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C Culham

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  1. 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.
  2. 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……
  3. 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.
  4. 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.
  5. 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!
  6. “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).
  7. 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.
  8. 1. No 5. Yes 6. Yes 7. No 52.224-2 is in the contract as a separate clause
  9. If I have read correctly conclusions of this thread is that DCMA may not be doing an adequate job of understanding and providing advice on implementation of the FAR with regard to clauses and contractors should know and understand the FAR in the conduct of government business. Raised as well is whether the FAR in and of itself provides less than adequate and clear advice on the specific matter of flow down of clauses to subcontracts for commercial items/components. As illustration of the latter consider the wording in FAR 52.224-2 Privacy Act at paragraph (a)(3) and balancing the Privacy Act clause with FAR 52.244-6,especially that at paragraph (d), and the language of FAR 44.402(b)? FAR 52.224(a)(3)....... Include this clause, including this subparagraph (3), in all subcontracts awarded under this contract which requires the design, development, or operation of such a system of records. Shall a prime contractor include or not include FAR 52.224-2 in all subcontracts or not?
  10. Unreasonable Price

    Vern - I agree yet I am trying to understand the comment? Are you saying that "complex"ity of the work determines whether the supply, service, or construction project's price is fair and reasonable? I am probably not getting it but I thought the discussion of this thread was what approach to looking at an offer - objective and subjective - might apply with regard to determining fair and reasonable price?
  11. Unreasonable Price

    I would agree. My view may be too narrow whereby I have not dedicated a lot of time to thinking about the matter. But my conclusion is based on this. Consider an award of of a simplified acquisition based solely on price, or a sealed bid.
  12. Questions Regarding Net-60 Payment Terms

    A couple of links that you might find helpful………for the first link go to the menu on the left had side and go to "Prompt Payment". For the second link do a search of the document on "60" for discussion about the cost of money. https://www.fiscal.treasury.gov/fsservices/gov/pmt/payments_home.htm https://www.asaonline.com/eweb/tcc/TCCJan2015/tcc_2015_Jan.pdf
  13. competitor not performing

    I agree with Gordon Shumway. Additionally there might be legal options for a competitor who was not the successful offeror in a competition but would the legal arguments be made on sound facts. In some cases where there is smoke there is fire but in others, which I might suggest are in the majority based on first hand experience, the word coming back could very well be without basis. Move along and concentrate on being successful on the next competition!
  14. Set up the two BPA’s, that simple. – REF: FAR 13.303-2 Each need over the micro purchase level is then competed amongst the two BPA holders and if you think the BPA’s DO NOT provide for adequate competition for a particular call then you follow FAR Part 5. REF: FAR 13.303-5(d) Absent other information and if “with only two local firms that do this sort of repair work.” is in fact a very limiting factor on getting other competition it might be true that every time you have a need and competing with the two firms is adequate competition. Only other thought would be doing a “Sources Sought” synopsis to assure yourself that the 2 firms are the only game in town. If you find additional firms then you could have more BPAs if you very that there are no other firms it will support that the 2 firms are the only game in town and the adequate competition policy.
  15. Increasing Rights in Software--> In-scope Change?

    Onix Networking Corporation B-411841: Nov 9, 2015 "In determining whether a modification is outside the scope of an underlying contract (or in this case, a delivery order), our Office considers whether there is a material difference between the modification and the contract. DynCorp Int’l LLC, B-402349, Mar. 15, 2010, 2010 CPD ¶ 59 at 6; MCI Telecomms. Corp., supra. Evidence of a material difference is found by reviewing the circumstances attending the procurement that originally was conducted, examining any changes in the type of work, performance period, or costs between the contract as awarded and as modified, and considering whether the original solicitation adequately advised offerors of the potential for the type of work contemplated by the modification. See Anteon Corp., B-293523, B-293523.2, Mar. 29, 2004, 2004 CPD ¶ 51 at 5. The overall inquiry is whether the modification is of a nature that potential offerors reasonably would have anticipated competing for the goods or services being acquired through issuance of the modification. Id." Found in an array of decision found here - http://www.wifcon.com/pd6_001.htm Seems I am convinced too. As Joel has said go for it!
  16. Generally speaking the agency would have to refer for a COC however details count so you might want to read the cases in this area of WIFCON. http://www.wifcon.com/pd19_6022.htm Is this the reference you noted? https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2015cv1550-35-0 If so my read of the of the decision is a little different than yours as it relates to the COC. My read is that is was concluded by the court that the agency was proper in referring Enviroworks for a COC where another contractor Lawson thought they should not be and in so doing a COC was granted even though it might be concluded that Enviroworks key personnel did not meet the pass/fail test. Yes I guess the situation could occur. But my view is that it is a double edge sword so to speak. If I was the contractor left in competitive range I would be happy if such a situation occurred, if I was the contractor that was eliminated, well I would be unhappy if I knew the situation to be factual true, but proving it to be factually true to the point where I would protest would difficult I would think. Seems the above noted COFC case demonstrates how hard it would be to prove. PS - Bob just beat me to the punch on the WIFCON reference but since I went to the effort to type this up I am posting anyway.......
  17. I think this previous discussion will help........
  18. Superior knowledge

