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C Culham

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  1. I understand but my comments were made in the light of establishing a position classification series within the appropriate OPM series that was specifically for COR's. In my view the series fits. Lots of examples of similar within the OPM Series system - 0600 - Medical, Hospital, Dental and Public Health Group - Medical Officers 0602, Physicians Assistant 0603. Series 1100 Business and Industry Group - 1102 Contract Specialist, 1106 Procurement Assistant, why not 11XX Contracting Officers Representative especially in this new world where the COR is expected and this thread opened to do a lot of heavy lifting? think of a new paradigm. Would it make things easier who the heck knows but worth a shot.
  2. Flawed thinking. HCA's, Head of Agency and others could appoint COR's, correct? COR's have positive position requirements do they not? I have always wondered why not something like this..... 1102 - Contracting Officers Representatives All applicants must meet the following basic requirements for all grade levels: Graduation from an associate or full degree program that is accredited by an accrediting body or organization recognized by the U.S. Department of Education at the time the degree was obtained. Successful completion and certification that meets either all DoD COR training and experience requirements or Federal Acquisition Certification-COR training and certification requirements.
  3. Interesting. Having waded in the waters COR a long time back I am rusty. So the recollection comes slowly. Another interesting read is to do an internet search on "OPM Classification Appeals + Contracting Officer Representative" Will it settle anything? NO! However, doing so might give further insight.
  4. I remembered it, I found it....not a new problem. https://www.mspb.gov/studies/studies/Contracting_Officer_Representatives_Managing_the_Governments_Technical_Experts_to_Achieve_Positive_Contract_Outcomes_224103.pdf
  5. Without details I find this part of the discussion to be interesting and based on a view that is absent a lot of facts from the OP. I just wanted to note in the light of the repeated position of GAO that the determination of competitive range is a primarily a matter of the agency's administrative discretion which is not usually questioned unless there is a clear showing of arbitrary abuse of discretion. I hope the OP's agency acquisition team is referring to case law to develop their position on arriving at the competitive range, holding of discussions, and final award determination including the consideration of adjustment to the "ceiling".
  6. I suspect the absence of responses to your question is due to the fact that while your question seems direct and simple it actually presents a very large onion of facts that would need to be peeled back to formulate an appropriate response. Like many questions related to contracting the general statement of "it depends" applies.
  7. I would suggest a prime not just rely on self certification. Why? In SAM "exclusion" listing is separate from "registration". I experimented with SAM and believe my comment to be true. Try it yourself. Search SAM on "RDIF Company". It appears they are on the exclusion list and not registered.
  8. If after the discussion in this thread regarding competition and unacceptable proposals you conclude that you will only be dealing with the one contractor that offered CLIN pricing that exceeds the ceiling here are some thoughts. So what is the amount to be obligated? Should it not be the minimum guarantee not the ceiling? If so cannot the the ceiling be adjusted based on negotiation? Here is a GAO Redbook quote that may help.... "...unlike a contract covered by FASA, an IDIQ contract does not obligate the government beyond its initial year. Rather, it obligates the government only to order a minimum amount of supplies or services. The cost of that minimum amount is recorded as an obligation against the appropriation current when the contract is entered into." The quote is based on "Analysis" found in this decision https://www.gao.gov/products/b-302358
  9. I enjoy researching subjects with my limited capabilities. I agree with the comments in the thread. I would offer one further comment. Internal regulation or policy may have an impact on a decision and action by a CO as well. I do realize the OP states "DoD" yet there are several entities in DoD. By example the below from the EPA FAR supplement seems to add some additional considerations a CO would have to make if with EPA. Does something exist within DoD? I do not know just noting to express my view that I would suggest the OP may want to do some research internal to his or her organization beyond a reach to WIFCON. "1517.207 Exercise of options. (a) Unless otherwise approved by the Chief of the Contracting Office, contracts for services employing option periods shall require that a preliminary written notice of the Government's intention to exercise the option be furnished to the Contractor a minimum of sixty (60) calendar days prior to the date for the exercise of the option. Failure to provide such preliminary notice within the timeframe established in the contract waives the Government's right to unilaterally exercise the option and requires the negotiation of a bilateral contract modification in order to extend the period of performance, where such an extension is authorized. (b) When the term of the service contract coincides with the fiscal year and delays in receipt of authority to obligate funds for the new fiscal year are anticipated, the Contracting Officer, if the contract so provides (see FAR 17.204(d)), may, within 60 days after the end of the fiscal year, unilaterally exercise an option to extend the term of the contract. The option may be exercised only if funds become available within the 60-day period. In the event that sufficient funding is not available within the 60 day period, the Government waives the right to exercise the option, thereby rendering any additional requirements subject to full and open competition requirements. (c) The Contracting Officer, if the contract so provides, may, subject to the conditions in FAR 17.204(d), 32.703-2, and 32.705-1(a), exercise an option contingent upon the availability of funds. To exercise such an option, the contract must contain the clause in FAR 52.232-18, Availability of Funds. Under no circumstances shall any action be taken which could be construed as creating a legal liability on the part of the Government until a formal notice of availability of funds in the form of a contract modification has been issued by the Contracting Officer."
