C Culham

@lawyergirl @ji20874 @Neil Roberts

My thoughts.

While the FAR does not require a ceiling limitation it implies one could set one.  If one is set when the limitation is accomplished the BPA is considered complete.  FAR 13.303-7.  By my read there is no 20% cushion so to speak.

8 hours ago, here_2_help said:

I believe the contractor has a valid reason for trying to obtain a higher profit that the government initially established in the pre-negotiation objective

Or maybe said another way...contractors risk increases therefore a higher profit is proposed as reasonable?!?

30 minutes ago, formerfed said:

I may get some riled

No rile.  My comment is based on the observation that trainings do mention FAR part 12 but it seems such mentions are fleeting to me as they concentrate on FAR 15 like procedures.

39 minutes ago, formerfed said:

But often the team looks to the contract specialist/contracting officer.

Still not riled.  They should but as the acquistion staff has to have some modicum of what they are buying the team should have some modicum of what the acquisition process is or can be.  

7 hours ago, Mike_wolff said:

Using that same logic though, why wouldn't the FSS Contract (or any IDIQ contract) only be a "charge account" and the contracts only be the orders?

Well I will probably be the cause for another at length discussion.

First I want to acknowledge that everything is fact dependent and therefore it probably depends.  Okay I am cheating a bit to leave myself wiggle room yet here is my thought.

FSS Contract and other IDIQ's provide for a minimum quantity (consideration).   I do not disagree, pursuant to GSA clause I-FSS-646, that it places the FSS contractor in the position to accept a BPA if an agency wants to issue one.  However I find nothing in the clause language that then requires the Agency to then use the BPA.   It would seem that there needs to be further mutual consideration to make the BPA a "contract".   Or stated another way without explicit language to the contrary and with a minimum accomplished on the  GSA FSS  could not the agency go through the effort to establish the BPA and then just turn around and do a separate  effort to award an order under the same GSA FSS contract, or for that matter an open market procurement, with the same GSA FSS contractor for the same thing that is on the BPA?  On the same line of thought must the GSA FSS contractor always honor the discounts that they offer in the BPA, which by my read is the intent to have a GSA FSS BPA, when the agency attempts to order under the BPA or could they offer further discounts or no discount at all on an order that the government attempts to place via the BPA arrangement?

Now I will quickly go back to other matters at hand and just leave my thought for everyone to ponder because as it goes GAO has spoken.   

1 hour ago, Mike_wolff said:

Has there been any case law that takes the other side of this to refute the GAO position (or maybe just the confusion of a single decision) on this issue?

I could not find any but that is not to say they do not exist.   Just to keep the can of worms open  I could buy in to the proposition that GSA FSS BPA is simply the establishment of a charge account within the GSA FSS Contractors contract therefore the order becomes the contract.  

1 hour ago, Vern Edwards said:

Now, why is that the case?

Maybe the lynch pin and maybe not but training.  Show me one required course for acquisition personnel that is strictly and succinctly about commercial product and service acquisition.   They may well exist and Don may well show me the way but my experience suggests "commercial" gets just a modicum amount of exposure in all the  required courses.

Realted?  Maybe yes, maybe no but I do wonder  about this - FAR 12.207(a) "Except as provided in paragraph (b) of this section, agencies shall use firm-fixed-price contracts or fixed-price contracts with economic price adjustment for the acquisition of commercial products or commercial services."  Is there really no equal to a cost reimbursement contract in the commercial sector and does this limitation create an expensive twist to using FAR part 12?

2 hours ago, Vern Edwards said:

Whose job is it to know?

Overplayed, overstated yet guidance that is not taken to heart - "The Acquisition Team".   Yep pie in the sky but seriously the very example provided in the article reflects to me that the mission program area simply tossed something over the cubicle wall for acquisition to handle and walked away hoping and expecting that they will get their food service.  But as the article suggests even the most reasonable person would wonder why it takes so much paper to make it happen.   Did the mission/program people even read the solicitation and understand what they must administer from pre-solicitation, award, post award and completion.  It is their project, their mission, they should have a huge say in the acquisition.

@Minnen   As I follow threads things are triggered in my head.   Here is another reference you might find interesting.   It is reminder one can find some subjects already discussed at length in WIFCON.

@Freda515  As you attempt to answer the questions posed in this thread by others you may want to take a gander at this WIFCON resource, noting that it does address "multi year" contracts.

https://www.wifcon.com/bonafidecontents.htm

10 hours ago, Minnen said:

This book is really good! Thanks a bunch @C Culham

You are welcome. 

