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Posts posted by ji20874

  1. The Government considered your experience and the winner's experience as the same.  You haven't disagreed with that finding.

    Your price was higher than the winner's price.

    Sounds to me like the Government selected the right contractor.

    I see no fatal error in the Government's conduct of the acquisition, based only on your explanation of the facts.  

    Three of us have explained our opinions based on our own past experiences -- I hope this has been helpful to you.

    Have you filed your protest yet?  Please share the outcome when you get it -- this is how we all learn for the future.  

  2. Our dim-witted automated systems might contribute to the problem — it might be impossible for a contracting officer to approve a payment for less than the invoiced amount.

    My instruction in that case was for the contractor to show the withholding in its invoice.  For example, if the earned fee was $100 and the withhold amount was 15%, I told the contractor to show this in the invoice with a payable amount of $85 and $15 shown as earned but withheld and added to the cumulative withheld amount.

  3. In a simplified acquisition, FAR part 13 only requires the agency to furnish a supplier “a brief explanation of the basis for the contract award decision,” not an actual “debriefing.”  The provision at FAR 52.212-1 does not promise a debriefing.  If you have a basis for a post-award protest, it is due 10 days after notice of award (not after the alleged debriefing which really was not a required debriefing).

    It appears that you already objected to the contracting officer's e-mail (after quotes were received) to all responders to submit their experience information on a particular form.  You filed an agency protest, and lost that protest.  You did not follow-up with a GAO protest.  This matter is probably untimely for protest now (being more than ten days since you learned).  Even if not untimely, you would have to show that you were prejudiced by the contracting officer's action, but it seems as though everyone was treated equally.

    So, what is left?  You and the winner rated equally on experience and its price was lower.

    In Turner, B-400421, the RFQ did not include the provision at FAR 52.212-1, so I don't think it makes the point you think it does.  If the winner submitted its experience form by the new time set by the e-mail to all responders, it wasn't late (in essence, the contracting officer's e-mail was a solicitation amendment).  Besides, you don't know whether the winner submitted up front (like you did) or later (as all respondents were allowed to).  Even if the latter is true, I don't think a protest attempt on your part to disqualify the winner's experience submission will be successful (all responders were treated equally, e-mail was effectively an amendment, and you were not prejudiced).

  4. 1 hour ago, NenaLenz said:

    But my understanding is that we already know there aren't any small businesses that make the specific items that will need to be purchased under those supply agreements.

    Then your goals for all of the categories will be zero.

    If the contracting officer thinks that is unreasonable, he or she may open negotiations to arrive at reasonable figures.

  5. If that clause were in your contract, you would be on notice that the obligated incremental amount is your only promise, and that even if the Government terminates the contract for its own convenience, tot total amount paid to you (costs for performed work + settlement expenses) cannot exceed that obligated amount.

    For example, imagine that the CLIN amount is $1,000 per month, or $12,000 for the year, and the Government's incremental obligation amount is $6,000.  This might make you think that you could perform six months of work ($1,000 per month x 6 months = $6,000 obligated amount).  However, if you termination liability is $4,000, then you can only perform two months of work ($1,000 for one month + $1,000 for another month + $4,000 for termination liability = $6,000 obligated amount) -- you would want to stop work at the two-month point.

    On ‎5‎/‎9‎/‎2019 at 10:44 AM, lotus said:

    DoD funded roughly 60% of the first year's price.  Insofar as I can tell, nothing compels DoD to fully fund it.

    DoD's own rules and basic principles of Government contracting require DoD to fully fund it.  The exception is if the contract includes the clause at DFARS 252.232-7007, Limitation of Government's Obligation

  6. 4 hours ago, 76fj40 said:

    Thanks to all for your help.  I will contact the CO for clarification.

    Why will you ask the question?  The CO wasn’t the one who told you, and as long as the CO has neither said nor done anything to cause you concern, I recommend being silent and continuing to accept orders.  Don’t ask a question if you don’t need to.  Don’t ask a question if you can’t stand the answer.  Leave well enough alone.  My two cents...

  7. If the options are separate CLINs, one modification can exercise both options.  The PoP, estimated cost, and fixed fee for each CLIN would remain unchanged.  Both options would be funded from the same pot of RDT&E money.

    After exercising the option as two CLINs as written with back-to-back PoPs, I suppose you could renegotiate the CLIN structure and merge those two CLINs into a single CLIN in the interest of efficiency, if both parties were agreeable.  You could probably negotiate it before exercising the options, as you are not affecting scope in any way.  But when you do exercise an option, it is a unilateral action based on the option terms as previously agreed by the parties.

  8. It depends on (1) the culture of your organization; and (2) your own willingness to engage.

    I'm towards the end of my career, and I have had a lot of great experiences -- the 1102 series is very well-graded and has opportunities in every state and around the world.

    I made my work cool -- in most of my jobs, my willingness to engage was appreciated -- but in a few jobs, the organizational culture was a killer.  If you end up in a drudge office where your willingness to engage will cause others to hate you, you will want to transfer elsewhere.  You have to look for good assignments, and good opportunities in any office where you are assigned.

    Best wishes!

  9. It is not necessary to treat multi-year money like one-year money, but many organizations do it -- and because they do it, they lose the ability to tell the difference and they lose the flexibility that multi-year money affords.  Everyone becomes dumbed-down.  Then, when someone wants to use the flexibility that multi-year money affords, everyone else says it can't be done and will break the rules.  This isn't just your office -- this is pervasive throughout the federal government.

    The concerns you raise are valid concerns.  But there are legitimate workarounds.

    For example, in exchange for the very early exercise of the option, the might ask the contract to agree to a homemade clause that changes the 75% figure at which an overrun notice is required under the Limitation of Cost or Limitation of Funds clause in your contract -- maybe change it to 50% during the first year of the two-year option period.  And require the contractor to have a burn plan and to stick to it, and record it in CPARS if they don't. 

    Is it a done deal?  Has the option exercise modification been done already?  If not, you have time to talk about these things across your program management, contracting, and budget organizations.  The contracting office can stop the process by refusing to prepare or sign the modification.  The budget office can stop the process by refusing to certify availability of funds.  I commend you for learning, but warn you that knowledge of correct principles does not guarantee a good outcome -- office tradition and organizational culture can squash correct principles.

    I once worked in an organization with no-year money -- two organizations in wholly separate departments, actually.  I can promise you that budget people don't like for a contracting person to tell them the flexibilities with no-year (or multi-year) money -- even if they are wrong (based on a lack of understanding of correct principles) and even if you can quote from GAO reports and the Red Book, they can still win because of their organizational power.  But any discussion in your office about bona fide needs rule and so forth is likely to be in error because your interlocutors will be applying the bona fide needs rule as if your multi-year money is one-year money, which it isn't, and they might be unable to tell the difference.

  10. I’m with Jamaal.  You don’t have an earliest date to exercise the option.  June 22, 2020, is the start date of the period of performance, not the earliest date for option exercise.  Your contract clause at FAR 52.217-9 doesn’t have an earliest date, so you may exercise the option weeks or months in advance of that date, maybe even a whole year in advance, provided you have funds — and it sounds like you do (RDT&E funds with a multi- year obligation period).

    In fact, you cannot exercise Option 2 on June 22, 2020 — that’s the day the contract will expire, and you must exercise the option at least 30 days before that, right?  So based on what you have shared from your contract, it seems the latest date you can exercise is May 23, 2020 (30 days before the contract would otherwise expire), and there is no earliest date.

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