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FARmer

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  1. Hey WIFCON, Trying to see if there is any good advice from WIFCON experts, GOA cases, or other written decisions out there with regards to a Contractor, in breach/default/about to be terminated from an IDIQ contract, and that contractor's right to receive the minimum guarantee. Without going into a ton of details, performance on a service task order is well below sub-par, the Government awarded the task order competitively via a MA-IDIQ, the requirements/funding on TO award was enough to satisfy the minimum guarantee, however due to a complete breach of contract/lack of performance the contractor hasn't actually fulfilled the minimum guarantee due to various performance/management issues. If the contract is terminated/IDIQ contract is terminated as well, what if anything is the contractor entitled to in terms of the minimum guarantee? I am sure the contractor can submit a claim etc, but regarding that minimum guarantee can the Contractor file a claim against that and actually receive payment when in clear default of their own contract? FYI- All performance related issues have been well documented and communicated to the contractor. All instances I have been able to find in GAO case search and other court decisions are all when the Gov't fails to order the minimum. Thanks!
  2. Thanks Vern. Competency in using and actually understanding the AFDP is the issue here, not the Agencies use of Award Fee Incentives. This all boils down to a few people not paying attention to the plan. I guess on the flip side of your post (being in the Government's shoes), if the risk of converting the contract to a CPFF is too great in terms of diminished performance then the Government could 1) Breach the contract and pay a claim if one is submitted in hopes of keeping the CPAF contract structure. 2) Terminate the contract and re-compete if a CPAF contract is that important. I don't think there is any other avenues for the Government to go in this case; correct?
  3. Thanks for all the questions. I don't want to try to go too deep into what's going on because I am sure the opposing side is watching as well..... To answer your questions, let me go in this order: 1) The Award Fee Determination Plan (AFDP) does not incorporate the language specifically from DFARS 216.405-2(2) and states a period longer than 45 days. Lets say 60 days. The Contract does include the appropriate DFARS clauses for Award Fee contracts (DFARS 252.216-7004 & 7005). 2) Based on the situation and a misunderstanding by the award fee board chair and AFDO (of which is not the CO), the report has been late several times and in some cases, months after it was due. 3) I believe there could be a case made that caused the date to slip with regards to a briefing that was given by the contractor to support its efforts on the contract (briefing that allows the contractor to rate themselves for consideration by the award fee board). These briefings usually take place 15 - 20 days after the period has closed. However, the AFDP clearly states when each period starts/ends and does not state that the clock starts ticking after the briefing has been given. 4) the AFDP states that after several missed reports the contract will be converted to a CPFF........😭 I know the contracting officer has the unilateral right to make changes to the award-fee plan prior to the beginning of any rating period etc (DFARS 252.216-7005) but what rights does the CO have in breaking what is stated in the AFDP? My assumption is none, but this is a bad bad bad situation that is not going to go down very well. Dropping the CPAF contract structure and going to a CPFF would be a huge risk in its own as top notch performance is a must.
  4. I will keep this short and sweet - DFARS 216.405-2(2), Award-fee evaluation and Payments, states "The fee-determining official's rating for award-fee evaluations will be provided to the contractor within 45 calendar days of the end of the period being evaluated." What happens/What rights does a contractors have should the award fee determination be delivered late? the DFARS and PGI are silent on this.
