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ji20874

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  1. Joel, I'm trying to understand your position, so I took the liberty of marking up FAR 4.21 in the way it seems to me that you think it should have been written given that you oppose reasonable contracting officer reliance on offeror certifications. Am I getting it right? ------------------------------------------------- FAR 4.2103 Procedures. (a)(1)(i) If the offeror selects "does not" in paragraphs (c)(1) and/or (c)(2) of the provision at 52.204-26 or in paragraphs (v)(2)(i) and/or (v)(2)(ii) of the provision at 52.212-3, the contracting officer may [shall not] rely on the "does not" representation(s), unless the contracting officer has reason to question the representation. If the contracting officer has a reason to question the representation, the contracting officer shall follow agency procedures. * * * * * (a)(2)(i) If the offeror selects "will not" in paragraph (d)(1) of the provision at 52.204-24 or "does not" in paragraph (d)(2) of the provision at 52.204-24, the contracting officer may [shall not] rely on the representations, unless the contracting officer has reason to question the representations. If the contracting officer has a reason to question the representations, the contracting officer shall follow agency procedures. (ii) If [Regardless of whether] an offeror selects "will" [or “will not”] in paragraph (d)(1) of the provision at 52.204-24, the offeror must provide the information required by paragraph (e)(1) of the provision at 52.204-24, and the contracting officer shall follow agency procedures. (iii) If [Regardless of whether] an offeror selects "does" [or “does not”] in paragraph (d)(2) of the provision at 52.204-24, the offeror must complete the disclosure at paragraph (e)(2) of the provision at 52.204-24, and the contracting officer shall follow agency procedures. * * * * * -------------------------------------------------
  2. Yes. "[W]here an agency has no information prior to award that would lead to the conclusion that the vendor, or the product or service to be provided, fails to comply with the solicitation’s eligibility requirements, the agency can reasonably rely upon a vendor’s representation/certification of compliance." From the GAO case provided by Carl-- A contracting officer's reliance on an offeror's self-certification in these circumstances is entirely reasonable. But the OP might be asking from the offeror's perspective, which is different from the contracting officer's perspective. An offeror needs to do what FAR 52.204-24/25/26 asks for.
  3. Please be careful that you don't make this harder than it needs to be. For example, see the definition of "reasonable inquiry" and an offeror's/contractor's duty thereto in FAR subpart 4.21 and the provision and clauses it prescribes. And also, note that the contracting officer may generally rely on an offeror's representation of "does not" or "will not" in these matters.
  4. pconner, I wondering -- based on your readings so far, what are you thinking? Are you thinking that permission probably-- (A) is required; or (B) is not required? Why? In addition to reading the FAR, would you consider reading the text of the contract(s) you are wondering about? After all, it seems to me that it is the contract text that matters. Might it be possible that one T&M/LH contract might have a different answer than another T&M/LH contract?
  5. creyes814, I hope you will engage with an answer to my question -- it will be beneficial for your learning. In the question, the pronoun "you" need not point to you personally, but could point to your organization since you might just be a cog in the wheel of your organization. Let me re-word the question (editing shown in italics): By unnecessarily re-styling these notices as RFPs, I wonder if you or your organization are unnecessarily encumbering yourself with the procedural baggage that we think of as going along with RFPs? And I'll add an additional question, based on your consideration of the above question: Are you or your organization willing to stop styling these notices as RFPs, and instead style them as notices and prepare them under the guidelines of FAR 16.505(b)(1)?
  6. I asked the OP a question: By unnecessarily re-styling these notices as RFPs, I wonder if you are unnecessarily encumbering yourself with the procedural baggage that we think of as going along with RFPs?
