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jb208

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About jb208

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  1. It was getting pretty late at night here, but I would just like to clarify and provide a context to what I meant by: We issue a synopsis to advertise proposed contract actions to the public and various stakeholders. The reason we advertise is because it's reasonable to believe that there are stakeholders who may have an interest in what the government is doing. In the case of government contracting, the interest we are serving is providing opportunities for contractors to earn the government's business (aka competition). What I should have said to have been more clear is that the intent of a synopsis is to advertise a proposed contract action when it is reasonable to believe there may be parties who are interested in competing for the requirement, and providing notice of the proposed contract action does not outweigh the administrative burden or risk of harm to the government by providing the notice. Consider a single-source award under FAR 6.302-1. Competition would normally be required, except that certain circumstances surrounding the government's needs or marketplace capabilities prevent competition from being obtained. Therefore, a synopsis is required. Consider an action performed using limited sources under FAR 6.302-2. Competition is also normally required in this situation, except that certain circumstances surrounding the acquisition is exposing the government to significant harm. The government and public are in a symbiotic relationship, and if one harmed, they are both harmed. The greater good is served by minimizing the time required to complete the contract action, rather than issuing a synopsis. Consider the synopsis exception at FAR 5.202( a )( 5 ) for utility services. Most states have public utility commissions that allow or even require utility companies to operate in a monopoly. There is no competition available, and the high barrier to marketplace entry due to laws and startup costs prevents new entrants to the market. In this situation, the administrative cost of a synopsis would provide no benefit to the public because nobody else is reasonably going to come to market and try to compete with the established utility company. Thank you everyone for your responses. I'm in a small office, and your opinions have greatly helped me gain the backing I needed to ensure we are doing things the right way.
  2. Thanks again for your response. My thoughts on the synopsis requirements were leading me to the same conclusion. The FAR is a continual work in progress, and I catch changes here and there that don't always make sense, only to research and find that the discrepancy has been corrected. Gong back to Mr. Mansfield's question, my view of the synopsis is that it's intent is to advertise or provide notice of a contract action where competition is normally required. It tells interested parties what our intentions are in those instances where the public benefit of the notice outweighs the administrative cost. I was really trying to avoid heading too far off topic by addressing trade agreements. Although, I found it curious that normal micro-purchases are exempt from Part 25 in the U.S., but a micro-purchase outside the U.S. could be subject to trade agreements starting at $25k. If we had to synopsize micro-purchases >$25k, it seems to me that we would begin to negate the intended administrative efficiencies of the micro-purchase. The synopsis also wouldn't provide any real benefit to trade agreement nations. We would simply make an award without providing companies from trade agreement nations a realistic or practicable way to compete for our business.
  3. ji, To shine some light on our micro-purchase issue, FAR 13.201( g )( 1 ) provides two thresholds for declared contingencies: (i) $20,000 in the case of any contract to be awarded and performed, or purchase to be made, inside the United States; and (ii) $30,000 in the case of any contract to be awarded and performed, or purchase to be made, outside the United States. So with our office being outside the U.S., where is the purchase actually being made when we buy from a U.S. based company? Is it being made overseas, or where the company is located? I've tried to look at this from what I would describe as a common law perspective by looking at sales taxes. If you buy an item online from a seller out of state, that seller does not have the authority to collect sales tax in your state, and I tend to infer the reason why is because the sale took place at the buyer's location. Following this logic, we are the buyer as the contracting office, and we're located overseas. Therefore, the purchase is being made outside of the U.S. Even if we look at it from the "awarded and performed" perspective, I feel like few would argue that the contract would be awarded outside the U.S., although it may be technically performed in the U.S.. It wouldn't be both awarded AND performed in the U.S., therefore the $30k threshold would apply. If my logic is flawed, or I'm otherwise incorrect, then the micro-purchase in this scenario should be $20k, and my question about synopsizing for micro-purchases above $25k is moot.
