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Everything posted by longhornjoe

  1. Is anyone aware of a per se restriction against affiliates submitting competing bids on the same procurement? I checked the FAR and didn't find anything on point. I am aware of the provisions under FAR 52.203-2 regarding independent pricing. I'm also aware that GAO will not consider allegations of collusion as a protest ground within its jurisdiction. See King-Fisher Co., B-228316, B-228309 (Comp Gen 1987) (evidence of collusion may affect a CO's responsibility determination but should be pursued by the DOJ). I am curious if anyone believes bids submitted by affiliates would create a presumption of collusion. If so, why would you believe this? Would your answer be different if the government knew or did not know of the affiliation based on the proposals? Perhaps another way to ask this is whether only two bids submitted by affiliated companies would provide adequate price competition for purposes of a negotiated procurement. Thanks.
  2. Thank you for your comments Vern. I will keep plugging away and try to figure this out.
  3. Thank you Vern. If I am making this more complicated, it is because I am not clear on a few things. Doesn't the last comma that appears in the first sentence of 52.216-21(a) eliminate the Schedule as the sole source to define the effective period? I thought you reached this conclusion in your June 26 blog analyzing similar language from 52.216-22. If so, this begs the question, where is the effective period stated? But is this even relevant based on your comment that the effective period should be contemporaneous with the ordering period stated in the Ordering clause? If I understand you correctly, for a contract with a base year and four option years, the dates intially fixed in the Requirements and Ordering clauses should be one year after award (or slightly later as you mentioned) and not for five years initially. Based on the Option clause, one could then extend these dates if and when an option is exercised. But if the dates intially fixed in the Requirements and Ordering clauses provide for five years initially, would you consider the contract's effective period as five years, even before the options had been exercised? It appears to me that in this scenario the ordering period is five years. Also, I do not understand the distinction between the "term" of a Requirements contract and its "effective period?"
  4. My interest is in a commercial item procurement that utilized SF 1449 and also incorporated FAR 52.216-21 Requirements (Oct. 1995), 52.216-8 Ordering (Oct. 1995) and 52.217-9 Option to Extend (Mar 2000). The statement of work, however, provides that the contractor perform certain actions over a five-year period. I am interested in defining or establishing the "effective period" of this contract, for purposes of the Requirements clause. The effective period of a contract incorporating the Requirements clause is important because this period should fix the period of time during which the Government must obtain its requirements from the contractor. Assuming the contract on its face is a one-year base with four option years contract, but the scope requires that the contractor perform work in years two through five, could the effective period of the contract be five years? Under my example, the Government may issue delivery orders for up to five years. And if if the contract is a true option contract, the Government may exercise its option each year. I've read Vern's June 22 and 26, 2009 blogs on the "effective period" of IDIQ contracts and "Task And Delivery Order Contract Period: It's Over When It's Over," 13 No. 7 NASHCIBINIC ¶ 37 (July 1999). I agree with Vern's conclusion that the end of the effective period in the IDIQ contract example he examined is not defined in the Schedule (Sections A-H), but could be either the last date of ordering or the last date of required performance. In my example, it appears to me that the only way to determine the end of the "effective period" is to go through a contract interpretation exercise of the contract documents to discern the parties' intent. A requirements contract provides for delivery orders as does an IDIQ contract, but there appears to me to be a different twist regarding the requirements obligation and how it plays into the "effective period." If the statement of work requires contractor performance in years three, four and five, is the last date of required performance the end of the fifth year? This is also interesting because there are some cases that stand for the proposition that the terms of the contract may limit the Government's right to decline to exercise an option. If the Government had a five-year requirements obligation, perhaps such an obligation would require the Government to exercise options, subject to availability of funds. Would appreciate any thoughts on this.
  5. Fara, I know this doesn't answer your question, but DOD published a handbook a while back on Commercial Items. http://www.acq.osd.mil/dpap/Docs/cihandbook.pdf
  6. Thanks all. Yes, I also also googled the phrase, but I was interested in the experience of people on the board. I agree that the term is incorrect. I am interested because a contracting officer referred to such a contract as a five year contract.
  7. I have a question on common usage in describing a contract period. Has anyone ever heard of an option contract (that provides for a base year and four one-year option periods) being referred to as a "five year contract?" Thanks.
  8. I am trying to better understand requirements contracts as permitted by FAR 52.216-21. First, can anyone recommend a good text or treatise on this topic? I have read Multiyear Procurement: The Different Faces of Congress," in The Nash & Cibinic Report, Vol. 9, No. 7, 40 (July 1995). Next, I'm trying to understand the relationship between a delivery order issued against the underlying requirements contract. Assume the requirements contract is for five years, which basically means the Government will obtain its requirements for the subject of the contract, whatever those requirements are, for five years. If the delivery order is for a base year and includes four options, and the Government decides not to exercise one or more of the options, how does this action affect the requirements contract? Seems to me that the Government must still purchase its obligations from the contractor, if it has any. Now, make the issue more difficult (at least for me). If the underlying requirements contract and delivery order were issued at the same time, can the Government successfully argue that the requirements obligation is only for one year, with options? I believe that the answer to this last question depends on the language of the contract itself and an interpretation of the parties' intent for the term/duration of the underlying requirements contract. But I'm curious if anyone has ever run into this issue before. Thanks.
