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Everything posted by Sunstrider

  1. Assuming the clause at DFARS 252-243-7002 Requests for Equitable Adjustment (Dec 2012) is in the contract, this is a good place to draw from. I agree, however, that a clause is not fundamentally necessary just to collect the basic facts.
  2. It indeed was. And I appreciate that you bumped this, as I was strategizing how to best negotiate a REA I'd just received. On my second day at the new assignment!
  3. What routinely performed actions can be automated via robotic process automation (RPA)? These are tasks that would be purely administrative/data mining in nature, and automating them would otherwise enhance the CO's ability to perform tasks requiring professional judgment/expertise. I think data point collection, from forward facing search engines, is suitable for RPA. For instance, prior to executing an award, I have to review/document findings SAM, FAPIIS, etc. to determine a prospective contractor responsible. But these are data points and can be auto-generated. For instance, imagine if I could e-mail a bot a CAGE code/DUNS number, and then receive via reply a PDF package recording entity info. This gives time back lost in information retrieval. What are other tasks that saturate us, and can be permanently automated via RPA?
  4. You'd asked for limitations as to extending non-severable services. If appropriated funds are utilized, one limitation is that the period of performance cannot be extended 5 years beyond the last available date of the funds for new obligations, else you'd be in violation of the Anti-Deficiency Act. For instance, for an O&M contract awarded on 1 Oct 2015, that means the no-cost extension may not be beyond 30 September 2021 with that same funding. As for your contract, what is/will be the cause of delay in performance? Is there a cost underrun/overrun?
  5. C Culham, must the order of precedence be applied? I do not see that Sections B and J of the IDIQ would conflict, unless I am missing something. There would be no prices in the IDIQ Section B, so no conflicting requirements that would take precedence over the IDIQ Section J. As for task orders, their Sections B would include the priced CLINs necessary for the work to be performed. Are there conflicts I am not seeing? How does your order of precedence concern change, if one depicts the negotiated fully burdened labor rates in a table within the IDIQ Section B? As for additional context/thoughts on the proposed labor: The proposed fully burdened labor rates are explicitly derived by cost element--direct labor, fringe, overhead, and G&A rates. The Contractor has also proposed their actual direct labor from previous contracts, so these qualify as verifiable facts/cost data. To meet the definition of "price" at FAR 15.401, the profit/fee must be negotiated/incorporated in the basic IDIQ. The date on which the parties agree on direct/indirect labor rates, and profit/fee, will be the date specified on the certificate of COPD pursuant to FAR 15.406-2. To my read, the Contractor's s proposal of labor, for an IDIQ contract that is defined at up to $40M in value, is subject to 10 U.S.C. 2306(a). Is this wrong?
  6. Assume the following: You serve in DoD and must form an IDIQ contract, on a sole source basis, valued at up to $40M. Contract will provide non-commercial, non-severable services in support of a weapon system. To streamline ordering, the IDIQ contract will incorporate pre-negotiated labor categories and respective FFP/CPFF fully burdened labor rates via exhibit in Section J. None of the IDIQ CLINs will be priced, as hours and labor rates' pricing arrangement (FFP or CPFF) will be negotiated at the order level Your RFP explicitly states that the proposed IDIQ contract value will have a total value of up to $40M. Questions: 1) The Contractor proposes labor categories/labor rates by cost elements. Is such a proposal certified cost and pricing data pursuant to FAR 15.403-4? 2) Is it necessary to standardize profit/fee rates for the entire IDIQ? Or can one negotiate hours, pricing arrangement, and also profit/fee rate(s) per task order? **EDIT: If the proposal is deemed subject to TINA, then yes, per FAR 15.401, profit/fee must be determined in the IDIQ**
  7. I see. If this is the true intent of the clause, then there's the heads-up provided with the preliminary notice of intent, and then there's actual exercise of the option which requires a minimum lead time for the Contractor to duly maintain continuous performance. This seems very reasonable, especially since the timeliness requirements of these notices are always tailored/negotiated up front... ๐Ÿ‘
  8. FAR 2.101 defines "option" as a "unilateral right in a contract by which, for a specified time, the Government may elect to purchase additional supplies or services called for by the contract, or may elect to extend the term of the contract." As such, I'd revise the terms used to produce the following: Option to Extend the Period of Performance (Jul 2019) (a) The Government may extend the period of performance of this contract through the exercise of options under this clause, if two conditions are met: 1) The Government gives to the Contractor notice that the option has been exercised at least 5 days before the contract expires, and 2) The Government gives to the Contractor preliminary written notice its intent to exercise the option at least 60 days before the contract expires. (b) If the conditions in (a) are not met, the term of the contract may be be extended to the next option only through a bilateral contract modification (supplemental agreement). (c) The total period of performance of this contract, including all extensions, shall not exceed 60 months. If you agree with this, here's my next question. When bilaterally signing due to untimely notices, does one cite 52.217-9 in Block 13D?
