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ji20874

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Posts posted by ji20874

  1. Yes, I do like the Logan decision.  However, I do not encourage widespread use of the Logan decision as justification for any other contracting officer's action -- as I said, the Logan decision goes farther than the text of FAR 13 on the topic of BPAs, and has not been codified in a FAR update.  Logan's premise should only be used by competent and careful practitioners.

    The old adage is that hard cases make bad law.  Logan was a hard case, with a tortured history.  The agency had a real and difficult need, and stretched the FAR 13 text beyond the comfort level of many in order to meet their need -- the GAO allowed it to stand.

    Vern says the Logan decision was a big whoopee -- but I think it was a meaningful decision, because until then the approach was untested legally and probably rarely (or never?) used.  The Logan players in the DEA were bold and did it, and they won the protest.  I like that.

  2. You may establish a FAR Part 13 BPA with any firm you choose, without competition or notice or requisition or J&A -- and if you establish several BPAs, those BPA holders may provide you with adequate competition for some of your subsequent simplified acquisition purchases. 

    A BPA doesn't have a POP as there is no performance; rather, a BPA may have a period for making purchases.

    A BPA is established, not awarded.

    If a purchase intended for a BPA exceeds the threshold for posting or synopsis, you will want to comply with those rules for that purchase.

     

  3. Maybe we can categorize contractor FFP assumptions into two buckets for this discussion?

    1. Proposal Pricing Assumptions.  Assumptions an offeror makes as part of developing its firm-fixed-price proposal.
    2. Performance Assumptions.  Assumptions an offeror makes which condition or limit its offer, provide an excuse for non-performance, and so forth.

    pconner, what kind of assumptions are you talking about?

  4. 17 hours ago, lawyergirl said:

    Does anyone know if it's typical for a panel of evaluators on a particular federal agency's RFQ (Agency A) to be partially made up of personnel that work at other federal agencies (Agency B and Agency C)?

    I don't know if it is typical, but certainly it is allowable.  I have seen it happen several times in my career. 

    17 hours ago, lawyergirl said:

    Also, can a CO serve at more than one agency at a time?

    Sure, why not?  Several years ago, I simultaneously held an unlimited contracting officer's warrant in the Defense Department and an unlimited contracting officer's warrant in the Commerce Department, and awarded contracts under the jurisdiction of both departments.

  5. 57 minutes ago, Retreadfed said:

    This seems to contradict the notion that the government does not buy hours under T&M/LH contracts.

    But a T&M/LH contract does not buy hours -- the notion is error --  a T&M/LH contract buys a job where the number of hours needed is unknown, and the contractor agrees to provide its best effort to compete the job within the agreed-upon ceiling price.

  6. 3 hours ago, Sam101 said:

    I know how to negotiate, thank you, I just like the way "no money no contract" sounds.

    Yeah, but you have to decide whether you are a professional or a clerk -- and even if you strive to be a professional, your organization might treat you like a clerk.

    The negotiation examples I shared are legitimate and honorable, and using them will help you shift more to a professional perspective.  The clerk perspective pervades the 1102 community, and that is sad.

    I am glad you are asking questions.

  7. Too many 1102s want to apply FAR 15.306 everywhere.  Back in the days when we had 1105s, they understood small purchases/simplified acquisitions and they handled them.  When 1102s move into that arena, many of them carry their Part 15 baggage with them -- and they carry that baggage into purchases against schedules, orders under IDIQ contracts, and everywhere else.

    sam101, Look at these and tell me if you think they are fair...

    (1) Simplified acquisition, quotes at $36,200, $36,600, and $41,000 -- all quotes are identical except for price -- the contracting officer's requisition or purchase request is for $36,000.  The contracting officer asks the first quoter if it can drop its price by $200 -- the first quoter says YES, and the purchase order is issued.  I think this is fair and allowed under FAR Part 13.

    (2) Simplified acquisition, same quotes as above.  The first quoter says NO to the request to drop its price by $200 -- the contracting officer asks the second quoter if it can drop its price by $600 -- the second quoter says YES, and the purchase order is issued.  I think this is fair and allowed under FAR Part 13.

     

  8. 1 hour ago, C Culham said:

     As to "estimate" versus "ceiling" I am concluding that the terms mean the same thing. 

