rightful actions are withdraw, cancel or amend the governments offer and a T for whatever is not available. I would further offer that @ji20874 has provided thoughts about integrity of the process and if an offer acceptance has not been established it will be left to the government to make a decision on withdraw, cancel, or amend as to what is the governments best interest, not integrity. I therefore would be very careful and engage legal counsel to make sure that the acceptance standard of the governments offer is present before I would attempt to T for whatever. As to an adverse performance evaluation in CPARS two thoughts. One is that it is indicated that SAP was used and therefore it appears that the need is less that $250K. Further nothing had been provided to establish that a contract has been consummated. If not a contract there is no avenue to CPARS, if a contract there is avenue but the government would have to, through CO discretion, allow for a CPARS evaluation as it would be a construction contract less than $700K. As an aside I do believe that a CPARS for a T'd contract for any reason is appropriate.
  5. I understand the quotes. But, as things go I put faith in COs for doing what is necessary to promote competition to the maximum extent practicable. Yet I whole heartedly agree there is the 1% that do not and shape procurements to a lesser standard. The OP has advice and thoughts and should chart his/her actions as felt best based on all the facts of which we just have a smiggin. I hope we have provided adequate insight on all the angles for an informed decision.
  6. Contrary view, is it good contract hygiene? I for one would think it more appropriate to separate the issues. Change Order and follow on equitable adjustment can become cumbersome. Do either but look forward. Tongue in Cheek but Seriously - Now what block do you check in Section 13 on the SF30 and cite as authority. Note form says "Check One" and change order is specific. Does this not imply handling the two matters separately?
  7. I am with @Don Mansfield noting that 52.212-1 is specifically noted by the OP. But does it change the the view of whether the agency action was appropriate? Maybe yes maybe no....see below for a previous WIFCON discussion that might help. @PepeTheFrog me thinks the quibble of use of offer rather quote in 52.212-1 is not held in the same view by GAO. Also see below. https://www.gao.gov/mobile/products/D15919
  8. Joel...15 years as a CO for the SBA 8(a) program. You must not have been in the Portland District of COE, just say'n.
  9. The applicable reference is 13 CFR 124.513 along with the an agency/8(a) partnership agreement. By my read SBA should (would) have approved the JV. In the old stubby pencil days SBA would have had an active role in monitoring the 8(a) JV partner to make sure their commitment continued based on the fact that the contract is a 8(a) sole source. The SBA's view would have been to ensure the 8(a) JV partner is complying with 8(a) program requirements which would include monitoring the % of work to ensure the concept of it being an 8(a) set aside is adhered to. Example if the 8(a) firms participation in contract work falls below say 50% one could conclude that the JV is not an 8(a) contractor. Additionally there is the issue of "affiliation" for size determination however one would think that if SBA in fact approved the JV the issue of affiliation was reviewed and considered non existent. As to a contracting agency responsibility and considering the question posed @Retreadfed again if SBA approved the JV for an 8(a) sole source the OP's issues of meaningful work are not a concern unless the 8(a) JV fails to meet its obligation of the 55% and at that point would want to raise the issue to SBA and leave to SBA to determine appropriate action. So in part the OP's agency should be watching to help ensure it just wasn't a pass through contract and the 8(a), by SBA's approval, is getting some meaningful experience. Otherwise implied response to Retreadfed is that the OP would otherwise be monitoring to ensure the work is successfully completed noting once again that if SBA did approve the JV, the worry about "nonmeaningful work" is misplaced. Ensuring the percent of work and actual compliance is where the emphasis should be. The matter is complicated by the fact that the OP has stated as well that the anticipated contract is an IDIQ. The applicable reference with regard to performance of work for an IDIQ is 13 CFR 124.510 at paragraph (c) as to concepts that might be applied to determine the 8(a)'s active participation. I mentioned stubby pencil days on purpose as now, admitting that I have not been a hands on CO for many years, the world has changed where SBA's resources have dwindled so they are more passive in their efforts and while SBA/Agency Partnership Agreements carry caveats regarding 8(a) JV's I have heard many stories where agencies just plow along without active SBA involvement or even the approvals required. All this leads me to restate a response to the OP's original question. The tools available are 13 CFR 124 and your agency/SBA partnership agreement and most importantly an active SBA office, if one truly exists these days.
  10. Retreadfed...If I am reading SBAs template correctly along with CFR references it would seem a JV has some regulatory emphasis to do as they say to make the JV meet their size status?? ???
  11. I suggest referring to the GWAC itself. Not sure which one you used but by my read contract clause in section G of the contract speaks to your situation. Here you can find a copy of one of the confirmed contracts. https://nitaac.nih.gov/services/cio-sp3
  12. Here is reference that may help you to some degree as it provides associated SBA CFR citations regarding JVs responsibilities. https://www.sba.gov/sites/default/files/2018-06/Joint Venture Agreement Guide_ver4_final.pdf
  13. As I followed this thread with interest I continued to think about the successful offeror who in fact could request a debriefing.
  14. Actually I think the tier issue is relevant. Who cares about what the FAR says in subpart 8.4 isn't what counts is what the actual FSS contract says.......clauses like the BPA clause, Order clause, and Order Acknowledgement clause?
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