August

If the item is going to be used, rather than just tested, I worry that if the Government accepts it at no cost there could at least be a perception of the government accepting inappropriate supplemental funding unless there is a procurement process and the consideration provided to the contractor's benefit is defined. I would be inclined to run it as an RFP, and state in the solicitation that the only consideration to the contractor will be the benefit they will receive from having their product tested and evaluated by the government for the government's future research needs. The research might benefit if there could be testing of more than one product - and not have this initial procurement specd to a particular products salient characteristics, but more to what they want to accomplish in their research.

Is there a deadline by which a contractor must invoice for a fixed price contract?

I don't think that is a loophole. If the parties entered into a contract for less than $25,000 with the intentions of modifying the contract to be more than $25,000, in order to avoid the reporting requirements, I would say they were not conducting themselves with the highest degree of integrity and honesty, as required by FAR 3.10.

You can certainly try, but without knowing when the stop work would end, I doubt a contractor would be willing.

That's right, 42.1303 is not a contract clause, so it wouldn't be in the contract, but it does provide the guidance on how to stop contract work.

I think 42.1303 Stop Work Orders, is the place to turn for directions.

I think it comes across in the article referenced, but the circumstances that cause the nets to be lost, usually also cause the nets to be torn up to a point beyond repair. If the fishermen retrieves the net, they are just hauling trash. Sometimes fishermen dump irrepairable nets into the ocean, rather than carry them to port and pay for them to go into trash. COs involved in research areas in which they are not familiar make this kind of mistake. Things often aren't as obvious as they seem. COs have to spend some time asking their customer questions and/or doing some research on their own to understand the objective in research contracts. Too often that doesn't happen. The name or brief subject description of research can make it seem like something simple when it is not.

I am of the same mind as Vern. Research into how to prevent fishing nets from being lost at sea is a whole different field than the fishing net industry. It's possible that the research will result in information that might later be used to regulate the fishing net industry. But being regulated isn't something an industry usually solicites. There is no service to the fishing nets or the fishing net industry in researching fishing net loss. It is not a commercial service. But I think it's a common mistake to think that because a topic of research includes an object made commercially, that the research must be commercial. So, I think this is a good discussion.

Leo1102 and Parkerr - I'm not following why you felt investigating how to prevent fishing net loss would be commercial services. Did you believe it fit one of the definitions that Vern listed from FAR 2.101? If so, which one?

Thanks for the posting, Joel. I think it's good that we continue to evaluate our thoughts and our behaviors - especially on this issue.

I didn't mean to imply the instructor was wrong with the guidance they gave. Thanks for the good feedback Will. I was contemplating starting a new discussion to try to gather feedback on specific training providers, but I hesitate, because I'm not sure what it might do.

Are you able to say who taught the CON 244? Either the company or the individual? I've found a wide variety of quality in CON class instructors, and I'd like to steer toward the better quality instructors.

I think it could cause confusion if exercising the rights of 52.236-15 were communicated by a contract mod. It isn't a change to the terms and conditions, but if it were in a mod, some might interpret it as a change. I disagree that a seperate communication would be required to end the extra efforts. If the CO makes it clear that the extra efforts are required until the contractor is back on schedule, but are not required once the contractor is on schedule, I think the end is defined.

You've done a wonderful thing with WIFCON. Take care of yourself. I want you around for a long time to come.

I know of an instance when the price was not determined reasonable, and the ratification was made at a lower price than what the vendor invoiced for. I don't know whether the vendor pursued the individual who made the unauthorized committment for the balance of the invoice or not. Wouldn't the individual who made the unauthorized committment be held accountable for the costs by the vendor rather than the employee's agency? I would expect the employee's performance record would be affected, but I don't know how the agency would hold the employee accountable for the cost to the vendor.

Point taken. Thanks

It seems obvious that we should never lie, yet there are many who think it's an appropriate negotiating strategy, and defend themselves by carefully crafting their language/actions so they can say it wasn't a lie. (I did talk to Company X, although it was about something unrelated to this procurement.) There are many honest ways to inspire a competitive atmosphere. But for those who choose to walk on the dark side, are there any regulations or cases that might inspire them to do otherwise? The closest thing I can find it FAR 3.101-1. But some still believe that misleading a contractor about the truth of the situation is a behavior that does not violate the direction to conduct business in a "manner above reproach", nor does it cause a concern for breeching "an impeccable standard of conduct". They believe they are serving the governments best interests and are getting the best deal with their techniques. I don't see anything in TINA that seems to speak to this. Is there anything more specific in regulations or cases that you know of?

Can a government negotiator tell a contractor they are negotiating with that the government is going to "talk to Company X" who is one of their competitors, for the purposes of implying the government has an offer from Company X, and the government is negotiating with Company X? When the truth is they don't have an offer from Company X? I believe it is unethical, but I can't find a reference that speaks to such behavior.

Todzilla's list looks good to me. The only other possible suggestion I can think of is audits (through the Audit Clearing House.)

Since the options would not be awarded, I don't follow how 52.215-1(f)(5) is relevant.

I don't understand what benefit there could be in not including options in the base award, if that is what was solicited and offered on. They are only options. Awarding the base does not award the options. If you have 52.217-5 in the solicitation, the options must be evaluated in determining the award. It is possible that evaluating all options could have a different result in the award decision than in evaluating for some of the options. I suppose you could amend the solicitation and remove the options, and provide an opportunity for offerors to provide a revised proposal without options. But why not leave the options there, and if the government does not need them, simply not exercise them? Or might you be asking if you must award all options after the base is awarded? The answer to that question is, no.

Thanks! The distinction between Part 13 and Part 8 BPAs is what I was overlooking.

I have a question related to this original thread on "Basic Agreement in lieu of IDIQ". My office has a practice of issuing single award multiple year BPAs after a competition for the BPA, for commercial items. There are always multiple vendors who can provide for the item, and there are multiple vendors who offer on the BPAs. We solicit for and include prices in the BPA. I don't find anything to expressly prohibit this, or any GAO cases that speak to this specifically, but it seems we are circumventing the intent of the FAR, by narrowing to one BPA award. The call orders are usually placed without negotiation. It makes placing call orders easy, but it feels like we are circumventing real competition. Since a BPA is not binding and either party can end it without cause, doesn't that eliminate the effect of a competitive environment? I'd appreciate feedback on whether anyone knows of regulations or GAO rulings make this acceptable or unacceptable.

If the contractor is offering a billing rate rather than a final rate on a cost-reimbursable contract, it wouldn't have any impact on the actual cost to the government in the end would it?