Blitz

crwhitley, My advice is to seek legal counsel. You introduced Part 15 procedures when you established a competitive range and provided competitive range exclusion letters. GAO has ruled that if you introduce FAR 15 procedures to a Part 8 acquisiton, then GAO will hold you to those more stringent part 15 procedures in the event of a protest. Thus, you would have to follow the procedures in FAR 15.506 for post award debriefings.

In this GAO case the agency included specific language in the solicitation describing how they would approach the LPTA evaluation. GAO didn't raise any issues with the approach of starting technical evaluations with the lowest priced proposal first. The safe bet would be to include that language in future solicitations if you indeed want to follow that approach. There are other issues raised by boricua when you follow this approach but as long as you are following what you said in your solicitation you'll be fine. See B-407947... "The RFP informed offerors that award would be made on a lowest-priced technically acceptable basis considering the following three factors: technical, past performance, and price. RFP at 71-72. In this regard, the RFP established that the agency would first evaluate offerors’ prices, and then evaluate the apparent lowest-priced proposal for acceptability under the technical and past performance factors. If the lowest-price offeror was evaluated as unacceptable, the agency would then consider the acceptability of the next lowest-price offeror, continuing this process as necessary. Id. at 72."

There is no dicussion in Subpart 8.4 related to protest limitations; therefore, you are correct in that the $10M protest limitation discussed in FAR 16.5 does not apply to FSS. The scope of subpart 16.5 states "GSA regulations and the coverage for the Federal Supply Schedule program in Subpart 8.4 and Part 38 take precedence over this subpart."

Based on the information provided, you should be entitled to the full $20K fee. Keep in mind that your contract should also include FAR Clause 52.216-8, which requires the CO to withhold, in your case, 15% of the total fixed fee pending close out.

Regarding the applicability of "calendar days" when it comes to a timely bid protest; I just wanted to point out that in the event a deadline falls on a weekend, federal holiday, or other day when GAO is closed, the deadline for a timely bid protest is extended to the next day on which GAO is open. (4 C.F.R § 21.0(d)). Certainly not the case in the scenario described by elguero but just something to keep in mind.

Don, what do you make of the fact that 32.104(d)(2)(ii) refers to as total value of $2.5 million? I am confused by the used of "contract price" in 32.104©(2)(i) and "total value" in (ii). If looking at orders against IDVs we used the $2.5M total value why would that be different for individual contracts. Reading the FAR literally I would agree with you but is this a matter of this section being poorly written?

What do you make of this FAR council response under FAC 2005-15? Comment: Clarify whether competitive procedures means ``full and open competition'' or ``limited competition'' when the competition is conducted with as many sources as practicable under one of the authorities listed in FAR 6.302. Response: Sole source commercial T&M/LH contracts are not authorized. Commercial T&M/LH contracts may be awarded under the statutory authorities that permit contracting without providing for full and open competition. When these authorities are used, contracting officers are required to solicit offers from as many potential sources as is practicable under the circumstances. Nothing in this rule requires ``full and open'' competition.

I am very surprised as well. Thanks everyone for their input!

Here is the scenario, contract for severable services funded with annual appropriations as follows: Base Period: POP 12/01/2013 to 08/31/2013 (9 Months funded with FY-13) Option Period: POP 09/01/2013 to 09/01/2014 (12 Months funded with FY-13) Question: There is a notion in my current organization that this is an acceptable practice since we are dealing with two separate periods of performance. The argument being that it is not a violation of FAR 37.106(bravo) since each specific CLIN does not exceed one year. Specifically the language in the FAR appears to differentiate between awards and option periods as separate actions when applying the 12-month limitation. The language is 37.106(bravo) states: The head of an executive agency, except NASA, may enter into a contract, exercise an option, or place an order under a contract for severable services for a period that begins in one fiscal year and ends in the next fiscal year if the period of the contract awarded, option exercised, or order placed does not exceed one year (10 U.S.C. 2410a and 41 U.S.C. 253l). Funds made available for a fiscal year may be obligated for the total amount of an action entered into under this authority. I am having a hard time wrapping my head around this rationale. How could we use FY-13 funds to fund a contract for severable services using annual appropriations for a total POP of 21 months? Am I missing something here? I’ll be interested to hear your thoughts on the subject and your interpretation of FAR 37.106(bravo).

If I was the subcontractor I would argue that while I failed to obtain competition the intented purpose of the competition requirement over 5K is to ensure amount paid was reasonable. With that said, then it would be up to the Government to determine what amount was reasonable and reimburse it as such.

Agree with Navy...it appears you are confusing pricing with funding. Funding for IDIQs takes place at the TO/DO level. Also, for the most part, the minimum guaranteed is met during the base year via a TO/DO so exercising Options on and IDIQ without an actual obligation is a pretty common practice and it doesn't go against the FAR language you referenced.

http://www.wifcon.com/discussion/index.php?/topic/1924-which-fed-agencies-not-subject-to-the-far/page__hl__+agencies%20+follow#entry16375 Check out this discussion thread

A contract (Base + Options) cannot exceed 5 years.

Barry, I'm not sure what you mean by a Person Year. I have seen contractors propose based on Productive Hours for a particular year. Normally this is calculated as follows: Base Hours (2080) minus Vacation Hours, Holiday Hours, Sick/Emergency Leave Hours = # of productive hours for the year. Now, like you said, the 2080hrs is based on a 40hr work week. Keep in mind that contractors can choose how they manage their workforce to meet any particular requirement. So depending on the requirement itself and the contractor's management approach the 2080hrs may be adjusted up or down for any particular employee. Hope this helps some. Blitz

Hi Joel, I'm looking for a reference guide that deals with administration of Cost Reimbursement Type contracts, closeout of such contracts, DCAA audits, CAS, etc. You mentioned the "Administration of Government Contracts" book as being very helpful when it comes to administering construction contracts. How would you rate the book's content when it comes to administering Cost Reimbursement Type contracts?

That is exactly right! The contract fee amount was set up based on the estimated cost from the contractor's proposal. Then based on that estimate, a CLIN was created to cover the fee. It was done by calculating 6% of the estimated cost to come up with a $ figure to be paid in 12 Fixed Priced monthly payments during the contract year.

Bremen, Thanks for point this out. That was a a wrong assumption made in our office. You are right. It is not a tax free allowance. The Department of States website states: "all Danger Pay is considered an "incentive" rather than a "reimbursement" and therefore is taxable (DSSR 054.2)." Regards

Hi, Thank you everyone for your comments. I wasn't sure what was allowed is the cost pool before we could determine the amount of fee to be paid. This is the first time we've come across danger pay and since it is a tax free allowance for employees we thought perhaps it shouldn't be part of the cost pool. By the way, I am new to this whole Cost-Reimbursement type contracts. I've worked on FFP pretty much for the first 10 years of my career. So please bear with me. Thank you retreadfed for direct me to 15-404-4. It clearly states that facilities capital cost of money shall be excluded. No mentioning of danger/hazard pay. Have a great day everyone, Blitz

Hello Everyone, I have had little luck researching this topic and would much appreciate your input/comments. Scenario: We are adding a new requirement to an existing CPFF contract. The contract has an established 6% fixed fee. This new requirement is for services at a location identified as a Hazard/Danger pay location. The contractor's position is that the fee should be based on all direct costs such as base pay, fringe, labor overhead, G&A, and other premiums paid (including hazard/danger pay). Question: Is the government supposed to pay fee (6%) on hazard/danger pay?