C Culham

Sorry for the confusion if I implied it was. I just felt that the OP left a gap as it was not explicity stated that simplified acquisition procedures (SAP) were being used. Stating "authority" did not hit me as an explicit affirmation that the SAP was the intent.

Steward - I ran into this and thought I would share. I just thought it was an interesting connection to your original post. Reference - https://www.gao.gov/products/b-413442 "Protest challenging the issuance of a task order to a large business concern is dismissed for abuse of process, and the protester is suspended from protesting for a period of one year, where the protester has submitted 150 protests this fiscal year, challenging an array of acquisitions (some of which were fully performed years earlier) conducted by a host of contracting agencies worldwide; has repeatedly failed to demonstrate that it is capable of, or interested in, performing the solicited requirements; and has repeatedly failed to engage constructively on the substantive and threshold issues raised by its protests."

However if one believes they are going to insert FAR 52.212-2 into the solicitation there is this to consider (emphasis added)..... "(a) The Government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered. The following factors shall be used to evaluate offers: ________________________________________________ ________________________________________________ ________________________________________________[Contracting Officer shall insert the significant evaluation factors, such as (i) technical capability of the item offered to meet the Government requirement; (ii) price; (iii) past performance (see FAR 15.304); and include them in the relative order of importance of the evaluation factors, such as in descending order of importance.] Technical and past performance, when combined, are __________ [Contracting Officer state, in accordance with FAR 15.304, the relative importance of all other evaluation factors, when combined, when compared to price.]" When considering whether one should use FAR 52.212-2 such consideration should be based on FAR 13.500(b).

None specific sorry. I do wonder. CPFF risk of performance does lie with, in general terms, the government. Yet, makes me wonder if the real entity(ies) to ask your question of is the contractors on any instant procurement. Simple example - In your proposal please indicate the number of key personnel you propose, credentials required of the personnel and their function(s) and how your make up of key personnel will alleviate risk of non-performance.

More piggy-backing. Critical to the posed question is are the key personnel at any ratio or number essential to the carrying out of the work of the project? The answer is more important than subscribing to a set ratio. The discussion has generated another thought on my part. Using the measure of a $40M procurement I wondered if key personnel would be a static number throughout contract performance? Then I wondered about the ability as detailed within the solicitation/contract where the contractor and the government evaluate the necessity and accomplishments of key personnel (they are a deliverable of sorts are they not if a key personnel clause demands them) and provide the ability to adjust, by mutual agreement, the number of key personnel throughout contract performance. Such a term in the award contract would give the ability to both the contractor and government the ability raise the necessity of the number of key personnel. Diversion of key personnel is generally allows (with government consent) via the boiler plate clauses that can be found so the departure with my thought that diversion or otherwise removal of key personnel was an anticipated event based on the work. Afterall if the work was being accomplished by the government itself I would imagine adjustments in personnel, including those that a key, would be a given.

A very interesting read. It would be interesting as to what, if anything, happened to Mr. Calvin and Ms. Swenson?

My thoughts are not at a high level of reasoning but rather just the quick ones that came to mind as I read. Seems that the last paragraph on Page 6 answers the question. Possibly not practiced that much is this ideal - "Negotiating the contract type and negotiating prices are closely related and should be considered together." Government picks the contract type and sticks to it regardless of the knowledge learned from receipt of proposals and how a different contract type might actually fit the need.

Good point. Maybe its a matter for the IG as it is interesting to say the least that the contract has reached its limit on labor catagories but there is a "ton" of money left on the contract. Eithere someone is not very good at math or maybe its hidy holing some money! Lots of unanswered questions to assist in a specific answer but one could conclude that the OP (who I think is not a CO but industry) has gotten adeuqate general thougths to help solve the matter.

I noted I was not going to argue but I suggest you consider this....emphasis added FAR 12.302(a) "...contracting officers may, within the limitations of this subpart, and after conducting appropriate market research, tailor the provision at 52.212-1, Instructions to Offerors-Commercial Products and Commercial Services, and the clause at 52.212-4, Contract Terms and Conditions-Commercial Products and Commercial Services, to adapt to the market conditions for each acquisition...." Your "allowance" is limited! I think you will find that research of GAO protests would support in some instant cases that changing 52.212-4 absent appropriate market research can result in a sustained protest. My reference for such a statement is from the 30,000 foot level that encompasses this quote.... "Inserting terms into FAR Part 12 procurements that are inconsistent with “customary commercial practices.” (CPDT Subcategory 3.1). Detail of this reference found here -

Well I am not going to argue but I find the thought as being on the precipice of a possible protest. If your "wipe out" is based on market research I can by in but if not then I do wonder.

Is not this almost a full circle question as one would need to know if the service is severable or not? Yes but I do not see it an issue. Or stated another way if it is acknowledged as an out of scope add via a modification (the context in which I made my statement) does it matter where the money comes from? I do not think so but I could be convinced otherwise I guess.

Now I am going to be nitpicky. If the debriefing is "offered" say in the solicitation then would it not be required? In posing this question I do understand completely that if noting in the solicitation states that a debreifing will be provided and then the agency just decides to do them out of the goodness of their heart it is not a a reqired debriefing. Just making the clarification as a saleint question was not asked of formerfed. And that question is - Is the offered debriefing going to be stated in the solicitation or just something the agency might do at their discreation? To further my thought it would seem if the latter the agency could place themselves in a predicament where they pick and choose who to give a debreifing too. Once again I understand the idea of a courtesy but in the end under the standard of fair dealing stating the avialability of a debriefing in a solicitaton seems to make the most sense to me to avoid the appearance of giving favor over one offer from another.

