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ji20874

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  1. Happy Thanksgiving weekend! Yes, a BPA against a schedule contract must include an estimated value/quantity/amount; however, in no way do I see that estimate as analogous to a ceiling. No specific action or approval is required to issue an order that exceeds the estimate. An annual review is required, and that annual review occurs whether or not orders have been placed beyond the estimate -- ordering beyond the estimate does not trigger the annual review -- there is no trigger. Contracting officers may seek discounts for orders at any time, and should consider doing so for a BPA at the annual review especially if orders have exceeded the estimate. A schedule BPA is not an IDIQ contract, and should not be treated as one. I want practitioners to know the differences. I hope this discussion is helpful to WIFCON readers.
  2. Carl, It seems you want our readers to walk away thinking that a ceiling is needed for BPAs against schedule contracts, and that you want to blur the difference between a ceiling and an estimate -- in my mind, too many practitioners already believe these errors. I want them to walk away understanding the correct principle that ceilings are not required, and I want them to know the difference between a ceiling and an estimate.
  3. Re: NOAA OIG-18-014-A At the bottom of page 6 and the top third of page 11, one can clearly read that the NOAA OIG acknowledges that orders may exceed the estimate for schedule BPAs. However, in my opinion, the NOAA OIG errs in its use of the homemade term "estimated ceiling price" for a BPA -- they correctly used "estimated" and incorrectly inserted "ceiling" -- FAR 8.4 never mentions a ceiling for BPAs at all, but only calls for an estimate. And which is it, an estimate or a ceiling? It cannot be both at the same time, and one must make a choice. This is an example of where loose or sloppy terminology interferes with real learning. FAR 8.4 speaks of "estimated value" and "estimated quantities/amounts," but too many practitioners sloppily use "ceiling" instead. They err in doing so, and they perpetuate error by conflating FAR 8.4 BPAs with 16.5 IDIQ contracts. I hope this discussion is helpful for WIFCON readers.
  4. Yes, I'm sure -- BPAs against schedule contracts only require an estimate, not a ceiling or maximum. The review you cited occurs yearly after BPA establishment -- it clearly allows for orders exceeding the estimate, and suggests trying to obtain price reductions in such a case and discontinuing use of the BPA only if it no longer represents best value. A GAO report from several years ago looked at agency compliance with your citation, and used a case of a Marine Corps 10-year BPA where the estimate was met and exceeded in the 3rd year but faulted the agency not for exceeding the estimate (as that is allowed) but for not doing the annual reviews. BPAs against schedule contracts are not IDIQ contracts, and do not require ceilings or maximums. FAR 8.4 says nothing about a ceiling or maximum for a BPA; indeed, it expressly allows for orders exceeding the estimate. For further reading: https://buy.gsa.gov/interact/community/5/activity-feed/post/2daa4239-74c4-474f-aa3b-be1524e77bbf/Comparing_And_Contrasting_FAR_8_4_BPAs_And_IDIQs See also: https://www.gao.gov/assets/gao-09-792.pdf (and note the following extract: "BPAs are not contracts, but rather agreements between government agencies and vendors with terms and conditions, including prices, in place for future use. The Federal Acquisition Regulation (FAR) was amended in 2004 to require agencies to follow certain procedures when establishing and ordering from schedule BPAs and to document annual reviews to determine: whether each BPA still represents the best value; whether the GSA schedule contract under which the schedule BPA was established is still in effect; and whether the agency has exceeded its initial estimated purchase amount under the BPA, indicating a potential for discounts when more orders are placed." (my emphasis) In my practice, I generally do not impose ceilings or maximums on BPAs against schedule contracts. I recommend this approach to other contracting officers. By the way, BPAs under FAR 13 also do not require ceilings or maximums -- each order has to be within the appropriate threshold, but the aggregate value of all orders need not be limited.