  9. Assume one has a service contract with this clause incorporated: Option to Extend the Term of the Contract (Mar 2000) (a) The Government may extend the term of this contract by written notice to the Contractor within 5 days provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least 60 days before the contract expires. The preliminary notice does not commit the Government to an extension. (b) If the Government exercises this option, the extended contract shall be considered to include this option clause. (c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed 60 months. (End of clause) 1) Does the person providing preliminary notice have to be the CO? 2) If the Government exercises the option via written notice "early", say 10 days prior to contract expiration, is said option exercise invalid?? 3) Why was paragraph b necessary in this clause? If a contract is extended, aren't existing terms and conditions in the conformed contract incorporated by default?
  10. Assume the following: 5-year non-commercial, severable services contract The Government has communicated its preliminary intent to exercise the upcoming option, which begins in less than 30 days The Government must issue a change order to revise the Performance Work Statement/associated Contract Data Requirements List The Government intends for the change order to be effective from the next option through contract completion, not the date of change order issuance May the CO combine unilateral exercise of the option and issuance of this change order in one contract action?
  11. Other than full & open competition after exclusion of sources/8(a) sole source set aside to a Native American 8(a) Joint Venture. Within the joint venture, the smaller company is a Native American 8(a); the other is a self-certified small business in the same NAICS.
  12. The proposed approach engages the smaller/emerging business on a minimal basis, and in non-meaningful work. While both venturing partners are considered psuedo-primes in this contracting arrangement, the smaller business seems to be a no-value added pass-through. The shell company representing the JV is already a literal "pass-through". I'm only seeing a "best effort" goal to allocate 55% of the work to the small business. No actual responsibility as part of the contract.
  13. You are awarding an IDIQ to a "shell company"--an populated joint venture (JV) formed by two small businesses. The requirement is for various, non-severable, non-commercial services. Venturing partner A qualifies as small by the skin of their teeth, whereas venturing partner B is truly an emerging/inexperienced small business. Based on the JV work share agreement executed between A and B, no less than 55% of aggregate work for the IDIQ is automatically reserved for contractor B. As a CO, what are some tools you can use to contractually enforce this JV work share agreement?
  14. Assume you are a PCO in DoD and have inherited a non-commercial service contract with Contractor A. In managing this contract, you note: No DFARS Part 227 clauses exist in the contract The contract requires delivery of technical data You recently received/accepted all technical data All data is marked with "proprietary", as Contractor A insists they are a trade secret Now, the Government must furnish the technical data to Contractor B to perform a follow-on non-commercial service contract. You are not the PCO for Contractor B. However, Contractor A has advised you that the Government may not share this information to Contractor B. You note: Both Contractor A and Contractor B previously performed substantially the same respective effort The Government previously provided substantially the same format of technical data, received/accepted contractually from Contractor A, to Contractor B Prior to its furnishing under the previous follow-on, the Government had Contractor B sign a non-disclosure agreement (NDA) to not redistribute Contractor A's tech data Contractor A was advised of this NDA Contractor A took no exception, neither to the NDA nor to the manner in which the Government furnished the tech data to Contractor B My questions: As currently written, what contractual obligations to protect/provide recourse for their IP rights does the Government have unto Contractor A? If the Government provides Contractor A's tech data to Contractor B, without requiring a new NDA, is this a violation of 18 U.S.C. ยง 1905? If the Government previously gained unlimited data rights to substantially similar tech data, specifically from Contractor A, is that a materially relevant fact to the situation at hand? If so, how?
