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rios0311

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Everything posted by rios0311

  1. First Question: I've been a little confused for some time about what consitutes a multiyear contract. In general terms, I understand that buying more than one year's requirements without the use of options is considered multiyear contracting. However, how does that apply to multiple-year appropriations or no-year funds? In other words, if I award a contract for severable services and fund it with no-year funds or a multiple-year appropriation (such as two-year funds) with an 18 month period of performance (or even a 24-month POP), does this meet the definition of a multiyear contract and does it require establishing a cancellation ceiling? I know that the example contract I just described, if awarded with an annual appropriation, would meet the definition of a multiyear contract and thus be subject to the required approvals and the requirement for a cancellation ceiling. But does this apply to contracts funded with no-year appropriations or multiple-year appropriations? Keep in mind that I'm only discussing contracts for severable services. I ask this question because I've encountered conflicting information. I distincltly recall reading (either in GAO Redbook or the FAR) that an agency can have authority to enter into multiyear contracts by authority granted to it (or perhaps agency policy?) or it can have multiyear contracting authority by the type of appropriation it receives (multiple-year or no-year). Futher, if using the authority provided by the type of appropriation, the agency must obtain the same approvals required by multiyear contracting on the basis of authority granted to the agency. Second question: There is a statutory exception allowing contracts funded with annual appropriations to cross fiscal years, provided that the total period of performance does not exceed 12 months. This limits our ability to use annual funds remaining on contracts to extend those contracts using the the option to extend services clause, when doing so would result in a total period of performance that exceeds the 12-month statutory limit. But does this restriction apply to contracts funded with no-year funds or multiple-year appropriations? In other words, if I awarded a contract with a one-year period of performance, and funded it with no-year funds or a multiple-year appropriation, assuming that at the end of month 12 I have excess funds on the contract, can I exercise the option to extend services clause and fund the extension with the unused funds? Or do I need to de-obligate the funds and reobligate them for the extension? I'm not inquiring about scope issues here. I'm interested only in understanding the correct method of using these funds without consideration of scope issues for the moment. Third Question: Can I exercise an option in August (FY13) that begins next year (October FY14) using this year's (FY13) no-year appropriation? All the research that I've done states that the Bona Fide Needs rule does not apply to no-year funds, so the timing of the obligation does not matter. But I'm getting a lot of push-back on my interpretation from individuals who are in positions to know this better than I do. Have I misinterpreted the Redbook and the numerous decisions I've read? If this is an appropriate use of no-year funds, can anyone provide a link or a citation to a decision or text that would support taking this action?
  2. Looking back at some of the topics I've started, I didn't realize this one had continued after my last posting. For the benefit of anyone who happens to come across it, I'd like to clarify that the contractor did not comply with the notification requirements of the T&M payment clause and the CO was certainly not aware that the contractor had continued to perform beyond what the contract required.
  3. Thanks for clarifying those two items for me. It helps a lot. As alway, I appreciate it.
  4. Thank you Vern. It makes more sense to me that the ceiling price would refer to the current period of performance, but this still leaves my second question unanswered. And also, what makes sense to me isn't always consistent with what the FAR intends. Whenever the FAR uses the term "this contract", should I understand the term to mean the contract's current period of performance, exclusive of options, or does it have different meanings throughout the FAR?
  5. I guess it depends on the definition of "this contract" as used throughout paragraph (d) below: 52.232-7(d) Total cost. It is estimated that the total cost to the Government for the performance of this contract shall not exceed the ceiling price set forth in the Schedule. Does the definition the FAR gives to the term "this contract" mean the current period of performance, exclusive of options; or does it mean the entire contract period, inclusive of options?
  6. I'm referring to the not to exceed amount on a time-and-materials or labor hour contract. I believe it applies to cost type contracts too, but I'm not working on any. The term is used in the FAR. The Time-and-Materials Payment clause uses the term also.
