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Everything posted by Jacques

  1. It applies to the CLIN, which is where you list the estimated cost, fixed fee, and total.
  2. I think for most contracts the phrase ends up meaning without any type of premium pay, like hazardous duty, overtime, shift differential, etc.
  3. For DoD, see here: https://www.acq.osd.mil/dpap/policy/policyvault/Class_Deviation_2020-O0013.pdf
  4. Whether the small business plan is purely a "responsibility item" depends on the language of your solicitation. It sounds like your solicitation isn't treating it purely as a responsibility matter, but obviously that depends on the language of the solicitation when read as a whole.
  5. Research pointer: For some reason, the FAR uses the words, "telecommuting" and "telecommute" rather than "teleworking" or "telework."
  6. Well-stated @formerfed. If we kept simplified procedures simple, to include proposals and evaluation criteria, even a complete explanation wouldn't take much effort. While there are simplified procedures for awarding contracts, there is no simplified procedure for handling a protest. With few exceptions, the same protest rules apply regardless of the contract's dollar value. Here's a way to look at it: The "brief explanation" (for FAR Subpart 8.4 and FAR 13.106-3(d)), like the debriefing for Part 15, is not the last step in the source selection process, it is the first step in the bid protest process. Just to be clear, I'm not advocating any particular level of detail. I'm suggesting that the considerations a PCO looks to in deciding the level of detail of an explanation are the same considerations a PCO would look to in deciding the level of detail (beyond the minimum) of a debriefing.
  7. It does depend, and it really depends on the same factors you would consider in providing more than the minimum in a debriefing. I don't want a contracting officer to underestimate the extent to which he or she can impact whether a disappointed offeror protests. Often a good debriefing can prevent protests. Even when that doesn't occur, sometimes a good debriefing can get the disappointed offeror on the clock on a potential protest ground, preventing the piecemeal presentation of allegations later. In either case, you save yourself time later. The effort to defend some of these protests far exceed the effort of a carefully considered explanation of the basis for award. While the debriefing is never a proper ground for a protest, I'm quite sure folks have protested because of the debriefing they received, for instance, they thought the Government was hiding something (like the failure to follow proper procedures). While the dollar value of these actions (where no debriefing is required) are often low enough that rational disappointed offerors don't bother to protest, one need only look at the Latvian Connections LLC line of decisions to realize not everyone behaves as a economically rational actor.
  8. Generally true. Sorry for being semantic, but there are still circumstances where a CoC might be required. However, by evaluating past performance as other than pass/fail, and giving a neutral where there is no relevant past performance, where a neutral would be eligible for award, your past performance evaluation would not amount to a responsibility determination.
  9. I take your post immediately above to mean my second option: "Are you asking how to get the award to the contractor?" Based on the limited facts presented so far, here's my guess. While it won't surprise me if someone disagrees, I think this is a funding action and block 13b is appropriate. If you don't like that, check block 13a and cite to your award fee clause. Regardless, there's no reason this needs to be bilateral.
  10. Any contracting officer that releases a solicitation where a cost reimbursement contract will be awarded on an LPTA basis should lose their warrant. EDIT: I found the quote I was looking for! To quote Mr. Edwards: http://www.wifcon.com/discussion/index.php?/topic/103-economical-lpta/page/2/&tab=comments
  11. I'm sorry that I'm not understanding the question. Are you asking how to change contract type to CPAF? Are you asking how to get the award to the contractor? Are you asking how to modify the award fee plan? If the last, I would start by looking at your award-fee clause. That clause likely provides for unilateral modification of the plan, as FAR 16.406(e)(3) provides, "Insert an appropriate award-fee clause in solicitations and contracts when an award-fee contract is contemplated, provided the clause...expressly provides that the award amount and the award-fee determination methodology are unilateral decisions made solely at the discretion of the Government."
  12. If FAR Subpart 13.5 is available, I don't see anything that would prevent an evaluation based on price alone. Obviously FAR 13.106-1(a)(2) says, "Contracting officers are encouraged to use best value," but it seems to be a tool in the toolbox. EDIT: There might be other rules that prevent it. For instance, for DoD, if the provision at DFARS 252.213-7003 is prescribed, then it seems the Government is required to evaluate past performance, so a "price alone" approach wouldn't be available.
