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C Culham

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Everything posted by C Culham

  1. Is there a reason this paragraph of 13 CFR 121.404 was not quoted? 121.404 (a) SBA determines the size status of a concern, including its affiliates, as of the date the concern submits a written self-certification that it is small to the procuring activity as part of its initial offer (or other formal response to a solicitation), which includes price. Determination is not only based on date of initial offer, that includes price, but the fact that the offeror has provided a written self certification as well.
  2. I have no experience so not aware of any issues from a hands on view but I do have some thoughts. I am almost there with regard to it being market research but ......... Is the "free" really free. By my experience free trials with regard to the Cloud in many cases imply some kind of monetary connection. Something like you get $300 in value in using the trial or get $500 in credit if you extend the trial to a full subscription. So is the latter case especially it seems a exchange of a promise that involves value. Does not fit the FAR definition of a contract but still has an uneasy feeling. Add on the Competition in Contracting Act ideals and you may have some effort ahead of you to ensure that you are not giving one firm a leg up over another (offer all you might review or contact in market research an opportunity to let you try their product for free?) if you decide to go to a competition to get your need. If the idea for the trial is to check out an entity before acquiring on a single or sole source basis then that is a different matter. Hope these thoughts help.
  3. I don't know it may too early in the morning (ps - I do not drink coffee) but in reading in this thread I came to the quick conclusion that you do not want a "team" you want a "sub" agreement. No intent to get into a big discussion about the differences, definitions, etc. but for me in the practical view "team" is some how absent from the intent of what you want in this particular arrangement.
  4. So just thinking out loud….. You have not specified if the original contract had one CLIN in a lump sum or multiple CLINS for the different elements of the service. Just noting but I am not sure it matters with regard to how I see this. Also not sure if you are asking as the prime, the sub or the Government, again for me it probably does not matter but for others it might. You ask – Questioning after the fact if you are the prime does not make any sense if the work was already agreed to and added. If you are the Government sure it is okay to question the costs your prime and its sub incurred as to allowable and allocable. You also ask – Not for me. It was simply a renegotiation of the fixed price. It seems your question revolves around the fact of a prime allowing a sub to change its contract pricing during contract performance and the need to have a specific clause to do so. Contract terms and conditions are in a contract to help address unanticipated issues that might occur (need to direct a change in contract, differing site condition, increase in DOL wage rates, etc.) and/or to give direction to a contractor on how to deal with a particular matter (EEO, cooperation with other contractors, using GFP, etc.). However it is my view, that I believe is supported by courts, with regard to any contract arrangement whether between private entities or in the Government that the contract can be changed without the need of a specific term or condition to allow if both parties agree the change is necessary. In Government contracting there are issues of scope etc. that may come into play but not sure scope matters in private industry.
  5. Court Order and the FAR

    (Posted after ji but have a little different spin on something I put together so posted anyways.....) The agency incurs the obligation, unless it wants to ignore the court order. Not sure what you mean by agreement but I envision this…. Court Order issued Agency then finds needed commercial entity or goes to the specific entity the Court Order stipulates Agency then uses the commercial credit card or PO to pay for the services. Single source determination or sole source justification to support as appropriate.
  6. Bob – Joel caught the essence of my thought. At least for the civilian side of things there was this vision captured from a 2007 OFPP memo - “Contracting Officer Technical Representatives (COTRs) perform critical acquisition and technical functions, and Contracting Officers rely on them to ensure that contracts are managed properly to meet mission needs.” that ramped up a supposed emphasis in creating COR’s that would be an “agent of their PM”. By experience in some cases the COR isn’t even from the program area whatsoever just a person that was head hunted because they had the necessary certification. I am not damning the whole as some agencies have associated certification and functional program requirements especially for construction, like the USACE or Forest Service but for others getting someone COR certification is like, well making them get a new system password every 90 days. Just a have to do instead of want to do to make them an agent for successful contract outcome. I see Vern’s suggestion of embedding CO’s with the program area as an alternative to a COR certification program whose intended goal has fallen short.
  7. Vern's idea sounds almost like a full implementation of the current half a** implementation of a system of COR certification. And a sensible full implementation ideal in my view and wish it would happen!
  8. Advice for New Professionals

    As a follow-on to Joel's comments as they relate to WIFCON. Read all the posts in the following Forum subject area as I think you will gain insight on how to utilize the Forum area of WIFCON to its greatest advantage. http://www.wifcon.com/discussion/index.php?/forum/15-before-you-register-before-you-post/
  9. GSA CTAs

