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C Culham

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Posts posted by C Culham

  1. 6 hours ago, formerfed said:

    Let’s just say we disagree and move on.

    Sorry but I can not.   You have presented a position that is not supported by facts.    My intent here is to provide factual history for the Forum.   

    I have already pointed out in a previous post the first issue of the FAR in 1983 carried FAR 8.406 regarding BPA's.    FAR 8.406 was then removed from the FAR via Federal Acquisition Circular (FAC) No. 90-21 (October 25, 1994).  BPA reference then reappeared in FAR subpart 8.4 via FAC 2001 25R in October of 2004.   My research found the below referenced protest of 1996.  In the protest the GAO opined the following (emphasis added) absent the FAR 8.406 language. 

    "GSA, commenting on this matter at our request, acknowledges that FAC No. 90-21 deleted FAR Sec. 8.406 from the FAR; however, it takes the position that ordering agencies may enter into BPAs with FSS contractors pursuant to FAR Sec. 13.202(c)(3) and clause H.5 of their FSS contracts. FAR Sec. 13.202(c)(3) provides that "BPAs may be established with Federal Supply Schedule contractors, if not inconsistent with the terms of the applicable schedule contract" and, as previously indicated, section H.5 of WIN's and IDI's schedule contracts expressly authorizes the contractor to enter into a BPA with an ordering agency. [9] Purchases under BPAs with FSS contractors are not limited to $100,000. FAR Sec. 13.204(b). "

    https://www.gao.gov/products/b-274626%2Cb-274626.2

    I would bet,  admittedly without further research that I am not going to do, that language was added back into the FAR regarding GSA FSS BPA's in 2001 in part due to the protest I have referenced. 

    While your think otherwise the factual history supports a nexus of GSA FSS BPA's to FAR part 13.   I would add that IDIQ contracts and their related task/delivery orders are not charge accounts.   This fact is clear from the guiding principles of the FAR and common contract law.   As a reminder GAO has also stated that BPA's issued pursuant to a GSA FSS are not contracts, yet task/delivery orders are.  So if a BPA is not a contract under a GSA FSS what are GSA FSS BPA's but charge accounts where a call placed against a GSA FSS BPA must be confirmed by a call/order (task/deliver order).

    I will agree that it really does not matter as procuring agencies, and GSA in managing the FSS program, will do anything they want.  And while agencies and GSA think it makes sense to utlize BPA's, as evidenced by the protest in the original post to this thread it does not, and that is my view. 

     

  2. 18 hours ago, formerfed said:

    It wasn’t.

    Thanks for the history but I am not convinced.   

    I have reviewed the Federal Register (Volume 48, No. 182 dated 9/19/1983) which was the issuance of the Federal Acquisition Regulations where on page 42166 at  FAR 13.203-1(f) provided the following wording which is essentially as it remains today.  

    "(f) BPA’s may also be established with Federal Supply Schedule contractors (see Subpart 8.4) and ADTS Schedule contractors (see Part 39), if not inconsistent with the terms of the applicable schedule contract."

    Noted FAR 13.201 in the 1983 FR noted above did use the term "charge account".

    More interestingly FAR 8.406 addressed BPA's for ordering from Federal Supply Schedules.  The wording from 8.406 is as shown below and I have added the emphasis.  

    "8.406 Blanket purchase agreements. Ordering offices should consider using a Blanket Purchase Agreement (BPA) with schedule contractors to reduce the number of orders and billing and payment documents required for repetitive orders. When the schedule provides for quantity discounts, considerable savings may be effected by establishing a BPA for items for which there is a foreseeable demand. Ordering offices shall comply with Subpart 13.2 and the schedule when establishing a BPA."

    I still conclude that it was not GSA who chose the same term but the drafters of the FAR.  Again placing the wording in FAR Part 13 so that FAR subpart 8.4 could allow for BPA's.  Along the way, and I have admittedly not reserached the FAR yet the current 8.405-3 regarding BPA's has greatly expanded the GSA FSS use of BPA's.   

