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rios0311

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Everything posted by rios0311

  1. Thank you Don! Makes sense and makes my job a little easier. No need to wait around on the contractor's signature.
  2. I've always issued bilateral modifications when adding funds incrementally to a contract. I do this because I want the contractor to acknowledge that it can continue working up to the new amount and that it knows that any work performed beyond the funded amount is at its own risk. I've got someone telling me that this type of modification can be made unilaterally. I can see where this person is correct, but I'd like to know what the proper method is. Should a modification to add funds incremetally to a contract be made unilaterally or bilaterally.... or does it even matter?
  3. Joel, my apologies for not providing sufficient information up front. I asked the question to gain knowledge on what options I might have in the future when similar situations arise, and to see if there was any way of "fixing" this contract (there isn't). I don't usually work anything this small, but it landed on my desk so I thought I'd ask. Thanks for the GAO reference, Metteec.
  4. When I wrote my post #25, I was responding to Don Acquisition's post #20. I had not seen the 4 responses that followed because they had carried over into page 2. Amthomf, yes, each POP is under the SAT. Thanks. Vern, I am in a position where I could attempt your suggestion, which is what I wanted to do, but a closer look at the contract revealed that none of the options were priced. I think there are too many issues with the contract to extend it. Since the requirement is between $15k and $25k per year, I've placed the required notice in a public place. I need to display the notice for 10 days. Once the 10 days is up I'll award a 1 year contract to the previous contractor and I'll compete a new one with options later down the line. Vern, your feedback helps a lot. I appreciate it and I appreciate everyone elses feedback too.
  5. Exactly. My question is why is it subject to CICA? It was already competed once. What value is obtained by holding an additional competition for the same exact services that, were it not for an administrative error, would be provided by the original awardee? The only period of performance that would change would be the period that should be in effect. It would be shortenend. The contract end date would not change, hence the contractor would not obtain additional work. Thanks for trying Don. I think I'm just digging for the original intent of the Act. Was it meant to apply to situations such as the one I described? No answer required. Thanks!
  6. I'm not going to keep beating this subject, but I find it difficult to accept that we would have a process in place for ratifying unauthorized committments, but there isn't a process in place for correcting this type of an administrative error.
  7. Yes Don, but I would make the direct award conditional upon the original pricing. If the contractor felt compelled to change its pricing, then I wholeheartedly agree that a new competition should be held. I'm discussing a case in which nothing would change from the original award. The new contract would pick up where the old contract left off.
  8. Joel, I had distinguished between extending the contract and making a direct award. I know I can't extend the present contract because it ended. I wanted to know if there is any way of awarding a new contract to the same vendor without holding a new competition. For example, could it be sufficient to follow a procedure similar to the procedure at 49.102(d) reinstatement of terminated contracts - and determine in writing that awarding the contract without competition is advantageous to the Government? The period of performance would have to be realigned, but they would not exceed the length of the original contract. For example, base POP would be date of award through May 6 and so on. The point is, I understand clearly why we must compete new requirements or new work. What I don't understand is why we can't correct an administrative error by awarding a contract to the same contractor without being subjected to a new competition. It's seems like a silly requirement. There is no new work involved. How is it unfair to anyone? Like I stated previously, it seems punitive. If the services are required, the contractor has been performing satisfactorily, program had the money to pay for the option, but someone dropped the ball and failed to realize that the end date had passed and the option hadn’t been exercised, then why can't the error be corrected? Why should the Government be required to spend the resources involved in competing a new requirement due to what amounts to an administrative error? I don’t see the sense in it. In fact, is it expressly prohibited somewhere? Or is it an over-interpretation? I would argue that it could be reasonable to award such a contract and that doing so would be within the spirit of the law.
  9. I don't believe I indicated that "I don't think I can make a direct award". I was asking why I couldn't make a direct award. And I don't think I mentioned negotiating changes to all remaining performance periods. Maybe my use of terminology is incorrect when I stated "make a direct award". What I meant was an award of a contract without competition. I think the difficulty I'm having with this is that maybe I've placed too much weight on what the original intent of the parties was. The public had knowledge that the Government wanted a contract lasting up to 5 years. The public was given the opportunity to bid on it. Once a selection was made, Both parties intended to engage in a contract with a 5-year period (including options). An administrative error now seems to override the original intent. I just wanted to know why an error can't be corrected.
  10. Loul, you're referring to two different issues. Option 2 was not a valid exercise of an option because option 1 wasn't exercised while the contract was in effect. So both options are invalid. The issue regarding the required notices could have been worked around as long as you, the contractor, agreed to waive your right to the notice.
