C Culham

I believe you have missed salient quotes in the case. Example: "We conclude that GSA has failed to prove the elements of its warranty claim." and "Regarding the second element of the warranty claim..." This said David has provided his response to the full discussion regarding his original post and feels he has a path forward.

Therefore my question. Paragraph (C) of the citation Joel provided - "The contracting officer could request the data through a solicitation provision."

What do think it should be?

No sir. The Government asserted a "claim" pursuant to the warranty clause. For sake of discussion I will believe David that the government was wrong to assert such a claim. Therefore the government can not prove its claim and owes David money. As promoted by the FAR at 33.2 "the Government’s policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim." If the government denies said money to David, David then has the ability to assert a claim against the government for the money. Not spot on but I encourage a read of the following. Make it easy on yourself....fast forward to page 56 and after a read there fast forward to page 86. https://www.cbca.gov/files/decisions/2019/ZISCHKAU_12-19-19_2953, 2954, 2955, 3596, 4175, 4377, 5006__SUFFOLK_CONSTRUCTION_COMPANY,_INC. (Decision).pdf

Based on your premise the contractor therefore has a "claim" not a REA. FAR 52.233-4, which I might add is hopefully in the contract as prescribed by the FAR.

So did the solicitation ask for the form?

A claim pursuant to FAR 52.233-1 or with regard to the Dispute paragraph of FAR 52.212-4 provides remedy to either party of the contract. The action allowed by the clause should not be construed by anyone to be other than a clause that provides for a remedy just like those clauses that provide for an equitable adjustment in contract. To imply or otherwise say so is hogwash. Prefer as they may, not handling a matter as a written demand or written assertion when a close look a the contract provides no other clause for a remedy a contractor puts themselves at a disadvantage and I would not encourage a contractor to do so. David can do as he wishes but use of REA and promote same in the context of this thread, in my view, is not viable nor appropriate advice.

Just a suggestion for consideration. You may in fact want to consider a claim (FAR subpart 33.2) rather than a REA. Discussion with legal counsel will help you pick the appropriate terminology and process if you decide to pursue reimbursement for the costs of your efforts.

And herein lies the problem. The history of Federal acquisition is long and I would offer that audibles are called 99.9% of the time because the quarterback is not well informed. The OP, in my view, is calling for a time out, to reaccess and define a new play as opposed to an audible due to the unexpected presentation of something completely new that is not expected and not been seen before. @ArrieS So it appears you are saying do either one of these but do not create a second CLIN? If so I would agree. (6) Subline items structured to identify different accounting classifications for identical items (delivery schedule shall be established for each subline item, not the contract line item). AJ: 17X150518350315069100000192B000000000000000000 AK: 17X150518370317569100000192B000000000000000000 AL: 17X150519350314369100000192B000000000000000000 ITEM NO. SUPPLIES/ SERVICE QUANTITY UNIT UNIT PRICE AMOUNT 0002 Pulse Decoder KY-312/A5Q-19 EA $3,037.40 0002AA Pulse Decoder KY-312/A5Q-19 ACRN: AJ 2 $6,074.80 0002AB Pulse Decoder KY-312/A5Q-19 ACRN: AK 6 $18,224.40 0002AC Pulse Decoder KY-312/A5Q-19 ACRN: AL 2 $6,074.80 NOTE: Unit price may be shown at line item level and total amounts shown at subline item level. (7) Informational subline items established to identify multiple accounting classification citations assigned to a single contract line item. ITEM NO. SUPPLIES/ SERVICE QUANTITY UNIT UNIT PRICE AMOUNT 0001 Air Vehicle 1 EA $6,700,000 $6,700,000 000101 ACRN:AA $3,300,000 000102 ACRN:AB $2,000,000 000103 ACRN:AC $1,400,000

No sir. The FAR does make it complicated. CO may use FAR 13.5 simplified acquistion procedures for a commercial products and services. The procedures may be any in FAR part 13. But when the CO does FAR part 12 applies and if the CO uses other parts of the FAR, FAR part 12 takes precedence. So in the context of this thread here is how I see it, what do you think? The procurement was done pursuant to FAR Part 13.5, Simplified Procedures for Certain Commercial Items. As such FAR 52.212-1 should have been included in the solicitation and paragraph (l) applies. Aside - Should have the agency tailored 52.212-1 if for the particular market place debriefing does occur and essentially follows FAR 15.506 (without the specific timing but at anytime) whereby the original paragraph (l) of 52.212-1 would be inconsistent with the marketplace? And what if the agency did not tailor does a offeror have a case for protest that they should be debriefed following that as occurs in the market place and in the same detail as provided for in FAR 15.506 if that is what the market place does?

Sure you can mark it but other statutes and regulations may control the informations disclosure. In stating this I do not to make you concerned as in my experienced view the information you note shall in general not be disclosed. The information you note is specifically addressed in the Freedom of Information Act and its implementing regulations. Here is a couple of Federal Acquisition Regulation (FAR) references that may help your thought process. FAR 3.104-4 Disclosure, protection, and marking of contractor bid or proposal information and source selection information. And FAR Subpart 24.2 - Freedom of Information Act

Quite a challenge. My thoughts in no particular order. Have you asked why the boss thinks performance based will work best for the situation? No technical requirement owner? Presume that means no program area for the assist? Leaves a big hole as to what mission accomplishment looks like. This may require you to do more extenisvie market research. SAM.gov for examples of audit services procured by other agencies. An RFI, possibly with a sample work statement, to engage input from entities that provide audit services to gauge if you are on the right track. Even entertain a pre-solicitation get together with industry for their input on the RFI and invite the boss to observe to understand better the challenges of putting the perfect contract together. While you might find a decent example avoid using it exactly for your need. I know crazy thought but maybe ask the boss to provide input on whatever best sample you find for buy in. Here are some links that might help help you zero in. Good luck...... https://www.gsa.gov/system/files/CCAS Ordering Guide May 2023.pdf https://oig.hhs.gov/oei/reports/oei-07-99-00430.pdf PS - I just finished this when formerfed posted. Some of my content relates to his content.

