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dcarver

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Everything posted by dcarver

  1. How does your lawyer interpret it? A) I'm curious to see how someone who studies/practices law interprets this and I would err on the side of caution and go with what your lawyer interprets this as. I am not a lawyer, so my interpretation would mean nothing if this was somehow protested.
  2. Sorry Vern, perhaps I should rephrase what I was intending. Surely I would never actually say that to the PEO him/herself, but lately things have gotten a bit absurd with expected timelines from program offices within the PEOs. You get a proposal and they expect you to have a contract next day while in reality the majority of the time they are the reason you are so far up against the timeline in the first place. My intent from that was not to actually make them write the waiver request, because surely you would need an absurdly good reason to get one, but rather to show them that there is guidance from much further up that we should be doing a better job analyzing the cost/price. I probably made one too many assumptions in my response to CPAnalyst, but there is an absurd expectation of how fast a negotiation takes from the program offices within the PEOs lately, no matter how much you lay out to them early on how fast they shoudl expect it to take. I was merely suggesting he not cave into such outside pressure, but do a thorough analysis on his proposal. If he truely does have a real deadline due to install dates being missed, etc. then there are other appropriate routes he could take to mitigate that.
  3. If you are referring to FAR 15.403-1©(1)(ii) then he cannot use that if he is in DoD, which is explained in the policy memo he linked. However, I'd tread carefully if you are trying to skirt that memo, they are monitoring effective pricing very closely. A push by your PEO to put it on contract shouldn't make you do a less thorough analysis of the costs/pricing provided. Of course, if you have the... willingness to push back at them, you should show them the memo and say that they are free to draft up a waiver letter for the HCA if they believe that they shouldn't need to comply with it. That would be an interesting conversation. Agree with Vern, I'm pretty sure what you described trying to do would create a UCA for the production portion of your contract so you would have to comply with all of the regulations regarding them, and would probably just bring further attention to what you are doing because the reporting level to DPAP is $5 million dollars on UCAs.
  4. You answer your own question. While the main point of Arko was contending the difference of the use between 52.217-8 and 52.237-3, you are contending a certain provision of when the option may be exercised. FAR 17.204(d) states very plainly that "The period may extend beyond the contract completion date for service contracts." So why would that not allow you to enter a time after completion of an option period to allow for funds to become available? However, your question is not pertinent to 52.217-8, as that is not the point of the clause. The answer is pertinent to 52.217-9, which is allowing for the extension of the term of the contract, which you would use when exercising an option. As the Arko decision makes very clear, the point of 52.217-8 is to allow the contracting officer flexibility to extend the term of service contracts for up to six months in order to prevent frequent short term extensions while the effort is re-competed. So, your question would be better directed only at 52.217-9 as opposed to 52.217-8, which is to be used when the contract is ending, not when you are giving notice to exercise an option period that exists on the schedule already. *52.217-8, as asserted in Arko, is to be used in circumstances that are out of the Contracting Offices control, such as delays resulting from bid protests or alleged mistakes in bids. It is clear that the point of 52.217-8 is to allow for the contracting office to extend the current contract at the current rate and limits being performed in order to allow for a negotiation to end and [potentially] new contractor to start work. See my answer above, yes, it appears that 17.204(d) is not directed towards 52.217-8. You are giving the contractor preliminary notice that you are going to exercise an option period on the contract, and therefore giving them notice that you will be exercising it for an additional year. Where does the FAR require that seperate notice be required to a contractor operating in a remote area? If Arko had taken the time to understand the clauses they were agreeing to in the contract, they would have negotiated a sufficient lead time in the first place, not a lead time that was "within the currently ongoing period of performance or within 30 days after funds for the option become available, whichever is later." Arkos cause appears to have been flawed from the getgo because there basis hinged on calling the extension of services "phase in, phase out" services instead, when they were clearly an extension of currently provided services and not services to provide a new contractor training in order for continuity of services to be provided. They also did not understand what "current rate and limits of the contract" meant.
  5. See Chapter 5 of the GAO Redbook regarding what is considered a Bona Fide need. Link http://www.gao.gov/legal/redbook/redbook1.html . Just download the redbook, open Volume 1 and scroll to the TOC for Chapter 5 in Adobe. It appears you have a bona fide need of FY13 and your program office is trying to burn the rest of there FY12 annual appropriation.
  6. Where in Part 51, or in the clause prescribed by 51.107, does it mention anything about this only applies to competitive solicitations or contracts? I'd also ask you if you are in compliance with 16.702©(3), which states that any basic agreements shall not be used to restrict competition, since you are using a BPA in a non-competitive situation.