    My further research was prompted not only by your reference to history but by my own recollection, admittedly very foggy, that I may have written a BPA against a GSA FSS for IBM Selectric Typewriters back in the stubby pencil days.   

    As I noted in my previous post the now explosion of BPA's to establish charge accounts way beyond what might be viewed as a simplified acquisition procedure does not make sense.   So yes I shake my head in wonder because I was around years ago.  I realize the Federal government is a huge procurer of all kinds of stuff but establishing a "charge account" in any form where millions upon millions of dollars of stuff can be acquired, again, does not make sense.

    For reference - https://www.govinfo.gov/content/pkg/FR-1983-09-19/pdf/FR-1983-09-19.pdf#page=1

  3. 39 minutes ago, Vern Edwards said:

    I did not state the basis for pricing and payment; I'm not interested in the basis for pricing and payment at this time; and I did not ask about pricing and payment.

     

    1 hour ago, Vern Edwards said:

    Government contracts typically, though not always, measure effort in units of hours.

    I played off of your mention of "measure".   So in your scenerio if you are not worried about measure and as you say payment then why do you care about parsing the hours? 

     The effort was as noted, shovel, axe, tractor, and time digging, chopping, and watching, the level of each does not matter because you are not doing anything with the level of the effort exerted to accomplish the removal of the stump.  

  4. 1 hour ago, Vern Edwards said:

    And you are going to refuse to answer because you think I posted my question in the wrong category?

    That is not the reason.  It is because you digressed.  

    1 hour ago, Vern Edwards said:

    Are we confusing a pricing technique with an appropriate term of specification

    This exemplifies my concern.  I brought up the thought of pricing (and cost) by posting a rhetorical thought and was chastised for doing so.

    1 hour ago, Vern Edwards said:

    @All:

    Never mind. I should not have come to Wifcon for discussion of this matter.

    You should and can.  Yet do you not have to accept the territory and the even the rules in doing so as frustrating as it may seem to you?

    Level of effort is what one or many put into a task to accomplish it.  The measures of the effort comes in many forms like time and stuff and each of the forms has a level, dare I say quantity, that contributes to the effort to achieve success.

  5. 24 minutes ago, Vern Edwards said:

    Carl said it's not time spent working,

    I did say this.  To clarify "effort" could mean more than time such as materials, equipment

     

    24 minutes ago, Vern Edwards said:

    because work cannot be defined.

    But I did not say this.   My post may have implied it but my use of "work defined" was to set the parameters of why a level of effort type contract (per the FAR) is needed.  My apology for the confusion.

    33 minutes ago, Vern Edwards said:

    And are T&M and L-H contracts level of effort contracts?

    Yes in a general view they are as they require level of effort.   But doesn't every contract?   It would seem the difference between any contract is with regard to how the cost or pricing of the the effort will be paid to the contractor.   

    58 minutes ago, Vern Edwards said:

    The phrase "level of effort" appears 21 times in FAR.

    No biggy but I got 34 results back in my search.

  6. Nope.    Example - Work can not be clearly defined.  There is agreed to sideboards by the parties on the effort with it acknowledged that the effort will accomplish the intended result.  Contract is for 6 months yet the effort needed to accomplish the result in the stated 6 months is only 3 months because folks won't be "working" on weekends, holidays, inclement weather, fire prevention levels, birthdays, fish runs, etc. etc. 

  7. 2 hours ago, Vern Edwards said:

    Question: Does that kind of contract action make sense?

    I am thinking really hard to provide a reasoned response.   I do need clarity.   Looking at comments in the thread already is the "contract" a BPA or a IDIQ?   By my read it is the former based on this line in the protest - "challenging the award of two Blanket Purchase Agreements (BPAs)".

  8. 2 hours ago, Deathdealer said:

     

    On a labor hours contract, a nearly identical service is offered (palm reading for example). We have ongoing weekly services that we are allowed to charge one rate for (ex $30/hr) & then we have random pop up events that the contract says we can charge $50/hr.

