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Everything posted by ji20874

  1. So, maybe the solicitation CLIN structure is notionally something like this? 0001, Services, 2080 HR, unit price $100, amount $1,200 (FFP) 0002, Materials, reimbursable at cost (T&M, M only)
  2. I recommend you ask the contracting officer for clarification on which parts of the work are FFP and which parts of the work are T&M. Hopefully, the answer will be on a CLIN basis, where certain CLINs are wholly FFP and other CLINs are wholly T&M -- that is generally easier than having blended CLINs. A prospective offeror never has much time before proposals are due, so I suggest you hurry.
  3. GSA CTAs

    Then there is no need for that schedule contractor to enter into a CTA.
  4. Does the contract specify the working hours? Will the change be a verbal agreement, or will it be an official contract modification on a SF-30? If the latter, what authority will be cited in block 13?
  5. See FAR 15.404-1(a), and also (a)(1). Note the emphasis on "final agreed-to price" and "final price" being fair and reasonable. Is the contractor's proposed price fair and reasonable? There is nothing wrong per se with an overhead rate of 14.95%. I assume you're getting certified cost and pricing data (sole source over the threshold), so you can review or challenge or audit or negotiate any part of it. There is nothing wrong per se with profit on subcontracted work. If you don't use a structured approach to analyze profit, you'll still want to consider the factors listed in FAR 15.404-4(d)(1)(i) through ((vi) in your analyzing profit.
  6. There are a lot of rabbit holes in our work. :-) Speaking of rabbit holes, and since we don't know if this is a construction acquisition, let me add that the fill-in to the clause at FAR 52.236-1, Performance of Work by the Contractor, might prohibit a large business (or any other subcontractor) from doing 99% of the work.
  7. This is true insofar as we're talking about a contract (or purchase order) for services (or construction). And as best as I can tell from the original posting, we are probably talking about a contract for services (or construction). But I wouldn't want anyone to think that this same principle applies to a contract (or purchase order) for supplies. In a contract for supplies that is a total small business set-aside, even a contract below the simplified acquisition threshold, the contract will include the clause at FAR 52.219-6, Notice of Total Small Business Set-Aside. For a contract for supplies, paragraph (d) of that clause requires the contractor to furnish "only end items manufactured or produced by small business concerns in the United States or its outlying areas" except that if the total contract amount does not exceed $25,000, the contractor may furnish "the product of any domestic firm." The original poster did say that 52.219-6 was included in his or her solicitation. He or she did not clearly say that the acquisition was for services (or construction), although I assume it is because "a large business will do 99% of the work."
  8. LPTA Question

    REA, Here's how it works -- I don't like it; I'm just explaining it. An offeror with an approach we like gets a pass, an offeror with an approach we don't like gets a fail. I'm okay with pass/fail in LPTA if we really have some technical measures to assess -- and I'm okay sometimes with "approach" in LPTA -- but sometimes, all I see is technical approach, management approach, and/or staffing approach -- in such a case, I generally prefer tradeoff.
  9. Batman, Please help me understand. I can't make sense of this: versus: Does the -8 option expire in July, or did it already expire in January? And was the -8 option exercised for the parent IDIQ contract, or was it exercised on one/some/all task order(s)? If the -8 option was exercised for the parent IDIQ contract, what did the -8 option purchase, inasamuch as a parent IDIQ contract does not purchase any services?
  10. Deaner, It is good to read the clause, isn't it? The 52.237-3 clause need not be used only in the last 90 days of the incumbent contract -- it can also be used on the first 90 days of the successor contract.
  11. I'm with Vern -- the Continuity of Services clause presumes the successor contract has been awarded -- the incumbent contractor is not responsible for full performance, but only for phase-in/phase-out services in support of the successor contractor. And I'm with Don -- if the clause is in the parent contract, then it can apply to any of the task orders. If you still need full performance, don't use the 52.237-3 clause. Write a JEFO or other appropriate sole source justification if you need to and extend the period of performance of the order. Save the 52.237-3 clause for after award of the successor contract.
  12. I suppose this is a competitive acquisition, because you wrote "One offeror submitted..." and "tradeoff". You may open discussions with all offerors in the competitive range. Or, if you want to award without discussions, you award at the proposed price (estimated cost + fee = price). If the contractor gives you a notice of overrun during contract performance, you exercise one or more of the Government's flexibilities as listed in the clause at FAR 52.232-20 or -22, and you record the contractor's MARGINAL or UNSATISFACTORY performance under the cost control element in CPARS. If you do add additional funds to cover the overrun on estimated cost, you do not increase the fee. You may have other remedies available to you, depending on whether this is a CPFF or CFAF contract. At this point, you do not know that the offeror will overrun -- you acknowledge a possibility, but you don't know. It would be stupid to award on the probable cost calculated by the Government, so don't even think about it. Remember, if you think this is really a huge problem, you can open discussions with all offerors in the competitive range.
  13. The micro-purchase threshold is irrelevant to your situation. You made a contract or other award where you did a written price analysis. Now, you are modifying that award for an amount less than $3,500. However, you are not making a micro-purchase. Since you are not making a micro-purchase, you are not covered by FAR Subpart 13.2. You might be thinking that something in FAR Subpart 13.2 exempts you from price analysis. Well, you're not covered because you're a contractor, but still, the text in FAR Subpart 13.2 about not always having to verify price reasonableness doesn't apply because you aren't making a micro-purchase.
  14. GAO: Late Is Late–Even If Agency Server Malfunctions

