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BrianR

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  1. Vern: I work in an area that rarely--if ever--uses cost-reimbursement contracts. So I am curious; if we wanted to issue a level of effort contract on a fixed price basis, what form would it take? I know L-H and T&M contract types have been "redescribed" in the FAR as not being firm-fixed priced contracts per se, but they aren't really CPFF contracts either unless we used a "term" contract. Or is it your opinion that these should simply be classified as CPFF-type contracts altogether?
  2. Vern: Granted I may be misinformed. I was using the following definition of Level-of-effort contract: A type of contract stating the work in terms of an amount of effort (usually labor hours or labor years) to be performed by specific classes of employees over a given period of time. There are four types of level-of-effort contracts: the FIXED-PRICE LEVEL OF EFFORT CONTRACT, the TIME AND MATERIALS CONTRACT, the LABOR-HOUR CONTRACT, and the TERM CONTRACT. See Cibinic & Nash, Formation of Governemnt Contracts 117-80 (3d ed. 1998) This definition came from a book called "The Government Contracts Reference Book," with your name on the cover as one of the authors. Am I really misinformed?
  3. Actually, T&M and L-H contracts ARE level of effort contracts--by definition. Perhaps you didn't understand my question.
  4. I may be woefully misinformed about contract scope issues, so if that is the case, let me know so this topic can die a peaceful, uneventful death.... I have always been of the opinion that any post award increase in the ceiling amount of a T&M or L-H contract was a de facto change to the scope of the contract. As such, I have advised that a sole source or limited source justification must accompany any such increase. (The requirement for D&F's in order to utilize these two types of contracts did not seem very confusing to me.) But along come the FAR Councils to clear up any ambiguity the FAR may have caused in that regard, basically saying that in addition to the D&F’s an increase to the ceiling amounts may require the issuance of sole source justifications. The FAR case 2011-025, along with the resulting Fed. Register notice, identify the issue as such: "SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to provide additional guidance when raising the ceiling price or otherwise changing the scope of work for a time-and-materials (T&M) or labor-hour (LH) contract or order." "The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) were concerned that contracting officers may erroneously conclude that a Determination and Findings (D&F) is always sufficient to justify a change in the ceiling price." I added the italics here because I interpret the first sentence--which includes the word "otherwise"--to mean that raising the ceiling price is but one way to change the scope of a contract, among many other ways. Are you with me here? If raising the ceiling price--by itself--does not change the scope of the contract, shouldn't the language read: "raising the ceiling price or changing the scope of work..." dispensing with the word "otherwise?" In the second sentence, by indicating that use of a D&F is not always sufficient to justify a change in the ceiling price, the Councils seem to be saying that there are circumstances when the ceiling price of a L-H or T&M contract can be raised that will not change the scope of the contract. Likewise, the actual FAR language the Councils adopted says: "16.601 Time-and-materials contracts. * * * * * (d) Limitations. A time-and-materials contract or order may be used only if— * * * * * (2) The contract or order includes a ceiling price that the contractor exceeds at its own risk. Also see 12.207( for further limitations on use of time-and-materials or labor-hour contracts for acquisition of commercial items. (e) Post award requirements. Prior to an increase in the ceiling price of a time-and-materials or labor-hour contract or order, the contracting officer shall— (1) Conduct an analysis of pricing and other relevant factors to determine if the action is in the best interest of the Government; (2) Document the decision in the contract or order file; and (3) When making a change that modifies the general scope of— (i) A contract, follow the procedures at 6.303; (ii) An order issued under the Federal Supply Schedules, follow the procedures at 8.405-6; or (iii) An order issued under multiple award task and delivery order contracts, follow the procedures at 16.505((2). * * * * * " As I read the new FAR language (see italics), increasing the ceiling price of a T&M or L-H contract does not--in and of itself--change the scope of the contract. So my question: Is this correct? I have always understood that adding quantities (hours) above the contractual maximum was viewed as an out-of-scope change. The FAR Councils seem to think otherwise. Can anyone give me an example of when this may be the case? Are we headed down the road where we must perform an analysis of whether adding hours above the contract ceiling amount was somehow within the scope of the original competition (does that even make sense in regard to contracts that contain a ceiling price with a warning to contractors that they exceed the ceiling at their own risk)? Should we now be placing a statement in all L-H and T&M contracts that the contractual maximum is “x” unless the Government decides to increase it? How does this square with the “materially different” test? A labor hour is a labor hour, one could argue in all cases. Doesn’t exceeding the contract ceiling mean that the changed contract is materially different from the original, or do we start comparing the value of the change to the original contract amount—is it materially different if the change is small: What if is it only $100 dollars? $1,000? $1,000,000? Or what if the change only represents a 10% increase in the overall value of the contract? What about a 50% increase? 100% increase? Have I been naïve all these years thinking that—with regard to adding hours to a L-H contract—that the contractual ceiling price was a fairly bright line between what was in-scope and what was outside of the scope of the contract? Or have the FAR Councils created a greater ambiguity than the one they wanted to solve?
