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C Culham

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  1. C Culham

    Multiple Award Schedule

    Of course Vern's guidance is spot on but actually ContractSpecialistTJohn you have peeked my further interest.... You said So my bad I guess for assuming you meant a GSA MAS contract which from my experience and actual confirmation before my post contain the 52.216-18 clause. The term "Schedule" was my basis for going straight to the FAR clause. Now you say So what agency and what contract as I would be interested in seeing it for myself if available on a public facing website to read what clause they decided not to flow to the order level and how they stated the deviation to do so? Thanks
  2. C Culham

    Multiple Award Schedule

    Do you mean FAR 52.216-18?
  3. Joel - Agreed. Noting this here is my view. FAR 1.102-4(e) states ".........absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound.” FAR 36.602 provides direction for the steps for selection of an A-E firm and provides no direction with regard to securing price information from contractors during the selection process. A full read of either selection process (board or short) provides that seeking of price information begins after selection of the “most preferred” ( not necessarily the highest qualified) firm. FAR 36.606 provides that to start the negotiation process one is to follow FAR Part 15 processes which provides that an RFP would be issued at this point. Again the “selection process” has no direction to seek price information pursuant to FAR Part 15 the negotiation process does. Summarized A-E selection is a step process by direction, select first then seek pricing second. As there is no absence of direction in FAR subpart FAR 36.6 one can not spin their own to develop a new process. Further this step process as provided in FAR subpart 16.5 is to be followed in placing orders under multiple or multi-agency IDIQ contracts. In a different view in the OP’s process I even see a hiccup where it is stated that “All other price proposals remain confidential to include omission from the contract file.” This mere fact raises concern in that if they are in fact omitted from the contract file and successful negotiations fail with the most preferred firm how does one retrieve the next in line – its not a part of the contract file? Semantics maybe but does raise more question. All in all the OP’s agency process for selecting A-E’s for task orders may be seen as innovative but it carries several instances where it does not follow the direction of the FAR. At the very least I would have a deviation in the contract file to support the process being used at the most I would follow the step process, evaluate capabilities then seek pricing information through the FAR Part 15 process.
  4. Joel - I agree with your most recent post as it is my understanding too. So as I posed before - So why not ask for proposal/quotes from A-E offerors at the get go (when they submit 330's or revised 330's) for ALL A-E needs whether a standalone contract or for an IDIQ task order if you think the process that Rookie is using is both compliant with the Act and the FAR?
  5. Sorry that you feel that way, but you did ask this - And now state this - I guess your latest statement is based on the discussion in this thread. Thanks
  6. Ok I guess I am the rookie as I am confused. Let me try this. You agree that when selecting an A-E for a IDIQ parent contract you don't (aren't) considering price of the other firms, correct? And that such a process is in accordance with FAR subpart 36.6, correct? Next do you agree when selecting a contractor under an A-E IDIQ multiple award contract you must follow FAR subpart 36.6? If yes, then why is it any different than awarding the parent contracts in that you do not consider price to make the selection of the contractor? In either case you are not to consider price of "the other firms" correct? I guess I just don't get it when you say in one case (parent IDIQ) you "aren't considering price..." and in the other case (task order) you imply you are. Seems to me you are gaming FAR subpart 36.6 to read any old way you want it to read. Bottom line I agree with what has been stated in this thread, that the Brooks Act does not prevent the government from asking for A-E's to submit pricing with their response to a public announcement for an A-E project. As noted doing so is highly out of the ordinary. However to me both the Act and FAR 36.602-1 are clear that ANY contractor selected for a A-E contract (and a task order is a contract) that such selection is based on technical qualifications only and not "price proposals/quotes". Once the A-E is selected as the most qualified the only consideration with regard to price is whether you can reach "a mutually satisfactory" contract with that firm. "Satisfactory" would not only be fair and reasonable price but other stuff (competence and qualifications) that the A-E will bring to the contract effort. Again you really have confused me with the above quote as it implies you are considering price to determine who gets a task order award?1?!?!?!?!?!?!?!?!?
  7. Here is my uneasy feeling as this discussion continues.... It seems clear from all the FAR references provided that FAR subpart 36.6 processes apply to selecting an A-E off of a multi-agency or multiple award IDIQ contract for a task order. If my read is correct and based on further comments the question raised by OP and responses provided goes further than just IDIQs nd specifically to this..... When conducting any procurement pursuant to FAR 36.6, can the Government request pricing proposals from all A-E firms responding to a specific need? It seems this thread is saying YES to this question which creates for me that uneasy feeling and if it was ok to do (yes I understand innovation so do not throw that at me) why not just have A-E proposals submitted in the same manner as proposals are submitted with regard to FAR Part 15 and as quotes are submitted for FAR Parts 13 and 12. Could be another place has been found to reduce the volume of the FAR, or maybe not!
  8. Matthew - Sorry for my delay I was fighting winds in Denver and endless flight delays, yep for two days. I guess your crystal ball is better than mine as my read couldn't figure out one way or the other whether they were multi-agency contracts. Thank you Rookie and Vern for the clarification.....
  9. Vern - Did your response consider FAR subpart 16.505(a)(9)?
  10. C Culham

