ji20874

2 hours ago, philb said:

Then the BAA trumps any trade agreements already in place no matter the dollar amount.

I have always understood that trade agreements, if applicable, trump BAA.

I know that VA has some different statutory authorities, but I know nothing about the particulars.  So I'm speaking generally...

Some agencies make it too hard.  If you have a procurement for medical equipment, you can issue an unrestricted solicitation with the appropriate BAA clauses/provisions (such as FAR 52.225-1 and -2).  If you get both domestic and foreign offers, you do the price evaluation exercise and you award to either the domestic or the foreign, based on the outcome of the price evaluation exercise.  If you get only foreign offers, well, pick the best one.

There is no real need for a determination of nonavailability.  That determination gets you out of the price evaluation exercise, but that exercise is really easy, far easier than getting a determination of nonavailability.

See FAR 25.103(b)(3).

In addition to the above comments, if the company in question is the apparently successful offeror based on your evaluation criteria, you can determine the firm to be nonresponsible for three reasons:  ridiculously low price, not their brand of work, and previous instances of fake emails or Point of Contacts.

Carl,

It is true that I addressed indefinite-delivery contracts, but it is the same for schedule contracts as well.

1 hour ago, C Culham said:

Now consider a multiple award to both SBs and OSBs. Yet you decide to reserve an order for SBs.

It's quite simple.  

• For NMR:  If a set of parent multiple-award infinite-delivery contracts allows for orders to be set-aside for small business concerns, the contracting officer for the multiple-award infinite-delivery contracts will have already included the clause at FAR 52.219-33, Nonmanufacturer Rule, in the parent contracts.
• For BAA:  If a contractor contemplates providing an end product that is not a domestic end product at any time during the life of the contract, it will have already declared such by including the product in the list in its response to the solicitation provision for the parent contract at FAR 52.225-2, Buy American Certificate, or other appropriate certification.

The parent indefinite-delivery contract is a contract that includes terms and conditions for any orders that might be issued, and those orders make purchases amenable to the parent contract's terms and conditions.

3 hours ago, C Culham said:

I am truly interested in the response of ji20874 as to where in 16.5 it specifically addresses when NMR and BAA are or are not applicable at the order level for an existing government contract such as a Definite Quantity, Requirements, or IDIQ contract is used as authority to issue the order?   

Those matters (NMR and BAA) were addressed in the parent indefinite-delivery contract.  For NMR, any desired waiver of the nonmanufacturer rule should have already been obtained for the competition for the parent contract.  And for BAA, any public interest or unreasonable cost waivers will have been already handled for the parent contract.

FAR Subpart 16.5 does not contain rules for NMR and BAA analysis and waivers because these apply (or not) at the parent contract level.  Whatever the parent contract says about NMR and BAA apply to all orders under that contract.

If you are issuing an order for supplies under an indefinite-delivery contract, follow the instructions in FAR Subpart 16.5 and issue the order.  You do not need to comply with all the other rules in the FAR that relate to contract formation, as your contract is already formed.  Just follow FAR Subpart 16.5 and issue the order.

There is a notable difference between an oral agreement that is left oral, and one that is formalized into paper the following day.  In all of my postings in this thread, I have been thinking of the latter.

In my opinion, a contracting officer's oral purchase order is not an unauthorized commitment, as that term is defined in FAR Part 1, and his formalizing it on paper the next day does not require a ratification.  

50 minutes ago, MileHighAcq said:

The FAR defines an unauthorized commitment as follows: Unauthorized commitment, as used in this subsection, means an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government.

Generally, a contracting officer has the authority to enter into an agreement with the contractor to get some work done.  A minor error in form is far different than authority to enter into the agreement.  A ratification is not needed for a minor error in form.

govt2310, 18 USC 1905 is a criminal statute, so a matter would have to be treated criminally (rather than civilly) to reach that penalty.  Regarding DOJ's prosecution of cases under 18 USC 1905, you will be interested to read https://www.justice.gov/archives/jm/criminal-resource-manual-1665-protection-government-property-disclosure-confidential-government. 

MileHighAcq,

Why are you pushing so hard on this issue?

57 minutes ago, MileHighAcq said:

End result is that we're left with some murky gray areas that isn't ideal for anyone.

I think I might have a higher comfort level with gray than some.  I do not think we could make everything black and white even if we wanted to -- if we did, we wouldn't need professionals and we could all be clerks.

MileHighAcq,

Think about it -- if you don't trust OFPP to do it right, then isn't it really best to leave well enough alone?  If there is no gross abuse or no scandal, why try to create more rules?  Please do consider the real scenarios I shared earlier -- I faced those real circumstances, and I dealt with them promptly and responsibly -- would you want to take away whatever flexibility I had (or that I imagined that I had)?

11 hours ago, C Culham said:

You marry T4D with forbearance which causes me to conclude that forbearance is like the Christian Doctrine a legal concept that can only be applied to a contract matter by a court not something the CO does.

