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C Culham

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Everything posted by C Culham

  1. But do you find it salient that the solicitation was called an "RFP"? I will do some searching.
  2. My opinion broken down as best I can. Along with FAR 6.204, FAR 6.302-5 and the DoD Partnership Agreement SBA on the 8(a) Program is still applicable. I would agree that IF the process you have questioned was a part of the process not documenting is not prudent. But that does not mean the process was not prudent. In part why the 8(a) program is a valuable tool in the tool box. Is there a prohibition stated in the FAR references you have provided along with those I have that prevents this specifically for 8(a)? An agency in a what I will call a competitive atmosphere can post a draft solicitation in SAM.gov where comments are solicited can not the same be done with a draft solicitation in a sole source atmosphere? References to consider FAR 1.102(d) and https://dodprocurementtoolbox.com/cms/sites/default/files/resources/2021-07/SOP Publicizing Notices July 2021 (2) (4).pdf And in the end does the government have to accept any changes to "draft" based on comments received or just leave everything as is? IN my opinion I see nothing "wrong" the process you describe nor any specific regulation that prevents it. Probably not even policy. 8(a) sole source affords wide latitude. In providing my comments I could for see telling the 8(a) that if negotiations fall through and requirement is removed from the 8(a) program and converted to a competitive process that they cannot compete for it but I have no specific reference to support this view. It just seems to make good business sense.
  3. I have a opinion based on experience but before I offer it. As you are using a statutory authority to do sole source why do you see a problem with the "usual"?
  4. @Sam101 This might help. First read FAR 2.101 (a) & (b). The read 52.215-1 and watch for "discussions".
  5. The example leaves out alot of details that I would want in formulating my CO actions for a specific instant procurement yet based on the general details provided in the example as the CO I would not have selected Company A so I would not have been a protest situation in the first place. My conclusion is based on the information provided that seems to support C must have been doing ok work based on the quantity C had been awarded via an order or orders so their staff and performance was okay as well. If the program area was still bent on only having A I would walk them through the knot hole of a separte GSA FSS competition outside the BPA, which again does not guarantee A, or as a separate GSA FSS Limited Source order (FAR 8.405-6) outside of the BPA if the program area could support it. No doubt there is a risk witih regard to a protest for the latter even if I thought the Limited Source Justification was bullet proof. Oh well. All considered I will simply borrow, in part, from another post from @ji20874 - If a "ceiling/estimate" is stated it would be only fair to respect it. As to "estimate" versus "ceiling" I am concluding that the terms mean the same thing. Afterall FAR 8.405-3(a)(iii) is comfortable in using "estimate".
  6. My view - For a BPA issued prusuant to FAR subpart 8.4, sure orders could be placed. One could imagine a possible protest if the agency did not fulfill its annual obligation to review the BPA. Reference - FAR 8.405-3(e) Review of BPAs. (1) The ordering activity contracting officer shall review the BPA and determine in writing, at least once a year (e.g., at option exercise), whether- (i) The schedule contract, upon which the BPA was established, is still in effect; (ii) The BPA still represents the best value (see 8.404(d)); and(iii) Estimated quantities/amounts have been exceeded and additional price reductions can be obtained. (2) The determination shall be included in the BPA file documentation. Sustainable protest? Who knows. Refusal would depend on the wording of the BPA. Such as is there a expressed unilateral right of the government to issue orders stated in the BPA and what are the sideboards to such right. Rights would be fact specific to the guiding principles of the FAR, the agency's actions or lack thereof, and the wording of the BPA itself. The magic words of Federal contracting - It Depends. As to the 20% I have never heard of it, might be fact specific to a particular protest and I find nothing in the FAR that elludes to the caveat.
  7. Your interpretation is off a bit. The form for the order will be dictated by other policy or regulation that might include that from a "system" and/or fiscal side. So something might be dictated such as a 1155, 1449 or something else. Example go here, look at the 101 references to "order" and see how orders are placed for an Incident Blanket Purchase Agreement. https://sam.gov/opp/c1c21f2570164d07a745a8be01b8173a/view Posed another way is it not just like any other procurement where you, as a CO, can not use any form you want to accomplish a procurement/payment you must use something that is prescribed or implemented by a "system" by your agency or department?
  8. @CldGrl22 ji20874 has sent you in the right direction. Just a couple more thoughts on what you might want to prepare yourself for what you may encounter. Based on experience. HR may want to send you in the direction of a temporary detail depending on the anticipated length of effort or they may just say do it. Either way the CO should consider the possibility of a non-disclosure/conflict of interest agreement or certification with the individual. If you or your agency has never the encountered the need for such an agreemetn search the internet you will find examples. I do know that the General Services Administration suggests one. See GSA's FAR Supplerment GSAM 515-305. Easy with usual government bureacracy attached especially if plowing ground never plowed before.
  9. Mutual agreement of both parties? After all is not a contract a living document and if something is not working that affects one party enough that both parties agree we need to do something different to make the project a success can not it be done? To be clear with regard to this particular thread I am not suggesting just putting a bunch of money into a contractors pocket I am taking about reasonable adjustment to the contract because it makes sense - good faith. And of note good faith may suggest that the contractor should be as aware of reimbursement for taxes as the government is! Anyone can read the FAR principles!
