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jdm843

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  1. @ji20874 thanks for the advice. 52.236-5 is a great clause. But I'm afraid I don't see how that will work for my purpose. Paragraph (a) of that clause states: "The Contractor may, at its option, use any equipment, material, article, or process that, in the judgment of the Contracting Officer, is equal to that named in the specifications, unless otherwise specifically provided in this contract." (Formatting added for emphasis.) My contract will "otherwise specifically provide" that a single product from a specific manufacturer is all that will be accepted. The Government will allow no alternatives in this instance.
  2. @General.Zhukov that's it! I was mis-reading 16.505(a) that a fair opportunity exception was required. but now I see the nuance. It's NOT a fair opportunity exception. Fair opportunity is impertinent in my situation because as far as I know all the IDC contractors have the same access to the brand name manufacturer we're going to specify. Makes perfect sense now. @General.Zhukov totally agree. Thanks a ton for your input. You solved the puzzle for me. I know the FAR has gaping holes here and there, but I knew there had to be something I was missing here. Thanks again!
  3. @Matthew Fleharty I read it. Thanks. The book answer is definitely that FAR Part 6 doesn't apply. Doesn't really answer my nagging suspicion, though.
  4. I'm a Contracting Officer tasked with soliciting for a construction project that involves a brand name specification under the CICA waiver authority under FAR 6.302-1 Only One Responsible Source. The item is a major component of the construction project, but the value of the item is expected NOT to exceed $700k (the total construction project will be much larger). My read of the regs has always been that a 6.302-1 CICA waiver justification must include evidence that a notice of intent was posted to the GPE and interested sources responding to that notice were considered in accordance with FAR 6.302-1(d)(2), FAR 5.201, and FAR 5.207. HOWEVER, we are planning to solicit the project as a task order RFP under a multiple award IDC, and so the question was raised, does CICA and FAR Part 6 even apply? FAR 5.202(a)(6) provides an exception to the FAR 5.201 synopsis requirement for IDC orders and refers to FAR 16.505(a)(4). FAR 16.505(a)(4) states that items peculiar to one manufacturer must be justified in accordance with FAR 16.505( b)(2) (aka Fair Opportunity Exception). BOTTOM LINE: I've nearly concluded that FAR Subpart 16.5 may be the applicable regulation and not FAR Subpart 6.3, and so a FAR 16.505(b )(2) Fair Opportunity Exception would be required instead of a FAR 6.303 Justification. But I have a nagging suspicion that that's not quite right. My hesitations with a FAR 16.505(b )(2) Fair Opportunity Exception are that #1 I can't quite see how this is would restrict competition among the IDC contractors, so I can't really see how the concept of "fair opportunity" is at play. And, #2 I'm surprised to find that there is no requirement at FAR 16.505( b)(2) to post a notice of intent to the GPE--since in our situation for a brand name component, it seems to me that would be compelling information to include in the justification if we get no acceptable response from industry. And I'm also surprised because FAR 16.505 ( b)(2)(d) DOES require that the final approved Fair Opportunity Exception be posted to the GPE within 14 days (for orders >SAT). Whereas under FAR Subpart 6.3, for brand name justifications, all that is required is to attach the final approved J&A with the solicitation. I suppose that's because Fair Opportunity Exceptions under 16.505( b)(2) would never be publicized if only distributed with the solicitation because the solicitation isn't made public--it's only sent the multiple IDC contractors. Anyone have any thoughts on this? Appreciate the feedback.
  5. The contractor's REA also cites 52.243-1: "IAW FAR 52.243-1 Changes, I respectfully submit a request for equitable adjustment based upon the impact of the contract changes realized since inception of the contract." Additionally, the contract PWS has a passage that forecasts a certain magnitude of service and that "the overall total may vary +/-10% without an equitable adjustment." One of the fundamental bases of the REA is that the total varied >40% above the initial forecast.
  6. Who makes a scope determination? Isn't that ultimately the PCO's job? There is nothing in the file showing the PCO (or any attorney for that matter) had made any consideration as to whether the modifications were in or out of scope. Yes, all the mods were bilaterally signed and each used either 52.212-4 or 52.243-1 (yes both clauses are in the contract and there is no apparent rationale as to why one was used over the other), which would indicate an in-scope agreement by both the PCO and the contractor, but as I mentioned the Contractor WAS complaining all along that the modifications WERE beyond the scope of the contract as initially advertised and awarded. This is a "genuine REA" without disguise. The contractor cited 252.243-7002 and provided the certification required by that clause. Lots of other than C&P data provided too, and a mountain of narrative description of his account of things over time as well. Yes, all the modifications were "supplemental agreement" (SF30 box 13c). See naivete discussion above. I'd argue that the Government had some culpable naivete at this point as well. Thanks for your advice. I've decided to drop the scope issue and utilize FAR 52.212-4(c) as the modification authority as Vern recommended. My curiosity remains however as to whether it's really in or out of scope. (It's a question that is purely academic, unless this thing goes to claims...).
