Jamaal Valentine

If I recall, that decision involves noncompetitive BPAs. Is there something else I should be looking at for comparison to the scenario in the question?

I recently read the following question: ”Under FAR [part] 13, may a [contracting officer] obtain competitive unit pricing at the BPA level and later award BPA calls over the [micro-purchase threshold] that are based solely on the BPA unit prices (e.g., award to the low, based on competitive unit prices) and vendor availability?” Now, I read this as asking if the statutory requirement to obtain maximum practicable competition can be met at the single-award BPA level; thus, not requiring further competition at the order level. But I’m interested in your thoughts about and responses to the question, whatever they may be.

@cdhames Since this is the beginners forum, I encourage you to read Sticks and stones: How words and terms of art can hurt the contracting profession. ”Misuse of terms of art in the contracting profession leads to confusion, misunderstanding, and pernicious misconceptions. Clarity in contracting language improves professionalism and avoids inefficient or wasteful procedures.”

See also 2023 Contract Attorneys Deskbook, p. 24-7. (Hyperlinked) I think of changes as substantive changes (e.g., additive changes, deductive changes, terminations), or administrative changes. This could help you in viewing and categorizing changes with specificity rather than as general increases or reductions in scope. Specificity becomes even more important when making scope determinations. (For example, an increase in scope, by definition, is not a change within the general scope of a contract, but widespread misuse shows this is not universally understood) In a practical sense, the goals are identifying the type of change so that you can (1) identify the rules that govern it; and (2) understand how the type of change can be used to successfully administer the contract. Using terms of art leads to better research, interpretation, application, and communication. Take a look at the free resource I’ve linked above and see if it matches your current understanding of changes. I think you’ll come away with a richer appreciation and understanding of contract changes.

‘Descoping’ implies imprecise language and understanding of Government contracting. The terms of art for deletions are categorized as deductive changes or terminations. See Administration of Government Contracts, 4th ed., Chapter 4, Changes; See also 2023 Contract Attorneys Deskbook, p. 24-7. That’s all I meant by my previous statement. There are things to consider when determining if an action is a termination rather than a change. The colloquial use of the term ‘descope’ doesn’t help frame the situation. It’s not a good signpost.

Now, we know you “[t]hink it goes without saying why [you] would think they should not be paid for the removal/install and instead negotiate a settlement and descope,” but have you considered explaining your reason to the contractor? Have you made them aware of your right to partially terminate the contract? Would it help if you candidly explained what you are willing to pay if unable to reach an agreement? Heck, maybe you are willing to pay more for an agreement and release of claims than if you have to issue a decision that can be disputed. Read FAR 33.204 and go negotiate a deal. This is a chance to be an office hero and generate a lunch topic.

What is the protest venue?

You posted some information about a scenario and expressed a desire to ‘descope’ (to use your term). This was the first clue that things were going to be nonstandard. Here, you were looking for suggestions on how to handle the situation. Since this seems like a pretty routine scenario, I felt there was more to it. Thus, I asked why wouldn’t you just provide your reasoning. I asked this question, in part, because someone asking such a basic question may not understand what the relevant details are. (If they did, this question would not have been posted. At least not in this way.) Also, this was posted in the beginners section. Understanding your rationale would help readers in crafting helpful responses. Now, you seem to be concerned that the contractor will not settle for less than the contract amount. However, you don’t seem to be willing to accept their request for full payment. If that’s the case, a termination for convenience and final decision is the answer. Contracting 101. The contractor can submit a claim under the contract’s dispute clause. If you can’t reach an agreement, what else can you do?

Assumptions are not as helpful as a clear explanation of your rationale. Why not just provide your reasoning? I presume there is more involved because I would assume if you didn’t want the services on the removal/installation and disposal CLINs, you would have simply terminated them for convenience; negotiated an amount due in the settlement of the termination (or make a final decision they could dispute).

You asked a pretty clear question and deserve a clear answer. Retreadfed pointed you in a good direction. Aside, look at the commercial termination for convenience clause for authority. Also, there is a lot of literature suggesting that a lapse of appropriation resulting in a shutdown is a Sovereign Act. My understanding is that the latter is a defense against certain claims. Lastly, in cases where site availability or necessary oversight, engagement, or inspection is required, but unavailable (e.g., can’t take delivery) - this may be an excusable delay under a contract clause Retreadfed mentioned (I don’t view this as an authority, per se). These are general responses to your general question. The facts will dictate if any of these are sound.

