ipod24

I appreciate the response. Vern in response to your question>> (1) The agency I work for DOD-Army. (2) I have read PGI 217.77 - Over and Above Work. My agency would probabbly lean more towards a contract modificaiton (SF30). Now, just a side question to this... I know what is explcitly stated PGI 217.77 and DFARS 252.217-7028; however, would issuing a Task Order (TO) (SF 1449) specifially to just capture just O&A (e.g., O&A CLIN) requirement allowable? Possible occurance is that the requesting unit would want to consolidate all the O & A work into one Task, due to funding - they may not have the funds available when the O & A work was discovered, thus, doing a one time shotgun effort. I apologize for making this complicated just want to know my options.

I am in need of some clarification, advice, input regarding a procurement and the contemplation of using Over and Above hours. My requirement is vehicle maintenance services. Anticipated contract type is requirements with fixed pricing. However, due to the nature of the requirement, there is the factor of unscheduled repair. Prior procurement had captured unscheduled repair as its own CLIN (called labor-hour CLIN), as the materials were purchased by the Government/Government provided. I would like to deviate from this concept as I feel the labor-hour CLIN does not define the intent of the unscheduled repair. Hence, the Over and Above CLIN in lieu of a Labor-hour CLIN would be more suitable. My concerns: 1. Based on previous threads and blogs about Over and Above work. Can this be funded up front with a Not To Exceed (NTE) on the dollar value? 2. Can we in some respect, negotiate the rate on labor (FTE, fully labored, the ODC, etc.) that would be associated with the efforts? So that when we do have to use the O & A CLIN we can already anticipate the price/total cost of the effort based on the labor hours needed to perform the services that was not anticipated on the fixed price CLIN? Now for each task order, prior to use of the O & A CLIN, that the COR negotiate with the contractor on how long it would take to get something fixed. Once they come up with the hours needed. Then the COR would factor those hours in with the originally proposed labor rates as agreed upon during award.

I apologize for not providing a response right away... Reasons I brought this topic up is that prior to the memo (USA001601-11-DPAP - Contract Line Item Pricing Integrity) I have encountered numerous contracting agency both CONUS and OCONUS (e.g., Afghanistan) awarding Fixed Price contracts to fulfill the emphasis on awarding FP contracts; however, as stated earlier, some (1102s) have found "work around" on this which seemingly functions like a T&M/Labor hour contract, where we quantify each invoice base on services rendered for a time period (e.g., daily, weekly, monthly). For example, a trucking company invoice would be base on how much load they’ve delivered for a month. The “load” encompasses labor, weight of load, type of load, and the travel time or delivery time. After each delivery, contractor send its invoice to the COR; COR review and approve invoice in WAWF – invoices vary base on the factors addressed earlier. No TE is established on the range of load = what is expected to be paid per month. Basically, with the exception of the contractor sending its invoice on a monthly basis, each invoice is not a set amount. Initially, I understood this process, and am confident that the COR is maintaining oversight. However, it got me thinking after the Army Auditing Agency (triple A) brought about in their report that this process on contracting oversight was risky. If you think about it, the KO ultimately has the overall responsibility so why isn’t the KO not maintaining oversight on this as well even if it is just checking the invoice prior to COR approval, as what MegB stated? Overall, I just want to get a feel for other KOs thought on this matter – on contracts that are awarded as FP but are not absolute FP, in my opinion. I am not construing anything that the COR is unethical, I am just looking at it from a risk perspective.

I have question regarding WAWF process for paying invoices under fixed price type contracts. From my research it seems the responsibility for approving invoice can be delegated to the COR. However, what if the contract, through our wonderful contracting ideas (example: to avoid classifying a CLIN as a LH CLIN we developed a TE which breaks down the Labor categories, and we tell the contractor to invoice per what labor was use... thus the CLIN was developed where Quantity = the dollar amount for the CLIN only it is address as a number; and the U/I = $1. Which captures a so called fixed dollar amount for that CLIN) -- please let me know if this sounds confusing. Anyways, it seems this approach kind of reflects a LH CLIN only we called it fixed. Having stated all this, I feel this should have oversight by the KO; thus, the KO should be the final approval when the contractor invoices in WAWF. The COR should just review the invoice for accuracy and consistency with the terms and conditions of the contract. I can understand, if the contract was a true fixed price contract with a weekly/monthly CLIN(s). However, to me when a contract that is identified as FFP, but in reality the invoicing is broken down by units per $1, and every invoice for that month is not fixed (i.e., set dollar amount) -- there seems to be a high risk of fraud or negative outcome... I would personally require a KOs approval rather than the COR for these actions. So my question is: Are there any FAR citations, policies that identify approval of invoicing? If COR can approve Fixed Price type contract invoices -- is it still acceptable to have the COR approve invoice per the example of fixed price contract I had addressed?