    rsenn - Are you sure? From experience of being a CO on a variety of service contracts or involved in others from tree planting , janitorial, commercial laundry, to a nationwide IT support some how your quote does not ring true to me. From my view the Government describes work to be done or now days the end result expected and the contractor develops the labor mix they feel will accomplish the work or in other words develops the labor category descriptions they expect. Hopefully the contractor uses the most current Service Contract Directory of Occupations to assist so the employees are properly categorized in the appropriate SCA wage occupation for the work they will be performing. By simple example the company running a nursery for the Government hires what they call a "forestry technician" but that position is truly doing what the Directory calls a "tree planter, mechanical" and hopefully the contractor is paying at that rate (or more). A successor contractor then decides not as many tree planters, mechanical are needed but intends to use "tree planters" (more of them probably) and makes offers to the incumbent employees to work at a lessor rate on the same contract, running the nursery. To me a simple example to my aforementioned "Also the new contractors approach to the service may actually have less staffing", or different staffing approach, so I get lost in how the superior knowledge applies. It would seem the contractor has the superior knowledge of how they intend to perform the work. Using my example it would seem to me that the only way your position would be supported is if the solicitation were to specifically state that a contractor must have X number of "tree planters, mechanical " to perform the work. In this new world of performance based contracting I would think such a situation would be rare. But again that is just how I see it. Hope this helps.
  19. So from a different angle with no history research done on the clause. While Federal government contracts are with a contractor and not its employees United States Federal contracting labor laws clearly are intended to protect the rights of contractor employees. By example FAR 52.222-43 allows for the adjustment you are concerned with if the contract is performed in the United States. The ingrained protection for the worker is that if they are not paid the proper SCA stipulated wage and benefit after the contractor is subject to the wage/benefit adjustment and verifies that they need a contract adjustment allowed by the clause the worker can file a claim with the DOL. Bottom line from my quick review of the questioned clause and application of what would happen in the United States, Federal contracting regulations are not quite as concerned about worker protections for contracts performed outside the United States.
  20. Did you read through these before posting your questions? http://www.wifcon.com/pd15_305.htm Does FAR 52.215-1 include Alternate No. 1? Did you read FAR 15.307?
  21. Superior knowledge

    I agree with the conclusion that it is not a matter of superior knowledge. I would add that FAR subpart 22.12, and Its supporting EO also provide a benefit to the government in that use of predecessor employees could be concluded as being efficient. The government should be concerned in the process of solicitation of the need that the incumbent does not start robbing (my term) employees in the preceding period to possible new contract to shelter them from the requirement of first right to a possible new contractor. Also the new contractors approach to the service may actually have less staffing. So might the incumbent for that matter. All in all in my view since there are so many considerations for each contractor to make as well as the government I just don't see how superior knowledge fits.
  22. R&D contracting

    Another possible place to gain assistance, especially if your pen name gives away your agency, is to keep within the civilian side and an agency of the USDA and visit with the folks at USDA-ARS as it is my experience that they have quite a bit going on in the research side. Been a while but I did find this possible starting point for you..... https://www.afm.ars.usda.gov/aboutafm/apd/
  23. FrankJon - Noting the quoted fact I am at an impasse in trying to provide my thoughts absent what the language is in the BPA's about selecting contractors for Calls. I will say I am concerned you might be trying to use an innovative process when something else is already stated in the BPA's as to what the process should be.
  24. I am going to only address your specific example. By my read you are contemplating multiple GSA-FSS BPA’s and the intent is to place a process the BPA's to fairly consider quotes to award a call against the BPA’s. Also assuming that your anticipated Calls will be in excess of the SAT. With this in mind your proposed approach is way beyond FAR 8.405-3(c)(2)(iii)(A)(3) in my view which simply says this (emphasis added)… “(3) Fairly consider all responses received and make award in accordance with the selection procedures.” I applaud your attempt to think of applying an innovative idea but quite honestly you have much more leeway to “utilize an evaluation scheme that is more streamlined, intuitive, and flexible than trade-offs” already. You just need to fairly consider the quotes you would get to finalize the call. So what do you need to do to fairly consider the quotes? Well you could use your approach but it in my view does attempt to utilize a process that is almost like FAR Part 15. You use words like factor, pass/fail and risk suggest this. Instead of your approach why not this…. Go here… http://www.wifcon.com/discussion/index.php?/topic/3940-quotes-vs-proposals/ ….read the thread and then think about the post Napolik made on April 11 and consider how you might easily convert the ideal into a fairly considering quotes for the Call and how you might state selection process in the BPA's.