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Vern Edwards

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Everything posted by Vern Edwards

  1. Vern Edwards

    Fully Fund Policy

    I explained why. They think it because of what the DOD FMR says. The DOD FMR says what it does because of GAO case law. There is nothing more to understand.
  2. Vern Edwards

    How Do You Feel About Your Work?

    It's too bad. The story does not surprise me. The level of competence in contracting today is at rock bottom. I would not recommend contracting as a career field to any young person who could do anything else, unless for a specific office doing specific work under a manager I know well. Even then, my recommendation would come with several caveats. Just an hour ago I received an email from someone that forwarded a string of emails concerning a contract modification. The manager of the contracting office came across as a dunderheaded bureaucrat instead of a problem-solver. Sad to say, in my experience, he is the norm. All I could say was: You have my sympathy. It's too bad. Contracting is important and can be interesting and fun if you're working for a good boss and with smart coworkers. But every contracting person of my generation whom I know and respect is deeply discouraged and looking forward to the end of their career.
  3. Thank you, Formerfed. I didn't trust myself to respond to that last post. (Sigh.)
  4. In my opinion, modification of the contract to apply the option for increased quantity to the requirements of a later fiscal year would be outside of the scope of the competition and a successfully protestable course of action. The same applies to modification of the contract to add FAR 52.217-9.
  5. Vern Edwards

    Fully Fund Policy

    1102pleb: The question you asked at the end of your last post is a distraction and I'm going to ignore it. It was a newbie question and a dumb one. How would the answer help you with your problem? I asked earlier if you are a newbie. I don't recall that you answered. I'm not usually as patient as I have been with people who aren't newbies. Suggestion: Issue a task order with options to extend the task order period of performance? The basic order could be for services covered by your initial funding. You could include options to extend the service by one week, one month, two months, etc., whatever makes sense, and exercise them as additional funds become available. You would have to comply with FAR 17.207 each time you exercise one of the options, but you wouldn't have to conduct a new competition. In anticipation of your next question: Yes, you may include options in a task order, unless your agency's policy or local policy forbids. I think that your problem is simple and that there are any number of things that a competent CO could figure out to do. It's time for someone in your organization to put on a thinking cap or find work that they know how to do.
  6. Vern Edwards

    ACAT I

    Thought so. It sounded like an intern research assignment. In order to be thorough, read FAR Subpart 7.1 and the DFARs and your agency FAR supplement. Then read DOD Directive 5000.1 (current as of November 20, 2007, and DOD Instruction 5000.2 (Dec 2008) to learn about major system programs and acquisition program categories.
  7. Vern Edwards

    Fully Fund Policy

    Carl: The funding issue is interesting, isn't it? As for the practical side, I, like you, think that there must be a simple solution. I'm not making any suggestions because I don't fully understand the requirement. But have at it. Vern
  8. Vern Edwards

    ACAT I

    I found no express requirement in DODI 5000.2, FAR, DFARS, or the PGI to mention acquisition category status in an acquisition plan. However, arguably, PGI 207.105(a)(1)(a) effectively requires that you mention it. In any case, how hard would it be to mention it and how could it hurt? Frankly, it isn't worth time to research this question (unless you're an intern and they told you to do it for training purposes). Just throw in a couple of sentences in the plan to the effect that the acquisition is for an ACAT I program.
  9. Vern Edwards

    Fully Fund Policy

    Assuming that the support not for one or more particular installation(s), but for a period of time, e.g., monthly, it sounds severable to me. But if it's for one or more particular installations, then it's probably non-severable.
  10. Vern Edwards

    Competing A/E IDIQs

    What do you mean by "mini source selection"? What does one of those look like?
  11. The most important thing for you to do is to provide exactly the information requested by the Government in its RFP. So read the RFP carefully to see what it asks you for with respect to subcontractors, and then submit that information. If the RFP does not ask you to identify subcontractors, then I wouldn't, unless the fellow is very well known and information about him would give you a competitive edge. See FAR Subpart 9.6 about teaming agreements. An advance agreement between a prime and a prospective subcontractor is a teaming agreement. See the definition in FAR 9.601. You don't need a teaming agreement, unless you want to try to lock the fellow into a subcontract with you and not with anyone else and to prevent him from disclosing any information to a competitor. If you need a teaming agreement you should hire a knowledgeable attorney to write one for you. Don't borrow an agreement from someone else and then cut and paste.
  12. Vern Edwards