  7. You answered your own question. If the use of a GSA Schedule is the only way to obtain the best price, then why in a cost-reimbursement environment would the Government not want the contractor to use that? It saves them money. Your BPA is setup for FFP, so your scope of work is sufficiently defined and you probably can't use the Cost reimbursement route. You have a BPA however, so you've technically only negotiated clauses and a general scope of work to be performed on a future contract, there is nothing binding you to use this BPA for this acquisition unless you've already awarded a contract off of it. If you know that you can obtain the supply/service at a lower price through GSA, why not just do the acquisition through GSA and avoid making a call off of the BPA to begin with?
  8. The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. The Contracting Officer may exercise the option by written notice to the Contractor within _____insert the period of time within which the Contracting Officer may exercise the option The usage of 52.217-8 allows for the extension of services at the rates specified in the contract (i.e. the current year of performance). The rates can only adjusted if the labor categories being used are controlled by rates provided by the Secretary of Labor. This is making a complete assumption, but it could be that the Program Office had money for the effort to be performed, but not enough to pay for the option year while also believing that re-competing the effort would give them a lower price. So they extended using 52.217-8 and re-competed the effort in hopes of a lower price. That would be quite an assumption of them to make if true, and I would hope was backed up by some thorough market research indicating so.
  9. He has a good point on a few things. For example, requirements are too easily changed from when they are generated in the field to when they are established as KPPs of whatever you are buying. I think it would be easy to streamline the process, as there have been a good few examples of fielding something fast in comparison to the normal timeframe (MRAP, although the contracts portion of that is nuts). 50% however? I'm not sure if there is enough, for lack of a better term, political will to do it. I think the areas in which they'd be able to save time would end up being areas where significant money has usually been invested and they might be scared of the results of that finding. I'm not even going to pretend to know the ins and outs of the defense acquisition process as a whole, but speaking strictly from a contracts perspective, there is definitely room for improvement. There are far too many reviews in place to the point where you are nit picking at very little aspects of documents that they add very little value. The audit process in general needs significant improvement (see Federal Times front page article today). DCAA is supposed to take 60-90 days to give you an audit, but they are taking 120+ days to give you an audit recently, if not longer. Requiring a legal sufficiency review for just about everything but not adequately staffing the legal office to handle that volume of work is causing delays of up to a month or two (not significant, but hey any time saved here is somewhat the point of the article). This point here is strictly opinion as I have no evidence to back the point up, but I also question the push for competition on software or vehicle programs when they are so far into the program that you are going to spend significant time and/or money just for the sake of competing it. It takes a considerable amount of money to say..set up an assembly line for a vehicle. If you are 5-10 years into the program and you are only looking at producing say..under 1000 vehicles under x follow on contract, you aren't going to re-coop your costs of setting up that line. I'd also argue somewhat the same point in software development programs that are constantly evolving. If a certain contractor has been doing this for 10-15 years, any perspective offeror on said competition is going to have to spend significant time to interpret the code and understand it before they can start making improvements upon it, which is going to set your program back further and further. My point is, you would be wasting your time just for the sake of going through the motions of competition when you could of sole sourced it in the first place. This is a little focused at certain programs, and definitely doesn't represent what the whole of the DoD should do on a standard hardware buy. Just my thoughts on it, which could be completely wrong. Feel free to point out any flaws in the thoughts above, I'm always willing and trying to learn more.
  10. Oh, there is a process chart, although you might vomit when you see it due to the complete complexity of required steps in it to actually field an item in the DoD.
  11. I'm not sure if that is an apples to apples analogy. The guard troops, unlike a contractor, have trained for hostile environments. The contractor, in this situation, could very well be able to perform this requirement CONUS but not have the requisite capabilities to perform the operation OCONUS, and may not of proposed on the requirement if that was known up front. I would think it is a big leap to make the assumption that since the contractor has the ability to perform the service CONUS that they are able to perform OCONUS in theatre. You would also be getting into whether you are working in a forward zone or not, whether the contractor personnel would be required to have arms, etc. There are many more things to take into consideration when making the assumption of CONUS vs. in-theatre than just a pure location standpoint.
  12. They are now reporting that they are holding the three officials in charge of the party in the suite responsible for the $5,600 in costs for repayment, and the $130,000 in "advanced planning trips" have been referred to the Justice Department to pursue a civil suit against the subject parties if they so choose (my guess: they will).
  13. I wonder if we're referring to the same one. My specific command has come down hardcore on traveling since they setup all conference rooms with VTC capability, so now you have to justify why you can't VTC instead of travel, which I think is awesome because there is so much needless travel. We've also started scrutinizing requirements for quarterly program reviews with contractors, as to why they are necessary. It seems many program folks are stuck in a routine and want to monitor contractors hardcore, even for simple requirements that only require 2-3 deliveries in total. I'm interested to see if there is any backlash within the next year on the conference, as I'm sure congress will start monitoring these harder.
  14. My point was that FAR 19.804-6(a) states that the SBA decision to accept the proposed contractor as a valid concern to be utilized on the contract is valid for the life of the contract, so loss of status would not affect how they participate in a MATOC as far as the FAR regulates. It specifically states that the SBA does not need to continually accept the offeror for individual orders under a MATOC. Past that, without seeing the base contract, I would rely on what Vern has stated.
