Radu C.

On 9/30/2019 at 1:11 PM, ji20874 said:

I have never heard the term "Release Order."

But, how about setting up your "Release Order" for the requirement (feed all attendees, estimated quantity = 50), and then pay for what was actually served?

It may be that you are not fully utilizing the flexibility afforded by BPAs under FAR Part 13.  With a BPA, you can allow a list of people to make purchases, subject to reasonable limitations, and then the contractor submits an invoice at the end of the month for all purchases made during the month.  See FAR 13.303-3(a)(6).

If you are struggling, you are working too hard.  If you are issuing a funded order before the event, you are fully using the BPA flexibility. 

Thank you ji20874. We use the term "release order" to place orders against a BPA. It is synonymous with "call" or "ticket". 

I agree that we are not fully utilizing the flexibility. The release order is issued prior to the event. In the example above, we ended up ordering more than what was initially sought (54 v. 50 lunches). We need a papertrail for the 4 lunches that shows that an authorized person confirmed the additional amount (otherwise participants can bring their own guests abusing the event). The papertrail involves a purchase requisition that will result in a new "release order" for 4 lunches.  This is cumbersome for everone. 

Good morning,

I am struggling to keep my organization from changing Release Orders under BPAs. We use BPAs to procure taxi services, printing supplies, airline tickets, order conference venues. 

We sign a Release Order once we know the requirements. The problem is that for some events we don’t know exactly the number of attendees. For example we place a Release Order for 50 lunches and then get an invoice for 54 lunches (as 4 more attendees showed up). The project team would like to modify the Release Order to add 4 lunches. However, in my opinion, we cannot do it and instead we need to issue a new Release Order for 4 lunches. The problem here, however, is that the new RO is placed after the fact.  

In my view Release Orders under a BPA cannot be modified as they the simplest possible mechanism for ordering goods and services. If the quantities increase for any reason an additional Release Order should be placed. If quantities decrease - payment is made only for the items delivered. 

I could not find any reference in FAR regarding modifications of release orders, but does anyone know of a good analysis/description of this subject?

Thank you

On 6/12/2019 at 4:44 PM, Don Mansfield said:

@Radu C.,

Does the contract say (or did the CO tell you) that you have to comply with USAID directives (i.e., ADS Chapter 312) in performing the contract?

The contract does not say this. The contract references AIDAR 752.225-70 which references 22 CFR 228 "Rules on Procurement of Commodities and Services Financed by USAID". This CFR states that vehicles must be manufactured in the U.S.. ADS (USAID's policy manual) 312 states that there is a blanket waiver for certain types of vehicles.  

On 6/12/2019 at 2:20 PM, ji20874 said:

I'm not in the industry, but I understand a little about reading contract clauses. 

You shortened the applicable phrase--

• comply with required procedures under an applicable waiver...

from--

• comply with required procedures under an applicable waiver as provided by the contracting officer

It seems to me that the applicable waiver only counts if the contracting officer provided it to you. 

Yes, this makes sense. ADS 312 references a blanket waiver. What is not clear to me is if AIDAR references the blanket waiver from ADS or not, but, of course, we cannot make such assumptions without CO's confirmation. Thank you for your input. 

A question for AIDAR connoisseurs

My company has always interpreted that the U.S.-made requirement for vehicle purchases and long term leases (22 CFR 228.19) is IN ADDITION to the requirements governing procurement of restricted commodities (AIDAR 752.225-70). In other words,

• even if a vehicle is manufactured in the U.S. , prior CO approval is needed per the referenced AIDAR.
• if a vehicle is made outside the U.S., a waiver is needed to waive the geo code requirements AND CO’s approval is needed per AIDAR
• If it is a RHD vehicle and the blanket geo code waiver from ADS 312.3.3.2 applies, CO’s approval is STILL needed per AIDAR.

The language in AIDAR 752.225-70 is somewhat ambiguous. It hints that CO's approval OR compliance with a waiver is required, but not both: 

(c) Restricted goods. The contractor must obtain prior written approval of the contracting officer or comply with required procedures under an applicable waiver as provided by the contracting officer when procuring any of the following goods or services:

 (1) Agricultural commodities;

(2) Motor vehicles;

(3) Pharmaceuticals and contraceptive items;

(4) Pesticides;

(5) Fertilizer;

(6) Used equipment; or

(7) U.S. Government-owned excess property.

 If USAID determines that the contractor has procured any of these specific restricted goods under this contract without the prior written authorization of the contracting officer or fails to comply with required procedures under an applicable waiver as provided by the contracting officer, and has received payment for such purposes, the contracting officer may require the contractor to refund the entire amount of the purchase.

The question is: is it common in the industry to interpret the above AIDAR to mean that the blanket waiver from ADS 312.3.3.2 (b)(2) (in case of RHD vehicles) is sufficient and prior CO approval is NOT necessary as long as we are “complying with required procedures under an applicable waiver….”?

