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Mike_wolff

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  1. Thanks Vern. My N&CR subscription lapsed for a few months I believe (either that or our mail room lost them because I've started receiving them again) and I didn't get the April 2011 issue. Is there any way to get that article?
  2. I suggest you start with Vol. 1 of the Principles of Federal Appropriations Law (the GAO Redbook) here: http://www.gao.gov/special.pubs/d04261sp.pdf and then search for the phrase "multiple year." This should be a good starting point to focus your research. "Multiple year" comes up 31 times in this volume, so it's not a ton to read, but regardless, I think you need to read the document regardless of length because appropriation law can get very messy, so I think it's best to go straight to the source documents and not rely on someone else's summation.
  3. Joel, Thanks very much for the detailed response you gave above. Due to the issues discussed, I don't understand how you can comply with CICA without getting binding prices for the task orders at the time you award the base IDIQ. And given the problems you discussed (which I appreciate because I've been considering structuring an IDIQ based on RS Means coefficients or something similar) is it really possible to structure a good IDIQ for construction and comply with CICA. I know you have a lot of examples of what has been done, and I've seen many myself, but that all being said, what argument can be made that you do NOT need binding unit prices (for example labor hours and material costs) that apply to task orders and have that be CICA compliant? Obviously the simple fact that it's been done without anyone getting caught doesn't mean that it is CICA compliant. Mike
  4. Vern, yes, that is my question. My understanding is that in order to comply with CICA for a fixed price IDIQ contract that the prices established in the base contract must be binding for the task orders. If not, all the base contract does is establish a pre-qualified list that awards a seed contract (if one is used) and limits competition on future procurements for the task orders without ever actually competing those prices on a full-and-open basis.
  5. I know this was debated a while ago, but I'm having discussions about this same topic now - specifically for construction contracts. The problem I see with the cited GAO decisions about seed or sample projects is that they are discussing whether they are valid price evaluation techniques for the BASE contract, but do not address whether not having binding pricing for the subsequent task orders is valid. While I do think that getting pricing from multiple award IDIQ contractors helps ensure price competition, I don't see how it complies with CICA. I'm very aware how pre-pricing construction work is difficult for IDIQs, but don't think "difficult" or even "impossibility" is an exception to CICA. For example, would anyone ever consider competing elevator maintenance services for a single "seed" building, and then say that we'd limit competition to the best offerors for any other buildings in a six-state area even though we have no binding pricing for those other buildings? I'd think not, so why is it okay for construction? Mike
  6. Just an update. I have found two GAO cases that I think support the position that a change in performance period is within the scope of the original competition and within the scope of the contract. Following below are links to those two of those cases with excerpts from each. If anyone has any thoughts or other cases on point re: this issue I'd love to hear them. Thanks again. Mike http://redbook.gao.gov/12/fl0056789.php Phase III of the contract was originally scheduled to be completed by January 1, 1988. After numerous modifications, the contract currently extends until November 16, 1990. Despite the extension of its term, however, the contract requires the same services as were initially required-- the development of an Explosives Vapor Detector, and a walk- through device to screen airport passengers who might be concealing explosives. Thus, we do not view the extension of the performance period, standing alone, as a change beyond the scope of the contract, especially given that the contract here was one for research and development. http://redbook.gao.gov/11/fl0054045.php We similarly find that the modification of Starwin's delivery schedule provides no basis for recompeting the requirement. The record shows that Starwin's delay in producing the antenna reflectors was associated with the agency's correction of the defective specification, and that the defects themselves were attributable, in part, to Saratoga since Saratoga created the ECP. /5/ Where, as here, a delay in production is caused by the agency's inability to provide a contractor with adequate specifications, a resulting adjustment to the delivery schedule does not constitute an out-of-scope modification to the contract.
  7. I've been consulted on an issue where a Contracting Officer in another region is administering a contract for work to be performed in my region. A service contract was awarded with a performance period of one-year, with a one-year option. Due to a miscommunication of contract requirements the performance period put in the contract was not the period needed by the program office and they need to revise the performance period. The CO claims that they are not allowed to change the performance period, only extend it using 52.217-8 Option to Extend Services. I believe you could negotiation a new performance period, as long as the performance period remains a one-year base with a one-year option, by negotiating a supplemental agreement with the contractor. I'm looking for some case law to back up this position, and have been unsuccessful so far - can anyone help with that? Also, during this discussion of change of performance period we discussed FAR 52.243-1 Changes - Fixed Price (Alternate I), which states, in part, that the CO can unilaterally change the "Time of performance (i.e., hours of the day, days of the week, etc.)." What do you think of arguing that the performance period can be changed using this clause? It is poorly written, since it includes "i.e." and then "etc." - they should have put "e.g." if using "etc.," and the CO is arguing this only allows you to change hours - say instead of performing from 9-5 you can change it to 8-4, or change days from M-F to Sun-Thur, but you cannot change the period from, for example January 1 through June 30, to July 1, through December 31, but I think it possibly allows for such a change in performance period. (If such a change were made the contractor would be entitled to an equitable adjustment of course.) Does anyone have any info on that? Thanks in advance!!! Mike
  8. Do you have a warrant? With only one year of experience I'm guessing - and this is just a guess - that may not be enough, and they'd more experienced, and preferably fully warranted COs to deploy.