  11. Retreadfed, I didn't see where Don asked whether or not the contractor was still performing the contract. But no, the contractor is not currently working.
  12. I understand that, but I'd like to know why, if we contemplated a performance period of up to 5 years, and all offerors were aware of that fact, why can't we correct the error (of not exercising an option on time) and award a contract to the same contractor for a period of time equivalent to the time remaining on the original award? We wouldn't be adding any new work or giving the contractor any additional money. We're only buying the services we contemplated in the original award. How does making a direct award to correct an administrative error a violation of CICA? This doesn't seem like it would be unfair to contractors because had the error not been committed, no one would have the opportunity to bid on the contract until the last option period ended. Does this serve a purpose? It seems punitive at the least. I would like to hear a solid rationale for why I can't make a direct award to the contractor, other than "because it's unfair" or other than "because you're required to".
  13. Thanks Don. I've done that in the past. I've had the contractor waive their right to a preliminary notice, but in this case, the base period of performance has passed. It ended about 45 days ago. I don't think I could extend this contract because it has ended. I don't think the contractor's waiver will help with the period of performance that's ended already. Or will it?
  14. I recently transferred from a large agency, to a small, independent agency. I've encountered several instances of contracts structured with optional periods of performance, but the options were not exercised on time and now the contracts are "dead". A lot of effort went into awarding these contracts, even if some of them were relatively small. I've explained to the program offices that the contract has ended and since none of the terms and conditions of the contract are in effect, there is no provision or authority for me to exercise an option or extend the contract. So the result is that although a contract term of up to 5 yeas was contemplated, the contract is lost after one year of performance because someone wasn't paying attention (contractor, COR, contract specialist, CO, etc.). I understand that the contract is expired, but is there anything that I can do short of recompeting the requirement? Let's assume that these are not 8(a) contractors and the services are not so unique that they couldn't be provided by any other contractor. Is there any legitimate way of extending the contract or issuing a new contract to the contractor without having to compete it? Would the original contemplation of time (5 years) be sufficient to justify a direct award?
  15. Thank you for the information napolik. I did not direct the question to you initially because Vern had stated you were correct. I wanted to know why it was correct to issue the change order, but now you've clarified that. Thanks! It seems that contracting for ships can be quite complex and challenging. I spent a few years on an aircraft carrier during my Navy days in the '90s and never considered the intricacies that went into having contractors working onboard.
  16. Thank you Joel. So if I understand correctly, the change order that napolik suggested does not directly extend the period of performance of the contract. Instead it directs the contractor to perform the additional work, but since this additional work will require additional time to complete, the Government is required to make an equitable adjustment to the date of completion. Would I be correct in assuming that the equitable adjustment would require additional consideration for the added work? Also, if the contractor was at fault for the delay (not completing the repairs prior to the end of the POP), should the Government seek some sort of consession from the contractor, such as in the price it'll pay for the services? Now I have another question; napolik stated that "If you have not accepted and paid for all the line items of repair work that were due to be completed by 15 March, the contractor cannot object if you issue the change order adding the additional work and extending the date(s) for the completion of the work." Why can't the contractor object to a change order issued after the period of performace on the contract ended? Is it because the contract hasn't been discharged, thus still allowing the CO modify it?
  17. Vern, you stated that napolik is correct, but I'd like to ask if the proper way to accomplish this is through the issue of a change order, as napolik stated. Can a unilateral change order, under these circumstaces, be used to extend the period of performance of a contract? This has been discussed in the past on Wifcon and I clearly remember reading that change orders cannot be used to extend the period of performance on a contract. Period of performance isn't mentioned in the change order clause as an element of a contract that can be changed unilaterally. Could you clarify?
  18. We're in the early stages, so we haven't narrowed them down. We're still working on the statement of work because we're combining several requirements. Normally I could weigh heavily offerors' past performance and previous experience, but in this case, we're going to compete this under a small business GWAC. The current large business won't be able to compete. We usually evaluate past performance and price, along with their technical approach. The technical usually has 3 subfactors that we evaluate - the technical capability, their proposed personnel and a task management plan.
