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Lionel Hutz

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  1. I'm not really sure what you are quoting there, but it doesn't appear in the FAR. The FAR makes no distinction between rental and lease of motor vehicles. In fact, FAR 8.1101 Definitions, states, "'Leasing' means the acquisition of motor vehicles, other than by purchase from private or commercial sources, and includes the synonyms 'hire' and 'rent.'"
  2. On the other hand, FAR Part 8 specifically directs contracting officers to "Insert ... (e) The provisions and clauses prescribed elsewhere in the FAR for solicitations and contracts for supplies..." when leasing motor vehicles. FAR 8.1104. The FAR is all over the map when it comes to classifying a rental/lease as a supply vs. service. I don't think one rule applies across the board. When asking whether something is a supply or service, first determine why you need to make that classification, and then apply the rules that apply to that specific determination. Unless there is specific language to the contrary, what would stop you from classifying a rental/lease as a supply for one determination and a service for something else. For example, pursuant to FAR Part 8, include provisions and clauses for supplies in a motor vehicle lease, but also include 52.217-8, Option to Extend Services, in case you need to extend the length of that lease. Edit: For the record, I agree with those saying the backhoe rental should be treated as a supply for purposes of SCA applicability and use of the GPC.
  3. If a Mil Spec hammer is needed to perform a special job that a commercial hammer could not perform, then it would be acceptable. But, the government cannot create unduly burdensome specifications that exceed its requirements. For example, see Global SuperTanker Services, LLC, B-414987; B-414987.2 (Nov. 6, 2017) : "In preparing a solicitation, a procuring agency is required to specify its needs in a manner designed to achieve full and open competition, and may include restrictive requirements only to the extent they are necessary to satisfy its legitimate needs. In this respect, solicitations should be written in as non-restrictive a manner as possible in order to enhance competition.To the extent a protester challenges a specification as unduly restrictive, the procuring agency has the burden to establish that the specification is reasonably necessary to meet its needs. We review the agency’s explanation for reasonableness, that is, whether it can withstand logical scrutiny." (Citations omitted.)
  4. It depends on what you mean when you wrote that funding available was only $500,000. Was the $500,000 limit a formal or informal limitation? An appropriation allows an agency to incur obligations and make payments out of the Treasury for specified purposes. Below an appropriation is the “apportionment,” which is a distribution by the OMB of amounts available in an appropriation. Administrative subdivisions imposed by an agency are the third level of fiscal control and are divided into “formal” and “informal” administrative subdivisions. Formal administrative subdivisions consist of allocations and allotments. Informal administrative subdivisions are created by agencies at lower levels and are considered funding targets, or “allowances.” Exceeding an allowance or other informal subdivision of funds does not violate the ADA unless to do so would also cause a formal subdivision, an apportionment, or an appropriation to be exceeded. So, if sufficient funds were available at the formal administrative subdivision level, the KO's over-obligation of the allowance, while improper, would not amount to a violation of the ADA.
  5. A -8 modification is under the terms of, and authorized by, the predecessor contract. It is explicitly continued performance of the old contract, not an override of the stay and performance of the new contract. However, a bridge contract awarded to the proposed awardee may be considered a de facto override of the stay if the bridge is for the same services and under the same or substantially similar terms as the protested contract and the bridge reduces the length/value of the protested contract. Access Sys., Inc. v. United States, 84 Fed. Cl. 241, 243 (2008) ("This case is therefore unlike traditional override cases in that we are asked to decide whether the bridge contract represents the functional equivalent of an override. We have not been presented with any decisions discussing this question, but in our view the relevant question is whether the bridge contract shares the same character or function as a formal override and, thus, whether the bridge contract could prejudice plaintiff in its protest before the GAO or in subsequently performing the work if it is successful in its protest.")