  9. Does anyone believe any of these recommendations have even a slight chance of getting implemented? I do believe there is a lot of traction to require foreign contractors to consent to US jurisdiction as a condition of award (12.2). Other recommendations, not so much IMO.
  10. FAR 52.244-5 generally identifies the requirements for subcontract competition in negotiated procurements. I view this as a pretty vague regulation with little substance. Can anyone direct me to additional authority that provides more substance regarding a prime contractor's obligation, if any, to recompete subcontracts for long term programs? Consider this hypothetical. Contractor wins a negotiated DOD procurement to develop a piece of hardware with the expectation that the government will purchase the item over an extended period of time, 10 years or more. To win the contract, the prime enters into requirements based subcontract relationships with certain suppliers for key materials. The prime wins the procurement and over time is awarded a series of cost-reimbursable contracts to furnish the item and such contracts are not competitively procured. The prime keeps the same subs for 10-20 years. Will there ever come a time when the prime is expected to recompete the subcontracts that furnished key materials for the series of cost-reimbursable contracts the prime may win over a 10-20 year period? I suspect the answer may lie in 52.244-5's language referring to "the objectives and requirements of the [prime] contract." Perhaps the Government and the contractor have negotiated the subcontract competition issue in the prime contract or some MOU. Perhaps also the prime is expected to conduct cost reasonableness analyses periodically (annually, bi-annually,?) to ensure the Government is getting the right price for the key materials over time, before extending the sub's purchase order. But if anyone is aware of literature to shed light on this, I would appreciate hearing from you. Thanks.
  11. Seems to me that under the hypo, the contractor is running a risk by closing on the asset sale before obtaining the novation. It is possible the government would not recognize the transaction.
  12. I personally believe the two are essentially the same to determine domestic manufactured goods. It really depends on the context of your analysis. What is the domestic compoent of the good you wish to evaluate? The best advice I can give you is to monitor the Federal Register and the proposed rulemaking process. See http://edocket.access.gpo.gov/2009/pdf/E9-7031.pdf and http://edocket.access.gpo.gov/2009/pdf/E9-9073.pdf. Final rules and public comments with responses may provide the best guidance.
  13. The Government did draft the task order. Also, it appears the LD per diem amounts were added to the task order after the contractor submitted its offer to the task order RFP.
  14. Thanks red. The main IDIQ K includes 52.211-12 and the task order contains conflicting info. on LDs and milestones. I think it really boils down to a poorly drafted TO. I couldn't find anything in the FAR other than general provisions concerning use of LDs and the need for the CO to clearly describe the performance period.
  15. I'd like to understand the FAR authority for assessing liquidated damages against delayed interim completion milestones in a construction contract. Has anyone had much experience with this? Any suggestions or best practices? Thanks.
  16. I have a general question about policy/actual practice and would appreciate hearing any experience or thoughts on what would happen in the following situation. The Contracting Officer for a Corps of Engineers contract has issued a final decision on what is effectively a Government claim and demand for the return of disputed monies paid to the Contractor. The CO can send the final decision to the COE's Finance Center and attempt to collect the demand from payments due to the contractor on its other contracts. The Contractor will appeal the CO's final decision to the Court of Federal Claims. Would the CO continue to pursue collection efforts, even though the decision might be overturned by the Court of Federal Claims? Would the Finance Center, absent any further direction from the CO, continue to pursue the collection efforts if the Finance Center learned of the appeal to the Court of Federal Claims? Thanks in advance for your comments or thoughts.
  17. Thanks for the discussion so far. The only other check in section 13 is under 13.A with a reference to 52.249-10. Block 13.C was not checked. No other termination notice has been delivered. The effective date of the mod is the date the CO signed the SF30. The SF30 continuation page purports to be a termination notice and does not address any settlement or agreement terms. I'm not necessarily challenging the CO's action, only trying to understand it and really appreciate everyones' comments.
  18. Can anyone explain why a contracting officer would issue a bilateral modification to the contract using a form SF30 to implement a T4D? The CO checked box 13.E requiring the contractor to return a signed copy. The mod includes all the required information from 49.402-3(g). I don't understand why a CO would issue what appears to be a bilateral mod, rather than send a basic notice to the contractor.
  19. I see your point, thanks Joel. I believe the agency in question is trying to get around the price competition restriction by asking for manhours and labor mix only.
  20. Joel, I don't believe price would be a selection factor because the contract holders have established hourly rates for various labor categories. Do you believe that evaluating the task order, in part, based on the number of hours and the labor mix between labor categories constitutes a price selection?
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