The contracting officer is the one who forbears, not the judge.

3 hours ago, MileHighAcq said:

If this happens as frequently as I think it probably does, why hasn't OMB/OFPP provided practical procedures for dealing with it.

Maybe it is best to leave well enough alone?  Do you trust OFPP to issue procedures for this?

Why are you asking this question?  Is it mere academic curiosity, or do you need help with a real situation?

Are you making the argument that verbal purchase orders are illegal?

Are you making the argument that a verbal purchase order requires ratification before formalization?

If not verbal purchase orders, what are your solutions to the following very real situations that I have faced in my career--

• On a Sunday afternoon, a tree falls on powerlines on a military base (the military owns the power lines).
• On a Friday evening, a landslide covers an important roadway for which a federal civilian agency has jurisdiction.

Please answer practically with real solutions, not theoretically with concepts.

10 minutes ago, C Culham said:

I in fact stated or otherwise implied that either a letter or a SF-30 could be used to document the agreement of forbearance.

An agreement is not necessary as a precursor to forbearance.  The contracting officer can do it unilaterally and without any agreement.

10 minutes ago, C Culham said:

The contractor must request forbearance, is an oral request okay? 

It is not necessary for the contractor to request forbearance -- the contracting officer can forbear termination without any request from the contractor.

10 minutes ago, C Culham said:

Seems the FAR supports everything shall be writing but my read could be wrong. 

Forbearance need not be in writing, at least not early on.

10 minutes ago, C Culham said:

As forbearance as a promise is hinged on consideration even if the mere agreement to forbear it would seem that it is an act of modifying the terms of the contract.

Forbearance need not be a promise hinged on consideration.

10 minutes ago, C Culham said:

A unilateral forbearance does not seem possible in my book as you need a request with a promise.

In my book, a unilateral forbearance most certainly is possible.  There is no need to "request with a promise."

I guess we have different understandings of forbearance. 

I am okay with a contracting officer's being done bilaterally as a reasonable (and maybe even preferred) practice.  However, we need to remember that a contracting officer's forbearance can also be done unilaterally.

In a procurement with a many proposals and/or many evaluation factors, the assignment of adjectival ratings by evaluators can be helpful during the comparative evaluation by the selecting official.  

However, in a procurement with few proposals and few evaluation factors, it might be more efficient to skip the adjectival ratings and to simply compare each proposal to the others and to rank-order the proposals.  

Don,

You're being pedantic again.  Do you have anything that might be helpful to the original poster?

3 hours ago, Vern Edwards said:

I must be missing something, but I cannot figure out what I'm missing.

I wrote that Contractor-Acquired Property (CAP) does not mean property acquired by the contractor -- this might seem illogical, but that's how it is.  Rather, CAP has a definition in the places to which I pointed, and which you cited.

Indeed, CAP does not simply mean any property acquired by the contractor.  Rather, CAP means means "property acquired . . . by the contractor . . . to which the Government has title."  

2 hours ago, Don Mansfield said:

Ji is writing carelessly

There is nothing careless in what I wrote.  Rather, it is careless to label any contractor acquired by a contractor as CAP.  When speaking of CAP in a FAR setting, one must know and use the FAR definition.  It the Government doesn't have title, it isn't CAP.  Just because a contractor acquires property doesn't mean it is CAP.

For newbies reading this thread, remember that Contractor-Acquired Property (CAP) does not mean property acquired by the contractor -- this might seem illogical, but that's how it is. 

Rather, CAP has more limited definition -- see FAR 45.101 and, more importantly, FAR 52.245-1(a).  These two places use the same words (but one has a comma that the other doesn't have).  In FAR settings, government property (GP) comprises government-furnished property (GFP) and contractor-acquired property (CAP).  Arithmetically, GP=GFP+CAP.  Or, using set notation, GP={GFP,CAP} and CAP∈GP.

If the contractor has title to the property, it is not CAP.

1 hour ago, joel hoffman said:

If the government will directly pay the contractor full cost for property  acquired by the contractor to perform a fixed price contract, the government should obtain title to it and it becomes government property.

We see things differently.  Maybe yes in some particular cases, but as a rule, no.  To me, the particular case you cited does not stand for a rule.

Example:  In a fixed-price contract for painting (with no progress payments 🙂), a contractor might buy a paintbrush and a few cans of paint -- the contractor wholly includes these costs in its price, and charges the full cost to the contract in its internal bookkeeping -- therefore, during performance, the contractor must treat the brush and cans as CAP and comply with the Government Property clause?  No. 

Maybe yes in a some particular cases*, but as a general rule, no.  At least, that's how I see things.

*I quickly admit there are some particular cases where it makes sense -- I have done it myself -- but these particular cases do not make a general rule.

here_2_help,

Nothing in the original posting suggests progress payments; indeed, the original poster's reliance on FAR 45.402(a) suggests there are no progress payments.  But if you think the contract might include progress payments after you read FAR 45.402(a), why don't you ask the original poster the question?