C Culham

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Everything posted by C Culham

  1. FAR - Thank you for the references. Interesting read inclusive of "Other Transactions” (OT) Guide for Prototype Projects, (OASD AT&L, August 2002)" which is stated to be the most current guidance regarding OTs. A complex mix of an "agreement" that is not considered a grant or cooperative agreement and an acquisition that is not a "procurement" subject to the FAR. In a quick read of both the linkedin discussion and the Guide your above quote especially rings true. Noting a question in this thread by Matthew Fleharty it would appear that a Government purchase card could be used but by my read there would be the need for a supporting "agreement". I am of the conclusion that for the example used ins this thread, an expenditure of $3,500 or less, that the effort to comply with the whole of the OT Guide would be very exhausting. Also I would add that if OT would fit most if not all of us would have trouble releasing ourselves from the FAR principles which again would not apply. Heck the Guide even provides mention of some that are terms at least borrowed from the FAR such as market research, competition, advance payments, etc. and I might add FAR you even go back and forth in trying to figure where something like Kickstarter really lands. More shoehorning? Learning and adapting the new ways is a must but trying to separate from the old ways when doing seems to be hang-up! PS - To Joel - Like any transaction to which the Federal government enters into with a commercial source, yeah maybe but it depends on the situation. Dodge of your question I do not think so as sometimes something makes economic and administrative sense and sometimes it does not.
  2. All things being equal make a recommendation to the SSA that Team believe is appropriate. Maybe a too simplistic view but I wonder if you answered your own question especially when considering a restatement of a basic view of GAO that goes something like this - our Office will not question an agency’s evaluation where it is reasonable, consistent with the solicitation’s stated evaluation criteria, and is documented."
  3. Square peg into a round hole? Trying to fit Kickstarter requirements into those of the FAR would be "lot of work". Already noted is the impact of FAR part 32 if the effort is below the SAT. Thinking bigger brings into consideration FAR part 35 and even possibly FAR 31.205-18. Cleary there is intent by the Federal government to be active in the world of R&D, some agencies are appropriated funds for this specific purpose. Kickstarter would seem to fit. I really wonder, at least at this point in time, if it is more effort than it would be worth to make the FAR requirements align with Kickstarter to accomplish the effort. Using the parameters of this this thread (micro-purchase level) and as already stated in this thread of sorts, why not just wait until Kickstarter is successful in creating something and then buy the dang thing? Of course there is the tried and true way of not wringing hands and just use the card, spend the money and wait for a possible end widget. Easily said and easily done but for me the bigger consideration is well heck I (as the program area) did it (that is fund a R&D procurement) with a government card to Kickstarter for a micro-purchase, now I want to do if for something within the SAT as a single source or better yet do it for something over the SAT on a sole source basis. Again the square peg into the round hole comes to mind especially when considering marrying FAR with that administrative and terms and conditions of Kickstarter. Someday it will happen but I am thinking that the "lot of work" is going to encompass the entirety of the FAR principles from market research to the end game of an awarded contract as from my chair there is more to it than simply can the government purchase card be used.
  4. ContractingPeoples - I do not want to make more of this than should be but the following statement you made needs some expansion with regard to a response in my view..... Everything stated in this thread is factual and the answer is No nothing to cite to throw them out. However you may want to consider the matter of "Affiliation". As certification for a Federal procurement occurs at time of offer and if in that offer the small business indicates that a large business will be doing 99% of the work a CO might be inclined to review the relationship of the SB to the LB to determine if there is the hint of affiliation. If affiliation seems to be present you may protest the contractors certification to SBA (FAR 19.302).
  5. Don - Prohibited by regulation. It is a form of contract financing. Reference FAR 32.003 but as stated unless agency regulation otherwise permits.
