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Guardian

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Everything posted by Guardian

  1. We use the Optional Form (OF) 347. This is the form I have always used for all my delivery and task orders off GSA FSS. Whereas there is no signature block for the contractor to sign on that form, I suppose you could create one within block 17 or the "Schedule - Continuation." We have before. Again, my understanding is that once the contract holder begins performance, they have thereby accepted the order and all of its terms and conditions, including any options clause. I asked a question in my initial posting. After a dozen replies, no one has yet answered it. But I feel I already know the answer, unless someone convinces me otherwise. This forum is great for pedantic discourse, but not always great for getting a straightforward answer to a question. Sometimes I feel like a guy asking a question such as, "how might I get to Missouri from here?" and the response I get is, " hey, I notice you're wearing white pants and it's after Labor day. Do you realize that's a fashion faux pas"? Don't get me wrong, I learn a lot and I tend to be a sucker for tangential or related-topic discussions. However, some of these posters would drive a cross-examining attorney nuts. I feel your question demonstrates that you read my initial question and recognize that others read over it without answering. Thank you for that.
  2. @Don Mansfield That little nugget alone was worth starting this discussion--some 1102 term history and etymology. I am a word origin guy myself. If you haven't already, check out Bill Bryson's, Made in America. It's chock-full of etymology for homegrown words and phrases. I'm doing a re-read now as I recently came across it on a list entitled best books to prepare for Jeopardy, not that I'm ever going to be the next Ken Jennings or James Holzhauer. Thanks again, Don Socrates!
  3. @Don Mansfield. Perhaps you're right. Just one more thing. I looked under 13.303 and found no references to the term "call order." You said that term is unique to FAR part 13 BPAs. Where might I find it? What is its origin?
  4. Yes, the BPAs and order to which I am referring are under the authority of 8.405-3. You are correct that subpart 8.4 never uses the term "call order." We use PRISM as our acquisition software and it designates every order off a BPA, be it under 13.3 or 8.4, a "call order." I understand that per 8.4 that term is in fact a misnomer. I have found the term "call order" ubiquitously used among practitioners. Socrates--I am a fan going back to my college days. "All I know is that I know nothing at all." Somehow, I feel like I am about to step into a Columbo moment. "Just one more thing."
  5. I appreciate the posted references to these prior WIFCon discussions. That last one is quite comprehensive, but seems to speak more so to whether you can incorporate options into a BPA. My question only deals with call orders. I am not sure why there is a debate about whether BPAs can have options. 8.4 seems pretty clear. You would have to have them on any single-award BPA that you want in place for longer than a year. I don't know what the purpose of having options on multiple award BPAs would be, as you can build in differently priced CLINs for separate periods of time and the BPA may remain in effect for up to five years. FAR 8.405-3 (d) Duration of BPAs. (1) Multiple-award BPAs generally should not exceed five years in length, but may do so to meet program requirements. (2) A single-award BPA shall not exceed one year. It may have up to four one-year options. See paragraph (e) of this section for requirements associated with option exercise. (3) Contractors may be awarded BPAs that extend beyond the current term of their GSA Schedule contract, so long as there are option periods in their GSA Schedule contract that, if exercised, will cover the BPA's period of performance. [end citation] If we look at paragraph e of the same subsection, the CO is required to review the BPA once a year, for example, at the option exercise, to make a determination that the price is still fair and reasonable. Under a call with options scenario, the CO would look at the status of the options, contingent on a determination of price reasonableness, on the following (1) the schedule contract, (2) the BPA, and then again on (3) the call. I think you can understand why I referred to calls with options as "creative" and potentially "unwieldy," although the latter description may be a bit hyperbolic. It's an Erector Set design of sorts. (e) Review of BPAs. (1) The ordering activity contracting officer shall review the BPA and determine in writing, at least once a year (e.g., at option exercise), whether— (2) The determination shall be included in the BPA file documentation. (i) The schedule contract, upon which the BPA was established, is still in effect; (ii) The BPA still represents the best value (see 8.404(d)); and (iii) Estimated quantities/amounts have been exceeded and additional price reductions can be obtained. [end citation] Vern had an interesting insight: While arguing about whether FSS BPAs are contracts may be fun, it is a distraction from the more interesting truth about BPAs -- they are nothing more than mechanisms to enable agencies to avoid competitive practices when ordering against schedule contracts. I don't think a BPA lets an agency do anything under the contract that it could not do without the BPA. Heck, you can do anything in an order under a schedule contract if the contractor will go along. But if an agency establishes a BPA, then it need no longer follow the pesky ordering procedures in FAR 8.405-2, unless the agency is foolish enough to establish multiple BPAs. [end citation] In my case, the call order is off of a BPA under a multiple award BPAs scenario. Hence, some of my concern regarding options on a multiple year call order. I gather that when Vern quipped "unless the agency is foolish enough to establish multiple BPAs," he was referring to the burden imposed under the rules of fair opportunity. The same subsection of the FAR tells us that to the maximum extent practicable we should "give preference to establishing multiple-award BPAs, rather than establishing a single-award BPA." I understand it's not an absolute requirement, but it's reinforcing Congress's wishes.
