C Culham

I am going to make your life difficult since this in not the Beginners Forum. Can't it be a FAR part 12 procurment using FAR part 15 for evaluation and award? I agree with ji, forget about systems. And for me think about your approach instead much like Joel has advised. And bluntly make it a commercial sevice. Think about and apply FAR 12.404, evaluate offerors in part on their stated express warranty. And as final offering is here my quick one minute market research to make it so.... https://sam.gov/opp/d2b0841f04874b34af1c911e80c38ba8/view Good luck!

Thank you for coming back! If I were the CO I would have required a new procurement. My only decision point would be whether I would use FAR 8.405-6 or FAR 13.106-1(b). Done, no legal, no hand wringing a fix for a RA screw up. The light bulb went on for the RA. So sad too bad, as I would conclude the scope was radios with no intention stated in a requisition and the ensuing order that accessories "might" be needed. It was just buying radios. The basic rule (emphasis added) - "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." Reference - Chase Supply, Inc. B-411528.2, B-411529.2: Dec 7, 2015 (pdf) found at the following link with many other decisions regarding scope. https://www.wifcon.com/pd6_001.htm The inclusion of a 52.243-1 is a red herring. GSA FSS contracts typically contain a changes statement pursuant to FAR Clause 52.212-4 which I will go out on a limb and say was in the GSA FSS that was used. Moving from one changes clause to another does not signify anything other that on one hand the change needs to be by agreement of both parties or a unilateral right of the government. Adding 52.243-1 also seems inconsistent with both GSA FSS and a otherwise commercial product buy. To fix the bad planning and requisitioning on the RA's part a new procurment is the fix and I would suggest a candid and truthful statement to the file would have adequately covered the matter. Done, no legal no hand wringing and no trying to appease the RA for their error. Yes, my response was not complete with regard to this matter. Taking the easy way out by providing this reference to a thread I recalled. It might help you do further research and thinking about "closed".

Of interest in attempting to answer your question is whether this acquisition will be conducted pursuant to FAR past 12 (Acquisition of Commercial Products or Services) As noted by others whether a FAR past 12 procurement or otherwise I beleive one could deliniate whether a warranty would apply only to the work or not. I know of no such regulation and have researched to see if I could find such a regulation and did not.

Really late to the party but by read of the following guide I beleive your question is best answered by the agency with who the OTA is with. https://www.acq.osd.mil/asda/dpc/cp/policy/docs/guidebook/TAB A1 - DoD OT Guide JUL 2023_final.pdf

Remember the OP did state "let's say". Or in other words facts could help but they aren't forthcoming. Thread should be closed.

I have mulled over the OP's situation and the responses. I do not disagree with the advice provided but it would seem that an appropriate reference is lacking. The OP can satisfy his/her dilemma by either doing a modification to the GSA order, or by doing a new GSA order if the batteries are in fact on GSA. For either the modification or new order it would seem that the OP should consider FAR 8.405-6 when moving forward with the modification or new order. I note this as it would seem that based on the basic principles of competition as required by FAR 8.4 that either the modification or a new order would be considered limiting sources.

But if a RFP does not FAR part 15.2 provide the guidance not FAR part 13? And are there not salient differences between a RFQ and RFP?

I too make typo's but this did put a smile on my face!!!🙂

Thanks Joel....In truth there is a lot to unpack in the OP's two posts. I did a vague first post as an attempt to get the OP to research more. Unknown details count. I say this as peeling the onion leads to lots of places that include or might include FAR 35.016, FAR 6.102(d)(2), 42.703, FAR 15.4 and even into 2 CFR 200 along with agency policy and the solicitation itself to address the OP's situation regarding the indirect rate.

I fear that without additional information the assumptions as quoted above are not being leveled with regulation. Plesse read 42.703-1.

Yes. But you need to clarify your situation and your post. You say "FFP" and "competition" so the question back to you is why are you doing cost analysis? Further "no cost rate certificate"? Does this mean you made a determination not to put 52.242-4 into the solicitation? If you did not why doesn't FAR 42.703-2(c) apply? Is the need at a value where certifed cost or pricing data is not needed? And I might add what did the solicitation say about supporting indirect rates if anything? Hopefully the questions will lead you to a answer on your own.

Splitting is splitting. But I am having trouble relating your questions to FAR part 6 and reference to JOFOC. Having looked at each of the exceptions what thresholds are applicable? Or stated another way FAR part 6 as applicable to acquisitions above the Simplified Acquisition Threshold do not have additional dollar thresholds.

Now I will admit that I have not thought this through completely. Yet this thought came to mind in reading current posts. The parent IDIQ purchases nothing but the Task Orders do. Now I have to go sit down, think about your concerns and my comments but I still think this..the demand for specifics in pricing the NTE seems out of sync.