  7. creyes814, Here is something for you to consider: the FAR does not require an RFP for a task order opportunity. Above the micro-purchase threshold, you simply have to "provide each awardee a fair opportunity to be considered for each order." No notice is required, and you "need not contact each of the multiple awardees under the contract before selecting an order awardee if the contracting officer has information available to ensure that each awardee is provided a fair opportunity to be considered for each order." See FAR 16.505(b)(1)(i) and (ii) for more information. Above the SAT, you have to provide a "notice" and "[a]fford all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered." See FAR 16.505(b)(1)(iii) for more information. Above $6 million, you similarly provide a "notice" that includes the factors and subfactors "that the agency expects to consider in evaluating proposals." See FAR 16.505(b)(1)(iv) for more information. By unnecessarily re-styling these notices as RFPs, I wonder if you are unnecessarily encumbering yourself with the procedural baggage that we think of as going along with RFPs?
  8. A broad assertion by an acquisition professional that he or she "always considered considered (sic.) everything a record" seems to me to demonstrate a profound ignorance of case law and fundamental correct principles. That's my opinion. But clearly, some in our community (like Don) do indeed consider every scrap of paper, including individual evaluator notes, to be a record. Others (like every other poster in this thread) do not. Each practitioner needs to decide for him- or herself, based on the facts and within whatever leeway is allowed by his or her agency. There is no universally-agreed-upon answer.
  9. It depends on whether the PCO (or the agency) (1) understands the law or (2) blindly obeys the agency's overly-cautious and not-respectful-of-case-law attorneys. I esteem the GAO case law as correct, and PCOs who understand the law do not feel a need to automatically retain individual evaluator notes -- they understand that those notes might not be records*. Overly-cautious and not-respectful-of-case-law attorneys (unfortunately, some agencies have them) will say every single scrap of paper is a record, and will even insist that evaluators create notes just so they can save them as records -- those attorneys are wrong, but no one can say they are wrong because they are attorneys. *The source selection evaluation report, decision document, and so forth are records. Individual evaluator notes are not records.
  10. No, the question was "how do you invoice for the hours expended by salaried employees?" and OP was not asking about internal bookkeeping and accounting for uncompensated overtime (UCOT). He or she was asking about invoicing for UCOT hours -- the simple answer is that the contractor does not invoice for UCOT hours. A contractor does not invoice for an hourly rate in a cost-reimbursement contract -- rather, a contractor invoices for incurred costs. If a salaried employee's salary for a two-week pay period is $10,000, and he or he works full-time only on this one contract, the contractor invoices for $10,000. It is irrelevant for invoicing purposes whether the employee works 40-hour weeks or 45-hour weeks. UCOT is not an incurred cost, so It is not invoiced on a cost-reimbursement contract. The provision at 52.237-10, Identification of Uncompensated Overtime, is used in solicitations and applies to proposals -- it is not included in contracts and is irrelevant to invoicing questions. Simple answer: UCOT is uncompensated, by definition -- the employee is not compensated for UCOT, and the employer does not pay the employee for UCOT, so UCOT is not an incurred cost and the contractor does not invoice the government for UCOT. A cost-reimbursement contract reimburses a contractor's incurred costs -- it does not pay for billable hours. Thinking with a billable hours mindset is error.
  11. You said cost-reimbursement, right? The contractor invoices for incurred costs (within the guidelines of the contract and FAR part 31).
  12. Yes, pray tell, what is your objective? Then why disturb the vendor's peace with a contract modification? A ratification gives you authority to pay, but you have already paid. Instead of starting a ratification process, should you be starting an Anti-Deficiency Act process?
  13. Have you read the excusable delays text in para. (f) of the contract clause at FAR 52.212-4? You really should. Why do you want to harm your agency? Why do you want to shift all of the contractor's costs associated with the nationwide strike to your agency? Let the contractor deal with the nationwide strike, and let the contractor deal with any cost impact. After the strike, you can use the excusable delays text in your contract to accept late delivery or performance without shifting the contractor's costs to your agency. If a "country is having a strike," you must be outside the U.S. -- based on this new information, I most sincerely advise you not to rush a Stop Work order. Since you have a commercial contract, I am supposing you don't have a construction contract, and you don't have a cost-reimbursement contract -- so I cannot imagine why you would want a Stop Work order. A strike is an excusable delay -- it is already covered by your contract. You do not need a Stop Work order to accommodate a strike. There might be, maybe, some other facts that call for a Stop Work, but you haven't shared any such facts.