Procurement of motor vehicles is a political and sensitive issue and, in my experience, contractors don't take chances and stay on the conservative side when it comes to approvals for these goods. Do you have a different experience?  

Your thoughts are appreciated,

Radu

1 minute ago, here_2_help said:

My opinion is that you made a poor choice in selecting the subcontract type. My opinion is that you used a subcontractor to bypass your prime contract LOE restrictions, and the COR caught you doing so. 

Too late to change the subcontract now, I guess.

In future, similar, situations you may want to consider a Fixed Unit Rate subcontract where each day has an associated FFP amount and each day counts as 8 hours against your LOE restrictions.

Thank you, although it is not my intend to bypass or find ways to trick the client. As a prime I make my choices on whom to subcontract with subject to FAR 44. My decision to award a FPP consultancy or subcontract is driven by the fact that this specific work is not complex and requires minimum customization. I am being efficient by not burdening the subcontractor or myself or the client with excessive paperwork of a cost reimbursement contract. Yet, I feel penalized by a COR who demands additional scrutiny from what is supposed to be a simple subcontract. 

On 12/2/2017 at 10:03 AM, here_2_help said:

This doesn't strike me as an unreasonable request. You have a CPFF Term contract. To augment your workforce you engaged a consultant. The COR wants you to track the consultant's labor hours as if they were your own labor hours and count them as if they were your own labor hours.

The fact that you awarded a FFP consultant subcontract would seem to be irrelevant. (It might also be unreasonable in certain circumstances. What if the consultant finished the subcontracted work in half the expected time?)

Why are you pushing back so hard? What don't you want the COR to know?

The reason I am pushing back is because I have a limited number of LOEs in my prime contract. Counting LOEs from Fixed Price consultancy agreements or subcontracts will accelerate my spending of LOEs and thus will end the contract sooner than anticipated. 

If you 

On 12/2/2017 at 12:06 AM, Vern Edwards said:

FAR 16.202 does not regulate fixed price contracts. It doesn't tell anybody what to do or what not to do with them. It merely describes them and their appropriate application. If I was your COR and you told me that what I was asking you was inconsistent with FAR 16.202, I'd laugh at you.

It's hard to address your problem, because your description of the situation is hard to understand. You said, "The COR is requesting that we track LOE and count them against our prime contract's LOE." I have no idea what that means.

Let's say you are asking a consultant to gather data from 30 locations. The data should include the number of households, household income; and household size. Since this is not a complex task, you decide to issue the agreement based on a fixed price.  You estimate that it will take the consultant 30 days to conduct this survey. You determine a reasonable daily rate of $X + per diem + travel costs to come up with a reasonable fixed price for this consultancy. You Fixed Price Agreement with the consultant will not specify any of these costs, correct? It will specify a PRICE that will be paid to the consultant regarding of how much costs he/she incurs in delivering you the data. So, I cannot request that the consultant spends 30 days gathering the data. I cannot request that he limits his work day to 8 hours, 5 days-workweek. He can work 24/7 for a week and deliver me the data and I will have to pay him the full PRICE of the agreement is the data is satisfactory. 

My question is how can I reasonably hold this consultant to 30 days (my original estimate) if the OUTPUT is a survey and not days of LOE. 

On 12/1/2017 at 10:30 AM, Todd Davis said:

Probably a cooperating country national.

Yes, Cooperating Country National.

Her rationale (she is a CCN) is that 'fixed-price deliverables-based consultancies' are not delivered within an undefined duration, these consultants's contracts are tied to a fix number of days / LOE, which qualifies as LOE, and should be calculated alongside the respective relevant LOE categories. In addition, the Short-term Technical Assistance (U.S. and TCN) category also includes 'fixed-price deliverables-based consultancies' (there is no such language in the prime contract) if they are counted as LOE, it follows that CCN STTA should also be treated using the same principles. 

I don't think this make sense from a contractual point of view. 

I am working for a USAID contractor. We have a CPFF Term prime contract with USAID and issued a Firm Fixed Price Independent Consultant Agreement to a consultant. The COR is requesting that we track LOE and count them against our prime contract's LOE. We argue back that tracking days of LOE is not consistent with the regulation governing fixed price agreements (FAR 16.202), but also is not realistic or feasible given that payments are released solely upon acceptance of deliverables rather than incurrence of costs such as the costs associated with days of LOE. In line with FAR 16.202, there is no requirement for the consultant or subcontractor to report any costs associated with the deliverables. Neither are consultants/subcontractors tied to a fixed number of days. In other words, the subcontractor or consultant has no obligation to deliver a certain number of days of LOE and is only held accountable to specified deliverables.

The COR is still pushing back and I am ready to reach to the CO. Before I do, are there any situations where a contractor would be required to track and report LOE on a Firm Fixed Price subcontract/ICA? 

Thank you

Radu