  19. It is typical for government employees to get accustomed to on-site contractor staff, especially when they've been providing services under contract for an extended period of time. By extended, I mean at least one year. And I'm not referring to non-exempt contractor employees covered by the Service Contract Act. I'm specifically referring to exempt employees with formal educations, extensive experience and training; i.e., professionals. Executive Order (EO) 13495, “Nondisplacement of Qualified Workers Under Service Contracts,” signed by President Obama on January 30, 2009, became effective on January 18, 2013 and the associated clause has made it into the FAR (FAR 52.222-17). I think part of the rationale behind this new statute is simply to keep people who have jobs employed. I don't foresee this being terribly problematic for the incumbent contractor for several reasons. For example: 1. Per the clause, the incumbent has the option to retain its employees; 2. The cost and effort required to recruit and train a non-exempt employee is likely lower than the cost and effort required to recruit and train a professional; e.g., software engineer, business consultant, etc...; and 3. Often times the contractor has no work for its employees once a contract ends. However, I'm working on re-competing several follow-on contracts for services that require non-exempt contractors (mostly IT). Each of the customers I'm working with has stated that they wish to keep the current contractor staff in place even if the soon-to-end contract is awarded to a different contractor. They say that the learning curve is steep and that training will take months. I'm used to hearing this. In order to address this, language such as the one that follows has begun to appear in some of our solicitations. I believe it was drafted by an attorney: RIGHT OF FIRST REFUSAL The Contractor and its Subcontractors shall in good faith offer those employees (other than Key Personnel) employed under the predecessor contract whose employment will be terminated as a result of the award of this contract, a right of first refusal of employment under this contract in positions for which the employees are qualified. In evaluating proposals one of the things we consider is an offeror's staffing plan. With this language in the solicitation we would consider it a plus if their staffing plan includes retention of the current staff. My concern, and the reason for this topic, is that I'm not sure that we should be doing this on a service contract for professional services. At least not the way I'm seeing it done. In contracts covered by the SCA both the incumbent's contract and the successor's contract contain the appropriate language. So both parties are aware of this and no one can claim wrongdoing or poaching. But in my scenario, the predecessor contractor has no knowledge that we're requiring (see use of the word "shall" in the italicized language above) potential successors to try to poach employees from the incumbent contractor. The word "poach" may be too strong, but I'm trying to illustrate my point. I can see were this is fine if the contractor has no use for these individuals after the contract ends, but generally this type of employee is considered a valuable asset to a business. A business may need these individuals who possess specialized knowledge and education for other projects. Without them, their proposals may not be as strong. To lose their intellectual capital at the behest of the government with no forewarning could spark some anger at the least. Is this simply the nature of the game, or are there ethical or legal issues that we haven't considered? If we're including this language in solicitations, should we notify incumbent contractors that we're requiring this of offerors? I don't have the answer to these questions, so I'd like to hear some different point of views before including this language in my solicitations.
  20. You seem to be asking two different things, is this correct? Does the system I use allow me to deobligate funds from the base IDIQ and re-obligate the same funds, or does my system allow me to issue a $10k task order and pull $1,000 from the base IDIQ contract for funding purposes, without the need to actually deobligate the funds from the base? Either way, I do not have the answer to this question, but I will look into it. We use a system called C.Award.
  21. I have a fairly straightforward question regarding the use of funds obligated against an IDIQ contract at time of award when no order was issued concurrently with the contract. If, for example, I establish a minimum ordering amount of $1,000 on the base IDIQ contract, how do I use those funds when I finally award a task order? Do we deobligate the $1,000 from the base and obligate $1,000 on the task order? Or do we simply leave the funds on the base and find new money for the task order? I ask because I don't think I can pay an invoice for an order using funds obligated against the base without first "moving" the funds from the base to the order. If the proper method is to deobligate the funds from the base and then obligate an equal amount of funds on the task order, what happens if the funds used on the base were part of an annual appropriation that is no longer available for obligation? In other words, suppose the base IDIQ is awarded on September 1 FY'13 and funded with an FY'13 annual appropriation, then a new order is awarded on October 15th, FY'14. Although the funds on the base are good until September FY'14, one would not be able to use those funds once they're deobligated for the purpose of "moving" them to the task order. Once deobligated in FY'14 the funds are no longer available for use. Is the money "stuck" or "lost" on the base? One last consideration; how is this reflected in FPDS?
  22. Not trying to beat a dead horse, but I came across an answer to a question that someone posted to Ask a Professor. The question regarded the exercise of options. In the answer, the "professor" states "the Government cannot then exercise an option period which commences affter a lapse in performance." The "professor" also states "Once there is a break in the performance period, the contract has terminated by operation of law and cannot be revived." Unfortunately, this "professor" did not provide any citations or references to statues or GAO decisions that might support to his/her answer. Do you have any idea of where this person may have gotten his/her information from? I've included a link to the question and answer. The text in question begins in the third paragraph of the answer. https://dap.dau.mil/...estionID=107037 What operation of law is he/she referring to?
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