  5. On the other hand, It depends. (1) If these are IDIQ contracts under FAR 16.5, well, that question has already been answered. (2) However, if these are BPAs against schedule contracts under FAR 8.4, no maximum or ceiling is required -- if such a BPA has a maximum or ceiling, that is a self-inflicted (and unnecessary) limitation. Only an estimate is required at time of establishing the BPA, but ordering beyond the estimate is okay provided the contracting officer gives some thought to requesting additional price reductions.
  6. Vern, Your vitriol and challenging of my honesty are not needed and do not contribute positively to the discussion. If you will read from the beginning, you will see that the original poster is not talking about using order of precedence to resolve an unforeseen inconsistency in an already-awarded contract -- indeed, he or she is not talking about any real circumstance at all, but is just engaging in an academic exercise of whether some unspecified text should go in C or H -- that is the context. In that context, and the OP's continued questioning, I gave good advice -- if he or she already knows there is an inconsistency before the solicitation or contract is even written, he or she shouldn't rely on order of precedence but should simply resolve the inconsistency as part of the drafting/assembly process. The order of precedence clause works best to help resolve unseen inconsistencies after contract award. And I never said anything at all about whether any clause is mandatory. But, if letting you vent your spleen has made you feel better, good for you.
  7. Voyager, If you prepare a quality solicitation and contract, with no inconsistencies, then you don't have to worry about order of precedence.
  8. First, generally, you should not want to prepare a solicitation package with inconsistencies between its various parts. That said, YES, of course! Section H takes precedence over Section C's specifications! Always! Section C is sometimes boilerplate, but Section H is always carefully tailored for that solicitation, right? If something could fit in both sections, take your pick. Example: Section C. The contractor shall comply with Agency Policy 1-1 in the performance of the work, except that Sections 4 and 5 do not apply. Section H. The contractor shall comply with Agency Policy 1-1 in the performance of the work, except that Sections 4 and 5 do not apply.
  9. If it doesn't fit anywhere else, put it in Section H. Is that sufficiently concise?
  10. Did your search include FAR 19.102(b)? How about 13 CFR § 121.402, para. (b) and para. (c)?
  11. I have never understood why so many people seem to think that benefits offered by the Government, as an employer, to its employees should also be provided to people who are not its employees, such as contractor employees.
  12. There is a general requirement for pre-award synopsis for procurements over $25K -- there are exceptions, but sole-source under SAT isn't one of them. See FAR Subpart 5.2. If you think the sole source SAT action is unwarranted, you may file a protest. The GAO will review an agency’s decision to limit competition for reasonableness. If you think the agency awarded to a large business without regard to the automatic set-aside requirement of SAT, you may also file a protest. Right -- Part 13 does not say that.
  13. Well, for a cost-reimbursement contract (you said it is CPAF), shouldn't you bill actual incurred costs (actually paid to the employee) as the direct labor charge? And other overhead or G&A costs as indirects? Under your cost-reimbursement subcontract, maybe you are not entitled to $102.31 per hour for on-call work, especially if the on-call work doesn't materialize, and if/when it does, your actual direct labor incurred cost is not $102.31 per hour. Do you mean that (A) you have an IDIQ subcontract and 5 task orders from the prime contractor; or (B) the prime contractor has an IDIQ contract and 5 task orders with the government? If (B), what is your subcontract arrangement with the prime? Is it CPAF or something else? The prime's arrangement with the government is irrelevant to you -- what matters is your arrangement with the prime. Is it the rate (C) you bill the prime contractor, or (D) the prime contractor bills the government? The only thing that matters is (C), right?
  14. Even if you bill it as labor, the prime can bill it as ODC when it invoices the government, right? Is that a loaded or billing rate (such as would be used for T&M)? Or, is that the rate actually earned by and paid to the employee?
  15. There is your answer. Think about it. We're talking about classified information. The government decides the security requirements -- the contractor simply complies or faces penalties (including jail) -- there is no negotiation and no contractor input -- there is simply no need for a contractor signature. Similarly, the contractor doesn't sign the wage determination -- it simply complies.
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