  4. ji20874, Thanks for your response. You are right that the exception is FAR 5.202( a )( 12 ) and not FAR 5.202( a )( f ). I didn't double check my reference before I typed it in. The main issue with the exception at FAR 5.202( a )( 2 ) is that we're in the sustainment phase of the contingency, and most of the items we're purchasing can't reasonably be justified as being required under unusual and compelling urgency. Mr. Edwards, I always appreciate your direct responses. Regarding the $25k requirement to synopsize, wouldn't FAR 13.203( a )( 2 ) take precedence if the applicable micro-purchase threshold is $30k? I really see no point in synopsizing if there is no requirement to solicit competitive quotations. Unless our interpretation of the applicability of FAR 13.201( g )( 1 ) is off and the micro-purchase threshold for overseas contingency varies depending on whether we're buying from a contractor outside the U.S. versus inside the U.S.?
  5. I'm a contracting officer currently working overseas in support of a declared contingency for the Department of Defense. We're having a spirited discussion in our office on synopsizing requirements. The most hotly debated topic is the requirement to synopsize through the GPE for requirements >$30k (micro-purchase threshold) when soliciting competition in the United States. FAR 13.106-1( c ) states that oral solicitations can be used when notice is not required under FAR 5.101 and the acquisition does not exceed the SAT ($1M for overseas declared contingency). But FAR 13.106-1( c ) also cautions that oral solicitations may not be practicable unless an exception under FAR 5.202 applies. An exception under FAR 5.202 does apply, but it's FAR 5.202( f ), which states synopsizing is not required when the proposed contract action is by the DoD, and only local sources will be solicited. This is the only exception that applies, and a U.S. based company cannot reasonably be considered a local source. FAR 5.101( a )( 1 ) states that synopsizing is required for actions expected to exceed $25k. FAR 5.101( a )( 2 ) outlines public display requirements for actions between $15k and $25k, but excepts display requirements for actions solicited using oral solicitations (FAR 5.101( a )( 2 )( ii )). The premise of the argument I'm hearing is that FAR 5.101( a )( 2 )( ii ) allows us to solicit companies in the U.S., provided the action is under the SAT, without the need to synopsize. I wholly disagree with this argument due to the fact that our synopsizing requirement falls under FAR 5.101( a )( 1 ) and not FAR 5.101( a )( 2 ). Therefore, any requirement greater than our micro-purchase threshold of $30k where non-local sources are being solicited must be synopsized to the GPE. On a similar note, we also had a spirited discussion on the applicable micro-purchase threshold in our environment. At one point, an argument was being made that the applicable micro-purchase depended on whether or not the acquisition was being awarded to a company inside or outside the U.S. ($20k inside the U.S. and $30k outside the U.S.). However, we all now generally agree that the applicable threshold is $30k, regardless of where the company is located because the purchase is "being made outside of the United States". Thoughts on the synopsizing requirements and feedback on the applicable micro-purchase threshold?
  6. None of the exceptions at FAR 25.401 apply to this acquisition, except the possibility of using a set-aside. Regarding the use of a set-aside, I was anticipating using full and open competition to waive the BAA on the basis of non-availability IAW FAR 25.103( b ). However, I think this is where I started leading myself astray. I was reading FAR 25.103( b )(3) and saw that a written determination of non-availability is not reqired when using FAOC and no offers for domestic end products are received. Even though my market research is very comprehensive, I question whether my agency would agree that it's comprehensive enough for the HCA to sign off on a written individual determination. What I overlooked was FAR 25.103( c ) regarding unreasonable cost. I don't see anything that states FAOC must be provided for when making a determination of unreasonable cost, which brings me to another question: Would it be reasonable to exempt the acquisition from the BAA requirements on the basis of unreasonable cost if no offers for domestic end products are received?
