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Posts posted by ji20874

  1. RachelleR,

    The FAR allows for a simple letter or telegram notice of award, to be followed later with the formal award.  Such notice of award is official and binding immediately, and yet is done before (days or weeks before) the production of the formal award document.

    Perhaps the pedants in your office can choose to look upon—

    • the option exercise as a notice of award (based on the contracting officer’s possession of an e-mail attesting to funds availability); and
    • the subsequent funding action as the formal award? 

    The notice of award process was more commonly used in the old days, when it took time to assemble and print and distribute a contract document.  It is still a legal and honorable process that has fallen into disuse because of desktop publishing capabilities that we all have.  

  2. So, you have some people in the office who are arguing that the option exercise was invalid?  Who are arguing that the contract should have expired and the work stopped?  

    The people in the contracting office should be in favor of the work continuing.  Instead, people there who were not involved are having an academic discussion trying to pin blame on the contracting officer for keeping the work going.  Are they arguing that the option exercise modification and the subsequent funding modification are invalid?  If not, they really should shut up.

    Maybe the contracting officer had an understanding, or maybe even an e-mail, that funds were on the way.  That would be good.  An irregularity or hiccup in the production of a purchase request should not be an excuse for a contracting officer to stop the work as part of an academic argument.  I’m supposing the contracting officer’s intentions were honorable.  If the contractor thinks the modifications are invalid, the contractor can speak for itself.


  3. Maybe the contracting officer is the real hero in the story?  Absent his or her action, the contract would have expired and the work would have stopped.  The pedants in the office can only have this discussion because of the contracting officer's heroism -- otherwise, they would be blaming the contracting officer for letting the contract expire.  The contracting officer had a problem, and he or she saved the day.

    Here is the choice:

    • (A) Do a modification and add the funds to the contract, or
    • (B) Declare the option exercise invalid and tell the contractor the contract is over.

    Which action did the office take?

  4. As a follow-on to Retreadfed's comment,

    • If "additional precautions were directed by the Proj Manager" and the contractor interpreted that direction as a constructive change, and
    • If the contract included the clause at FAR 52.243-7, Notification of Changes,
    • Then the contractor had an affirmative duty to provide notice to the contracting officer of the alleged change.

    If the contractor did not provide timely notice, then the contractor may have forfeited its right to an adjustment in the contract price.

  5. I want to agree with Don, but with a few caveats...

    1.  However, the price paid by the Government for the contract modification to pay for the HWP has to be fair and reasonable, and there might be a need for certified cost or pricing data for this sole-source modification (depending on dollar amount and commerciality and so forth) -- if so, the profit will need to be visible.

    2.  However, the contracting officer has to agree with the contractor's claim alleging a constructive change.  See FAR 1.602-3(b)(5).

  6. Some of the work was covered in the HWP.  The contract promised that if the HWP was invoked, the Government would reimburse costs, period. 

    • Any costs that fit within the established HWP are reimbursed at cost, with no additional profit.  That's the agreement of the parties.
    • Some of the "additional precautions were directed by the Proj Manager" might fit within the broad scope of the established HWP, and those should be reimbursed at cost, with no additional profit.  That's the agreement of the parties.
    • If any of the "additional precautions were directed by the Proj Manager" were beyond the scope of the established HWP, then the contractor might need to make a claim under the constructive changes doctrine (and the contracting officer would need to approve the claim) before any costs could be reimbursed, and yes, profit would be negotiable.  The agreement of the parties doesn't reach this far.

    But all of the above is premised on a fixed-price contract.  On a cost-reimbursement or time-and-materials contract, we need to look more closely.  If T&M, then there cannot be profit on materials and subcontracts, right?


  7. Possibly, this is not a matter of cost allowability or anything like that -- rather, may be a matter of the 8(a) concern's qualification as a disadvantaged business -- is it a valid SDB that is eligible to participate in the 8(a) program, or is it a fraud or front?

    If this is the nature of the SBA inquiry, well, the SBA has to make this decision, and it will have nothing to do with cost allowability.

  8. Have you read FAR Subpart 42.12?  Please do.  The question is whether or not the LLC is a successor in interest.

    If you think of the LLC as a successor in interest, then you follow FAR 42.1203 and 42.1204.

    If you think of the LLC as merely a change in name (and not a successor in interest), then you follow FAR 42.1203 and 42.1205.

    I lean towards the former.

