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C Culham

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Everything posted by C Culham

  1. C Culham

    Charging Fee for use of IDIQ

    Coming in late I understand but in reading and re-reading this thread it seems that FAR subpart 17.5 along with FAR subpart 17.7 provide information that answers the OP's question.
  2. The OP has stated it is a FFP contract. I find the contract term and position of the government a little troubling. If material was also needed would the government be asking for breakdown of cost excluding profit for it. A subs effort is a cost to the prime and I have trouble extending the exclusion of profit on sub effort. Seems the subs cost inclusive of profit is allocable. Poorly written term in my view.
  3. C Culham

    Excessive Salaries

    CF - Do not overlook 13 CFR 124.112(d)
  4. I have seen SaaS characterized as "rental"as well. This is not to suggest that as such it would overcome legal concerns regarding advance payment just noting how SaaS is portrayed.
  5. By my read the decision's use of Christian is more than a passing remark or opinion as the decision goes to a fair amount of length to support that the Christian Doctrine applies and is a basis to the overall decision.
  6. Neil and Retreadfed - I agree and seems that the Doctrine is rewritten in this decision to state a mandatory part of the FAR that expresses a significant or deeply ingrained strand of public procurement policy will be incorporated into a Government contract by operation of law as opposed to the previous holding that a mandatory clause that expresses a significant or deeply ingrained strand of public procurement policy will be incorporated into a Government contract by operation of law (emphasis added). It will be interesting how the impact of the decision unfolds.
  7. C Culham

    NDAA Implementation

    Thanks Bob
  8. C Culham

    NDAA Implementation

    Bob - Never mind. In a re-read I understand the comments related to Section 826 and those you used are to 827. With this said it would seem that concerns and reasoning for 826 do relate to 827 as well. Oh well, the NDAA is what it is regardless of why it is.
  9. C Culham

    NDAA Implementation

    Bob - Paint me confused. I found the same wording here....https://www.congress.gov/114/crpt/srpt255/CRPT-114srpt255.pdf..... but chose the reference used because it was less to wade through. Is not this Report legislative history? It states that it is to "accompany S.2943" Likewise your posted reference uses the same "Section 827". Help me understand why my post "should not be used for anything?"
  10. C Culham

    NDAA Implementation

    I found the following here - https://fas.org/sgp/crs/natsec/R44561.pdf (page 5) "The committee is frustrated by the continuous dependence of the Department of Defense on the use of cost type contracts. While there are some circumstances where cost-type contracts may be appropriate, the Department has over the years expanded the use of these types of contacts as a forcing mechanism to achieve absolute certainty in visibility over contractor costs.... The effect of the overuse of cost-type contracts is the narrowing of the industrial base as commercial firms make a choice not to invest in the unique accounting and financial systems necessary to execute a cost contract. While the committee has not mandated a complete ban on cost contracting this provision is designed to set up incentives that limit its use to appropriate exceptional cases." To which the Administration stated (note Section 827 was the predecessor to 829 by my read) "Section 826 would unnecessarily constrain flexibility to tailor contract types for a given requirement. It also creates a complex financial transaction process that, to be auditable, will require extremely burdensome procedures. The Administration also objects to section 827, which would require higher level approval for the use of other than fixed-price contracts. This requirement is unnecessary and would result in the Department experiencing increased costs in situations where a cost-type contract would have been more appropriate. Acquisition officials and contracting officers should have the full range of contract types available to structure business arrangements that achieve a reasonable balance of risk between the Government and the contractor, while providing the contractor with the greatest incentive for efficient and economical performance. There is extensive history that demonstrates conclusively that fixed-price development is not in the Government or industry's interest in many circumstances." Now I am no expert but the statement by the committee sounds like lobbying interest impact to me.
  11. C Culham