  13. An evaluation based on price alone is NOT the same as an LPTA. An evaluation under simplified procedures based on price alone does not consider quality or risk or whether the quoter's or offeror's proposed approach demonstrates an understanding of the Government's requirements, even on a pass/fail basis, but takes as a given each vendor's promise to perform. So your example above (where you consider understanding) would not be an evaluation based on price alone. As the RFQ should identify the "basis on which award will be made" (FAR 13.106-1(a)(2)), the RFQ should list this criterion if the Government intends to evaluate it. If the RFQ said the evaluation was going to be price alone, but the Government evaluated quotes against additional criteria, that would be solid grounds for protest. Myers Investigative and Security Services, Inc., B-287949.2, July 27, 2001. The simplified procedures at FAR 13.106-1(a)(2) are best understood in contrast to FAR 15.101-1(b) (relative importance) & 15.304(c)(2) (quality). EDIT: All this said, realize the FAR 9.103 related to responsibility still applies even when the sole basis for selecting the apparent successful vendor is price alone (as potentially would the need to go through the SBA's COC process if the apparent successful vendor is a small business and found not responsible).
  14. I'm not familiar with seeing this in a typical term form cost reimbursement effort. The hours represent in the first instance the GOVERNMENT'S obligation. "If the Government fails to order the specified LOE, it is liable for breach of contract damages...." Nash & Cibinic, "Estimates in Level of Effort Contracts: Wrong Contract Type, Wrong Breach," 19 Nash & Cibinic Report ¶ 23 (May 2005). For more information on this contract type, see FAR 16.306(d)(2). Vern's article in 09-11 Briefing Papers (October 2009) and Professor Nash's article at 25 Nash & Cibinic Report ¶ 55 (November 2011) are both useful when considering a CPFF term form effort.
  15. @Sam101 writes: To be blunt, you're not interpreting it correctly. FAR 19.502-2(b)(1), in listing one of the two elements where there must be a reasonable expectation, reads, "Offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns (see paragraph (c) of this section);" (emphasis added). This parenthetical means you have to go to paragraph (c) to fully understand what was just said. Paragraph (c) then makes clear that this requirement related to "products" does NOT apply to construction or services: "For small business set-asides other than for construction or services...". Therefore, for construction and services, the first of two elements at FAR 19.502-2(b) is met if there is a reasonable expectation that offers will be obtained from at least two responsible small business concerns. Period. Full stop. For an example where the GAO sustained a protest that a contract for services should have been set aside, see Library Systems & Services/Internet Systems, Inc., B-244432, Oct. 16, 1991, 91-2 CPD ¶ 337; N&N Travel & Tours, Inc., et al., B-285164.2 et seq., Aug. 31, 2000, 2000 CPD ¶ 146. In LBM, Inc., B-290682, Sept. 18, 2002, 2002 CPD ¶ 157, a decision related to an acquisition involving motor pool transportation services, the GAO focused on the language, "any acquisition over" the dollar threshold (previously $100K, now $150K). (Unrelated aspects of LBM have been overcome by statute, but not this aspect.)
  16. I have no doubt that you subjectively believe that, if DCAA were to take an official position on this question, it would be likely be one with which @Retreadfed would disagree. My problem is that I have not been able to find any official DCAA position, and when I asked this question of DCAA through DCMA, I got the run-around.
  17. Is the company reorganizing and Northrop Grumman Technical Services, Inc. going away? I don't understand on your facts why you are taking for granted that the "transfer of responsibility" is something that inevitably must happen, and the only question is whether it is a novation or a name change.
  18. So I notice folks have already taken issue with this statement. I for one absolutely do not KNOW the Federal Department of Labor enforces state minimum wage laws. While your fact pattern doesn't discuss the location of performance, I'd also like to point out that, for contract performance on a Federal enclave (i.e., a location under exclusive Federal jurisdiction), it remains something of an open question whether the contractor is required to pay its employees performing exclusively on the enclave the state minimum wage: Joshua Waxman, Richard Black & Steven Kaplan, "The Federal Enclave Doctrine: A Potentially Powerful Defense to State Employment Laws," 27-2 Government Contract (May 28, 2013), 12, 14. The article then contrasts Lebron Diaz v. General Security Services Corp., 93 F. Supp.2d 129 (D.P.R. 2000) (finding SCA indicates a clear Congressional authorization for the application of state wage and hour laws) (on the one hand) with Manning v. Gold Belt Falcon LLC, 681 F. Supp.2d 574 (D.N.J. 2010) (finding SCA doesn't) and Bouthner v. Cleveland Constr. Inc., 2011 WL 2976868 (D. Md. July 21, 2011) (finding D-B doesn't).