    I get GSA's position and the fact of a relationship needing to be with two GSA FSS contractors but it seems that the protest decision depends on specific language in the RFQ, the CBCA case seems to be saying "may" not "shall" (if such a quickly stated view makes sense). When I looked at FAR (subpart 9.6), the GSAR which does not supplement 9.6 and a couple of GSA FSS solicitations, like the OP I cannot find something that specifically supports that the teaming arrangement must the privity implied by the FAQ. FAR 9.603 says this - The Government will recognize the integrity and validity of contractor team arrangements; provided, the arrangements are identified and company relationships are fully disclosed in an offer or, for arrangements entered into after submission of an offer, before the arrangement becomes effective. The Government will not normally require or encourage the dissolution of contractor team arrangements. In the end the OP has to play the game yet I agree GSA policy is not clear and seems to be a position that is not substantiated in contractual terms and conditions. I guess if I was the one "audited" I would ask for a more creditable reference than a FAQ.
  10. GSA CTAs

    This may be the basis for GSA's position......but it seems the that what the actual teaming arrangement says that would dictate in each case. After all FAR subpart 9.6 provides that teaming arrangements can also be a JV or partnership. http://www.cbca.gsa.gov/files/decisions/2007/STERN_04-19-2007_411__KEY_FEDERAL_FINANCE_508.pdf
  11. IAD – You seem to have disappeared. Following is a general response to your question that clarifies my vague question I posed. There are several considerations to make with regard to the situation you have stated but lots of additional details would help. Noting this the following is general thoughts regarding the situation. First, you have stated that your original contract had one shift of 8 hours, it was changed to 2 shifts of 8 hours and now another shift of 8 hours is being requested. If the new shift is just a change in hours to an existing shift is one possibility (still only 2 shifts) or the addition of a completely new shift is another (now three shifts). You have not clarified but either way if the change results in additional costs in performance to your company you may be entitled to an equitable adjustment in contract price. With regard to SCA. It sounds like the CO has questioned the DOL regarding shift rates. Generally speaking shift rates are not contained in SCA wage determinations. So generally speaking when employees work the exact same position during what I will call regular hours or work the night shift the same hourly wage and fringe benefit stipulated in the wage determination for regular hours is paid for the night shift. One exception is if there is a collective bargaining agreement applicable to the contract work, if so a shift rate might be in existence and the wage for a regular hour person might be different than that of a night shift worker. Another exception could be contained in the specific wage determination itself, by example air traffic controllers get shift pay. The overall caution here is that while the CO might advise on what DOL has said, you as the contractor has the ultimate responsibility for compliance with SCA. Noting this if I were in your shoes I would contact the DOL to confirm their view of your specific situation. You should also read the full SCA wage determination or collective bargaining agreement yourself to confirm if it does or does not address shift rates for the type of service you are providing. Should there be a required shift rate that results in additional costs to your performance of the work you may be entitled to an adjustment in contract price if contract clause 52.222-44 is in your contract. This clause covers how you are to request the adjustment if the additional costs in performance are directly related to a required shift rate payment. The change. If there is no required shift rate the change in hours could be “ordered” by the CO but only if a FAR clause in the 52.243-XX “Changes” series is in your contract. In such a case the clause covers how you are to request the equitable adjustment regarding any increase in costs you may have in complying with the change. If your contract is a Commercial Item contract (See FAR Part 12) the allowance to change the contract hours is contained in clause 52.212-4 at the paragraph entitled “Changes”. The FAR boilerplate version of this clause prevents the CO from “ordering” the change but rather requires written agreement of both the CO and the contractor before the change can take place. Be aware the CO could have changed this clause and if so it would be so noted in the contract. In this latter case and if the boilerplate clause and paragraph regarding “Changes” was used is where you would support that the change in hours results in additional costs in performance to which you would seek an equitable adjustment for the change before agreeing to the change. Overall the change in hours and possible increase in costs of performance and your allowance to claim either an “adjustment” or an “equitable adjustment” in contract price hinges both on what the FAR contract clause in your contract regarding SCA states (specifically if FAR Clause 52.222-44 is in your contract) and the change itself whether requested for your agreement (commercial item contract) or demanded (change order for a non-commercial item contract) by the CO results in increase costs of performance.
  12. Just to make sure is there a collective bargining agreement in place?
  13. How about consideration also be given to FAR 19.806 and 19.808 along with the FAR Part 31 references already provided. Even consider FAR 15.4 which 19.806 tells you to consider. Yes I know all do not give a specific answer to your questions per say but think about the principles behind what 19.806 and FAR 15.4 says. Such as - What about cost or pricing data certification? Are you going to request audit assistance? What do you believe is a FAIR MARKET PRICE for the work? In 8(a) it is NOT fair and reasonable price. Do you know what is common for the specific construction industry related to your specific work that would make you want to question the number? By example what did your IGE use? There are so many other questions I will stop here and while I do not necessarily totally disagree with what has been posted so far in this thread the responses do not in my view touch the whole of quality answers to your questions. There is a significant lack of additional questions, responses to those questions and other information that would be of value to your questions. Like already mentioned and more - are you doing price analysis, cost analysis or ? and have you read FAR 15.405? I am probably in trouble now so I will just sign off and let it go at that!
  14. Kickstarter and the GCPC

