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Everything posted by Mike_wolff

  1. Thanks - our conclusion too was that we can't waive the requirement. Thanks for everyone's time in responding.
  2. Does anyone know if there is a waiver process to the payment protection requirements in 28.102-1(b) (please see below). 28.102-1(a) references a waiver option, but (b) doesn't appear to, but given the small dollar amount I find it hard to believe there isn't one. I'm still researching this and my legal office is my next stop, but was hoping someone here might have a quick answer - thanks!!! Mike 28.102-1 General. (a) 40 U.S.C. chapter 31, subchapter III, Bonds (formerly known as the Miller Act), requires performance and payment bonds for any construction contract exceeding $150,000, except that this requirement may be waived— (1) By the contracting officer for as much of the work as is to be performed in a foreign country upon finding that it is impracticable for the contractor to furnish such bond; or (2) As otherwise authorized by the Bonds statute or other law. (b)(1) Pursuant to 40 U.S.C. 3132, for construction contracts greater than $35,000, but not greater than $150,000, the contracting officer shall select two or more of the following payment protections, giving particular consideration to inclusion of an irrevocable letter of credit as one of the selected alternatives:
  3. Mike_wolff

    IFB for Construction Issued Low Bid Under SAT

    I question if you can remove it - without researching further, I would say you can't, because the prescription states that clause is to be inserted when the contract is EXPECTED to exceed $150,000. See 28.102-3(a) below. The fact the bid came in under $150K doesn't change the expected cost, and since some form of payment protection is still required, how much money would be saved? It might not be worth the work to modify and negotiate the change. However, interesting the clause already addresses contracts coming in under at $150K or less. 52.228-15 However, it doesn't say what to do in such a situation - and for construction between $35K and $150K alternative payment protection is required. Did your IFB include 52.228-13 Alternative Payment Protection? If not (and I'm guessing not given your GCE) it's a very interesting issue since the above quoted part of -15 has the "unless the resulting contract price is $150K or less, but doesn't then require -13. 28.102-3 Contract clauses. (a) Insert a clause substantially the same as the clause at 52.228-15, Performance and Payment Bonds—Construction, in solicitations and contracts for construction that contain a requirement for performance and payment bonds if the resultant contract is expected to exceed $150,000.
  4. First there will have to be a huge investment in the IT budget. We still don't even have an electronic offer system in my service - to go to full AI it will take that and a LOT more. The biggest hurdle would be on best value tradeoff decisions, but there's ways (some for better, some for worse) you could automate that as well.
  5. Right, just some some form of payment protection. I was hoping to find a waiver to ANY form of payment protection for work between $35-150K.
  6. I'm looking for a way to waive the payment protection requirement required in 28.102-1(b), for work at a domestic, government-owned property. We have emergency repairs needed and don't want to delay the work waiting for a contractor to get payment protection (although I know in many cases a payment bond might take only 1-3 days to get, we want to streamline this as much as possible). Since I've posted the above, my legal counsel has said they have found no way to waive this requirement. I'm hoping someone might be able to say otherwise.
  7. Mike_wolff

    Wifcon.com: My Legacy; My Albatross

    Bob - I missed this post last year, so Happy 16th to Wifcon! Thank you VERY much for running this site - I echo what has been said above, this site is invaluable to the federal contracting community.
  8. One of my colleagues says that there is such as thing as "single-phase design-build" or "one-step design-build" procedures. I've searched and can find no reference to such procedures. However, I can find no reference to any such method in the FAR, and have only found one FedBizOpps posting for such a method (https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=db8d33802c5af642bf9609236997d516&_cview=1&cck=1&au=&ck=) 41 USC 253m "design-build selection procedures," states that: Unless the traditional acquisition approach of design-bid-build established under sections 1101 to 1104 of title 40 is used or another acquisition procedure authorized by law is used, the head of an executive agency shall use the two-phase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection B of this section that the procedures are appropriate for use. For design-build projects that would require a "substantial" amount of construction, I think that, in accordance with FAR 36.601-3 (see below for reference), subpart 36.6 must be followed, unless the two-phase design build process at 36.3 is followed (actually, I believe that 36.601-3 should include a reference to the allowability of procuring A/E services under 36.3). 36.601-3 states the following: ? When the contract statement of work includes both architect-engineer services and other services, the contracting officer shall follow the procedures in this subpart if the statement of work, substantially or to a dominant extent, specifies performance or approval by a registered or licensed architect or engineer. If the statement of work does not specify such performance or approval, the contracting officer shall follow the procedures in Parts 13, 14, or 15. My colleagues position is that a single-phase D-B would be allowable under FAR Part 15, but I disagree due to 36.601-3's requirement to follow 36.6 if a "substantial" amount of A/E work is required. Does anyone have any thoughts about this, and/or experience with a single-phase/one-step D-B process? Thanks in advance for your comments! Mike
  9. We are having a similar discussion in my agency right now, and I find that a common point of confusion is the difference between SOLICITING without funds being currently available, and AWARDING without funds being currently available. 52.232-18 applies to contracts awarded without funds being available, not a solicitation being issued without funds being available. I'm not aware of anything that prohibits issuing a solicitation without funds being available. I know it is not preferred, but as long as you put potential offerors on notice that funds are not currently available, and the solicitation may be cancelled without an award, I don't see how that is prohibited. If someone is aware of a law, reg, or court decision that says otherwise please let me know as this is a hot topic. Thanks!
  10. Mike_wolff

