ji20874

By tiered evaluation, do you mean cascading set-aside? Go ahead!

See FAR 1.102-4(e): "The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound." I don't think you're going to find anything that specifically authorizes a five-year ordering period, or even a one-year ordering period for that matter -- you can have an ordering period for as long or as short as you want using sound business judgment.

This is not true. You may administer (even modify) the contract. If the additional time is due solely to unusually severe weather (not just "weather" but "unusually severe weather" as an excusable delay), you may process that modification. The types of modifications you cannot do are those described in FAR 9.405-1(b). But if the contractor hasn't performed any of the work, the excusable delay notion won't hold any water. This is irrelevant. Did the contractor submit a performance bond? No, not unless you terminate the contract. No. Not yet. Have you considered issuing a show cause notice with notice to the surety, preparatory to termination for default?

I am not familiar. It seems to me that the Government's decision to contract with B was for the Government's own benefit and protection as a risk mitigation strategy, and those costs can't be styled as excess reprocurement costs. At least, this would be true for the base period costs on contract B. Are you asking about the entirety of contract B's costs as excess costs, or just the excess costs in the option exercises. Since successful performance is so important, I wonder if the agency would require a performance bond from A? See FAR 28.103-2(a)(3). Here's a possible approach: Imagine a single solicitation that results in two awards, A and B, where A is the best value offer and B is the next-best value offer, and both contracts have a base CLIN 001 and an option CLIN 101 -- both A and B start work on CLIN 001 -- if A is successful, you exercise A's option for CLIN 101 -- if A is not successful but B is, you exercise B's option for CLIN 101.

Prosperity, Here is the question: Is there a reasonable expectation of obtaining offers from at least two small business concerns (but not two dealers offering the same manufacturer’s product) and making award at a fair market price? Your answer (select one): - YES - NO

See FAR 1.102-4(e).

Don is right, since you said you are in the FAR 15.3 lane. However, you would have discretion if you were in the 8.4 lane or 16.505 lane, which you aren’t. FAR 19.502-2(b) talks about the Rule-of-Two, which applies to 15.3 but is inapplicable to 8.4 and 16.505. The key to the Rule-of-Two is not that two or more small businesses express interest or are capable, but rather that there is a reasonable expectation of receiving (“obtaining”) proposals from two or more small businesses, and so forth.

What lane are you in? FAR subpart 8.4 FAR part 13 (below SAT) FAR part 13 (above SAT) FAR subpart 15.3 FAR § 16.505 Other: __________ (it makes a difference)

Your research is sound.

The -3 reps and certs provision applies to the resulting contract and all orders issued under it, but reps and certs are established at the parent schedule contract level and not at the order level. I always cringe whenever I see a contracting officer trying to re-establish a complete reps and certs package for an order.

No. The clauses at FAR 52.212-4 and -5 are already part of the parent schedule contracts.

Kristin, What is your role? Contracting officer, finance/budget specialist, program manager, attorney, something else? You should be able to rely on your funds certifying official — he or she will certify that the provided funds are appropriate for the intended use. There is no FAR requirement for the contracting officer to do a “bona fide needs analysis” — he or she simply needs to be satisfied that the work is within the scope of the original contract. The FAR doesn’t require documentation for the file — the mere fact of the signed modification is the proof of the contracting officer’s satisfaction on that matter.

"Individual daily job timekeeping records" need not be interpreted to mean that the employee's pay is driven by those records -- it could be seen as simply a tracking of hours devoted to the contract work versus devoted to other matters. In a T&M contract, the Government pays the prime contractor based on the number of hours worked, but the prime contractor's pay to its employees and to its subcontractors can be on a different basis. For example, you could do a FFP subcontract with the university as long as you keep track of the labor categories and hours to satisfy the T&M prime contract's need for substantiation and payment. But if you (the prime contractor) have a T&M prime contract with the Government, you need to find some way to force your employees and your subcontractors to keep track of hours -- otherwise, you fail to satisfy FAR 16.104(i): "Adequacy of the contractor's accounting system. Before agreeing on a contract type other than firm-fixed-price, the contracting officer shall ensure that the contractor’s accounting system will permit timely development of all necessary cost data in the form required by the proposed contract type."

The contracting officer need not require a subcontracting plan unless subcontracting opportunities exist. See FAR 19.705-2(b).

Did you negotiate these payment terms into your subcontract? If so, you might have to remind the prime contractor of the agreement memorialized in your subcontract.

