Darby8001

Scenario: A local government (county or city) was given a federal grant to assist in the construction of a building. The amount of the grant will only fund approximately 20% of the project. The remaining 80% will be paid for by a DOD agency. The decision was made that the local government would be responsible for the initial site work and the construction of the slab while the DOD agency would be responsible for everything after that; erection of the building, etc? The DOD is providing the 100% designed package for both efforts. The DOD agency wants the same contractor to be responsible for both portions. Question: How would we accomplish this without violating CICA? My ideas thus far: 1. Have the county hand the funds over to the DOD agency for execution and administration of the contract, much like the COE does around the world. Management shot this idea down as impossible without any real explanation and chocked it up to an unknown political reason. 2. Create one solicitation in which 2 awards will be created, one for the county, and the other for the DOD. Initially this seems possible but I believe the local government would have to follow our FAR. I don?t really know the answer to this and if they would even be willing to do this. My understanding is they are governed by the UCC. Can we do one solicitation and combine FAR and UCC? I don?t think we can. However, I have dug through my various texts and I can?t qualify that statement. 3. Have the local government begin their portion and then the DOD agency can attempt a sole source by citing the authority at 6.302-1(a)(2), i.e. logical follow-on. I think this would be a tough justification and not likely to be approved by the competition advocate. So I consider this a no go. 4. Abandon the requirement to have the same contractor do both portions of the work and have the local government proceed ahead with their portion and allow them to commence work and once their portion is nearing completion the DOD agency will start their requirement (i.e. solicitation, source selection, contract award, etc.). I believe this is the best route. Since there seems to be a clean break in the work required by each side I personally don?t think that it is a requirement for us to use the same contractor. Also, I am not fond of us issuing a contract at the same time as the local government knowing that the site isn?t ready for the erection of the building and we don?t really know how long until the local government portion is complete (estimate is 6 ? 12 month before we could issue NTP). Please let me know if I am off track somewhere or if I am missing a possibility. Thanks in advance?

Are the Davis-Bacon and SCA rates now gonna have max hourly rates? haha I can already imagine the data calls, spreadsheet, and metrics that are being developed

Here is a case that was appealed. The facts leading up are not exactly the same but it answer your point about appeals. Spectrum Security Services, Inc., B-297320.2; B-297320.3, December 29, 2005 ?In conclusion, we find that, in the absence of countervailing reasons, it is inconsistent with the integrity of the Small Business Act, 15 U.S.C. ? 631 et seq., to permit a large business, which was ineligible under the terms of the solicitation, to continue to perform the contract. In this regard, a formal size determination by SBA becomes effective immediately and remains in full force and effect unless and until reversed by SBA?s OHA, 13 C.F.R. ? 121.1009(g)(1), and here OHA has affirmed the determination that Ahuska is not a small business concern.? And later ?We recommend that Ahuska?s contract be terminated and that the agency consider award to Spectrum or the other small business offeror.?

Wynot ? I don?t know if you will find a situation in a size challenge where the SBA will recommend termination. Correct me if I am wrong but I believe (although I haven?t done the research) that their rulings on this issue are merely the size of the company. Don- While the FAR does allow for continued performance on post award size challenges the SBA regs (which the board view as controlling) do not. See - Adams Indus. Servs., Inc., B-280186, Aug, 28, 1998 ?While FAR ? 19.302(j) treats size status protests received after award of a contract as having no applicability to that contract, SBA's regulations, which we view as controlling in this area, provide that "[a] timely filed protest applies to the procurement in question even though a contracting officer awarded the contract prior to receipt of the protest." 13 C.F.R. ? 121.1004©. Moreover, in the absence of countervailing reasons, we view it as inconsistent with the integrity of the competitive procurement system and the intent of the Small Business Act, 15 U.S.C. ?? 631-657a (1994), for an agency to permit a large business, which was ineligible under the terms of the RFQ, to continue to perform. Diagnostic Imaging Tech. Educ. Ctr., Inc., supra.? As for the Tiger case and the issue of whether or not there is an appeal. I have to disagree with your interpretation of the case. I would agree that it would not be appropriate to terminate a contract that is currently under appeal. There is a chance they could win the appeal. However, if the appeal has already happened and the appellate was unsuccessful I do not think the appeal would safe guard them from termination. Otherwise wouldn?t everyone appeal? Also, I don?t think the case is considering the OHA?s decision to hear the appeal a countervailing reason. A countervailing reason is there is another offer that would have and could have been given the award. I guess you all raise good points and in the end we must agree to disagree. I come here to read the good, well thought out discussions. I am glad I finally stopped lurking and got involved in one.