  7. In any given year, the aggregate value of calls against a single BPA would likely be anywhere from $150k to $1M, with most exceeding $204k. FAR 25.403( b )(3) certainly helps to substantiate the applicability of the TAA. If I follow where you're going with this, I'm anticipating your thoughts are that FAR 13 BPAs should be treated analagous to contracts under the BAA and TAA, and that the acts not only apply to the BPAs themselves, but also to each individual call against the BPA, regardless of individual call dollar value?
  8. Here's the situation: I'm looking at awarding multiple FAR 13 Blanket Purchase Agreements for the repetitive purchases of commodities well below the micro-purchase threshold. The commodities being purchased all perform the same general function, but they come in different shapes, sizes, colors, and materials. We don't know what exact item we need until the actual need arises, preventing the consolidation of orders. No single purchase will exceed the micro-purchase threshold, and the total value of all purchases made under each BPA is reasonably expected to exceed $500,000. How does the Buy American Act and the Trade Agreements Acts in FAR 25 apply to these BPAs? Seeing as BPAs are not contracts, and each call made against the BPAs will be below the micro-purchase threshold, one could argue the point that FAR 25 doesn't apply on the basis that each individual call is the contract. But then again, "bulk funding documents" may be used and the total value of all calls against each BPA will definitely exceed the applicable thresholds for BAA and TAA. Clearly, the safest route is to assume the BAA and TAA apply to the BPAs. Due to marketplace conditions and manufacturing capabilities, it's anticipated that it will take a mix of products manufactured overseas in both TAA and non-TAA countries to meet our needs. Sources of domestically manufactured products don't really exist, so I don't expect the BAA to be an issue due to non-availability. However, it's the inclusion of non-TAA items that concerns me. Restricting these BPAs to only TAA compliant items will severely limit our ability to fulfill our needs. What factor determines the applicability of the BAA and TAA regarding FAR 13 BPAs: the aggregate value of BPA, or the individual value of each call? I've been searching for answers, precedents, and anything else I could find. I'm curious what the experts in the field think about this. Due to the complexity of the BAA and TAA, I probably should seek out legal counsel. However, I'm not quite ready to do that yet.
  9. I'm in VA. I've checked our agency supplement, but haven't found anything that forces us to use options.
  10. Thank you, Vern. Your reputation precedes you. We all generally agreed that this is not multiyear, and I do appreciate your insight as well. The inclusion of options is what was preventing us from reaching a unanimous desicion. I can't find anything, anywhere that states options are required for an IDIQ contract to establish the ordering periods. But, this pushes some people out of their comfort zones when it deviates from how they were taught. I volunteered to undertake the impossible and demonstrate that beyond the absence of regulation mandating the use of options, options are not required.
  11. This is excellent information. but it still leaves the question of whether or not options are "required". To add to the debate, another person asked if we had reviewed the definition of a multiyear contract at FAR 17.103 and applied it to our scenario. We have. FAR 17.103 states that a multi-year contract is for the purchase of supplies or services for more than 1, but not more than 5, program years. A multiyear contract amy provide that performance under the contract during the second and subsequent years of the contract is contingent upon the appropriation of funds, and (if it does so provide) may provide for a cancellation payment to be made to teh contractor if appropriations are not made. The key distinguishing difference between multiyear and multipke-year contracts is that multiyear contacts defined in the statutes at 17.101, buy more than 1 year's requirement without establishing and having to exercise an option for each program year after the first. The thing is, we're not committing to buying anything beyond the guaranteed minimum, which will be obligated at the time of contract award. Therefore, we don't know if we're buying more than 1 year's worth of a supply. I believe that's where the additional information I previously specified at FAR 17.104(a) comes in. FAR 17.104(a) goes on to express that multiyear contracts are a "special contracting method to acquire known requirements in quantities and total cost not over planned requirements for up to 5 years..." Also, someone asked if we had considered FAR 16.504. To be specific, FAR 16.504(a)(4)(i) states that "A solicitation and contract for an indefinite quantity must -- (i) Specify the period of the contract, including the number of options and the period for which the Government may extend the contract under each option". We have considered this in our debate, but it divides us even deeper. FAR 16.504 makes it sound like options should be included in an IDIQ by stating that the Government is required to state the number of options included in the contract. However, it stops short of stating options are "required". Assuming the intent of FAR 16.504(a)(4)(i) is that IDIQ's must include options, how can we resolve the apparent conflict generated by FAR 17.202(B )(2) where it states "Inclusion of an option is normally not in the Government's best interests when, in the judgement of the contracting officer -- An indefinite quantity or requirements contract would be more appropriate than a contract with options. However, this does not preclude thye use of an indefinite quantity or requirements contract with options."?
