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ji20874

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Everything posted by ji20874

  1. Seeker, The definition of subcontractor does not reach to EVERY indirect charge to another contractor in the overhead and G&A, but only to those contracts which the prime entered into to specifically to obtain supplies or services for performance of its prime contract.
  2. civ_1102, You write, "This section would allow the Secretary of Defense to apply a simplified acquisition threshold..." If so, should you wait for the Secretary of Defense to take his action before you adopt the higher threshold? Such action might come in the form of a DPAP letter or DFARS change.
  3. I just read the decision -- here are the key words for the sake of this discussion: "In a sole-source award such as this one, the notice of intent issued by the government is analogous to a request for a proposal."
  4. But for commercial items, I often do use less than 30 days as allowed by FAR 5.203©.
  5. Well, if there was some unusual and compelling urgency that demanded a 5-day period, I suppose FAR 6.302-2 would have been used instead of 6.302-1. My general pattern has been to do the FBO posting 30 days before anticipated award date for a 6.302-1 buy. The requirements of FAR Subpart 5.2 apply to 6.302-1 buys, and the exceptions in 5.201(a)(1) and 5.203© don't reach to exempt a 6.302-1 buy.
  6. ji20874

    Expeditor?

    I've worked in Air Force, NOAA, and Forest Service contracting shops -- I've never seen the term used. But I know it is commonly used in the worl of commercial purchasing...
  7. ji20874

    Use of No-Year Funds

    Perhaps the question arises because of the bona fide need rule. However, the bona fide need rule does not apply to no-year appropriations. See the GAO decision at http://www.gao.gov/decisions/appro/317636.htm. A no-year appropriation is available for incurring obligations for an indefinite period, usually until the objectives have been accomplished. This is different from a revolving fund, though. You need to make sure you really have no-year funds using the same definition as used by the GAO and others. Sometimes, an agency's internal rules will require the treatment of no-year funds essentially as one-year funds. This is an internal agency decision that does not change the ultimate fact that the bona fide need rule does not apply to no-year appropriation.
  8. diverdave, I recommend some degree of care in answering the question from your prospective offeror. If I were you, I would limit my response to paraphrasing FAR 19.301-1(a), such as, "To be eligible for award as a small business, an offeror must represent in good faith that it is a small business at the time of its written representation. An offeror may represent that it is a small business concern in connection with this solicitation if it meets the definition of a small business concern applicable to the solicitation and has not been determined by the SBA to be other than a small business." Then, I might add a statement such as, "The contract will include the clause at FAR 52.219-14, Limitation on Subcontracting, and the successful offeror will have to comply with that clause during the life of the contract." I would close with something such as, "Contracting officers do not pre-certify prospective offerors as eligible or not eligible. You must make that decision and certification for yourself as part of your proposal preparation effort." In simple terms, you don't want to give legal advice to the offeror, and you don't want to give an answer that you cannot support later.
  9. As I understand, it is permissible for a business concern operating in the United States which is wholly-owned or otherwise affiliated with a foreign firm to still qualify as a small business for purposes of small business set-asides -- but the contracting officer can let the SBA make that decision by following the process at FAR 19.302 ( c ) ( 1 ) (contracting officer protest of small business representation). Even if the concern qualifies as a small business, it must comply with the contract clause at FAR 52.219-14, Limitations on Subcontracting. For services, the concern awarded the contract (the business concern operating in the United States) must perform 50% of the cost of contract performance for personnel with its own employees (not its foreign parent company's or other affiliate's employees). Again, the contracting officer can let the SBA make that decision by following the process at FAR 19.602-1 (referral for a certificate of competency from the SBA) (note that para. (a) specifically mentions limitation on subcontracting as one of the reasons for a referral).
  10. ji20874

