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Whynot

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Everything posted by Whynot

  1. On a Locked Topic: FAR 13.106-2 - Discussions http://www.wifcon.com/discussion/index.php?/topic/2740-far-13106-2-discussions There was discussion on treating vendors fairly as opposed to treating them equally. On a recent case posted on WifCon http://www.wifcon.com/cgen/4113652.pdf The GAO made this comment - see page 14: It is a fundamental principle of government procurement that competition must be based on an equal basis; that is, offerors must be treated equally and be provided with a common basis for the preparation of their proposals. It is creating a bit of confusion for me - there appears to be a distinction that some elements of the acquisition process require equality and others only require fairness.
  2. The recent brief filed by the VA attempts to make a point that orders under the FSS or other MAS contracts are not contracts for the application of various statutes and regulations. Although this is not the main thrust of the case, it would be nice if we could get the Supreme Court to opine on this topic - of which we have had much fun here at wifcon. http://www.scotusblog.com/wp-content/uploads/2015/10/14-916bsunitedstates.pdf
  3. Are commercial T&M contracts subject to DFARS 252.242-7001 and 252.242-7006? The prescriptions only refer to T&M contracts and do not make a distinction between T&M types.
  4. I would imagine that for multiple award IDIQs you give fair opportunity and the award task order to a particular contractor - and if you have a single source IDIQ you just issue an order to the IDIQ contractor. My question to you is under a multiple award IDIQ how to you award an IDIQ Task Order to a single contractor?
  5. Thanks here is the thread. http://www.wifcon.com/discussion/index.php?/topic/749-can-you-issue-an-idiq-off-of-an-idiq/\ Good stuff, doesn't quite hit my question of how to make a single award IDIQ task order.
  6. All I was trying to do was to query the forum on how to award an IDIQ within an IDIQ. I speculated that the original poster’s solicitation that they were evaluating was for a task order that was itself an IDIQ. Given the requirements of FAR 16, such an IDIQ must be awarded to multiple contractors unless only one contractor is acceptable. My query was how to reconcile their being only one acceptable contractor with the solicitation’s best value evaluation requirement. I cited a case that highlighted the problem with such a reconciliation – or at least one way not to do it. I sense that the forum did not understand that I was talking about a task order that was also an IDIQ not just a task order under an IDIQ.
  7. Well that would certainly resolve a lot of my issues – can you provide more support for your position that an IDIQ Task Order is not an IDIQ Contract or not subject to FAR Part 16..
  8. Excellent post. Do you think that for an IDIQ task order under an IDIQ contract that your best value trade off process would meet the exception requirements at FAR 16.504(c )(1)(ii)(D)) to make a single award?
  9. I agree with ji as well. I think the problem the poster is having is similar to what is described in the following case. http://www.wifcon.com/cofc/12-708.pdf On the one hand, the RFP did require the agency to make a best value determination. On the other hand, the FAR nonetheless allowed the agency to award to a single offeror only upon determining that there is a single source that is qualified and capable of performing the work at a reasonable price. Here, the record demonstrates that the agency used a best value determination when it decided to award the contract to a single offeror. That is, the agency selected Concur because it was technically superior and priced lower than CWT. Such determination is inconsistent with FAR 16.504©(1)(ii)(D).
  10. I think the poster may be talking about awarding a single source IDIQ task order under a multiple award IDIQ parent contract. With regards to FAR Part 16, the FAR only allows the agency to award an IDIQ to a single offeror upon determining that there is a single source that is qualified and capable of performing the work at a reasonable price (see FAR 16.504©(1)(ii)(D)). Otherwise you have to make multiple awards per FAR 16.504©. So, for a award of a single award IDIQ task order to go forward this determination has to be made. But, the best value FAR Part 15 evaluation process described in the solicitation also needs to be completed – I think that is what the poster is asking. What comes first? FAR Part 15 or 16, or they happen at the same time, are they independent or dependent on each other? If there is only one acceptable offeror per FAR Part 16, does the evaluation then flip to a LPTA from a best value? The problem is the single source IDIQ task order under a multiple award IDIQ parent contract. How do you do that?
  11. The use of a separate CLIN for Materials in T&M contracting seems to be sanctioned by GSA. www.gsa.gov/graphics/fas/CLINStructure-TandM.doc
  12. I am not disputing that the use of T&M contracts to acquire certain commercial services is authorized or that the use of CR is prohibited – see FAR 12.207(a). I am not disputing that payment of commercial T&M is per FAR 52.212-4 Alt 1 which allows for reimbursement of material in certain situations to be at cost. All I am asking is how strong is the requirement to maximize the use of prices as opposed to the use of costs (see FAR 12.207((1)(iii)) in commercial T&M? If a CLIN is a contract, is it possible to extend the prohibition on CR contract type to a T&M CLIN? The forum says no – so be it.
  13. Yup. A separate CLIN is often used for the Materials in T&M contracting. This CLIN is sometimes CR. Since this post discusses CLINs and Contracts, I was wondering if under commercial T&M contracting if this Material CLIN should be on a price basis to comply with statute. I was hoping that this CLIN must be at price basis if at all possible and only on cost basis as a last resort - not because a government CO prefers it to be at cost.