  15. Indeed, given an express power that, at the very least encourages liberal opining, it does seem far too common for COs to pontificate. To speak precisely about what we want to, instead of the primary purpose for discourse. I appreciate your attitude about it to roll with the punches. As far as your question, namely Is the BPA holder then obligated to accept any options the Government thereafter elects to exercise? My simple answer is yes, especially since the options themselves likely induced the offeror to accept via performance/enter into a contract via such a BPA call. I presume COs in your office consider annual BPA reviews, changes in the BPA holder's prices, as well as marketplace conditions for the requirement, in evaluating/exercising whether the BPA call option(s) result in the best value. Based on the complexity of the requirement, I know I'd gladly reprocure a BPA call should an existing option offer insufficient contract administration tools/remedies. Is this a concern you suspect is overlooked?
  16. Guardian, out of curiosity, what form does your agency use to award these "call orders"? Assuming you required the contractor's signature to bilaterally execute the order, can their signature alone be regarded as work and thus constitute evidence of contract formation? If such an order contained options, and the Government duly preserved/exercised its unilateral rights to the option(s), how isn't the the contractor obligated to "accept" work under the option(s)?
  17. Does realign mean deobligate from one CLIN for direct obligation to another for a net-zero sum? What is driving the need for increased ODC funding?
  18. Assume the Government has a requirement for repair of an aircraft wing to take place on a Government site. Got it, I don't need to satisfy the four criteria at FAR 45.102(b). Clearly, I would have to provide access to the aircraft wing in order for its contract repair to be possible. What I am trying to understand is, are there situations where an aircraft wing is incidental to the place of performance IAW FAR 45.000(b)(5)? I know the examples FAR cites for incidental Government property are routine office supplies--assets part and parcel of an office. Contractor presumably requires access to the office (to include office supplies) to perform required services. Could this exception apply to an aircraft wing? The Contractor requires access to the aircraft wing to provide required repair services. Since the Government will have never relinquished stewardship, my opinion is that treating the aircraft wing as GFP and requiring the Contractor to assume management, individually track, and dispose is complete overkill. I seek compliance, but need simplicity.
  19. Appreciate both the style and substance of your post. So many ways to prove that Reps & Certs are, in these instances, just not required. Didn't need the Reps & Certs to issue your order anyway. And oh, by the way, here's how the Reps & Certs, to include annual updates, "flows" down to the proposal resulting in your order. Recently started to think there may be an ironic corollary to FAR 1.102(d). If I believe doing things the way I just do things as a CO is in the best interest Government, I am not prohibited to do what I want! Sarcasm very much intended.
  20. I had a hunch it was required, as there was no explicit exception for the contract award synopsis. Interestingly enough, DSCA emphasizes this: https://www.dsca.mil/contracting/guide/award/step-3-part-1 I suspect the pre-award synopsis exception at FAR 5.202(a)(3) is to mitigate the already tedious FMS acquisition process. But that's just my opinion...
  21. In this case, a single award IDC to a large business. What were you thinking if it's multiple award set-aside to small businesses? Government.
  22. Too many people work for the process, than get the process to work for them/their customer. In this case, I work for the boss and am in a position to fight the fight... ๐Ÿ˜
  23. Is your rationale based on incorporation of Reps & Certs via 52.204-19, or that the IDC awardee is no longer a "prospective contractor", or something else?
  24. Assume you are managing an IDC and that the clause at 52.204-19 was included in that basic contract. IAW FAR Subpart 4.12, is documenting Reps & Certs required in each instance of proposal evaluation/order award to the "prospective contractor"?
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