    At times the agency will ask us to flex a daily palm readers time (work less hours during the week) to cover a pop up event and only allow us to charge the daily $30/hr rate although the event type is one the contract states we can charge $50/hr for the pop up event.

    I always assume what is in the contract is what we should be able to bill. I have heard the statement "it not only depends on what the contract states but also how it was initially priced."  I'm trying to understand this statement and how the initial pricing should be considered vs what the contract language states. I hope this is coherent, if not I am sure I will know soon enough :) 

    With the details provided it is my view it is what the contract states as that is the intent of contract isn't it?   I could see where the agency could say something in the contract that today we need palm readers to complete what is at hand today and then the next day we believe we have needs for the pop-up to accomplish the need.   Contract language would tell me if such requests would be allowed.  I will also say that setting up a labor hour contract in such a manner could be contrary to the general view that a labor hour contract does not buy hours it buys services to accomplish something where it is "not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence"  (Quote from the FAR regarding application of labor hour contracts).   

    This reference is dated but it is a good read, it might help you further.      The Time-and-Materials Contract: The Time Has Come For A Long, Hard Look    Go here https://www.wifcon.com/analysis.htm scroll down to 2004 and find this article, it might help explain how LH is to work but it may not be how the agency thought their contract should work..  While it is about T&M the concepts apply to LH. 

  9. 36 minutes ago, Vern Edwards said:

    The UCF is one of the best things in the FAR. It was in the ASPR and FPR before FAR. It is an excellent way to organize the content of a solicitation and contract.

    Agreed.  My recollection is that in the move its use was implied to be imperative to provide ease for contractors in viewing solicitations/contracts across all agencies so stuff was essentially in the same place.

     

    39 minutes ago, Vern Edwards said:

    FAR 12.303 prescribes a format to be used "to the maximum extent practicable," but its use is not strictly mandatory, and some agencies now use the UCF to organize commercial item RFPs and contracts.

    And the format of FAR 12.303 is built upon (my terminology) in FAR clasue 52.212-4 paragraph (s) Order of Precedence.

     

    42 minutes ago, Vern Edwards said:

    I recommend use of the UCF for large commercial item RFPs and contracts, because it works. Otherwise, RFPS for commercial items are sometimes badly organized, even chaotic, because contract specialists receive next to no training about organizing and writing RFPs and contracts, and important task.

    Even the small ones by my experience attempt UCF but  are organized poorly and provide in some cases of conflicts that could not/cannot be solved by a simple application of paragraph (s) of 52.212-4.  Consistency is the key and agencies should consider a waiver to paragraph (s) that provides for use of full UCF at the  discreation of the CO. 

    I never understood why FAR 12 departed from UCF for commercial product/item as in my experience there is no real uniform contract format in the commercial market place.  I guess I could be wrong but the commercial terms and conditions I have viewed suggest no consistency across the commercial market place.

    Overall I have always thought the UCF was good as well but it seems the "to the maximum..." is read as an imperative rather than discreationary.  

  10. 2 hours ago, Vern Edwards said:

    Some of you guys said you'd take care of things after I "retired."

    Yep, but I guess we do not get a "A" for effort.   Your wealth of recall and knowledge is a leg up, yet it is frustrating when, especially when not in the Beginners Forum,  references are provided that provide  "magic bullet"and if researched the references would lead to the "more to it" and why there is no magic bullet.

    I do not know and will not explore but I wonder if the question posed to "AI" would generate an answer the OP would accept a face value without having to do future research?

  11. 27 minutes ago, Seeking2Award said:

    FAR 45.301 is irrelevant to my inquiry as is 3.705 (e).

    Bluntly.  What?  You asked for "FAR References" that supported that the concept was ingrained in FAR.   It seems your want a magic bullet and you are not goingto get one in my view as it flat out depends in every instant case.   The magic of Federal contracting.  And I might add that is why in a general statement on my part, depending on case law as noted in the thread I provided earlier, does not get the matter of the concept of consideration.

    Have a great day!

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