  5. I do not believe the reauthorization act is self executing. Thus, the reason for a FAR deviation until a FAC is issued. I tell my folks to use 13.5 anyway, because there is literally no risk--when the FAR cathes up, everything will be retroactive. But alas, in my agency no one has the courage to do it, which is surprising to me given that they seldom follow any of the other procurement rules.
  6. The COFC is indeed unwieldy. And sadly, GAO does not always defer to their decisions. Case in pont is a current problem with how to characterize the provision of home oxygen and its accomplanying respiratory services. Is it a service or a supply? The answer makes a big difference to small businesses impacted by the non-manufacturer rule (and NAICS code assignment). GAO and COFC have taken diametrically opposed positions on it, so regardless of how an agency characterizies it, if a protester knows which forum to protest in, it will win. We have been waiting, as of today, 605 days for a COFC decision on this relatively simple issue. At this point we don't care which way it goes--we just need clarity. 605 days and counting....
  7. Any idea how long it will be before we can start using it again? I haven't noticed how long it take for a FAC to be issued.
  8. The good news is that within days of publication of the COFC opinion, GAO began citing it as authority to dismiss protests where the sole allegation was that VA had not conducted market research to determine whether two or more SDVOSB's could perform the work before deciding to order from the FSS. So it appears that GAO has adopted the COFC decision. I drafted the agency report in the Aldevra case that started this ruckus, and while I'm glad COFC adopted some of the rationale in that report, I have to admit that the statute appeared pretty clear on its face, and I'm not so sure that GAO obviously erred in its decision. However, there is always a back-story, and my understanding is that there was a lot of language compromise going on in several committees in order to get 38 USC 8128 passed, which states in part: (a) Contracting Priority.—In procuring goods and services pursuant to a contracting preference under this title or any other provision of law, the Secretary shall give priority to a small business concern owned and controlled by veterans, if such business concern also meets the requirements of that contracting preference. Apparenlty the small business community lobby had strong feelings against such set-asides for veterans, and veterans groups obviously had similarly strong feelings. After the details were worked out--and apparenlty it was very contentious and took forever--the language above was passed, which doesn't accurately reflect what had been agreed to in principle. the reality of the situation is that an agency the size of VA could not function if it was restricted from unfettered use of the FSS. GAO took a strictly narrow approach to interpreting the statute--not unreasonably so--but the resulting decision created a monster that didn't stand a chance of being fixed by Congress anytime soon. OMB is sitting on a VA rulemaking that may make the COFC decision more palatable to those strict constructionists that may have an issue with the COFC analysis. Hoping that we see it soon.
  9. Has anyone heard any buzz about whether this program has been included in any FY13 appropriations bills? It would be nice to have this back.
