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C Culham

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Everything posted by C Culham

  1. But there is as stated by the OP - "The name of the travel CLIN is "Travel & ODCs - Reimbursement for Actuals."" I know the thread has run its course but it would seem that the discussion is not really about such things as G&A, Actuals, ODC's etc. it is about a scheme to reduce the cost of the contract with regard to travel. Overall the whole issue depends on the specifics of the instant contract, at least one would hope so, and not on a read of the regulations.
  2. Interesting. So how about 52.212-4 with its Alternate I? And if so what is the exact language of 52.212-4 Alt I?
  3. You do not have to be convinced but I appreciate the ability to respond. I understand where you are coming from yet I still believe your premise is off base. Rather than address each of the terms and conditions you note which I would imagine all may not be in a contract say to build your house, consider this. Service Contract Act. While I understand there is a difference in such things as payrolls and basic records SCA does carry requirements unique to a Federal contract. A read of FAR clause 52.222-41 will support my view. Do you believe that a service contract, like janitorial, is not a commercial item contract, since SCA is required? I do know that GSA for FSS fought the battle and lost wherein their commercial contracts require SCA and it seem that most if not all agencies put SCA in commercial item contracts.
  4. No regulation prohibits G&A on travel but the solicitation/contract language might. It depends. Find this it may or may not help -https://www.acquisition.gov/content/part-9904-cost-accounting-standards#Section_9904_410_T48_70102650192 More specifics as to why you are asking question might help. Already asked was post award invoices but then the type of contract might matter too such as a T&M contract.
  5. Oh I get it and I have had this argument thrown at me before. Throw a dang term and condition in a contract that you as the owner (dare I say CO) feels that they have no enforcement power over. If so why put in at all? I guess when you build a house and your contract requires the contractor to comply with all state and local laws and codes and the contractor fails to do so you will just say "whatever" and move along! Or, wait will you take contractor to task, even ask for a change in price if they don't. Sanity check is correct and your suggestion is insanity.
  6. You have received some other refined and general comments. I will just add mine but as noted in other comments you are being driven to do something by a CO so I guess that is the rule. But my view is this as dumb as it may sound. I believe the negotiation of an 8(a) sole source begins at the very start where the agency begins dealing with SBA to identify an appropriate contractor to do the work and ends with a successfully agreed to contract. On one hand dealing with SBA is sort of like ( a flimsy "like") clarification, and discussion to figure who is best for the work. On the other hand, and I would agree not often used, is the fact that SBA is the prime supposedly, so when you start talking to them at the very beginning you are negotiating. It has been a long while since I worked in the 8(a) arena but in the 15 years I did spend in it I always advocated for not making sole source complicated. I do advocate for a well documented file however and if you have to hang an acronym on it then a POM and PNM it is.
  7. Prevailing rate means that which is prevailing in a particular area. Not all D-B rates are union. By example if Turner Construction was building in Benton County Arkansas based on your application of D-B being the basis for determining commercial services would the project be commercial? If I think about it your premise does not make sense. As to record keeping requirements check out FLSA and let me know if it only applies to Federal contracts. Overall the AIA standard that I noted before carries a term and condition that the contractor shall comply with applicable law, statute etc. in performing the work. As a general rule of thumb your reasoning seems flawed to me. From a D-B wage determination emphasis added - "A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than ""SU"" or ""UAVG"" denotes that the union classification and rate were prevailing for that classification in the survey."
  8. This made ME think! @CaptJaxHere are your questions yet everyone piled on the construction- commercial item subject including me. Yep finding the questions buried in the scenario might have caused the confusion but the problem it seems in the form of some questions were very possibly clearly stated. Let me back track and offer the following. Q. Is it dangerous to use terms of clarification, discussions, POM/PNM, negotiation from FAR 15 applied to an 8(a) sole source for commercial services? A. Yes I believe so in an 8(a) sole source. Too much formality. FAR subpart 19.8 only calls in the entirety of FAR Part 15 when doing a competitive 8(a). May sound too simple but stick to FAR 19.8. I am not saying the POM/PNM is not required as your agency policy may dictate and it just makes common sense to me as well. Clarification and discussions do not fit in my view. You are just sitting down with the sole source and negotiating. Q. The term "negotiation" in the world of the FAR is it wholly owned by FAR 15? A. In the case of the OP procurement see 19.808. Q. I had a contract where the service could only be done during whale season, which is somewhat of a moving target; how could this POP commencement rule be so stringent? A. I think FAR subpart 11.403 might help you answer the question yourself.
