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amthomf

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Posts posted by amthomf

  1. I definitely respect your opinion so I guess I need to re-analyze. But if you paid for something and you aren't changing the format how much more expensive should it be? Also, you say the deliverable serves little or no useful purpose - If you're in a sole source environment and would like to know how well you did in negotiations, data concerning the actuals may be very valuable to future efforts/negotiations.

  2. Does anyone have experience in working with offsets in the FMS arena? Given the inadequate regulations and policy associated with offsets it seems almost impossible for COs to do their job. For example, DFARS 225.7303-2(a)(3) recognizes the cost of managing offsets as an allowable cost, “A U.S. defense contractor may recover all costs incurred for offset agreements with a foreign government or international organization if the LOA is financed wholly with customer cash or repayable foreign military finance credits”.

    How does one deconflict the aforementioned regulation, given the fact very few contractors provide adequate date to allow for meaningful analysis and fair and reasonable determination, with the following: DFARS 225.7303(a), “Price FMS contracts using the same principles used in pricing other defense contracts. However, application of the pricing principles in FAR Parts 15 and 31 to an FMS contract may result in prices that differ from other defense contract prices for the same item due to the considerations in this section”. Any insight into this topic would be much appreciated.

  3. B-317636 April 21, 2009, pg 14 of 26 - Severable services, which are recurring in nature, are bona fide needs at the time the service is completed, and obligations for severable services should be charged to appropriations current at that time (B-287619, July 5, 2001, at 6). Really?? Am I missing something here?

    So if the AFI is more restrictive than DFARS 232.703-1 in what instance, if any, would an Air Force program ever be able to incrementally fund a firm fixed price O&M effort?

  4. My interpretation of what summerlady51 is trying to say is that if you have a contact, say a CPFF type contract funded with annual appropriations, and the contractor doesn’t have a need for all the funds obligated on the contract to meet the requirements in the contract you cannot use the “unused/money left on the contract” to fund the period of performance extension. This makes sense to me since you would have a bona fide need of the next FY at the time you extend the PoP.

  5. I think a formal requirement for a pledge is of little value added; however, I believe if individuals, such as those that frequent wifcon, were to take a personal pledge to consciously try and improve the acquisition process and document their finding for others to view I think it would be of value. If only there was a forum we could do such a thing….

    For the most part I think all these types of initiatives go back to the fact we need to be thinking in everything we do. The concept of thinking before we do something was detailed in the following blog post by Mr. Edwards – Great Read http://www.wifcon.com/discussion/index.php?/blog/2/entry-3019-think-maybe/ .

    So to address the question as to whether the comments concerning Mr. Kelman’s article are too harsh, I think the answer is yes. Even though the idea is very fluffy you never know who will read it and actually do it. If an individual has a goal of implementing one idea to improve the process, if nothing else, they should be actively thinking about how to improve which I believe is half the battle.

  6. Rios0311,

    You stated that the effort in question is relatively small. Perhaps you could award a single option bilaterally as a new contract if it is under SAT and use the reasoning that you have been discussing throughout the thread as your justification for doing so (See FAR 13.106(B)(1)(ii)). I would go further to quantify the costs of conducting a new competition and demonstrate the benefit of awarding a sole source contract to the Government. Of course before you decided to pursue this path you would need to do adequate market research in order to determine that a new solicitation would result in a more optimal situation for the Government (i.e. better performance, better T&C’s, better price). Once you have the contract in place for a year go out and conduct a new competition. All of this babbling could be for not if a single option is not less than SAT but your reaching so I thought I would reach as well.

  7. Retreadfed,

    52.232-18 isn’t being used as an authority for payment before funds are available, but as the authority to accept supplies or services before funds are available for payment as long as funds have been appropriated. I don’t see a conflict between Cessna and 52.232-18 either. I also don’t believe the Cessna case supports the scenario described in my first sentence – accepting supplies or services as soon as funds are appropriated, regardless if the agency actually has the funds to make payments.

  8. I believe this issue is related to the above post, plus wifcon will not let me start a new topic???

    Is anyone well acquainted with CESSNA AIRCRAFT CO. v. DALTON No. 96-1185? The part the interest me is the Discussion III B. para. 3, which reads, “We reject Cessna's arguments. As noted above, 31 U.S.C. § 1341(a) prohibits the government from making expenditures or incurring obligations before funds have been appropriated. However, as for the apportionment process, addressed by 31 U.S.C. §§ 1511-1519, no such timing limitation exists. For example, section 1512 merely requires appropriations to be apportioned to prevent obligations at rates that could result in the need for a deficiency or supplemental appropriation. Section 1513 provides a time table for carrying out the apportionment process, but is silent on the issue of whether the apportionment process must be carried out before obligations can be incurred. For its part, section 1517 prohibits government officials or employees from authorizing obligations that exceed apportionments, but says nothing about incurring obligations prior to carrying out the apportionment process. In sum, the relevant statutory provisions do not prohibit government agencies from incurring contractual obligations before completing the apportionment process. The remaining sections pertaining to apportionments are similarly silent.”