While the following cases involved FAR Subpart 8.4, I think they are useful when thinking about misapplications of FAR Part 15 under FAR Subpart 16.5. Primarily, because it’s common for people to express assertions that are contrary to GAO’s findings. See IR Techs., B-414430 et al., June 6, 2017, 2017 “(finding that neither a solicitation's inclusion of some FAR part 15 procedures, nor a contracting officer's mischaracterization of whether a debriefing was a "required debriefing," could change the fact that the procurement was an FSS procurement to which the procedures of FAR subpart 8.4, rather than FAR part 15, applied); see also Systems Plus, Inc. v. United States, 68 Fed. Cl. 206, 209-10 (2005) (finding procurement to establish a BPA under the FSS program was not conducted on the basis of competitive proposals, even though it may involve the use of FAR part 15 enhanced procedures).” In the wake of Finlen Complex, Inc., B-288280, October 10, 2001, how many times have you heard that FAR Part 15 will apply if you involve FAR Part 15 procedures? What do people actually mean when they say that? Apply in what way(s)? Whatever the answer, GAO doesn’t preclude acquisition teams from unnecessarily re-styling solicitations. And it is true, people can and do [sometimes unconsciously] over complicate ordering processes and procedures. In fact, many do.

Look at the Air Force’s Architect-Engineer Next program as an example. It facilitates direct [interagency] acquisitions. https://www.afcec.af.mil/News/Article-Display/Article/2763601/aficc-awards-pool-3-in-architect-engineering-services-contract-series/

While I don’t disagree, it may help to identify what difference(s) you distinguish in light of the original post. FAR 19.000(a)(6) “The "8(a)" business development program (hereafter referred to as 8(a) program), under which agencies contract with the SBA for goods or services to be furnished under a subcontract by a small disadvantaged business concern.”

I’ll echo Don - what are the relevant terms and conditions of the option and contract? That being said, a period of performance elapsing doesn’t necessarily mean the option cannot be exercised. See FAR 17.204(d) (stating that the period within which the option may be exercised may extend beyond the contract completion date for service contracts). Again, what are the applicable terms and conditions?

You most certainly did. I didn’t mean to suggest otherwise. I was just outlining the process.

@Retreadfed, Can you can accept an offer any other way? (Honest question)

@C Culham, the original poster—@pdavis—asked a yes–no question. These are also known as binary, polar, or general questions. I don’t know what pdavis means by ‘awarded’ so I vectored them to FAR 13.004 to get them to refine or answer their question. Now, if ‘awarded’ means ‘given’ then the general answer is ‘yes.’ A purchase order can be given without a vendor’s signature. Based on the forum rules, we should support that answer with citations to laws, regulations, and decisions. FAR 13.004 says: “When appropriate, the contracting officer may ask the supplier to indicate acceptance of an order by notification to the Government, preferably in [any worded or numbered expression that can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.]” Here, “the contract is established when the supplier accepts the [purchase order].” FAR 13.004(a) (outlining that acceptance may be indicated in writing or through substantial performance). Previously we read that the purchase order can be given (awarded) without the vendor’s signature. Now we see that a purchase order can be accepted to form a contract without a signature. Thus, FAR seems to establish that awarding a purchase order without the vendor’s signature is permissible. This is in harmony with all of FAR 13.004 because “[t]he [purchase] order is an offer by the Government to the supplier to buy certain supplies or services upon specified terms and conditions.” Offers are given to offerees to accept or reject. A contract is established when the supplier accepts the offer. Acceptance of a purchase order (offer) can be indicated without a supplier signature in accordance with FAR 13.004(b). For example, in some other form of writing or through substantial performance. Finally, based on the above, I cannot reconcile the two conflicting statements because I don’t think the one below is consistent with reading FAR as a whole -

Vs How should we reconcile these two statements?

Have you read FAR 13.004, Legal effect of quotations? Let us know your thoughts on it.

You may want to read TO CONTRACT OR NOT TO CONTRACT-BOAs VS. IDIQs, Daniel J Finkenstadt; Timothy G Hawkins.  Contract Management Magazine; Vol. 55, Issue 9, (Sep 2015): 30-33, 35-39.

I find this very interesting. Can you expound on this.

Have an effective training program (including competent trainers). In my opinion, there should be a standard curriculum based on experiential learning. In addition to practicums, the curriculum should provide specialized learning of the common law, statutory and regulatory aspects that impact the agency’s acquisitions. Much of the so-called gray areas can be colored with application of case readings and exercises. The objective is to equip the trainees with a useful understanding of the principles and concepts underlying Government acquisitions. Generally, the training program should teach trainees how to think rather than what to think. We need professionals who can think critically. The ability to efficiently and effectively research, interpret, and apply the rules of Government acquisition is paramount. And since clear writing is a sign of clear thinking, the program should include instruction on effective writing. This segment should focus on the agency’s specific expectations and rules.

Two questions: 1. Is your ‘no’ based on/consistent with the associated case law? (I don’t see a link) 2. What link or what previous thread? (I’ll read it)

Would you need to evaluate it in these separate contexts in order to satisfy the evaluation requirements under FAR 17.207(f)? For example, evaluate the “-8” price for each separate period of performance.

@lawyergirl Do you work for the Government or the contractor [in this scenario]?