C Culham

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.

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.

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.

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

Best quote I can use for my thought. I am familiar with the noted 52.217 clauses. I would not go to them for definitive reasoning on whether to accept the contingent pricing. Why? Because my understanding of the wording and use of clauses is to overcome (lack of better term on my part) the requirement for competition or not when awarding options not for the purposes of what is being discussed in this thread. Agreed but I am a little leery about the first one. Asking the agency could result in a non-answer and still leave the offeror wanting . If there is a response that is yes, do it, my concern is that an idea that the offeror has for making their proposal in their eyes look more favorable may be offered to all offerors to do the same thing once the answer of yes go a head and do it is provided. Submitting multiple responses is the best fit, as long as already noted, there is no prohibition in doing so. PS - Throughout this thread I have avoided the conjecture of what is in the actual solicitation and attempted to deal in generalities because as noted - I think Lotus has enough to contemplate in moving forward.

Joel - My effort to explain once more my view. Take it as you may as I fully understand what you are trying to say about the wording with my view that we are talking pricing of items that Lotus wants to provide not whether Lotus will provide an item or a combination of items as Lotus has already said that he/she wants to provide all of the items (combination). Or in other words the offeror (Lotus) has decided to provide (and price) not just any item but a combination of items. Yet the offeror wants to also provide contingent pricing on some of the items that it has combined, contingent pricing that does not seem to be allowed for in the current CLINs as described. By description of Lotus the Schedule that includes the CLINs does not carry an "if" that circles back to CLIN #7 it only, by Lotus's post, says that CLINs#8/9 are options that the government wants and needs to be priced. Lotus wants its pricing to be dependent (contingent) on whether the government takes the #7 option something by my read so far of the scenario that the government has not said it wants with regard to pricing or pricing that is allowed by the solicitation. The government wants a price for each option in case by example they do not want to take option #7 but option #8. In effect for evaluation purposes with no other action by the government I suspect the government would either say hey we are going to only evaluate your pricing all at $130 or we are not going to evaluate at all because you have placed a contingency on your pricing. Carry on as you will 52.215-1 is done in my view.

Joel...It goes back to my earlier post. My view is that it is not a combination of items it is contingent pricing on the items. I guess others could read it as you do.

FAR part 12 solicitation that utilizes 52.212-1 not tailored - Maybe depending on the FAR part utilized for evaluation. FAR part 13 solicitation asking for quotes and specifically being evaluated under FAR part 13 ideals - less risk of being tossed. FAR part 14 solicitation - most likely would not survive. FAR part 15 solicitation - LPTA most likely would not survive. Trade-off less risk of being tossed but still a maybe of not surviving. In all cases as a multiple offer, if allowed by the specific solicitation, it would most likely survive.

I fear over complication in the manner chosen for the selection process of a TO as you express and in this thread as well. Too much concentration on FAR part 15! Get rid of the idea of even using it (emphasis added). Instead read and re-read FAR 16.505(b) exercise broad discretion in developing appropriate order placement procedures, keep submission requirements to a minimum! In fact just make your CO's, reviewers and evaluators read it too! The offerors will love you and your TO award efforts will be much simpler. This too is a good route but for goodness sake get rid of offer, quote, amendment or anything that insinuates a FAR part 13 or 15 process. You send notices of fair opportunity, you send changes to notices of fair opportunity and you get answers to fair opportunity notices. Keep it in FAR 16.505(b) and use the innovation that you have been granted.

Us in the acquisition world, inside or outside the government, go to FPDS-NG due to our familiarity. And yes a non-gov type can register for more advanced searches. There is another way you might try that as I understand gives the same info - https://www.usaspending.gov/#/ Valuable resource for tracking government procurements to gain that competitive advantage!

So there is the issue of the CLIN being FAR subpart 4.10 compliant as well as the fact that we are not talking about different quantities of a CLIN we are talking about how an offeror wants to price the CLIN. The government, at least at this point, wants one price, the offeror wants to offer two prices for the same thing and quantity, contingent upon something happening. I guess it would look something like this - CLIN 7, X Quantity - $130 each CLIN 8, X Quantity - $130 each (To be exercised only if CLIN 7 is not) CLIN 8A, X Quantity - $100 each (To be exercised only if CLIN 7 is Exercised) CLIN 9, X Quantity - $130 (To be exercised only if CLIN 7 is not) CLIN 9A, X Quantity - $100 each (To be exercised only if CLIN 7 is Exercised) By the way, again guessing on how the solicitation might be formatted, if a commercial item and FAR 52.212-1 is included in exact wording as found in the FAR multiple offers are encouraged and therefore allowed.

