Darby8001

In Varicon, the CO received a late proposal and then tried to consider it by extending the deadline. In my scenario, the CO receives a late proposal and does not consider it. Instead, the CO extends the deadline and the offeror submits another proposal before the revised deadline.

Ultimately is there really any difference between the two? The end result is the same.

The COFC rejected the GAO's interpretation of the "late is late" rule in the Geo-Seis Helicopters decision. See http://www.uscfc.usc...W.GEO073007.pdf. The Varicon case that you referenced is specifically mentioned in the decision.

True, but as Vern pointed out those cases are not binding and the two entities dont always agree.

In reality how would any potential offeror even know the reason for the change in proposal due date absent you telling them?

I sense you are leading up to a larger point...?

Question: Can the Government consider a timely proposal from Offeror A?

Sure, an agency may properly extend its closing date at any time in order to enhance competition. See - Varicon Int’l, Inc.; MVM, Inc., B-255808, B-255808.2

CardinalChange,

I acutally finished 77 Days in September, yesterday. For whatever morbid reason I have long been a fan of post-apocalyptic/dystopian stories. "Survivors", by James Wesley Rawles is very good as well as is "Lights Out" by David Crawford(although very wordy).

Last month I read "The Hunger Games" Trilogy by Suzanne Collins. Although written for a teen audience, this is the best book(s) I have read in years.

I will have to check out the others you mentioned. Ever since I purchased a kindle my appetite for reading increased tenfold.

"One Second After" by William R. Forstchen - Story about a Nuclear device detonated in the atmosphere above America causing and EMP and to failure of all electronic systems in the country. Interesting read and more than and little disturbing.

Sounds like two seperate issues. Accept the descope of the work, 44 recepticles for $7,800.00. If you already have coordination that the GOV doesnt require them and both parties agree to the amount of the descope the KO will be hard pressed to really push the issue.

Next address the additional work seperatly with a proposal for the change and negotiate the amount like you would any other change.

There are alot of KO's that try to be bullies, just dont allow yourself to be bullied. The KO will likely back down on the demands.

If the solicitation is for 30 days there is nothing stoping the contractor from turning it in in 2 days or whenever they want. If it is sole source and the contractor turns it in in 2 days I would imagine the CO would not sit around until day 30 to begin looking at it.

Sounds to me like you are just looking for regular progress payments, the clause 52.232-16 is allowed for construction, commodities, and services. There is not really much difference between the three when it comes down to applying the progress payment.

As a certain percentage of the service is complete to the satisfaction of the contract and government, then allow for payment of that percentage. If the service has not been provided satisfactorily then do not pay for it until it is.

In your case it appears you have the following requirement. Dismantle, evaluate, pack/crate/transport to another location, reassemble and test. So once the item(s) are dismantled then pay for it, evaluated pay for it, etc?..

Obviously you will want to have a mutually agreeable percentage for each activity and some agreement to frequency of billing, i.e. once a month.

With the example given I don?t see a need for LD?s. Remember LD?s are intended to help the government recoupe damages for late delivery. If you are intending to use LD?s in a punitive fashion, that is incorrect.

I am with Seeker on this one as well. It is just a FFP contract with some fancy language to trick people in to think they are getting some new great idea.

Suppose you had a FFP service contract to move a couch from one building to the next at a rate of $100. Until you satisfied the SOW and moved the couch you are not due any money but once you moved that couch successfully, as required by the SOW, then you would be due $100.

In Vern?s question ?Offeror X proposes price of $0.00 with proposed incentive that it be paid a stipulated amount upon 100 percent successful performance." For sake of comparison let?s say that the stipulated amount is $100. Until Offeror X meets the requirement of the SOW and moves the couch he is owed nothing. Once he does, then 100% of $100 is owed.

The two scenarios are the same just framed in different words. Also this scenario meets the FAR?s description of FFP

See FAR 16.202-1 A firm-fixed-price contract provides for a price that is not subject to any adjustment on the basis of the contractor?s cost experience in performing the contract. This contract type places upon the contractor maximum risk and full responsibility for all costs and resulting profit or loss.

Vern, you also asked:

?Another question would be: Would the award of the contract constitute an obligation of appropriated funds? Would the CO have to record an obligation by putting a fund cite on the contract document? Or would the award be only a contingent liability??