  6. I do not disagree with you that issuing a new call order would make for a longer process. Point taken. But how would it be more expensive? More expensive in what way? I am a sunk cost. The other employees that work alongside me on acquisitions are sunk costs as well. What exactly would be more expensive about issuing a new order? As I stated above, I question whether it is best practice. GSA FSS contracts have options. Let's say we award a single award BPA off the schedule contract. In that case it is likely we will have options on that BPA. Then, you suggest we incorporate options onto the call order itself. Again, I never said we were prohibited from doing so. But there are a lot of moving parts here and it becomes perhaps a bit unwieldy. Also, if we examine the purpose of orders off subpart 8.4 BPAs (which the FAR does not address in any great depth), should we be turning them into full fledged contracts. I understand the options (in my case) were all competed up front under a multiple award BPA scenario. However, I think we can mostly agree that circumstances and a contractor's ability to offer discounts at any given time depending on a number of factors, e.g., how many contracts they have in the cooker, staffing, financial resources at the moment, whether they've made it over the hump to that additional year in business, etc. Subpart 8.4 never mentions options on BPA orders. However, it does discuss in detail the concept of fair opportunity. Is the practice of regularly incorporating options in BPA orders in the spirit of CICA and fair opportunity? Well, I might actually feel more confident that the schedule contract holder would perform under a scenario in which I have options built into my order. No one ever answered my question above, "Whereas there is no legal obligation for the BPA holder to accept the call upon issuance, if and when they do begin to perform, they thereby accept all the binding conditions of the action as therein stated. Is the BPA holder then obligated to accept any options the Government thereafter elects to exercise?" If the option creates a unilateral right on the part of the Government after the schedule contract holder has begun performance, then I would actually have less confidence that they might perform when I issue separate orders without options. If the option becomes a unilateral Governmental right, what legal consideration might give the Government that specific right? Also, I think the point is, that there are other considerations aside from having confidence that the schedule contract holder will perform. For one, it would give me greater confidence that I provided true fair opportunity to all BPA awardees and solicited for the most current pricing, terms and conditions. There might be some satisfaction that I had not effectively guaranteed a schedule contract holder three to five years of performance based on an initial competition several years back, given the reasonable consideration that the current market might offer something better.
  7. My agency is setting up options on BPA calls awarded under subpart 8.4. When I asked why this was being done, I was given the following answer, "it's no different than what we do on task orders; we set up options on those." If we are to use this as a basis of comparison, then we can say that the task order is one tier down off the main contract, as the blanket purchase agreement is in relation to the schedule contract in this case. However, the BPA call is two tiers down off the schedule contract. I personally would not award a BPA call with options. Aside from everything else, it is messy and not good practice. Why not just place another call? I suppose contracting shops can get creative when the FAR does not otherwise forbid an action, but I certainly would not advise making a habit of it. The other consideration is this. One might make the argument that because there is no legal consideration on the BPA itself, i.e., it is just that, an agreement, not a contract, that a CO should not be building in what otherwise becomes a unilateral Governmental right (which is to say the exercise of an option). With respect to the call itself, my understanding has always been that the call becomes contractual upon acceptance through the BPA holder's commencement of performance. Whereas there is no legal obligation for the BPA holder to accept the call upon issuance, if and when they do begin to perform, they thereby accept all the binding conditions of the action as therein stated. Is the BPA holder then obligated to accept any options the Government thereafter elects to exercise?
