ji20874

Still trying to understand...

1.  So, you are saying that the -41 clause was included in the initial contract (along with the two blurbs you quoted) and that the -43 clause was added later by contract modification?

2.  Did you accept the initial contract?

3.  Did you accept the modification?

4.  Was a wage determination included in the initial contract?

5.  From whom and in what manner did you "receive" the updated wage determination?

1 hour ago, GtarJohn said:

GFP - Government is providing the broken AC wing to the contractor (or the contractor's maintenance team if work is to be accomplished on government property ) to do repairs. 

If the property remains in the Government's possession and remains in the Government's property records ("repair of an aircraft wing to take place on a Government site"), then it isn't GFP because it is never "furnished to the Contractor."  Read the definition of Government-furnished property in para. (a) of the clause at FAR 52.245-1, Government Property.

Who is "they"?  A federal agency?  Which one?

Are you talking about CTAs under FAR subpart 9.6, or CTAs under GSA federal supply schedule contracts?

For workload thresholds, are you talking about the agreement in para. (d) of the contract clause at FAR 52.219-27, Notice of Service-Disabled Veteran-Owned Small Business Set-Aside [or para. (e) of the clause with Class Deviation 2019-O0003]?

Is the "Chief Biomedical Engineer" is a Government employee?   YES   NO

Is he or she "assigned" as an appointed--

• contracting officer?   YES   NO
• contracting officer's representative?   YES   NO

Does "added Clauses and negotiated" mean that the clauses are already and formally included in the awarded contract?   YES   NO

Is "the Contract" a federal prime contract under the Federal Acquisition Regulation?   YES   NO

Are you talking about a federal contract under the Federal Acquisition Regulation (FAR)?

I believe you can have a FFP contract with a firm fixed price for a June 1 delivery, one for a July 1 delivery, and one for an August 1 delivery.  Don’t call it FPIF, and don’t use the word “fee” as you show in your original posting.

This really doesn't seem like a FFP-LOE approach as contemplated by FAR 16.207; rather, it seems like a FFP approach as contemplated by FAR 16.202. 

It seems that this is a plain, ordinary FFP approach, with the unit denominated in hours.  You will be paid the FFP for each hour authorized by the Government, up to a total of 2008 HRs.  The QTY is an estimated quantity, or maybe a ceiling quantity.

So, something like--

Item   Supplies/Services   Qty   Unit     Unit Price     Amount

001     LCAT 1                  100  HR     $__________  $__________

001     LCAT 2                  800  HR     $__________  $__________

003     LCAT 3                  400  HR     $__________  $__________

How is the solicitation's bid schedule set up?  For example, 1 JB, or 6 MO, or 5,000 HR?

• _______________.

What is the solicitation asking for?  A product?  A report?  Employee hours?

• Services.

Does the solicitation specify a level of effort?  Are you supposed to specify a level of effort in your proposal?

• The solicitation specifies the level of effort.

You really need to answer the first question before I can be helpful. 

File a claim under the Disputes clause.

No, the Government's failure to pay you does not relieve you of your duty to pay your subcontractors.

It is very possible that the contracting officer does not understand FFP-LOE.  However, we don't understand much about your situation, as you haven't offered much.

How is the solicitation's bid schedule set up?  For example, 1 JB, or 6 MO, or 5,000 HR?

What is the solicitation asking for?  A product?  A report?  Employee hours?

Does the solicitation specify a level of effort?  Are you supposed to specify a level of effort in your proposal?

So, you are a contractor who is submitting a proposal to the Government, and the solicitation asks you to "describe the methodology used to derive the hourly rates"?

When you write SCA wage schedule, do you mean the SCA wage determination?

ADS is USAID's Automated Directives System.

https://www.usaid.gov/sites/default/files/documents/1876/312.pdf

Are you talking about a proposal for an order (or BPA) against a schedule contract (FAR subpart 8.4)?

2 hours ago, Radu C. said:

The question is: is it common in the industry to interpret the above AIDAR to mean that the blanket waiver from ADS 312.3.3.2 (b)(2) (in case of RHD vehicles) is sufficient and prior CO approval is NOT necessary as long as we are “complying with required procedures under an applicable waiver….”?

I'm not in the industry, but I understand a little about reading contract clauses. 

You shortened the applicable phrase--

• comply with required procedures under an applicable waiver...

from--

• comply with required procedures under an applicable waiver as provided by the contracting officer

It seems to me that the applicable waiver only counts if the contracting officer provided it to you. 

General,

A brand-name justification under FAR 16.505(a)(4) is not a JEFO under FAR 16.505(b)(2).

If the agency is doing a brand-name justification, and no contract holders will be denied a fair opportunity to be considered, then the agency does a brand-name justification under FAR 16.505(a)(4).  This is not a JEFO, it is a brand-name justification.  The acquisition is done under FAR 16.505(b)(1), Fair Opportunity.

If the agency intends to deny any contract holder a fair opportunity to compete, then the acquisition is under FAR 16.505(b)(2), Exceptions to Fair Opportunity Process.  JEFOs only apply to acquisitions under FAR 16.505(b)(2) (and even then, only to some of them).