  9. govt2310,

    You don't have to convince all the attorneys in your agency -- you just have to convince your one assigned attorney -- same with finance people and procurement reviewers and so forth.  It will be much easier to persuade them if you really are buying SaaS (a fixed price for a fixed period, maybe with some fixed-price add-ons if needed) instead of a government-bastardized-facsimile-trying-to-pass-off-as-SaaS.  If your program office is trying to disguise a real service contract as a SaaS subscription, it will be fair for your attorney or others to balk.


  10. https://www.gsaelibrary.gsa.gov/docs/Schedule-SIN-NAICS-crosswalk.xlsx

    Look at the spreadsheet above...

    If that doesn't open, do a Google search for "GSA Schedule 70 NAICS" and select--

    [XLS] NAICS schedule/SIN crosswalk - GSA eLibrary
    2, 00CORP, FCO00CORP0000C, Professional Service Schedule. 3. 4, SIN, SIN Title, NAICS. 5, C132 51 ....70, 271 114, Ancillary Services -, 811198.
    Then, select tab "70" at the bottom and do an Excel search for 517911.

  11. govt2310,

    Software as a Service (SaaS) is sometimes described as a software licensing and delivery model (the software is centrally hosted and licensed on a subscription basis).  So, YES, you may look at it as a license.  This is true because many SaaS offerings still require some software to reside on the customer's (agency's) computers.  But some SaaS offerings are pure SaaS, and zero software resides on customer (agency) computers -- if you are really doing a real SaaS offering (instead of a bastardized-for-the government approach), that's great!

    The subscription business model is used far beyond periodicals.

    In many cases, it makes sense to look on the purchase as a supply (with payment upon delivery of the access) rather than a service (with payment upon completion of the work).  You need to convince your finance and legal support -- if so, you should have no problem -- this has worked for me.  But will be ahead of the curve, setting the practice for others to follow -- the FAR and common cultural practice is still far behind you.

    You simply cannot look on it as a service from a traditional cultural perspective -- if you do, you will never be able to buy SaaS.  Let FAR 12.101(a) and (b) be your friends.

  12. I’m imagining church choir music as I write this...

    If the low-price quote is the best-value quote, you can certainly (and easily) consider its price to be reasonable, based on the information in the original posting.  You have multiple quoters with independent pricing for the same requirement.  

    Price reasonableness is concerned with whether the price is too high.  Assuming you have no other reason to think that $300K is too high, it is easy to find that $300K is the lowest price received based on a simple comparative analysis.  From the same data, it would be nigh impossible to find the $1.2 Million quote as reasonable based on competition. 

    When there is a wide disparity in prices received, you could protect the Government’s interest by sending a letter to the apparent winner (the lowest-price quoter) saying that there is a wide disparity in prices, that there appears to be the possibility of a mistake, and that the quoter is invited to validate and confirm its price.  If the quoter confirms its price, you may proceed with a responsibility determination and (if favorable) award.  If the quoter claims a mistake, you either open discussions with some or all quoters, or allow the quoter to withdraw its quote.

    But in no way are you in a sole-source situation.  

    If you think the $300K price is too low, well, you are not talking price reasonableness anymore — you are talking price realism.  That is an entirely different discussion.  

  13. 15 minutes ago, PepeTheFrog said:

    The Competition in Contracting Act (statute), which the FAR implements, requires full and open competition for new work or work that is outside the scope of the original contract, hence the discussion in this thread about where the line is drawn and whether a J&A is required.

    All frogs must know that there are many contracts (and contract actions) that are exempt from CICA.  So, maybe it would be better to say that CICA “requires full and open competition for SOME new work or work that is outside the scope of the original contract...”  Is the BAA process one of the exceptions to CICA?

  14. The decision talks about FP-LOE, but from what I read, it looks more like a T&M contract.  If the agency was sloppy in its contract formation and contract administration, maybe it deserves the penalty.  For example, the decision talks about a contract "ceiling" -- but there is no ceiling in a FP-LOE contract.  Maybe the judge invoked the Christian doctrine because this was a sloppy contract.

  15. 59 minutes ago, GMR said:

    Are you adding the new work by modification to an existing order? 

    No, it will be a continuation of current services, no new work.


    If these are severable services  (it sure sounds like it is), then what you call a continuation of current services (your "additional 6-month period plus an optional 6-month period") is new work.

    So, let me ask the question again--

    Are you adding the new work by modification to an existing order? 

    Based on what I am reading, I think the answer is YES.

    Inasmuch as the new work is more of the same, I am doubtful that your new work really qualifies as a logical follow-on -- but that is for your review channel, HCA, and SPE to decide.