Jacques

Is there a way to avoid the contract without concluding (or having reason to believe) the contractor engaged in fraud? "An award is plainly or palpably illegal if the award was made contrary to statutory or regulatory requirements because of some action or statement by the contractor, or if the contractor was on direct notice that the procedures followed were unlawful." Maintenance Serv. & Sales Corp., 70 Comp. Gen. 664 (1991), discussed in Cibinic & Nash, Administration of Government Contracts (3d Ed. 1995), at 25. While the contractor may not have known that its rep & cert (or whatever document it provided to the SBA) was false, that fact is that it was, and but for the contractor's (likely negligent) representation, no award under 8(a) would have occurred.

Thanks, Vern. Once again, I'm guilty of doing my homework after posting. 10 USC 2304(g)(1) answered the mail for me. As my question was groundless, I thought better to delete it.

deleted

Did the solicitation say you were using streamlined procedures under FAR Subpart 12.6?

Some resources are available at PDUSD(P&R)'s insourcing website here. While I saw something specific to AbilityOne, I did not see any guidance specific to small business (though there are a number of news articles collected there).

Don, I appreciate your patience as I struggle. It seems to me that either what you're describing is a soft option (that would require a sole source justification), or the government can exercise the option unilaterally. On soft options, see Ralph C. Nash, Options for Additional Years of Work: Are They Overused?, 23 N&CR ? 4 (Jan. 2009); Cibinic & Nash, Formation of Government Contracts (3d Ed. 1998), at 1277. You seem to be saying FAR 17.207(f) is not an issue because you have evaluated AN option, but apparently not THE option you intend to exercise. If the option has changed as a result of negotiation in a way different from what would have resulted under the terms of the basic contract (e.g., equitable adjustments under Changes clause, etc.), wouldn't FAR 17.207(f) present a hurdle?

Don, It isn't clear to me how well-defined the requirements are at (1) the time the basic is awarded; and (2) the time the option is exercised. More importantly, it isn't clear to me how well-defined you feel they need to be before binding a contractor to a fixed fee. As this is a CPAF contract, I would suggest the requirements need not be more defined than your facts suggest. It seems we know enough to know when the contractor is complete--the ships are repaired. What differs is the initial state of the ships. For a cost-reimbursement contract, your facts don't seem like they would preclude responsible offerors from offering a determinable fee for the options. If I've missed the "boat," and the requirement (WRT to option) at the time the basic is awarded is so illusive as to preclude an agreement on a formula for determining fee, it doesn't really sound much like an option to me (in the FAR 17.207(f) sense--but a duty to negotiate in good faith). Perhaps more details would be helpful.

If you're just looking for a primer, you may want to take a look at the Contract Pricing Reference Guides (referenced at FAR 15.404-1(a)(7)), esp. Vol. 1, Ch. 1, at Section I.2.1. This section is discussed in Nash & Cibinic, Contract Prices: What is a "Fair and Reasonable" Price?, 15 Nash & Cibinic Report P 22 (April 2001).

What has to be renegotiated? I would suggest no J&A is required if the requirements of FAR 17.207(f)(3) are met. It provides:

Is the "GPS engineering equipment" a commercial item? If so, remember: "Procurements conducted under simplified acquisition procedures are exempt from the statutory requirement to obtain full and open competition; instead, contracting officers are required to promote competition to the maximum extent practicable. 10 U.S.C. ? 2304(g)(3) (1994); FAR ?? 13.104, 13.501(a)." American Eurocopter Corp., B-283700, Dec. 16, 1999, 99-2 CPD ? 110. While the cases discussed above are persuasive, I suspect the GAO would be a little more deferential if the item is, in fact, commercial.

If I'm reading the facts right, the basic for this ID/IQ already contains FFP and T&M CLINs, and leaves it to the parties to decide which is appropriate. If so, I don't see a scope of the competition issue. If the contract also already permits Fixed-Price Incentive (Firm Target) CLINs, this may protect the government more than simply issuing this as a T&M and then hoping the contractor will later agree to a bilateral modification to convert to FFP.

Seeker, one of us is being too subtle for the other. Under FOIA today, the agency makes the initial determination of what is released and what is not. Disappointed requesters or submitters bring suit against the agency if they disagree with the result. What I'm suggesting is take the agency out of the equation.

IMHO, the contracting activity should be less involved, not more involved, in release of government contracts. The real parties in interest are the requester and the submitter (contractor), and the contracting activity is currently stuck in the middle with a set of (largely court-made) rules that are far too fact-specific to permit efficient processing. If I had my way, I'd have an arrangement where the requester and the contractor can fight it out before some neutral (preferably with some procurement expertise, but ideally not the contracting activity). Those portions of the contract that were found releasable could be posted. Hopefully you could structure the incentives to avoid frivilous positions from either side; e.g., the losing party would be responsible for paying costs and the prevailing party's attorneys' fees, and none of the litigation costs would be allowable. (To avoid deadbeat requesters, one could require a bond.) (Stepping down from soapbox...)