It is O&M Funds...

I was faced with an excuse by an Administrative Contracting Officer about the reason why some contracts with Option years were not deobligated at the end of each period of performance (POP) (i.e., base year ends, excercise 1st option period, deobligate base year provided all invoices under that POP has been accounted for). The excuse was "because they are bulk funded"... I've not heard of this term buld funding, but based on my research it is defined under FAR 13.101((4) Use bulk funding to the maximum extent practicable. Bulk funding is a system whereby the contracting officer receives authorization from a fiscal and accounting officer to obligate funds on purchase documents against a specified lump sum of funds reserved for the purpose for a specified period of time rather than obtaining individual obligational authority on each purchase document. Bulk funding is particularly appropriate if numerous purchases using the same type of funds are to be made during a given period. So to me bulk funding does not necessarily have relevance to why we cannot deobligate funds from previous POP provided all invoices were accounted for that year. If appropriated funds were available it has to stay within the alloted time period - In this case a year.... Am I understaning this correctly?

Greetings, I wanted to inquire on your knowledge regarding requirements/contract practices under contingency operations. I am currently deployed here in AFG, and am working on a contract that requires Private Security services. The situation I have: A MATOC-ID/IQ type contract that requires PSC services in order to perform their job. Thus, whenever a company (i.e., Prime) is selected under the MATOC-ID/IQ contract they subcontract their PSC services. With contingency operation, there is a requirement for personnel working on USG to load SPOT information with the exclusion of those who perform service(s) within < 30 days or do not require Government access, arming, etc. Being that the Government does not have privity over subcontractors we cannot necessarily enforce them to report their personnel in SPOT. We can, however, advice/recommend the Primes who subcontract to these PSC contractors - but not necessarily mandate (let me know if I am wrong on this)... Anyways, my question is: 1. Can a PCS service exist or any form of business exist under contingency operation, that solely does its business by being subcontractors of potential Prime contracts awarded by the Government. 2. Is there suppose to be some form of contract/agreement between, under this scenario, PSC and the Government allowing to perform PSC services for the Primes rendering service to the Government? 3. Is there a unique requirement for Private security services as it pertains to contracting, but more so contracting under contingency operation - in this case here in Afghanistan. Your reposes/opinion on this issue would be greatly appreciated!

Thank you Vern. I would be more than happy to address futher clarification on my initial post. I may have held back more information than I had put forth and definitely can see the vaugeness on my post - I was just concern that I was going to create a novel . So please fire away.

The Youth Ministry service program is spear headed by the Garrison Chaplain. They want to provide Youth Ministry services to the Protestant, Catholic community, and other denominations. So yes, religious services for the Installation chaplains ? no specifically targeting one denomination.

