C Culham

It seems I am not the only one that beats the dead horse!

With the above clarification I really do wonder about giving this instruction/advice/calculation format in the RFP. The subcontracting limitation clause, in my words, is a representation made by the contractor they will meet the performance standard on limitation at proposal submission and execution of contract. In making such a representation the contractor should be left to their own devices, pursuant to the clause, as to how they made their determination of compliance. If the government tells them how to they are taking on a responsibility in my view that is not appropriate. The tentacles of application of the limitation clause reach far and wide. Agencies themselves questioning a firms size based on the limitation clause, other firms also questioning, GAO protests, SBA OHA appeals and even DOJ False Claims Act cases ( https://gtpac.org/2019/08/29/doj-cracks-down-on-set-aside-contracting-fraud/) How often, how many, I really do not know. In the end no matter who questions the limitation matter the one that does question will be compelled to prove their position with a preponderance of evidence. In doing so the specific facts of the contract, how it is priced and how such pricing assists in evaluating the limitation matter will play a big role along with what the contractor is actually doing. And then there is 13 CFR 125.6 that carries with it its own examples of calculation. I know my thoughts are not refined for this post but quickly stated they all lead me to think that in the scheme of things putting a calculation method as created by the agency and placing it in the RFP does not make sense to me.

I have read and re-read your example and I wonder if it addresses this portion of the clause (deviation) with regard to services -"Any work that a similarly situated entity further subcontracts will count towards the prime contractor’s 50 percent subcontract amount that cannot be exceeded." My simple calculation to illustrate my wonderment. In this example all dollars relate to principle purpose.- Contract award is for $1,000 to the SB (Prime) Prime subs $500 to LB (not similarly situated) and subs $250 to similarly situated entity. All good at this point. The similarly situated sub then subs $200 to a LB (not similarly situated). Not good now as the subcontracted amount to not similarly situated entities is $700.

Lots to wade through in the links but there is discussion in the IG report and the CBCA decision referenced below regarding warrant authority. Interestingly in the detail regarding warrant authority the modification at issue - P0004 - was a zero dollar obligation modification. https://www.cbca.gov/files/decisions/2020/LESTER_04-09-2020_6188, 6312_CROWLEY_LOGISTICS,_INC. (Decision).pdf https://www.oig.dhs.gov/sites/default/files/assets/2020-09/OIG-20-76-Sep20.pdf https://www.usaspending.gov/award/CONT_IDV_HSFE7016D0204_7022

Again intrigued as being consistent with the FAR guiding principles. The quote provided states "which shall state" and pursuant to FAR 2.101 "Shall denotes the imperative." I had such a warrant for 15 years with the Small Business Administration. But on point an "Unlimited" warrant having no limitations, it seems the watrrant would by the very language on the SF-1402 that provides "Subject to the limitations contained in the Federal Acquisition Regulation and to the following:" Exactly and as such be inclusive of "internal agency guidance at any organizational level".

As I follow this thread I am intrigued by the above statement and related comments on application of FAR dollar thresholds. While I agree the FAR makes no statement about dollar threshold for delegation of authority, except for the micro purchase threshold, yet FAR 1.603-3 does require limitations which are then stated by agencies in dollar amounts on a Certificate of Appointment required by the FAR. Further it would seem a memorandum like that of the VA reference is an extension of the FAR whereby the threshold statement of FAR 1.108 applies. In support of my view the FAR provides at 1.301(a)(2) that "Subject to the authorities in paragraph (c) of this section and other statutory authority, an agency head may issue or authorize the issuance of internal agency guidance at any organizational level (e.g., designations and delegations of authority, assignments of responsibilities, work-flow procedures, and internal reporting requirements)." Luckily agency policy will further solve the threshold question!

Let me add....if a commercial item acquisition pursuant to FAR Part 12 look to FAR 52.212-4 if in the contract (order) for the actual terms and conditions for the language related to Disputes. And I might add that the (d) paragraph of 52.212-4 is not to be "tailored" so if the 52.212-4 is in the contract then Alt 1 is by my read not applicable.

Close maybe. The USDA-Forest Service contract with regard to Smokey Bear licensed items. https://www.fs.usda.gov/working-with-us/contracts-commercial-permits/licensing-of-smokey-bear

No maybe about it...... https://www.va.gov/oal/docs/business/pps/ppm202001.pdf ("value" but not obligation value 🤷‍♂️)

If I were in your shoes my starting point would be to ask the COR for the basis for the request. Or in other words under what contractual authority is the COR requesting the information and what is the purpose of the information.

I would be very interested in responses from active COs where the term "obligate" is stated, or not on specific warrants. I support Vern's interpretation but my hazy memory does recollect obligation language on any warrant I held back in the day. Just wondering.....

1.108 FAR conventions. The following conventions provide guidance for interpreting the FAR: (a) Words and terms. Definitions in part 2 apply to the entire regulation unless specifically defined in another part, subpart, section, provision, or clause. Words or terms defined in a specific part, subpart, section, provision, or clause have that meaning when used in that part, subpart, section, provision, or clause. Undefined words retain their common dictionary meaning. (b) Delegation of authority. Each authority is delegable unless specifically stated otherwise (see 1.102-4(b)). (c) Dollar thresholds. Unless otherwise specified, a specific dollar threshold for the purpose of applicability is the final anticipated dollar value of the action, including the dollar value of all options. If the action establishes a maximum quantity of supplies or services to be acquired or establishes a ceiling price or establishes the final price to be based on future events, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options.

Not an expert but by the read of your OP the question that was raised in my mind was not what type of contract but the legal authority with regard to the money side of things. Almost sounds like supplementing an appropriation which is a no-no generally speaking. My comment does acknowledges that nothing surprises me in what can be done in the Federal sector so maybe there is a way. It will be interesting following this thread.

A question that has been raised many times with all kinds of responses. In truth the real answer will come from your agency's own policy.

To hold a SIN must you not hold the FSS contract? Per the reference I provided it seems the only level required is to hold a FSS contract not the SIN. I key in on this - " Under Schedule CTAs, contractors complement each other and it allows teams to compete for orders for which they may not qualify independently."

Not saying this answers your question but did you go here? https://www.gsa.gov/buying-selling/purchasing-programs/gsa-schedule/schedule-features/contractor-team-arrangements

I wonder if the guiding principles of the FAR for a contract also apply to a modification🤔 15.405 Price negotiation.

Red face test...go get the lap top...bust em!

So just cynical me as I stopped here. Where in FAR 8.4 does "exchanges" appear? Seriously read the FAR!

So why was a quote entertained from the FSS contractor in the first place? And my read of FSS MAS ordering guidance simply suggests evaluation and the award. As Vern notes as well as you that "discussions" is a FAR 15 process and not recommended for FSS MAS orders.

Now there may be more current case law and discussion but I did find this(see link below) which if you follow the citations in it should help lead you to how your question applies to the specific language of your contract. Just knowing the FAR clauses are in it is not enough, the whole contract needs to be scrutinized to determine the most correct answer to your question.

Thank you

No argument but an honest question. Do you think FAR 1.102(d) fits in such situations where the FAR is conflicted? I think it does.

Are they a small business? If so two possible entities could help them as well. Procurement Technical Assistance Center near them.....https://www.aptac-us.org/ Small Business Development Center near them...https://www.sba.gov/local-assistance/find?type=Small Business Development Center&pageNumber=1

@Vern Edwards Thanks I do get it but am hung up on the "would be likely".