  6. The previous post in this thread has failed to mention that in a further read the quoted January 2001 rule had a subsequent interim rule - FAC 2005-21 (website reference below) and in part quoted below, and a final rule (website reference also below) in which language regarding real estate was not changed in the FAR from that found in FAC 2005-21. Interesting how application would occur once the estimated contract value and method of contracting are determined with regard to the specific situation stated by the OP. https://www.federalregister.gov/documents/2007/11/07/07-5481/federal-acquisition-regulation-far-case-2001-004-exemption-of-certain-service-contracts-from-the http://www.wifcon.com/2009/2001_4_final.pdf A. Background On January 18, 2001, the Wage and Hour Division of the U.S. Department of Labor's Employment Standards Administration, issued a final rule amending the regulations at 29 CFR part 4 to exempt certain contracts for services meeting specific criteria from coverage under the SCA (66 FR 5327). The Councils opened FAR case 2001-004 to implement the Department of Labor (DoL) rule. The FAR currently exempts contracts (or subcontracts) principally for the maintenance, calibration, or repair of certain equipment if…… In addition to this first category of service contracts, in order to implement the new DoL regulations, the FAR interim rule establishes a new category of exemption for contracts for certain services that includes the following:…….. Transportation by common carrier of persons by air, motor vehicle, rail, or marine vessel on regularly scheduled routes or via standard commercial services (not including charter services). Real estate services, including real property appraisal services, related to housing Federal agencies or disposing of real property owned by the Government. Relocation services, including services of real estate brokers and appraisers to assist Federal employees or military personnel in buying and selling homes (which shall not include actual moving or storage of household goods and related services). In order for these contracts for services to be exempt, the contract must meet all the criteria for the other services in the first category (substituting “services” for “item of equipment” in the first criterion, and removing other specific references to “equipment” and “manufacturer”), BUT THE CONTRACT MUST ALSO MEET THE FOLLOWING CRITERIA (emphasis added): The services under the contract (or subcontract) will be awarded on a sole-source basis or the contractor will be selected for award based on other factors in addition to price or cost, with the combination of other factors at least as important as price or cost in selecting the contractor. Each service employee who will perform the services under the contract (or subcontract) will spend only a small portion of his or her time (a monthly average of less than 20 percent of the available hours on an annualized basis, or less than 20 percent of available hours during the contract period if the contract period is less than a month) servicing the Government contract (or subcontract). The contracting officer (or contractor with respect to a subcontract) determines in advance, based on the nature of the contract (or subcontract) requirements and knowledge of the practices of likely offerors, that all or nearly all offerors will meet the conditions. If the services are currently being performed under contract (or subcontract), the contracting officer (or contractor with respect to a subcontract) shall consider the practices of the existing contractor (or subcontractor) in making a determination regarding the conditions. The apparent successful offeror certifies, the contracting officer has no reason to doubt the certification, and the contracting officer determines that the same certification is obtained from substantially all other offerors that are— In the competitive range, if discussions are to be conducted (see FAR 15.306)(c)); or Considered responsive, if award is to be made without discussions (see FAR 15.306(a)). Council representatives discussed with DoL the implementation of the DoL rule for these contracts for services at the point of receipt of offers. The FAR rule attempts to minimize the occurrence of the situation in which it will be necessary to revise the solicitation after receipt of offers to remove the exemption provision and require use of the SCA clauses, even though the apparent successful offeror certified to criteria for the exemption. The FAR rule uses the term “substantially all” to indicate that there could be a slightly different interpretation of the phrase “all or nearly all” than at the beginning of the process. DoL concurs that the contracting officer will have the discretion to interpret this term, as long as the intention reflected in the preamble to the SCA regulations (66 FR 5327) controls the contracting officer's exercise of discretion. DoL also concurs that it is not necessary to consider offerors that did not certify if these offerors were not in the competitive range or not responsive. Therefore, the FAR rule adds this condition when considering whether substantially all offerors have certified……
  7. Vern – In trying to wrap my head around this one do you think the below is off base and if so why? The Service Contract Statute requires that certain service contracts are “subject” to the statute (41 USC 6702) and in the end when you hash out the FAR and the CFR it is left to the contractor and not the Government as to which individual employees under a service contract the Statute (and related CFR) would be applicable based on limitations, variations, tolerances and exemptions that may apply. I know it is cherry picking to an extent but one reference from the CFR you have provided, specifically 29 CFR 4.156 seems to suggest this as well in that it states certain employees “are not excluded from coverage” if they cannot meet the test of 29 CFR Part 541. Noting this would not the response to the OP’s question be something like this? The exemption of 22.1003-4(d)(1)(vi) as well as other exemptions of the FAR and the related 29 CFR may apply but such exemptions are left for the contractor to determine. The procurement itself is “subject” to the Service Contract Statute as it is for a service as included in the Statute and therefore you are limited to the $2500 threshold.
