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C Culham

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  1. Nope they should walkaway knowing an estimated value/quantity is required for a GSA FSS BPA that is ANALAGOUS to a ceiling as having such requires an action. @ji20874brought up BPA's not me. I didn't want folks walking away thinking that a GSA FSS BPA didn't require an estimated/quantity that is ANALAGOUS to a ceiling that requires an action.
  2. My continued discussion has been an attempt to support that the guiding principles of FAR 8.405-3(a)(4) and 8.405-3(e)(1)(iii) are ANALAGOUS to a ceiling in that the reqiured ("shall") actions are to address an upper limit of a GSA FSS BPA when initially established and annually. The actions are in my view counter to a statement that GSA FSS BPAs donot have an upper limit, albeit an estimate, at which an action is to occur. In support of my view the references I have provided demonstrate that others such as GAO and OIG have furthered that estimate of need/use is a upper limit ("ceiling") at which certain actions are required. The premise that a GSA FSS BPA is procurement strategy that has no maximum or ceiling required is off base in my view. It may not be a ceiling that establishes scope but it is a ceiling that demands action of a CO in establishing and administering a GSA FSS BPA. A standard that is even addressed in this training - "Blanket Purchase Agreements(BPAs) and the GSA MAS Program" at page 49. Others may not see it the same way as I do and thats ok by me. Thanks.
  3. Or a view that it is proper analogous terminology. https://www.gao.gov/products/b-410682
  4. Ergo a ceiling on which an action is to be taken. Ceiling - an upper limit, typically one set on prices, wages, or expenditure. Some such as the Commerce OIG believes FAR discussion regarding GSA FSS BPAs are analogous to ceiling. REF OIG-18-014-A, 2/26/18 and OIG-18-023-A, 7/30/18. So as it goes it depends on the eyes of the beholder. The OP has gotten opinion here, he/she shoukd discuss internally with fellow practioners as the agency view is most likely more important than those of WIFCON. There may be risks to the approach and there may not be.
  5. Are you sure? It would seem FAR 8.4 requires a limitation that could be analogous to or cause an action like a ceiling. "(4) BPAs shall address the frequency of ordering, invoicing, discounts, requirements (e.g., estimated quantities, work to be performed), delivery locations, and time" And "Review of BPAs. (1) The ordering activity contracting officer shall review the BPA and determine in writing, at least once a year (e.g., at option exercise), whether- (i) The schedule contract, upon which the BPA was established, is still in effect; (ii) The BPA still represents the best value (see 8.404(d)); and (iii) Estimated quantities/amounts have been exceeded and additional price reductions can be obtained. (2) The determination shall be included in the BPA file documentation."
  6. Reference FAR 16.504. The ceiling helps establish scope. It could be scope could be established in another manner. You might read through these.. http://www.wifcon.com/pd16_505a6.htm
  7. The COR world after the original OFPP memorandums has been created by apathetic attitudes. It is like everything else the Government does not have to comply with a contract promise but the contractor does!
  8. "All COTRs appointed to a contract after the effective date of this policy must be certified no later than six months from their date of appointment and must maintain their skills currency through continuous learning." Reference - https://www.fai.gov/sites/default/files/pdfss/11-26-COTR-Memo.pdf The memo referenced by the OP was the second in a series of OFPP memos. Above is the first and this statement (quoted) was not revised by the second other than it redefined COTR as COR. By my read of both memos the OFPP position required a then COTR and now COR be certified and maintain that certification as long as they are appointed as COR unless waived. As to policy some agencies do have it written and it would seem the adverse action is removal from the contract. Example https://ibc.doi.gov/acquisition/cor-certification "IBC may elect to terminate a COR appointment if, during the performance period of a contract, the COR’s certification expires. IBC will terminate an appointment if the COR’s performance does not adequately protect the government’s best interests. The IBC contracting officer has the authority to revoke the COR appointment at any time." Here is another policy (regulation) statement - https://www.acquisition.gov/gsam/501.604 And while DoD is excluded from the memo their policy seems to be the same - "(4) The COR certification remains in effect until either the contract period of performance ends or the COR is terminated by the contracting officer." REF: 5000.72 found here https://www.dau.edu/cop/cor/Pages/Topics/Policy and Guidance.aspx @2FARGone As I noted before I have experienced instances of adverse action beyond seeing a COR removed from a contract when certification is not maintained. Such as an exception with regard to an internal process review. Both removal and exception with regard to IPR back in the day were viewed "adverse" as some folks use to value COR certificaiton. Likewise without certification I experienced instances of acting outside the scope of authority - example COR with certification designated to contract, COR no longer certified per agency requirements for certification, no waiver sought, CO leaves COR on contract, agency policy said they should have been removed, did COR retain authorities stated in their designation like having authority to inspect the work? All said and noting your comments about your agency not having a policy two thoughts. If you are the CO that appointed the COR your judgement counts. As to agency policy, and while it would seem you have done research, I would simply ask are you sure? Who in your agency has confirmed your view? The HCA? I just pose this not to question your research but by my experience of having been intimately involved in COR stuff back in the day I am honestly surprised your agency would not have policy like those I have provided as reference. Then again as it goes the policy of OFPP and that with regard to COR certification is fleeting in this new world of acquisition management in the Federal sector.
