ji20874

4 hours ago, formerfed said:

This is getting really off track.   The question is whether a novation agreement is required.  Size status is really irrelevant to the topic at this stage.  

Right.

Joel,

I think the more appropriate question is whether you agree or disagree with the convention at FAR 1.108(a)?  Choose one.  

Here's a link:  https://www.law.cornell.edu/cfr/text/48/1.108

2 hours ago, DWGerard1102 said:

In that case the contractor may have exceeded its small business size standard due to its affiliation with the company that bought the company stocks.  

Maybe, but isn't this irrelevant to the instant contract and to the original posting?

2 hours ago, DWGerard1102 said:

You should contact the Procurement Center Representative for your organization and let them know as the original contractor is no longer eligible for small business set asides if they, via their affiliation with the buying company, is no longer a small business.

I tend to disagree -- I am unaware that the contracting officer has any duty to make such a report, or that PCRs pay any attention to contractor self-certifications.

I think the normal process of reps and certs and the normal process of small business size challenges will address whether the firm is still small for future procurements.

9 minutes ago, Try2B said:

@Lionel Hutz The finance office had the full $800k available in the same FY, however the funding document they created for this contract was only for $500K. That's what was budgeted for at the time.

Then there was no ADA violation.

But the supervisor says there was, and imposes discipline accordingly.  Okay, did the supervisor report the ADA violation up channels and to the Congress as required by law?

It was a simple error, and it was caught and remedied on the same day?  No, this was not an ADA violation.  I suspect the agency had $300K somewhere.  It was a simple error, and it was caught and remedied on the same day.

Try2B, Are you the one making the charge that it is an ADA violation, or are you resisting the charge?

If the original contractor is still a legal entity and is still performing the work, then it seems a novation agreement may not be needed (but maybe an agreement, not necessarily styled as a novation agreement, might be sought for matters such as are described in 42.1203(e)).  See FAR 42.1204(b).

Yep.

Retreadfed,

The original poster has not declared that a notice of bankruptcy filing has been received, so I do not assume that it has been.  If govt2310 would answer my reasonable questions (incl. no. 5), then we would know and would be in better position to give advice on an novation agreement.  Indeed, if a notice of bankruptcy filing has been received, it might even be wholly improper for a contracting officer to sign a novation agreement.

The advice of a competent attorney is needed.

If you only have room for ten, then you cannot invite eleven.  If you get twelve interest statements, pick the ten that seem most promising.  You do not need to apologize the the other two -- just hold your event with your invitees.

Let me modify my earlier answer to help avoid any hurt feelings.

42.1204(b) does not require a novation agreement -- however, it suggests that some formal agreement may be appropriate.  If styling it as a novation agreement is the hang-up, then don't call it a novation agreement.

If the original contractor remains in control of the assets and is the party performing the contract, then a novation agreement is not needed.  

The successor-in-interest doesn't have to submit the documentation required by FAR 42.1204(e) unless it is seeking recognition.  It sounds like the successor-in-interest is not seeking recognition as such, so it doesn't have to submit the documentation.  Read the FAR -- that's what it says.

First, stop all payments to the original contractor and refuse any payment requests from the successor-in-interest.

Second, send a show cause notice to both the original contractor and the putative successor-in-interest declaring your intent to terminate the contract for default unless the successor-in-interest enters into an agreement under FAR 42.1204(b) wherein it acknowledges itself as the successor-in-interest.

Third, make the agreement or terminate for default.

The above approach is a possibility based on assumptions I made.  I made assumptions because the original poster has not provided crucial information.

govt2310,

1. Is the original contractor still a legal entity?
2. Is the original contractor still performing the work?  Or is a putative successor-in-interest performing the work?  Or has work stopped?
3. Supplies or services?  Is the work being performed at a Government location?
4. Are you still making payments to the original contractor?  Or to the putative successor-in-interest?
5. The phrase "going bankrupt" has no meaning.  Has the original contractor filed actually for bankruptcy?  Have you received a bona fide notice of bankruptcy filing?  Has any judgment been made?
6. Were any progress payments or other contract financing payments made to the original contractor?
7. Have you spoken with a competent attorney?

All of these questions need to be answered before you worry about a novation agreement.

There is no required process.  

You don't want to be unfair, but there is no required process for fairness.

If you already know enough firms, invite them.

If you don't, maybe you ask SBA for recommendations.

Maybe you advertise it [make a public notice generally describing your organization's contracting needs] and ask interested firms to send you a one-page statement of experience and skills, and you pick the ones most intriguing [promising] to you.  [Say in the notice that you may hold further exchanges with none, some, or all responders depending on the Government's needs.]

I have never heard the term "Release Order."