  10. A simple search of SAM.gov just now on "BPA" "Active" and "Inactive" yielded 27,010 hits!
  11. It's the fact of life, not authoritative a simply fact! I have provided a view of what may be going on. As I stated in my initial post the requirement of what to use to make a call is stated in the BPA. The crafter of a BPA (and any policy that so guides it) then dictates what that will be. Don has provided some history on how procurements at or below the simplified acquistion threshold have evolved to help. So in the end the FAR, agency policy regarding BPA's and the systems that are employeed to create fiscal and acquisition responsibility (control and reporting especially) are what plays into what constitutes a "call" under a BPA. In my stubby pencil days way back we would create anything we wanted that would constitute a "call". And I am serious, home baked forms, a log, etc. The aforementioned reasons have now changed that on the premise of needing controls and I am going to bet that the reasoning for a 1155 or 1449 has to do more with systems and accountability. By example you have plowed the FAR and its tenicles (the DAFI is one in my view) to find your magic answer but have you plowed fiscal policy and what it demands? To set up a charge account as you have noted. Heck the FAR even says so. But in the world of "innovative" CO's who are looking at ways to control competition, make life easier for all, avoid having to obligate minimums on IDIQ's (because their use and control was not understood has reached a lower standard), and in truth just do not "get it". So now you have folks wanting to set up BPA's for all kinds of stuff and lots of them that deal with procurements way above the SAT (as you have noted). If you have a BPA that does not have specific and established pricing for a specific service or product do your really want any Tom, Dick or Harry making calls against a it with little or no oversight and established controls to appropriately capture the calls in reports and insure they are appropriatly using the BPA? Think about it! That doen't even with a GPC pursuant to the very reference you have provided - the 96 pages of the DAFI.
  12. When the BPA says so. You need to ask whomever issued the guidance. Pursuant to FAR 13.301(c) the GPC could be used but providing the authority to do so begins with delegation of authority a Certification of Appointment of a Contracting Officer. All in all a read of FAR subpart 13.2, FAR 13.301 and FAR subpart 1.603 should hopefully help in your understanding.
  13. @lawyergirl @ji20874 @Neil Roberts My thoughts. While the FAR does not require a ceiling limitation it implies one could set one. If one is set when the limitation is accomplished the BPA is considered complete. FAR 13.303-7. By my read there is no 20% cushion so to speak.
  14. Or maybe said another way...contractors risk increases therefore a higher profit is proposed as reasonable?!?
  15. No rile. My comment is based on the observation that trainings do mention FAR part 12 but it seems such mentions are fleeting to me as they concentrate on FAR 15 like procedures. Still not riled. They should but as the acquistion staff has to have some modicum of what they are buying the team should have some modicum of what the acquisition process is or can be.
  16. Well I will probably be the cause for another at length discussion. First I want to acknowledge that everything is fact dependent and therefore it probably depends. Okay I am cheating a bit to leave myself wiggle room yet here is my thought. FSS Contract and other IDIQ's provide for a minimum quantity (consideration). I do not disagree, pursuant to GSA clause I-FSS-646, that it places the FSS contractor in the position to accept a BPA if an agency wants to issue one. However I find nothing in the clause language that then requires the Agency to then use the BPA. It would seem that there needs to be further mutual consideration to make the BPA a "contract". Or stated another way without explicit language to the contrary and with a minimum accomplished on the GSA FSS could not the agency go through the effort to establish the BPA and then just turn around and do a separate effort to award an order under the same GSA FSS contract, or for that matter an open market procurement, with the same GSA FSS contractor for the same thing that is on the BPA? On the same line of thought must the GSA FSS contractor always honor the discounts that they offer in the BPA, which by my read is the intent to have a GSA FSS BPA, when the agency attempts to order under the BPA or could they offer further discounts or no discount at all on an order that the government attempts to place via the BPA arrangement? Now I will quickly go back to other matters at hand and just leave my thought for everyone to ponder because as it goes GAO has spoken.
  17. I could not find any but that is not to say they do not exist. Just to keep the can of worms open I could buy in to the proposition that GSA FSS BPA is simply the establishment of a charge account within the GSA FSS Contractors contract therefore the order becomes the contract.
  18. Maybe the lynch pin and maybe not but training. Show me one required course for acquisition personnel that is strictly and succinctly about commercial product and service acquisition. They may well exist and Don may well show me the way but my experience suggests "commercial" gets just a modicum amount of exposure in all the required courses. Realted? Maybe yes, maybe no but I do wonder about this - FAR 12.207(a) "Except as provided in paragraph (b) of this section, agencies shall use firm-fixed-price contracts or fixed-price contracts with economic price adjustment for the acquisition of commercial products or commercial services." Is there really no equal to a cost reimbursement contract in the commercial sector and does this limitation create an expensive twist to using FAR part 12? Overplayed, overstated yet guidance that is not taken to heart - "The Acquisition Team". Yep pie in the sky but seriously the very example provided in the article reflects to me that the mission program area simply tossed something over the cubicle wall for acquisition to handle and walked away hoping and expecting that they will get their food service. But as the article suggests even the most reasonable person would wonder why it takes so much paper to make it happen. Did the mission/program people even read the solicitation and understand what they must administer from pre-solicitation, award, post award and completion. It is their project, their mission, they should have a huge say in the acquisition.
  19. @Minnen As I follow threads things are triggered in my head. Here is another reference you might find interesting. It is reminder one can find some subjects already discussed at length in WIFCON.
  20. @Freda515 As you attempt to answer the questions posed in this thread by others you may want to take a gander at this WIFCON resource, noting that it does address "multi year" contracts. https://www.wifcon.com/bonafidecontents.htm
  21. I believe your situation is very fact dependent. Noting this I just posted this on another thread. " For a fun read do a search on this - 2023 Contract Attorneys Deskbook.pdf - then search the deskbook for "unauthorized commitment"."
  22. You are welcome. For a fun read do a search on this - 2023 Contract Attorneys Deskbook.pdf - then search the deskbook for "unauthorized commitment". Enjoy.
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