You lost me. What rate(s) do you intend to put in the basic? I'm assuming the delivery orders will be FFP or LH. Is that right?

You may want to take a look at "Treating a Task Order as the IDIQ ordering instrument"

Are you just evaluating price, LPTA, or will you be trading price against technical, past performance, etc.? Just out of curiousity, is this a new or recurring requirement? Do you intend to put labor categories and rates in the basic, and issue orders where the only variable is hours and mix?

Two scenarios: (1) The absence of the contractual provision is because the CO omitted a required clause that implements a significant or deeply engrained public policy. (2) The absence of the contractual provision is either because the CO omitted a clause that doesn't meet this test; or because there is no provision. For Scenario #1, I'm not going to be surprised when the court reads the clause into my contract, because the government CO acted beyond his authority in omitting it. For Scenarios #2, I'm not contractually bound. Everything else is "gee wizz."

I would use the Christian Doctrine as my guide.

Perhaps CW Gov't Travel, Inc.--Recons., et al., B-295530.2 et al, July 25, 2005, 2005 CPD 139.

Vern, I must have been projecting my desire that Kathryn Huddleston & Associates, Ltd., B-289453, Mar. 11, 2002, 2002 CPD ? 57 and Finlen Complex, Inc., B-288280, Oct. 10, 2001, 2001 CPD ? 167, be limited to their facts. I have not been able to find a post-Finlen decision involving negotiations under simplified acquisition procedures where the GAO has denied a protest involving negotiations with some, but not all, vendors, where the agency didn't argue that it met the requirements of FAR 15.306 & .307. This isn't an argument, it's just an observation. I worry--hopefully unfounded--that a future GAO decision will cite cases like Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD ? 79 for the proposition that "It is the actions of the parties that determine whether discussions have been held and not merely the characterization of the communications by the agency" and reinterpret the facts of Huddleston to conclude that "Discussions occur when a procuring agency provides a vendor with the opportunity to revise or modify its quotation." American Floor Consultants & Installations, Inc., B-294934; B-294934.2, Dec. 16, 2004, 2004 CPD ? 248, at 2. All of this is neither here nor there if the agency describes how it's going to handle negotiations in the solicitation.

Dear Forum Readers, please allow me to apologize for all of my posts to date. Clear writing is a reflection of clear thinking, and I apparently don't think clearly. The shoe is now on the other foot, and I'm being asked to decipher a post that looks remarkably like the stuff I've posted in haste to attempt to make my point. Hopefully I'll remember in the future that haste makes waste, and that stream of consciousness makes the job of figuring out my point difficult for my fellow readers. Thanks, Garth.

Use your imagination and experience (and/or the experience of others). Think of times when you've wanted to negotiate but felt constrained. What do you wish you could have been able to do (consistent with basic fairness)? mskitty, I don't have a good answer for you. Everyone's conception of basic fairness is different. But almost any attempt would probably be better than where we are today. Maybe it's worth a try.

PS: I don't think the answer is less in the solicitation, I think it is more. If you don't want to GAO to fill the gaps, fill them in advance. Describe how the government intends to handle negotiations.

It seems like you're looking for a test case to get the GAO decisions "back on track." It is rational?though perhaps short-sighted?for a CO to want to avoid an area where the trend in the decisions appears to try to contain CO's discretion and limit flexibility. While the decisions are the problem, I'm not sure one correct decision is the solution. Courts and the GAO have a tendency to "fill the gaps" when they feel flexibility is likely to be "abused" (as they see it). If all we have is FAR 13.106-2(a)(3) to hang our hats on for the proposition that the government can negotiate with some, but not all, vendors (without some safeguards similar to FAR 15.306 & 15.307), I predict the endeavor is doomed to failure. (The default language on discussions in FAR provision 52.212-1 doesn't help, either.) Simplified acquisition is a volume business, often with inexperienced buyers and COs. I work in a bureaucracy. If and when we break this code, the government is going to need something to institutionalize the tried and tested procedures that the GAO and COFC can live with. Acquisition reform (IMHO) does not have its own institutional momentum?it must be taught to each new cohort.

Vern, I sense your tongue is deeply embedded in your cheek, but this is the most pragmatic statement related to simplified acquisition I've heard in a long time. Is Part 13 a tool or a religion? Put differently, if you had a map (or a GPS receiver) that took you to the wrong location as often as Part 13 brought you to the wrong side of a protest decision, you?d throw it out and get a new map. It's time for a new map.