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Everything posted by FrankJon

  1. But don't most small businesses fail anyway? To Carl's point, isn't the relevant question here whether the 8(a) Program (or any SBA Program) has a statistically relevant impact on small business success rates?
  2. I didn't know this. Do you mean SB or 8(a)? Are you basing this on anecdotal evidence, or are there statistics on this?
  3. To be clear, my post wasn't meant to take a position on the merit of the 8(a) Program. I simply learned something about the 8(a) Program that I was shocked I hadn't learned before. In my post, I mentioned ethnicity in addition to race. I thanked Pepe for calling my attention to the topic.
  4. It's interesting to me that the FAR uses quotation marks around "in the open market," then cites to FAR 12 as an example. Here's what the statute states: https://www.law.cornell.edu/uscode/text/41/6505 I'm speculating, but my impression is that the FAR drafters did not know exactly what the statute meant by the quoted language, so they decided to give an example that they were sure about and keep it open to interpretation. To your question, we do know at a minimum that anything that can be defined as "commercial" is exempted. So you have to look at the thing being purchased to determine commerciality in this case, not the source or program under which it's purchased, and compare it to the definition of Commercial Item at FAR 2.101. AbilityOne is a program. As far as I know, its suppliers, such as Skilcraft, only make commercial items, like clocks and pens (I don't know this to a certainty, but I'm pretty confident office supplies represent the vast majority of what they do). Just because a pencil says "Skilcraft" on the side doesn't mean it's not commercial. I don't know what you're buying under the AbilityOne Program, but I think there's a very good chance it's commercial, and thus you are exempted from the requirements of 41 U.S. Code § 6505.
  5. Sounds like an interesting read. Thanks for the recommendation, Vern. And I'm sure many on here sympathize with your disgust for FAR 19 (and a power-hungry SBA)!
  6. @joel hoffman I see what you're saying, and I agree with your initial point that a warranty and maintenance should be two different things. Perhaps this discussion will help to clarify OP's thinking. If it helps to alleviate concern in OP's office, perhaps the "warranty" can be specified in the contract with a "NSP" CLIN and POP.
  7. In this scenario the warranty would be "not separately priced." So it seems that OP's concern is that there wouldn't be a POP associated with it, hence the "break."
  8. Joel - Let's say "warranty" and "maintenance" involve the same work under OP's scenario. Do you see an inherent issue with the Government including a year-long break in performance?
  9. Not according to @Vern Edwards, who would distinguish between the expiration of the contract and the expiration of the POP. See, for example, this thread: Your situation is different from what is described in that thread, however, in that you're not suggesting the Government has broken any terms. In your scenario, the terms will simply specify a one-year break in service. I know of nothing that would prevent the Government from doing this.
  10. Why do you call it an "expired contract"? Because there's a break in work between POPs?
  11. I've observed and pondered the dynamics you're referencing. I have several thoughts as to why this seems to be the rule of thumb, but here is my primary hypothesis: The people who are responsible for hiring the Head of the Contracting Activity are themselves customers and/or are accountable to the organization's customers. Thus, when they are hiring, they are seeking foremost an HCA with a strong inclination toward customer service, not necessarily one who takes a nuanced view of the contracting process and its responsibilities. Once hired, that HCA wants to keep her job and obtain a favorable annual review just the same as anyone else. In order to ensure this, the entire contracting office must be customer-focused, not just the HCA. So, the HCA sets expectations with the rest of leadership and management, who themselves will be inclined to comply in order to receive favorable reviews. The result, unfortunately, is a lot of kowtowing, which can be confusing and difficult to navigate for operational personnel trying to do their jobs with integrity. The upshot of this is poor morale among the acquisition workforce, and particularly among newer, motivated 1102s, who learn one thing in class only to find a much different reality. I don't necessarily think it's as simple as calling it "poor leadership," as you say. While frustrating to the (relative) handful of contracting personnel in your agency, the rest of your agency might view this as extremely effective leadership if they are able to consistently get what they want when they need it, while providing minimal support to the acquisition process. Also, you can hardly blame a person for acting in her own career and financial interests by meeting or exceeding the expectations set for her. Instead, I think the problem resides either with the acquisition process itself or with the organizational structures under which the acquisition process operates. That's a much bigger discussion, though...
  12. The NASA SEWP FAQs have the following question and response: The response goes on to state that "Delivery Orders with Options (DOWOs)" are permissible and provide some of the same features as a BPA. "DOWO" seems to be a NASA-coined term, whereby an initial delivery order contains terms allowing subsequent orders against the same quote. NASA states that the DOWO procedure can be compliant with FAR 16.505(b), then goes on to state the steps for setting one up. (The response does not give the sense that it was written by a government contracts person.) Does anybody know what the quoted response might mean? It seems to me that in order for the DOWO concept to comply with 16.505(b), you would need either quantity options or a "logical follow-on" exception to fair opportunity. The fact that NASA's explanation of DOWO mentions neither of these seems to be an oversight. Am I missing something? Can anybody speak generally about whether awarding a BPA against a non-FSS IDIQ is permissible under the FAR? (Put the merits of doing so aside.) Thanks.
  13. The following questions are for "senior" 1102s. I'll define "senior" as having at least 15 years of 1102 experience, regardless of whether you are still an 1102 today. What do you think was your best career decision? What career decision do you most regret? What is one piece of knowledge or information relating to the 1102 field (substantive or otherwise) that you wish you'd have known earlier in your career?
  14. FrankJon