Or a JOFOC that follows due process of synopsis and could therefore result in a modification to the existing contract. It is an available alternative approach!

I never can remember if providing a outside resource link in WIFCON is okay or not but here you go. The referenced case in the document is an interesting read. https://www.wardberry.com/records-retention-requirements-for-federal-contractors/

Thoughts in no particular order.... First the subject. As I read the subject line and the original post the idea is not to eliminate the ability to protest but to change how to and the venue(s) to do so. A protest renamed? Unfunded or funded mandate? Agency funding would need to be increased to handle the administrative efforts under the change and establish the recovery fund. Would the change establish additional funds or keep agency funding the same? Quality assurance reviews. Would there be a set time limit for these reviews? Large procurements have a lenghty PALT as it is. Benefits -The benefits seem one sided advantage government. Yet an element of private industry no doubt thinks there is benefit to have the ability to protest. It is they that will be the hurdle to clear for a change to occur unless they are convinced something is in it for them. Agencies do screw up sometimes. Currently protests can be made to the agency. The private sector may view the change as just another effort to allow agencies to kick them aside. Examples are the current ability to protest to agency and fair opportunity ombudsman, two approaches that agency's have little policy and procedure regarding. Somewhere hidden in the idea is the gem, a carrot/stick, which I like. If I am reading right complaint to agency, they solve the suggested inconsistency at some level during solicitation process and all are happy....done. All move on. Complaint to agency, they don't solve and there is no allowance to delay during complaint process, like a dispute responsibility of all to just move forward. However contractor has right to what I will call a post solicitation appeal and if successful agency pays. Seems like an agency would take a more serious approach to solving as they should already be doing. Hope the thoughts make some sense and are helpful.

If asking from the perspective of the government the answer is- Yes! FAR 4.805 provides no exception therefore it applies to all contracts. This reference may also help. https://www.federalregister.gov/documents/2015/12/04/2015-30460/federal-acquisition-regulation-retention-periods

I am reminded that a contractor shall be given the opportunity to address adverse past performance if not given the opportunity to do so previously. FAR 15.306 As such I reason in a best value procurement kicking a contractor to the curb for pursuing such an action on a previous contract is past performance. Therefore I also reason that if a contractor is not given the opportunity to address their action and it is considered it will simply depend on the rules and history.

CO? Or General Contractor? Raised to make sure we are talking Government to Prime. Maybe yes maybe no but your indication of new suggests so but it depends on what is to be accomplished. Yes as long the matter of scope is not an issue.

Thoughts J&A? Or creation of and approval of a JOFOC? Neither. Maybe a just memo to the file that explains the extension. Mutual agreement of the parties - Yes I know it is non-commercial but remember the parties to a contract can mutually agree to a change without the need of a clause to do so. Consideration? If I were the CO I would want consideration. Pursuant to FAR 16.601(c) one could imagine the possible need to extend the period of performance of a T&M contract. Emphasis added "Application. A time-and-materials contract may be used only when it is not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence." Scope? If the need for extension is to pursue some type of result (the work) that was reasonably anticipated by the procurement it would seem scope is not an issue. Some of my thoughts came from this based on the idea that a T&M contract is sometimes referred to as a hybrid of a cost reimbursement/fixed price contract.

The continuing discussion reminded me of the below. Long decision but the portion regarding "Bad Faith" while not directly spot on may be of interest. https://www.cbca.gov/files/decisions/2013/HYATT_03-15-13_1789, 1845, 1929, 1930__ALK_SERVICES_INC.PDF

The individual may not realize that they may have a responsibility to declare the possible impartiality. Lots of thoughts on the route you might take to express your concerns. Leaving it to your imagination. https://www.ecfr.gov/current/title-5/chapter-XVI/subchapter-B/part-2635/subpart-E

How about a literal read of FAR 9.104-6(a), does it help answer your question for a Federal contract award? Reminder the FAR definition of "shall" and checking of SAM.gov could mean many things yet for responsibility it would seem 9.104-6(a) is clear.

I apologize for the mis-read. I was amazed that it was the best point made now, but it was not when made a few days ago. Thank you!

In the most professional manner that I can muster at this very moment, based on the last comments of both of you it is clear that you have little respect for my points and do not attempt to read and interpret them for what they are....informed dialog. The most glaring example is the below quote which I posted to this thread on on Friday November 3 at 7:57am. Respectfully each of you should read with understanding not bias full discussions and move away from I used to do it this way. I too am done trying to reason with either of you. READ gentlemen, READ! "As promoted by the FAR at 33.2 "the Government’s policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim." "

I do not see the use of "claim" when requesting correction effort under a warranty as improper. The FAR at 2.101 does define "claim" yet the FAR also provides that (emphasis added) "A word or a term, defined in this section, has the same meaning throughout this regulation (48 CFR chapter 1), unless- (1) The context in which the word or term is used clearly requires a different meaning;..." In research "warranty claim" appears to be a often used term when the discussion is with regard to warranties. In researching I did stumble into use of AI and found this - https://www.genieai.co/define/warranty-claim#:~:text=Warranty Claim means a claim for the repair or replacement,the provisions of a clause. I understand yet there is another approach that I suggested. Again David can choose his course. For the good of the order.....if it does not link automatically simply cut and paste into a browser. What's in a name: REA versus claim - WIFCON.com