When using FAR 16.505, BNJ ≠ JEFO.  There is no such thing as a brand-name JEFO. 

1 hour ago, C Culham said:

I wish I knew how to use red bold font

On my laptop screen (but not on my mobile screen), there is a row of editing buttons at the top of the text input box.  It starts--

• B     I     U ...

The next-to-last button (before "Size") has a Capital A, underlined, with a little down arrow the top-right corner.  That is where you can get different colors for text.

It’s not me that makes it valid and honorable — please read FAR 4.1005-2(a)(1).  That is what makes it valid and honorable.  Those circumstances exist in some agencies, and contracting officers in those agencies don’t include an accounting citation for the minimum in IDIQ contracts.  I cannot bring myself to be so arrogant as to say that entire agencies, and all the contracting officers in those agencies, are wrong — especially when the FAR expressly says what it expressly says.

If your agency requires you to include an accounting classification (funds cite) to cover the minimum in your IDIQ contract, then you must do it — but let’s recognize that not all agencies do.  I’m all in favor of diversity and professionalism.  Each contracting officer has to follow the rules of his or her agency.

Sorry, Carl, I can't reach that far.

You seem willing to admit that the accounting classification to support the contract minimum isn't required on a CLIN in an IDIQ contract (FAR 4.1005-2(a)(1)), but it seems you are still insisting that it appear on the award form, such as in blocks 25 and 26 of the SF-1449.  But if the valid and honorable reason described in FAR 4.1005-2(a)(1) prevents a contracting officer from including that data on a CLIN, it will also prevent him or her from including the data on the award page.  

There are federal agencies who leave the accounting classification and amount blocks blank for IDIQ contract awards (or in the accounting classification box they might enter something like "To be cited on orders issued under this contract," and in the amount block they enter "$0.00."  The contract minimum and maximum are spelled out in the schedule (or in the addenda for commercial item contracts).

Please don't say that those agencies are breaking the law.  They aren't.  Those agency comptrollers still comply with the law to record IDIQ minimums as obligations on the books of their agencies.  They're doing it differently that you are accustomed to seeing it done, that's all. 

Can we simply agree that contracting officers should follow the procedures established by their agencies?

Harry,

If you want a legal answer, you should ask an attorney.  But you asked here instead, so perhaps you are interested in the opinions of practitioners?  I’ll share my unresearched opinion:  The JV does not hold a schedule contract, and therefore cannot receive an order against a schedule contract.

A question for you:  Is there any reason the JV can’t get its own schedule contract?

The FAR does not require the recording on the books of the agency of obligations for the minimum quantity of IDIQ contracts at the time the contracts are awarded because the FAR describes the acquisition process (and recording is not an acquisition process).  Recordings are done by agency comptrollers who follow financial management rules.  Recordings are required, but not because of the FAR.  My take-aways from this thread:

• Contracting officers create obligations for minimums by executing IDIQ contracts; however, it is not necessary to include accounting citations to cover minimums in IDIQ contracts (FAR 4.1005-2(a)(1)).  [Note:  Contracting officers also distribute contracts to make sure other people (including agency comptrollers) know about them.  Distribution is supposed to occur within ten working days of execution (FAR 4.201).]
• Comptrollers record these obligations on the books of their agencies upon receipt of the executed contracts.  Historically, it has been fine for recording to occur days or weeks after contract execution (obligation creation).  [Note:  No FAR citation is provided because recording is not an acquisition process covered by the FAR -- recording is governed by the Recording Statute and financial management regulations.]

Different agencies do some of these things in different ways.  For example, in some agencies, execution and distribution may be done electronically in automated systems.  In some agencies, contracting officers are expected to include accounting citations in IDIQ contracts. In some agencies, the contracting officer's automated systems are connected to the comptroller's automated systems.  And so forth.  Every contracting officer has to follow the rules of his or her own agency.

Even with a common FAR, there is great diversity in practice across federal agencies.  I support and embrace that diversity, and appreciate the learning that can occur with robust professional dialogue.

35 minutes ago, Boomer635 said:

Besides, I am sure we would receive a unilateral change order should we not comply

Okay, so your contract allows for unilateral change orders followed by equitable adjustment.

41 minutes ago, Boomer635 said:

we want to be responsive to the Government and receive and a good CPAR in the end

Okay.

Really, it doesn't matter what the FAR says, does it?  The FAR guides the contracting officer's actions, not yours.  Maybe you can help the contracting officer understand the FAR better, or maybe not.

I think there are two more important questions:  

1. Is there anything in your contract that requires you to submit any or all of the data?
2. How badly do you want the modification?

Jamaal,

My opinion:  If an indefinite delivery contract creates a minimum purchase obligation, then that obligation must be recorded on the books of the agency, amenable to the recording statute.  However, it is not necessary to include an accounting citation in the indefinite delivery contract itself, amenable to FAR 4.1005-2(a)(1).  This is federal-wide policy.  However, it appears that some agencies may require including an accounting citation in the contract.

Others seem to disagree, and would impose their interpretation of their agency’s practice on all of us, notwithstanding the clear text of FAR 4.1005-2(a)(1).