    NDAA Implementation

    I might almost be convinced in a hard re-read of the language but are we (yep including myself now) sure? A full read says the CO can't do it "unless the contract is approved by the service acquisition executive of the military department concerned, the head of the Defense Agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition, Technology, and Logistics (as applicable)." The OP has stated that the "DASN(AP)" said to go for it. The DASN(AP) by my read is most likely the service acquisition executive of the military department (Navy?). So if true in a full read the OP hasn't violated a law Noting this what the DFAR will do is take the NDAA language and spider-web it into a most likely confusing and elongated approval process to do the contract. The OP gets props from me in going to the right person, getting the ok, and moving on.
  12. C Culham

    NDAA Implementation

    I agree with ji and Pepe except if your agency decides by deviation to implement the NDAA now you in turn would have to follow the deviation. My reasoning the statute as noted directs the DoD to change the regulations. DoD has not changed the regulations and a CO and even the authorities noted in the NDAA language do not have the authority to change the DFARS unless they follow the deviation route. You may want to ask your question in the agency beyond legal counsel.
  13. So Joel is this different than ji's illustration or is it the same? CLIN 001 - CLIN 002 - CLIN 003 - CLIN 001 and 002 and my price is $100 for each but if you do not award me CLIN 003 my price is $130 - CLIN 001 and 003 and my price is $100 for each but if you do not award me CLIN 002 my price is $130 - CLIN 002 and 003 and my price is $100 for each but if you do not award me CLIN 001 my price is $130 And for clarity get off the "contingent" band wagon. I stated and have clarified to you several times that the pricing proposed by the OP could be viewed as "material defect with regard to pricing by adding a condition that is not stipulated in the contract line item schedule"
  14. C Culham

    Service Contract Act (SCA)

    Agree. Retreadfed - So I know I am stating another way to answer the OP's question but does this make sense? The wage determination in the GSA Schedule contract applies to the task order. The GSA Schedule contract is at "anniversary date" and the wage determination is updated by the refresh. As a result the new wage determination applies to the task order and as such the contractor is to pay the new wages/fringes and may be entitled to a price adjustment on the task order as well.
  15. Joel - No I did not. Please go back and re-read my posts. I attempted to explain that offering pricing on a combination of items was different than conditioning a price on two of the items (8&9) based on some event that event being the ordering of another item (7). Yes you are. I do not see the wording of pricing combination of items found in 52.215-1 as having any applicability to OP's situation. You do but I do not agree.
  16. C Culham

    Service Contract Act (SCA)

    Retreadfed - Did you read the following provision that is in IT 70 Schedule? SCP-FSS-004 SPECIFIC PROPOSAL INSTRUCTIONS FOR SCHEDULE 70 (AUG 2017)
  17. Joel - We discussed this in exchanges on October 1 in this discussion thread. As I said some may see it as you do yet I am not convinced. I will just leave it at that.
  18. C Culham

    Service Contract Act (SCA)

    Before this thread goes further I suggest a read of SCP-FSS-002 SPECIFIC PROPOSAL INSTRUCTIONS FOR SERVICES (FEB 2016) which is a clause normally found in GSA FSS master/parent contracts.
  19. The government is well equipped to handle volume discounts if that is what they are looking for. In the case at hand the government wants optional items based on specific needs yet the offeror wants to not only try and meet the needs of the government by offering on the optional items the offeror wants to change the game to offer pricing that guarantees a certain volume that would be priced on a volume discount ideal and if that certain volume is not accomplished the volume discount would not apply. If the government likes the idea of the offeror it could change to accommodate all offerors pricing on a volume discount or possibly even accept the offerors offer without accommodating offers from all others on the same basis with the rub that if government tips to changing its ideal of optional items based on need to contingent pricing based on volume ideal the risk is that other offerors might feel the government changed the game without letting them know. Doing so would in my view change the governments intent from wanting something on an optional basis to wanting volume discount pricing. Consider as well FAR 17.206 – (a) In awarding the basic contract, the contracting officer shall, except as provided in paragraph (b) of this section, evaluate offers for any option quantities or periods contained in a solicitation when it has been determined prior to soliciting offers that the Government is likely to exercise the options. (See 17.208.) (b) The contracting officer need not evaluate offers for any option quantities when it is determined that evaluation would not be in the best interests of the Government and this determination is approved at a level above the contracting officer. An example of a circumstance that may support a determination not to evaluate offers for option quantities is when there is a reasonable certainty that funds will be unavailable to permit exercise of the option.
  20. C Culham