  7. I understand. The predecessor most definitely considered them within scope. And no, the contractor did not object via the SF30, but was objecting via separate correspondence. So yes, there is definitely a certain level of naivete on the contractor's part. I expect that if this were to go to claims, the ASBCA or CoFC would consider it all out of scope, however. The customer agency is hesitant to fund the negotiated adjustment, so that's probably where this is headed anyway. I suppose the scope issue is neither here nor there anyway--since he performed anyway, so he's given up his right for breach damages...
  8. Thanks for your input! RE: Signing modifications. As I stated, the contractor never submitted any price proposal with any SF30 leading up until now, but he was regularly articulating ot the COR and PCO that he was having trouble keeping up with performance requirements under the accelerated contract scenario and that he was experiencing major cost impacts, although he could not quantify them. At each communication, the Government team essentially denied merit to his qualitative assessment, and didn't bother entertaining anything quantitative since he couldn't provide anything costs for evaluation. Now, after nearly two years, at the contemplation of yet another modification, he began (respectfully) threatening that was seriously considering defaulting on the contract since he was under such financial stress as a result of the increased contract requirements. That's about when I arrived to the situation and I sat down with him to instruct him how to submit and REA and what we needed to see from him in order to negotiate an equitable adjustment. RE: Price Adjustments. Many of the modifications DID involve price adjustments, but the CLIN involved essentially only provides the Contractor a mechanism to reimburse about a 75% portion of direct costs, so now he's seeking an adjustment for recompense related to the remainder of his direct costs, OH, and profit. I know, it sounds convoluted, and to a certain extent it is, but at the end of the day it is what it is. It's a price mechanism under contract that works perfectly fine, if only the Government hadn't gone and doubled the contract magnitude and halved the performance duration over the course of five modifications... RE: Consideration. There was nothing formally negotiated at the issuance of each modification, however there were some concessions that the COR & QA team has had to make along the way--i.e. they had to lax some performance standards & forego certain recurring deliverables so that the contractor could focus on the most important PWS elements. However none of this is adequately documented and there are, in retrospect, various discrepancies between the Government's account of things and the contractor's. RE: Scope & Mod Authority. I get that 52.243-1 and 52.212-4(c) are used for in-scope mods, and I'm getting the sense from our legal office that they prefer us to keep it in scope. I just don't see how that's the case and it seems to me that somewhere along the way we breached into out-of-scope territory... We've been instructed via agency policy not to use the term "mutual agreement of the parties" and instead cite a specific FAR authority.
  9. Hello WIFCON! Would love some input here from any knowledgeable folks about this... I am an Army PCO tasked with negotiating a request for equitable adjustment (REA) on a fixed price commercial contract for severable services that I recently inherited from a predecessor PCO. It's $5.6M, five year contract (base + four option years). The initial award was about two years ago--we are currently in the first option year. Shortly after award, during the base year, the Government realized it had vastly underestimated the magnitude and needed additional performance out of the contractor, and so the contract was modified (five times over the course of the first two years) to pull forward performance scope from the out years. So now the contractor has submitted an REA for additional OH costs related to administrative burden and greater than anticipated subcontracting costs in order to meet accelerated deadlines. The REA amount is significant, and the circumstances are much more complicated than what I'm able to provide in this forum, but, basically I've determined the REA has merit, and I'm trying to write up my merit analysis and price negotiation memo. I have a few questions I'm hoping someone can help me with. THANKS! SCOPE: As I said, I'm inclined to determine the REA has merit, but my analysis leads me to believe that we're dealing with an out of scope change. I say this after reviewing the Contract Attorney's Deskbook (Chapter 21), which outlines several factors to consider for scope determinations. Ultimately, to me the cumulative effect of all the prior changes may have constituted a "cardinal change". If that's the case, what's the change authority I'd use for the modification? In my experience, typically out of scope changes require a J&A, and with a J&A I'd use the applicable J&A authority as my mod authority--but that doesn't make sense since this is an REA, right? I'm not going to write up a J&A for all the contract changes that ALREADY happened am I? (Seems to me the modification associated with the negotiated REA is only to equitably adjust the contract as a result of the constructive changes leading up to this point.) Often I use the changes clause 52.243-1 as my modification authority, but it's my understanding that the changes clause 52.243-1 is only good for WITHIN-SCOPE changes. And since this is an REA and not a claim (yet, at least), using the disputes clause 52.233-1 wouldn't be correct either. So what do I put in the SF-30? FUNDS: I assume the fiscal law associated with an REA is the same as any other modification? I.e. Within scope modifications use award year money and out of scope modifications use current year money? Other related details: each of the aforementioned modifications were done bilaterally. The contractor signed each SF30 without a price proposal, but all along he was corresponding with the PCO and COR that he felt the contract scope was creeping larger and larger and as a result he was facing cost impacts he hadn't anticipated.