  9. I would refer to your agency policy as it may be a reason for an adverse process review especially if your agency policy has imperative statements regarding having a certified COR assigned to a contract. Additionally I have experienced matters related to acting within scope related to certification which in part relate to a personnel matter.
  10. Relational Contracting? Pardon me with admission that I am old school! Computers, IA, text messaging, video conferences, emails - I remember the days when I would "lase up my boots" and visit contractors at the construction site, the services site, the supply site, you name it. Maybe everyone can live in the new world and make it work but a personal handshake; a sit down on the job to visit; in person partnering versus Zoom; your get the idea seems to have been relational contracting to me. Today it is just another term that I fear is equal to performance based. The conclusion I guess is - if it works it works - really does apply. Yet the days of funded mandates to make contracting officers really what they are intended to be are gone. Now the acquisition workforce managed by dollars and cents rather than what it really takes to have effective contracting. Maybe it is a past that should be repeated!
  11. Interesting. You have many concepts at play based on the OP. First IDIQ where a 8(a) set-aside either because the IDIQ is an 8(a) set-aside or because you are limiting competition to a single source under a multiple award IDIQ to an 8(a) contractor. You are doing a design-build as other than a two step. As a design-build I am making the assumption that the contract type for the Task Order will be FFP. With these unique facts noted here are my thoughts - In a general application of the FAR and fiscal law Firm Fixed Price contracts are not doable. Why? The total FFP is to be obligated. This said agency supplement to the FAR such as DFAR 232.704-70 does provide otherwise. Absent agency supplement the other option is that if the need is a true 8(a) sole source of a design-build project and the agency is not subject to the DFARS I could see where the Task Order could be awarded as a FFP and have wording that supports the award with Government obligation limitations similar to 232.704-70 . I say this noting in a sole source environment where everything is negotiable except that stipulated by law (statute or case law), Executive order or other regulation. To the the caveats, 8(a) as a law would seem to allow in consideration of the further regulation regarding the 8(a) law. I did not do case law research on the specifics of your scenario in part because if truly an 8(a) sole source I doubt that the matter would have ever surfaced. I know of no Executive Order that would deal with such a matter. Other regulation, I did no research but I darn sure would talk to the appropriate people in what I will call budget and finance to get their view as availability of appropriations and other concepts regarding fiscal responsibility come into play. Heck even the electronic systems used in contract writing may not allow but I am no expert on the systems. Overall I have other thoughts based on assumptions as you have not provided facts I would need. Hope this helps and no doubt my comments will unleash a stream of other thoughts for you to consider. PS - As I expect the OP will unleash lots of discussion here is something I found. Not saying it helps just my quick two minute research as I am only providing thoughts based on experience not thoughts based on extensive research.
  12. Makes sense. Your posts regarding common law are bolster the view as well. With the addition of Don's post I guess I withdraw obscure origin and just stick with obscure application.
  13. So here is an interesting tidbit. When the FAR first came into being order of precedence was only applicable to solicitations. The now clauses were provisions. FAR 52.214-11 and FAR 52.215-18. REF. https://tile.loc.gov/storage-services/service/ll/fedreg/fr048/fr048182/fr048182.pdf In 1986 in the wisdom of the FAR Council they concluded the provisions regarding order of precedence "should be converted" to contract clauses. Of note no public comments were solicited for the FAC (84-12). REF. https://archives.federalregister.gov/issue_slice/1986/1/17/2623-2668.pdf#page=44 It would seem that the now 52.215-8 has an obscure origin as a contract clause and is more or less an attempt to provide a remedy matrix when parts of the contract are in conflict. As I have concluded previously if the conflict can not be solved by mutual agreement through application of the clause then the contracting parties end up in court to figure it out and a whole bunch more is used to make a conclusion beyond the wording of FAR 52.215-8. My mind is not 100% made up but by all accounts of this thread, and other readings I have done regarding order of precedence clauses in the public sector (AIA being one) the hygienic application of the clause to less than hygienic contracts has its own life depending on the specifics of each contract.
  14. Yes I know. Page W-1 which is an example of a Task Order SOW. Of interest to me is if 52.215-8 is in the parent then how can a Task Order change the precedence. My read of case law, admittedly limited, suggests that the ordering clause (52.216-18) would set the precedence. It states - "All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control." I find nothing in the USACE instruction that provides something other than 52.216-18 should be used for the ordering clause. So the conundrum by my read of at least the instruction is use UCF, therefore put 52.215-8 in the parent contract but oh by the way in a order lets restate precedence and make Exhibit A be precedent to Section C. So the order says Exhibit A, the contract says Section C so per 52.216-18 does not Section C have precedent? You can hash it out in your own mind, I will just stick to my view, if the parties can not work what has precedent even in light of the language of the contract that tries to set precedence then the dispute will be taken to the courts and a court will decide.