    Bid Protests: GAO or the Courts

    Fashioned after the "Vaccine Court", maybe?
  11. Well I wasn't but now I am........... I would like to see the entire contract or at least the publically issued solicitation please before I respond further. I know, pipe dream but all the same I have seen several threads like this that always do not provide all the facts. Is this a new requirement or a contract that has been in place for lets say several years? Not saying right or wrong yet but if for some reason what is occurring has been so then maybe, just maybe, there is a legit reason why it is so. And no ill will intended p5tMike but exactly what is your position in the acquisition hierarchy. CO, contract specialist, inspector, interested program person, new to the procurement, been seeing this for days, months, years, or contractor employee as I am not sure what you mean by "my COR"? Overall from my point of view it seems there is a lot missing to provide a reasoned response. I can guess like others and my guess might be good advice and might be the same as others but then there is......oh well I can only dream!
  12. Adopt FAR subpart 12.6 as the standard.
  13. CF - You may want to wade through this website as it may assist as well.... https://www.dol.gov/whd/govcontracts/eo13706/faq.htm#IOLPTO4
  14. FAR coverage is adequate.....adding one more Act to require contracting entities to make responsibility determinations or otherwise determine if a contractor can deliver is a waste of pen and ink. PS - I wonder if the Press Release is click bait as the letter it references and links to is about immigration! Lordy!
  15. CF - Just in case you did not dig into the CFR regarding your questions here you go as it may help.... 29 CFR 4.162 Fringe benefits under contracts exceeding $2,500. (a) Pursuant to the statutory scheme provided by sections 2(a)(2) and 4(c) of the Act, every covered contract in excess of $2,500 shall contain a provision specifying the fringe benefits to be furnished the various classes of service employees, engaged in the performance of the contract or any subcontract thereunder, as determined by the Secretary or his authorized representative to be prevailing for such employees in the locality or, where a collective bargaining agreement applied to the employees of a predecessor contractor in the same locality, the various classes of service employees engaged in the performance of the contract or any subcontract must be provided the fringe benefits, including prospective or accrued fringe benefit increases, provided for in such agreement as a result of arm's-length negotiations. (For a detailed discussion of section 4(c) of the Act, see § 4.163.) As provided by section 2(a)(2) of the Act, fringe benefits include medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, unemployment benefits, life insurance, disability and sickness insurance, accident insurance, vacation and holiday pay, costs of apprenticeship or other similar programs and other bona fide fringe benefits not otherwise required by Federal, State, or local law to be provided by the contractor or subcontractor. (bold added) 29 CFR 4.170 Furnishing fringe benefits or equivalents. (b)Meeting the requirement, in general. The various fringe benefits listed in the Act and in § 4.162(a) are illustrative of those which may be found to be prevailing for service employees in a particular locality. (bold added) The benefits which an employer will be required to furnish employees performing on a particular contract will be specified in the contract documents. A contractor may dispose of certain of the fringe benefit obligations which may be required by an applicable fringe benefit determination, such as pension, retirement, or health insurance, by irrevocably paying the specified contributions for fringe benefits to an independent trustee or other third person pursuant to an existing “bona fide” fund, plan, or program on behalf of employees engaged in work subject to the Act's provisions. Where such a plan or fund does not exist, a contractor must discharge his obligation relating to fringe benefits by furnishing either an equivalent combination of “bona fide” fringe benefits or by making equivalent payments in cash to the employee, in accordance with the regulations in § 4.177.
  16. Are you the ethics official for your agency? If not you may want to visit with them on the matter. Why? Well your reseach sounds complete but there is consideration beyond the FAR that the agency may want to evaluate before creating a perfect 60 minute cover story.
  17. Here is my thought for consideration.... Obligation is a definite commitment, administratively recording (I have seen the wording used by GAO) is a different distinct action, such as reserving funds used in the Federal budgetary process. With regard to an IDIQ even the minimum is a definite commitment because generally speaking it has to be paid if no orders are ever issued. And the funds used must represent a bona fide need for that funding source therefore the minimum is recorded as specific obligation of the contract. PS - I know we could go off on a tangent regarding payment of the minimum if no orders are ever issued but the simple view is why the minimum is an obligation that must be recorded per the recording statute.
  18. As support to kevlar51's response consider the clause in your contract, 552.238-74 INDUSTRIAL FUNDING FEE AND SALES REPORTING MODIFICATIONS (FEDERAL SUPPLY SCHEDULE) (MAY 2014), and note is discusses "all sales". You might be interested in cruising through this webpage too - https://72a.gsa.gov/ifffaq.cfm#04