  14. I disagree. The distinctions do not change the cost reimbursable nature of the contract. Costs, whether audited, estimated or adjusted are still costs. You have either price or cost.
  15. So unless excepted in paragraph (i)(1)(ii)(A) and (D)(2) of your clause, materials are at cost. Cost reimbursement is allowed under commercial T&M.
  16. Aren't materials under T&M contracts often contracted and paid for through a cost reimbursement arrangement? If T&M is allowed under commercial item contracting and CR is not allowed must materials be reimbursed by the government at price under commercial T&M?
  17. I believe that, the regulations indicate that any concern (manufacturer or non manufacturer) that does not offer its own products is a non manufacturer. However, it is interesting to look at your customer’s position. If the NMR is there to protect the small business manufacturer, you would assume that the small business manufacturer would sell its own products to meet the requirements – and not some other products from some other manufacturer. It follows that the small business manufacturer would be the one damaged if a non manufacturer won by offering products from a large business. But the small business manufacturer wins the deal offering products from a large business - who with standing would complain? A small business non manufacturer such as a distributer offering products from a large business does not have standing. Another competing small business manufacturer offering their own products might complain if they lose. Alternatively, a Kit Assembler might be able to pull something off, if it meets the requirements: Organization supplying a kit of supplies or other goods for a special purpose Cannot exceed 500 employees 50% of the total value of the components in the kit must be manufactured by domestic small business concerns – meeting applicable NAICS code and size standards for those components Source directed components, manufactured by large businesses are excluded from the 50% calculation Assembler does not need to be the manufacturer of any of the items in the kit
  18. The agency must do 2 things before inserting the TAA clause: Subpart 25.11 – Solicitation Provisions and Contract Clauses 25.1101 (c ) (1) Insert the clause at 52.225-5, Trade Agreements, in solicitations and contracts valued at $204,000 or more, if the acquisition is covered by the WTO GPA (see subpart 25.4) and the agency has determined that the restrictions of the Buy American statute are not applicable to U.S.-made end products. If the agency has not made such a determination, the contracting officer must follow agency procedures. FAR 25.402(a) (1) The Trade Agreements statute (19 U.S.C. 2501, et seq.) provides the authority for the President to waive the Buy American Act and other discriminatory provisions for eligible products from countries that have signed an international trade agreement with the United States, or that meet certain other criteria, such as being a least developed country. The President has delegated this waiver authority to the U.S. Trade Representative. In acquisitions covered by the WTO GPA, Free Trade Agreements, or the Israeli Trade Act, the USTR has waived the Buy American statute and other discriminatory provisions for eligible products. Offers of eligible products receive equal consideration with domestic offers. Note that the agency must review the acquisition first for BAA applicability before implementing TAA. If there are restrictions that require the mandatory use of BAA then TAA is not triggered. I suggest that if BAA is not required at all then there is no need to proceed with implementing the TAA waiver to BAA. There is simply no need for the TAA waiver if the acquisition is not restricted by the BAA – there is nothing to waive.
  19. I identified the wrong FAR citation. The commercial item exception to BAA is per FAR 25.103(e).
  20. If TAA is an exception to BAA is it reasonable to first look at the exceptions to BAA per FAR 25.202 before activating the TAA provisions? Specifically, if items qualify for the Information technology that is a commercial item exception to BAA per FAR 25.202(a)(4) why would it be necessary to go to the TAA provisions? Under TAA, there is no such exception. Presumably an item could be exempt under BAA and not be TAA compliant although TAA is an exception to BAA. How is this possible?
  21. I would be interested in knowing the answer to this post – as a matter of course without going to the CO. On an 8a set aside are the size standard eligibility limitations, if there are any, moot because the bidder is an 8a? In the absence of some specific limitation in the solicitation, I am not sure that the size standard makes an 8a bidder ineligible for award.
  22. What is an accelerated payment? Is it the same as a prompt payment or could it also include other "types" of payments, say payment for partial delivery or a progress payment?
  23. Makes good sense. Then in my example, with your assumptions, A and B are treated the same, the exempt employee’s direct time is all accounted for (1200 hours) as part of the onsite OH base and is burdened with the onsite OH expense pool. Then all direct contracts worked (onsite and offsite) are allocated cost with the onsite OH burden. Then likewise, for C, 880 hours becomes part of on-site OH expense pool. So, if I understand correctly, the only direct labor eligible to receive offsite OH burden would be that direct labor that is not assigned to a facility or the like
  24. Maybe working through a simple example could help. There are two overhead (OH) pools (offsite and onsite). There is not a separate fringe OH pool. In a year a particular Exempt Employee works: A. 600 hours on various direct off-site contracts B. 600 hours on various direct on-site contracts C. 880 hours of non-productive time (holiday, vacation, sick, training, other) What is a common way to account for this time and what assumptions do we need to make? Is the below approach incorrect? A. 600 hours becomes part of off-site OH base and is burdened with offsite OH expense pool. B. 600 hours becomes part of on-site OH base and is burdened with onsite OH expense pool. C. 440 hours becomes part of off-site OH expense pool and 440 hours becomes part of on-site OH expense pool
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