But, how about setting up your "Release Order" for the requirement (feed all attendees, estimated quantity = 50), and then pay for what was actually served?

It may be that you are not fully utilizing the flexibility afforded by BPAs under FAR Part 13.  With a BPA, you can allow a list of people to make purchases, subject to reasonable limitations, and then the contractor submits an invoice at the end of the month for all purchases made during the month.  See FAR 13.303-3(a)(6).

If you are struggling, you are working too hard.  If you are issuing a funded order before the event, you are NOT fully using the BPA flexibility. 

There is no FAR-level definition or purchase request, and the FAR does not require certification of funds availability for the solicitation.  Everything depends on your local organization's procedures and flexibilities.

I'm glad the process worked.

Sometimes, we are so afraid to so what the contract says, such as actually using the Disputes clause, both on the Government and contractor side.  But I believe a well-written claim is exactly what is needed sometimes -- and, it is the process that both parties agreed to when they formed the contract.

I will echo Mr. Culham's comment -- if you are entitled to transition/phase-out costs, a clause in the BPA will explain the entitlement that you and the Government agreed to when the BPA was established. 

But don't look for a termination for convenience clause in the BPA -- that clause will avail you nothing because your situation is not a termination.

Please let us know what you find.

56 minutes ago, AspiringGovKr said:

(My situation is DoD in case there is a DFAR impacting this scenario.) 

Please, go and read the DFARS!  Let us know what you learn...

All required debriefings are given under FAR 15.506.

Simplified acquisitions, orders against federal supply schedules, sealed bids, and fair opportunity considerations under $5.5 Million do not require debriefings.  Anything given for these is not a "required" debriefing.

You don’t have a problem.  The Government released the data.  If there was an error, it was a Government error.  You may share the debriefing document with others in your company as you normally would.  For all you know, the unsuccessful offeror may have already consented to the release of the information.  

Nothing in FAR 15.506(d) contemplates release of any unsuccessful offeror information to any other offeror — not the identity, overall evaluated cost or price, or ratings.  However, 15.506(d) lists minimums, not maximums.  Maybe 15.506(e) is more problematic, but it isn’t your problem.

This is not legal advice, and I am not an attorney.  If you want legal advice, you will want to look elsewhere.  

If the Government has given you the written debriefing, then it is public information.

The guidelines on what should be included in a required debriefing, and what must not be included, may be found in FAR 15.506(d) and (e), respectively.  It may be that your contracting officer hasn't read these paragraphs, and may have erred in revealing an unsuccessful offeror's information.

Right, the GAO's protest jurisdiction is very narrow for orders against multiple-award IDIQ contracts under the $10 or $25 Million threshold -- only "on the grounds that the order increases the scope, period, or maximum value of the contract."

Sole source?  Go with 2.  That is fair and honorable. 

Maybe the Government will try to negotiate a lower rate, maybe it will try to negotiate fewer hours.  If so, you can negotiate as needed to come to an agreement.

But remember, it is FFP, and you will have the responsibility to deliver or perform for the FFP -- the difference between $125 and $150 is your protection in case your subcontractor fails or some other risk materializes.

I think 1 and 3 would be error.  But, of course, it is your call.

As I read B-417708, the GAO simply avoided the 8(a) question, because it dismissed on a procedural ground.  It neither upheld nor overturned the once-8(a)-always-8(a) question.

12 hours ago, elgueromeromero said:

do we even need to disclose to the Gov't that we're subcontracting out that particular labor category?

The contract clause at FAR 52.244-2 is generally used to specify consent to subcontract requirements.  If consent is not required, then usually disclosure is not required.  But sometimes, a restriction on subcontracting is placed elsewhere in the contract.  You will want to read the contract to see if you have any disclosure mandates.

Okay, FFP.  

If the prime contract specifies "maximum fully loaded labor rates for the Prime and Subcontractors," it seems you can propose $150 + profit for the category.  If the Government does not negotiate that figure downward, then that is what it is.  You will pay your subcontractor whatever you promised to pay it, and all the difference is yours.  And if you propose 100 hours, for example, and the Government doesn't negotiate it downward, and the subcontractor later only bills you for 90 hours, well, all that money is yours, too.  Of course, if you propose 100 hours and end up expending 110, you eat those hours.  That's the nature of FFP.

Since this will be a sole source negotiation, you might have to provide some data to the Government (including proposed subcontractors), if they ask -- they might not ask.  

Read the definition of "hourly rate" in (1) FAR 52.212-4 with its Alt. I, or (2) FAR 52.232-7, whichever is in your contract, and you will have the key to your answer.  

Are you competing for the work, or is this sole-source to your firm?