  8. Providing the following for information only AND NOT to imply there is a dollar threshold for doing price analysis.….I have just heard of folks applying the following FAR guidelines in the manner you have stated for a commercial item. The references to other parts of FAR Part 15 are important to look at as well to get a full view of the specific paragraphs I have quoted. FAR 15.400 states - This subpart prescribes the cost and price negotiation policies and procedures for pricing negotiated prime contracts (including subcontracts) and contract modifications, including modifications to contracts awarded by sealed bidding. FAR 15.403-3 (c) Commercial Item states - At a minimum, the contracting officer must use price analysis to determine whether the price is fair and reasonable whenever the contracting officer acquires a commercial item (see 15.404-1(b)). The fact that a price is included in a catalog does not, in and of itself, make it fair and reasonable. If the contracting officer cannot determine whether an offered price is fair and reasonable, even after obtaining additional data from sources other than the offeror, then the contracting officer shall require the offeror to submit data other than certified cost or pricing data to support further analysis (see 15.404-1). This data may include history of sales to non-governmental and governmental entities, cost data, or any other information the contracting officer requires to determine the price is fair and reasonable. Unless an exception under 15.403-1(b)(1) or (2) applies, the contracting officer shall require that the data submitted by the offeror include, at a minimum, appropriate data on the prices at which the same item or similar items have previously been sold, adequate for determining the reasonableness of the price. (2) Limitations relating to commercial items (10 U.S.C. 2306a(d)(2) and 41 U.S.C. 3505(b)). (i) The contracting officer shall limit requests for sales data relating to commercial items to data for the same or similar items during a relevant time period. (ii) The contracting officer shall, to the maximum extent practicable, limit the scope of the request for data relating to commercial items to include only data that are in the form regularly maintained by the offeror as part of its commercial operations. (iii) The Government shall not disclose outside the Government data obtained relating to commercial items that is exempt from disclosure under 24.202(a) or the Freedom of Information Act (5 U.S.C. 552(b)). (3) For services that are not offered and sold competitively in substantial quantities in the commercial marketplace, but are of a type offered and sold competitively in substantial quantities in the commercial marketplace, see 15.403-1(c)(3)(ii). (ii) Purchasing a supply or service for which no comparable pricing information is readily available (e.g., a supply or service that is not the same as, or is not similar to, other supplies or services that have recently been purchased on a competitive basis). Again providing this only because I have heard of its application in the manner you have noted.
  9. Thanks Retread.....FAR 44.402 provides for mandatory clauses. Per the same subpart the Government has the iallowance (may) to include other clauses as appropriate. Likewise a prime may include clauses they prefer in their subcontracts. As to those that the Government and a prime may feel obligated to include I will leave it to each to determine. For me it is a slippery slope if by example the Government and the prime elect not to include 52.224-2 in certain prime/subcontracts to which the Privacy Act would be applicable. Right, wrong or in different application of FAR who knows as by example of statements in this thread the dang clause (224-2) may end up in the prime/subcontract anyway. That is it!
  10. “When an agency provides by a contract for the operation by or on behalf of the agency of a system of records to accomplish an agency function, the agency shall, consistent with its authority, cause the requirements of this section to be applied to such system. For purposes of subsection (i) of this section any such contractor and any employee of such contractor, if such contract is agreed to on or after the effective date of this section [9-27-75], shall be considered to be an employee of an agency.” 5 U.S.C. § 552a(m)(1).