I believe your situation is very fact dependent.  Noting this I just posted this on another thread. " For a fun read do a search on this - 2023 Contract Attorneys Deskbook.pdf - then search the deskbook for "unauthorized commitment"."

15 minutes ago, 2FARGone said:

@C Culham, @formerfed - thank you both for your insight/responses!

You are welcome. 

For a fun read do a search on this - 2023 Contract Attorneys Deskbook.pdf - then search the deskbook for "unauthorized commitment".

Enjoy.

3 hours ago, 2FARGone said:

in relevant part

Thank you for the response.  

3 hours ago, here_2_help said:

The government (in general) doesn't like to acquire commercial services. Period.

I will buy in but I do wonder, does not like to or does not know how to?

1 hour ago, 2FARGone said:

Does this sound right?

55 minutes ago, formerfed said:

Yes, that’s an unauthorized commitment.

Generally but an important fact is missing.   What does the COR delegation letter say?

8 hours ago, joel hoffman said:

I don’t think that a partial termination for convenience after the fact here is possible or practical. The dirty deed would already have be done. 

Assumption?  Usually, as experienced by all the blocks I have been involved in, there is a prefunction cut-off, discussion with facility and an anticipated occupancy conclusion and if the percent was reached.   By my reality the deed has not been done,  but I guess I could see where can be as well.   I just wonder  if Don's suggestion is anticipartory breach?  Are not contract terms and conditions and the associated remedies intended as best efforts to avoid such legal doctirnes?   And if my thinking is right why not find a way to avoid such a situation in contract language?    Just a thought we could go to great lengths in discussing but as the OP has a solution seems a dragged out discussion would be moot?

As an aside I had this thought to bolster my thought of why a "attrition" benchmark as the OP calls it.   In this day and age when I make my individual hotel reservation more times than not the best rate I can get is based on "nonrefundable".

45 minutes ago, joel hoffman said:

if the hotel occupancy rate isn’t affected by a certain under attendance

Looking from the side of the hotel I would think they might be, again by experience.   Staffing plans change for hotels based on their expereinced and anticipated occupancy.  As such cost of performance on their part is affected.   I know we all experience looking and seeking the best rate possible on an individual basis so while one might think rates are static and consistent many times they are not again by my experience.  Maybe it applies in such a service industry and maybe is does not but usually greater quantity generates less cost to a contractor.

A great follow-on article by Mr. Nash and Edwards.  My thoughts in reading.....

By experience a visit to SAM.gov on any particular day one would see thousands of solicitations.  Makes one wonder how many of those solicitations generate the same concerns of format and content?

As a reader two questions occurred to me as a read the example.  What was the market research prior to the issuance of the solicitation such as an RFI and/or preproposal  and site visit), especially when one considers the somewhat far removed location?  No doubt there was an incumbant so back to market research, was there really intent to foster competition or jsut settle that the incumbant would be it?  I may have missed the answers so I apologize for my quick read if I did.

6 hours ago, CSJas said:

My question is both legal and ethical. I understand why hotels do this because they could lose money if the participants fail to fulfill their reservations. However, can the Government legally pay for services not rendered associated with this attrition rate? On another note, if the Government cannot pay for these unused rooms, is this unfair to hotel businesses?

1 hour ago, CSJas said:

Okay, thank you. I just found out it's common for my agency to not allow attrition rates in the order.

While you have found an answer I am passing along some thoughts regarding your question.

In the end it would seem it is a matter of negotiation.   I wonder if the 80% is not provided if the hotel per room rate goes up?   Personal experience not related to the government I have found that it is customary for hotels to offer a better rate if the guarantee is provided.  Ability to negotiate a great rate and no guarantee is the perfect scenerio.  I have accomplished in some cases and not in others.

With regard to legally okay it would require some in depth GAO research (Red Book, actual cases, etc.)  In a quick search I found this quote in an aged GAO decision - "in absence of valid contractual agreement between Government and hotel" - that I want to point out is not exactly on point but all the same raises something for me.  For reference see https://www.gao.gov/assets/b-181266.pdf

In todays world of "commercial service" if market research suggests such an agreement on "attritition rate" is customary practice one could wonder - Why not? - considering FAR part 12.  I say this noting that the payment paragraph of FAR clause 52.212-4 can not be tailored.   Then I think of Don's posted thought and wonder why breach, why not termination for the convenience of the government for the unused rooms below the 80% with a settlement agreement.   