    Use Agreements with Commercial Firms

    It sounds to me like you're talking about a commercial item. It is customary in many parts of the commercial marketplace for sellers to allow test drives, so to speak, of their products. You haven't spoken to dollar amount, so I'm not sure whether your competition standard is full and open competition of FAR Subpart 6.1 or maximum practicable competition of FAR 13.104, or whether the equipment is available on GSA schedule or other source. So, there's a lot we don't know. But assuming the equipment is a commercial item, and assuming sellers in your part of the commercial marketplace allow test drives, so to speak, of their products, you could easily prepare a solicitation inviting potential sellers to provide some data regarding their product, establish a testing period where some small number of responders (maybe even one) will provide the equipment at no cost for your testing/use, and ask for a price to purchase the product which best meets your needs. This will meet your competition and advertising requirements, if any, and will allow you to select one or a small number of products for on-site testing and a decision to actually purchase one. The solicitation could incorporate Vern's advice: "Why don't you simply explain to the firm what you want to do and ask it to provide you with one of the things at no cost so you can test it. Ask the contractor to provide it with a letter saying that the government is not responsible for loss or damage. Agree on a date on which you'll return the thing. Ask the contractor to be responsible for packing and shipping." Invite all firms to provide some data, and then select which of the responding firms from which you will invite the delivery of their product on a test basis.
  11. ji20874

    REMOVING/DELETING WORK

    Does your contract include the clause at FAR 52.232-22, Limitation of Funds? If so, see paragraphs ( c ) and ( e ). If you cannot provide the funds required for contract performance, then you will terminate the contract. Business clearance is an agency-specific practice, not a FAR practice. But as I understand it, you only need to do a business clearance if you are re-negotiating the contract. Do you want the contract to "expire" when the money runs out? You should terminate it in accordance with para. ( e ) of the clause at FAR 52.232-22. You you want to re-structure-re-negotiate the contract? Do a business clearance explaining your approach and outcomes.
  12. ji20874

