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Heretalearn

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Everything posted by Heretalearn

  1. GSA KO also makes a determination of commerciality. I begin to understand why Mr. Edwards' patience occasionally ebbs.
  2. I think this is what I was trying to get at, albeit too obliquely. If a task order is placed against a supply schedule for a scheduled item, there shouldn't be any question as to commerciality. I've never seen anything to indicate whether a GSA determination of commerciality would bind an agency procuring other than through a schedule & so have assumed it wouldn't; but as a pragmatic matter, though I think it's a good argument on its face, I've tried it unsuccessfully a number of times.
  3. Please forgive my obtuseness, but I seem to be missing a couple of points here. The software and maintenance are both on the schedule, but was the purchase made using the schedule? If so, it seems, well, folly not to construe the task order in context of the underlying contract which, as Mr. Edwards pointed out, is decisive. I don't understand from the thread whether the procuring activity is claiming that one or the other of the items is not commercial, and to what end? What is the contractor or the PCO trying to accomplish or avoid in terms of the order for maintenance that's being impacted by a commerciality determination?
  4. You've made the right determination Jose. Get as much information as you can, and if you believe the facts and the documents can reasonably be interpreted to support your position, pursue your position. After all, if the agencies always got it right there would be no need for GAO, BCA or COFC reviews.
  5. I'm not sure the fact that the contract schedule reflected an hourly rate is necessarily dispositive of the type of contract being entered. If the requirement for consultation hours had exceeded the fixed-price estimate, Joel could not have expected an increase of the fixed price because the necessary hours were underestimated in the proposal. The way to find out for sure is to file a claim under the Disputes Act and then appeal an actual or deemed denial if the denial rationale seems inadequate. This is not fishing. It's an ambiguous contract and there is a genuine issue in controversy. ADR at any point in the process would be desirable - oftentimes a claim or appeal encourages the agency to participate in ADR. Claims and Appeals are easy to pursue and don't require legal counsel. The agency may have a potential out in termination for convenience, but it's not an absolute out, the agency may not think of it, and government sometimes does the right thing simply because it's the most expeditious thing. Government contracting isn't for the weak, but it isn't supposed to be a shell game or an exercise in "heads Feds win, tails you lose". Using the Disputes Act when there is an actual issue in controversy, and especially where ADR is possible, can inexpensively illuminate the minutia of regulation for agencies and contractors without unduly expensive or adversarial proceedings.
  6. I'm not sure why C1 is buying anything from C2. Technically under a CAT (unless I misunderstand), isn't the customer buying certain items or services from C1 under it's Schedule and certain items from C2 under it's Schedule? I'm not sure the customer would care what manufacturer C2 uses for any item C2 supplies from it's Schedule at the agreed price. For C1 to purchase commodities from C2, and then C1 (rather than C2) to supply the item to the customer is a Prime-Sub transaction. If C1 (instead of C2) provides an item that is not on C1's Schedule to the customer from a third-party manufacturer, that makes it an open market item, doesn't it? Or am I exhibiting my ignorance.
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