    Amended Solicitation - Fair Opportunity

    I want to reiterate that this thread majority topic is fair opportunity under FAR 16.505. I continue to fear that the continuing discussion confuses the complexity of a FAR part 15 trade-off procurement with that discretionary approach (within limited sideboards) that the FAR allows under fair opportunity. With this said ji's posts continue to emphasize the minimalist approach noted by the FAR to provide all holders of the parent contract a fair opportunity. Comments I might add that spin off of REA'n Makers approach which I agree meet the intent of 16.505(b) for procurements up to $5million. Why? I have not seen a position that supports that REA'n Makers approach does not meet the standard of 16.505(b)(1)(iii)(B). I say this noting as well that if basis used by REA'n Maker works truly is as reflected, and parties to the contract find no quarrel with it then is it not fair opportunity in their combined view? Noting my above comments I then wonder if Retread's statement (above) is with regard to a fair opportunity process or a FAR part 15 process as by my experience a fair opportunity process that follows the ideal of FAR subpart 16.505(b) does and has encouraged communication different than portrayed by the statement.
  21. C Culham

    Use of Two-phase design-build selection 36.301 question

    Mine is limited but from the experience of a couple of agencies from years ago. First thought is you might check your own agency supplement to the FAR and other policy as there may be further discussion of criteria and what needs to be addressed. Beyond the agency requirements other factors considered were - The complexity of the project, the history of similar projects being done via design build, and even the location of the project as it relates to unique needs that need to be addressed in the design. I have to same something about (v) as well. Not only capability of agency to manage the selection process but to administer the awarded contract too. I may be over simplifying but from my view the administration of an awarded contract is much more complex than managing the selection process.
  22. C Culham

    COTS Services?

    And I yours. Interesting read, thank you, but I am struck first by this comment in the paper on page 8 - "Conversely, no clear-cut definition exists for a supply or product." Seems the authors overlooked "supplies" definition from FAR 2.101 that you already noted. So are fixes, patches, codes the "alteration or installation of" for software? To me it is more in how you frame it. I can buy a training and its COTS buy I can't buy a trainer as COTS. I will leave it at that.
  23. C Culham

    COTS Services?

    I think it is Yes it does - Further reference to support yes it does (emphasis added) that can be found in full here - https://www.federalregister.gov/documents/2009/01/15/E9-551/federal-acquisition-regulation-far-case-2000-305-commercially-available-off-the-shelf-cots-items “Paragraphs (F) and (G) of the definition deal with commercial services. These paragraphs were not referenced in the statutory definition of a COTS item. Services are therefore necessarily excluded from the definition. To make the definition clearer, the reference to the definition of commercial item has been revised to point to the first paragraph of the definition of commercial item" Also consider the definition from FAR 37.101 - "Service contract" means a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather that to furnish and end item of supply.
  24. Agreed with a little twist. Funding availability changes. The government might award an option at award but also might wait until the 11th hour of the option availability to exercise said option. By experience there were many times where options were added to solicitation/contracts with the hope and I might even say knowledge that additional funding will come down the line at some later date. That said I have also seen options used based on premise that the government knows it has the money but does not know it will want the option items. Anything is likely but using the scenario as offered I do not see it being likely in this particular situation.
  25. C Culham

    COTS Services?

    Doesn't this quote directly from the definition as you provided it answer the question? I see no mention of any item of service>
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