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ji20874

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Everything posted by ji20874

  1. The terms might be identical in the minds of some practitioners, or different in the minds of others. It might depend on the circumstances. I do not think you will find a perfect answer. But whenever anyone uses either of these terms, maybe you should ask that person both for his or her definition and a citation for the definition? You might find that person doesn't even know, notwithstanding his or her use of the term.
  2. You do not need an ATP for a unilateral change order. A change order is an order, and talk of an ATP following a change order simply makes no sense. A change order can be issued by SF-30, or by electronic means (FAR43.201(c)). You do not need a change order and then an ATP. After the government issues the change order, the contractor immediately implements and then has a period of time to submit a proposal for an equitable adjustment in the contract price, the delivery schedule, and so forth (particulars are dependent on the contract's Changes clause). A change where the government and contractor agree on the change and the equitable adjustment beforehand is a supplemental agreement, not a change order. So, for this thread, I need to ask the OP: Are we talking about-- change orders, where the government orders the change and the contractor immediately implements and comes back later with a proposal; or supplemental agreements, where the parties agree on the change and the appropriate contract changes before the change is implemented?
  3. I think a stand-alone platform is overkill -- an easier and adequate approach in my mind would be a simple certificate from sellers on their own platforms that they accept the GPC -- government cardholders could search the internet for the products they need and make purchases from sellers who advertise the certification -- think of a government label approximating kosher or halal.
  4. Read FAR Subpart 36.6. Note that the proper term is discussions, not interviews. Further note that these discussions are not discussions as that term is used in FAR Subpart 15.3.
  5. Katherine, Have you read FAR 28.305 and 12.301(a)? I think these will answer your question.
  6. It might work better if you selected one scenario for your question.
  7. Retreadfed, See FAR 32.1004(e)(2) to see how it reaches to performance-based payments for non-commercial items.
  8. Sam101 mentions A-94 in the context of post-award contract administration, but his citation of A-94 from FAR 32.205(c)(4) applies in the context of pre-award evaluation of competitive proposals where offerors may propose varying contract financing terms. It is error to cite FAR 32.205(c)(4) in the context of post-award contract administration, as it applies only to pre-award evaluation. Sam101, Are you asking about (a) pre-award evaluation; (b) post-award administration; or (c) something else?
  9. No, there is no loan. The progress payment helps the contractor avoid loans (or loans with very long periods) by reimbursing the contractor for costs it has already incurred in manufacturing the deliverable product. The progress payment is payable only if the contractor maintains satisfactory progress. It is akin to a partial payment, but is not an advance payment. The contractor does not ask "for the entire 90%." Rather, the contractor periodically shows that it has incurred costs and that satisfactory progress is being made. An agreed-upon payment schedule of three contract financing payments of $300,000 each plus the remaining $100,000 at delivery is not a progress payment structure. It could be an installment payment (for contracts for commercial items, limited to 70% of the contract price) or a performance-based payment (for contracts for non-commercial items, limited to 90% of the contract price). In competitive procurements when financing terms may vary among offerors, the contracting officer is supposed to compute the imputed cost of the contract financing payments and add it to the proposed price for each offeror requesting financing payments. This is explained in FAR 32.205(c) and 32.1004(e)(2).
  10. There are commonalities and overlaps. The evaluation of several offerors' total compensation plans can be part of the agency's cost realism analysis.
  11. In appropriate circumstances, yes. For example, if the agency is unable to provide promised government property to a contractor, an adjustment in contract price or delivery date might be an appropriate step pursuant to the government property clause within the contract.
  12. Maybe the prospective contractor knows it is a sole-source situation, and is trying to justify a higher estimated cost and higher fee. The contractor will propose what it will propose, and then you will negotiate to arrive at a fair and reasonable price, right? All the pre-award talk about labor categories and hours is to arrive at an estimated cost, but only the estimated cost goes into the contract, right?
  13. Voyager, I won't do a J&A for these sorts of matters, even if they cause the sum of already-issued orders to exceed the maximum ordering limitation when that limitation is expressed in dollars -- in my mind, a J&A is needed in such a case only if the Government is acquiring new work from the contractor.
  14. Actually, formedfed, I'm not so sure that you are wrong. Maybe, maybe not -- we haven't seen the contract so we don't know its text, and its text certainly will matter. To me, the key is whether the extension constitutes new work or is merely a matter of contract administration. If it is new work, beyond the scope of the initial task order, then YES, the parent contract's maximum order limitation applies and a J&A (or other appropriate sole source justification) is required -- the task order modification for new work would be subject to protest, as the task order modification orders new work which exceeds the contract's maximum order limitation. If it clearly is not new work, and is wholly within the scope of the initial task order, then I want to think that a J&A is not required. If the dollar aggregate of all task orders equals the contract's maximum quantity (expressed in dollars), the existing task orders can still be administered. Any of them could be modified to deal with a wage determination update, a government property nonavailability, a government delay of work, and so forth, and in my mind none of these would require a J&A and none of these would be subject to protest, as the task order modification is not ordering new work but is a matter of routine contract administration. If I did this, I would document my rationale and include that memo in the file. If it is messy and could be seen either way, or if the approval burden was too onerous, I would recommend doing the J&A.
  15. Is this true? Or, was a task order issued for a fixed period of performance? If the task order was issued for the Title III services during construction (perhaps with an anticipated period of performance) and construction isn't finished yet, then the scope has not been completed. In such a case, the extension is not "new" work. I believe the intent of the contract maximum requirement of FAR 16.504(a) is to limit the quantity of supplies or services that can be ordered under the aggregate of all task orders -- I do not believe the intent of the maximum requirement is to limit the flexibility of administering existing task orders. For example, if an IDIQ contract has a maximum quantity (expressed in dollars) of $100 million, and the aggregate of all task orders is $99,000,000, then there is no capacity for a new $2 million task order (or a task order modification for "new" work for $2 million). However, if there was a need for an adjustment in task order price of $2 million such as pursuant to the Changes clause, Government Property clause, Government Delay of Work clause, or other reason, I do not want to believe that a J&A would be required for the modification to effect that adjustment. In other words, the maximum quantity is a limit on ordering. IDIQ contracts don't have ceilings; rather, they have minimum and maximum quantities that can be ordered. I'm sharing this as food for thought in a professional forum -- I am not making a legal argument. Let me use another example -- the IDIQ contract maximum quantity (expressed in dollars) is $100 million, and the aggregate of all task orders is $100 million. Now it is time for an upward wage determination modification for one task order. I would want to say the contracting officer does not need a J&A to raise the contract maximum to allow for the subsequent contract price adjustment, as nothing new is being ordered to violate the maximum quantity limitation on ordering.
  16. 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.
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. Voyager, If you prepare a quality solicitation and contract, with no inconsistencies, then you don't have to worry about order of precedence.
  23. 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.
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