  19. (emphasis added). Are you saying the ordering procedures that appear in the basic IDIQ contracts say the Government can include options at the task order level if "approved at the agency level"? If not, where are these "ordering instructions"? I guess I misunderstood your original post. I thought you were asking, as between the parties (i.e., the Government as buyer and the prime as seller) whether there is some generally applicable rule that prevents options within task orders. If I'm interpreting your latest post correctly, it seems your question is really about agency policy.
  20. Are the task orders issued unilaterally or negotiated? If issued, which clauses that begin, "52.217-" are in the basic contract? I guess the point I'm trying to make is, it depends of what you mean by, "if the IDIQ allows it." Mere silence in the basic contract may not be enough.
  21. If I'm reading your fact pattern correctly, the contract is SCA-covered, state minimum wages are going up, but for whatever reason, this isn't resulting in an adjustment for purposes of SCA clause. As there is no clause that permits an equitable adjustment, the contractor's contingency related to increased labor costs is one that it is allowed to (and is expected to) price in its initial proposal. This is the corollary to FAR 15.402(c) ("Contracting officers shall...[n]ot include in a contract price any amount for a specified contingency to the extent that the contract provides for a price adjustment based upon the occurrence of that contingency.") Looking forward to future acquisitions, if the Government contracting officer is concerned about volatile labor costs and believes contractors will overprice for that contingency, contract types other than FFP are available, like FP w/ EPA.
  22. Thanks so much. Technically speaking, the definition at FAR 30.001 only applies to the use of those two phrases in FAR Part 30. Those are at FAR 30.604(e) & (h) and FAR 30.605(d) & (h). That said, I think the FAR Council agrees with you, judging from Comment 31 accompanying Federal Acquisition Circular 2005-1. 70 Fed. Reg. 11743, 11748 (March 9, 2005).
  23. If true, that was the piece I was missing. I don't understand how FAR 30.001 supports that conclusion, but you've been doing this a lot longer than I have. In my defense, here's why I thought the IDIQ was the contract: In 1 Accounting for Government Contracts--Cost Accounting Standards § 3.03[5] it states, at least in the context of prepriced IDIQs: Sorry for the confusion. EDIT: I'm feeling a little less ashamed of my bad research, but just a little. Volume 2 of the Section 809 Report, put out in 2018, recommends the CASB add guidance "for CAS applicability to hybrid contracts and indefinite delivery contract vehicles." The Advisory Panel recommends: Vol. 2, at 145. On 17 Jul 18, the CASB, when releasing a different rule, included a Q&A about "hybrid" and IDIQ contracts, stating, 83 Fed. Reg. 33146, 33147 (July 17, 2018). My earlier post made a big assumption that turns out wasn't well-grounded. I didn't understand that at the time, but hopefully I wasn't grossly negligent. While I'm an avid reader of WIFCON, apparently my memory is bad, as I completely forgot about this thread: EDIT (9 Mar 20): While I've slept since the following 2011 thread, it seems particularly on-point:
  24. Your latest post still has me concerned that you are not looking solely at the subcontract, and a $10K ceiling or maximum seems so low that I'm not sure we're talking about the same thing. I recommend you review the slides here, which includes a decision tree on page 8. Perhaps seeing it phrased differently will help. You might also take a look at Appendix 3 to the CPSR Guidebook. EDIT: If your employer has a contracts library, Nash & Cibinic, Cost-Reimbursement Contracting, ch. 8, sec. II is useful. If you have back issues of the Briefing Papers, take a look at Roger N. Boyd & Jeffrey M. Villet, "Cost Accounting Standards Fundamentals," 96-12 Briefing Papers 1 (Nov. 1996). P.P.S. (9 Mar 20): Just for the sake of having all the references in one place, I just found an excellent article: Karen L. Manos & Darrell J. Oyer, "Defining 'Awards' and 'Net Awards' for CAS Coverage," 4-6 Government Contract Costs, Pricing & Accounting Report ¶ 46 (Nov. 2009). It references 7 Nash & Cibinic Report 41 (July 1994).
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