  9. Agreed but why does that impact the discussion? Miss! True but where in the FAR does it say you cannot use FAR Part 12 to procure construction. Emphasis added and by the way one source - RS Means. "Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions. For purposes of these services– (i) Catalog price means a price included in a catalog, price list, schedule, or other form that is regularly maintained by the manufacturer or vendor, is either published or otherwise available for inspection by customers, and states prices at which sales are currently, or were last, made to a significant number of buyers constituting the general public; and (ii) Market prices means current prices that are established in the course of ordinary trade between buyers and sellers free to bargain and that can be substantiated through competition or from sources independent of the offerors; or All of it could be except that which is statutorily required. Here I would say that a full view of Forum discussions on use of FAR Part 12 there are several examples where folks have said that they would wholesale change 52.212-4. My read of the FAR at part 12 is that there is clear intent to do so if market research provides that 52.212-4 should be change to meet commercial practices. Red herring. Commercial practice, here I will reference the AIA General Conditions for Contract for Construction, provides a clear example regarding bonds and insurance. With regard to both Davis Bacon and Service Contract that they are "prevailing" wage requirements. Nothing I have found prevents the use of Davis Bacon in a FAR part 12 contract. It applies when USDOL rules says it does but it is not indicative of having a contract defined as construction as you attempt to do. In fact I would suggest that a service contract by definition could in fact have Davis Bacon requirements in the contract as well. Reference FAR 36.1010(c). As will you. Exactly and in the end I have found none that were taken to task (protest) for doing so. Have you? And reemphasized 2019 by my read. What? Are you saying that union rates only apply to Federal government contracts? Union rates are part of everyday ordinary trade. "Pub. L. 114–328, div. A, title VIII, §876, Dec. 23, 2016, 130 Stat. 2311 , as amended by Pub. L. 116–92, div. A, title IX, §902(59), Dec. 20, 2019, 133 Stat. 1550 , provided that: "Not later than 90 days after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall revise the guidance issued pursuant to section 855 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2377 note) to provide that- "(1) the head of an agency may not enter into a contract in excess of $10,000,000 for facilities-related services, knowledge-based services (except engineering services), construction services, medical services, or transportation services that are not commercial services unless the service acquisition executive of the military department concerned, the head of the Defense Agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition and Sustainment (as applicable) determines in writing that no commercial services are suitable to meet the agency's needs as provided in section 2377(c)(2) of title 10, United States Code [now 10 U.S.C. 3453(c)(2)]; and "(2) the head of an agency may not enter into a contract in an amount above the simplified acquisition threshold and below $10,000,000 for facilities-related services, knowledge-based services (except engineering services), construction services, medical services, or transportation services that are not commercial services unless the contracting officer determines in writing that no commercial services are suitable to meet the agency's needs as provided in section 2377(c)(2) of such title [now 10 U.S.C. 3453(c)(2)]." Have a great week everyone!
  10. I do understand. RS Means has as it basis market prices. I will leave you with this as you bow out - 10 USC 3453
  11. Ah but the commercial item provision on changes can be tailored. It would seem that the OP has proven reality. The contract as noted by the OP is a commercial item whether viewed by some as improper or not. What has not been stated throughout this whole thread is for what reason or purpose the contract could not be a commercial item contract. Not one reason why the contract as a commercial item contract is a strategy that would not be in the best interests of the Government and is addressed in the FAR, law (statute or case law), Executive order or other regulation, that the strategy, is not a permissible exercise of authority.