Whynot I have to disagree the statement to keep the contract size (Greystones Consulting Group, Inc., B-402835, June 28, 2010) and (Alliance Detective & Security Service, Inc., B-299342, April 13, 2007) "We view it as inconsistent with the integrity of the procurement system and the intent of the Small Business Act, 15 U.S.C. ?? 631-657a (2006), for an agency to allow a firm to continue performing a contract where the firm was determined after award to be other than small, unless there are countervailing reasons for allowing the award to remain in place. See, e.g., ALATEC, Inc., B-298730, Dec. 4, 2006, 2006 CPD ? 191 at 5-6." Additionally I would say the size determination is relevant to the discussion as that is the sole reason for the termination. Keep in mind I have previously said "Forget about any fraud or misdoings. Assume only a mistake on the part of the contractor was made."

deleted

Vern ? Back when this was going on I couldn?t find a ruling on it one way or the other. But, in the end my opinion was no. To continue the story?..What I did do was deny the termination settlement proposal in its entirety and informed the contractor of their right to submit a claim. The contractor did just that and submitted a certified claim to the ASBCA. Since I had never issued a final decision the board remanded the issue back to the agency to issue a final decision. Now, I would like to pose one final question. Do you as a CO feel it proper to pay out claimed T4C cost on this contract? Forget about any fraud or misdoings. Assume only a mistake on the part of the contractor was made. The government still needs the service and if the contractor was 8(a) they would still have the contract. Maybe I am over simplifying or to harsh but it is hard for me to swallow the government paying out for the mistakes of a contractor. In the end I don?t think there is a definite right or wrong answer. How the members of the Wifcon board would have handled the scenario? I issued a final decision denying the entire claim. Since then I have accepted a position at another agency and my prior agency settled the matter before the ASBCA ruled on it. I think this one would have been a good one to go to the board as I am interested how they would view it.

I would say that the contract was written on the condition that the winning contractor was an 8(a) business. Since they are not, they do not meet the terms and conditions of the contract. When this scenario was actually happening I had a brief conversation with a member of the SBA legal staff on this issue(don't recall his name). He mentioned he didnt recall anyone attempting to terminate for cause on this issue. That said I didnt pursue it any futher but now I am curious what other think.

Now we are getting to the interesting (to me anyway) parts of this discussion. So it appears the courts treat the T4C of a requirements contract different than an IDIQ. I have seen the reference Don provided and would like to add the DOTBCA went into in more detail here: Aviation Specialists, Inc., DOT BCA 1967, O2-1 BCA 31.788 (December 30, 1990) Robert Witte wrote a good digest of the case in a 2003 NCMA article: http://www.ncmahq.org/files/Articles/4733B_CM_Nov03_p44.pdf ?FAA argued that this ?requirements? contract, with no specified minimum, could have been allowed to run its course without ordering and would have incurred no further liability. It contended that it should not be penalized for terminating the contract for convenience. The board noted that ? termination,? the procedure chosen by FAA, altered the rights and obligations of both parties?. And later ?Concurrently, ?FAA gained a valuable right; it no longer had to purchase its requirements from [ASI].? If a new requirement arose, the FAA could solicit another source. To avoid this ?requirements? feature without breaching the contract, FAA established in the contract the ?termination? mechanism, which is to be enforced even if the resulting payment to ASI is greater than it might have been if the contract were not terminated.? If courts allow termination cost in excess of the total orders on a requirements contract, the government is stuck between a rock and a hard place. Now, go back to the termination itself. Is the T4C still the most appropriate? Or, would a termination for cause fit the bill more. Look at 52.212-4(m), emphasis added in bold: ?The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance.? If the contractor is found to be ?other than small? after award on an 8(a) set aside are they complying with the terms and conditions of the contract?