  8. Excellent response, Joel and a great help! I started with a fundamental, seemingly elementary question, in hopes of getting answers to more specific questions. Perhaps that first question wasn't worded as it should have been, but I asked several other good questions along the way that were flat out ignored. I am not sure why. I will assume the blame in that I tried to pack too much into one thread. I too am retiring and going out to enjoy this nice weather.
  9. Joel, How would I exercise all ten CLINs if I only have a funding commitment for nine (Anti-deficiency Act violation?) and no authority to incrementally fund? Sounds like you prefer exercising nine out of ten CLINs per 52.217-9 over a bilateral mod because of potential scope issues. How was your sailing trip by the way?
  10. If a reasonable, prudent person considers it out of scope .
  11. Base on the definition of an option under FAR 2.101 that Jamaal so appropriately drew our attention to, I would say no-- "'Option'" means a unilateral right [emphasis added] 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. if we are now seeking the contractor's signature, I would contend it's no longer an "option" under the FAR's definition. If you go back and re-read what I wrote, you will find that I am not that certain. I am not sure why are saying this. I have been consistent throughout this thread and simply never said that. Guardian said: "If I had a definite unwavering answer, I would not have brought it to WIFCon." The whole point of me starting this thread was to get answers, not promote any one assertion. I think I, as well as others, including yourself, have insinuated that this issue might present more than one solution, with no single one necessarily being the unquestionably right way to proceed. Yes. No, as I stated to Retread above, by issuing the mod bilaterally, I am no longer exercising an option, which per se is a unilateral action. Why would you have to delete the unexercised CLIN? It can remain in the contract. By the contract's very terms, the Government never beared any obligation to exercise it. If a CO wants to delete it perhaps because its existence somehow screws up its local accounting system, then sure, go ahead and delete it. Yes, safe. If the contractor signs off on it, then there is no question of an impending dispute. Sure, in a sense we are relinquishing our unilateral right to exercise that one option. However, we are not thereby removing the clause 52.217-9 and our ability to exercise subsequent options under the unilateral authority provided for by that clause. What is the agency getting in return? How about peace of mind, knowing that a dispute over its not having exercised one of the CLINs isn't waiting around the corner? What else would you want as a CO or do you think the Government might deserve? What authority, you ask, do I have to "give away something that already belongs to the Government"? Well, let's see--according to several of my attorney friends who I meet with weekly as part of my professional group, I have quite a bit of discretion to do this among other things under my certificate of appointment. COs often have more than one way to proceed with a particular contract action.
  12. The contract modification extending the term of the contract, thereby obligating funds for nine of the ten CLINs associated with the upcoming one-year performance period.
  13. I agree that Joel gave an excellent answer. Every court case involves different circumstances, whether they differ just a little or a lot. My point was this--that I have not been able to find one single case that addresses an agency trying to exclude one or more CLINs that are associated with a particular "option period," i.e., period of performance. Do I think I might locate a case with the exact same circumstances as mine? Unlikely. Might I find a case that poses the larger question I have asked? Maybe. The contract does not expressly state that this cannot be done. The services have otherwise been consistent from year to year, for two consecutive years. Not exercising this one CLIN would not scale the services back that much by any measure. What else would you like to know? As a CO, I think the safest bet is to have it signed by both parties and forego the authority of 52.217-9. Might I be able to do it under the Option to Extend the Term of the Contract clause? Sure. Might the contractor dispute that decision? Sure, if they see fit in doing so and feel they were unfairly treated under the perceived contract terms. If I had a definite unwavering answer, I would not have brought it to WIFCon. I don't bring easy questions here. Do you not think I have attorneys, as do you? Do you not think I have addressed this with them? Did you not consider that I have perhaps gotten different responses? I do not know what a reasonable, prudent person might think, but I have some idea what I think :-). I earnestly appreciate your advice, as well as Joel's and that of everybody else. I think we can all agree that not everyone has the same opinion here, is leaning in the same direction, and yes you are totally correct, I have not provided you my contract to read.
  14. Ahh, a naysayer rears his head from the sea. No one has been able to produce a case that provides an answer to this "beginner's question" thus far. I have come across several cases, but none specifically addressing the exclusion of a CLIN. Enjoy your adventure, Joel!