  6. No. In my experience, the gap in services caused by a protest is usually bridged by exercising the Option to Extend Services under FAR 52.217-8. In fact, FAR 37.111 specifically cites delays in award due to a protest as one of the reasons to include and exercise the -8 option. If the -8 clause is not in the contract, or all six months of the option period have been performed, the agency cannot automatically extend performance through a bridge modification/contract. First, it must determine whether there is sufficient time to compete the "bridge" requirement and potentially bring in a new contractor without resulting in a break in service. If there is not sufficient time, the agency may issue a sole-source extension of the existing contract supported by the appropriate J&A/memo limiting competition. Seavac Int'l, Inc.-Reconsideration, B-231016 (Sept. 19, 1988) ("The sole-source extension of an existing contract, pending the outcome of a competitive procurement, is justified where ongoing needed services otherwise would be interrupted, the agency reasonably decides that only the incumbent can meet its needs with respect to timeframe, and the extension was not caused by a lack of advance planning.") If there is sufficient time to compete the bridge requirement and bring in a new contractor without a break in service, then the bridge requirement should be competed.
  7. Perhaps McDonnell Douglas Corp. v. United States, 182 F.3d 1319, 1331 (Fed. Cir. 1999)?
  8. Generally, no, the vendor is not required to demonstrate that the brand name conforms to the salient characteristics identified by the government. The brand name is presumed to comply. CAMSS Shelters, B-309784 (Oct. 19, 2007) ("In contrast, with respect to an offer of the brand name item, absent certain provisions in a solicitation that impose additional requirements applicable to the item, an agency can reasonably accept a brand name offer and make award without further investigation. See, e.g., General Hydraulics Corp., B–181537, Aug. 30, 1974, 74–2 CPD para. 133 at 2 (brand name item properly rejected where solicitation expressly required additional features applicable to the item).")
  9. Good thoughts, but just a couple caveats to consider: 1) An incumbent will only get an extra 100 days of profit if they protest on the last day of the contract. If the government awards a follow on contract 2 months before the end of the existing contract, then the incumbent will only get an extra 40 extra days. Focusing on awarding a contract with adequate lead time for a new contractor to prepare for performance (especially on $100M+ contracts) will reduce the monetary benefit provided by a stay of performance. 2) Agencies frequently take corrective action, not because they have no chance of winning, but because taking corrective action is easier and faster than litigating the case. Denying fees if the protest is dismissed, but granting them if the agency takes corrective action heavily incentivizes the government not to take corrective action. This will significantly increase protest litigation creating more work for the agency, contractors, and the GAO.
  10. What if the property being repaired was an HVAC, sprinkler, or alarm system with a value exceeding the SAT? Are you saying 52.245-1, 52.245-9, (and associated DFARS clauses if applicable) need to be included in the contract? I'm not saying you're wrong, but you are waaaayyyy too confident in your interpretation. The FAR part 45 definition of GFP is worthless, plain and simple. It essentially defines a term using the words of the term itself, i.e., government furnished property is government property furnished to the contractor. Gee thanks for that definition. The issue is what does "furnished" mean? "Furnished" is not defined in the FAR. It might mean "make available to the contractor," in which case you would be correct. But, it might also mean "give physical custody or possession to." If it is the latter, then government property that is made available to a contractor for repair but which the contractor does not take possession of is not GFP. Take a look at some of the language of 52.245-1: "Deliver to" and "timely delivery" sounds like the clause contemplates giving the contractor physical custody of the property. Now, take a look at the numerous requirements imposed on the contractor by the clauses and consider the purpose of the clauses, i.e., ensuring accountability and minimizing the loss of GP. Does it make sense to impose these requirements, increase administrative burden, and potentially increase the cost of performance when the property never leaves the physical custody of the government? Again, I'm not saying your interpretation is definitively wrong. I'm sure that many people, especially property specialists and others with a vested interested in maximum inclusion of the property clause, would agree with you. But the interpretation is not nearly as clear cut as you make it seem. There are solid legal, policy, and practical arguments that government property is not "furnished to the contractor" while it remains in the custody of the government.