How about both FAR part 12 and 13, I could live with that? Yes each procurement stands on its own when it comes to matters in conflict when handed to someone like GAO to adjudicate. I did a little more looking. My thoughts are swayed in part but not completely as noted above. Seeing the instant procurement would help me zero in my thoughts and I still feel the agency response is not well perfected. https://www.gao.gov/assets/b-411284.pdf And

Just dipped my big toe in. First thought off the bat is I did not see a Sealed Bid choice. Maybe missed it, if I did sorry, if not should it not be included? More decisions, I wonder? I am use to attorney desk books issue by various entities, along with the GAO Red Book. For these two they seem to concentrate on primary cases that are based on historical case history. Too many might muddy the waters. I will keep looking as I can and pass along other thoughts if I have them.

Did you know that if you are registered in SAM.gov that you can establish a Login account that allows you to view the general registration of any firm in SAM.gov? Looking up the prime and viewing their core business info might give you an idea of exemption. I say this profit status of business is shown. It would seem to me that if the prime is a for profit business they would not be exempt from taxes. I like here_2_help's response too.

Thanks and agree.

Shooting from the hip yet I do know the Competition in Contracting Act does not apply to FAR Part 13. So is the rule statutory or regulatory? Otherwise I do agree.

So we are going full circle. I pointed out Logan early on and I think I get why Jamaal thinks it is not applicable - multiple BPA's were established. Yet as the discussion unfolds I would agree Logan applies. But it does get tricky thinking about such things as FAR part 5.... If individual calls are stated to be over the micro purchase threshold yet under under $25,000 what is extent of competition? Post the proposed BPA somewhere and say there will only be one BPA issued? Additionally document the file with a single source determination that calls into application (FAR 13.302(c)(2)). It would seem this would avoid a GAO adverse view if protested. While the FAR provides that that the existence of a BPA does not justify purchasing from one source (13.505-1(c)) does not the FAR allow that further determination could via a single source determination(FAR 13.106-1(b))? If individual calls are stated to be over the micro purchase threshold and over $25,000 what is extent of competition? Post the proposed BPA on SAM.gov say there will only be one BPA issued? It would seem this would also solve an adverse view of GAO. The extent and ability of a single source determination to stand the muster of GAO as to why only one BPA supports that only one source is reasonably available. In the context of a BPA I would think doing so would take some very unique thinking but there is, in my view and in consideration of the Logan decision, a way to make it happen.

For the sake of discussion where in FAR part 13 does it say you must have a solicitation to establish the BPA(s)? Seems that it is the first hole in your premise.

This decision speaks directly to your question. https://casetext.com/case/arko-executive-services-inc-v-us

Ok on closer read I better understand the question. As a call is the procurement action why couldn't a CO utilize FAR 13.106-1(b) to do so. Use a single source determination per call. Or, make a single source determination when establishing the BPA.

Find this... B 294974.6 Logan LLC 12/1/2006

I find this thread to be most interesting. There is an indication of a long term failure of RFP's that provide that multiple contractors have failed to perform. This is coupled with no indication of the exact work, the magnitude of the work, how the work is defined (PWS or otherwise) and the comments seem to be provided by someone that is a program office person and not a CO or COR. The individual has asked how to improve the RFP process to improve contract performance. Based on the limited information how does one know that it is the RFP process and not that of contract administration or even a skewed view of what the contract is to accomplish. I have especially wondered about the whole matter based on this in the original post "on who a contractor puts into a position" and follow-up comments that seems to provide that there is no key personnel clause in the contrat. Person put in a position? Is not an outcome being acquired? How does person matter within the scope of the work defined if there is not key personnel clause? I do not need a reply to my thoughts but my comment for @goviegogo it is that I (again based on limited info) think you are looking in the wrong place. You should be looking at contract administration and the relationship you have with your contracting shop on how contract performance are meeting both the terms and conditions and program expectations of what the accomplishment of contract effort actually is to be. I say this especially noting that you express that the problem is in my terms systemic.

You have gone full circle..a BPA is not an "acquisition". I would offer that even a BPA that creates a call being a firm offer by the government doesnot make the BPA an acquisition. It is simply the establishment of a charge account that gives rules it does not buy anything. As the OP has mentioned Air Force see this https://www.acquisition.gov/afars/5119.201-general-policy. Edited just now to add this reference that I was reminded of in reading another thread. See discussion of Blanket Purchase Agreements in it. https://tjaglcs.army.mil/documents/35956/202351/2023+Contract+Attorneys+Deskbook.pdf/3f1c4d3b-1c54-d3b2-523f-1c37fb063637?t=1690991215366

I do but that does not make the BPA a contract, the call is the contract that references clauses. Heck you could put in zero references to the BPA in the call except the hoped for pricing. Remember it is a micro purchase and as such in the strict view of a FAR BPA the vendor has the right of acceptance of offer. If an agency makes calls a unilateral right of the government my view is they have in fact bastardized the FAR guiding principles and created a requirements or IDIQ contract.