  12. I agree. Yet, I still have to respond to what I believe to be questionable premise. So is not RSMeans a basis of market prices and can not standard commercial terms and conditions for construction contracts be found through market research? As to what the original poster is doing I would offer that whole scenario is a hot mess.
  13. It is my belief that the answer is Yes as the government is required to obtain such a list and provide it to the contractor and subcontractors as by read of your original post the Job Corps Center(s) is a Federal facility. Reference FAR 52.222-41 (n) which reads as follows - (n) Seniority list. Not less than 10 days prior to completion of any contract being performed at a Federal facility where service employees may be retained in the performance of the succeeding contract and subject to a wage determination which contains vacation or other benefit provisions based upon length of service with a Contractor (predecessor) or successor (29 CFR 4.173), the incumbent Prime Contractor shall furnish the Contracting Officer a certified list of the names of all service employees on the Contractor’s or subcontractor’s payroll during the last month of contract performance. Such list shall also contain anniversary dates of employment on the contract either with the current or predecessor Contractors of each such service employee. The Contracting Officer shall turn over such list to the successor Contractor at the commencement of the succeeding contract. From my view this is a matter of contract pricing. If I were the non-incumbent I dang sure would be looking at all possible cost factors that would effect my pricing. Vested vacation time, while not the best analogy, is like trying to guess at what the price of gallon of gas will be during performance of work.
  14. The logic is based on the specifics of the construction project as whether a POP or Delivery Date is stipulated. A read of FAR subpart 11.401 may help you in understanding the general basis of for establishing a performance schedule or delivery date. While the FAR reference provided will take you there specific reference to FAR 52.211-10 should help further in understanding that there is more to it than some dang form (1442) which can be edited to either delete Block 11 in its entirety or edited to make reference to a delivery date pursuant to the following FAR clause with its Alternate I. "52.211-10 Commencement, Prosecution, and Completion of Work. Commencement, Prosecution, and Completion of Work (Apr 1984) The Contractor shall be required to (a) commence work under this contract within _________ [Contracting Officer insert number] calendar days after the date the Contractor receives the notice to proceed, (b) prosecute the work diligently, and (c) complete the entire work ready for use not later than ______________.* The time stated for completion shall include final cleanup of the premises. * The Contracting Officer shall specify either a number of days after the date the contractor receives the notice to proceed, or a calendar date. (End of clause) Alternate I (Apr1984). If the completion date is expressed as a specific calendar date, computed on the basis of the contractor receiving the notice to proceed by a certain day, add the following paragraph to the basic clause: The completion date is based on the assumption that the successful offeror will receive the notice to proceed by _______________ [Contracting Officer insert date]. The completion date will be extended by the number of calendar days after the above date that the Contractor receives the notice to proceed, except to the extent that the delay in issuance of the notice to proceed results from the failure of the Contractor to execute the contract and give the required performance and payment bonds within the time specified in the offer."
  15. Age old argument that has many that do not agree. Case in point https://www.dsp.dla.mil/Policy-Guidance/FAQs/Commercial-and-Nondevelopmental-Items/ . Q: What is a commercial item? Standalone services offered and sold competitively, in substantial quantities, in the commercial marketplace based on established catalog or market prices for specific tasks performed and under standard commercial terms and conditions. Construction, research and development (R&D), warehousing, garbage collection, and transportation of household goods are examples. In the specific case of this thread this stands out - OCONUS and 8(a). OCONUS - Davis Bacon does not generally apply outside the 50 United States. https://www.dol.gov/whd/programs/dbra/whatdbra.htm#:~:text=For example%2C Davis-Bacon prevailing,performed outside the 50 States 8(a) - 13 CFR 124 in like 18 places but consider this - In order to be awarded a sole source or competitive 8(a) construction contract, a Participant must have a bona fide place of business within the applicable geographic location determined by SBA. This will generally be the geographic area serviced by the SBA district office, a Metropolitan Statistical Area (MSA), a contiguous county (whether in the same or different state), or the geographical area serviced by a contiguous SBA district office to where the work will be performed. SBA may determine that a Participant with a bona fide place of business anywhere within the state (if the state is serviced by more than one SBA district office), one or more other SBA district offices (in the same or another state), or another nearby area is eligible for the award of an 8(a) construction contract. Now I am going to say it again but with my own personal emphasis it might be construction but it could a commercial item! It depends!