    FAR - Thank you for the references. Interesting read inclusive of "Other Transactions” (OT) Guide for Prototype Projects, (OASD AT&L, August 2002)" which is stated to be the most current guidance regarding OTs. A complex mix of an "agreement" that is not considered a grant or cooperative agreement and an acquisition that is not a "procurement" subject to the FAR. In a quick read of both the linkedin discussion and the Guide your above quote especially rings true. Noting a question in this thread by Matthew Fleharty it would appear that a Government purchase card could be used but by my read there would be the need for a supporting "agreement". I am of the conclusion that for the example used ins this thread, an expenditure of $3,500 or less, that the effort to comply with the whole of the OT Guide would be very exhausting. Also I would add that if OT would fit most if not all of us would have trouble releasing ourselves from the FAR principles which again would not apply. Heck the Guide even provides mention of some that are terms at least borrowed from the FAR such as market research, competition, advance payments, etc. and I might add FAR you even go back and forth in trying to figure where something like Kickstarter really lands. More shoehorning? Learning and adapting the new ways is a must but trying to separate from the old ways when doing seems to be hang-up! PS - To Joel - Like any transaction to which the Federal government enters into with a commercial source, yeah maybe but it depends on the situation. Dodge of your question I do not think so as sometimes something makes economic and administrative sense and sometimes it does not.
  15. No Meaningful Discriminators

    All things being equal make a recommendation to the SSA that Team believe is appropriate. Maybe a too simplistic view but I wonder if you answered your own question especially when considering a restatement of a basic view of GAO that goes something like this - our Office will not question an agency’s evaluation where it is reasonable, consistent with the solicitation’s stated evaluation criteria, and is documented."
  16. Kickstarter and the GCPC

    Square peg into a round hole? Trying to fit Kickstarter requirements into those of the FAR would be "lot of work". Already noted is the impact of FAR part 32 if the effort is below the SAT. Thinking bigger brings into consideration FAR part 35 and even possibly FAR 31.205-18. Cleary there is intent by the Federal government to be active in the world of R&D, some agencies are appropriated funds for this specific purpose. Kickstarter would seem to fit. I really wonder, at least at this point in time, if it is more effort than it would be worth to make the FAR requirements align with Kickstarter to accomplish the effort. Using the parameters of this this thread (micro-purchase level) and as already stated in this thread of sorts, why not just wait until Kickstarter is successful in creating something and then buy the dang thing? Of course there is the tried and true way of not wringing hands and just use the card, spend the money and wait for a possible end widget. Easily said and easily done but for me the bigger consideration is well heck I (as the program area) did it (that is fund a R&D procurement) with a government card to Kickstarter for a micro-purchase, now I want to do if for something within the SAT as a single source or better yet do it for something over the SAT on a sole source basis. Again the square peg into the round hole comes to mind especially when considering marrying FAR with that administrative and terms and conditions of Kickstarter. Someday it will happen but I am thinking that the "lot of work" is going to encompass the entirety of the FAR principles from market research to the end game of an awarded contract as from my chair there is more to it than simply can the government purchase card be used.
  17. ContractingPeoples - I do not want to make more of this than should be but the following statement you made needs some expansion with regard to a response in my view..... Everything stated in this thread is factual and the answer is No nothing to cite to throw them out. However you may want to consider the matter of "Affiliation". As certification for a Federal procurement occurs at time of offer and if in that offer the small business indicates that a large business will be doing 99% of the work a CO might be inclined to review the relationship of the SB to the LB to determine if there is the hint of affiliation. If affiliation seems to be present you may protest the contractors certification to SBA (FAR 19.302).
  18. Kickstarter and the GCPC

