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  1. 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.
  2. 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...).
  3. 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...
  4. 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.
  5. 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.
  6. 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)
  7. 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?
  8. 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.
  9. 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.
  10. 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".
  11. 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.
  12. I apprciate your input. That CofC case does provide good historical context of the project delivery methods in federal procurement. The DAU "professor" seems to agree with the conclusion as well (https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=42&cgiQuestionID=120016). However, it seems the rationale winning more traction is that sole source awards IAW FAR Subpart 19.8 are an appropriate design-build construction contracting method so long as the qualifications of the A-E involved get considered in selecting the appropriate 8(a) firm. Hence a KO may make sole source DB construction contract awards up to $4M--or even $20M, pursuant to FAR 19.805-1(b )(2) and FAR 6.302-5(b )(4).
  13. I'm curious what's y'all's take (Joel in particular) on going 8(a) sole source for DESIGN-BUILD? There's some debate amongst KO's in my contracting shop & legal counsel about whether the Small Business Act (section 8(a) in particular) qualifies as "another acquisition approach authorized by law" as referenced at FAR 36.104, 10USC 2305a, 41USC 253m, and 10 USC 2862 (all linked below). The USACE has an ER 1180-1-9 Design Build Contracting that states that competition and two phase is required as well, but it doesn't address the "another acquisition method authorized by law" question either so it's not bringing any clear resolution to the table. Thanks in advance! ********************************************************************************************************* FAR 36.104(a) [Construction] Methods of Contracting - "(a) Unless the traditional acquisition approach of design-bid-build established under the Brooks Architect-Engineers Act (40 U.S.C. 1101 et seq.) or another acquisition procedure authorized by law is used, the contracting officer shall use the two-phase selection procedures authorized by 10 U.S.C. 2305a or 41 U.S.C. 253m when entering into a contract for the design and construction of a public building, facility, or work, if the contracting officer makes a determination that the procedures are appropriate for use (see subpart 36.3). Other acquisition procedures authorized by law include the procedures established in this part and other parts of this chapter and, for DoD, the design-build process described in 10 U.S.C. 2862." 10 U.S.C. 2305a - ARMED FORCES Design-build selection procedures - "(a) AUTHORIZATION.—Unless the traditional acquisition approach of design-bid-build established under chapter 11 of title 40 is used or another acquisition procedure authorized by law is used, the head of an agency shall use the twophase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection ( of this section that the procedures are appropriate for use." 41 U.S.C. 253m - PUBLIC CONTRACTS Design-build selection procedures - "(a) AUTHORIZATION.—Unless the traditional acquisition approach of design-bid-build established under chapter 11 of title 40 is used or another acquisition procedure authorized by law is used, the head of an agency shall use the twophase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection ( of this section that the procedures are appropriate for use."" 10 U.S.C. 2862 - ARMED FORCES Turn-key selection procedures - "(a) AUTHORITY TO USE.—The Secretary concerned may use one-step turn-key selection procedures for the purpose of entering into contracts for the construction of authorized military construction projects." ER 1180-1-9 DESIGN BUILD CONTRACTING - See paragraphs 8(a), 8©, 8(e). *********************************************************************************************************
  14. mwade, I assume your reference to the Redbook is from Vol. I, Chapter 5B, Section 7 on page 5-34? "In the case of a contract for severable services, a modification providing for increased services must be charged to the fiscal year or years in which the services are rendered, applying the principles discussed in this chapter in section B.5.20 61 Comp. Gen. 184 (1981), aff’d upon reconsideration, B-202222, Aug. 2, 1983; B-224702, Aug. 5, 1987. See also B-235086, Apr. 24, 1991. In 61 Comp. Gen. 184, for example, a contract to provide facilities and staff to operate a project camp was modified in the last month of fiscal year 1980. The modification called for work to be performed in fiscal year 1981. Regardless of whether the contract was viewed as a service contract or a contract to provide facilities, the modification did not meet a bona fide need of fiscal year 1980. The modification amounted to a separate contract and could be charged only to fiscal year 1981 funds, notwithstanding that it purported to modify a contract properly chargeable to fiscal year 1980 funds." My read is that applies to modifications NOT WITHIN the general scope of the contract (as with the paragraphs that precede that paragraph). IN-SCOPE changes are discussed immediately after that paragraph and in the pages that follow it. One applicable excerpt: "If the answer to [the antecedent liability] question is yes, then a within-scope price adjustment, which is requested and approved in a subsequent fiscal year, for example, under the "Changes" clause, will—with one important qualification to be noted later—be charged against the appropriation current at the time the contract was originally executed."