    The argument is being made that the CESSNA AIRCRAFT CO. v. DALTON case supports an agency’s ability to utilize FAR 52.232-18 (Availability of Funds) and accept supplies or services under the contract as long as funds have been appropriated. Even though FAR 32.703-2© clearly states, “The Government shall not accept supplies or services under a contract conditioned upon the availability of funds until the contracting officer has given the contractor notice, to be confirmed in writing, that funds are available.” Does anyone agree with the above argument?

    Your professional opinion Vern, Don, here_2_help, Joel, and all other challengers is much appreciated.

    Cessna case link:

    http://www.leagle.com/decision-result/?xmldoc/19971568126F3d1442_11403.xml/docbase/CSLWAR2-1986-2006

  9. Since David did not say the FAR and its supplements were in conflict I assume he is referring to a situation where the supplement is more restrictive/requires additional due diligence, such as in the case when only one offer is received in response to a solicitation. FAR 15.403-1©(1)(ii) discusses adequate price competition as being achieved when there was a reasonable expectation, based on market research or other assessment, that two or more responsible offerors, competing independently, would submit priced offers in response to the solicitation. While DFARS 215.371 goes further to supplement the FAR's requirement to justify adequate price competition by levying additional requirements such as resoliciting to allow an additional period of at least 30 days for receipt of proposals.

    Is this a correct interpretation of your question David?

  10. Wvanpup, I understand there is no connection between the two references that you cited; however, I am referring to a R&D effort that is non-severable, where according to several sources (see original post), it is a requirement to fully fund nonseverable services at the time of award. Perhaps FFP R&D is the exception to the rule concerning fully funding nonseverable services.

  11. I wasn't sure if I should start my own post but I thought my question seemed related to the title of the original post.

    DFARS 232.703-1 (FFP Incremental Funding)

    (1) A fixed-price contract may be incrementally funded only if—

    (i) The contract (excluding any options) or any exercised option—

    (A) Is for severable services;

    (
    B)
    Does not exceed one year in length; and

    © Is incrementally funded using funds available (unexpired) as of the date the funds are obligated; or

    (ii) The contract uses funds available from multiple (two or more) fiscal years and—

    (A) The contract is funded with research and development appropriations; or

    (
    B)
    Congress has otherwise authorized incremental funding.

    (2) An incrementally funded fixed-price contract shall be fully funded as soon as funds are available.

    Based on the above and several GAO decisions I would say that one cannot incrementally fund a research and development contract (3600) if it for a non-severable service because non-severable service contracts must be fully funded (B-240264, 73 Comp. Gen. 77, B-238940, 70 comp. Gen. 296).

    However, an Inspector General Report (D-2008-079) has made me question my understanding. The title of the cited report is the "Management of Incremental Funds on Air Force Research, Development, Test, and Evaluation Contracts".

    The part of the report that has made me question my understanding can be found on page 14 of 74, which states (paraphrased) of the 365 CLINs that were Incrementally Funded RDT&E 212 of the CLINs were nonseverable. The IG chose not to review the funding associated with the nonseverable CLINs. Regardless, the fact the report calls out incrementally funding nonseverable CLINs implies to me that they can be incrementally funded. What am I missing? Let's assume they are not talking about incrementally funding a nonseverable CLIN in a single fiscal year as discussed in the previous post.

  12. Google FBO Magazine subscription, you won't necessarily find soliciations out of our office, but you will get a better understanding of how magazine subscriptions can be so expensive. Basically you have multiple magazine subscriptions in one soliciation for entire agencies. I have seen awards over SAT, so this really isn't abnormal. The phrase “Magazine subscriptions” is also a generic way of describing what is purchased out of our office (when talking with peers), it can also include periodicals, online databases, and per-review journals.

  13. So in this case it is a magazine subscription funded with 3600 funds. So yes they need it, in the sense they budgeted for it, but that doesn't mean the money won't get pulled since it is not a priority procurement. I am not overly concerned with this one instance, but as budget constraints increase even more, I expect to see a greater effort by program offices to obligate their funds early (as it relates to the normal process) to ensure their money is not pulled.

    With that said, the question in the initial post has been answered (which happened to be the same question I had) and now it is my responsibility to make good business decisions given my specific situation. Thank you Vern for your assistance.

  14. Well based on your question, my interpretation of the cited FMR in post #9 is incorrect. What I am trying to think through is whether there is an issue with a program obligating funds in year one of a two year appropriation for the purpose of ensuring their funds are not pulled. What makes me believe this is what the program office is trying to do? Well, in the past they would submit a PR for an FY 14 requirement in FY 14 - perhaps they are just more efficient now (sarcasm). Maybe this is no concern of mine and it is not my call since congress appropriated the money for this purpose and there is a bona fide need for the requirement within the appropriations period of availability.

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