    Eliminate FAR 52.217-9?

    Thank you all for the feedback.
  15. In THE MYSTERIES OF THE FAR: The “Option To Extend The Term Of The Contract” Clause, 32 Nash & Cibinic Rep. NL ¶ 25, Ralph Nash points out that, despite the widespread belief among agencies that inclusion of 52.217-9 is mandatory when option periods are included in a contract, the prescription at FAR 17.208(g) actually makes use of the clause optional under most circumstances. To have valid option periods, the Government can simply state the end date for exercising each option within the optional line items. In this scenario, Mr. Nash continues, since the inclusion of 52.217-9 can only limit and harm the Government's rights, the clause serves no real purpose to the Government. In conclusion, Mr. Nash states the following: While I thought the article was interesting, and I was very surprised to learn that the clause is not required when using options, I don't think I agree with the conclusion. I have always seen the clause as a show of good faith on the part of the Government toward the contractor, particularly in the case of service contracts. It's our way of saying, "Look, we know you and your personnel need some certainty to plan for the future, so we will give you heads-up by X date as to whether we'll still need your services on Y date." Given the Government's propensity for poor planning, last-second decisions, and disregard for the welfare of contractors, this seems like an equitable solution to me. And though it's true that the Government can simply write in similar terms when appropriate in lieu of including a clause, that's a distinction without a difference. It could create even more work and confusion, in fact. I would prefer a more moderate solution: keep the clause in the FAR, but with a prescription that makes clear its discretionary nature, and that describes when and how it should be used. I'm interested in hearing others' perspectives.
  16. FrankJon

    Eliminate FAR 52.217-9?