    Don - Prohibited by regulation. It is a form of contract financing. Reference FAR 32.003 but as stated unless agency regulation otherwise permits.
  19. The previous post in this thread has failed to mention that in a further read the quoted January 2001 rule had a subsequent interim rule - FAC 2005-21 (website reference below) and in part quoted below, and a final rule (website reference also below) in which language regarding real estate was not changed in the FAR from that found in FAC 2005-21. Interesting how application would occur once the estimated contract value and method of contracting are determined with regard to the specific situation stated by the OP. https://www.federalregister.gov/documents/2007/11/07/07-5481/federal-acquisition-regulation-far-case-2001-004-exemption-of-certain-service-contracts-from-the http://www.wifcon.com/2009/2001_4_final.pdf A. Background On January 18, 2001, the Wage and Hour Division of the U.S. Department of Labor's Employment Standards Administration, issued a final rule amending the regulations at 29 CFR part 4 to exempt certain contracts for services meeting specific criteria from coverage under the SCA (66 FR 5327). The Councils opened FAR case 2001-004 to implement the Department of Labor (DoL) rule. The FAR currently exempts contracts (or subcontracts) principally for the maintenance, calibration, or repair of certain equipment if…… In addition to this first category of service contracts, in order to implement the new DoL regulations, the FAR interim rule establishes a new category of exemption for contracts for certain services that includes the following:…….. Transportation by common carrier of persons by air, motor vehicle, rail, or marine vessel on regularly scheduled routes or via standard commercial services (not including charter services). Real estate services, including real property appraisal services, related to housing Federal agencies or disposing of real property owned by the Government. Relocation services, including services of real estate brokers and appraisers to assist Federal employees or military personnel in buying and selling homes (which shall not include actual moving or storage of household goods and related services). In order for these contracts for services to be exempt, the contract must meet all the criteria for the other services in the first category (substituting “services” for “item of equipment” in the first criterion, and removing other specific references to “equipment” and “manufacturer”), BUT THE CONTRACT MUST ALSO MEET THE FOLLOWING CRITERIA (emphasis added): The services under the contract (or subcontract) will be awarded on a sole-source basis or the contractor will be selected for award based on other factors in addition to price or cost, with the combination of other factors at least as important as price or cost in selecting the contractor. Each service employee who will perform the services under the contract (or subcontract) will spend only a small portion of his or her time (a monthly average of less than 20 percent of the available hours on an annualized basis, or less than 20 percent of available hours during the contract period if the contract period is less than a month) servicing the Government contract (or subcontract). The contracting officer (or contractor with respect to a subcontract) determines in advance, based on the nature of the contract (or subcontract) requirements and knowledge of the practices of likely offerors, that all or nearly all offerors will meet the conditions. If the services are currently being performed under contract (or subcontract), the contracting officer (or contractor with respect to a subcontract) shall consider the practices of the existing contractor (or subcontractor) in making a determination regarding the conditions. The apparent successful offeror certifies, the contracting officer has no reason to doubt the certification, and the contracting officer determines that the same certification is obtained from substantially all other offerors that are— In the competitive range, if discussions are to be conducted (see FAR 15.306)(c)); or Considered responsive, if award is to be made without discussions (see FAR 15.306(a)). Council representatives discussed with DoL the implementation of the DoL rule for these contracts for services at the point of receipt of offers. The FAR rule attempts to minimize the occurrence of the situation in which it will be necessary to revise the solicitation after receipt of offers to remove the exemption provision and require use of the SCA clauses, even though the apparent successful offeror certified to criteria for the exemption. The FAR rule uses the term “substantially all” to indicate that there could be a slightly different interpretation of the phrase “all or nearly all” than at the beginning of the process. DoL concurs that the contracting officer will have the discretion to interpret this term, as long as the intention reflected in the preamble to the SCA regulations (66 FR 5327) controls the contracting officer's exercise of discretion. DoL also concurs that it is not necessary to consider offerors that did not certify if these offerors were not in the competitive range or not responsive. Therefore, the FAR rule adds this condition when considering whether substantially all offerors have certified……
  20. Vern – In trying to wrap my head around this one do you think the below is off base and if so why? The Service Contract Statute requires that certain service contracts are “subject” to the statute (41 USC 6702) and in the end when you hash out the FAR and the CFR it is left to the contractor and not the Government as to which individual employees under a service contract the Statute (and related CFR) would be applicable based on limitations, variations, tolerances and exemptions that may apply. I know it is cherry picking to an extent but one reference from the CFR you have provided, specifically 29 CFR 4.156 seems to suggest this as well in that it states certain employees “are not excluded from coverage” if they cannot meet the test of 29 CFR Part 541. Noting this would not the response to the OP’s question be something like this? The exemption of 22.1003-4(d)(1)(vi) as well as other exemptions of the FAR and the related 29 CFR may apply but such exemptions are left for the contractor to determine. The procurement itself is “subject” to the Service Contract Statute as it is for a service as included in the Statute and therefore you are limited to the $2500 threshold.