I need some help/opinion? I have a service contract that is currently performed by; let?s call it company A for Youth Ministry services. Company A is a not for profit organization. This acquisition was previously executed under SAP; however, due to an increase in demand they have upped the number of personnel/contractors performing the services offered. Thus, the follow-on contract is anticipated to be done under FAR Part 15. Now, all past actions aside, when I was performing my Market Research and digging for information regarding this service? I found out that the Government, paying for Contract A?s service, is also supplemented by three other not for profit organizations ? personnel?s salary to perform Youth Ministry service on base. I?m not sure if this is a subcontracting ?phenomenon?; I always thought the Prime (i.e. Company A) pays its subcontractors not the other way around? Question: Is this even legal/allowable? If so, what governs such actions? The other issue I have is that the Government is taking in donations during its Sunday?s Mass? and at times they have used the funds collected to pay Company A exclusive of the payments under the contract, which from a contract perspective isn?t captured. I?ve read AR 165-1, Chaplain Corp Activities and nothing from my reading states these actions whether it is or is not allowed. Question: Is this right? From a contracting perspective cost that is accrued through the performance of the contract should be accounted for; however, this plus the supplementation from other not for profit organization isn?t actually captured in the overall total cost of the contract. Finally, as stated earlier Company A provides Youth Ministry services? the three other not for profit organization has its philosophies applied to Company A?s method of providing services. To be more specific, the three not for profit organization are (Youth for Christ, Young Life, and Young Teen) all which has no formal affiliation with the Government, but render service to the Government openly. I am sure there was some form of agreement between Company A and the three other not for profit organization to permit its philosophies to be applied under Company A?s representation. Mind you this approach has been going on for several years? My approach was to set this under a competitive acquisition? However, let us say I did? If some other company did manage to get this requirement they would have to establish the same form of agreement with the other three not for profit organization to maintain continuity to the Youth Ministry programs. If you think about it if it was awarded to other than Company A, the total cost of the contract may be higher? depending on whether and if the three other non for profit organization supplement pay of the awardee. Question: What are your thoughts on these? * AR 165-1 ? Specifically does not allow personal service I am just perplexed at the overall state of this requirement and I apologize in advance for this lengthy inquiry.

Thanks napolik for those informative GAO cases!

I have an inquiry that is somewhat aligned to this thread... Suppose we received proposals and the Government, while evaluating each proposal to determined an awardee, suddenly had an epiphany [for lack of a better word] and realized that how they went about approaching the solicitation (e.g., evaluation criteria) had numerous mistakes. The Government then cancels the solicitation and subject to fixing its mistake will re solicit ? do the companies that proposed have the right to claim proposal cost? I?ve asked this with my fellow peers and they say no ?it is the cost of doing business?. When I look at FAR 33.104 (h) (1) If the GAO determines that a solicitation for a contract, a proposed award, or an award of a contract does not comply with a statute or regulation, the GAO may recommend that the agency pay to an appropriate protester the cost? Under Title 28 USC 1491((2). - To afford relief in such an action, the courts may award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs. The Government did not have a reasonable means of cancelling a solicitation in my view ? they pretty much cancelled it because it failed to analyze its numbers (IGE, lack of historical data, etc.), evaluation criteria due to lack of attentiveness. Had it been due to reasons like not being able to determine fair and reasonable pricing then I believe the cancellation would have been a valid one. So can the contractor claim proposal cost? Or is it just the mere idea that ?it is the cost of doing business??

First off, I most definitely want to thank you all for providing insightful and educated feedback on matters/situations I have posted in the past. It has continuously broadened my knowledge in the Acquisition community. Vern, thank you for being candid with your responses, and to the others as well - much respect. So going back to this situation on my requirement; just an update... regarding the two proposals with a huge variance in pricing (see past postings for information) -- the incumbent who was high lost the contract, and after providing a post-award debrief filed a protest claiming the awardee could not possibly do the job at the price it had proposed. Knowing I have done all I can (1) Requested a Determination of Responsibility (2) Performed price and cost analysis (3) Past performance evaluation, among other actions to determine if the awardee posted a risk to the contract... I guess it was bound to happen. This is kind of a downer... even if you think you've done all you can to maintain a steady acquisition process... there are always factors/events/actions that you cannot control... Keep you inform on the outcome as far as the incumbent?s argument on the matter and whether the protest will be sustained or not.

Greetings, I was reading this discussion: Unreasonable Price, Responsibility Determination, 8a Contractor http://www.wifcon.com/arc/forum587.htm, which I found to be very insightful. As I relate this discussion to a current situation I have on procurement for a service which was done competitively, LPTA ? Two proposals were received one from the incumbent contractor. The incumbent contractor propose price was significantly high (42% above the IGE), the other contractor proposed prices was significantly low (-38% below the IGE) -- the IGE is substantiated. Now both contractors are Large Businesses. The following actions were done: (1) we had requested data other than certified cost or pricing data, which both contractors provided. (2) We held meaningful discussions with both offerors regarding its price proposals from not only total price, but the prices for individual line items. Both contractors stood by their pricing and no changes were made. It appears that we may award to the low; however, I have my doubts on this? though the information provided by the low bidder (i.e. data other than certified cost or pricing data), more specifically, cost breakdown lead our agency to believe that their price is reasonable (notice I only said reasonable) is there other steps I can take to ensure the awarding this to the low bidder does not pose any risk to the contract. If the company was a small business I could ask for a Certificate of Competency from SBA; however, being they are large are there any formal actions I can take - Determination of Responsibility or a Financial Capability Assessment, if so what statute gives the Government the right to request such information from a large business?