    IFF on ODCs

    I searched and found a total of 14 court and board decisions that mention the IFF, mostly board of contract appeals decisions going back to 1999. Not one dealt with your issue. Please don't ask me to type out a list. If this is a serious issue for you, then I suggest that you retain an attorney. Good luck.
  13. There is nothing "tricky" about this. Tell them to provide you with a detailed estimate of the costs incurred under the UCA, and backup for the estimate that includes a detailed description of the work done in response to the changed condition, then go ahead and negotiate an adjustment to the estimated cost and fee. What else can you do? Nothing. Be conservative when it comes to fee, because costs have already been incurred and because the contractor cannot segregate its costs. Write a good price negotiation memorandum.
  14. Vern Edwards

    Fully Fund Policy

    Let me suggest that you check my explanation with the financial office to see if mine matches theirs. They may have a different reason for requiring full funding than the one I have given. I think that the idea behind establishing new CLINs or subclins, each with its own period of performance, is to make the services severable, and thus incrementally fundable, but I'm not sure. You should ask for an explanation. Contract funding is an extremely complex and mysterious business. I'm not sure that GAO is right when it says: "Whether a contract is for severable or nonseverable services affects how the agency may fund the contract; severable services contracts may be incrementally funded, while non-severable services contracts must be fully funded at the time of the award of the contract. 73 Comp. Gen. 77; 71 Comp. Gen. 428 (1992)." I think that is right if incremental funding of nonseverable services would cross fiscal years and result in a violation of the Bona Fide Needs Rule. That was the case in 73 Comp. Gen. 77. But see 71 Comp. Gen. 428, in which the GAO stated the rule as follows: "[A] contract for services, entire in nature (i.e., ?that cannot feasibly be subdivided for separate performance in each fiscal year?) may not be funded in increments across fiscal years." If a non-severable service does not cross a fiscal year, and there would be no bona fide needs or Antideficiency Act violation, then why can't it be funded incrementally using the Limitation of Funds clause? I don't think that question has ever come before GAO. Probably because incremental funding in such a case did not make much sense in the distant past. Why bother with it if the funds come from one source and are available? But with contracts like Seaport, in which funds might come from different offices, each doing its own thing with annual funds management, incremental funding within a fiscal year makes more sense. If your non-severable service is provided entirely within a single fiscal year, and will be entirely paid for with the funds of that fiscal year, then there would be no violation of the Bona Fide Needs Rule. If that is the case, then I don't know why you cannot incrementally fund the contract under the Limitation of Funds clause. Does your OPN CLIN cross fiscal years? As for alternative solutions, that's hard without knowing more about the requirement. You said that you're buying "installation" services, but I still don't know exactly what the contractor is doing for each of your customers, and without that knowledge I can't make intelligent suggestions. I'm sure that there are other solutions (there almost always are), but I'm not sure what they might be in your case. If you want to provide more info, then I'm willing to continue the discussion. Of course, if you could get your customers to quit fooling around and provide the money up front, that would be a good thing.
  15. Vern Edwards

    IFF on ODCs

    Did you try reading the IFF clause in the schedule--552.238-74? It tells you what reportable sales include. IFF applies to reportable sales. The standard version in the GSAR says: That appears to exclude sales of non-schedule ODCs. The GSA website about 72A Quarterly Reporting, http://72a.gsa.gov/ifffaq.cfm#16, answers a FAQ as follows:
  16. Vern Edwards

    Fully Fund Policy

    Carl, I thought about that, too. But the funding issue is so complicated that I didn't want to ask a question or make a critique or recommendation that was tangential to 1102pleb's initial inquiry. Except for one brief loss of self-control during which I suggested task orders, I managed to limit myself to providing the explanation he asked for. Except for Joel's interjections, I have managed to keep the thread within its original bounds, which made it easier for me to communicate with 1102pleb. I'm waiting now to see if what I wrote makes sense to him. Do you think it makes sense? Vern
  17. Vern Edwards