  15. And the Orlando conference is right around the corner... Although, it has been going on a few years and no one has said anything regarding it. I'm wondering if it'll receive increased scrutiny with the GSA case fresh in mind.
  16. Good catch, so my answer only applies under a contract with a period of performance (including options) of 5 years or less. Good to know that they at least limited it somewhat.
  17. FAR 19.804-6(a) states: So yes, as long as the firm was accepted originally into the program, the acceptance should be valid for the term of the contract. I've ran into this situation before, where the particular company was going to graduate the 8(a) program in the near future. We consulted with our small business specialist and the SBA, who came to the conclusion that as long as the firm is still in the program when you submit the agency offering to the SBA in accordance with 19.804-2, the firm can still perform work for the life of that contract if the SBA accepts the requirement for work (after all, you're technically contracting with the SBA and they sub the work to the contractor).
  18. Are you asking if you are understanding the correct definition of bulk funds, or whether the ACO should or should not de-obligate the funding for you/what you can do about it?
  19. It depends on how much you want to learn and how fast you pick up on things, but if you are looking for that "lightbulb" moment where it all starts to make sense, it could take anywhere from a year or two to many after that. I would highly suggest taking the FAR Bootcamp early on (free advertising for you Vern, I loved your class) if your agency offers it in your area. Or perhaps approach your training coordinator about taking it elsewhere and see if your agency would pay for you to go. You may not feel like you learned something then, but you will realize that Vern really does hammer down on how you should read the FAR, and his case studies that he presents to you and lets you work on gives you a really good feel for how the FAR is interpreted (and how it is completely vague in many areas). Besides, if you are an active reader of this forum, it allows you to put a face behind his username, and you'll really start to understand his posts (if that matters to you at all).
  20. My reply wasn't to ndean, it was to the original poster who did post that they were using GSA, although I can see how you would think my response was to ndean since it was posted directly after his. Either way, I can admit when I am wrong, but I at least like to see why I am wrong when someone points it out. Perhaps next time I'll quote the poster I am replying to.
  21. I would agree with you, except in the GAO decision they make the statement: This would allude that the GAO would rule differently if the agency had set aside for SDVOSB and was using the FSS procedures with a restriction to them, no? I'm just trying to understand the rationale and learn from it at this point, not trying to argue your point on it. The way I read the statement, it leads me to believe the GAO would of ruled in favor of the agency if they had made a determination that 2 or more SDVOSB companies could compete, and of those companies, two or more hold a schedule so they can achieve competition through competing using FSS procedures.
  22. No offense Vern, but of all people I would of thought you would know that the number of posts does not dictate the knowledge of the user. However, I'll take your advice and strictly answer the question at hand.
  23. I'm not sure if this does shed light on the question. The portion of the act in question does not adequately define the use of restricted competition past setting aside for SDVOSB or VOSB concerns. Specifically, it only goes as far as to say the contracting officer must set aside for SDVOSB or VOSB, in that order, if they have a reasonable expectation that one or two or more companies that are classified as SDVOSB or VOSB can meet the requirements at a reasonable price. It does not specify in which way the Agency must set-aside or conduct the competition, it just states that the Agency must set it aside for those concerns. So the question still remains, if the agency determines that they can run a competition for the requirement between SDVOSB concerns, and 2 or more of those concerns are schedule holders, what prevents them from running a competition using FSS procedures?
  24. This sounds to be that you should just avoid using GSA and go with a ID/IQ contract on your own. You can order minimum quantities, and when those quantities are exhausted cut another order for additional quantities. You can always bilaterally modify the order later to reduce quantities on said task order. It is a commercial service after-all, so your competition would end up pretty streamlined as it is. You have a fixed price item with an uncertain quantity, so that seems the best way to approach your particular scenario.
  25. Unless someone can point out further guidance or policy on this, I would wager a guess that if the VA were to set-aside using FSS procedures and go sole source to an SDVOSB while another SDVOSB could do the work, then the protest would be sustained and they would be forced to compete the requirement. If they use the FSS procedures they are still violating the act unless they document and make a determination before-hand that there is/isn't a VOSB or SDVOSB set-aside. However, if properly documented that it is a set-aside to SDVOSB in accordance with the VA Act, and proper documentation was done in order to go sole source as opposed to competing as a set-aside, you may find the GAO err on the side of the VA in that regard. They have recently rejected protests where the protestor was claiming they could also perform work that was done sole source as long as the J&A was documented properly. While not completely the same as this (this is a set-aside as opposed to brand name restrictions), I would make the correlation that these two cases are largely the same. If the Government follows all proper steps and procedures to restrict competition and it can be shown that the agency did not have the adequate data to conduct a competition, the VA would be ok. Coastal Seal Services, LLC, B-406219, Mar 12, 2012.
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