ji20874

I agree that a modification that includes an "otherwise" performance agreement should be bilateral, but that isn't what we're talking about. The original poster says nothing else is changing, and my comment was clearly premised on nothing else changing -- so if nothing is changing except the funding, then certainly yes to unilateral.

Noob, You need to read the LoF clause, and then do what the clause says. It really is that simple. Are you (I assume you represent the Government) going to allot additional funds to allow completion of the contract's unchanged terms, including unchanged performance period? That is a simple YES or NO question. If YES, will you allot additional funds to cover all or just part of the projected overrun? Make your decision, and do the unilateral modification. Yes, unilateral. If the contractor insists on an extended performance schedule, you may terminate the contract now, maybe for the contractor's [anticipated] default.

Having both FFP and LH CLINs on the same contract is legal, but it is problematic. If done, it should be done carefully and with some pre-thinking to pre-address questions of this sort.

For your commercial fixed-price contracts, can you make a one-page fillable-form-check-the-box AP template? Then, check the N/A box as appropriate. I think a one-page fillable form is far better than a 20-page Word document.

here_2_help, I appreciate your voice of common sense. The negotiation is not for the amount the Government will pay, but rather is only a negotiation to established agreement on an estimated cost -- actual costs, including indirect costs, will be established and settled later.

This is an area where I think we shoot ourselves in the foot, so to speak. We should provide Government property to the contractor -- then, the contractor is responsible for tracking it. When the Government foolishly (my opinion) hand receipts property directly to a contractor employee, are we subverting/avoiding all of the Government property clauses in the contract? We should provide Government property to the contractor, not to the contractor employee (my opinion).

Have you considered seeking the advice of an attorney who is knowledgeable in these matters? It sounds like your government customer has already given you an answer. I'm not sure of the validity of the answer, as I have never thought of a warranty having any impact of TAA compliance -- are you looking here for information to challenge your government customer's answer? TAA compliance is a very messy area, and even experts will come to different answers with seemingly similar facts.

As I think I read here on WIFCON, TINA is a disclosure statute, not a pricing statute. If the subcontractor disclosed, maybe all is well with TINA? Personally, I don't see a problem with a firm charging different prices to different customers -- it happens all the time. Different circumstances call for different prices, right? Are you suggesting that EVERYTHING* in the two arrangements is identical, so an identical price is mandatory? *but here, we don't know that EVERYTHING is identical -- could be different quantities, different delivery dates, different T&Cs, different bargaining strengths, and so forth...

1. The contracting officer (or other official appointed as SSA) is not bound by the evaluation outcomes found by the evaluators. Those outcomes are advisory to the contracting officer. Maybe the contracting officer does not agree that the past performance is unacceptable? 2. Joel, you have repeatedly suggested opening discussions for past performance in this thread -- if discussions are open for some other reason, one could certainly include past performance -- but you seem to be talking about opening discussions just for this reason. The definition of clarifications encompasses exchanges related to relevance of past performance and adverse past performance to which the offeror has not had an opportunity to respond, for example, so I wouldn't jump to discussions without first seeing if my concerns could be dealt with using clarifications.

Does your contract require a staffing level input, or a performance outcome? You wrote, It is possible that your contract requirement and your payment approach do not align -- in other words, you might have a sloppily-written contract. You should probably be paying based on the performance outcome, rather than the staffing input. And, you should have let competition, not the offeror's staffing matrix, determine the contract price. What is the real problem? Performance failures? Or failure to staff as promised in the contract? Pick only one -- which one is the real problem?

We don't know anything -- the lawn care example was clearly identified by the original poster as hypothetical. The original poster's sole question was on the necessity for authority to require two evaluation teams rather than one -- he or she could just as easily used execution services at a prison for task 1 and chaplain services at the same prison for task 2. We don't know whether the services are commercial or not -- that is irrelevant to the question. We don't know if they're using FAR Part 13 or some other authority -- that is irrelevant to the question.

In this case, I think the answer is going to be because the CO said so.

I am okay with a single TEP. The TEP, so to speak, could be a single person. By the way, considering the additional administrative costs of multiple awards is completely fair and honorable. Point the contracting officer to FAR 52.215-1(f)(6). You will have to ask the contracting officer where he or she is getting these ideas -- they don't come from the FAR.

Okay, now your solicitation does not contain a limitation on subcontracting... If your solicitation does not contain a limitation on subcontracting, then Apple can subcontract with BestBuy to perform all, most, some, or none of the work -- because there is no limitation on subcontracting. Whether Apple passes the LPTA criteria based on past performance is an entirely separate and wholly unrelated matter. I don't know what your solicitation said about technical acceptability with regard to past performance. You might want to start a new thread for that new question -- it is unrelated to this thread.

I try to use the term work statement instead of SOW or SOO and so forth. The label SOW or SOO really has no meaning anymore, as some SOOs are really SOWs and vice versa. Those labels only have meaning if there is discipline in the process.