    Fully Fund Policy

    1102pleb: You asked: I think I now understand your question. This is going to be complicated, so pay close attention. Ultimately, it is GAO's Bona Fide Needs Rule which requires full funding of the OPN work. The case law is implemented in agency-level regulations. In your case, the regulation is the DOD Financial Management Regulation, Vol. 3, Ch. 8, Sec. 080303, which can be accessed here: http://comptroller.defense.gov/fmr/. But it does not expressly say that OPN work must be fully funded. You have to understand some terminology, the case law, and the application of the regulation. Let's start with the case law. See Financial Crimes Enforcement Network-Obligations under a Cost?Reimbursement, Nonseverable Services Contract, Comp. Gen. Dec. B-317139, June 1, 2009, 2009 CPD ? 158: What ruling this means is that when you use OPN funds, which are annual appropriations, to issue a task order for a nonseverable service, you must record an obligation for the entire amount of the OPN subclin (i.e., fully fund it) at the time of award and upon exercise of each option, using funds for the fiscal year for which the work is to be done, even if part of the work will be done in the next fiscal year. The rule does not apply only to OPN funded task subclins, but to all task subclins funded with annual appropriations. (RDT&E funds are not annual appropriations.) The case law is implemented for DOD by the DOD FMR. As I said, you won't find an express statement that contracts funded with procurement money (OPN) must be fully funded. (The world of regulation often does not work that way.) You have to read carefully, understand the terminology, and put two and two together. According to DOD FMR Vol. 3, Ch. 8, para. 080303 C: Your financial office apparently considers your OPN-funded subclin to be for a non-severable service. Thus, it wants you to fund the entire year of OPN service when you award an OPN-funded task order or exercise an OPN-funded option. Why? Because that's what the DOD FMR says, based on the Bona Fide Needs Rule established by the GAO. But your finance office is helping you get around the problem by making you break the option year down into smaller periods so you can fully fund each period separately, when you get the money. As best as I can figure it out, it is treating your non-severable service as if it were severable. Okay, now here is where it might get really confusing. Let?s say that the subclin period of performance for a non-severable service begins on 1 Oct and will end on 30 Sept the following year. You plan to fund the entire subclin with procurement money for that fiscal year, so there is no Bona Fide Needs issue. But you won?t get all the money on day one, because the customers are going to dribble it out, for reasons of their own, whatever those reasons may be. But you'll get it all before the fiscal year expires. Can you use the Limitation of Funds clause, FAR 52.232-22, and fund the subclin incrementally, as the money comes in? Apparently not. Why not? Because the DOD FMR, at Vol. 3, Ch. 8, para. 080303 C. 2, says, ?Non-severable services contracts (such as services to produce a single or unified outcome, product, or report) are ?entire? and must be funded entirely with appropriations available for new obligations at the time the contract is awarded ? .? Underlining added. I think your financial office is interpreting the latter underlined phrase to mean that an obligation for the entire contract amount must be recorded at the time of award. But I don't think that's what the DOD FMR means. I think it means funded entirely with the fiscal year funds that were available at the time the contract was awarded. Note that the FMR passage I quoted does not use the terms "fully fund" or "incrementally fund." I think you could incrementally fund the subclin described above, because would be no violation of the Bona Fide Needs Rule, which is what I think the DOD FMR is written to prevent. Is this explanation clear? The key to all of this is the Bona Fide Needs Rule.
  18. I can't answer Q1 and Q2. As for Q3, Congress passed the law in order to prevent DOD from going around the contracting rules that apply to it by going through another agency. As for Q4, it doesn't help do any of those things.
  19. Vern Edwards