    Cancelling the Procurement

    Where do you sit? Sometimes, what you see depends on where you sit. Are you (A) a Government employee; or ( a contractor employee/official? If (A), are you (1) holding animus towards your program or contracting office for making a decision you don't agree with; or (2) sincerely concerned that a contractor might file a claim against which your agency has no defense? An interested party, such as a contractor who submitted a proposal, may file a protest against the cancellation of a solicitation. The GAO will sustain the protest if it finds a basis for doing so. Often, though, the GAO opines that a contracting agency has broad discretion to cancel a solicitation after receipt of proposals, especially a RFP in contrast to an IFB. Cancelling a solicitation in order to craft better evaluation criteria and to correct other earlier mistakes sounds like a good idea to me. Contractor employee/official's action: Consider protesting the cancellation of the solicitation; and if successful, then seek proposal preparation costs. Government employee's action: Work hard and make the next solicitation better than the last one. Help your agency be successful in its acqusition program.
  13. This doesn't sound like a deductive change to me -- the contractor could have installed two, or three, depending on the circumstances when it started work -- it installed two -- this sounds like a perfect use of the Variation in Estimated Quantities clause -- pay the contractor for two, and you're done (unless the contractor makes a good case for adjustment under the Variation in Estimated Quantities clause). In your first post, you clearly said the ESTIMATED QUANTITY was three -- everything I am writing is premised on the fact that the quantities in the schedule are understood to be estimates. You must not confuse the contracting principles and the clauses. If a contractor is entitled to an equitable adjustment under a particular clause, you cannot use the principle of another clause to grant the adjustment. This is too much confusion. If you have a change, use the equitable adjustment principle of the Changes clause. If you have a variation in quantity, use the equitable adjustment principle of the Variation in Estimated Quantities clause. Which do you have? [btw, this is great discussion and great opportunity for learning]
  14. To me, napolik's advice makes sense only if you have twelve months of severable services or if you are buying a level-of-effort. But this might not be your case. I suppose you want the provisioning work completed, and one month's work will look very different from another month's work, and one month's work has no value to you by itself with nothing following. If your contract line item is for 1 JOB or something similar, and if your contract as written doesn't allow for progress, interim, or performance-based payments, then you pay the contractor the fulll amount at the end of the contract. If your contract line item is for 12 MONTHS or something similar, then that's how you pay. If your contract does not allow for progress payments but you want to be nice to the contractor and provide such, please obtain some exchange of consideration so that it won't be a gift to the contractor. If you're obtaining provisioning from a sole source original equipment manufacturer, well, your negotiating leverage might be weak. But you can always start by administering the contract as it is written.
  15. Based on the information that actual cost plus normal profit allowance for each installation is $40,000, I might extrapolate that the cost plus profit for two units is $80,000, and the cost plus profit for three units is $120,000. Here, the contractor installed two and invoiced for $120,000 -- this is because the established unit price is $60,000, and $60,000 x 2 = $120,000. It seems to me you should pay that invoice at that amount. It is irrelevant that the contractor's actual costs plus normal profit allowance are only $80,000. Yes, the contractor is making a huge profit of more than $20,000 per unit, or $40,000 total. That's okay -- this is a firm-fixed-price contract. Maybe next time, you can negotiate harder. Regarding the third unit, it seems to me you should not pay for it. The contract quantities were estimated, and the contractor didn't install it. You have not described that the contractor has proven its entitlement under the clause at FAR 52.211-18. Remember, the mere fact of an underrun doesn't create entitlement to an adjustment, and the contractor has to show that its increased costs for the two are SOLELY attributable to the decrease in quantity. If the contractor is saying it requires the $20,000 amount from the last unit because that amount covers overhead costs -- well, you haven't gotten that far yet -- the contractor first has to show that the unit costs of installing two are more than they are for installing three. What's your opinion? Is the unit cost for two so much cheaper than the unit cost for installing three? You can answer this question by yourself or with your own Government engineers and others. I asked earlier about FP-03 because it has differing language to deal with variations in quantity which are the result of an error in the specifications or plans. Your contract doesn't incorporate FP-03. So you still have a valid question that you might raise with your attorney about whether, in your case and based on your contract and circumstances, you should deal with the differing quantity under the contract's Variation in Estimated Quantity clause or Changes clause.
  16. Has the contractor made a demand, citing the clause at FAR 52.211-18? From your posting, I understand the following-- ( a ) The contract calls for an estimated quantity of 3 EA at a unit price of $60,000, or $180,000 total. ( b ) The contractor has delivered and installed 2 units. ( c ) The contractor has invoiced for $120,000 ($60,000 EA x 2 units delivered and installed). ( d ) The contractor has shown that its total incurred cost for the two installed units, plus profit, is $40,000. ( e ) The contractor wants an additional $20,000. This doesn't make sense, so maybe I don't understand the facts. To me, ( c ) and ( d ) are not compatible statements. Regardless, the question is whether the variation from an estimated quantity of 3 to an actual quantity of 2, and solely this variation, caused an increase in the contractor's cost for the 2. If the difference in contractor costs had any other contributing factor, then there is no adjustment under the 52.211-18 clause. This clause could play if the item we're discussing is a specialty item, where a manufacturer will quote a price break between units two and three (for example, an order for 1 or 2 units will have a unit price of $50,000 each, but an order for three or more will have a unit price of $40,000 each). Another factor to consider is whether the contractor actually ordered and purchased the third unit, and if so, if it had a reasonable basis for doing so when it did. For example, if the contractor knew the quantities were estimates, perhaps it should have waited for the actual quantity to be discernible before placing its order with its supplier. Does your contract incorporate FP-03, the DOT standard specification for roads and bridges? If so, FP-03 has differing language to deal with variations in quantity which are the result of an error in the specifications or plans.
  17. The requirement for a prime contractor to obtain subcontracting plans from its subcontractors exists in para. (d)(9) of the clause at FAR 52.219-9.
  18. You're silent on the matter of what you're providing to the prime. Commercial items? Paragraph (j) of the contract clause at FAR 52.219-9 indicates that subcontracing plans are not required from subcontractors when the prime contract includes the clause at FAR 52.212-5 or when the subcontractor provides a commercial item subject to the clause at FAR 52.244-6 under a prime contract.
  19. ji20874

    What's Your Interpretation?