  19. Discussing terms with regard to the Federal budget process can be as tricky as discussing terms that apply to Federal contracting or as budget terms apply to Federal contracting. This document may be of value to those that want to get into the weeds - A Glossary of Terms Used in the Federal Budget Process https://www.gao.gov/new.items/d05734sp.pdf Here are a few terms from the glossary that might be of interest as related to this thread. Obligation A definite commitment that creates a legal liability of the government for the payment of goods and services ordered or received, or a legal duty on the part of the United States that could mature into a legal liability by virtue of actions on the part of the other party beyond the control of the United States. Payment may be made immediately or in the future. An agency incurs an obligation, for example, when it places an order, signs a contract, awards a grant, purchases a service, or takes other actions that require the government to make payments to the public or from one government account to another. The standards for the proper reporting of obligations are found in section 1501(a) of title 31 of the United States Code. See also OMB Circular No. A-11. Antideficiency Act Federal law that •prohibits the making of expenditures or the incurring of obligations in advance of an appropriation; •prohibits the incurring of obligations or the making of expenditures in excess of amounts available in appropriation or fund accounts unless specifically authorized by law (31 U.S.C. § 1341(a)); •prohibits the acceptance of voluntary or personal services unless authorized by law (31 U.S.C. § 1342); •requires the Office of Management and Budget (OMB), via delegation from the President, to apportion appropriated funds and other budgetary resources for all executive branch agencies (31 U.S.C. § 1512); •requires a system of administrative controls within each agency (see 31 U.S.C. § 1514 for the administrative divisions established); •prohibits incurring any obligation or making any expenditure in excess of an apportionment or reapportionment or in excess of other subdivisions established pursuant to sections 1513 and 1514 of title 31 of the United States Code (31 U.S.C. § 1517); and •specifies penalties for deficiencies (see Antideficiency Act Violation). The act permits agencies to reserve funds (that is, withhold them from obligation) under certain circumstances. (See also Administrative Division or Subdivision of Funds; Antideficiency Act Violation; Apportionment; Budgetary Reserves; Deferral of Budget Authority; Deficiency Apportionment; Deficiency Appropriation; Terms and Definitions Page 12 GAO-05-734SP Budget Glossary Expenditure; Fund Accounting; Congressional Budget and Impoundment Control Act of 1994; Outlay.) Antideficiency Act Violation Occurs when one or more of the following happens: •overobligation or overexpenditure of an appropriation or fund account (31 U.S.C. § 1341(a)); •entering into a contract or making an obligation in advance of an appropriation, unless specifically authorized by law (31 U.S.C. § 1341(a)); •acceptance of voluntary service, unless authorized by law (31 U.S.C. § 1342); or •overobligation or overexpenditure of (1) an apportionment or reapportionment or (2) amounts permitted by the administrative control of funds regulations (31 U.S.C. § 1517(a)). Once it has been determined that there has been a violation of the Antideficiency Act, the agency head must report all relevant facts and a statement of actions taken to the President and Congress and submit a copy of the report to the Comptroller General. Penalties for Antideficiency Act violations include administrative discipline, such as suspension from duty without pay or removal from office. In addition, an officer or employee convicted of willfully and knowingly violating the law shall be fined not more than $5,000, imprisoned for not more than 2 years, or both (31 U.S.C. §§ 1349, 1350, 1518, and 1519). (See also Administrative Division or Subdivision of Funds; Antideficiency Act; Expenditure.)
  20. CS - Just in case you did not take Vern's hint you may want to take a look at FAR 32.703!
  21. Retreadfed - Sorry the statement is confusing. I have borrowed the quote below from the GAO decision I referenced to hopefully clarify. "Accordingly, the guaranteed minimum amount in an IDIQ contract must not only constitute sufficient consideration to make the contract binding, but also reflect the bona fide needs of the agency at the time of execution of the contract. B-318046, July 7, 2009." Due to such issues as limitation on funds (no year, one year, etc.) again I leave it to the OP's Fiscal folks and how they would counsel the OP on how to accomplish the award scenario that has be posed and still meet the conclusions of bona fide need and recording statute.
  22. Reference the following GAO decision and the GAO “Redbook” at Chapter 6 with regard to bona fide needs. https://www.gao.gov/products/C00513 for the GAO decision. Here is the link to the GAO Redbook http://www.wifcon.com/bonafidecontents.htm As noted you must “record” the minimum as an obligation. It then gets complicated from there depending on whether the available monies for the obligation are no year funds or otherwise, such as one year funds. Generally speaking a course for recording an IDIQ parent contract obligation and issuing an order that is obligated goes like this – IDIQ awarded. An obligation for the minimum is recorded. The parent IDIQ contract is the reference. The funds that are used must represent a bona fide need for the funds being used for this recording. IDIQ order is issued that accomplishes the minimum. The IDIQ parent recorded obligation is de-obligated and the recording of an obligation for the awarded order occurs and must represent a bona fide need for the products/services on the order. If no order is ever issued for parent IDIQ the recorded obligation remains on the books for the life of the parent IDIQ. If an order is issued that is less than the minimum then the parent IDIQ obligation is reduced to that amount that when added to the order represents the minimum. Example - Parent IDIQ minimum is $1000 and the $1000 is recorded. Order issued for $500 and obligates this amount. Parent IDIQ recorded obligation is reduced to $500. I would offer that the current data systems used by agencies probably make following this course very complicated, difficult or simply can not be followed. But back in the old stubby pencil days this is what happened. Under new systems many agencies try to accomplish these steps together as a work around– Award an IDIQ and issue a obligating order at the same time that accomplishes the minimum (might even be for more than the minimum) but as you can see with regard to the GAO decision and Redbook discussion this may be counter to the bona fides need rule and/or the “recording” statute. My suggestion with these thoughts in mind is that you contact your fiscal office to discuss the matter armed with the references I have provided and let them guide you.
  23. C Culham