  10. Thanks for the input. I'm not sure the Brook Act and fair opportunity are mutually exclusive, however. I.E. fair opportunity doesn't have to consider price when acquiring A-E services under a multiple award IDC. EP 715-1-7, ¶2-8(e) also defines an A-E MATOC as (1) a single announcement that leads to multiple IDC's and (2) a group of contracts for a particular program or specific area with same/similar services. EP 715-1-7, Appx O, Item 16 has a bullet for (1) number of contracts and (2) method used to allocate task orders BOTTOM LINE? For me, all this simply means no matter what arrangement you choose, the agency's rationale for selecting one IDC over another should be (1) qualfications based and (2) documented for the contract file. If you do that seems to me you've satisfied both the Brooks Act AND fair opportunity. ************************************************************************************************** EP 715-1-7, ¶2-8(e): e. Indefinite Delivery Contracts (IDCs). Indefinite delivery contracts are the predominant contract type used for A-E services in USACE. IDCs must comply with FAR 16.5, and FAR 36.601-3-90. IDCs are generally used for recurring types of A-E services where procurement of these services individually by normal announcement, selection, negotiation, and award procedures would not be economical or timely. Task orders for particular projects are negotiated and issued under the terms and conditions of the IDCs. The task order may be Firm Fixed Price, Cost Reimbursement or time and material, as allowed by the terms and conditions of the basic IDC. If more than one award is identified in the synopsis, then multiple SF330s can be considered by the selection panel for negotiation and a series of separate Indefinite Delivery Contracts for A-E services can be awarded. This series of A-E IDCs can be termed Architect-Engineer Multiple Award Task Order Contracts (A-E MATOCs) per AFARS 5116.505-90(c ) if the IDCs are for a specific program or area. The FAR encourages multiple awards from one synopsis if practical; however more than one award from a single FedBizOpps announcement does not necessarily require the multiple award to be an A-E MATOC. An A-E MATOC is basically a group of contracts for a particular program or specific area with same/similar services. A-E MATOCs should not be strictly equated to Multiple Award Task Order Contacts (MATOC) for construction, services or supplies which require price consideration. Regardless of the grouping or terminology used for A-E contracts, the award of task orders under a separate A-E IDC or under a group of A-E IDCs forming MATOCs must be qualification-based contact actions, per the Brooks Act. ************************************************************************************************** ************************************************************************************************** EP 715-1-7, Appendix O, Item 16: - Number of contracts. If multiple contracts, state how rank of firms will relate to award of contracts. - If multiple IDCs, state method to be used to allocate task orders among contracts when two or more IDCs contain the same or similar scopes of work such that a particular task order might be awarded under more than one IDC. See FAR 16.505 for guidance. ************************************************************************************************** NOTES: 1. FAR 36.601-3-90 does not exist. I've always assumed that was a typo and should instead read AFARS 5136.601-3-90 which simply states, "[HQ USACE and HQ NGB] must establish appropriate controls on the use of indefinite-delivery contracts for architect-engineering services by subordinate contracting offices." 2. AFARS 5116.505-90(c ) no longer exists. It used to state, "(c ) With the exception of architect-engineer contracts, price shall be considered in the ordering process..." (see archived AFARS 2013-1)
  11. Would love some input here from any knowledgeable folks about this. If an agency intends to issue a single solicitation for multiple A-E services IDIQ contracts, is that a "multiple award" as defined under FAR 16.505 and does the fair opportunity process apply at the task order level? FAR 16.5 exempts AE IDC's from the statutory multiple award preference, I get that. And the Brooks A-E Act as implemented by FAR 36.6 applies, i get that too. But by logic, if one solicitation results in multiple IDC's it seems that's a "multiple award" situation. And as for Fair Opportunity, I'd think the most appropriate COA would be to articulate in the synopsis how the agency will provide fair opportunity at the task order level by selecting the best A-E for each particulat task order SOW (using competency/qualifications criteria not price). In my experience this issue is consistently something that is discussed inconclusively, since, to me at least, the FAR is a bit convoluted on the topic. The DFARS used to have instruction under citation 216.505-70 (it was ¶(a)(4) I believe) that specificially exempted A-E contracts from fair opportunity under the IDIQ ordering process--however sometime in 2012 or 2013 that content was removed. The USACE's Architect-Engineering Contracting Guide (EP 715-1-7), which was updated in 2012 states at page 4-9 that the Contracting Officer must document the file as to why a particular contractor is selected. Although that's not policy that applies to any non-USACE contracting agencies, they are considered to be one of the premiere A-E contracting agencies across the federal Government. The EP also provides a standard synopsis template (appendix O) that states verbatim, "If multiple IDCs, state method to be used to allocate task orders among contracts when two or more IDCs contain the same or similar scopes of work such that a particular task order might be awarded under more than one IDC. See FAR 16.505 for guidance." Anyone have any experience with this issue?