  15. Yes, my convoluted arrangement of questions was purposeful and I for one think it led to an excellent discussion. Yes, there was a method to the madness. Maybe its for the best that others first assume I'm a newbie. Thanks for being patient with me. In response to Guardian's statement, "The contract never expressly states that, if exercised, they would necessarily be exercised together. " Thanks jwomack, this too is what my research shows, that is, contracting officers have a certain amount of discretion in exercising options. In response to Guardian's question and statement, respectively, "[D]o I have the unilateral authority under 52.217-9 to exercise (unilaterally) nine of those ten CLINS, each of which is marked "option period two," along with additional descriptions? The contract never expressly states that, if exercised, they would necessarily be exercised together." Thanks, Jamaal. This is really what I was looking for. I tend to agree. If you come across any GAO or legal cases that support this conclusion, it would be helpful if you could post the citations. I appreciate everyone's contributions to this discussion and their help.
  16. Jamaal, Did you read through this entire thread? Did you read my last question as spelled out in the scenario I described? I cited what I believe to be the relevant paragraphs under 17.2 for discussion. 17.208(g) is the prescription. Ok. How does the definition under 2.101 answer the question I asked above? How is a beginner going to answer this question, when I can't get an acceptable answer from a qualified contracting officer? Forgive me for assuming, but I don't think you have a ready answer.
  17. That's helpful, but I don't know why you are bringing up -6 through -8, when the very title of my post is "...52.217-9." I agree with you that there is a difference between an "option" and an "option period" and many contracting professionals wrongly use the term OP to refer to an option. Whereas 52.217-9 doesn't use the term OP, the period or "term" (and it's extension) is the purpose of the clause, i.e., Option to Extend the Term of the Contract. That said, I accept your terminology and will discard mine except inasmuch as I need it to reference how the CLIN descriptions were worded. I asked several questions within this post, but the first one was "what is an option per FAR 52.217-9"? I have read -9 several times over; it describes the conditions which the Government must meet to exercise an option, but does not say what an option is. So then perhaps the answer to my question is, "52.217-9 does not define what an option is; the answer to that question must be sought outside the clause, but within the contract." Here's a scenario that should clarify my question -- I inherited a contract that has ten line items (CLINs), each for a different set of services at a fixed quantity and fixed rate, in other words, FFP. My program office does not have funding (a commitment) for one of those ten CLINS. We sent a preliminary notice of intent to the contractor per 52.217-9, indicating our intent but not guarantee to exercise "option period two." My question is this, do I have the unilateral authority under 52.217-9 to exercise (unilaterally) nine of those ten CLINS, each of which is marked "option period two," along with additional descriptions? The contract never expressly states that, if exercised, they would necessarily be exercised together. I could not find any GAO cases that addresses this exact question.
  18. I wasn't asking for anyone to go out of their way to do research on this. If they elect to, that is their decision. Sometimes I learn the most in helping others. There are people on this forum that have a firm command of the administrative and case law. If someone has a case I could look at, it might help me moving forward. I spent a couple hours looking through cases the other evening, but couldn't find anything directly applicable.
  19. I think we're getting warmer. What about the paragraph between those two, (f)-- (f) Contracts may express options for increased quantities of supplies or services in terms of -- (1) Percentage of specific line items, (2) Increase in specific line items; or (3) Additional numbered line items identified as the option. What happens if we don't have a bona fide need or adequate funding FOR ALL of the line items labeled "Option" within a given POP? And how about what 17.207(f) says? -- (f) Before exercising an option, the contracting officer shall make a written determination for the contract file that exercise is in accordance with the terms of the option, the requirements of this section, and Part 6. To satisfy requirements of Part 6 regarding full and open competition, the option must have been evaluated as part of the initial competition and be exercisable at an amount specified in or reasonably determinable from the terms of the basic contract, e.g. -- (1) A specific dollar amount; (2) An amount to be determined by applying provisions (or a formula) provided in the basic contract, but not including renegotiation of the price for work in a fixed-price type contract; (3) In the case of a cost-type contract, if -- (4) A specific price that is subject to an economic price adjustment provision; or (5) A specific price that is subject to change as the result of changes to prevailing labor rates provided by the Secretary of Labor. (i) The option contains a fixed or maximum fee; or (ii) The fixed or maximum fee amount is determinable by applying a formula contained in the basic contract (but see 16.102(c)); May we concentrate on the text I've singled out in bold print? -- [T]he option must...be exercisable at an amount specified in or reasonably determined from the terms of the basic contract, [for example] -- [a]n amount to be determined by applying provisions (or a formula) provided in the basic contract...." What do you think that means exactly, aside from the obvious, e.g., shall not change unit prices? GAO, legal precedent, anything to support a thought; how about just a thought? Hasn't the GAO opened the door to changing OP POPs when it decided 52.217-8 could be used between OPs exercised pursuant to 52.217-9. How much more flexibility might the CO have?
