Jump to content
The Wifcon Forums and Blogs

Todd Davis

Members
  • Content count

    230
  • Joined

  • Last visited

Community Reputation

0 Neutral

About Todd Davis

  • Rank
    Bronze Member

Recent Profile Visitors

5,146 profile views
  1. Process of Excluding Small Businesses

    It is not a matter of being honor-bound. There is a statutory requirement for a CO to set-aside certain procurements, which is implemented at FAR Subpart 19.5. If the acquisition exceeds the micropurchase threshold, but not the SAT it "is automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery. If the contracting officer does not proceed with the small business set-aside and purchases on an unrestricted basis, the contracting officer shall include in the contract file the reason for this unrestricted purchase." See FAR 19.502-2(b) for actions over the SAT. Also, by making a decision not to set-aside a procurement for small business, it does not exclude small business from participating or receiving award. It simply means they must compete with entities that are other than small businesses. As you may already be aware of, FAR 19.202-2 provides some guidance on locating small business sources. If your concerned about the adequacy or reasonableness of a decision not to set-aside an acquisition for small business, I'd recommend reviewing some of the protests decisions and opinions that are listed here on Wifcon at the link below. A new opinion by the Court of Federal Claims regarding the "rule of two" was just posted yesterday. http://www.wifcon.com/pd19_502.htm
  2. FPDS/Extent Competed/FAR 13.5

    The question is fairly broad, so I'm not sure if this will help. I'm assuming that you are issuing a purchase order under the authority at FAR Subpart 13.5. If so, I believe it would be reported just as any other purchase order. If I recall correctly, there is a specific field that asks if the action was awarded pursuant to the authority at Subpart 13.5. See if this guide from the FPDS website helps. Click on "Create a PO" under "Awards." https://www.fpds.gov/help/index.jsp Regarding the extent completed, the guide states: F Competed under SAP: Select this code when the action is competed under the Simplified Acquisition Threshold. G Not Competed under SAP: Select this code when the action is NOT competed under the Simplified Acquisition Threshold. While the guidance uses the term "threshold", I've always followed the guidance in the name of the field itself, which is SAP. Therefore, if I used SAP procedures over the SAT under Subpart 13.5, I would use one of these two responses as appropriate.
  3. Maybe I didn't articulate it well, but my point was that if I was appointed as a COR to do specific things, the fact that I have a warrant doesn't factor into the responsibilities I've been delegated. I've only been delegated certain responsibilities by the CO for the contract (assuming those do not involve changing or terminating the contract) and those activities are all I should do because that is all that I was asked to do. However, if was then asked by the CO or their supervisor to do something outside the COR delegation like issuing a modification or terminating the contract, I'd proceed with that action under my authority as a CO, not as a COR. I know realize the whole issue of appointing a CO as a COR should be unnecessary, since a CO can simply designate another CO as a ACO for a contract and define their responsibilities in that designation letter. I agree. I'm limiting myself by professional courtesy and organizational responsibility (not legal authority), since the contract is not assigned to me to act as the CO.
  4. At the time I didn't think of the option of being delegated certain ACO responsibilities which I believe you may be referring to at FAR 42.202. That makes more sense than appointing a CO as a COR. Also, even if a CO were appointed as a COR, I agree that having to obtain the certification should be waived as being unnecessary. I obtained mine so as not to be found out of compliance with a policy that applies to individuals appointed as CORs. In hindsight, I could have argued that the requirement should not apply to an individual who is already a CO. Fortunately, I didn't waste 8 hours and was able to apply continuous learning from my FAC-C certification maintenance to obtain the COR certification.
  5. When I found myself in this situation as a FAC-C Level III CO with an unlimited warrant, I was appointed (in writing) as a COR on a contract and of course did not serve as the CO for the contract. Because policy requires all CORs to be FAC-COR certified, I obtained my Level I FAC-COR certification. They way I view it, just because I'm a CO, doesn't mean I have unlimited authority to change other CO's contracts anytime I want. If I'm appointed as a COR, my possession of a FAC-C certification and warrant is irrelevant. I must follow the policies applicable to CORs. Besides, obtaining the certification should take an hour, if not minutes. A CO should be able to quickly click through 8 hours of online training and ace the test (what is required in my agency for a Level I COR).
  6. Section 801 of 2018 NDAA