  5. Thanks Vern! This is how I go about building an order off of a GWAC, Schedule, IDIQ or BPA. I do not see it beneficial to add every clause under the sun to an order/task order if its already covered under the contract. With regards to the last paragraph of your statement, that is exactly what I am dealing with within my agency and tasked with helping educating folks. Most of our task orders are written off of the GSA GWACs and Schedules, and those task orders normally have clauses that shouldn't be in the order because its covered by the contract and/or have clauses that were omitted because someone doesn't know what they are doing. For this example, I am going to point back to the GSA Alliant Contract...... I usually get caught in discussions where a clause, for example FAR 52.217-9 (that is required to be filled in and annotated as needing to be filled out by the OCO within the contract), is nowhere to be found in the solicitation or order itself. The Ordering CO's argument is "I don't have to have it in my task order because its in Contract....." Well per the Alliant contract the OCO is required to fill in any clause on the Alliant contract that has an "*", its clearly annotated in the Alliant contract and 52.217-9 is one of those clauses. But if a CO awards a task order and did not follow instructions (happens all to often) how does FAR 52.216-18 cover the CO in this situation when FAR 52.217-9 has not been incorporated into the task order. In my opinion, I would say that the 52.217-9 clause contained in the Alliant contract does not cover the task order because at the Alliant contract level that clause isn't filled in to provide the contract holder any details on the stipulations of the clause and that the Alliant contract specifically states the clause must be filled in if applicable. What about FAR provisions. For instance, would the FAR provisions used during the solicitation of the Alliant GWAC have to be inserted into the solicitation of a task order? I think the answer really depends on what the provision is i.e might be a new provision in the FAR that wasn't in the FAR when Alliant was solicited and/or a provision that requires some kind of fill-in.
  6. Hey Folks, I am working on a rather large project for my agency and there has been several discussions in which there has been no end to with regards to clauses that flow down to orders placed under a Schedule, GWAC, IDIQ, or BPA etc. The discussion goes further into the provisions as well. I have scoured the internet and this forum and i'm able to piecemeal information pertaining to this topic but was wondering if there were any blogs, GAO cases, white papers that discuss clause flow down from the master contract to the orders placed under the master contract. A lot of the discussions I am finding are specific to clause flow down from a prime contractor's contract to the subcontractor, and I want to be clear that this is not what I am seeking or related to what I am researching. Anyone know of any good reads related to clause flow down from the master contract to the order placed under the master contract? As an example of what I am facing, one discussion was around an MA/IDIQ contract that contains the clause 52.217-9, Option to Extend the Term of the Contract. Besides the point that the IDIQ contract does not have any options but has the appropriate ordering period clauses filled out, does this clause "flow down" to the order placed under the IDIQ if omitted completely from the Order? The order is a 5 year contract with an option that needs to be exercised each year for performance to continue. Taking inconsideration everything that I have read and based on my understanding, if there is a clause that needs to be tailored (i.e. clause that require the CO to fill in the blanks), the clause does not flow down as the clause needs to be tailored specifically for that order. So in this circumstance, 52.217-9 does not flow down from the IDIQ contract to the order but other clauses such as a clause like FAR 52.202-1, Definitions, does flow down and is not required to be in the order level contract. Another part of the discussion is around FAR provisions. Do these flow down as well? For instance FAR 52.216-1, Type of Contract. There are two sides to this discussion. One side is those that believe the order under any IDIQ, Schedule, GWAC, and or BPA do not need to have any clauses or provisions. The other side believes that it depends on the provision/clause and its applicability to the actual order.
  7. Hello All, I have been searching WIFCON for information on the interpretation of consolidation want to piggyback off a post from 2013 (link provided at the bottom of the post). Essentially I am wondering if I am over interpreting the definition of consolidation. FAR 2.101 states: “Consolidation or consolidated requirement”-- (1) Means a solicitation for a single contract, a multiple-award contract, a task order, or a delivery order to satisfy-- (2) Separate contract as used in this definition, means a contract that has been performed by any business, including small and other than small business concerns. (i) Two or more requirements of the Federal agency for supplies or services that have been provided to or performed for the Federal agency under two or more separate contracts, each of which was lower in cost than the total cost of the contract for which offers are solicited; or (ii) Requirements of the Federal agency for construction projects to be performed at two or more discrete sites." (Bold for emphasis) Below is the scenario: You have three separate contracts, each for a separate requirement, with the following costs: 1. $900,000 2. $100,000 3. $100,000 You plan to consolidate them into a single contract with total costs of $700,000. Because Contract #1 cost $900,000 and is higher than the new requirement ($700k), is this an immediate "no, not consolidation" per the FAR definition? Or is it consolidation even though Contract #1 doesn't meet the full definition (because the cost is higher), Contract #2 and #3 do meet the definition? 2013 discussion:
  8. Thanks Todd! You are right! The date I was looking at was specific to the subpart. Thank you for the acq.osd.mil link, while its a pain to use, I can manage! Cheers
  9. Hi Everyone, I have been trying to access the Hill AF website for the latest and greatest DFARS and keep receiving a "Connection timed out" notice. I have had other 1102 buddies try accessing and all are having the same result. I have been trying to access the site since last week with no success. I have tried to google etc. to see if there was any known maintenance taking place over the Holidays and was unable to dig anything up. Does anyone know whats going on? Also, does anyone one know any other electronic means to search the DFARS. It appears that the one posted on DPAP's website is the 2009 version with a revision date of 10/15/2009.