  11. Vern – Your thinking to get to the conclusion to include the clause 52.224-2 in subcontracts of the prime is understood with but my read is that 44.402 is less than clear and inconsistent with its own direction. As such I believe, in a departure with your view, that 52.224-2 is to be flowed down as a contract obligation. Policy as stated in 44.402(a)(ii) is subcontractors shall not be required to apply any clause to their subcontracts except those “(i) Required to implement provisions of law or executive orders applicable to subcontractors furnishing commercial items or commercial components” . FAR 52.224-2 is required by law when applicable and is not simply an agency unique requirement yet 52.244-6 does not include it. I find it inconsistent with FAR stated policy at 44.402 and by direction of 52.244-6 that 52.224-3, inclusive of it’s Alt 1, is to be flowed down “when” contractor employees have access, create, design a system that includes privacy information but 52.224-2 is not. I do understand the whole of this thread so there is no need to go further, it is just my opinion as to the obligation of the prime to include a clause such as 52.224-2. Another such clause is 52.223-18. As such I am not as confident as you and others in this thread that the meaning of 52.244-6 is a clear contract clause in putting forth the policy stated in FAR 44.402. That's it.
  12. 1. No 5. Yes 6. Yes 7. No 52.224-2 is in the contract as a separate clause
  13. If I have read correctly conclusions of this thread is that DCMA may not be doing an adequate job of understanding and providing advice on implementation of the FAR with regard to clauses and contractors should know and understand the FAR in the conduct of government business. Raised as well is whether the FAR in and of itself provides less than adequate and clear advice on the specific matter of flow down of clauses to subcontracts for commercial items/components. As illustration of the latter consider the wording in FAR 52.224-2 Privacy Act at paragraph (a)(3) and balancing the Privacy Act clause with FAR 52.244-6,especially that at paragraph (d), and the language of FAR 44.402(b)? FAR 52.224(a)(3)....... Include this clause, including this subparagraph (3), in all subcontracts awarded under this contract which requires the design, development, or operation of such a system of records. Shall a prime contractor include or not include FAR 52.224-2 in all subcontracts or not?
  14. Vern - I agree yet I am trying to understand the comment? Are you saying that "complex"ity of the work determines whether the supply, service, or construction project's price is fair and reasonable? I am probably not getting it but I thought the discussion of this thread was what approach to looking at an offer - objective and subjective - might apply with regard to determining fair and reasonable price?
  15. I would agree. My view may be too narrow whereby I have not dedicated a lot of time to thinking about the matter. But my conclusion is based on this. Consider an award of of a simplified acquisition based solely on price, or a sealed bid.
  16. A couple of links that you might find helpful………for the first link go to the menu on the left had side and go to "Prompt Payment". For the second link do a search of the document on "60" for discussion about the cost of money. https://www.fiscal.treasury.gov/fsservices/gov/pmt/payments_home.htm https://www.asaonline.com/eweb/tcc/TCCJan2015/tcc_2015_Jan.pdf
  17. I agree with Gordon Shumway. Additionally there might be legal options for a competitor who was not the successful offeror in a competition but would the legal arguments be made on sound facts. In some cases where there is smoke there is fire but in others, which I might suggest are in the majority based on first hand experience, the word coming back could very well be without basis. Move along and concentrate on being successful on the next competition!
  18. Set up the two BPA’s, that simple. – REF: FAR 13.303-2 Each need over the micro purchase level is then competed amongst the two BPA holders and if you think the BPA’s DO NOT provide for adequate competition for a particular call then you follow FAR Part 5. REF: FAR 13.303-5(d) Absent other information and if “with only two local firms that do this sort of repair work.” is in fact a very limiting factor on getting other competition it might be true that every time you have a need and competing with the two firms is adequate competition. Only other thought would be doing a “Sources Sought” synopsis to assure yourself that the 2 firms are the only game in town. If you find additional firms then you could have more BPAs if you very that there are no other firms it will support that the 2 firms are the only game in town and the adequate competition policy.