    Articles on the issue have referred to it as Sec. 801 because that is where it was in the version of the bill the House originally passed. However the final bill that passed Congress and was signed by the President moved it to Sec. 846 and changed the title slightly to "procurement through commercial e-commerce portals". It uses the term "portals" instead of "marketplaces." The original bill required DoD to use it. The final version states that agencies "may" use it. Also, some of the criteria listed in the original post that were in the original bill are not actually present in the final law. I even saw an article published yesterday on another site that referred to Sec. 801. Implementation and reporting phases and requirements were added, etc. I haven't read the full versions of each to see what all the differences are or how meaningful they are, but I would not rely on articles that refer to it as Sec. 801 as the information it is based on may not be what is in the law.
  7. If I understand the post correctly, the statement of work is for the interagency agreement and not the federal contract. If so, I don't see a problem. The agreement can be for a total of 5 years with a firm commitment on price and funding for future years to be agreed upon each year. Each year, if both agencies agree upon price and funding is available, the agreement can then be amended and additional funds obligated under the agreement. There is no requirement for the interagency agreement to have firm pricing for future years nor are funds for future years being obligated under the agreement up front. If the agencies cannot agree on the amount or funding is not available, the agreement can then be cancelled. Separately, I believe the contract would need to have priced option periods. Others in this form may have guidance on whether unpriced options are ever permitted. Some agencies specifically address the issue of unpriced options on contracts. For example, my agency specifically prohibits unpriced options. You would want to structure the interagency agreement so that a decision on amending the agreement to agree on the amount and add funds for the next year is done in advance of having to exercise the option on the related contract and so that funds are in hand when exercising the option. This may also require structuring the contract option to permit it to be exercised after the end of the period of performance end date or into the beginning of the next fiscal year if funding will not be made available until then (FAR 17.204(d)). Assuming the interagency agreement is amended to specify the amount and funds obligated, the option on the related contract would then be exercised. If funding is not available or the agencies cannot agree on the amount then the option on the related contract would not be exercised and the interagency agreement would then be canceled. There is no obligation for the government to exercise the option under the contract. Subpart 17.2 does not apply to interagency agreements, only to contracts. The FAR only applies to acquiring things by contract (FAR 1.104) and does not generally apply to interagency agreements. Only Subpart 17.5 deals with the issue of interagency agreements for the purpose of acquiring goods or services.
  8. SAP Modification PNM

    I agree with Matthew. Also, an agency or office may have an agency FAR supplement or a local policy/standard operating procedure or practice that may require it. For example, our agency requires that modifications affecting price include documentation of the basis for determining the price is fair and reasonable. This is not the PNM described by FAR Part 15, but serves a similar purpose. Even if a PNM is not required by the FAR or your agency, the basis for the price change should be documented and demonstrate that the amount of the adjustment is considered fair and reasonable. Lastly, while not specifically referring to a PNM, FAR 4.803 does describe the type of documentation that is to be included in a contract file, when applicable. This includes a "record of negotiation" and "documents supporting modifications issued by the contracting office."
  9. I've only worked for the USDA for the 7 years, but have not seen that term used since then. However, the USDA agency I work for used the term Government Representative (GR) to refer to the technical person from our agency that was the point of contact for recipients of Federal cooperative agreements that used the funds to award construction contracts. The GR didn't act as a COR for the contract though since it wasn't a Federal contract, but instead worked with the recipient on the administration of their contract.
  10. While the FAR definition of COR includes a reference to COTR, the term COTR does not appear anywhere else in the FAR, just COR. I suspect the term was left in the definition since there were already COTRs in place and they didn't want some people to think they were two different roles. The term COR was not added to section 1.602-2 and the definition of COR at 2.101 until FAC 2005-50 dated 3/6/2011. The only thing that I recall seeing that changed the term COTR to COR was related to the certification program managed by FAI. See the link to a September 2011 OFPP letter below. That letter cites the aforementioned change to the FAR. https://www.fai.gov/drupal/pdfs/FAC-COR_20Sep2011.pdf USDA uses the term COR. Prior to the 2011 OFPP letter the term COTR was used in internal policy.
  11. Escalation Rates

    I've not applied this to a solicitation, nor do I think it is necessary. I was just making an observation about how some (probably a large number) COs and contractors view pricing on Government contracts. If it were me, I'd not make a mention of it in the solicitation and see what type of pricing is received in the proposals (see FAR 17.203(c)-(g) regarding stating limits on option pricing in the solicitation). If I chose to conduct discussions and an offeror proposed an escalation for the option periods, I'd ask them why that is. If the rationale made sense, I'd not address the matter further. However, if based on the type of procurement, I believed there was an opportunity to gain efficiencies under the contract and obtain better pricing in the option periods, I'd make my argument during negotiations. I don't view the aforementioned limits on what is stated in the solicitation as a prohibition on trying to negotiate lower option pricing when it make sense.
  12. Escalation Rates