Okay. You know for a fact that your prospective winner, Apple, cannot perform 50% of the work. But the limitation on subcontracting is not whether Apple can perform 50% of the work, so your fact is not dispositive as your wording is inapt. Please read the limitation on subcontracting text carefully. If you are relying on the clause at FAR 52.219-14, Limitations on Subcontracting, it says in para. (e)(1) for services that Apple "will not pay more than 50 percent of the amount paid by the Government for contract performance to subcontractors that are not similarly situated entities." Is BestBuy a similarly situated entity? See, it isn't 50% of the work. And subcontracting to similarly situated entities is okay. Maybe there isn't really a problem? As Vern said, it is a complicated rule. You need to read the clause. So, based on all of this, do you know for a fact (or have a reasonable basis to believe) that Apple will not comply with the limitation on subcontracting? If YES, you might have to make a determination of nonresponsibility. See FAR 9.103(b). But first, you need to read para. (c) of the clause at FAR 52.219-14 to make sure the limitation is applicable. p.s. Set-asides are not required for overseas contracts -- this title's thread indicates this is for an overseas contract. If the solicitation did not invoke FAR Part 19 clauses, which it did not have to do, you wouldn't be having this problem. See FAR 19.000(b)(1).

Patrick, So, does your solicitation contain a limitation on subcontracting? That really is a YES or NO question...

So, does your solicitation include a limitation on subcontracting? (choose one) YES NO I did not say you could move on. I said, if you know for a fact that Apple will not comply with a limitation on subcontracting requirement (assuming that there really is one in your solicitation), that you could determine Apple to be non-responsible and (1) make award to the next in line; or (2) if Apple is a small business, refer the matter to the SBA for a certificate of competency.

I think the original poster used Apple and BestBuy for A and B -- I don't think he used Apple to insist that the winner is a large business. I asked Patrick (the original poster), "Does the solicitation contain a limitation on subcontracting? Really? Are you sure?" I am hopeful that he will answer the question.

Are you the contracting officer? If you know Apple will not comply with the limitation on subcontracting, determine the offeror to be non-responsible and (1) make award to the next in line; or (2) if Apple is a small business, refer the matter to the SBA for a certificate of competency. Are you an unhappy competitor? File a protest -- your attorney can advise you whether to protest to the GAO or to the SBA. But, do your homework first. Does the solicitation contain a limitation on subcontracting? Really? Are you sure? You said it is for an overseas contract, but the FAR Part 19 clauses that normally impose limitations on subcontracting might not apply to contracts outside the United States and its outlying areas. Check your solicitation carefully.

Welcome to the contracting career field! If they aren't giving you training, are they at least giving you work? If they are giving you work, I am hopeful that you will try to understand what you are doing, and let your questions to your co-workers and bosses be based on your actual work. For example, if you issue a solicitation using a template that includes a particular clause, read what the clause says. Or, if your boss tells you to issue a stop work order, use the sample he or she provides as a starting point but also read the clause in the contract that authorizes the stop work order (hopefully, it will be cited in the sample stop work order). Read your solicitations and contracts. Read the FAR parts you are working in.

I also felt the response did not answer the question.

CMM, I am intrigued by your argument, but I would want to know how you reconcile your argument with FAR 13.106-1(c)(1)(iii) and 13.106-1(c)(2), which clearly deal with quotations but also which clearly point back to the synopsis requirements in Part 5.

Ally, Are you awarding a T&M contract for a job of some sort? Or are you awarding a T&M contract as a bank of hours for jobs that will be determined later?

Many years ago, I did a competitive procurement for a log cabin kit as a recreational facility at a remote site. The foundation would be done by a military unit, but the log cabin kit would be a commercial item delivered and installed -- and then, the military would do the electrical and plumbing connections. In the solicitation, we declared the maximum price we were willing to pay, and we listed our minimum requirements as well as a long list of desirements (things that are desired, but not absolutely required). We allowed offers to submit multiple proposals. We did not specify a floor plan or building shape, but we did describe the size of the location that was available. We said we would select, on a best value basis, the offer than subjectively gave us as much functionality and flexibility as possible for the intended purpose of the facility. It worked. We got multiple offers, and we made a selection, and the project was completed during the next summer. We did a lot of market research upfront to make sure we could get something approximating what we wanted in that remote location, and to satisfy ourselves that we would have choices. We got a little pushback about buying a log cabin kit as a commercial item (instead of as construction), but this was the late 1990s and we wanted a real test case for a commercial item procurement -- so we easily overcame that pushback. I had enough persuasive power to make it happen. This can work for both supplies or services -- think a little, and adapt as needed. If you needed cable TV services for a dormitory, how easy would it be to say our ceiling is $100 per month and we want as much variety and flexibility as possible for a fixed price not exceeding that ceiling? The approach might not work for all service possibilities, but it could work for some. For fixed-price contracts for environmental impact statements, for example, it is common to establish the ceiling in the solicitation, because offerors otherwise cannot tell if the agency wants a bronze, silver, or gold approach to the EIS, for example.