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FrankJon

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Everything posted by FrankJon

  1. Vern - It appears GSA’s practice is to include the full text of 52.212-4 in the contract with the deviated text replacing standard text. They label the whole thing as 552.212-4. FAR 52.212-4 is not cited.
  2. I was very surprised to learn today that, apparently, it's not uncommon practice for ordering agencies to include FAR 52.212-4 in their GSA FSS orders when the base contract already includes GSAM 552.212-4. I'm told that even the DoD Procurement Management Review looks to ensure the former clause is included in these situations. I think this is a mistake. GSAM 552.212-4 is an authorized deviation to FAR 52.212-4 that flows down to the order. By including FAR 52.212-4 as well, we are introducing conflicting terms. Do other practitioners see this practice as well? Does anyone disagree with my position?
  3. Based on a FAR Case that @Don Mansfield shared with me in November on a topic pertaining to the award of multiple/split requirements contracts, my responses are: (1) a single contract with multiple parties; and (2) I don't know about IDIQs, but in the context of requirements contracts, it matters. In 2010, the FAR Council explained FAR Case 2008-006, in part, as follows: https://www.federalregister.gov/documents/2010/03/19/2010-5989/federal-acquisition-regulation-far-case-2008-006-enhanced-competition-for-task--and-delivery-order Despite this, they left FAR 52.216-21 Alt. III in place. This states: On one hand the Council is stating that "a" requirements contract cannot "be awarded to multiple sources." On the other, it permits the award of 2 distinct requirements contracts for the same subject matter. Based on the use of the singular in the former, I believe what distinguishes these ideas is that "multiple-award" refers to one contract that is "shared" among parties. I also think this idea extends to IDIQs, though I don't know whether this "matters" for IDIQs. But it does matter in the context of two or more requirements contracts, as we want to avoid the fair opportunity requirements of FAR 16.505(b). It's nice to see you "unretired" from Wifcon, Vern. We spoke a bit at the 2019 N&CR Roundtable, a million years ago. You advised me to avoid outings with birders at all costs. 😉
  4. Don - I apologize if I haven't been descriptive enough, but the contrast is significant. I'll try to be more specific in this post. (1) As we know, DFARS 215.470 requires a CDRL when the Government requests data. "Data" is not defined in the DFARS as far as I'm aware. (2) DoD 5010.12-M purports to provide comprehensive instructions for the acquisition and management of data, including the preparation of CDRLs. It defines "data" expansively (see above), to include technical data and data incidental to the contract, like financial and management data. Likewise, it defines "technical data" as having "the same meaning" as "data." As I mentioned at the top, I think this DoDM is a flawed document of questionable authority, primarily because it lacks a DoDD or DoDI to supplement. Without those, I don't see how it stands as anything more than a guide. (3) Alternately, in its "How to Complete a CDRL" guidance, DAU states: Likewise, the Government Contracts Reference Guidebook (4th Ed.) defines a CDRL as: and technical data as: (4) Thus, the DoDM would require CDRLs for all "recorded information regardless of the form or method of recording," whereas the latter sources would only require CDRLs for technical data, and exclude data incidental to contract administration. I don't believe it's appropriate to require CDRLs for all "recorded" deliverables. I believe CDRLs are only required for technical data, as defined in the GCRG and at FAR subpart 27.4. But...I lack an authoritative basis for this belief and the DoDM is admittedly a complicating factor.
  5. As the word is used in DFARS 215.470. Most sources I have seen indicate this is a reference to technical data as described at the DAU link (see also the Government Contracts Reference Guidebook definitions of CDRL and technical data). On the other hand, DoD 5010.12-M states: And: So there seems to be a clear conflict between how the DoDM defines "data" and how other, more modern, sources define it.
  6. And thank you for the reminder about the applicability of FAR subpart 27.4 in DoD. I should have reviewed the DFARS on this prior to posting. Despite this, there are various sources (none primary that I recall) that describe the CDRLs meaning of data as it is defined at FAR subpart 27.4 or similarly.
  7. Hi Don, I'm not questioning whether it's active. I'm questioning whether it's necessary and reasonable to treat it as mandatory policy without an underlying DoDD or DoDI at its foundation. DAU also appears to reject the expansive DoD 5010.12-M definition of data. See: https://www.dau.edu/tools/Lists/DAUTools/Attachments/654/High-Level CDRL Plannng_26 June 2020.pdf pgs. 19-20.
  8. Carl...respectfully....you're killing me. That doesn't get me any closer to an authoritative definition of "data" as it pertains to CDRLs.