Exactlly hence why I am asking if I can ask for such information for the purpose of determining price reasonableness - obviously I would have to go into discussions which we have already.

The evaluation boils down to Price by two vendors. One is high the other is low from the basis of the IGE. This is a FFP - Requirement type contract - Competitive acquisition - Performance Base - LPTA (Vern, you may say just award to the lowest if they are found Technically Acceptable - and Past Performance is low risk... - but it is not as simple as that...). There are CLINs for Hourly rates and some are Monthly - which are derivatives of the hourly rates x a 12 month time frame to evenly measure the workload on a monthly basis. I have pretty much broken down the IGE in accordance with the CBA rates and ODC. The only thing I had generated is the other indirect cost/rates/percentages which are the G&A, Profit, O/H. I had used nominal values based on average rates from a business stand point, BLIS, and other. My guess is they have an exorbitantly high number on G&A, O/H, or Profit. - Hence why I need to know rates to be able to identify where the difference are between contractor's proposal and the IGE. The lowest is significantly low to the point that we question if they can perform the job without risking their financial standing (i.e., would eventually not be able to perform as a result of cost constraints, among other reasons attributed to their low proposal). Mind you we did not anticipate that it would turn out this way -- evaluating Price to the depth of finding out what factors were inclusive of the price... Based on Market Research and contacting numerous vendors who claim they can meet our requirement - we could simply determine Price reasonableness base on Competitive pricings. However, when you only have two; one being the incumbent the other, a new yet credible vendor with a significantly low price proposal... it is difficult to find a good justification for price reasonableness if awarded to the lowest bidder... I am intentionally leaving a few more details out as I know it may open up other scrutiny or questions.... I basically want to know if I can or cannot demand such information if it is not formally asked for? Vern from what you are telling me -- it basically falls on how you would want the acquisition to turn out ? what are the risk?.

Vern, I have a similar situation where I need to determine fair and reasonable pricing for a competitive acquisition on a commercial service. To me, I can only determine that by having the contractor(s) provide me the Indirect Cost (G&A, O/H, etc.) and comparing that to my IGE, which is firmly substantiated. Side note: comparison of public price list, past buys, etc. is not conducive under this requirement as the level of effort (i.e. workload) varies per service provided, not to mention rates have been established under CBA, among other reasons. Certified cost and pricing date was not required -- for obvious reasons... We can deem this as Other and cost or pricing data, but I do remember reading a GAO case where the government requested Other than certified cost and pricing data, but found that it was borderline certified cost and pricing data information that were provided. Thus, the Government was scrutinized by this intent... Anyways, during discussion I attempted to ask for the percentage on their indirect cost and their response what it was proprietary information... I then held back on the question as I am not sure if I can technically demand them to provide such information for the purpose of the Government to determine price reasonableness -- that is it. What legal backing do I have to request this information even after they claim it is proprietary information? Can we technically ask for this information without addressing it on our solicitation ? that we may require them to provided a somewhat of a cost breakdown inclusive of the rates and percentages for direct and indirect cost? I am just unsure what boundaries I can and cannot cross when it comes to situations such as this. Please advice - Anyone?