  9. Thanks Jason - Sorry, I should have made that clear, I was talking about non-emergencies.
  10. Just finished "Lau's Laws on Hitting: The Art of Hitting .400 for the Next Generation" An EXCELLENT book for anyone who has kids in little league or above, or who still try to play the great game of baseball themselves (although my knees aren't up to catching like they used to be). I'm also feeling my age because I read the original book by Charlie Lau (The Art of Hitting .300) back when I was a little leaguer, and now I read this book by his son and have had both my boys read it as well. Just staring "Horse Soldier" by Doug Stanton. I read his book "In Harm's Way," which was excellent, and I'm told this book is as well. Mike
  11. Another suggestion since you're new, you state that the contract "is a base plus 4 years and under $2 million so it isn?t what I would call a crucial project." It's not to assume something isn't "crucial" just because the dollar value isn't extremely large. In fact, most program officies consider any of their important projects crucial, regardless of dollar amount, especially if they are the ones funding the procurement. I know of customer agencies who weren't thrilled when their $2 million dollar project was called "small." To them it was anything but.
  12. Well, he does open the post with "for your amusement" so that would support your position that he's joking.
  13. My understanding is that generally for domestic federal procurements one is not allowed to restrict competition to only "local" firms, for example, only firms located in a particular city or state, because such a requirement would be unduly restrictive of competition, and IAW FAR 11.002(a)(1)(ii) you can only include "restrictive provisions or conditions to the extent necessary to satisfy the needs of the agency or as authorized by law." Is anyone aware of any case law which specifically says that limiting competition to local firms is unduly restrictive? Thanks in advance! Mike
  14. More Guns, Less Crime by John Lott, Jr. VERY interesting and should be a must read for anyone who wants to have an intelligent discussion about gun control.
  15. Thanks Vern! I found it quickly with that info. The part I recalled was the sentence that said, "The GAO decision appears to indicate that the NBC could properly have issued orders against 2003 funds at any time during the three-year period. But that seems to us to be inconsistent with the bona fide needs rule...." I agree the decision appears inconsistent with the bona fide need rule, but GAO is the office charged with enforcing that rule, correct? If they are saying the funds from the minimum remain available for use at any time during the three-year period, it would seem that GAO must not believe this violates the bona fide need rule, otherwise the funds wouldn't be legally available. As you stated in the final section of your article, "we have no clear statement of how the bona fide needs rule applies to IDIQ contracts that have ordering periods that cross fiscal years." Maybe I can convince someone to request a GAO opinion on this specific issue. Thanks again for your assistance. Mike
  16. Does anyone know which issue of the Nash & Cibinic Report addressed GAO's apparent decision that the funds used to obligate the minimum guarantee remain available for use for the life of a contract, even if that contract spans over multiple fiscal years? I believe it was in 2007 or 2008, but I haven't been able to find it when going through my back issues. For those not familiar, in the GAO Principles of Federal Appropriations Law Annual Update of the Third Edition March 2008 page 5-6, it states the following: Page 5-43 ? Insert the following after the quoted language in the first partial paragraph:Another course of action for an agency with fiscal year money to cover possible needs beyond that fiscal year is an indefinite- delivery/indefinite-quantity (IDIQ) contract. An IDIQ contract is a form of an indefinite-quantity contract, which provides for an indefinite quantity of supplies or services, within stated limits, during a fixed period. 48 C.F.R. ? 16.504(a). Under an IDIQ contract, actual quantities and delivery dates remain undefined until the agency places a task or delivery order under the contract. When an agency executes an indefinite-quantity contract such as an IDIQ contract, the agency must record an obligation in the amount of the required minimum purchase. At the time of award, the government commits itself to purchase only a minimum amount of supplies or services and has a fixed liability for the amount to which it committed itself. See 48 C.F.R. ?? 16.501-2((3) and 16.504(a)(1). The agency has no liability beyond its minimum commitment unless and until it places additional orders. An agency is required to record an obligation at the time it incurs a legal liability. 65 Comp. Gen. 4, 6 (1985); B-242974.6, Nov. 26, 1991. Therefore, for an IDIQ contract, an agency must record an obligation for the minimum amount at the time of contract execution. In B-302358, Dec. 27, 2004, GAO determined that the Bureau of Customs and Border Protection?s (Customs) Automated Commercial Environment contract was an IDIQ contract. As such, Customs incurred a legal liability of $25 million for its minimum contractual commitment at the time of contract award. However, Customs failed to record its $25 million obligation until 5 months after contract award. GAO determined that to be consistent with the recording statute, 31 U.S.C. ? 1501(a)(1), Customs should have recorded an obligation for the contract minimum of $25 million against a currently available appropriation for the authorized purpose at the time the IDIQ contract was awarded. Additionally, in B-308969 (http://www.gao.gov/decisions/appro/308969.htm), it states on page 7 of the .pdf version of that decision that if the agency had properly "obligated the entire minimum [guarantee] at contract award, it would have completely satisfied the government's initial liability under the contract. No further obligation would remain under the contract that would require an appropriation in a future fiscal year to fund it unless and until the government placed orders exceeding the $1 million minimum." This info appears to support the position that funds used to fund the minimum guarantee remain available for the life of the contract.