    Joel, Don, So, to make sure I am understanding what is being said, the sentence in 15.503((1) which reads-- Within 3 days after date after the date of contract award, the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award . . . or had not been previously notified under paragraph (a) of this section. should be read as-- Within 3 days after date after the date of contract award, the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award . . . or had not been previously notified under paragraph (a) of this section. The "or" phrase may be disregarded entirely because any offeror who is not in the competitive range will already have received the (a)(1) pre-award notice. Or, the "or" phrase only has meaning in those cases where the contracting officer eliminated an offeror from the competitive range but failed to send the (a)(1) pre-award notice. ----- I still hold that a notice under (a)(2) is a notice under paragraph (a), and assert that one can do an (a)(2) notice without doing an (a)(1) notice. I further agree that if the reading as above is intended, an editorial FAR change would be nice. Carl, you're right about the 41 USC 253b language and intent. ----- Joel kindly called the original posting a test. But is trap a better word?
  20. ji20874

    What's Your Interpretation?

    Vern, I'll try to answer your question. You asked, . . . How does "(a)" mean either (a)(1) OR (a)(2)? Why do you think that "(a)" means either and not both? The text in 15.503((1) says "had not been previously notified under paragraph (a) of this section." It is possible to send a notice under (a)(1) only, under (a)(2) only, or under both (a)(1) and (a)(2). All three are real possibilities. A notice under (a)(1) only could occur in an unrestricted procurement where someone was eliminated from the competitive range. A notice under (a)(2) only could occur in a set-aside procurement where no one was thrown out of the competitive range. And a notice under both (a)(1) and (a)(2) could occur in a set-aside procurement where someone was thrown out of the competitive range. So the real possibilities are (a)(1) only, (a)(2) only, and both (a)(1) and (a)(2). A notice under (a)(1) only is a notice under paragraph (a). A notice under (a)(2) only is a notice under paragraph (a). Thus, either a notice under (a)(1) or (a)(2) suffices. The text does not seem to require both notices. It could be changed to read that way (or just to read (a)(1)), and it would make sense to make this change to the FAR for reasons others have pointed out. But as you suggested, we don't pay attention to common sense, just what the FAR text requires -- and the FAR text only requires a notice "under paragraph (a)". If the FAR drafters had intended a notice under (a)(1) as the only exception, they could have said so. If they intended both together as the only exception, they could have said so. They didn't. Since it is easy to imagine an acquisition where the only required notice under paragraph (a) is the (a)(2) notice, it is easy for me to conclude that the "under paragraph (a)" text in 15.503((1) contemplates an (a)(2) notice. Here's what the text actually says: Within 3 days after date after the date of contract award, the contracting officer shall provide written notification to each offeror whose psoposal was in the competitive range but was not selected for award . . . or had not been previously notified under paragraph (a) of this section. Here are the possible readings of the text, in my mind: Within 3 days after date after the date of contract award, the contracting officer shall provide written notification to each offeror whose psoposal was in the competitive range but was not selected for award . . . or had not been previously notified under paragraph (a)(1) of this section. Within 3 days after date after the date of contract award, the contracting officer shall provide written notification to each offeror whose psoposal was in the competitive range but was not selected for award . . . or had not been previously notified under paragraph (a)(2) of this section. Within 3 days after date after the date of contract award, the contracting officer shall provide written notification to each offeror whose psoposal was in the competitive range but was not selected for award . . . or had not been previously notified under paragraph (a)(1) and (2) of this section.
  21. ji20874

    What's Your Interpretation?