  7. Apologies in advance if this has already been answered, but what is the appropriate method for stating a contract's ceiling price on a contract with multiple optional periods of performance? Should one state the ceiling price for the entire contract, inclusive of options, or state the ceiling price for the current period of performance? I've done it different ways, but I'd like to know if there is a correct way. I usually state a ceiling price and a "total funded amount" when I fund the contract incrementally. When I do this, I include language similar to: "Notwithstanding the contract's stated ceiling price, the Government's liability to the contractor is limited to $XXX,XXXX.XX, the total amount funded on the contract. The contractor shall not perform work under this contract that will cause it to exceed this amount, except at its own risk." When I have options I state the ceiling price as: "The Ceiling Price for this period of performance is $XXX,XXX.XX." If the contract is incrementally funded, I'll add "Total Funded Amount" language similar to the one above. But I always wonder if I should be stating the Ceiling Price based on the estimated value of the entire contract, inclusive of options.
  8. Thanks jlbdca. I based my original question on the understanding that the FedRAMP compliant contractor must have certain security protocols and policies in place that protect the agency's websites in the cloud environment. I thought that one security requirement might be the requirement to provide protection against DDoS attacks. That's why I was asking. The thread has provided me with the information I needed to proceed. Thanks to everyone who contributed.
  9. I'm in the process of negotiating a fixed monthly price for overage charges. We're also looking at modifying the contract to state the total allowed bandwith on an annual basis, rather than as a monthly basis. For example, rather than having 2TBs of bandwidth per month, we'd have 24TBs of bandwidth to use throughout the year. There are several options on the table. But to answer your question, I'd assume that if we established a limit and we hit that limit, the contractor might shut us down. In reality, they would probably not shut us down and would simply submit an invoice which we'd end up paying - one way or another.
  10. Thank you Vern. I will look at the contract again to ensure that the language I use in the modification is consistent with the language in the contract. And to provide an update on one other item, our general councel advised me that the plan that the vendor is offering (see original post) is not insurance, and therefore, is not subject to the restriction on purchasing insurance. Regarding my FedRAMP concern, I'll look to the CIO for information regarding FedRAMP requirements. I appreciate everyone's feedback!
  11. You're right; I do know better. Retention of the incumbent contractor employees isn't a requirement. Thanks for the correction.
  12. Thank you Don and Vern. I think I understand now. Let me know if I'm on the right track with the following language: The limit of the Government's liability to the contractor for bandwidth usage charges that exceed the bandwidth amounts listed in the schedule, and that result from DDoS attacks on the agency's websites or from other unanticipated surge events, is $XX,XXX.XX in any one calendar-month period. The contractor shall not provide the agency with bandwidth under this contract that would result in charges to the agency in excess of this amount, except at its own risk. Then I would require the program office to commit funds in the amount of $XX,XXX.XX, to be obligated if a contingency materializes into an obligation. I still have to research commitments, since it's not something I've worked with in the past.
  13. Vern, I read the section and it addresses my situation exactly. The contingency is the DDoS attack. So I'll discuss with the program office the requirement that they commit (or reserve) funds for this purpose. It sounds then that I don't need to establish a limit on the contract, because establishing a limit could cause the provider to shut us down if we exceed our usage during such an attack. We should commit funds for this purpose and obligate them should such an attack occur. Do I need to document the commitment in the contract file, or is that simply a Program/Budget issue?
  14. Vern, I'm going to look at my GAO Redbook now. Don, I did not understand what you menat by a commitment of funds. Did you mean that we should obligate to the limit?
  15. I don't agree either. I think there should be an exception that allows for the reinstatement (as opposed to extension) of contracts when due to an administrative error, the contract's period of performance is allowed to end prior to exercising an option. Of course, this delusion of mine would require that the contractor agrees to the reinstatement and the contract's pricing, terms and end-date all remain unchanged. I still fail to see the value in competing the action again when nothing material has changed. I wonder if anyone will be sucessful in persuading GAO to reconsider their 1985 position. Not to reverse their findings, but to apply new rationale to future instances.
