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ji20874

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Posts posted by ji20874


  1. This is a common occurrence.  How many times has it happened over history where option exercise funds were not available on Oct. 1, and yet the contractor continued working at its own risk for a few days and the option exercise (when it happened) was made with an effective date back to Oct. 1?  This is not new.  Matters like this are best handled without fanfare, with a focus on practicality rather than ivory tower sophistries.


  2. Jamaal,

    You mustn't mischaracterize what I said.

    Do you have any good advice for the original poster?  I suppose the original poster is trying to do what is good for his or her agency by keeping a needed contractor's services.  Please offer some constructive help.  It's okay with me if your advice differs from mine -- the more people that try to be helpful, the better.


  3. 6 hours ago, Jo Brown said:

    I hadn't thought about the "consideration" part.  This is a 10 year contract and we are at the 5th year where the caps come into play from year 5 on out.   We would like to be able to ask them to remove the caps so we can adjust them accordingly due to inflation, etc.,  I don't know what consideration we could offer, most the clins are FFP. 

    It sounds to me like you bargained for and got a 10-year contract -- as part of that bargain, you agreed to rate caps starting in the 5th year -- now that you have the contract, you no longer want to honor your agreement?  You want to renege on your promises?  Look at here_2_help's question:  Why is it in the Government's interest to remove the rate caps?

    On a FFP CLIN, an example of consideration would be reducing the unit price by 40% -- just an example.


    • "Regarding the purchasing system, what should an offeror submit if the offeror meets the threshold for a purchasing system review but for who a review has not been conducted yet?"
    • "How will you evaluate an offeror who meets the threshold for a purchasing system review but for whom a review has not been conducted yet?"
    • "Will an offeror who meets the threshold for a purchasing system review but for whom a review has not been conducted yet be deemed ineligible for award?  Will such an offeror be unfavorably rated in the evaluation?"

    Don't be wishy-washy in your questions.  Ask direct questions that will force the Government staff to consider your situation, and hopefully you'll get a direct answer.

    You don't have to wait until the last minute to submit questions -- the earlier you submit them, the more time the Government will have to deal with them.

    By the way, it does not appear to me in the solicitation text you quoted that the Government REQUIRES substantiation of a purchasing system review from on offeror who meets the threshold for a review -- the solicitation asks for it (if it exists), but apparently there is no indicator that an inability to submit the substantiation will make your offer unacceptable.  You really should ask the question -- ask all three.


  4.  

    7 hours ago, Lukevan said:

    We're leaning toward submitting the outside opinion letter (with our proposal) and the information that we've never been reviewed by the Government (which should be their burden), and arguing in the proposal that 52.244-2 doesn't require an approved system it just sets out the process depending on whether a company does or does not have the approved system (if we do it this way, do you think we've lost our ability to protest later on this basis?).  

     

    If the solicitation REQUIRES that an approved purchasing system be substantiated in your offer, and if you feel this is unfair, you should raise your objection (protest) before the date and time set for receipt of offers.  If you follow your recommended course and the Government later rejects your offer as unacceptable for this reason, your protest after the date and time set for receipt of offers likely will be dismissed as untimely.  Does the solicitation actually REQUIRE approved purchasing system, or just favor one?

    7 hours ago, Lukevan said:

    We could ask them during the Question/Answer phase to eliminate this requirement (or clarify that having an approved system is not a requirement for award), but that approach runs the risk that they'll respond with the answer that it is a requirement and then we'll have no chance unless we protest prior to the solicitation due date. 

     

    Your protest after the date and time set for receipt of offers likely will be dismissed as untimely.  If the solicitation REQUIRES an approved purchasing system, you should raise your objection (protest) before the date and time set for receipt of offers. 

    Ask the question and get an answer.  Do it!  If you don't like the answer, file a protest before the date and time set for receipt of offers.  

    The case referenced by another poster doesn't fit (if I understand correctly, which is that your solicitation REQUIRES  an approved purchasing system be substantiated in the offer) -- the referenced case did not REQUIRE an approved purchasing system be substantiated in the offer, but only the ability to obtain one -- it allowed for system submission and approval after award.


  5. 5 hours ago, Retreadfed said:

    That is if the contracting officer is competent and knows how to write a final decision.  However, that is not always the case and the final decision may be essentially nothing more than a statement that I have read your claim and deny it.

    That's still progress -- the denial can be appealed to a board of contract appeals.  The absence of any substantive reasoning will work in the contractor's favor in the appeal.


  6. A complete and valid claim under the contract's Disputes clause will provide one (or a combination) of following results:

    1. A final decision with an agreement and a payment (or a partial agreement and partial payment); or
    2. A final decision with a denial (or partial denial).

    If you get 1., the matter is over and everyone is happy -- the contracting officer agreed with you.

    If you get 2., you will be able to read the contracting officer's substantive reasoning for the denial -- maybe you will agree with him or her and can make whatever correction is needed -- but if you disagree with that reasoning, you may appeal the denial to a board of contract appeals.