    An offeror intending to submit a proposal by e-mail really, really, really should make its submission by “5:00 p.m. one working day prior to the date specified for receipt of offers." An offeror who fails to do so, and whose proposal is late, should protest to the Court of Federal Claims instead of to the GAO. I'm with the GAO on this matter. Desparado, I've done a number of bid openings but I've never had that pressing situation -- I have had situations where a bidder arrived late and he knew he was late, so there was no complaint. At a bid opening, I always clearly announce when the time set for bid opening has arrived, as you probably do, too. In training others to do bid openings, I remind them that they must have the professional backbone to declare the time and then to stand by their announcement. I tend to discern that many of our younger colleagues do not have sufficient backbone to do it.
  15. Read this. Read it NOW!

    Pepe, I'm sympathetic to your call to action. But how many of our contracting officers can tell the difference? How many of their supervisors can tell the difference? How many of their procurement analysts can tell the difference? How many of their attorneys can tell the difference? I wish I could say "most" or even "many" or each category. I can't. Here is a few things off the top of my head from the "blue" or "lore" category-- · A determination to include or exercise an option must be in a D&F (Determinations and Findings) format. · Q&As for a solicitation must be provided by solicitation amendment. · Any modification over 20% (or any other fill-in the-blank figure) is automatically out-of-scope. · A J&A (or other sole source documentation) is needed before issuing orders that cumulatively go above the estimated quantity (or price) in a requirements contract. · A task/delivery order purchasing the contract minimum must be awarded simultaneous with (or immediately after) the award of any IDIQ contract. · A determination of responsibility is required to support an option exercise or issuance of a task/delivery order. · A BPA must include a ceiling or maximum amount for the BPA, and a J&A (or other sole source documentation) is required before issuing orders that cumulatively go above that amount. · A contractor release of claims is required before closing out every contract, purchase order, or task/delivery order. · A contract closeout must be done with a bilateral contract modification. · A notice (solicitation) for a fair opportunity consideration must state whether all non-price factors, when combined, are significantly more important than, approximately equal to, or significantly less important than price. Let me stop there -- lunch is over and I need to get back to work. By the way, every single one of the above statements is FALSE but they are believed to be true by some of our associates -- that's why they're in the "blue" or "lore" category. I'm reminded that in matters of religion, one sincere adherent's folklore is another sincere adherent's doctrine. Some people reading my list of folklore might argue with me and insist that something on the list is doctrine. I hope no one tries to burn me at the stake -- but if I do err, maybe someone will teach me with chapter and verse from the FAR or other FAR-level document (not from an agency guide or office SOP). I'm open to learning.
  16. Read this. Read it NOW!

    Gordon (or anyone else who is hip and with it), Help me out -- what does #MCGA mean?
  17. apsofacto, Vern did not suggest a T4C -- he suggested a no-cost T4C -- that's different. See FAR 49.402-4(c).
  18. When a source selection takes longer than World War II