  12. I'm working on preparing a multiple-award IDIQ for FFP commercial supplies, and there has been some discussion in my office about multi-year vs. multiple year and the inclusion of options for ordering periods. Each multiple-award IDIQ is intended to have a single five-year ordering period without options. Each delivery order would be funded using single-year appropriations. Each IDIQ would also have a minimum obligation that we reasonably expect will be fulfilled almost immediately after award. However, these IDIQ's raise two very important questions: 1. Would the IDIQ's be considered multiyear or multiple-year? 2. If they are multiple-year, are options required? Here's a summary of our discussion, and the general consensus we've reached. Any other insight is welcomed, regardless of whether it's conflicting or supporting. Multiyear vs. Multiple-year. Based on the definition of multiyear in FAR, a multiyear contract is for the purchase of supplies for more than one year. Further, "The key distinguishing difference between multi-year contracts and multiple year contracts is that multi-year contracts, defined in the statutes cited at 17.101, buy more than 1 year’s requirement (of a product or service) without establishing and having to exercise an option for each program year after the first." Under FAR 17.104(a), "Multi-year contracting is a special contracting method to acquire known requirements in quantities and total cost not over planned requirements for up to 5 years unless otherwise authorized by statute, even though the total funds ultimately to be obligated may not be available at the time of contract award. " Our discussion leads us to believe the IDIQ contracts we're preparing are not multiyear. First, they're IDIQs, and by virtue of an IDIQ, the quantity is unknown, and fails part of the criteria at FAR 17.104(a). However, the use of a minimum obligation could encroach on the multiyear definition. If we specified the minimum obligation were to be met sometime throughout the contract term, and delivery orders were funded using single year appropriations, we'd essentially be committed to spending money in future years that we don't have yet. An availability of funds clause could handle that situation, but it seems if we specified the minimum obligation would be met before the fiscal year end after contract award, we'd very clearly be out of multiyear territory. Options in a Multiple-Year Contract Our second topic of debate is the inclusion of options in a multiple-year contract. Our logic follows that if a contract exceeds one year in duration, and is not a multiyear contract, then it must be a multiple-year contract. Some of us argue against the necessity of options in a multiple-year contract, but others insist they are required. However, I cannot find any requirement in the FAR to affirmatively support either case. We all understand that anything is permitted unless it's prohibited in the FAR, but the idea of a multiple-year contract without options makes some people uncomfortable. We've reviewed FAR 17.202( (2), "Inclusion of an option is normally not in the Government’s interest when, in the judgment of the contracting officer -- An indefinite quantity or requirements contract would be more appropriate than a contract with options.", and this would seem to be a smoking gun to resolve this question. However, others have argued this statement demonstrates some other intent, such as an IDIQ should be multiyear (which we've already argued amongst ourselves that an IDIQ is not). My sentiment is that although options may present some advantages and disadvantages, they are not explicitly required in a multiple-year contract. Can anyone back me up? To summarize my questions: 1. Is our logic correct in classifying this IDIQ as a multiple-year contract? 2. Is there anything out there that requires the use of options to extend the ordering period of a multiple-year IDIQ? Thanks in advance to everyone who offers us some meaningful insight.
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