I would say the CO would need to address how this contract is described. Since I have already stated that I believed it is nothing more than a regular FFP then yes it would constitute an obligation of APF and the CO would need record the obligation accordingly.

In the end I believe the agency was incorrect in assigning any extra credit.

Don,

You swayed me back the other direction. I recind my previous post. Perhaps I was too hasty in my review of the case.

I have been following this thread for a couple of days and would have to say I generally agreed with Don as he made the more compelling argument. However, I did come across the following case that specifically discusses FSS BPA?s and my opinion was swayed.

See AINS, Inc. B-400760.2; B-400760.3, conveniently posted on WIFCON here:

http://www.wifcon.com/cgen/4007602.pdf

The specific quote that changed my opinion is:

?Although Privasoft, Inc. submitted the original quotation, under the facts here we see no basis to object to the establishment of a BPA with Privasoft Corp., the vendor holding the FSS contract. A BPA is not a contract, and orders placed against an FSS BPA are placed against the underlying FSS contract.?

You continue to say that you can?t progress pay service contracts but provide no reference. Please take a look at the clause matrix at FAR 52.301 it clearly identifies that fixed price service contract can have progress payments.

I would venture to say most people are more familiar with options on service and commodities contracts that construction. I am just speaking from personal opinion though.

It's because progress payments on the services side are considered contract financing. There isn't a progress payment clause that allows for progress payments on services. We wouldn't want to pay a contractor 30% of a job and then they just quit on us. Let's say it was for landscaping and they only cut 30% of the grass in a big field, what good what that do us? We pay what the bid schedule says, lump sum, job, deliverable, but not percentage complete.

I have to disagree with you that there isn?t a progress payment clause for services. Take another look at your clause matrix and the prescriptions in the clauses; 52.232-13 through 17 for example.

Your example of the grass cutting could go the same for construction. What good does it do us to build 30% of a building?

An example of a service that I could see progress payments on is building demolition. Imagine a contract to demolish a large structure like a bridge or hospital. Assuming we are paying them not vice versa wouldn?t you think progress payments were appropriate?

Do you have a reference stating bid alternatives are only for construction?

I still don?t see a problem using bid alternates for services. Perhaps you could provide a reference that ties it specifically only to construction. I think many times offices assume certain practices are for one thing only. For example, someone once told me that sealed bidding could only be used for construction.

On another note you mentioned progress payments on contracts for services. Why couldn?t you do them?

dkubis,

Are you talking about options, as in, FAR part 17? If so, I dont see any problem with using them. See the definition of "option" at FAR 2.101.

?Option? means a unilateral right in a contract by which, for a specified time, the Government may elect to purchase additional supplies or services called for by the contract, or may elect to extend the term of the contract.

Darby8001,

I agree but your example is a little off. Ohms is a measure of electrical resistance. I think you mean watts as a measure of power

Sounds good to me...I just made it up and thought it sounded good

Maureen,

If you are discussing simplified, I think you are talking about determining whether or not a proposed item ?meets or exceeds? the salient characteristics listed in a brand name or equal description. See FAR 11.104.

If that is the case then I don?t believe the words carry any special meaning.

For example, a radio must have a power rating of 5 ohms. If that is the only requirement then the proposed product ?meets or exceeds? the requirement when anything 5 ohms or greater is provided.

Is this what you are talking about?

Darby8001,

What about my second question?

I believe Vern already hit that one on the head. The term ?contract? should be interpreted as defined by FAR 2.101.

My point in this whole exercise is that hold final payment until the completion of the complete IDIQ contract is not technically incorrect, but it doesn?t seem to have a valid reason.

As I stated before, the only thing you would accomplish is aggravating you contractor. Imagine if your IDIQ had a $500M ceiling. And your contractor received $100M in orders over a 5 year span. If you held 1% that would result in $1M in withholding. Keep in mind that the contractor still has to pay its bills (i.e. equipment, overhead, subs). So in essence you are withholding a portion contractors profit for potentially 5 years, interest free. I believe if the contractor filed a claim for the final payment, they would win (although I don?t have anything to back that statement).

So is there really a good reason for the withholding if the work is complete and accepted?