    Truth Decay

    I was reminded of this thread yesterday when hauling horses.... bumper sticker on the pick-up in front of me..... "It does not require many words to speak the truth - Chief Joseph" (attributed to)
  24. C Culham

    Assessment of Actual Damages

    My thoughts that may help in your discussion with your lawyers. Under what remedy action do you intend to seek the “actual damages” you have indicated? I ask because the ability to seek such damages is usually connected to breach of contract. As you have described the scenario I am not quite sure if you have a breach as you have indicated that the contractor has been convinced to correct the defective work under the warranty clause, therefore the quick view is they have complied with the contract. Also the usual construction warranty clause 52.246-21 provides for only reasonable costs of repair and/or reduction in price but does not allow for most of the damages you have listed. Reference paragraph (c) of the FAR clause. The VAAR does not appear to provide a supplemental clause that would extend the right provided in the FAR clause. I would add that a whole read of the contract may provide for the ability to seek such damages but in my experience this seldom occurs as the Government typically just uses its prescribe clause(s) and nothing more. The view I have provided above is a general one and would point to Norfolk Shipbldg. and Drydock Corp., ASBCA No. 21560, as possible case law that may be applicable. This reference comes from various Government contract law desk guides or books. There may be other avenues as well under law to seek the damages but my experience is limited in these areas so I am sticking to contract remedies so to speak. Bonds – Did the contract include the requirement to include bonds? If so remember the Performance Bond is good for the period of warranty as well. While not a tool to seek the damages it is a tool that can be used to convince a contractor to perform warranty work or get the warranty work done otherwise. Reference the “Obligation” portion of the Standard Form 28. 52.246-21, again. Remember that work corrected under the warranty clause has an extended warranty of 1 year after the correction. Reference paragraph (d) of the clause. CPARS – The CPARS system allows for addendum to a final report to allow for recording performance pursuant to a warranty clause. Reference Section E, paragraph 5.3 of the Guidance for the Contractor Performance Assessment Reporting System (CPARS).