  19. Onix Networking Corporation B-411841: Nov 9, 2015 "In determining whether a modification is outside the scope of an underlying contract (or in this case, a delivery order), our Office considers whether there is a material difference between the modification and the contract. DynCorp Int’l LLC, B-402349, Mar. 15, 2010, 2010 CPD ¶ 59 at 6; MCI Telecomms. Corp., supra. 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. See Anteon Corp., B-293523, B-293523.2, Mar. 29, 2004, 2004 CPD ¶ 51 at 5. The overall inquiry is whether the modification is of a nature that potential offerors reasonably would have anticipated competing for the goods or services being acquired through issuance of the modification. Id." Found in an array of decision found here - http://www.wifcon.com/pd6_001.htm Seems I am convinced too. As Joel has said go for it!
  20. Generally speaking the agency would have to refer for a COC however details count so you might want to read the cases in this area of WIFCON. http://www.wifcon.com/pd19_6022.htm Is this the reference you noted? https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2015cv1550-35-0 If so my read of the of the decision is a little different than yours as it relates to the COC. My read is that is was concluded by the court that the agency was proper in referring Enviroworks for a COC where another contractor Lawson thought they should not be and in so doing a COC was granted even though it might be concluded that Enviroworks key personnel did not meet the pass/fail test. Yes I guess the situation could occur. But my view is that it is a double edge sword so to speak. If I was the contractor left in competitive range I would be happy if such a situation occurred, if I was the contractor that was eliminated, well I would be unhappy if I knew the situation to be factual true, but proving it to be factually true to the point where I would protest would difficult I would think. Seems the above noted COFC case demonstrates how hard it would be to prove. PS - Bob just beat me to the punch on the WIFCON reference but since I went to the effort to type this up I am posting anyway.......
  21. I think this previous discussion will help........
  22. rsenn - Are you sure? From experience of being a CO on a variety of service contracts or involved in others from tree planting , janitorial, commercial laundry, to a nationwide IT support some how your quote does not ring true to me. From my view the Government describes work to be done or now days the end result expected and the contractor develops the labor mix they feel will accomplish the work or in other words develops the labor category descriptions they expect. Hopefully the contractor uses the most current Service Contract Directory of Occupations to assist so the employees are properly categorized in the appropriate SCA wage occupation for the work they will be performing. By simple example the company running a nursery for the Government hires what they call a "forestry technician" but that position is truly doing what the Directory calls a "tree planter, mechanical" and hopefully the contractor is paying at that rate (or more). A successor contractor then decides not as many tree planters, mechanical are needed but intends to use "tree planters" (more of them probably) and makes offers to the incumbent employees to work at a lessor rate on the same contract, running the nursery. To me a simple example to my aforementioned "Also the new contractors approach to the service may actually have less staffing", or different staffing approach, so I get lost in how the superior knowledge applies. It would seem the contractor has the superior knowledge of how they intend to perform the work. Using my example it would seem to me that the only way your position would be supported is if the solicitation were to specifically state that a contractor must have X number of "tree planters, mechanical " to perform the work. In this new world of performance based contracting I would think such a situation would be rare. But again that is just how I see it. Hope this helps.
  23. So from a different angle with no history research done on the clause. While Federal government contracts are with a contractor and not its employees United States Federal contracting labor laws clearly are intended to protect the rights of contractor employees. By example FAR 52.222-43 allows for the adjustment you are concerned with if the contract is performed in the United States. The ingrained protection for the worker is that if they are not paid the proper SCA stipulated wage and benefit after the contractor is subject to the wage/benefit adjustment and verifies that they need a contract adjustment allowed by the clause the worker can file a claim with the DOL. Bottom line from my quick review of the questioned clause and application of what would happen in the United States, Federal contracting regulations are not quite as concerned about worker protections for contracts performed outside the United States.
  24. Did you read through these before posting your questions? http://www.wifcon.com/pd15_305.htm Does FAR 52.215-1 include Alternate No. 1? Did you read FAR 15.307?