Lotus - First just to be specific where did I say "non-compliant". I really suggest that word not be used. Material defect that is either non-responsive or unacceptable. With the above said I am not as poster here or would not as the CO make a determination without adequate information regarding the type of solicitation, the terms and conditions of the solicitation as they relate to offer submission and exactly how the offer is presented. But there dang sure is a possibility that as a bid presented in the manner you have stated would be determined to be non-responsive.

Just a guess but it could be that the electronic tool that they use to create a solicitation does have this feature included in it.

Thoughts – You have not stated what the evaluation process will be for your scenario. But consider this – You run the risk of your offer/bid being found to have material defect with regard to pricing by adding a condition that is not stipulated in the contract line item schedule. A conclusion of material defect in a bid for a sealed bid would result in a non-responsive bid. A material defect for a response to an RFP under FAR part 15 and possibly an RFQ that uses FAR part 15 processes for evaluation would result in your offer being deemed unacceptable. If an RFQ that uses price and/or other factors for evaluation and that is truly seeking a quote there is no material defect analogy and the agency could consider the quote and might review it in both the scenarios you have posed. My comments are based on a read of your scenario with no specific references researched to support my view. Hopefully my thoughts have given thoughts to consider as depending on the actual scenario, such as the evaluation process stated in the solicitation, how much money you are really talking about , has the agency stated that they may award without discussions, etc., reviewing applicable GAO protest decisions would be helpful way of trying to determine the risk of a determination of non-responsive or unacceptable based on conditional pricing.

I fear that you can not provide adequate detail for a specific response. Example - while there may be no discussion in the parent IDIQ suggesting that there are no rules that apply to what you want to do you have alluded to a process that may in fact be tantamount to a FAR part 15 selection process at least in the eyes of GAO should there be or could be a protest. Noting this my best advice is to do research of applicable GAO decisions that may be based on similar or as close to the same circumstances to get a bearing on what your best course could be. A good place to start is on the WIFCON Legal page for GAO protests related to fair opportunity found here - http://www.wifcon.com/pd16_505b.htm

Here is are a few more thoughts to go along with those already provided noting that these thoughts are general as the specific details of a TO and contract would generate a more specific response. The Changes clause for a cost reimbursement contract (FAR 52.243-2) does not allow for a unilateral time extension. As such an extension of time to a CPFF contract would therefore have to be done via a bilateral modification/supplemental agreement unless as noted by previous comments in this thread it is being requested under another term/condition of the contract. Noting this I do wonder if the COR is requesting the extension via communication with the contractor or in other words is the contractor aware of the need for the extension and asked for it? On use of annual appropriations I recommend a read of the GAO Principles of Federal Appropriation Law aka “The GAO Redbook” at Volume 1, Chapter 5, Section A.2.a. regarding annual appropriations. You can find it here - http://www.wifcon.com/bonafidecontents.htm As you read note there is a difference between obligation of the annual appropriation and liquidation of the obligated contract funds to adjust contract value and make payments. I can not tell if you are DOD connected or not but another read about annual appropriations that may help your understanding can be found here – DoD 7000.14-R Financial Management Regulation Volume 3, CHAPTER 13 RECEIPT AND DISTRIBUTION OF BUDGETARY RESOURCES DEPARTMENTAL-LEVEL at paragraph 130202. https://comptroller.defense.gov/Portals/45/documents/fmr/Volume_03.pdf Overall a no cost extension is plausible, possible even under both scenarios you have provided, but the information you are providing in support of your questions have many holes that need to be filled for a specific answer to each.

Another reference that may be worth a read is Volume 1 Chapter 5 Section C, of the Principles of Federal Appropriations Law aka "The Red Book". It can be found here on WIFCON at - http://www.wifcon.com/bonafidecontents.htm

Sorry I can not. Argument would be the prescription in the FAR for use of the clause and its applicability to the contract or not. Remedy would be a supplemental agreement to the contract removing or retaining the clause as applicable. The latter based on the ideal that both parties agreed to the contract and therefore the CO and contractor agreed to its inclusion. If there is disagreement as to its inclusion now then seek the remedy based on the argument.

