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ji20874

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Posts posted by ji20874

  1. Joel,

    If the OP wants to submit a REA, and you are encouraging that approach, what contract clause will allow for an equitable adjustment in this circumstance?  I am not aware of any clause that will entitle the contractor to an equitable adjustment with these facts.  I'm thinking that a claim is the right step since OP is seeking "the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract."

    YES, if there is a clause that gives OP an entitlement to an equitable adjustment, REA all the way -- but what is the REA clause that OP can cite?

  2. ArrieS,

    You might be the hero in the story if you propose a differing solution that still works for your organization, and persuade others in your agency of its efficacy.  I think we need thinkers and solvers in our career field.  Talk to others and see what can be improved in the situation you described.  I don't know about the DoD PGI, but I would wonder if it defines and limits all of the possibilities or if it merely illustrative of some concepts and possibilities.  Of course, people have to follow the rules as they are understood in their localities.

    Jamaal, 

    If calling an audible means changing an approach because on a newly-realized reality, then calling an audible is good -- the quarterback acts within his authority on the field, right?  Being rigid and inflexible is generally thought of as bad in many settings.  

  3. 20 minutes ago, David Morrill said:

    I believe that after verification that the warranty provision does not apply, that this would be a basis for an REA.

    I'm not sure about this -- is there text in your contract that would create this entitlement?

    But if your contract includes a disputes clause, that clause may give you an entitlement to file a dispute or claim against the agency.

  4. Jamaal,

    If an office establishes pre-priced BPAs for the same items with several sources, it can consider those BPAs as providing competition for those items.  If the number of BPA holders goes down over time, the office may (1) establish additional BPAs; or (2) provide for competition by getting quotes from non-BPA sources.

  5. 5 hours ago, Neil Roberts said:

    ...take appropriate additional steps that may include additional clauses prescribed for the $1M level...

    Neil,

    Please read FAR 13.303-4(b).

    A FAR 13 BPA is not an acquisition -- it is not a contract.  For clauses, reviews, small business coordinations, competition, and every other purpose, the individual purchase limit is the only dollar amount that matters -- the potential aggregate (or maximum), if one is specified, is irrelevant (and isn't even mandatory).

    You are in good company -- many, many people in the federal acquisition community do not understand FAR 13 BPAs, and they make the same mistakes that you are making.  They treat a FAR 13 BPA erroneously as a procurement based on the maximum, rather than correctly as a method for repeat purchases within the individual purchase limit.  [Please note that this entire thread deals with FAR 13 BPAs for simplified acquisitions, not BPAs against schedule contracts under FAR 8.4.]

    I hope this discussion helps the OP and other readers understand correct principles.

  6. 59 minutes ago, Neil Roberts said:

    but eventually there is a contract if used as intended.

    I also disagree for a FAR 13 BPA.  Each purchase under the BPA stands alone.  The BPA is not a contract.

    Neil, If you were doing a FAR 13 BPA with a micro-purchase limit for individual purchases and an overall aggregate limit (maximum) of $1 Million, would you use clauses prescribed for a $1 Million action?

  7. A FAR 13 BPA with an individual purchase limit at the micro-purchase threshold is not a $1 Million acquisition, even if the BPA has an aggregate limit of $1 Million.  Handling such a BPA as a $1 Million procurement is error.

    I have no problem establishing a FAR 13 BPA with a small business concern; indeed, I encourage it when the conditions for a BPA are present -- but such an action is not a set-aside.

    So many practitioners want to see a FAR 13 BPA as a procurement, but it isn't -- a requisition is not required, funding availability is not required, competition is not required, an acquisition plan is not required, an aggregate limit or maximum is not required, and so forth.  If a BPA has an aggregate limit, that maximum limit is irrelevant for clause selection and other purposes (for every purpose, the instant purchase amount is what matters).  Competition, acquisition plan, small business coordination, and similar matters are dealt with for each individual purchase (or not, such as for micro-purchases).  

  8. Please, let's be careful of creep.  There is ZERO requirement that micro-purchases be set-aside for small businesses.  Citing FAR 13.003(b) as requiring set-asides for micro-purchases is error -- indeed, the very text of 13.003(b) militates against this creep -- here is the text: "Acquisitions of supplies or services that have an anticipated dollar value above the micro-purchase threshold . . . shall be set aside for small business concerns."

    This creep is all too common among 1102 practitioners -- please, let's avoid it. 

  9. 17 hours ago, govt2310 said:

    FAR 13.201(b) says the GPC "shall be the preferred method to purchase and to pay for micro-purchases," it also says at FAR 13.201(c) says purchases below the MPT "may be conducted using any of the methods described in subpart 13.3."

    Do what the FAR says -- for a micropurchase, take your pick among FAR 13.301 (preferred, and your selection for the case in this thread), 302, 303, 305, or 306.

    If you choose 13.302 for a micropurchase, then YES, you will use appropriate clauses for a purchase order because you're in 13.302, and 13.302 prescribes clauses for purchase orders. 

    But for the case in this thread, are you ready to drop the idea of imposing T4D clauses?  And maybe use GPC dispute procedures instead?

  10. 3 hours ago, govt2310 said:

    It seems

    Really? Are you dealing with (1) a purchase using the GPC, or (2) a purchase order?  You assert that FAR 13.302-4 applies to both purchases using the GPC and purchase orders, but I don't understand the basis for your assertion.  According to my understanding,

    • FAR 13.301 applies to purchase card purchases, and
    • FAR 13.302-1, -2, -3, -4, and -5 apply to purchase orders.

     

    3 hours ago, govt2310 said:

    it will be read into the Contract pursuant to the Christian Doctrine

    Isn't the Christian Doctrine is a judicial doctrine or remedy?  Are contracting officers allowed to cite the Christian Doctrine as authority for imposing their will on contractors?  

    I think maybe you are pushing too hard.  I agree with Carl for one-on-one with the vendor, and then maybe a credit card chargeback if appropriate.  

  11. What is the real circumstance?

    1. Supplies.
    2. Services.
    3. Something else?
    1. Government made an order, vendor has not delivered/performed, vendor has not charged card.
    2. Government made an order, vendor has not delivered/performed, vendor has already charged card.
    3. Government made an order, vendor has delivered/performed, vendor has not charged card.
    4. Government made an order, vendor has delivered/performed, vendor has already charged card.
    5. Something else?

    With facts, you might get better answers.

  12. 2 hours ago, joel hoffman said:

    ...FAR 4.2103 says that the contracting officer “may rely” on the representations...

    Your statement is incomplete and, it appears to me, is intended to mislead WIFCON readers.  FAR 4.2103 says the contracting officer may rely on the representations unless the contracting officer has reason to question the representation -- you are essentially saying that the contracting officer must not rely on the "will not" and "does not" representations.  I understand that you take this matter seriously, but you are over-reaching. 

    The correct principle is that a contracting officer may rely on the representations unless the contracting officer has reason to question the representation.

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