Is it fair to say, then, that you interpret the word contract in FAR 52.232-5(h) to mean "task order" and not "whole IDIQ contract" when used in an IDIQ contract? Here's what that paragraph says:

For the sake of argument I would say yes, the clause means task order in question when it says contract. The definition of contract @ 2.101(emphasis added) is:

??Contract? means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications. Contracts do not include grants and cooperative agreements covered by 31 U.S.C.6301, et seq. For discussion of various types of contracts, see Part 16.?

If we were getting to this level of detail I would say the funds themselves are obligated by the task order and not the actual IDIQ contract. Even the minimum would be supplied via a task order. In this case I could argue that referring to the task order as the ?contract? is actually more correct.

Perhaps a CO would withhold because the contractor performed poorly and they want to get better performance on future task orders. The reason for the withholding is beside the point. Assume that there is a good reason. Does the clause give the CO the right to withhold until all work under the IDIQ contract is completed and accepted?

Prior to accepting a project as complete it would generally be inspected right? If there was something that did not conform then the clause 52.246-12 Inspection of Construction would come into play.

? (f) The Contractor shall, without charge, replace or correct work found by the Government not to conform to contract requirements, unless in the public interest the Government consents to accept the work with an appropriate adjustment in contract price. The Contractor shall promptly segregate and remove rejected material from the premises.

(g) If the Contractor does not promptly replace or correct rejected work, the Government may --

(1) By contract or otherwise, replace or correct the work and charge the cost to the Contractor; or

(2) Terminate for default the Contractor?s right to proceed?

If the government accepted and still felt the performance was lacking, and in your example lacking enough to withhold monies, then why issue the contractor any additional task orders? That?s like complaining about how mean your girlfriend is to you but you keep going on dates with her.

Why wouldn't they? FAR 52.228-16 requires performance and payment bonds in the amount of the contract minimum for IDIQ contracts. It doesn't require bonds for each task order.

In construction the clause would be 52.228-15 I think you accidently used 16. While it doesn?t specifically require a bond for each order you would generally require the additional protection for task orders.

?(3) Additional bond protection.

(i) The Government may require additional performance and payment bond protection if the contract price is increased. The increase in protection generally will equal 100 percent of the increase in contract price.?

It would be silly to hold a bond on a $5k minimum guarantee and not on the $10M task order.

Moving on, in Admin of Gov Contracts they discuss the legal effect of final payment: Pg 1203

?Final payment is of ultimate importance to both the contractor and the government, since it may have far-reaching legal effects on each party?s ability to pursue claims against the other.?

I don?t have a WestLaw account but my old GWU Construction Contracting book provides a reference GSBCA 6757, 86-2 BCA 18,810 in which they state:

?withholding in excess of amount needed to correct defective work unreasonable?

In our discussion I believe if we choose to accept the project regardless of the quality of performance and we are not withholding with the purpose to correct defective work, then we should pay the contractor.

Don,

I think a CO should also look at 32.103 ? Progress Payments Under Construction Contracts in which it states:

?Retainage should not be used as a substitute for good contract management, and the contracting officer should not withhold funds without cause.?

The section goes on to say:

?Upon completion of all contract requirements, retained amounts shall be paid promptly.?

My question would be, what would the government gain by not paying the contractor after they have satisfied the requirements of the task order. I believe it would do nothing more than irritate the contractor.

This being construction, would the contractor also have to maintain their bond?

The DOD portion of the project is between 15-20 Mil. So it would not be within the non J&A direct 8(a) award threshold.

I share your opinions that there is no real legitimate reason to have the same firm for the county and DOD. I believe the reason behind the request is about perceived control. It seems the thought process is that if we share the same firm with the county then while they are performing the county's portion of the work then we will have some control. While you and I know this is not the case, the technical side of my team is not easily dissuaded from their preconceived notions.

The technical side of our team has a tendency to use their pay grades, which are far superior to that of the contracting office, to exert a certain amount of political pressure.

In short if their request doesn't break any specific law or regulation then why cant we figure out a way to do it.

Unfortunately I have no access to the county or the grant do to reasons unknown to me. So I am left racking my brain in an attempt to come up with a set of evaluation factors that will ensure both the county and DOD end up with the same contractor.

In the end I believe the contracting office will have to take a stance and dig in our heels on and weather the political storm that will follow.

Who will own the building when construction is complete?

Bear with me as the MOU between the two entities seem to be ever changing. As I understand it the county will own the building and the DOD will maintain it.

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