    The no fee on the cost portion made sense to me. To agree on a fee, the parties have to agree on an estimated cost -- but here, the parties cannot agree on an estimated cost, so they cannot agree on a fee. The fixed price portion can include whatever fee the hand of competition will allow.
  19. A contractor may be in default based on anticipatory repudiation. If a contractor has declared its intent not to comply with the contract terms, a termination for default at that time may be appropriate -- it is not necessary to wait for the actual failure to occur. From the 2014 Contract Attorneys Deskbook (chapter 25, Contract Terminations for Default): "Each party to a contract has the common-law right to terminate a contract upon actual or anticipatory repudiation of the contract by the other party." https://www.loc.gov/rr/frd/Military_Law/pdf/CAD_2014_Ch25.pdf
  20. Termination for the Government's convenience? This sounds like a termination for the contractor's convenience. However, I understand that a no-cost T4C might be an action in lieu of default. But I want the original poster to get off his or her "plainly or palpably illegal award" horse -- there is no illegal award, based on what has been written here -- the contractor made promises that it now chooses not to keep -- I want the original poster (assuming he or she is a contracting officer) to get on the horse of doing his or her job of protecting the Government's interest in the awarded contract and respecting correct principles. If he or she considers T4D and then decides on no-cost T4C, I'm okay with that. If he or she seeks a no-cost T4C to excuse the contractor from its obligations or to avoid hurting the contractor's feelings, the outcome will appear the same but will based on a poor premise. In either case, a failing CPARS record should be made -- but wait, that might hurt the contractor's feelings. H2H, a T4D would allow for immediate award to the next in line offeror.
  21. I agree that no one can prescribe a definitive solution based on the very short initial posting. But based on what I read, I would encourage consideration of a T4D. I don't like it when contracting officers award contracts and then let contractors off the hook for performance solely because they (the contracting officers) want to be nice. Here, the contractor seems to be failing to honor its promises. The contractor could honor its promises by dropping its other clients?
  22. A termination for default (or cause) sounds like the right step. The contract is valid. The contractor is unwilling to honor its obligations.
  23. Acquisition Reform ― It’s Soylent Green!

    Here's a great idea (since only great ideas are invited) -- I made the submission on the 809 Panel webpage a few minutes ago... Detailed Description of the Challenge How many GS-1102s does it take to make a contracting decision? If a contracting officer's decision or recommendation has to be approved by a higher-level official, such as the HCA, there may be six, eight, ten, or fifteen or more GS-1102 (or military equivalent) persons in between the contracting officer and the HCA. And we're not even talking about lawyers. We need to streamline the decision-making process. Proposed Solution or Recommendation Maybe in DFARS Part 201: When acquisition regulations require approval of a contracting officer decision or determination at some level above the contracting officer, the following instructions shall apply: When the action requires (a) approval within the local contracting office or center, or (b) review by the chief of the contracting office before submission to the head of the contracting activity, there shall be no intermediate GS-1102 (or military equivalent) persons as reviewers within the local contracting office or center. The contracting officer may submit the action directly to the approving official or chief of the contracting office for consideration. However, if the approving official's or chief of the contracting office's position is graded for a member of the Senior Executive Service (or comparable or higher position, including a general or flag officer in the armed forces), the approving official or chief of the contracting office may appoint one GS-1102 (or military equivalent) person to perform a staff review as part of his or her consideration of the action. When the action requires (a) approval by the head of the contracting activity (HCA), or (b) review by the HCA before submission to the agency head, the HCA may require an intermediate review by the chief of the contracting office (see the paragraph above). In addition, the HCA may appoint one GS-1102 (or military equivalent) person on his or her staff to perform a staff review as part of his or her consideration of the action. If the approving official, chief of the contracting office, or head of the contracting activity desires the formal input of other GS-1102 (or military equivalent) persons before making a decision on the action, he or she may convene an in-person or virtual meeting for that purpose. The contracting officer should be invited to participate in the meeting whenever practicable. The names of all attendees shall be recorded for the record in the contract file. The above paragraphs only limit GS-1102 (or military equivalent) reviewers for actions requiring approval above the contracting officer level and up to the head of the contracting activity. Reviews by attorneys or other specialists or advisors are not limited by these paragraphs.
  24. I'm with Todd -- it seems strange to have already decided on the solution without knowing that it will meet the need. Regarding the 52.217-x clauses, no, you don't need any of them. You also don't need any of the determinations required by FAR Subpart 17.2. Your authority is the 52.207-5 clause. You're doing an option to purchase a leased or rented item, not an option to buy additional quantities. Your attorneys or procurement analysts might tell you differently, of course.
  25. Unreasonable Price

    I don't see any benefit in asserting that a price reasonableness decision must be objective. As I see it, a price reasonableness decision includes both factual observations (objective?) and value judgments (subjective?). Some price reasonableness decisions will have more of an objective flavor; some will have more of a subjective flavor. In torts, they say an action based on a reasonable person standard is objective and an action based on a person's feelings is subjective. But surely the method of divining or discerning a reasonable person standard (what a reasonable person would do) is very much subjective. So in a tort case, the lawyers argue and the judge uses a subjective method to come up with a reasonable person standard, and then retroactively imposes that standard on the defendant in the case. Objective? Really? I am fine with price reasonableness determinations that are influenced by a contracting officer's value judgments; providing, the contracting officer is faithfully doing his or her job.