  10. Here? Emphasis added. Federal Acquisition Regulation "16.504(c)(ii)(A) The contracting officer must determine whether multiple awards are appropriate as part of acquisition planning. The contracting officer must avoid situations in which awardees specialize exclusively in one or a few areas within the statement of work, thus creating the likelihood that orders in those areas will be awarded on a sole-source basis; however, each awardee need not be capable of performing every requirement as well as any other awardee under the contracts. The contracting officer should consider the following when determining the number of contracts to be awarded:..."
  11. There is a "What Happened" topic in Forum for reporting outcomes.
  12. @PATRICK3 Consider for the future a search within WIFCON when you have a thought or question. Could save you some time and provide valuable reference.
  13. @Loul Continuing the theme of this discussion to simply provide resources I want to offer the following. I found them in a shallow dive of the internet. I suspect a deep dive may arm you with all kinds of information to aid in your discussion with the CO and legal counsel. This overall - https://www.navy.mil/Portals/1/Strategic/DON COVID-19 FAQs_28JULY2020.pdf?ver=2020-07-29-173512-653 Where these were referenced - https://www.secnav.navy.mil/donhr/Corona Virus Documents/DON COVID-19 Consolidated FAQs.pdf https://www.opm.gov/policy-data-oversight/covid-19/opm-frequently-asked-questions-regarding-the-resumption-of-normal-workforce-operations/
  14. I will echo that the issue is one best addressed with the assist of legal counsel. I believe "no mod" is a very important fact as you discuss with legal counsel. Acts of the sovereign, FAR Part 50, case law on constructive change, the EO, COVID legislation etc. etc. all rattle around in my head as to having an impact on you specific situation.
  15. This thread is rolling along in two topics. The OP may have answered your question in the Contract Administration topic area.
  16. So in following the thread this first jumped out at me. Never saw it really addressed so I wondered. No need to respond if my questions are already addressed and the discussion is getting to the meat of your concern. I am wondering as I saw "modification" mentioned only once in the discussion so far. Were the restrictions waived by a modification to the contract? If not was there contract language that allowed the government to waive and then reinstate unilaterally? It just seems to me if there was not contract language for unilateral waiver and reinstatement and the waiver/reinstatement was by modification, presumably a bilateral modification(s), unless the waiver/reinstatement was ordered via a change clause in the contract, then it would seem the door is open for your proposed modification already. This would seem true as well if the waiver/reinstatement was done under a changes clause.
  17. Picked the wrong quote. Intended to pick WiWaf's.
  18. NO the OP should just read the clause. The OP posted part of the language the clause (its never been stated but it looks it is 52.222-43). It might help to post the whole portion of the clause. Emphasis added. Its an "amount" of what the per hour change is for labor rate and fringe not what I will call a mathematical exercise of what happens to the contactors G&A, OH and Profit. T " (1) The Department of Labor wage determination applicable on the anniversary date of the multiple year contract, or at the beginning of the renewal option period. For example, the prior year wage determination required a minimum wage rate of $4.00 per hour. The Contractor chose to pay $4.10. The new wage determination increases the minimum rate to $4.50 per hour. Even if the Contractor voluntarily increases the rate to $4.75 per hour, the allowable price adjustment is $.40 per hour; (2) An increased or decreased wage determination otherwise applied to the contract by operation of law; or (3) An amendment to the Fair Labor Standards Act of1938 that is enacted after award of this contract, affects the minimum wage, and becomes applicable to this contract under law. (e) Any adjustment will be limited to increases or decreases in wages and fringe benefits as described in paragraph (d) of this clause, and the accompanying increases or decreases in social security and unemployment taxes and workers’ compensation insurance, but shall not otherwise include any AMOUNT for general and administrative costs, overhead, or profit."