    Fully Fund Policy

    I don't understand your statement: "I'm buying a "Lot" of installation service hours using procurement type funds. The PWS nor the contract states how many hours per installation. So, there is no way to know if a complete installation is being purchased when funds are added to the contract." However, it suggests that you should be using an IDIQ contract. Looking back over your posts, it sounds to me like your "customers" come to you when they need work done and when they have funds and you then mod the contract to add a CLIN for the work. Maybe they come back and want to add work to the task, or add another task, and so you add another CLIN. It does not sound like you have a fully specified task at the outset, with an estimated cost, and are merely allotting funds to the contract for performance in increments as money becomes available. It sounds to me like what you are looking for is a way to avoid adding a new CLIN each time a customer comes to you with money. If that is what this is about, then incremental funding is not the answer. I think you might be confused about incremental funding, but I'm not sure. Incremental funding is a procedure wherein you have a specified job and an estimated cost, say, $1,000,000 to do Job X, and you tell the contractor: "Look, I'm going to allot $250,000 of the $1,000,000 to the contract. That's all I've got right now and that allotment limits our contractual obligations to each other. You must work toward completion of the job until that money is gone. Let me know in advance when you're going to need more money in order to keep working, and, if I've got it, I'll allot more to the contract. You can then continue working toward completion until that next allotment runs out. We'll keep doing that until the job is done or I run out of money, whichever happens first. You don't have to finish the job if I can't come up with more money." You don't incrementally fund a contract for which no price or estimated cost has been established. It's not incremental funding to specify and order performance of a task, enlarge a task, or add more tasks to a contract as funds become available, if that's what you're doing. That's not what incremental funding is about. All I can say now is that I know of no regulation that you can cite that would permit you to do what I think you want to do. I think what you should be doing is issuing tasks under an IDIQ contract, but I'm not sure. Let me ask a question, and I'm not trying to insult you: Are you a newbie? An intern or some other kind of trainee?
  20. Vern Edwards

    Fully Fund Policy

    I'm having trouble understanding what is going on. You're going to have to be more specific. I assume that you are buying supplies. Is that right? If so, what do you mean when you say that the funding dribbles in? Are they coming to you from time to time wanting to buy more supplies? Are you buying additional items or quantities with each dribble? Or are you buying one item or one lot and then building up funding for that item or lot from time to time as the money comes in, setting up a separate CLIN for each dribble? What it sounds like you're doing (or want to do) is incrementally funding the purchase of a single item or lot something within a single fiscal year. It sounds like you're doing that because the organization that you're buying for doesn't have all the money it needs up front, but will have it before the year ends. Is that right?
  21. Vern Edwards

    BAA's and the need for cost or pricing data

    The Competition in Contracting Act statutes require that agencies promote and provide for full and open competition and use competitive procedures. Broad agency announcements are considered competitive procedures for purposes of the law. See FAR 6.102. However, full and open competition does not, in and of itself, yield any particular competitive result. For instance, the result of full and open competition might be that you receive only one proposal. See FAR 6.001, which says: So, by using a broad agency announcement you are using a competitive procedure to promote and provide for full and open competition, but the result might not be adequate price competition, which is an exception to the requirement to obtain cost or pricing data. See FAR 15.403-1( c)(1) for the standards for adequate price competition. Thus, depending on how it's done, a broad agency announcement might not result in adequate price competition, in which case, if the acquisition is above the dollar threshold in FAR 15.403-4(a)(1) and none of the other exceptions applies, the CO would have to require the submission and certification of cost or pricing data.
  22. Vern Edwards

    Fully Fund Policy

    Usually, Congress appropriates funds for the procurement of supplies and military construction on an annual basis. Agencies tell Congress what they plan to buy in the next fiscal year and Congress (hopefully) appropriates funds. (For a description of that process, see GAO's Principles of Federal Appropriations Law, Vol. I, Ch. 1, Sec. D.) According to the Bona Fide Needs Rule (which is case law, see GAO's Principles of Federal Appropriations Law, Vol. I, Ch. 5, Sec. , the funds must be used for the needs of the year in question. Since the appropriation is for one year, the funds must be obligated under contract before the end of the fiscal year for which they were appropriated, which is when the obligational authority will expire. (Don't confuse obligation with expenditure. The contractor might not complete the work and ask for payment until a future year, but must be paid with the funds of the year in question.) The combination of the Bona Fide Needs Rule and the statutory deadline on annual obligational authority is what requires that you fully fund (record an obligation for) the entire contract amount at the time of award. That is where the full funding requirement comes from. This does not apply if Congress appropriates multiple-year funds, as is the case for research and development, or if Congress agrees to fund a capital asset program incrementally. If I have not answered your question, come back, and we'll sort it out.
  23. Vern Edwards

    What is your favorite FAR Part?

    Oh, I never sought perfection, just competence. But some of you have raised the bar by picking on poor ol' Sparky87.
  24. Vern Edwards

    What is your favorite FAR Part?

    Don't worry about it Sparky87. I consider the criticism to be groundless. I'll be reading the posts of certain people very closely in the future, expecting perfection in every sentence.
  25. I should add that a contract for A-E, construction, and facility management services was a poor choice for single award by the Corps of Engineers.
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