  16. Thanks Don. I'll consult with our legal council, but let me ask you; had we established such a limit, are we required to fund up to the limit?
  17. Joel, I agree - the FedRAMP question is something that the IT people should know about, but since the whole FedRAMP thing is relatively new, they don't. I wasn't too optimistic on receiving an answer to that part of my question. And the insurance question might be more suitable for Legal. But the rest of my question is acquisition specific. I'm simply asking how might I fund this contract so that I don't run the risk of incurring an Anti Deficiency Act violation if our usage sky rockets in a given month. I don't have any way of anticipating the amount of bandwidth we might use if we were attacked.
  18. While researching a different subject I read FAR 52.237-3 - Continuity of Services. I wasn't aware of this prior to reading the clause, but paragraph ( c ) of the clause provides for compulsory transfer of the incumbent's personnel to the successor contractor, provided that 1) the successor wants them, and 2) the employees are amenable to the change. Here is the language. ( c ) The Contractor shall allow as many personnel as practicable to remain on the job to help the successor maintain the continuity and consistency of the services required by this contract. The Contractor also shall disclose necessary personnel records and allow the successor to conduct on-site interviews with these employees. If selected employees are agreeable to the change, the Contractor shall release them at a mutually agreeable date and negotiate transfer of their earned fringe benefits to the successor. So requiring a successor to retain the incumbent's employees in accordance with the provisions of 52.237-3 should not create a problem. I think then that this is a requirement that can be included in solicitations. One other thing; some contractors have their employees sign non compete agreements. Does this clause language trump an incumbent's no compete agreement it may have with its employees?
  19. I have an IT contract for cloudbased webhosting services among the many contracts I've inherited recently. IT contracts are new to me, so I don't know if the contract was properly written or not. The contract provides the agency with a definite amount of bandwidth every month. During a distributed denial of service attack (DDoS), the amount of bandwidth the agency uses can easily exceed the amount of bandwidth that the contract allows for. The subject contract provides for overage charges for whenever the agency exceeds the amount of bandwidth provided by the contract on any particular month. My concern with this scheme is that the contract currently does not provide funding for overage charges incurred by the agency. In fact, I have to modify the contract to add funds in order to be able to pay last month's invoice because it included overage charges that the agency had not anticipated. I assume that there should be funding on the contract to cover the overage charges, but how do I estimate something that can vary so significantly from month to month? We have no advance knowledge of when DDoS attacks will occur, or of how many attacks might occur in a month. Since the amount of the overage can be so significant, how do I go about keeping the contract properly funded? Is there a better or more common method of setting up the contract? Another concern I have is that the provider has offered us a type of "protection" plan that for a monthly fee establishes a fee cap on the amount of overage charges the agency would incur during a DDoS attack. The "protection" plan requires the agency to request a service credit after the agency has suffered a DDoS attack. Upon receipt of the agency's request, the provider would credit any overage charges that are in excess of the fee cap established by the "protection" plan. The "protection" plan they're offering seems to have - to some degree - the effect of insurance. Is this type of plan/service considered insurance? If so, are we allowed to purchase these types of "protection" plans? Or is the Government's limitation on purchasing insurance limited only to insurance provided by insurance companies? My last concern with this contract is that the contractor is a FedRAMP compliant cloud service provider (CSP). That's why the agency chose the contractor. The agency's CIO was surprised to learn that bandwidth overage charges could be incurred by the agency during a DDoS attack under this contract. The contractor claims that it provides the agency with DDoS protection (through a third party), but that the additional bandwidth required to keep the agency's websites available during a DDoS attack is not included in the contract price. Does anyone know whether or not a FedRAMP compliant CSP is required to provide DDoS attack protection and additional bandwidth at no additional cost to the Government when there is a contract in place for cloud services? Or is there a more common method the industry employs to allow for excess bandwidth usage in government contracts without additional charges?
  20. Perfect reference. It's exactly what I was looking for. It answers all of my questions. Thanks Metteec and Vern.
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