Got it. Yep well aware of all. Yet your exceprt leaves out important discussion within the FAR that suggests strongly that a FFP procurment is conducted when there is adequate competition to help determine price reasonableness. The questions raised by others might give way to a response by the OP that price analysis alone is not appropriate (no competition). If competitive in truth I believe the quote by Vern that I posted is most important as I view the scenerio as stated to be one where the agency is demanding something that is as stated - "stupid." The alternative - Let the OP use any methodolgy he/she wants to propose the NTE "price". Let the CO use any methodology he/she wants to determine "price" reasonableness. In this instant situation the CO in my view is being lazy and he/she could do exactly what is being demanded of the contractor via a independent government cost estimate. Reference - FAR 31.102.

Got it.

Based on a FFP contract would Volume 3 be applicable or would it be Volume 1?

FAR 52.236-13 - Accident Prevention reads in part the following. "(c) If this contract is for construction or dismantling, demolition or removal of improvements with any Department of Defense agency or component, the Contractor shall comply with all pertinent provisions of the latest version of U.S. Army Corps of Engineers Safety and Health Requirements Manual, EM 385-1-1, in effect on the date of the solicitation." (Just as Retread posted I finished this, posting anyhow)

"If the government can't or won't tell offerors how often they'll have to travel, where they'll have to go, and how long they'll have to stay, then offerors cannot intelligently propose travel costs. Demanding that they do so and then trying to evaluate competitively proposed travel costs in such a case would be unfair and, frankly, stupid. If you can't specify travel, don't make offerors propose travel costs. Instead, make travel a cost-reimbursement no-fee line item CLIN and specify the travel budget in the solicitation, so it will be the same for all offerors and won't have to be evaluated. Provide for the CO to increase the travel budget unilaterally at his or her discretion. Alternatively, provide for travel to be fixed-priced on an ad hoc basis during the course of performance, as travel requirements become known. That would work sort of like IDIQ, except that it is not pre-priced. You'd have to write a clause for that. Don't evaluate travel costs during source selection. Alternatively, if you don't want to do cost-reimbursement and feel that you absolutely have to evaluate travel costs, then (a) establish "standard trip" CLINs of one day, two days, etc., varied by destination, if necessary, ( specify estimated quantities for each CLIN, and ( c) tell offerors to propose standard trip fixed unit prices and total amounts. Then evaluate travel as part of the total fixed price. There is some risk in that for the offerors, but it would be manageable." Quote by Vern Edwards. Reference - which you might want to read in full.

But not issued pursuant to and as BPA under your GSA FSS contract? If yes, ask the CO of the BPA as regulatory guidance varies by agency, via the agency's FAR supplement. If issued pursuant to and under your GSA FSS contract then FAR 8.4 applies as well as agency supplement to FAR 8.4. Bottomline your question can not be answered without much more detail.

I along with others have provided rationale. You want it. Submit a Freedom of Information Act(FOIA) request. In truth the CO should do it!

This (below)no longer exists in the DFARS. If you read the current 208.402 one could surmise the reason. "204.802 Contract files. Official contract files shall consist of— (1) Only original, authenticated or conformed copies of contractual instruments— (i) “Authenticated copies” means copies that are shown to be genuine in one of two ways— (A) Certification as true copy by signature of an authorized person; or (B) Official seal. (ii) “Conformed copies” means copies that are complete and accurate, including the date signed and the names and titles of the parties who signed them. (2) Signed or official record copies of correspondence, memoranda, and other documents."

In your wandering around of the SBIR website did you notice that some PTAC/Apex assistance centers can help? Did you contact the one for your geographical area to see if they can help with your questions?

Well you will need the CO's buy-in, right? I would suggest clarifying discussion with your CO but here are a couple of thoughts to assist in that discussion. Read the entire contract and make sure there is nothing in it that addresses the situation. I say this as the previous COR must have had some basis to make the statement. And, with out knowing the contract, if purchases are allowed within the POP and it is specifically stated that delivery must occur on or before end of POP, delivery could occur after POP and the government could receive and it would reflect in an adverse performance rating. Additionally, another remedy for late delivery if delievery must be by end of POP as stipulated in the contract the government could ( I want to repeat could as the contract wording would help assure the could) possibly accept late delievery with consideration for the contractor not meeting the strict requirements of the contract. Hope these thoughts help in working it out with your CO.

Sorry for the confusion if I implied it was. I just felt that the OP left a gap as it was not explicity stated that simplified acquisition procedures (SAP) were being used. Stating "authority" did not hit me as an explicit affirmation that the SAP was the intent.

Steward - I ran into this and thought I would share. I just thought it was an interesting connection to your original post. Reference - https://www.gao.gov/products/b-413442 "Protest challenging the issuance of a task order to a large business concern is dismissed for abuse of process, and the protester is suspended from protesting for a period of one year, where the protester has submitted 150 protests this fiscal year, challenging an array of acquisitions (some of which were fully performed years earlier) conducted by a host of contracting agencies worldwide; has repeatedly failed to demonstrate that it is capable of, or interested in, performing the solicited requirements; and has repeatedly failed to engage constructively on the substantive and threshold issues raised by its protests."