    I'd leave it up to each offeror to determine if they want to increase their pricing year-over-year, keep it flat, or decrease it. Regardless of what they choose to do, if they are awarded a FFP contract, the rates would not be subject to an escalation, except for one that may be permitted by a service contract labor standards statute price adjustment clause in the contract. Having also worked in the private sector as a buyer, we didn't expect increases from our suppliers and service providers. It was much to the contrary. We expected sellers to find ways to offset cost pressures in materials, labor, and exchanges rates (as applicable). So much so, that they would realize savings for their efforts and then share a portion of those savings each year with us as the buyer for having a business relationship for a certain amount of time with them. This usually resulted in cost reductions year-over-year for a defined period of time. We did the same thing within our company for the products we sold. We continually sought cost reductions through buying materials at a lower cost, making processes more efficient to reduce labor input, among other things. For whatever reason, in Government there is an expectation that the price should only go up. I know there are cost pressures, especially on labor (pay raises, healthcare, etc.), but I would also often expect a contractor, depending on the nature of the procurement, to become more efficient. I also know that some contractors become less profitable on contracts for various reasons, but some also become more profitable. If you receive adequate price competition, you should have little price analysis to conduct, regardless if the price for each option stays the same, increases, or decreases.
  13. Scenario: IFB is issued for construction since government estimate is over the SAT. Low bid is under the SAT. Bid is responsive and bidder is considered responsible. IFB included FAR clause 52.228-15, Performance and Payment Bonds-Construction, requiring payment and performance bonds. Question: Do you think it would be appropriate to make award and then bilaterally modify the contract to remove this clause and replace with 52.228-13, Alternative Payment Protections, along with a price reduction reflecting the removal of the performance bond premium and any difference in the cost of the payment protection provided? I was unable to find any GAO decisions or other case law on the issue with the resources I have. My initial though is that this would be appropriate since there is not a compelling reason to cancel the IFB (FAR 14.404-1) and no bidders would be subject to competitive prejudice by award being made (all submitted bids based on same information). Thank you. Edit: I suppose a contractor could argue that they did not include the cost of bonds in their bid since clause 52.228-15 itself does not require bonds if the "resulting contract price is $150,000 or less."
  14. Earlier this year the ASBCA concluded that the Christian Doctrine applies to performance and payment bond requirements. The case involved the construction of a pre-fab building. The CO used a GSA schedule contract to make award. The order did not include FAR 52.228-15, which implements the requirement for performance any payment bonds. Upon award the CO requested bonds. The contractor initially said it couldn't provide them, but ultimately did two years later! Upon providing the required bonds the CO provided equitable adjustment to compensate the contractor for the bonds that it said were to have been read into the contract to begin with. Upon completion of performance the contractor submitted a claim for delay costs among other things due to the two years that had passed between award and performance. One of the arguments the contractor made was that this was not a commercial contract and not a construction contract, so bonding wasn't required. The Board concluded the contract was for construction and that the Miller Act requirements still applied, even if the procurement was conducted as a commercial acquisition. The Board determined that inclusion of the clause was mandatory, even though the bonds statutes and implementing FAR regulation permit the CO to waive bonding. They reasoned that the CO could only waive the requirement in situations explicitly stated in the statute, which did not apply in this case (i.e., performance in a foreign country or authorized by another statute). The Board also concluded that bonding requirements are significant components of public procurement policy. In the request for reconsideration, the contractor cited a prior U.S. District Court case (Faerber Electric) as having held that the Christian Doctrine does not apply to the Miller Act. The Board distinguished this case from Faerber. It stated that the decision in Faerber was in the context of whether or not a subcontractor possessed a right of action against a prime contractor based on the presumption that the prime was required to have obtained a payment bond, despite both the CO and contractor having ignored the requirement. It also stated that Faerber did not decide address applicability of the Christian Doctrine. ASBCA Opinion http://www.asbca.mil/Decisions/2017/60686, 60687 K-Con, Inc. 1.12.17.pdf Request for reconsideration denied. http://www.asbca.mil/Decisions/2017/60686, 60687 K-Con, Inc. 5.8.17.pdf Prior related Wifcon discussion.
  15. NDAA for FY 2018

    I suspect a deviation will be approved Federal-wide to implement the new thresholds unless they plan on issuing a FAC shortly, which I doubt. I would not apply the new thresholds until the FAR was updated or a deviation approved. That is why DoD had to get a deviation approved to implement the revised micropurchase threshold that only applied to it in the 2017 NDAA. Here is a link to a Wifcon discussion from last year regarding whether to follow a new statute or the FAR.
×