  9. At issue within my office are the conflicting definitions of "data" found at DoD 5010.12-M and FAR 27.401 as they pertain to the CDRLS requirement. If DoD 5010.12-M is not authoritative, then we would look to other sources, such as FAR 27.401, for the definition. A DoD Manual "implements policy established in a DoDD or DoDI." (DoDI 5025.01, pg. 17.) DoD 5010.12-M was "issued under the authority of DoD Instruction 5000.2, 'Defense Acquisition Management Policies and Procedures.'" The referenced DoDI 5000.2 no longer exists. The modern DoDI 5000.02T "Operation of the Defense Acquisition System" does not appear to be directly relevant. The DFARS references various manuals, but not DoD 5010.12-M. Defense Pricing and Contracting ain't answering the phone. My thinking is that DoD 5010.12-M lacks clear authority to mandate procedures pertaining to CDRLs, and is otherwise severely outdated to the point of obsolescence (e.g., try following some of the references). I would therefore advocate for a modern understanding of the term "data," which according to FAR 27.401 "does not include information incidental to contract administration." I would be interested in reading the opinions of others on this topic as it pertains to CDRLs.
  10. Thanks for the enlightening discussion, all. I’ve yet to check all the references but it seems like I now have a few workable options to put forth.
  11. Formerfed: Apology accepted, but I would respectfully disagree with your characterization of how I consider the information shared on here. For instance the idea of a pre-competed BPA raised by Don and Carl is new and very interesting to me. I don’t merely disagree to be contrarian; rather I try to provide reasonable interpretations of often ambiguously-written text (in this case, 13.305(b)). If that shows inexperience then I have a hard time imagining what experience in this business looks like. If that annoys you then perhaps another hobby is in order. All due respect to ji, but s/he takes a famously flexible view of FAR language (to the envy of many) and is not infallible. I recall earlier in this discussion revealing scholarly information about multiple award requirements contracts that was not known to many and that supported my initial ideas. I also found a former post by one of the “Old Guard” at Wifcon supporting my view that DOD may lack the authority to issue calls above the SAT. So it seems at least possible that my individual findings and interpretations bring some value to this forum, despite the views of more seasoned professionals. I think one should and can do both things at Wifcon: critically question ideas while recognizing the enhanced value of the “Old Guard’s” input. I do hope that your counterparts haven’t also found my posts to be dismissive. It certainly is never my intent here.
  12. Wow formerfed! That came out of left field! My interpretation of FAR 13.305(b) is apparently different than yours. It’s a shame you’re so irked by that. I started this topic in a much different place and thought it was over more than once until other approaches were brought up. I enjoyed the open flow of alternate ideas but I didn’t come here asking for them. And I remain optimistic about the possibility of employing the multiple award requirements approach, which I learned a lot about. This is an utterly absurd statement by the way. I wonder how much thought you gave it before typing it.
  13. I think I’d be limited to the SAT unfortunately. I have no supplementary regulation beyond the DFARS. That doesn’t offer a higher threshold in this case.
  14. Formerfed is pursuing a different line than you.
  15. I assume you're talking about establishing a BPA, although it wasn't stated. I don't see how the following could work: Since orders are over the SAT I'll need to comply with the competitive procedures at 8.405(c)(2)(iii). Otherwise, yes, there appears to be some potential.
  16. I didn't "start out" my research by posting to Wifcon. An IDIQ was of course one of the first approaches I looked at. I went down the requirements path because the customer seeks multiple awards and providing fair opportunity every day may not be feasible. The factors would probably not be difficult. Past performance and price. But the contract would require a dedicated KO to compete and cut orders (literally) every day, and often more than once per day. My office may not be able to support that. (Now, if we could accumulate orders as with a BPA and cut one order per month to pay for them, that seems feasible. I haven't looked into that.) Redundancy. And coverage of excess requirements that one contractor cannot perform alone under a given order. Yes, we think so, but our contract type may not be appropriate (we'll likely need FP-EPA or FP-PPR). And the same ordering difficulties would exist as mentioned above.
  17. That's interesting, Don. Do you have a reference for that text? I'll certainly add this to my list of approaches to research. But initially I'm not seeing the advantage of this over the "multiple/split award" requirements approach in terms of application.
  18. 1. Over the SAT, under $6M. 2. Yes, the CIG has deemed it commercial.
  19. I am aware. The administrative burden would be significant, and possibly overwhelming. Happy to have a side discussion to share more.
  20. That’s a potential outcome being discussed, possibly with prospective price redetermination. As I said earlier, one of the fundamental constraints is that the unpredictability, volume, and relentless occurrence of requirements doesn’t lend itself to the fair opportunity process, at least not in a way that I’ve seen and would feel comfortable with.
  21. Agree. This is a DOD service contract that could be worth $10B over 10 years. I won’t be able to “just do” anything. This is only the first thorny issue in a long process. I genuinely appreciate the many reasoned perspectives I received on this topic.
  22. Formation of Government Contracts (4th Ed.) also provides a wealth of information on this topic. Most pertinent, on pg. 1347 it states: I have to think about how "prescribing the mode of competition to be used" would work in this context.
  23. These terms from The Government Contracts Reference Book (4th Ed.) were touched upon in a previous Wifcon post, but for posterity I'll flesh them out a bit more here and add emphasis and edits as appropriate to the topic. The second definition is particularly interesting, though most of the references date back at least 20 years so I don't know whether they'll be persuasive. Regardless I still plan to look into them.
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