  20. Allow me to rephrase. What is [emphasis added] an option period under 52.217-9? You did not answer my entire question. Please read the second, conditional, phrase-- What constitutes an option period under the authority of FAR 52.217-9? Anyone? Bueller?
  21. I will be happy to share my research with you. However, so as to avoid directing or influencing your answer, I would like to know what you, as well as others on the forum, think. Unless you have a specific question that might suggest an answer, I would like to avoid general questions as responses to my question. I am not sure we will get very far with that. The question seems simple enough, does it not?
  22. What constitutes an option period under the authority of FAR 52.217-9? Relevant GAO and legal precedent would be appreciated.
  23. Joel, You're being provoked by stolid antagonists, and you've fallen into the trap. You are seasoned practitioner. Heck, you were taking DAU classes in the 1990s when some of these guys were still playing beer pong or worse yet, getting/giving wedgies. There are a lot of unnecessary details in this debate, much like in Congress. But here's the bottom line and these things you actually already know. There is a rather short list of conditions that need to be met to have a legally-binding contract; this is Contracts 101, which I had the distinct pleasure of learning about from a beautiful blonde prosecutor in a night class. Included in that list is competency/clarity of mind/sobriety, i.e., I cannot draft the contract out on a bar on a cocktail napkin after imbibing several Tom Collins with the other guy, albeit I can have a binding contract scribed onto a cocktail napkin in the absence of wide-ruled paper [and] this is the big one, the terms of the contract must be entirely legal, which is to say, not contravening any statute. For instance, I cannot contract to sell you two large shipping containers full of illegal narcotics, nor can we contract with one another to go into partnership to offer a service that aids people in evading state or federal tax law. You get the point. I hope this served as a reminder of the rudimentary, as well as offering some degree of entertainment.
  24. If you a getting a signature from the contractor, why would you need to cite multiple authorities, doesn't their signature cover both the reduction in services, as well as the exercising of the option period at that point? If you just checked 13 E, "required to sign this document..." and obtained their signature, then you really don't need an authority. Your authority becomes the mutual agreement of the parties presumably acting in good faith. That said, the form does instruct the user to "CHECK ONE" and appears to refer to blocks 13 A - D, some of which are fill-ins. No judge is going to ding you if you have signatures from both contracting parties, with or without cited authority or checking any of those other boxes. I know that many COs I worked under asserted that it was always a good idea to cite something incorporated into the contract. Hence, they typically cited the commercial items changes clause. I do not think citing one of these clauses means the specialist did not think about it. To the contrary, maybe they overthought it. Perhaps in most cases it's just the user of the form trying to fill it out per its exact instructions.
  25. I was in a CLP class last month in which the instructor advised us not to include "marginal" as an evaluation factor, but rather move right from satisfactory to fail. Her reasoning was as follows--rarely has she seen an offeror win an award or even make the competitive range when one of their non-price factors has been rated as such. I always though similarly myself. In particular, I have had a longstanding problem with how we tend to describe "marginal" as an adjectival rating. Some agencies borrow the language right from CPARS-- Performance does not meet some contractual requirements. The contractual performance of the element or sub-element being evaluated reflects a serious problem for which the contractor has not yet identified corrective actions. If we are to take and interpret that first line of the rating, "does not meet some contractual requirements," that reads to me as "fail." Satisfactory performance of a contract means meeting all of its requirements. If we state in the SOW, "response within two hours, 90% of the time," then [well] that is what we mean. Eight-nine percent does not cut it. The contractor either performs successfully by meeting the mandatory minimum requirements, or it does not; there is no half-pregnant. Now a contractor can certainly exceed the performance metrics, but "marginal" as a rating has always seemed to me uncertain at best. However, Ji makes a point that offers a whole new perspective and useful application for the marginal rating, which is to say, as a tool of sorts when we are in a trade-off scenario. I realize that "low-confidence" and "marginal" have some distinction from one another. The first being predictive, while the latter seems more so an assessment after the fact. That said, the analogy is there for the taking. I am going to think on this a bit more for now, but I like it.
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