  15. As the thread winds on certain things in a re-read get me to looking. I found this to be interesting as related to the question, maybe they can be both? ( Contracting officers shall insert the clause at 452.211-72, Statement of Work/Specifications, when the description (statement of work) or specification(s) is included in Section J of the solicitation.) AGAR 452.211-72 Statement of Work/Specifications. As prescribed in 411.171, insert the following clause: Statement of Work/Specifications (FEB 1988) The Contractor shall furnish the necessary personnel, material, equipment, services and facilities (except as otherwise specified), to perform the Statement of Work/Specifications referenced in Section J. (End of clause) Here there is reference to 52.215-8 and in "Discussion" a short paragraph (in relation to the decision as a whole) about order of precedence. https://www.cbca.gov/files/decisions/2019/KULLBERG_07-01-19_4968__OPTIMUM_SERVICES_INC.pdf Thanks for the clarification but I get the feeling that even the USACE likes confusing things. A quote from this - https://www.publications.usace.army.mil/portals/76/publications/engineerpamphlets/ep_715-1-7.pdf "2. PRECEDENCE. This Scope of Work (SOW) and the accompanying Exhibit A provide specific instructions for the design of this project and, in case of conflicts, take precedence over the requirements of Section C of the IDC." My takeaway is this which seems to be a takeaway that can be leaned on a lot. Order of precedence in the end will be dictated by the specific facts of the contract. While generally a clause like 52.215-8 will help should there be a dispute about order the parties either figure it out by mutual agreement or they end up in a court and let the court make the final decision.
  16. I have difficulty applying these examples with regard to the discussion when FAR clause 52.215-8 is not mandatory to, and most likely rarely found in construction and A-E contracts. I suggest it confuses the concepts being discussed.
  17. Yes. Exception would be beyond FAR Part 11, the beyond could be per case law as well.
  18. It does cover the descriptions and work statement. Off topic of your question I would note the SF-33 is counter to FAR 15.204 where all references regarding Section C use "statement of work". Now to clarify, if Section C is only the Specifications, also could be called a Statement of Work, and that's it then Section C would in effect pursuant to 52.215-8 (if in the contract) become last in precedence. But if Section C also had a standalone clause, paragraph, whatever you wanted to call it that by example says - "This contract is for the cleaning of all restrooms in building X", and then had a whole bunch of paragraphs saying what, how, etc (statement of work) the latter bunch of paragraphs would be last in precedence. That is my easy interpretation of how I read the FAR. Yep I am sure it depends on the specifics of a particular contract. I fear the lack formatting a solicitation/contract specific to FAR Part 15 when required has caused all types of interpretations. I did some looking and could not easily find an example in SAM.gov but in another search I found this example. In this case it would seem that the Section C Performance Work Statement is akin to specifications/statement of work and therefore its contents become last in precedence. 52.215-8 was in this back when solicitation. Ref. https://www.nsf.gov/policies/contracts/asc/contract_award_sf_33_and_sections_a_through_j_through_section_j_table_of_contents_1_redacted.pdf SECTION C – DESCRIPTION/SPECIFICTIONS/WORK STATEMENT The contractor shall provide the materials and services required to support the United States Antarctic Program (USAP) in accordance with the Performance Work Statement (PWS) located at Section J, Attachment 2. The contractor shall provide transition-in requirements in accordance with the Transitionin Statement of Work located at Section J, Attachment 11.
  19. I read through all the comments and have no general disagreement with thread as it evolved. But has the discussion perfected precedence via 52.215-8? Has not the conversation overlooked FAR 15.204-1 through -5. "The Schedule" includes both Section C and H therefore they are of equal precedence except that part of C that are specifications (also SOW) which become last in precedence. The directions of the FAR is bolstered if the SF-33 is used as the award document as the "Table of Contents" of the SF-33 places both C and H in "The Schedule". When C and H wording are at odds with each other I believe the instant facts of the contract along with case law regarding other legal concepts would come into play to determine whether wording in C or H is concluded to have precedence. Following the FAR clause 52.215-8 further what has been provided as detail in the thread supports why Sections A through H, and any clauses there in demanded by the specifics of the contract (example inspection, delivery, and there are others) have precedence over FAR (regulation) clauses or in other words those that shall be placed in Section I. Added as an edited afterthought. I attempted to use the FAR matrix tool to see if it would place any FAR clauses in H. It did not. Others may be able to but I was not successful.
  20. i understand and read the MTBP statutes and agency application the same. Your find regarding DoD was helpful in getting me aligned back to the real question posed by the OP.
  21. Thanks Vern. When I first read the OP I ended up here (see link) and then I re-read and got on track. Yep no connection just another point of interest. https://origin-www.gsa.gov/travel/agency-services/rideshare/rideshare-faq And this in the Q&A's - Can DoD contractors use the Rideshare BPA? Yes, as long as the contractor travels on behalf of and is reimbursed by the government, the Rideshare BPA can be used.
  22. In poking around regarding the OP I found this. Interesting read.....not intended to provide a specific response to the OP's question as that has been done but yet there is some connection. https://www.gao.gov/assets/b-330935.pdf
  23. Well it depends. This WIFCON reference may be of interest. http://www.wifcon.com/pd13_1061b.htm
  24. See FAR 13.106-3 (c) and (d) if as you say the procurement was below the SAT.
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