ji20874

ANSWER 1: Even though the court may have said the NLRB cannot force an employer to post a notice, an employer may still voluntarily choose to post the notice. In accepting a government contract that includes the contract clause at FAR 52.222-40, the employer/contractor voluntarily agrees to comply with the requirements of the clause. ANSWER 2: Ask a competent attorney.

I wouldn't use the term "controls" -- a contracting officer in an agency complies with both the FAR and his or her agency's FAR supplement as he or she prepares a contract -- and a contractor complies with the contract as it is written. If one contract clause supplements another contract clause, the contractor complies with both, letting its reading of the supplement clause guide its understanding of the FAR clause.

Here's how I tend to look at it-- If someone wants to use FAR Part 12 (in conjunction with FAR Part 13, 14, or 15, of course), he or she follows the FAR Part 12 rules. That means FFP as a general rule (FAR 12.207( a )), or T&M only if it is competitive (FAR 12.207( b )). If one wants T&M and non-competitive, he or she buys it using FAR Part 13, 14, or 15 without FAR Part 12.

The GAO sometimes takes untimely protests if there is a compelling reason -- but I still don't see the basis for a protest. Do you want to force the Government agency to terminate the existing contract AND force it to make an award to you for the remaining quantity or time? You know the facts better than I do, but just because the SBA pulled an 8(a) or HUBZone certification today doesn't necessarily mean that any or all award decisions made before the pull are invalid. You don't need to be threatening a protest, it seems to me -- you need to be politely knocking at the contracting officer's (or program manager's) door offering yourself as a solution to his or her problem (if he or she has one) -- you can extend the validity of your six-month old offer.

...it is determined the contractor made false representations to gain the social-economic status... Any competing contractor could have protested the successful contractor's small business status before or immediately after the contract was awarded. There isn't anything to protest now, is there? Protests are made against Government actions during an acquisition -- how can one protest another offeror's criminal conduct, and that long after the contract was awarded? What has a Government official done that can be protested? What does "it is determined" really mean? The Government could consider terminating contract for the contractor's default, or might try to consider the contract as void from its inception -- but this matter is between the Government and the contractor -- there's no role for an outside party. If the Government takes some action related to a procurement in the near future, there might be a basis for protest -- for example, if the Government decides to exercise an option with the existing contractor -- or if the Government decides to sole-source a replacement contract instead of competing it. But if the Government decides to let the contract run to its natural end, it's hard for me to see a basis for protest. In this post, I use "protest" as it is used in FAR Subpart 33.1

Here's another thought -- if the option exercises were late and the task orders "illegally" issued, then you can't terminate them -- you can't terminate something that doesn't exist. Your orders exist -- they are binding and enforceable. If the contractor tried to abandon its obligations now, after accepting and performing work in the orders, the Government would unanimously fight to deny the contractor's ability to walk away.

If you want to terminate all the orders, you can -- it sounds like you want to. But you don't have to. The contractor could have rejected the orders, but it didn't. You can look at your lateness as a minor informality or irregularity which the contractor waived in accepting the orders (I tend to think that's what the GAO would say in a protest). But you haven't offended the original competition or gone beyond the scope of that competition, it seems to me, based on what little I have read here. Or you can terminate the orders by concluding that you have offended the original competition and gone beyond the scope of that competition. You make the decision. Someone else might have a differing opinion.

I understand the frustration -- it sounds like 1102skier is not buying work, but really is buying hours -- apparently, yes, the contractor's personnel can sit around doing nothing for an hour and the Government will pay the contractor cost and fee; and this because he's buying hours, not work.

It is common in construction contracts to have pay items with estimated quantities, where the contractor is paid only for work that is actually performed -- not as options, but as part of the base work -- well, options in construction contracts often include pay items with estimated quantities.

I'm staying inside the box... A written demand by the contractor seeking, as a matter of right, an adjustment of the contract price exceeding $100,000 is seeking the payment of money -- it might not be an invoice seeking immediate payment, but seeking an upwards adjustment in the contract price is seeking the payment of money.

Yes. The definition of driver excludes unlicensed dirvers of cars, but not unlicensed drivers of trucks.

There are some good things about the contracting career field -- I chose it because my father was a contracting officer in the early Vietnam years -- had a cash warrant and bought needed supplies in Singapore, Hong Kong, Manila, and wherever else with case -- then went to an embassy, turned in his papers, and filled up his bag with more cash. Every agency has 1102s, and they are spread all over the place, in large cities and small towns. And our grade structure is very good, compared with many other federal careers requiring just a bachelor's degree. Yes, we're over-clericalized and we're peons to our automated systems. To me, it's still a good job.

Sure, the TEP can do whatever they want to -- if they see a proposal as DEFICIENT, they should say so and explain why. Then, the Source Selection Authority (contracting officer?) can have a different opinion and can change the rating. The TEP's inputs are only advisory on the SSA/CO.