  10. So this topic took off like no tomorrow. Based on my original posting, my scenario involves a past performance evaluation factor that puts experience and performance together but fails to have a confidence assessment scheme; like whats in the DoD SSP. Because of this, the past performance evaluation factor is less than effective.
  11. Vern- Yes indeed. I realized and will learn from my mistake. Thank you everyone for contributing!
  12. So I am going to post again because after reading many more cases, it appears that in my example above, both Offerors A and B should/would be treated the same........... So I guess what I thought is common sense isn't necessarily the case.
  13. Ok, so Past Performance, FAR 15.305(a)(2)(iv) has been a hot topic. I truly understand that. So in laymans terms and using Vern's example above as well as what Todd Davis cited right before Vern's post- Offeror A submitted past performance for the requirement. Offeror A's past performance specifically states that they have similar work that is relevant (using Vern's definition above) in all facets. When evaluated, the evaluators determine that the past performance submission is only relevant to Task 1, and is completely not relevant to any of the other tasks. As a matter of fact, base on the proposal, if Offeror A is considering their past performance relevant to Tasks 2, 3, 4, and 5 then they clearly don't understand the requirement they are proposing to. To the evaluators, this past performance submission was unacceptable...... It wasn't that there was no information to provided to access, it was just completely irrelevant to the requirements of the RFP. Now Offeror B submitted NO past performance. They clearly stated in their proposal that they have no past performance and therefore Offeror B was not rated favorably or unfavorably.... they received a neutral per the DoD source selection guide. So based on everything above, are you telling me that Offeror A should be rated the same as Offeror B? As quoted from my earlier post in regards to the MDA case, GAO stated: Is it then unreasonable to state that an offeror cannot simply choose to submit irrelevant past performance in order to obtain a neutral rating?
  14. DA Defense Logistics HQ File: B-411153.3 Date: December 2, 2015 (http://www.gao.gov/products/D12323#mt=e-report) (This case lead me to the MDA case). An excerpt form the case, GAO states: "Furthermore, we find no basis to conclude that the Army violated FAR § 15.305(a)(2)(iv) by “unfavorably” evaluating the protester based on its lack of relevant past performance as a prime contractor. The agency did not “unfavorably” evaluate the protester for its lack of relevant past performance as a prime contractor; rather, the Army reasonably determined that the protester had not demonstrated sufficiently relevant past performance to warrant the highest possible confidence assessment under the RFP’s qualitative evaluation criteria. " Todd- Thank you for the link to Emptor's blog entry link I am reading it now.
  15. In the MDA case GAO states Based on what I have read, it's the offeror's burden to submit an adequately written proposal for the agency to evaluate and further noted that an agency may reject a proposal for information deficiencies that prevent the agency from fully evaluating the proposal. Based on all my reading, there is a difference between having no relevant past performance (FAR 15.305(a)(2)) (therefore the offeror submitted no past performance) vs. submitting a proposal that has past performance that is not even relevant in size scope or complexity.
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