  12. Perhaps I was unclear--I meant that I don't see how a sole source procurement is permissible. HOWEVER there are different interpretations of all this (as one can easily see in this thread) and I've observed 8(a) sole source procedures used for (one step) DB construction contracts--in such cases the DB construction RFP essentially consists of stated design criteria or includes up to a 35% design (usually developed by a separate AE contract). The 8(a) DB construction contractor proposes price using the criteria / 35% design... and I would hope the technical evaluation considers the A-E qualifications! Absolutely agree on issuing one step task orders under Multiple Award IDIQ that was stood up via the two step process. I've even advocated evaluating price only for task order RFPs when the design criteria is simple enough and the Gov't would gain no added benefit in evaluating the technical approach any further than what was already done during the IDIQ evaluations.
  13. I appreciate all the input! Vern, since you brought it up: the EFARS is obsolete--in 2013 it was replaced by the USACE Acquistion Instruction (UAI). As of the 2014 update the language you referenced that was at EFARS 36.602 (S-101) is gone. However, there are two other pertinent USACE policies: 1) it is mandatory to follow EP 715-1-7 A-E Contracting in USACE when procuring A-E services in the USACE--see Chapter 3, ¶3-15(c ) on page 3-14 which states specifically that a competitive 8(a) procurement for A-E services is permissible but a sole source 8(a) procurement is not. 2) Design-Build Construction is subject to ER 1180-1-9 Design-Build Contracting--see paragraphs 8(a), 8(c ), 8(e). Although neither's scope extends beyond the USACE, both of these local policies, for me, are logically sound, and contain a fair amount of non-USACE regulatory & statutory references on which they are based. Joel, I agree that DB should be two phase, competitive. In my observation typically the 8(a) sole source DB RFP's go out for bid with the design criteria specified or sometimes with a 35% design--the DB contractor takes it from there to price their proposal. I would hope the technical qualifications of the DB team get evaluated, not just the price.
  14. For what it's worth, I don't see how FAR 39.2 is anywhere near applicable to accepting proposals. The contractor that built the file-exchange system through which we accept the proposals--presumablly that system was subject to the Sect 508 standards since it was a deliverable--but taking proposals from an Offeror doesn't seem pertinent to the intent behind the Rehabilitation Act or the Architectural and Transportation Barriers Compliance Board Electronic and Information Technology (EIT) Accessibility Standards. My office has recently adopted the practice of accepting proposals electronically, when appropriate (which is nearly always in my experience). Our submittal Instructions wouldn't address Section 508 unless we're acquiring EIT... See for e.g. in RFP section L at "https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=df7945c5e28c4e6b154e81dc7128d1ec&_cview=0".
  15. That was me both here and at AAP. I understood the AAP response to to mean that the "this" of "you may do this" in the first sentence refers to pursuing an 8(a) sole source award in general--to do so you must have a qualified source. However the second sentence is more to the point pertaining to this specific scenario (DB construction implemented via FAR Subpart 36.3). You have good questions about how one would evaluate the AE qualifications in a sole source DB solicitation. I'm intrigued as well. It'll most likely go on until instruction not to, direct and in no uncertain terms, is provided from above.
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