  21. Providing the following for information only AND NOT to imply there is a dollar threshold for doing price analysis.….I have just heard of folks applying the following FAR guidelines in the manner you have stated for a commercial item. The references to other parts of FAR Part 15 are important to look at as well to get a full view of the specific paragraphs I have quoted. FAR 15.400 states - This subpart prescribes the cost and price negotiation policies and procedures for pricing negotiated prime contracts (including subcontracts) and contract modifications, including modifications to contracts awarded by sealed bidding. FAR 15.403-3 (c) Commercial Item states - At a minimum, the contracting officer must use price analysis to determine whether the price is fair and reasonable whenever the contracting officer acquires a commercial item (see 15.404-1(b)). The fact that a price is included in a catalog does not, in and of itself, make it fair and reasonable. If the contracting officer cannot determine whether an offered price is fair and reasonable, even after obtaining additional data from sources other than the offeror, then the contracting officer shall require the offeror to submit data other than certified cost or pricing data to support further analysis (see 15.404-1). This data may include history of sales to non-governmental and governmental entities, cost data, or any other information the contracting officer requires to determine the price is fair and reasonable. Unless an exception under 15.403-1(b)(1) or (2) applies, the contracting officer shall require that the data submitted by the offeror include, at a minimum, appropriate data on the prices at which the same item or similar items have previously been sold, adequate for determining the reasonableness of the price. (2) Limitations relating to commercial items (10 U.S.C. 2306a(d)(2) and 41 U.S.C. 3505(b)). (i) The contracting officer shall limit requests for sales data relating to commercial items to data for the same or similar items during a relevant time period. (ii) The contracting officer shall, to the maximum extent practicable, limit the scope of the request for data relating to commercial items to include only data that are in the form regularly maintained by the offeror as part of its commercial operations. (iii) The Government shall not disclose outside the Government data obtained relating to commercial items that is exempt from disclosure under 24.202(a) or the Freedom of Information Act (5 U.S.C. 552(b)). (3) For services that are not offered and sold competitively in substantial quantities in the commercial marketplace, but are of a type offered and sold competitively in substantial quantities in the commercial marketplace, see 15.403-1(c)(3)(ii). (ii) Purchasing a supply or service for which no comparable pricing information is readily available (e.g., a supply or service that is not the same as, or is not similar to, other supplies or services that have recently been purchased on a competitive basis). Again providing this only because I have heard of its application in the manner you have noted.
  22. Thanks Retread.....FAR 44.402 provides for mandatory clauses. Per the same subpart the Government has the iallowance (may) to include other clauses as appropriate. Likewise a prime may include clauses they prefer in their subcontracts. As to those that the Government and a prime may feel obligated to include I will leave it to each to determine. For me it is a slippery slope if by example the Government and the prime elect not to include 52.224-2 in certain prime/subcontracts to which the Privacy Act would be applicable. Right, wrong or in different application of FAR who knows as by example of statements in this thread the dang clause (224-2) may end up in the prime/subcontract anyway. That is it!
  23. “When an agency provides by a contract for the operation by or on behalf of the agency of a system of records to accomplish an agency function, the agency shall, consistent with its authority, cause the requirements of this section to be applied to such system. For purposes of subsection (i) of this section any such contractor and any employee of such contractor, if such contract is agreed to on or after the effective date of this section [9-27-75], shall be considered to be an employee of an agency.” 5 U.S.C. § 552a(m)(1).
  24. Vern – Your thinking to get to the conclusion to include the clause 52.224-2 in subcontracts of the prime is understood with but my read is that 44.402 is less than clear and inconsistent with its own direction. As such I believe, in a departure with your view, that 52.224-2 is to be flowed down as a contract obligation. Policy as stated in 44.402(a)(ii) is subcontractors shall not be required to apply any clause to their subcontracts except those “(i) Required to implement provisions of law or executive orders applicable to subcontractors furnishing commercial items or commercial components” . FAR 52.224-2 is required by law when applicable and is not simply an agency unique requirement yet 52.244-6 does not include it. I find it inconsistent with FAR stated policy at 44.402 and by direction of 52.244-6 that 52.224-3, inclusive of it’s Alt 1, is to be flowed down “when” contractor employees have access, create, design a system that includes privacy information but 52.224-2 is not. I do understand the whole of this thread so there is no need to go further, it is just my opinion as to the obligation of the prime to include a clause such as 52.224-2. Another such clause is 52.223-18. As such I am not as confident as you and others in this thread that the meaning of 52.244-6 is a clear contract clause in putting forth the policy stated in FAR 44.402. That's it.
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