My view is that the authority to state is FAR subpart 13.500 regardless of the reason. Noting that your sole source justification would also state that your use of SAP for the need is in accordance with 41 USC 1901 (it’s a commercial item and does not exceed $7 million) or the authority of 41 USC 1903 for a “special emergency” wherein you are using the higher threshold ($13.5 million) allowed. I will say that you should consult your agency supplement to the FAR as well as any agency policy as one or both may provide you with a more explicit way that the justification and authorities should be stated.

@Don Mansfield @joel hoffman Sorry for the confusion my comment about being a small business was rhetorical to provide an example. While I am a small business I have never had a prime contract with a Fed agency but have been a sub to a Fed prime. Back to the issue and attempt to answer questions from just a viewer. First I haven't missed a rodeo, I am volunteering at the best one in North America right now, always in the second full week of September, The Pendleton Round-Up. You all should come once to this week long community event that is now in its 108th year. To RFA and the overall concern I for one can not think of a contractual requirement that does not carry administrative burden. This extended thread is a perfect example. In a hope to be concise DoD's best practice is a duplication of what is already required of a large business contractor with regard to submission and compliance with a subcontracting plan. My view is that DoD has failed at doing good administration of this element of a contract requirement (sub plan administration), when applicable, and so they invented the ideal of putting a performance plan into contracts as well. Yahoo! But my questions are then has small business participation improved, and if not how many contractors have been defaulted at the worst or at the least had some type of sanction placed on them for failing to meet the plan? Or even had there performance evaluation reflect same? Overall what it accomplishing that is not already in the contract. As to small business and the requirement for a performance plan should they receive contract award I ask what has been accomplished as the prime is already in the hands of a small business. Yahoo! Goals accomplished at the get go. Now I am going to go "Let'er Buck!"

Joel - Exactly why the DoD want to place a performance plan in a contract is rubbish. I am a small business, if 52.219-9 is in a solicitation that I am responding to its very language says the clause is not applicable to my company but the DoD wants to evaluate my use of small businesses, okay that is fine. But then wants to go one step further and incorporate my performance plan in my contract even when the subcontracting plan is not required? I say go back to the original clauses of the FAR make CO's stand up and enforce the whole of them ( have you read FAR 52.219-16) and utilize what is given to CO's to enforce plans for large businesses. The "best practice" of DoD on this issue is administrative foolishness!

Evaluating a plan makes sense. Making a performance plan a performance part of a contract is redundant due to the fact that a subcontracting plan is already required. Requirement of the performance plan is not lawful under the DFARS as the DFARS only requires submission of a performance plan to determine the acceptability of the subcontracting plan that is required by a clause to be provided. It is a evaluation technique demanded by the DFARS not a contractual requirement demanded by the DFARS. A CO demanding that the performance plan be a part of contract performance is just plain crazy. Makes me wonder what I would be in contractual violation of if I did not accomplish my subcontracting goals, the performance plan or the subcontracting plan. Sheesh!

I would like to suggest routes that might be less frustrating than contacting the SBA. You would be in the SBA sphere if you instead contacted your local Small Business Development Center (SBDC). Their expertise would be limited however by the counselors they might have that are familiar with Federal government contracting. A better organization to reach out to would be your local Procurement Technical Assistance Center (PTAC) as their mission is to assist firms in conducting business with Federal, state and in some cases local governments. Website searches of both SBDC's and PTAC's, here using the wording Association of Procurement Technical Assistance Centers, will get you to their particular websites to do additional research on their resources and locations. Important to use of these resources is that you will probably feel more comfortable on being very specific about your efforts, the agency(s) you are involved with, and the specific solicitations which as noted would be a great help in giving you more specific and direct response to your concerns.

Don - Yes. As provided in other posts through references noted ALL GSA schedule contracts are subject to TAA. Again I note here TAA provides by my read no reference to "end product" just product. I have concluded that FAR drafters in creating the term "end product" have convoluted TAA applicability.

Thanks Vern. Its been a long time since I dug into this issue but in re-reading my post I noted this GSA FAR Supplement clause It has a paragraph listing what clauses are not applicable to order level materials. TAA is not listed. Further clarification that Yes -TAA does apply to replacement parts supplied under maintenance contract.