  16. @CaptJax Well I will pile on.....noting especially that everything depends on more specifics, so my comments are generalities! It is probably construction but could handled as a commercial item rather than under FAR part 36. You might enjoy this read - Pricing? It looks like you have read the FAR on 8(a) so go back and re-read FAR 19.806. And also look at FAR 19.807 I hope you are looking at Fair Market Price! POP...your KO is confused. There is much more confusion with regard to FAR guiding principles versus what is happening in reality for you so I will just stop here.
  17. Hmm...this newest post made me think. What if the need is below the SAT but purchased via FAR subpart 8.4?
  18. So maybe Witty's statement should have been. "One additional piece of information related to contract type that might be necessary to explain to approvers/reviewers is whether firm-fixed task orders will be based on unit prices established in the base contract or will be competitively established under fair opportunity (multiple award) or negotiated (single award). That piece of information has a significant impact on the actual future operation of the contract."
  19. Pricing policy not an order placement guiding principle from my view. Buried in FAR 16 regarding fair opportunity ordering.... The contracting officer may exercise broad discretion in developing appropriate order placement procedures. The contracting officer should keep submission requirements to a minimum. Contracting officers may use streamlined procedures, including oral presentations. If the order does not exceed the simplified acquisition threshold, the contracting officer need not contact each of the multiple awardees under the contract before selecting an order awardee if the contracting officer has information available to ensure that each awardee is provided a fair opportunity to be considered for each order. The competition requirements in part 6 and the policies in subpart 15.3 do not apply to the ordering process. I just think in terms of the FAR. I realize a general definition makes sense. To me it is not competing orders it is giving folks a fair opportunity for consideration for award of the order.
  20. I take exception to this. Fair Opportunity is an order placement process not a competition.
  21. I won't argue the need to document a file as to why but just remember the world of 8(a) sole source is different.... 4 CFR 21.5 Protest Issues Not For Consideration at (3) "Procurements under sec. 8(a) of the Small Business Act. Under that section, since contracts are entered into with the SBA at the contracting officer's discretion and on such terms as are agreed upon by the procuring agency and the SBA, the decision to place or not to place a procurement under the 8(a) program is not subject to review absent a showing of possible bad faith on the part of government officials or that regulations may have been violated. 15 U.S.C. 637(a)."
  22. Hmmm....been there done that. Consider this. In a 8(a) sole source the 8(a) firm is actually a subcontractor to the Government (SBA). So in a privity of contract matter it would seem logical that the Government could say to its subcontractor, hey for this part of the work we want you to use so and so to do this part of the work.
  23. The guiding principles of the FAR gone array especially with regard to the ideal of acquisition "team". Not sure of the OPs agency but I found this in DFARS that supports in my view that contract type and pricing are separate identifiers. I sure would like to get my hands on the OPs policy or whatever regarding AP review/approval. For indefinite delivery indefinite quantity (IDIQ) contracts that will establish pricing terms that apply to orders, use the total maximum dollar value for purposes of the peer review threshold. IDIQ contracts that will not establish pricing terms in the basic contract are not subject to peer review, but individual orders that exceed the threshold are subject to peer review.
  24. I apologize I guess you know all the facts. Carry on.
  25. @BrettK My wand. Go back to the days when 1106's were around and COs would lace up their boots, visit contractors, visit job sites, visit manufacturing plants, visit where services were being perform on or off government facilities. A simplistic view with critique intended....you go ahead and build your house, have you property maintained, or your vehicle serviced via technology and never see the light of day. Me I will be hands on!
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