  14. A strike does not necessitate a Stop Work order. Generally, a company's contractual obligations remain in place even when it faces a strike. Assuming you are Government, why do you want to relieve the contractor of its contractual obligations because it may face a strike? Do you need anything beyond what is already provided for in under excusable delays in para. (f) of the contract clause at FAR 52.212-4 give you the coverage you need? My advice is to drill down on the question: WHY are you thinking about a Stop Work order? Why do you want to relieve the contractor of its responsibilities, and why do you want your agency to assume any and all costs associated with the contractor's stopping work? My advice is not to rush to a Stop Work order.
  15. Well, if you look at what I actually wrote, and if you read the zero cost risk statement within the context it was presented, then what I wrote is true. However, if you strip it from its context, then yes, it is no longer true -- but stripping it from its context is unfair, and I want to expect better here.
  16. The MCS case allows for the exercise of an unevaluated option: "In such circumstances, the agency must justify the use of noncompetitive procurement procedures in accordance with FAR Subpart 6.3 before exercising the unevaluated option." A J&A or similar document based on appropriate facts could have made a difference in the case.
  17. I don't know what your prime wants, but FAR 2.101 has a definition of "data other than certified cost or pricing data."
  18. The fee is fixed. An increase in your costs will not reduce or "eat in to" your fee. The Government has promised to pay all of your costs (reasonable, allowable, and so forth) plus a fixed fee. You have zero cost risk. Are you now wanting the Government to pay more than the fixed fee you already bargained for? Why?
  19. Carl, You are moving the goalposts. The question is "Basically, do COs need to seek waivers for the NMR and BAA when we issue orders off of existing government contracts?" The answer is no. Your citation doesn't fit the discussion. As a general rule, the contracting officer has no affirmative duty to determine the size status of indefinite-quantity contract holders before placing an order -- your citation makes the case that the SBA may do its thing if there is a size challenge, and I am fine with that, but that is wholly irrelevant to this discussion thread. Even so, we're talking about orders for supply items -- there might not even be any "separate procurement[s]" going on. Issuing orders is supposed to be easy. Too many people want to bog the process down and sink the ship by imposing all sorts of unneeded demands on the ordering process.
  20. I do care about the OP's circumstance, and am trying to be helpful to the OP. A determination that an offeror's price is too low is a valid basis for a determination of nonresponsibility once the apparently successful offeror has been selected. Of course, it goes without saying that "too low" will have to be supported in the determination -- I agree that your example from case law may be helpful to the OP, notwithstanding your lack of care for the OP or his or her circumstance.
  21. I don't think PAE Government Services, Inc., B-407818, fits the OP's circumstances. Nothing in the PAE decision would stop a nonresposibility determination in the OP circumstances. Indeed, the GAO affirms in PAE that "a determination that an offeror's price on a fixed-price contract is too low generally concerns the offeror's responsibility, i.e., the offeror's ability and capacity to perform successfully at its offered price." I also don't think J.A. Farrington Janitorial Services, B-296875, fits. Like PAE, that case dealt with the evaluation, not a subsequent nonresponsibility determination. The agency didn't even evaluate the proposal! Neither of these cases deals with non-responsibility determinations. Note that in my comment, I wrote, "...if the company in question is the apparently successful offeror based on your evaluation criteria..." -- clearly, the evaluation and tentative selection has to occur before the question of responsibility or non responsibility even arises. But if the evaluation has been completed, and the company in question is the apparently successful offeror, the contracting officer can make "a determination that an offeror's price on a fixed-price contract is too low" (note that the GAO uses the words "too low"), along with the other reasons I cited. The OP's attorney can help him or her draft the wording to make it stick -- all three reasons will need to be fleshed out. But most likely, I am afraid that the OP will be afraid to do a non-responsibility determination even with the facts presented in the OP -- I hope I am wrong, but it seems contracting officers and their masters are becoming more timid as time passes.
  22. I have always understood that trade agreements, if applicable, trump BAA.
  23. 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).
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