    If the contracting officer does not issue a final decision, that constitutes a "deemed denial" and you may appeal the deemed denial to a board of contract appeals.

    A claim is the process agreed to by both parties for resolving disputes that might arise under the contract.  It can be an honorable process.  I don't know whether you are really entitled to payment, but you say you are.  Read the Disputes clause and see if it fits.

     


  7. You said earlier that e-mails and phone calls are not returned, over a period of several months or a year.

    I don't see a claim as adversarial -- you can be wholly courteous and professional about it.  Read the Disputes clause and see if it fits your circumstance -- if it does, follow it.  A claim is filed with the contracting officer, not his or her supervisory chain and not to an outside body.  It will be a private matter between you and him/her, unless he/she decides to tell others.

    Or, you can continue to be wishy-washy, but it likely will avail you nothing.  If so, you might say something like, "This is our last request.  Our next action, seven days from today's date, will be a claim under the Disputes clause of the contract."

    It's up to you to decide if you really want the money you believe is owed to you.  Of course, if your agency is one of those in shut-down because of the failure of the Congress to pass an appropriation bill for the President's consideration, you might be out of luck for a while.


  8. 1 hour ago, cblack20 said:

    Reviewer who is investigating the matter

    Othe than you, no one here knows the facts, and no one here has read the contract and the modification.  Hopefully, the modification itself explains the authority for the modification (block 13 on the SF-30).  If you disagree with whatever is cited there, I suppose that is your starting point for your investigation.  

    Based only on what I can read in this chain, I agree with Jamaal that you probably don't have an ADA issue.


  9. If you believe you are entitled to payment, you should file a claim under the Disputes clause of the contract.  Make it a real claim (demand for payment, sum certain, and so forth), don't be wishy-washy.  That will force the contracting officer to issue a final decision in the matter.  You don't need outside counsel to file a claim -- just read and follow the Disputes clause, don't be wishy-washy.  If you don't like the final decision, or if you don't get one, you can appeal to a board of contract appeals. 


  10. On 12/26/2018 at 2:32 PM, hallowed said:

    Yes they were set aside for small business...

    1

    52.219-6 is a common set-aside clause (for total SB set-aside), but there are a few others for HUBZone, SDVOSB, WOSB, and other sorts of small business set-sides.  I would ask for a listing of all Part 19 clauses in both the solicitation and in the contract (or purchase order) -- everything FAR 52.219-__ or DFARS 252.219-__.


  11. Maybe you were just lucky for the other six?  

    I recommend being careful in raising the other six awards — an investigator might look into them and you might face a false claim matter (submitting an invoice for a product that does not conform to contract requirements) if any of those six were set-asides.

    Anyway, we’re here for learning, not argument.  Happy new year!


  12. hallowed,

    If a contract has one clause that forbids something and a second clause that forbids something else, then both things are forbidden (even though either one of the things might have been allowed under one clause operating alone).

    It is well-established practice that a set-aside clause’s very stringent requirement for a domestic product takes precedence over more loosely-written clauses that might seem to allow otherwise.  That’s normal with standardized clauses that are written for routine incorporation.  But if there ever is a doubt about two seemingly contradictory clauses, a question to the contracting officer before submission of offers might clear it up.  


  13. Agencies using the DFARS use Balance of Payments.  

    The clauses in each solicitation set the rules for that solicitation.  A solicitation with FAR 52.225-1, -3, or -5 will be subject to BAA or TAA (FTA or WTO GPA) rules.  A solicitation with FAR 52.219-6 or another set-aside clause will be subject to set-aside rules.  A solicitation with the DFARS BoP clause will be subject to balance of payment rules.  

    I’m not a BoP expert, so I won’t speak directly to that topic.


  14. Acquisitions less than the simplified acquisition threshold are automatically reserved (or set-aside) for small business concerns. If the solicitation includes the clause at FAR 52.219-6, it appears you are not complying with para. (d).  

    BAA and TAA are irrelevant, as the set-aside takes precedence over these.

    It seems you need to be bidding on acquisitions that are not set-aside for small business concerns AND are over the TAA thresholds — then, your items may be accepted on a non-discriminatory basis.  

    If you bid on supply acquisitions that are not set-aside for small business concerns AND are under the TAA thresholds, then the BAA May apply and your items may be considered on a discriminatory basis (after adding 6% or 12% (by the FAR) or 50% (by the DFARS) to price evaluation).

    If you bid on acquisitions that are set-aside for small business concerns, you fail under para. (d) or the clause at FAR 52.219-6 or similar paragraphs in other set-aside clauses.

     


  15. Sure, you may have a contract with some FFP CLINs and some LH CLINs.  It is not illegal.  

    Whether it makes good business sense is another matter.  In some situations, it could.  In other situations, it won’t.  But this doesn’t make it illegal   

    A mixed arrangement could provide for difficulties during contract administration, such as when work that should be under the FFP CLINs is charged against the LH CLINs.  But this doesn’t make it illegal.  

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