jwomack

Vern, Imposed. Agree. I'm a government KO trying to determine the boundaries I have to work within. Joel, Agree but am hoping someone can help me find a loophole if there is one that's reasonable. Sometimes in the legal community things happen relatively quickly and it can be highly inconvenient to the Attorneys if forced to follow normal acquisition protocols.

Yes, unless the Court Order explicitly states otherwise, the agency has discretion on how to satisfy the Order. Issuing a PO or using a GPC or other procurement authority is current practice when external help is needed. I’m trying to determine if, when doing so, the agency must follow FAR. For example, if a government employee commits what would ordinarily be considered a UC in trying to satisfy a Court Order, would that action be subject to FAR 1.602-3 ratification procedures? The answer is probably yes but I’m looking for a loophole. Like, “Though not directly with the vendor, the Court established the obligation on the Government by way of issuing the Court Order. Therefore, satisfying the Court Order is considered a mandated legal process and a FAR procurement vehicle is not required.”

A federal judge issues a Court Order. The Court Order requires an Executive Branch government agency to perform an action in which a 3rd party commercial vendor must be involved. The agency is expected to identify and establish whatever relationships are necessary with vendor(s) to satisfy the Court Order. This includes paying the vendor with the agency's funds for any services rendered. The Executive Branch agency is subject to FAR. An example of this would be if the Court ordered DOD/DOJ to perform a psych exam on a defendant. This would, in turn, require DOD/DOJ to enter into a relationship with a commercial entity such as a hospital or doctor. Who incurred the obligation on the Government? The Court? The Executive agency? Would the agreement between the agency and the vendor be considered an acquisition subject to FAR?

Ability to effectively communicate with and assist the program office, especially pre-solicitation. And this -

Not if the Government only receives benefit comparable to its cost.

17.200 says “This subpart prescribes policies and procedures for the use of option solicitation provisions and contract clauses.” A list is then provided describing when “this subpart does not apply”. Neither Part 7 as a whole nor lease to purchase type contracts are listed as exceptions. 52.207-5 “Option to Purchase Equipment” is an option clause as illustrated by the clause’s title and 52.207-5(a) which says, “The Contracting Officer may exercise this option…”. Regarding exercise of the option, 17.207(a) says “When exercising an option, the contracting officer shall…”. It does not say “When exercising an option prescribed by this Part, the contracting officer shall…”. Therefore, the requirements of 17.207 would be applicable as well.

Thank you, Vern. Enjoy life!!!

A lot of research, time, and experience. No magic pill (darn it!!!). As to experience, having been around since the birth of the FAR would clearly have its advantages. An obstacle I can’t overcome so I guess it’s more time and research in my future. Appreciate the sources. I’m familiar with most but there are a couple I don’t use as often as I probably should. Thanks for everyone’s input.

Mr. Edwards (and others), You often identify where a FAR Part or Subpart originated from presumably to help understand original intent. Can you explain the steps you follow to identify the origins? For example, in a recent posting you said – “The rule in FAR 15.405(d) originated with DOD. It was added to the Defense Acquisition Regulation in 1982, 47 FR 9399, March 5, 1982, DAC 76-31, without explanation. The rule appeared in DAR 3-801.1(c) as follows…” How did you get from 15.405(d) to the DAR and the other citations? I’m not particularly interested in 15.405 but rather the generic process you follow. I know there are citations at the bottom of many FAR Subparts but clearly you’re looking beyond those. Any particular websites you find most useful?

Sounds reasonable. Thank you.

That would certainly be a change from our norm. The non-SAP protocols have apparently crept into the SAP acquisitions and just became the way it’s done for all contracts. Thank you. To take this a step further, do you think less formal closeouts could apply to GSA orders as well? I know they’re not Part 13 “SAP” nor do they meet the Part 2 definition, but GSA orders are, all things considered, pretty simplified acquisitions.

A contract uses Part 13 procedures, FAR 4.804-1(a)(1) is applicable, and there are no agency specific regulations. As part of closing out a contract file, FAR 4.804-5(b)(8) requires the contract completion statement to contain “Voucher number and date, if final payment has been made”. What if there are multiple vouchers? Are all vouchers and dates required to be listed, or at least cross-referenced, on the contract completion statement? If so, why doesn’t (b)(8) read “Voucher number(s) and date(s), if final payment has been made”? Or, is only the final voucher and date required? If so, why doesn’t (b)(8) instead read “Final voucher number and date”?

Be careful. No one wants to do business with someone who comes across as difficult or manipulative. That's a good way to make the naughty list.

Shouldn’t that have been asked during the solicitation phase? Also, the only reason a probably-busy-KO may need to entertain your request in greater depth is if you had offered the lowest price but the offer was rejected for not having met the technical requirements.

Another thing to consider is how much benefit the contractor will receive because of the change itself.

See 31 USC 6303 and 31 USC 6304 to help determine if a contract or grant may be appropriate.

Disagree, assuming a renewal option was part of the original agreement. Agree.

Drabkin, but slightly different. Drabkin’s rationale - “…it only prohibits adding elected officials to the lease after it was signed…” I think the prohibition is more restrictive and also includes an individual’s status at the time the lease is signed.

Ditto.

Probably not, but I may and I wouldn’t be prohibited by FAR from doing so assuming it provided benefit to the Government, etc.

FAR 1.102(d). “In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.”

If it’s within SAP a Part 6 citation wouldn’t be necessary. Part 13 Procedures could be followed.

I may be wrong, but the simple answer seems to be for the program office to submit a PR with funds for services rendered. The KO makes the award. Note to file as to why it’s not a UC and doesn’t require ratification. Contractor gets paid. Unless you’re trying to punish the program office or contractor for some reason, why make it any more difficult than that?

What basis are you saying an Agency couldn’t execute a new contract based on its own determination, i.e., without a Court Order? What Part(s) of the FAR would be violated? 1.602-3, nonratifiable commitments, implies there was a commitment.

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