    I see them as different.  The FAR text on schedule BPAs speaks only of estimate (not ceiling), and even allows for orders going beyond the estimate (not ceiling) -- this leads me to believe that estimate (not ceiling) is the correct and intended word.  But I allow others liberty in their practice, and they may impose ceilings if they choose.

  9. If the evidence suggests the parties had a common understanding at the time of schedule BPA establishment that the BPA had a ceiling (and not an estimate, or a separate lower estimate), I think I would want to respect that understanding and enforce the ceiling as limiting on the agency.  It might be interesting to see how the attorney would make a case that a ceiling and an estimate are the same thing, and that both mean estimate.

    I note that we are now talking only about schedule BPAs, not simplified acquisition BPAs.  

     

  10. I think I would want to hear the protest parties make their arguments about whether the "ceiling/estimate" was intended to be (1) a ceiling; or (2) an estimate -- after all, they are two entirely different things. 

    Whichever way I decided based on the arguments and evidence, I would probably want to bemoan the sloppiness of the agency's BPA text and to chide the protesters for not inquiring about which term was correct before the BPAs were established. 

    A typo such as in a FAR citation is easily overlooked and forgiven, but a contracting officer's use of the terms "ceiling" and "estimate" as synonyms indicates a quality problem with the contracting officer as well as with all of the reviewers and attorneys who let the sloppy text slide through.

  11. In my experience, contracting officers and others routinely believe that ceilings are required for BPAs, both FAR Part 13 BPAs and Subpart 8.4 BPAs.  They are astounded when they learn the truth, and some refuse to accept the truth.  I think most BOA ceilings are imposed because of this error in learning rather than by agency policy or purposeful contracting officer decision -- and if an agency does have a policy, that policy may well exist because of this error in learning rather than a legitimate agency-wide need to impose a ceiling.

    That said, where a ceiling is imposed, my practice has been to respect it.

  12. FAR 37.204's call for an agreement between agencies for one agency's federal employees to assist another agency in an evaluation is for a simple agreement.  It most certainly IS NOT an "interagency agreement for advisory and assistance services" -- it IS NOT related at all anything in FAR 37.203 -- it IS NOT related to anything else anywhere else in the FAR -- it IS NOT an IAA in the sense that acquisition people think about IAAs -- the assistance being provided IS NOT advisory and assistance services as that term is used in the FAR.

    Your agency's HR office will know how to do any needed agreement -- if an agreement on paper is needed, it will be an HR agreement, not a procurement agreement. 

    This is EASY.  

  13. The prior contract (where the need for extended TDY wasn't contemplated at time of contract formation) and the new contract being negotiated now are two entirely separate matters.  We must not conflate them.

    We're talking about the new contract being negotiated, as best as I can tell.  The parties can protect their interests in the negotiation.  If they are unable to come to terms, they can end the negotiation and walk away from the contract.  I think OP is on the government side, and the agency's leverage in the negotiation will include whether the negotiation is sole source and how desperate the agency is for the new contract to be awarded.  I don't know if the agency has strong or weak leverage -- but this matters, and the answer to OP's question is not merely an academic re-hashing of academic principles.

  14. 29 minutes ago, C Culham said:

    While the FAR does not require a ceiling limitation it implies one could set one.

    This is true.  Unfortunately, too many practitioners (and reviewers) believe that a ceiling MUST be set -- that is error, but it is very commonplace error.

    I hope readers here are able to break free from error, misconception, or fallacy.

    Everyone, please repeat after me:  BPAs, whether for simplified acquisitions or against schedules, do not require ceilings or maximums.  

    I wonder if the OP is still reading?

  15. Or rather, just try to negotiate  discounts.  Termination seems wholly unnecessary as there is no requirement to use the BPA in the first place.

    For schedule BPAs, the FAR calls for an annual review and, if the estimate has been exceeded, further invites the contracting officer to seek discounts for future orders.  

  16. A simplified acquisitions BPA under FAR Part 13?  There is no requirement to have a ceiling on such a BPA.

    A BPA against schedule contracts under FAR Subpart 8.4?  There is no requirement to have a ceiling for such a BPA, but only an estimate, and YES, orders may exceed the estimate.

    Practitioners who do not understand correct principles will often impose a ceiling on BPAs they establish, but hopefully they will learn correct principles one day and stop imposing ceilings.

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