ji20874

I thought about the clause at FAR 52.243-4, Changes, but I don't think it fits the facts here because-- para. (b) requires a notice from the contractor to the contracting officer stating that the contractor regards the warranty call as a change order (and OP made no mention of having given notice); para. (d) limits any equitable adjustment to costs incurred within 20 days before the notice (and OP did not mention any timelines); and para. (f) prohibits any equitable adjustment after final payment (and I am assuming that final payment has already occurred). So I'm still thinking there is no contract clause that will provide an entitlement to an equitable adjustment for OP, and I still recommend for David to look at the Disputes clause in his contract. I disagree with characterizations that REAs are for nice people and claims are for mean people -- that mindset is too simple-minded for professional dialogue.

David, If you were to submit a REA to me under FAR 52.236-2, Differing Site Conditions, for the facts described in the OP, I would be duty-bound to reject it -- in my opinion, that clause does not give a contractor an entitlement to a REA under those facts. As I mentioned in my first comment, I still recommend you look at the Disputes clause in your contract -- no one else in this thread has mentioned any other clause that would give you an entitlement to a REA.

Joel, If the OP wants to submit a REA, and you are encouraging that approach, what contract clause will allow for an equitable adjustment in this circumstance? I am not aware of any clause that will entitle the contractor to an equitable adjustment with these facts. I'm thinking that a claim is the right step since OP is seeking "the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract." YES, if there is a clause that gives OP an entitlement to an equitable adjustment, REA all the way -- but what is the REA clause that OP can cite?

ArrieS, You might be the hero in the story if you propose a differing solution that still works for your organization, and persuade others in your agency of its efficacy. I think we need thinkers and solvers in our career field. Talk to others and see what can be improved in the situation you described. I don't know about the DoD PGI, but I would wonder if it defines and limits all of the possibilities or if it merely illustrative of some concepts and possibilities. Of course, people have to follow the rules as they are understood in their localities. Jamaal, If calling an audible means changing an approach because on a newly-realized reality, then calling an audible is good -- the quarterback acts within his authority on the field, right? Being rigid and inflexible is generally thought of as bad in many settings.

Rather than thinking in terms or correct or incorrect, I'm wondering if it works. I have used what I call draw-down CLINs, and they worked for me.

I don't think the clause at FAR 52.246-21 provides an REA entitlement to the contractor for "invalid warranty claims." However, the clause does allow for warranty claims after acceptance -- indeed, that's the purpose of a warranty.

I'm not sure about this -- is there text in your contract that would create this entitlement? But if your contract includes a disputes clause, that clause may give you an entitlement to file a dispute or claim against the agency.

I hope you have mentioned these failures on the part of your contractors in their CPARS submissions.

Does https://www.gao.gov/products/b-294974.6 address your question? Note that this decision occurred after the decision I mentioned above.

Jamaal, If an office establishes pre-priced BPAs for the same items with several sources, it can consider those BPAs as providing competition for those items. If the number of BPA holders goes down over time, the office may (1) establish additional BPAs; or (2) provide for competition by getting quotes from non-BPA sources.

https://www.gao.gov/products/b-294974.4

How about throwing your past performance questionnaire in the trash, and doing phone calls with recent customers instead?

Neil, Please read FAR 13.303-4(b). A FAR 13 BPA is not an acquisition -- it is not a contract. For clauses, reviews, small business coordinations, competition, and every other purpose, the individual purchase limit is the only dollar amount that matters -- the potential aggregate (or maximum), if one is specified, is irrelevant (and isn't even mandatory). You are in good company -- many, many people in the federal acquisition community do not understand FAR 13 BPAs, and they make the same mistakes that you are making. They treat a FAR 13 BPA erroneously as a procurement based on the maximum, rather than correctly as a method for repeat purchases within the individual purchase limit. [Please note that this entire thread deals with FAR 13 BPAs for simplified acquisitions, not BPAs against schedule contracts under FAR 8.4.] I hope this discussion helps the OP and other readers understand correct principles.

I also disagree for a FAR 13 BPA. Each purchase under the BPA stands alone. The BPA is not a contract. Neil, If you were doing a FAR 13 BPA with a micro-purchase limit for individual purchases and an overall aggregate limit (maximum) of $1 Million, would you use clauses prescribed for a $1 Million action?

You might ask your prime contractor to tell you which clause(s) numbered FAR 52.229-xx are included in the prime contract and will flow down to your subcontract. Then, you can read that clause and know how to comply.

A FAR 13 BPA with an individual purchase limit at the micro-purchase threshold is not a $1 Million acquisition, even if the BPA has an aggregate limit of $1 Million. Handling such a BPA as a $1 Million procurement is error. I have no problem establishing a FAR 13 BPA with a small business concern; indeed, I encourage it when the conditions for a BPA are present -- but such an action is not a set-aside. So many practitioners want to see a FAR 13 BPA as a procurement, but it isn't -- a requisition is not required, funding availability is not required, competition is not required, an acquisition plan is not required, an aggregate limit or maximum is not required, and so forth. If a BPA has an aggregate limit, that maximum limit is irrelevant for clause selection and other purposes (for every purpose, the instant purchase amount is what matters). Competition, acquisition plan, small business coordination, and similar matters are dealt with for each individual purchase (or not, such as for micro-purchases).

Please, let's be careful of creep. There is ZERO requirement that micro-purchases be set-aside for small businesses. Citing FAR 13.003(b) as requiring set-asides for micro-purchases is error -- indeed, the very text of 13.003(b) militates against this creep -- here is the text: "Acquisitions of supplies or services that have an anticipated dollar value above the micro-purchase threshold . . . shall be set aside for small business concerns." This creep is all too common among 1102 practitioners -- please, let's avoid it.

Christal, What do you say? Do you use the individual purchase limit for clauses and reviews, or what you call the master BPA limit?

Override? It's not a matter of override; rather, it is a matter of applicability. Does FAR 15.506 apply to your procurement?

I'm with Carl. A Part 13 BPA contains clauses and follows rules based on the maximum individual purchase limit, not the cumulative possible total. No requisition or purchase request is needed.

As I understand from this thread, there is no contract that obligates funds for later disbursement -- there is a GPC purchase.

Do what the FAR says -- for a micropurchase, take your pick among FAR 13.301 (preferred, and your selection for the case in this thread), 302, 303, 305, or 306. If you choose 13.302 for a micropurchase, then YES, you will use appropriate clauses for a purchase order because you're in 13.302, and 13.302 prescribes clauses for purchase orders. But for the case in this thread, are you ready to drop the idea of imposing T4D clauses? And maybe use GPC dispute procedures instead?

Really? Are you dealing with (1) a purchase using the GPC, or (2) a purchase order? You assert that FAR 13.302-4 applies to both purchases using the GPC and purchase orders, but I don't understand the basis for your assertion. According to my understanding, FAR 13.301 applies to purchase card purchases, and FAR 13.302-1, -2, -3, -4, and -5 apply to purchase orders. Isn't the Christian Doctrine is a judicial doctrine or remedy? Are contracting officers allowed to cite the Christian Doctrine as authority for imposing their will on contractors? I think maybe you are pushing too hard. I agree with Carl for one-on-one with the vendor, and then maybe a credit card chargeback if appropriate.

How about a credit card chargeback?

So, it is 2 and 2 from my lists above? Please don't try to negotiate additional clauses into the contract. Oh, is there a contract? Maybe you should excuse the contractor from further performance, and close the matter?