I think it means that you do everything required by MIL-STD-130 except for applying the part number to the part.

I’m with jayandstacey — I hope the new moderation isn’t seen as too heavy-handed. Are we trying to mollify someone (pbuh) who isn’t even here anymore? But I am sure we’ll have flexibility to adjust again if it doesn’t work as planned.

Are we talking about paying costs to a protester, or paying an unsuccessful offeror not to file a protest in the first place?

Is there a bug or glitch in the system? I did not write the text that formerfed quoted from me — how did that happen? I stopped at “from the beginning.”

I share this concern. If a protest will be problematic for a program's schedule, the single best thing to do is to start a little earlier -- build the hundred days into the schedule from the beginning. Additionally, I hanem't seen any reporting of settlement agreements in GAO's annual reports. If reporting exists, I could not find it required.

That’s the same advice as I shared. Did you share it already in this thread? I have to suppose that these negotiations will go better if Kathleen does not ask the contracting officer to prove that the prime contractor has not fraudulently invoiced for the subcontractor materials. Recourse against the Government, or the prime contractor? Kathleen has not made any hint that the Government is responsible for the contract delays, so I don’t make any such assumption. This thread is about subcontractor entitlement to payment for materials offsite still in the subcontractor’s possession.

I understand very well. The subcontractor has no entitlement to payment for the offsite materials in its possession, based on the information in this thread.

Everything the original poster has written in this thread makes and re-affirms the case that she (the subcontractor) has no entitlement to payment from the prime contractor, and nothing she has written makes any suggestion that the prime contractor has fraudulently invoiced the Government for subcontractor work. Nada. Zilch. I think advising her to go to the Government with hints of fraud (such as in requiring that the Government provide information on payments to the prime contractor for the subcontractor materials) or suggestions of non-payment (such as in requiring the payment bond information) is premature and ill-advised. She hasn't even delivered the material to either the prime contractor or to the work site. Kathleen, You came here looking for information that would justify payment for materials still in your possession and stored away from the work site. No one can give you this information because it doesn't exist for your circumstances. You thought that being a small business concern would provide such entitlement to payment -- it doesn't. The prime contractor cannot get payment for its own materials stored offsite under the terms of the prime contract, much less your materials. The prime contractor could have negotiated for such when the contract was formed, and still could now with an exchange of consideration, but that would only cover offsite material to which the prime contractor had title. I recommend you consider working with the prime contractor to see if there is any relief the prime contractor can offer to you. You haven't explained why the prime contract is behind schedule, but if it is the Government's fault, the prime contractor might be able to seek an adjustment in contract terms to allow for payment for materials stored offsite or might be able to negotiate a price increase sufficient to pay for the storage shed and security at the work site that you would need. But this is all between the prime contractor and the Government -- your payment problems are between you and the prime contractor. At least, that's my thought. Or, you may follow Joel's and Carl's lead and approach the Government if you think the prime contractor has committed malfeasance towards you. You haven't cited the text of the "prompt pay agreement" that entitles you to payment at this time. Can you do that?

She may ask, indeed. But the contracting officer has zero duty to answer her question (although she might be able to obtain the information under the Freedom of Information Act). But some care is due — a subcontractor’s perceived meddling in the privity between the Government and the prime contractor might not be universally smiled upon. I still think if the original poster thinks the prime contractor owes it money under the subcontract, that’s between the two of them — and if either party wants, the judge of the state civil court where they may sue for enforcement of the subcontract. Joel and I are approaching this matter from different perspectives. I hope the original poster benefits from this diversity.

But apparently the prime contract specifically disallows payment for material stored offsite. Fail. But the owner (the Government) apparently has not given advance approval. Fail. But you haven’t delivered the material to the work site. Fail. And you don’t have an agreement in writing for another location. Fail. At least, this is what I have discerned from your earlier postings. That’s why I understand and support the Government’s position, and think this is a prime-sub matter that you need to resolve with your prime contractor partner. It seems you have no entitlement to payment from your prime contractor — so instead, you might think of changing your approach and asking for some cooperation and assistance from your prime contractor, not as a matter of entitlement but as a matter of good business — your success will be enhanced/strengthened by a cash infusion, and your prime contractor’s success will be enhanced/strengthened by keeping you available as a subcontractor and ready to perform. This will be a private negotiation between you and your prime contractor.