    @here_2_help, thanks for the feedback. Is there a specific period for preliminary notice that you think is generally reasonable for a service contract (e.g., 30 days, 60 days, etc.)? What are some primary indicators that a CO should look at when considering whether to push the notice period higher or lower?
  17. @joel hoffman, @Vern Edwards Pepe provided a rationale for his recommendation that lacked context. Having done a fair amount of research into the MAS Program, I knew that this rationale could get FSS contractors into trouble if relied upon in situations different from OP's. I quoted only Pepe's rationale, addressed it, and provided citation. My mistake, as far as I can see, was believing that it would be evident to the reader that I was addressing only the quoted text, not OP's issue. I've learned something from this.
  18. @joel hoffman, nobody has suggested that to my knowledge. I've edited my original post for clarity.
  19. @Vern Edwards , there is a lot to unpack in your post. First, I stand by my statement, since it's GSA's term and according to them there is no wiggle room simply because the order is for a service. You may question the enforceability of such a term, but I maintain it would be a high-risk move for an FSS contractor to decline an order based on the legal defense that a quote is not an offer. Second, you said: and But now you're saying: Which is it that we're talking about here: Conflict between the order terms and base contract terms (the latter of which includes FAR and GSA terms), or conflict between GSA terms and FAR terms? Third, you said: and Why not? What is this "concept" based upon? Your highlighted language in 52.216-18 and -22? If the base contract includes terms stating explicitly that units can be combined into tasks, and that the Government will seek price reductions, and that non-conflicting clauses may be added at the order level, then I see nothing in those clauses that conflicts with subsequent orders taking those actions. (What? Suddenly you're an Originalist, Vern?!) Fourth, you said: I address price reductions above. With regard to "tasks that are not described in the base contract," you're talking about scope. An order outside the scope of a contract or agreement is never permissible or enforceable (without justification), although I agree it happens often. But I fail to see what that has to with the requirement to accept an in-scope order. (The MAS Program uses SINs and LCAT descriptions to determine scope for services. See, for example, here: https://www.gsaadvantage.gov/ref_text/GS10F0257U/0LU95J.2NS2GI_GS-10F-0257U_GS10F0257UPRICELISTKAI.PDF.) Fifth, you said: To the contrary, I see 52.216-18 as specifically allowing for orders that meet whatever terms the Government writes into the base contract. And finally: I assume you meant this as an aside. You may not realize the extent to which this is true in the realm of MAS Program ordering, though. Based on significant anecdotal experience, I believe that - conservatively - at least 2/3 of COs never see the Schedule or Terms before placing an order. The idea of scope or conflicting terms never crosses their mind. Indeed, many do not even review the Pricelist.
  20. No and yes, because, as I said and many posters here agree, the terms have changed. If you'll refer back to Pepe's post, his rationale is based on the legal definition of a quote, not the change in terms. I am cautioning others - especially FSS contract holders - about applying that rationale within the MAS Program environment. (I'm not nitpicking, if that's your concern. Pepe's statements are legally correct and his ultimate advice is sound. But I am pointing out an often overlooked peculiarity of FSS contracting.)
  21. No, I am saying that the rationale I quoted is not applicable to this situation. I have no qualms with the advice offered by Pepe and others, but the reason is because the Government introduced new terms (LBF never said they were "inconsistent" with the FSS contract). If an FSS contractor views an order as an offer, and on that basis rejects the order, it risks violating its FSS contract terms.
  22. One clarification for the benefit of LBF and others: The quoted rationale should not be relied upon for declining orders in the context of the Multiple Award Schedule (MAS) Program. GSA requires its FSS contractors to accept Executive Agency orders under most circumstances (source: https://www.gsa.gov/acquisition/purchasing-programs/gsa-schedules/gsa-schedules-frequently-asked-questions, Is a GSA Schedule contractor required to accept any order placed against its Schedule contract?). Thus, even though the correct nomenclature when using the MAS Program is "quote," and quotes are not offers under the law, FSS contractors should be mindful that an agency's order must usually be accepted. In OP's situation, the company could decline the order based on the presence of new terms, not because the Government's order is legally an offer.
  23. FrankJon

    Eliminate FAR 52.217-9?

    I am almost never in favor of adding administrative "to-do"s in the Government contracting process because (1) the additional time they take (even when short) is rarely worth the additional effort, and/or (2) there is often a more efficient way to achieve the same result (if the result is even necessary in the first place). But I don't see a 30-day notice period (at a minimum) as unreasonable for a service contract. In my opinion, preparing a simple notice is a small burden relative to treating a business partner fairly. Even when the Government misses the notification deadline, which happens regularly, there's rarely an impact to the Government. Personally, I've never seen a contractor not agree to abide by the original terms. I would be interested in hearing from contractors (@here_2_help?) what they consider to be a reasonable "preliminary notification period" for a given contract size and scope. From the perspective of a contractor, what period appropriately balances the interests of Government and contractor?