FAR-flung 1102

I'm not convinced this is a small matter. Indemnification is only a part of the larger issue the Federal Government has with routine terms of Commercial Supplier Agreements, Terms of Service, EULAs and other like terms usually found in online agreements. In 2015 GSA identified 15 common terms it takes exception to as incompatible with federal law, below is the initial action taken (Class Deviation) and the below that the 2018 Final Rule. https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.gsa.gov/cdnstatic/insite/MV-15-03.pdf&ved=2ahUKEwiXrtup6ZfwAhU9ITQIHQFEAlYQFjAAegQIBhAC&usg=AOvVaw1ob28-WHisQyxZKSBV6KId https://www.federalregister.gov/documents/2018/02/22/2018-03350/general-services-administration-acquisition-regulation-unenforceable-commercial-supplier-agreement The tactic used by GSA is to render is to render such agreements unenforceable. At what cost does this solution come? Availability of commercial goods and services won't help the Government much if year by year more and more of the potential solutions remain out of reach due only to online terms which the Government continues to treat as alien. This issue won't go away until the Government learns a few new skills (both legislative and administrative) and models compatibility with online markets. Only then can innovation take center stage and the Government hope to keep pace at the speed of relevance.

For reference see https://www.acq.osd.mil/dpap/cpic/cp/docs/New_Contractor_Manpower_Memo_16_Oct_2019.pdf which explains the threshold change, reporting criteria and mentions that further implementing guidance, a DFARS rule and contract clause implementing the change from ECMRA to SAM are all in the works.

Implement a standard practice where the unsuccessful protestor pays the reasonable proximate costs incurred. No settlement fee in advance. Hand the filer a good faith estimate of the potential cost to them (and likelihood) of various outcomes, then they decide their course of action....

How about this what if: "I'm going to a training conference in two months...registration is expected to fill up a month before the conference. Can I pay the registration fee via GPC? I have a travel card, but don't expect to get orders until a few days before I travel."

Government Purchase Card is an interesting subset for two reasons: 1) Coordinators receive a high volume of questions from users who are not Contract Specialists and 2) Many of those users find themselves facing edge cases not readily resolved by their established procedures or by their reading of the regulation.

Have you checked with Watson? https://www.washingtonpost.com/business/economy/the-pentagons-procurement-system-is-so-broken-they-are-calling-on-watson/2016/03/18/a6891158-ec6a-11e5-a6f3-21ccdbc5f74e_story.html

Motorcity, The nature of the risk boils down to what economists term an "Agency" problem. Checks placed on what is sometimes called in DoD a government support contractor (what you termed the third party contractor) can be effective or if unaddressed, the risk can turn out to be a huge blind spot attracting opportunistic unethical behavior. These checks include many tools and they are not all found in one place or wielded by one individual. Organizational Conflicts of Interest, Non Disclosure Agreements, and Contractor identification are three of the more obvious aspects to consider. Applicability of Trade Secrets Act might not be understood and at some point in the generally well understood strictures on Source Selection Information will apply (see FAR definition of Source Selection Information at FAR 2.101 and see FAR 3.104), but exactly when that occurs might be less understood (see for example, Past Performance Information that is labeled as Source Selection Information long before an actual source selection has begun). Additionally, you might find that the government support contractor's contract has language about contractor identification, such as that found in paragraph (a) of the Air Force Supplement to the FAR, AFFARS 5352.242-9000 Contractor Access to Air Force Installations. You have my best wishes as you move forward.

In a minor aside, I find that FAR 1.108-c is the subject of yet another disagreement in meaning. It has led me to question whether most folks accept the plain meaning of "all options" in FAR 1.108(c.). Who here is sure to include the value ascribed to the FAR 52.217-8 Option to Extend Services, when present, in determining the threshold value? If that's not what you do in practice, then why not?

https://www.gao.gov/mobile/legal/appropriations-law-decisions/resources...Scroll down to find links to ADA Reports for recent years.