Civ_1102 ? The Company was identified by SBA as 8(a). However, there was apparently some errors in their vetting process and they corrected them once the challenge was formed. Brian ? I would venture to say it happens quite a bit. Don/Vern I went the direction of Vern and denied the proposal in its entirety. Using the language at 52.216-21(d) ?The Government is not required to purchase from the Contractor requirements in excess of any limit on total orders under this contract.? In my office the disagreement with my stance was the excerpt Don pulled from 52.212-4(l) ?Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate? My argument is this. Regardless of how the company received and lost their 8(a) status they have a duty to themselves to protect the interest of their company. They knew the contract was being challenged and they only had an order for 3 months of service. I would think a prudent person would not commit to anything in excess of the total task orders. If they do that is on them. Suppose you have a 1 year requirements contract for an estimated 1000 pies. At the onset of the contract you issue one order for 200 pies. The pie maker anticipating 1000 pies acquires the materials for all 1000. If over the rest of the year you never order any more pies, then you wouldn?t be responsible for the remain 800 pies worth of material would you?

Don, What are your thoughts on providing for a settlement in excess of the total of all delivery orders combined? If the one and only task order was 100% utilized and 100% paid and there is no remaining obligated balance, what would you limit your obligation to?

That is a tricky question. While I personally believe the awardee knew exactly what they were doing there is no firm proof of this. Basically the company has 10+ mini companies that are formed to get 8(a) certification and then once contract end the companies close. My understanding is that once the mini-company files a final tax return with the IRS the earnings of that mini-company no longer apply when determining size. In this instance the owner had too many mini-companies open at the same time and did not file a final tax return to close a larger one until after the challenge. My belief is that someone with the knowledge to do all that successfully, knows well and good and well what they are doing. But.....then again no proof of "bad faith". So, I guess you have to assume good faith?

Hello all, while I have enjoyed this site for years this is my first time to post. Below is a scenario that played out sometime back and is settled in its entirety. However, as this caused a good deal of discussion in my office I am curious to see the opinions of the posters on this board. I tried to synopsize the pertinent fact without droning on but let me know if you need any additional info to provide your opinion. A competitive 8(a) set aside was solicited and awarded as requirements type contract without discussion under Part 15 for commercial transportation services(base year + 4 option years). As this was an 8(a) the pre-award notice normally sent out under 15.503(a) was not required. After award notices were sent out and the unsuccessful competitors were debriefed, an unsuccessful offeror filed a timely size challenge. The awardee was found to be ?other than small? by the SBA. Under appeal the OHA agreed with the SBA?s ruling. Due to the nature of the service the awardee was allowed to perform while the matter was pending resolution. The agency issued one task order for 3 months of service. At the end of the 3 months of service the agency had received the opinion of both the SBA and OHA and decided to terminate the contract for convenience using the clause 52.212-4. The one task order issued was completed and paid in its entirety. As there were no outstanding task orders so the termination applied to the basic contract. The contractor submitted a T4C settlement proposal for a substantial amount of money citing proposal costs and losses due to selling off fleet and several other smaller issues. Now I would like to pose a couple ?what would you do? questions. 1.Since the set aside was for 8(a) and the contractor was found to be ?other than small?, is the T4C appropriate or would you have attempted a T for Cause?(no proof of any malicious intent) 2.Would you entertain settling the cited cost (over $100K) or deny it due to the only order issued is paid in its entirety?