  19. As noted by others my mission is to understand and apply. My final thoughts after reading and re-reading are - You continually quote "only applies to supply contracts". However is your read is too narrow? Most specifically this or similar is found throughout 25.1 "The supply portion of a contract for services" (my emphasis added). I would further offer applying the definitions of the FAR with regard to "construction" and "supply" would seem not to apply in the case of FAR 25. What does apply is "domestic construction material" and "domestic end product" do. Or in other words could a construction contract be a "service" contract that has a "supply portion"? Case in point, you say - Yet the leading general prescription found at 25.1101 where 52.225-6 is prescribed says - "The following provisions and clauses apply to the acquisition of supplies and the acquisition of services involving the furnishing of supplies ." Again my emphasis added. Further 25.1102 while referencing construction in general does get more specific by referencing "construction materials". I do not believe it is a stretch to think that a construction contract can have both "construction materials" - (again emphasis added) "Construction material means an article, material, or supply brought to the construction site by a contractor or subcontractor for incorporation into the building or work . The term also includes an item brought to the site preassembled from articles, materials, or supplies . However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies , not construction material ." And "end product" - "End product means those articles, materials, and supplies to be acquired for public use." And just to add complication. In 25.401 it discusses at (d) "services" excluded from FTA and 'dredging" is list yet at FAR Part 2 "dredging" is defined as "construction." Does not your expressed narrow read of "supply" not meet what I will call the final test where you say - By my read it does not. First the contractor may request use of foreign material and such material would be evaluated based on in part - an exception to the BAA. FTA is an exception so evaluation and determination is made both pre and post solicitation and award as well. In construction I would agree it does not decide a winner but it does decide if the material can be used under the contract either BAA compliant and if not then FTA compliant. This I agree with. But I believe the "stay in the lane" analogy is misplaced.. BAA applies to all contracts over the micro-purchase threshold. That is one lane. FTA supersedes BAA in some cases for example a construction contract above $7,032,000, which is another lane applicable to construction. Set aside for small business, excluded from FTA and only BAA applies, which I might call another lane. So it seems it pans out like this with the "canned" determination that BAA is waived for FTA designated country materials in FAR 52.225-11. Set-aside or not - contractor can not use post award a foreign material but can ask for it to be approved pre/post award. Set-aside - FTA does not apply and the material is only evaluated using BAA criteria. Not set-aside - CO uses criteria of FTA to determine acceptability. And then I will throw this out that during contract administration the CO, via inspection, has the post award ability to inspect and evaluate all material pursuant to 52.225-11.
  20. Gentlemen I get it but then I do not! I have an anticipated construction contract above $7,032,000. 1. It is therefore covered by WTO GPA correct? 2.The contractor is going to use a material from a foreign entity I have to evaluate that material for FTA because FTA applies does it not? a. If the contract was set-aside I do not have to evaluate for FTA, correct? 3.If evaluation for FTA is appropriate without 52.225-5/6 in the solicitation what authority do I have to do the FTA evaluation? With the above 3 questions posed, and in some quick research I will stop right here and simply offer the below reference. https://marketingstorageragrs.blob.core.windows.net/webfiles/Buy_American_Act_and_Trade_Agreements_Act_Overview_KLGates.pdf
  21. My head immediately went to SCA, successor, predecessor, wage determinations, equivalents for federal hire and beyond. Or stated another way no mention of the USDOL just the Federal Acquisition Regulatory Council. Oh the tangled web politics weaves for the acquisition process.
  22. I think separately and independently. Think 52.225-5/6 regarding FTA and 52.225-11/12 regarding BAA. I may be repeating what others have said but I think of it this way. 52.225-11 is a Buy American clause not a Trade Agreements clause. By prescription it applies to any construction contracts over $7,032,000 set aside or not. So I have a small business set-aside with an estimated value above the $7,032,000 therefore I must put the clause in the solicitation/contract. The small business is restricted to providing domestic material, but this restriction is waived for WTO GPA/FTA material and/or that material for which the CO has otherwise listed. Pursuant to the clause, and I guess I could say the FAR, all such material is therefore in compliance with BAA. If the contractor wants to provide material that is not in compliance with BAA the contractor can have the government evaluate whether it can be used by the particular contractor per the clause, again a BAA clause. Conversely if not a small business set-aside FTA compliant issues come into play as well because 52.225-5/6 will be in the contract/solicitation as well. Noted here that 52.225-5/6 are not prescribed for a small business set-aside because the acquisition (above $7,032,000) is NOT covered by the WTO GPA, by exemption.
  23. I do not disagree with ji20874 but I would add that other parties might decide the appropriateness of the the proposed action as it moves through what I will call the process to award - other interested parties and GAO and possibly even a court. I offer this additional thought as you might find a read of say GAO protests as helpful in preparing a "justification document (LSJ)". GAO protests will of course deal with the specifics of an instant procurement but you might pick up some nuggets that will help see what seems reasonable or not. I quickly found this protest decision and no doubt there are more. Sharing as a possible helpful reference to your question. https://www.gao.gov/assets/b-417269.pdf
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