Greetings, I am currently in the process of deploying this coming late Fall '11. I'm enrolled in the Deployable Civilian Contracting Cadre Program which is spearheaded by Army Contracting Command (ACC). Basic requirement is a Level II certification and a minimum of two years experience in contracting which has some exceptions. A quick backgorund on myself: I was in an 1102 internship program a year and a half ago, just got my lvl II certification last month, and currently working on my pre deployment processing paper work. I've spoken with fellow peers that have done contingency contracting and their feedback is: (1) work is constant - pulling 12 - 16 hour workdays. (2) you have to be comfortable with your knowledge in contracting. (3) you do a lot of reach back work (i.e., working with personnel back in the U.S. for some/most procurements). Which DoD agency do you work for? Is it Army - it wasn't clear, if so I can give you a POC... I just do not want to disclose it here

Good information so far from both Don and Vern. Vern: You cited Administration of Government Contracts, 4th, "Major changes in the quantity of the work have been held to be outside the scope of the competition." - This suggests that minor changes in quantity might not be outside the scope. To what degree/percentage from the original number do we consider minor vs. major change, as far as contracts are concern. If I recall from my previous CON course a prof. stated that in the past the organization would determine the % change from the original contract provided that the change does not exceed > 50% - more so applies to dollar figures. Let me know if this assumption is now void or has some validity.

Thanks Don for providing these references!

Greetings, My situation: A customer for a contract I am administering is requesting a change in quantity (increase) and add an additional month on the POP. There has been a debate as to whether the change is within scope or not, and whether a change clause would be plausible to make the change, bilateral mod would be executed... The procurement: A FFP type contract for a supply (competitive acquisition), initial award quantity = 50,000 an additional 10,000 is requested by the customer with an additional month on delivery. I do understand the bona fide need rule on this situation; however, I wanted to get the contracting community's opinion on the matter. Please expound and provide reference so that I can help my fellow peers at my organization on this matter. Your Feedback is greatly appreciated

Greetings, I wanted to inquire on any reference to the applicability of Cost Accounting Standard (CAS) to the Randolph-Sheppard Act (RSA) - SLA contracts... Is RSA-SLA contracts subject to CAS? This may be a simple yes/no answer, but would like to find specific references or if you can expound on the yes/no reply. Thanks in advance for your consideration. Ipod24

I will consider this excellent response.... Let me give you a better description regarding my situation without going in depth. I received three proposals once the solicitation closed -- all offereors were either above or substantially below the IGE/IGCE. I had addressed the specific deficiencies with their pricing, along with other in formations. Thus, we ultimately went into discussions , and gave all contractors who participated the opportunity to revise their proposals and bid schedules (I know some of you may have done a different approach). The revised proposals came in; the contractors were technically acceptable, past performance was rated low risk; however, the price was the determining factor. Two were still high the other was within reasonable range, 15% of the IGE/IGCE and from there we made our decision... In my opinion, I see no point in issuing an amendment which will be posted in FEDBIZOpps notifying the other contractors that discussions have ended. I may have not used the term "final" revision when I went into discussions and had allowed them to resubmit a revised proposal. But after that process -- pricing ultimately led to the two contractors not getting the award. Now, going with your first statement: (1) gave each offeror in the competitive range an opportunity to submit a "final proposal revision", does this mean I should have given a FINAL opportunity for all contractors to resubmit a Final Revised Proposal? Doing so, in my opinion, seems like a waste of time. (1). There really is no other factor I can address to the two offerors to have then revise their proposal. Yes, I can point out that one CLIN is still this high the other is still this low blah blah blah, but that?s it. Obviously, after addressing my concerns and them having to resubmit a revise proposal ? still coming up high would lead me to believe that they do not understand the Governments requirements.

Addressing your concern, the reason I used the word "public" is because if I did issue an amendment it'll have to go to the GPE which is FEDBIZOpps - thus, public view.

Greetings All, Okay I have this sort of awkward situation. My KO has informed me that I need to issue one final amendment to notify the public that discussion have been concluded. Yes, my requirement had to go into discussions/negotiation, revised proposals were sent (only had to do this once), and once all procedures were completed and finalized we have determine who the apparent awardee will be. Anyways, my questions was in regards to issuing an amendment for the purpose of notification that discussion have been concluded. I have not seen anything in the FAR, DFARS, PGI, other that states this procedure otherwise. My office argues that not doing so would lead to a potential protest from a contractor who was not notified that discussion had ended. Also, it seem that in the past, a protest was sustained (can't find the GAO case) because the organization failed to sent this notification out. Is this a substantial action? If so can you please give me references?