    What are you reading?

    More Guns, Less Crime by John Lott, Jr. (3rd Edition) An excellent statistical analysis of various gun laws, both restrictive and permissive, and their resultant impact on crime.
  11. Mike_wolff

    Contract Modification Within Scope?

    One of the areas you should consider is "whether the change could have been anticipated by offerors." ("Administration of Government Contracts," 4th Ed, page 386.)
  12. Mike_wolff

    Conflict of Interest

    I was at the Nash & Cibinic Report Roundtable a couple of weeks ago and one of the presenters (I believe it was Marcia Madsen, but it may have been someone else) mentioned that there was a recent surprising court decision regarding conflict of interest with a major defense contractor, and that the decision was surprising because the contractor was speaking to the Government as an industry rep, but apparently that was the only contractor the Gov did market research with and the court concluded that the contractor was prohibited from competing on the procurement they gave comments on. I may have the facts off a little on this, but does that ring a bell for anyone? If so, would you be able to provide the name of the court case? Thanks in advance! Mike
  13. Mike_wolff

    Administering BPAs, exercising "options"

    Just so you know, in the opinion of many GAO is off-base on their "BPA is not a contract" when that BPA is done against a GSA Schedule. See this discussion here: http://www.wifcon.com/discussion/index.php...pic=258&hl=
  14. Mike_wolff

    "You're not supporting the warfighter".

    "Never wrestle with a pig - you'll both get dirty but only the pig will love it." That being said, in a case where you may have not already done so, I think it's important to explain why you are doing what you are doing, and in the vast majority of cases I've been involved with where someone wanted us to buy something the wrong way, I've been able to find a correct way to accomplish the same - or even better - result.
  15. Joel, I'm not sure if you're are speaking to a general audience with the above post, or if you think I'm trying to be one of the people fitting square pegs into round holes, but let me assure you that I definitely am not. Sadly, COs usually do have to follow (although not blindly - often our eyes are bulging at the stupidity) "dumb" rules - because they are usually based in law. No one has given any CO the right to ignore laws or regs they think are dumb. There are a lot of "dumb" rules Contracting Officers have to follow. We can - and do - work to change them, but just like one man's pork is another man's job program, one man's "dumb" is another man's great idea, so actually getting them changed is rare. This IDIQ issue is a perfect example. I know that it's been written about in N&CR many times, but nothing happens. Performance-based contracting is another one - it's pushed repeatedly but even OFPP has stated (I don't have the memo in front of me so I'm paraphrasing) that they can't prove that it actually works. Mike
  16. Vern and Joel, Thanks much for the renewed discussion on this issue. I believe it has confirmed my understanding that we do need to have binding unit prices established in the base contract that are used in the competition of future task orders. That always seemed relatively clear to me except that the proliferation of contracts that do not comply with that that started to make me doubt my understanding. I do also agree that it may not make sense in many ways to have such a requirement (although in other ways it does), since when does federal procurement laws and regs have to make sense in order to be required to be followed. Mike
  17. 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?
  18. Mike_wolff

    No-year vs Multi-year appropriations

    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.
  19. 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
  20. 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.
  21. 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
  22. 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
  23. 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.
  24. Mike_wolff

    How to deploy as a civilian contract specialist?

    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.
  25. 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