Can you get the information? Maybe you reach out to a hospital or other medical services provider in your area as part of your market research efforts? Or maybe you contract with a medical services salary expert to assist you in the evaluation of offeror proposals? You may have thought about these approaches already...

The clause is required. FAR 22.1103 says so. Paragraph ( a ) of the clause talks about recompetition in the first sentence, but paragraphs ( b ) and ( c ) of the clause are good, solid paragraphs that should be of interest to you. Do you want the sort of information that is asked for in paragraph ( a )? If so, insert the clause. If you don't want the sort of information that is asked for in paragraph ( a ), well, remember that the clause is required, and you are required to evaluate the information as part of your selection process. If you don't want the clause, you will need a FAR deviation -- see FAR Subpart 1.4 -- some agencies put the approval level for deviations high up the ladder, some lower. Are you really buying professional services? Really? This is a serious question. But if you are, I recommend including the clause and including the information called for in paragraph ( a ) in your technical evaluation. With LPTA, I suppose that is pass/fail.

Yes. The contract is still "alive" in the sense that the contractor has not discharged its responsibilities (see Vern above) and your are forbearing the exercise of your rights to terminate for the contractor's default -- you are allowing the contractor to continue performance.

You need an answer that will fit with your automated systems. Even if you get a textbook-correct answer to your question, it will only work for you if you can make it work with your automated systems. For example, everyone in the federal contracting universe knows that a contract can have CLINs and sub-CLINs, and that funding can reside either at the CLIN level or the sub-CLIN level. HOWEVER, we can't use sub-CLINs at all in my agency because our automated sytem and the systems it feeds cannot handle sub-CLINs.

There may be a number of ways you can approach this, but in this day and age you are a hostage to your automated systems and to the processes of your agency. Will your automated systems or agency processes allow you to deobligate money from the parent IDIQ contract and re-obligate the same funds on the task order? Will your automated systems or agency processes allow you to issue a $10,000 task order using $1,000 from the parent contract and $9,000 from the instant task order?

An acquisition can be covered by CICA and still not covered by the FAR. The GAO has a frequently-asked questions document on no-cost contracts at http://www.gao.gov/special.pubs/appforum2008/nocostcontracts.pdf.

This matter has been raised on Ask-A-Professor – if the submitter really, really, really wants to prepare a solicitation, he or she can – but the correct answer is to read and follow FAR Subpart 41.2 and to talk to the utility provider, as has been suggested above. If the submitter does prepare a solicitation, I hope he or she won't be heart-broken if the utility provider throws it in the trash and asks instead for someone from the Government to come down to the utility office to start the service paperwork. Q: Can the Government award to a municipality for said services without issuing a solicitation? Please provide support. Scenario - Procuring sole source utility services (water/sewer) under FAR 5.301( b )(5). Posted - 4/4/2013 8:43:00 AM A: Please contact your legal staff at your agency as I cannot think of why you would not want to procure the utility services via a solicitation. This is how we communicate our requirements to industry (a solicitation with an attached PWS). I would go with whatever is customary in your office and your Contracting Officer is willing to sign. 5.301 -- General. //deleted//

The contracting officer MUST ignore the price from the large business offer. If the price from the small business offer is not reasonable, then the contracting officer MAY withdraw the set-aside and re-solicit on an unrestricted basis. In any case, the contracting officer cannot award based to the large business offeror. The solicitation said offers from large businesses will be rejected. ----- STEP ONE: Reject the offer from the large business. STEP TWO: Determine if the price from the small business offer is reasonable. YES: Award to the small business. NO: Withdraw (dIssolve) the set-aside and re-solicit on an unrestricted basis. There are other possibilities, such as opening discussions with the small business offeror(s), but the above is simplified for teaching points.

Yes, it does,in a way -- Subpart 41.2 tells you in general how to acquire utility services -- it allows you to enter into a contract with your sole-source service provider, and it doesn't make mention of any solicitation being needed -- you can go straight to contract without a separate solicitation, or you can write a solicitation if you want to..

You will want to read FAR Subpart 41.2, Acquiring Utility Services...

Thanks, all, for the discussion!

I've worked in a few Government contracting officers during my career -- not all of them, mind you, but a few -- I have never seen any malfeasance or corruption in award decisions, and never any bad faith -- maybe a mistake or two along the way, that's all. Best value decisions are made by humans, not by computers -- and based on any set of facts, reasonable people can sometimes disagree on which offeror represents the best value. In a way, contracting officer are like small claims court judges -- people come in, each with their case, and the judge is forced to make a decision -- automatically almost, one party is fgoing to be upset with the judge's decision -- similarly, a contracting officer must make a best value decision after the proposals come in. Not just Government, mind you -- buyers in all industries and organizations make these decisions. Sometimes, parties perceive mistreatment when there is none. Sometimes, what one sees depends on where he or she sits. Even though I haven't seen any bad faith in any of my work, I had been so charged by disappointed contractors.