    Don, Did you ask for interpretations? I thought you did, so I presumed interpretations of others would be welcome. And did you write that FAR 15.503((1) should perhaps read "or had not been previously notified under paragraph (a)(1) of this section" instead of "or had not been previously notified under paragraph (a) of this section"? I thought you did. Vern is right in saying that "paragraph (a)" in FAR 15.503((1) means either one of the notices required by paragraph (a), either (a)(1) or (a)(2). He is also right in saying that what matters is what the regulation actually says -- it actually says "paragraph (a)" -- it does not say "paragraph (a)(1)". In this matter, I "act in strict accordance with what the regulation says." I'm not saying there is anything wrong with sending out the ( notice to firms who have already received an (a) notice -- more power to you, if you want to do so -- but Don asked for interpretations of whether the ( notice is required for firms who have already received the (a)(2) notice, and I gave my interpretation based on the plain language of the FAR text. Vern is intent on proving me wrong, but that doesn't achieve anything. The best answer might be to re-write the sentence to read (a)(1) instead of (a). Joel, I customarily send the (a)(2) notice to the successful offeror also. The FAR doesn't require it, but I choose to do it because it makes sense to me. I do get requests for debriefings based on the (a)(2) notices, and I honor them.
  22. ji20874

    What's Your Interpretation?

    Vern, We may disagree. You write, "The CO must send the ( to notice to anyone in the competitive range who did not win, including those who were sent the (a)(2) notice." You further write, "In short, if a firm was eliminated from the competitive range and was sent the (a)(1) or the (a)(2) notice, but not both, the CO must send that firm the ( notice. Why? Because FAR 15.503((1) says so." You might be reading the pentultimate sentence in FAR 15.503((1) as ". . . or had not been previously notified under paragraph (a)(1) of this section." But I read it as ". . . or had not been previously notified under paragraph (a) of this section" [i don't add the (1) in my reading -- the FAR doesn't put it there, and I don't read it in]. To me, either the (a)(1) notice or the (a)(2) notice is a notice under paragraph (a), and either notice suffices as an exemption to the ( notice requirement in 15.503((1). In my practice, an unsuccessful offeror gets either an (a) pre-award notice or a ( post-award notice, but not both. That?s what the FAR says -- that?s what I do.
  23. ji20874

    What's Your Interpretation?

    The 15.503( a )( 1 ) pre-award notice goes to all offerors excluded from the competitive range. The 15.503( a )( 2 ) pre-award notice goes to all unsuccessful offerors when using small business programs, including those who earlier received the ( a )( 1 ) notice. The 15.503( b )( 1 ) post-award notice goes to unsuccessful offerors still in the competitive range, except those who earlier received the ( a )( 1 ) or ( a )( 2 ) notice. So, in my mind, in simple answer to the original poster?s question, if a contracting officer sends either an ( a )( 1 ) notice or an ( a )( 2 ) notice to a firm (or both notices), he or she does not later send the same firm a ( b )( 1 ) notice. The ( b )( 1 ) post-award notice is required only if the firm ?had not been previously notified under paragraph ( a ) of this section.? That?s what the FAR says -- that?s what I do.
  24. ji20874

    Cancelling the Procurement

    When an Invitation for Bids (IFB) is canceled before opening, the bids are returned unopened to the bidders. FAR 14.209( b ).
  25. ji20874

    Cancelling the Procurement

    The key is whether the contractor proposal information is entitled to protection from disclosure to "any person other than a person authorized, in accordance with applicable agency regulations or procedures, by the agency head or contracting officer to receive such information" (FAR 3.104-4( a )). Even if the information is not protected, the disclosure may be improper if "the Federal agency plans to resume the procurement" (FAR 3.104-4( e )( 2 )). Why not send a notice to all the offerors saying the solicitation is cancelled but that the Government intends to open (or has already opened) the proposals already received as part of a market research effort to develop an independent Government cost estimate and re-write the solicitation for issuance in the future? That's just being honest and transparent. Transparency is a big deal now-a-days. Essentially, the contracting officer is converting a RFP into a RFI. RFP is defined in FAR 15.203( a ). RFI is defined in FAR 15.201( e ). They are different.
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