Todd Davis

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About Todd Davis

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  1. Out of curiosity, are these COs typically "older" ones that have been in the career field for 20+ years? I have seen some folks use sealed bidding for simple acquisitions under the SAT. Some folks resist change, which is human nature. However, I think that resistance becomes irrational when folks are given "simplified" methods to do their job, but resist using them or want to over complicate things unnecessarily (e.g., unnecessary or unnecessarily complex evaluation criteria). I've been doing this for 20+ years, but I resist being resistant to change and welcome relief from the onerous regulations placed on the contracting workforce.
  2. If Agency A enters into and agreement with Agency B for an assisted acquisition, Agency B is the one entering into a contract with a contractor. That contract should reference the disputes statute (CDA) for resolving disputes between Agency B and the contractor. The disputes statute does not apply to the agreement between Agency A and B. The interagency agreement should specify how disputes are resolved between the agencies and the obligation of Agency A to Agency B in the event of a dispute between Agency B and their contractor. Also, an assisted acquisition is not a contract. See FAR 2.202 for a definition of each term. The contract is what Agency B enters into with the contractor. The interagency agreement between Agency A and Agency B is for acquisition assistance. The CDA is codified at 41 U.S.C. Chapter 71. It only applies to contracts and not interagency agreements (see Section 7102). A board of contract appeals and the Court of Federal Claims (who have jurisdiction under the statute) will not hear disputes between Agency A and B regarding their interagency agreement
  3. A direct acquisition is one where Agency A places and order directly against Agency B's IDC (FAR .17.502-1(a)(2)). The terms of Agency B's contract applies, which likely is subject to the contract disputes statutes (FAR subpart 33.2). If Agency A is acquiring a service from Agency B and Agency B is performing with its own employees (not a contract), then the action is not subject to the FAR (FAR 17.502-2(a)). Instead, the agreement is simply considered an interagency agreement for other than an acquisition (not a direct or assisted interagency acquisition). See FAR 17.500(b) and 2.101 for a definition of an interagency acquisition.
  4. If you have a copy of the wage determination, it should also answer the question (in the text after the classification and rates). Generally, a contractor is not required to pay H&W benefits in cash and may provide benefits of at least an equivalent amount. If in the solicitation, see 52.222-41, Service Contract Labor Standards, see paragraph (d) and (i). Also, I'm not familiar with the evaluation criteria in the solicitation regarding price, but a bidder/offeror is not usually required to price a contract to show they are meeting the minimum wage determination amount required (wage and H&W). They are only required to properly classify employees and pay them according to the wage determination for actual performance under the contract. As long as they do not take exception to the SCLS requirements in their bid/offer, the lower pricing alone would not necessarily make them ineligible for award. I haven't looked for other cases, but I believe the first one at the link below supports what I've stated.
  5. Use the evaluation criteria you think necessary to select the firm that represents the best value to the government. I would just stay away from calling it a LPTA process or using any FAR part 15 terminology. Also, see the article below by Vern Edwards regarding use of competitive processes in government contracting, especially the section "Simplified Acquisitions."
  6. If SAP can be used, then I would synopsize the requirement if not excepted by FAR part 5, and request quotes, letting interested firms know the uncertainty regarding the date the barriers are to be installed. I also include a requirement in the RFQ and purchase order that they be installed within a certain number of days or hours of being notified they are to proceed. I would make sure the contractor signs the PO accepting it, so they could not reject the offer to purchase at an inopportune time. Also, if your using the SAP procedures I would not use the LPTA process at FAR part 15 and instead follow the guidance at FAR 13.106.
  7. No. I see them as separate things.
  8. There is no such express prohibition at FAR subpart 1.6. However, as I described earlier, in my opinion it clearly states who does have the authority to appoint a CO, the appointing official, not a contracting officer. I don't believe that general delegation of authority permitted by FAR 1.108 has anything to do with the appointment of contracting officers since the issue is addressed by more specific policy at subpart 1.6. Maybe I'm wrong and if so, I will learn.
  9. Vern, was this something expressly permitted by agency policy or was this something you already had the authority to delegate? FAR 1.602-2(d)(5) specifically prohibits a COR from even having the authority to "make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions." It is interesting that a trained COR is not permitted to have such authority, but a trained chief field inspector would be. I think it is reasonable to delegate such authority where appropriate and the individuals are trained, provided it is consistent with the FAR and agency policy (if applicable).
  10. So your telling me that if I have an unlimited appointment, the FAR permits me to delegate my authority to sign contracts of any amount to anyone?
  11. The OP asked about the authority to sign contract generally, even contracts over a CO's existing appointment authority or where there was no SF 1402 issued, not the appointment of ordering officials/officers. When I was in the Air Force I appointed ordering officials for decentralized BPAs. I know that ordering authority can be delegated if permitted by regulation/policy, but that wasn't what the OP was describing. Also, I didn't ready all of the FOO guidance, but it appears they are limited to mircopurchases and their appointment is specifically accomplished pursuant to agency policy. While we don't have access to the OP policy in question, it appears it is not agency policy, but rather a local office policy.
  12. The FAR specifically specifies who is "the appointing authority" and there is not a list of other positions or titles that have such authority. So for a CO to have authority to designte another as a CO, they would have to be designated as an appointing authority within their agency. Now I supposed that an agency could specify that any CO is also considered an appointing authority in their policy, but that doesn't sound like a good way to control the appointment of contracting officers.
  13. FAR Subpart 1.6 uses the term "appointing official." That is the person(s) who appoints COs in writing on an SF 1402. The appointing official may or may not be a CO. Even if he or she is a CO, they are not exercising their CO authority, but rather the appointment authority delegated to them by their agency.
  14. Very strange. Only contracting officers can enter into and sign contracts on behalf of the Government and must be appointed in accordance with FAR 1.603 unless and HCA or above. The appointing authority must give the contracting officer clear instructions regarding the limits his or her authority and the appointment must be in writing on a SF 1402. A contracting officer cannot appoint another person as a contracting officer or delegate their authority to sign a contract, unless that CO is also the appointing authority for your office. ------------- "Contracts may be entered into and signed on behalf of the Government only by contracting officers." (FAR 1.602) "Contracting officers below the level of a head of a contracting activity shall be selected and appointed under 1.603." (FAR 1.602) "Contracting officers have authority to enter into, administer, or terminate contracts and make related determinations and findings. Contracting officers may bind the Government only to the extent of the authority delegated to them. Contracting officers shall receive from the appointing authority (see 1.603-1) clear instructions in writing regarding the limits of their authority. Information on the limits of the contracting officers’ authority shall be readily available to the public and agency personnel." (FAR 1.602-1) "Contracting officers shall be appointed in writing on an SF 1402, Certificate of Appointment, which shall state any limitations on the scope of authority to be exercised, other than limitations contained in applicable law or regulation." (FAR 1.603-3)
  15. Very strange.