  17. Dw - if a contractor has a contract with both his employees and with the Government, and in order to honor one contract he has to break the other, what is the right thing for the contractor to do? The Government contracting process provides remedies (although as I mentioned in a previous post, these remedies often never truly make the Government whole, and others have pointed out how Government T4C's don't really make the contractor whole either) and both the Government and the contracting parties agree to play within those rules. As long as both parties are truthful with each other and operate in good faith, I don't see how ethics enter into the equation. If a contractor tells me he has to walk off a project because he'll go bankrupt otherwise I will not be at all happy about it, but I wouldn't consider his action unethical, but I'd likely terminate the contract for default, apply excess reprocurement costs, etc. Similarly, it isn't unethical for the Government to terminate a contract for convenience. Going back to my cell phone example, are you saying you think it's unethical to break a cell phone contract early?
  18. Thanks Joel - I believe I had read that decision, or at least some decision which included PP info older than 3 years. I had the same arguments with 1102s in my office re: the old language, and told them just because it said the system could not retain info older than 3 years didn't mean we could obtain and use info older than that.
  19. Don, thanks - I'm glad you posted this, because, while I agree now, I had read too much into 17.206(a) myself before now. This is a great example of a case where it's easy to read too much into the FAR. I just had a discussion with some of my colleagues where they thought FAR 42.1503(e) limited use of information in PPIRS to 3 yrs. (6 for construction and A/E) of completion, and I said that it doesn't state that, that they were reading too much into the FAR, because it says you SHALL use that information when it is within the 3/6 yr. period, it doesn't say you cannot use information that is older than that. (They may have been influenced too much by the old FAR language re: PPIRS, but that's for another thread - not trying to thread-jack this one.)
  20. I think the "right" or "wrong" lies in the eyes of the beholder. It sounds like it is the "right" thing to do for the contractor, and I'm sure it is the "right" thing to do for the contractor's employees who would otherwise be laid off." But the Government may look at it as the "wrong" thing - particularly depending on how it was done. Walking off a job with no warning, with no discussion about alternative solutions, etc., would be more "wrong" to the Government, in my opinion, than walking off the job after trying to work out alternative solutions with the Government. One of the big problems with contractor default is that even if the Government is made financially whole, there is no way for excess reprocurement costs to cover the ill will such a default creates towards the contracting agency by their customers, especially if the customers are external to the agency. If, for example, I'm doing a construction project in a judge's chambers and the default causes him to be out of his chambers for an extra 6 months, he's going to be VERY mad, and obtaining financial compensation for the default won't help that at all. That being said, in most cases I don't think contract breach is an ethical issue. For example, if you have an early cancellation fee on a cell phone contract of $200, but switching to a new carrier will save you $300 over the period remaining on your current contract, I seriously doubt anyone on this board (I would hope) would consider cancelling the contract unethical. Now some may argue that is not contract breach, because the specific cancellation cost is already built into the contract, but contractual remedies are already built into our federal contracts. So, yes, I could see deliberate breach of contract being reasonable in some circumstances, but the specifics of the circumstances and how the breach was done would be the key issues for me in determining whether a breach was "reasonable."
  21. Since 52.217-8 is so ambiguous as to what exactly are the rates specified in the contract, one way to not exceedingly complicate the evaluation of this option may be to say that if 52.217-8 is exercised to cover performance for any period for which the Government had unexercised options available, then those unexercised option prices govern the 52.217-8 extension, plus any allowed adjustment made in accordance with 52.217-8. For extensions for the 6 month period following the last option period you can get separate pricing for those months and evaluate that as part of the award. What do all of you think of that? (Although it still really doesn't address 17.206(a) - but I don't think there is any way to comply with this GAO decision and 17.206(a) at the same time without just making the assumption it is likely we are going to exercise that option when you think you need to include it in a contract.) Mike
  22. Is anyone aware of a GAO decision re: appropriation availablilty where GAO stated that obtaining agency legal opinion wasn't sufficient to avoid liability for an action because GAO makes themselves available for appropriation decisions before an agency takes action? I've searched at length re: this issue and have been unable to find it, but I read that in some GAO document over the last year or so (although the document may be more than a year old). Any assistance is much appreciated! Thanks, Mike
  23. Note the publicly reported GSA Acquisition Alert re: this issue: http://www.federalnewsradio.com/?nid=35&sid=1661318 http://schedulesolutions.net/files/114885-...a_for_skeds.pdf
  24. FSS BPAs and open market BPAs are such different animals they should rename the FSS BPA to avoid confusion over this issue (not that and contracting or legal professionals should be confused by it since the differences are clear). I too don't see how an FSS BPA is not a contract.
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