If the below 80% is solely due to non-government personnel not coming complicates the matter a whole bunch.  If the less than 80% is completely at the non-governments failure to book anticipated rooms then why not have them pay for the unused as a condition of coming/not coming to the meeting, conference, or what ever?  Or even better two agreements one for the private folks and one for the government folks, who cares if doing so results in different rates for each grouping.

All in all the solution of your agency is the best approach but your question did raise my interest and I felt compelled to share.

7 minutes ago, ArrieS said:

General CPARS are done after the end of the evaluation period. Is that always 12 months even if the period of performance is 24 months? Or, does the evaluation period align with whatever the period of performance is even if it is more than 12 months, without options?

I had a contractor asking about their CPARS for a task order whose base period of performance is 24 months. It hasn't even been 12 months since the task order was awarded but the fact it's 24 months made me wonder.

Thank you,

FAR 42.1502(a).     CPARS itself, which I understand, will ping you when an evaluation is required by the system itself based on general rules.  Also there is FAR 42.1503(a)(3) where there may be agency procedures on timing as well.

48 minutes ago, CuriousContractor_22 said:

Your conclusion seems spot on, @C Culham. That "or" seems critical. How could a prime invoice the time a university spent if the university does not document their hours per person? Would the Contractive Officer or authorized representative be able to allow a prime to guesstimate? Is it safer to require the university to track their time per person in a spreadsheet? 

As noted by the FAR and the clauses previously referenced it would seem such nuances would be made for the particular contract(s).

21 minutes ago, CuriousContractor_22 said:

Thank you for the input, @General.Zhukov! When working with IHEs with LH and T&M MAS contract orders , have you run into any issues remaining compliant with time keeping due to the issues I alluded to above? Or have they found a way to remain compliant despite not being required to record time daily in a time keeping system?

It would seem that the associated payment clauses in the T&M cover your question.

For commercial service see 52.212-4 (ALT 1) which states this at (i)(i)(D) - "When requested by the Contracting Officer or the authorized representative, the Contractor shall substantiate invoices (including any subcontractor hours reimbursed at the hourly rate in the schedule) by evidence of actual payment, individual daily job timecards, records that verify the employees meet the qualifications for the labor categories specified in the contract, or other substantiation specified in the contract." (emphasis on the "or")

For non-commerical service 52.232-7 at (a)(5) - 

"Vouchers may be submitted not more than once every two weeks, to the Contracting Officer or authorized representative. A small business concern may receive more frequent payments than every two weeks. The Contractor shall substantiate vouchers (including any subcontractor hours reimbursed at the hourly rate in the schedule) by evidence of actual payment and by-

(i) Individual daily job timekeeping records;

(ii) Records that verify the employees meet the qualifications for the labor categories specified in the contract; or

(iii) Other substantiation approved by the Contracting Officer."

(emphasis again on the "or")

Conclusion - Timekeeping records are not necessarily required.

11 hours ago, CuriousContractor_22 said:

If this is true, is anyone aware of a compliant solution for GSA MAS contractors that want to use a university as a subcontractor?

Have your "peers" provided reference that substantiates what they are telling you?

In light of the wording of FAR 16.601 and the provisions pursuant to FAR 16.601 that are placed in a Time and Material solicitation that address how "hourly rate" is defined for both the prime a subcontractor I suspect what you heard is not correct.  Based on the wording I would think that any prime would demand that the subcontractor, no matter who they are, provide a hourly rate that the sub can prove.

3 hours ago, formerfed said:

Since the hypothetical is done using FAR 8.4, an easier approach and alternative to two-phases is conduct market research upfront.  Only solicit sources with known experience.

Keeping in mind FAR 8.405-2 which may provide for further action beyond just market research depending on the specifics of the acquisition.

12 hours ago, govt2310 said:

FAR 15

12 hours ago, govt2310 said:

Well, what happens if the agency, using FAR 8.4,

Just repeating.....they are different!

12 hours ago, govt2310 said:

How do you think GAO would decide?

In a post award scenario I believe that if the agency adhered to the evaluation criteria idenfifed in the RFQ GAO would not sustain the protest.   

On 1/12/2024 at 5:43 AM, APS29 said:

Could anyone provide information on how to calculate the Average Labor Rate Discount off GSA Schedule Labor Rates or recommend a resource or expert who could assist me with this?

Copy

 

I am sure this does not answer your question directly but have you seen this tool?   It will at least assist in comparing rates that contractors have as their base rate.  Might give an idea of what further discounts might make a contractor competitive.   

 https://www.buy.gsa.gov/pricing/qr/mas?query_type=match_all&page=1&page_size=20&histogram=12&experience_range=0,45&price__gte=15&price__lte=500&sort=current_price