  11. I agree. FAR 5.202(a)(4) is meant to be an exception to providing notice when awarding a sole source under the authority of FAR 6.302-5. Similarly, FAR 5.202(a)(1) provides an exception to providing notice when relying on FAR 6.302-6 -- National Security. FAR 5.202(a)(2) provides an exception to providing notice when relying on FAR 6.302-2 -- Unusual and Compelling Urgency. FAR 5.202(a)(3) provides an exception to providing notice when relying on FAR 6.302-4 -- International Agreement. FAR 5.202(a)(5) provides an exception to providing notice when relying on FAR 6.302-1(b)(3) -- Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements. (Utility Services).
  12. The OP said the contract is a FFP, C type contract. Yet the contract description states there is no fixed quantity and no dollars obligated at the time of award. Rather, there is a NTE ceiling and work is ordered and funding obligated as requirements arise. It sounds like despite awarding a FFP C type contract, they are administering it as a FFP or T&M, D type contract, it is hard to tell.
  13. Don, Good points. However, if additional consideration is not needed because it exists in the underlying contract, then the clause almost certainly authorizes, at least in part, a unilateral modification. Take for example the Excusable Delays clause, FAR 52.249-14. It provides, “the Contractor shall not be in default because of any failure to perform this contract under its terms if the failure arises from causes beyond the control and without the fault or negligence of the Contractor.” In addition, it states, “If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised…” This clause authorizes a unilateral modification to the contract. If the contracting officer and the contractor cannot agree to a new delivery, the contracting officer would be within her authority to unilaterally determine a new date and modify the contract. Now, as a practical matter, does it make sense to negotiate the delivery schedule with the contractor? Absolutely. Further, by agreeing to a new date, both sides have given up their right to argue that a different date should have been selected. Not only does this limit litigation risk, but relinquishing legal rights serves as adequate consideration to bind the parties. Consideration in a bilateral modification does not need to be in the form of money. Does this mean the contracting officer is no longer issuing a modification under 52.249-14? Not necessarily. FAR 52.249-14 directs that the delivery schedule be revised and does not restrict the revision to either a unilateral or bilateral modification. However, if 52.249-14 simply excused “excusable delays” but did not direct that “the delivery schedule shall be revised,” the contracting officer would still have the authority to modify the contract. That is exactly the situation with 52.212-4(f), which addresses Excusable Delays in commercial contracts. It simply notes that “The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence…” It limits the contracting officer from determining the contractor is in default when the default is due to an excusable delay. However, it does not authorize the contracting officer to modify the contract, unilaterally or otherwise. And that makes sense in this context because 52.212-4(c) has already told us that the contract can only be modified “by written agreement of the parties.” In that case, a bilateral modification must be executed with consideration coming in the form of a reestablished delivery date enforceable by both parties. In a FAR Part 12 contract, following an excusable delay, 52.212-4(f) may be the *reason* you want to modify the contract (i.e., the contract delivery date is no longer enforceable), but it is not your *authority* to modify the contract. Sometimes the government’s reason and authority to modify the contract come from the same clause, but not always. This is part of the problem with block 13 on the SF 30. People want it to be a shorthand to tell them why the contract is being modified or modified in a certain way. But that is not what authority tells you. Cheers, Lionel
  14. I agree, and later in the paragraph I wrote, "Your authority to 'enter into" a contract is FAR 1.602-1(a) and your warrant." But to the extent someone feels obliged to cite a FAR section, 1.602-1 probably would be the most relevant. Although, I could see the argument that FAR 1.603-3 -- Appointment is relevant as well.
  15. To paraphrase Lt. James Gordon, the warrant is the authority the contracting officer deserves, but not the one the SF-30 is looking for right now. So we'll hunt the warrant. Because the warrant can take it. Because the warrant is not our hero. The warrant is a silent guardian. A watchful protector. A Dark Knight. Wait, what? I mean… Nevermind…
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