Ji20874, don't count on the status quo remaining...Congress has already enacted legislation calling upon DoD to implement a preference for acquisition of commercial construction services...What do you think can/will change? See DFARS Open Case 2019-D034...https://www.acq.osd.mil/dpap/dars/case_status.html

So, what are your recommendations...In unilaterally establishing the new delivery date what mod authority might the Government cite?

...since the the JTR rather plainly states in its introduction that it does not apply to contractors (other than personal services) don't forget to look first to the contract for the language that establishes some relationship to the JTR (e.g., "at rates not to exceed those set forth in the JTR", or alternatively, "at rates consistent with the limits at FAR 31.205-46").

If commercial, look also for the standard commercial offer instruction at FAR 52.212-1 (e): "Multiple offers. Offerors are encouraged to submit multiple offers presenting alternative terms and conditions, including alternative line items (provided that the alternative line items are consistent with subpart 4.10 of the Federal Acquisition Regulation), or alternative commercial items for satisfying the requirements of this solicitation. Each offer submitted will be evaluated separately."

A Note About Terms: FAR Part 13 does not use the term "Sole Source" to refer to single source acquisitions at or below the Simplified Acqusition Threshold (SAT). FAR Subpart 13.5 does use the term "Sole Source" to refer to single source acquisitions using Simplified Acquisition Procedures above the SAT.

Further discussion of ODCs (based on the observation that an ODC is not a deliverable and why under the FAR that matters) and Vern Edward's topical remarks see:

For some insight into Government policy, practices and exception authority regarding overtime and CBA, see FAR 22.103 and paragraphs 4.11 & 5.4.7 of the U.S. Navy's Desk Guide for Service Contact Price Adjustments, Service Contract Act and Fair Labor Standards Act, Issued November 2010, reviewed December 2010. It's searchable on the internet...I just didn't find a link that my mobile browser would copy.

See the recording statute, 31 USC 1501, also see DoD FMR, vol. 3, ch.8, para. 080302.

It's on a bit of a tangent, but I'd want know when deciding the extent of market research...it might be a game changer worth considering on occasion, that for commercial item solicitations which contain the standard language of clause 52.212-1 (see paragraph (e)), the government encourages an offeror to submit multiple offers and will evaluate them separately.

The MSDS for "Wite Out" can be found here: http://productsafety.biclink.com/MSDSSheets.aspx

Hmm, can you state the initial counterpoint to yours more fairly than this? The mandate to do small business set-asides in support of overall Agency Objectives was eliminated in the 809 Panel's recommendations...but authority to set-aside for small business remains, as do the overall Agency Objectives...with new additional support of a 5% price preference.

Jack, Please see FAR 1.102-2 Performance Standards (b) Minimize administrative operating costs., at paragraph 1): "In order to ensure that maximum efficiency is obtained, rules, regulations, and policies should be promulgated only when their benefits clearly exceed the costs of their development, implementation, administration, and enforcement. This applies to internal administrative processes, including reviews, and to rules and procedures applied to the contractor community." (Emphasis added).

I know this is an aside..."of the time" itself makes for a confusing unit of measure...this theme comes up often on customer's first drafts of service contract standards (think Quality Assurance Surveillance Plan, QASP). I usually frame the advice I am responsible to give as "I suggest you replace. "of the time" with what percentage of "occurances" or what percentage of "observations" just as ji did above.

Welcome! When I first started as a Contract Specialist, my organization had no primer or listing of tasks and systems for a newcomer...so I made one based on the experience I was gaining and called it something like Welcome Hot Sheet! It was kept and given out after me.

Also, what are the units of issue specified in the CLINs (contract line items)?

Thanks Joel... Let's try this definition of exercise: "choose to implement". So... my takeaway is that the government may exercise it's option (unilateral right) to extend at the stated terms, or may enter into a bilateral agreement according to (a) new term(s)...We kind of knew that latitude already, didn't we? Well, in this firmat it may provide cover under Competition in Contracting Act. So, Joel, please remember you didn't yet answer the question...can an option be exercised bilaterally?