  10. Greetings. I have a situation where I need to order items off of a mandatory (for our agency) FSS schedule. We would like to compete a BPA. However, for some unknown reason, an associated piece of equipment that is required for use of the items on the schedule are not included on the FSS contract. FAR 8.402(f) says: "For administrative convenience, an ordering activity contracting officer may add items not on the Federal Supply Schedule (also referred to as open market items) to a Federal Supply Schedule blanket purchase agreement (BPA) or an individual task or delivery order only if— (1) All applicable acquisition regulations pertaining to the purchase of the items not on the Federal Supply Schedule have been followed (e.g., publicizing (Part 5), competition requirements (Part 6), acquisition of commercial items (Part 12), contracting methods (Parts 13, 14, and 15), and small business programs (Part 19));..." I am having trouble understanding how we would go about competing a single FSS BPA for the items on the FSS, which by definition is set aside for FSS contractors, while at the same time conducting an "open market" competition for the items not on the FSS, resulting in a single BPA award. Has anyone actually done this? What process did you use?
  11. I have mixed feelings about the exodus only because at my agency anyone who knew what they were doing either never applied to work here or only stayed three months before leaving. As a result, the newer ones who have absolutely no idea what they are doing are using "old documents" to cut and paste into new ones, and because of attrition are being promoted to supervisors to pass on their lack of any understanding of the procurement process. To "fix" the quality control problem, my agency decided to require "peer reviews" of everything that goes out, and instituted a "checklist" review process. If it weren't so appalling, it would be funny to see a written review asking the contracting officer to change a comma to a period, while neglecting to recognize that the schedule reflects an IDIQ contract, while the clauses reflect a requirements contract. The checklists are used to ensure that appropriate documents are created (J&As, D&Fs, etc.) but no one reads them to see if they make any sense. Presumably, at least the "old dogs" sort of knew what they were doing, even if they had bad habits. Some of the news ones lack foundational knowledge altogether. In reviewing a claim we once received, I actually had a supervisor ask me what this term I kept using--"salient characteristics"--meant, when I was asking about them in relation to a brand-name-or-equal acquisition. She seemed shocked at the explanation and told me she had never heard of it before. In another instance, a contracting officer argued--forcefully--that the way to conduct a part 15 acquisition was to evaluate all of the proposals and then enter into discussions with only the one company that the evaluators wanted. It made no sense to her whatsoever why anyone would enter into discussions with all of the offerors. How do you combat this level of ignorance? Just how easy is it to get a warrant these days? Is it on a pass/fail bais, i.e., if you show up to class, you pass?
  12. I echo those comments about the simplified acquisition procedures. It has taken me several years to get our contracting shops to acknowledge that there is a difference between Part 12 procurements and Part 15 procurements. Old habits die hard! I still see solicitations for commerical items that purport to be issued under the authority of the test program or under part 12 that then go on to add a half dozen evaluation factors, each with another half dozen subfactors, and a source selection plan that includes an evaluation scheme that could rival anything used by NASA or DOD for a complicated Mars mission or Star Wars system! It seems the contracting community is afraid of its own shadow, and believes that the more you litter a solicitation with factors, subfactors, colors, adjectives, and narratives, the better off everyone will be (read: the contracting officer can't then be blamed if a procurement goes south). I believe that a good many agencies never took full advantage of the test program because of this very fear. But eventually, with a newer crop of Contracting Officers arriving on the scene, things could change. Perhaps they will be more apt to use simplified procedures because the procedure won't seem so foreign to them.
  13. Gee Whiz, I sure do hope this program gets reinstated. I spent three years trying to convince the contracing officers I work with to utilize the program and simplify their acquisitions. I can't tell you how many copies of the N&C report I e-mailed to folks on the topic! Just in the past two months several different offices began seriously teaching their staffs how to take advantage of the test program! I agree with Vern, though, that this obvioulsy fell through the cracks and will most likely be reinstated. I am not aware of any controversy with this program that would have lead to a conscious effort on the Hill to scrap it.
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