  15. I'm an Army 1102 tasked with awarding a modification to a services contract that affects price. I've encountered a bit of a funding dilemma and I'd appreciate anyone's input on this. My interpretation of the circumstances and the pertinent statutes/regs/rules/etc is that if the KO determines this modification is in-scope then the obligation must utilize award year money. Conversely if the KO determines that the mod is out-of-scope, then current year funds may be utilized--but there must also be a J&A documenting why the work isn't newly competed. There are differing opinions. Any thoughts? CONTRACT DETAILS: The contract is firm fixed price for commercial, "severable" type services for a military customer. It was competitively awarded. The contract's period of performance is one base year (9/2012-9/2013) plus one option year (9/2013-9/2014) in the total amount of ~$10M (incl base + option). The base contract was awarded in Sept 2012, obligated with FY12 O&M funds. The option exercise for the additional year was exercised in Sept 2013, obligated with FY13 O&M funds. MOD DETAILS: The mod is for new, additional work. Whether this work is in-scope or out-of-scope is still under debate. It's definitely related to the work in the original PWS but I personally I believe it's outside the scope (under the criteria cardinal change rule, material change, etc.). The contractor has proposed ~$200k for the mod. Currently, the funds provided are split 75/25 among FY14 and FY13 funds. PERTINENT REGS, RULES, ETC.: The following references have been consulted. FAR Subpart 32.7, Contract Funding - 32.703 provides statues that permits agency heads to fund contracts crossing fiscal years with annual appropriations DFARS 32.7, Contract Funding - 232.703-3 provides 10 USC 2410a as the applicable statute. FAR Part 43 Modifications - silent on the topic DFARS Part 43 Modifications - silent on the topic FAR Part 6 - 6.001 states CICA requirements apply to mods not within the scope of the original contract 2013 FISCAL Law Deskbook - Ch. 3, Sect. VII Use of Expired Funds, Paragraph B Contract Modifications Affecting Price: Subparagraph 1(a) "When a contract modification does not represent a new requirement or liability, but instead only modifies the amount of the government’s preexisting liability, then such a price adjustment is a bona fide need of the same year in which funds were obligated for the original contract." - I.E. IN-SCOPE mods mut use award year funds Subparagraph 1(b )(1) “In general, increases to the quantity of items to be delivered on a contract are viewed as outside the scope of most changes clauses. Thus, a modification to increase quantity will amount to a new obligation chargeable to funds current at the time the modification is made.” - I.E. OUT-OF-SCOPE mod can use current year funds but this would require a J&A IAW FAR 6.3 Subparagraph 1(b )(5) “Severable Services: A modification providing for increased additional deliverable services must be charged to the fiscal year or years in which the services are rendered… Note: In dicta, GAO has suggested that an increased services modification to a contract awarded for 12 months under 2410a would relate back to the funds initially placed on the contract. See GAO Redbook, Volume I,Appropriations Law, page 5-34 (2008). - I.E. this is a gray area but it appears GAO rules that OUT-OF-SCOPE mods for severable services also require award year funds GAO Redbook - Volume I, Appropriations Law, Sect 9a (page 5-44) “10 U.S.C. § 2410a authorizes the military departments to use current fiscal year appropriations to finance severable service contracts into the next fiscal year for a total period not to exceed 1 year” - I.E. the Redbook explains the intent behind the DoD Severable Services permission but is silent whether to use award year or current year funds for an in-sope mod. WIFCON, "Bona Fide Needs Rule" - "…a within-scope price adjustment, which is requested and approved in a subsequent fiscal year [subsequent from the current contract obligation], for example, under the “Changes” clause, will... be charged against the appropriation current at the time the contract was originally executed." - I.E. IN-SCOPE mods mut use award year funds
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