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Everything posted by Velhammer

  1. Elf949: Did the SBA tell you to have your vendors enter the manufacturer NAICS, or was that an interpretation made by your company? When the Gov't buys a supply, it is supposed to use the manufacturer NAICS to establish the size standard for the acquistion. That doesn't mean we cannot buy the item from a retailer, so long as they meet the size standard. It sounds like the SBA is asking you to follow the same principle. Hopefully they didn't tell you how to do it.
  2. Carl & Joel: Thank you both for your comments.:
  3. JI20874: No, it is a FFP MACC. The contractor in question is consistent in using this method for pre-award proposals or post award changes. Understand about reimbursement of the premium, but that doesn't mean they cannot apply G&A and profit and spread those costs over the actual construction activities in the schedule of values. The firm is a major player, and we aren't their only customer. Understand everything is negotiable, but at the moment I'm just trying to find out if it is allowable.
  4. Hi Joel. Sure, here is what they do (numbers are fictious). Assume the contract amount is: $100,000 including G&A and profit. They will use the same rates to apply to the bond premium amount, illustrated below. Bond Premium: .80% $800 G&A: 5.% $40 Profit 5.% $42
  5. Does anyone know of anything that prohibits a contractor from apply G&A and profit on their performance and payment bonds (construction)? I have never seen this, but that doesn't make it wrong.
  6. I don't see a problem with item 1. The PGI states (in part): "The blanket work request authorization may be in the form of a letter or contract modification (Standard Form 30)." If it was done in a "letter" there would already have to be funds on the contract. For item 2, I would agree with negotiation of the rates based on "The clause at DFARS 252.217-7028, Over and Above Work, requires the contractor and the contracting officer responsible for administering the contract to negotiate specific procedures for Government administration and contractor performance of over and above work requests." and "To the maximum extent practical, over and above work shall be negotiated prior to performance of the work."
  7. I don't agree it is "illegal", but FAR 37.112 does address this issue by refering you to 5 CFR 300 Subpart E. Here you will see that there is a time limit that these non-personal services can be used (max of 240 days). You didn't mention your agency, but the DFARS does have an authorization for personal services for health care (237.104), perhaps your agency supplement has something similar.
  8. The SBA issued a proposed rule in FR Vol 76 No 193. One of the proposed changes was that any modification that caused the contract value to exceed the subcontract plan threshold would require a subcontracting plan. A final rule has not been issued. Sounds like some PCR's may be jumping the gun and misinterpreting what was in the proposed rule.
  9. I would tend to agree with the prime, especially for future work. The issue isn't when the prime received the basic award or task orders, the issue is when they issued subcontracts to your firm. If they had bought out your subcontract prior to you becoming "other than small", then those subcontracts should remain undisturbed. If the prime has an efficient subcontracting program, they will verify your size status (i.e. SAMS.Gov printout) before issuing any subcontracts.
  10. Sure. I'm going to have to make a lot of assumptions since I don't know what type of contract. I imagine your agency uses some sort of automated contract writing system. I'm also assuming that whatever form was used is both a solicitation, offer, and award type of document (SF 33, SF1449, SF 1442). When the solicitation was released it had 50 pages because it contained solicitation provisions, reps and certs and evaluation criteria. The offeror submitted a proposal and signed the SF/DD or whatever form. In the "old days", we made the award by counter-signing the document, writing in the new contract number and removed sections K, L,M. Distribution was made without renumbering the pages and included the contractor's hand written prices. Biggest point is: the contract contained both the offeror (contractor's) and the PCO's signatures on the document. With the evolution of automated systems, the PCO can "release" the award, which automatically removes the provisions, reps & certs, and evaluation criteria, so the award document is now 39 pages. If the PCO wanted to have the distributed copies show both signatures, the PCO would replaced the two page award document (like a SF 1442, where the signatures are on page 2) that was generated by the system with the pages that had handwritten signatures and either hand-wrote on typed in the contract number. So the first two pages would show 50 pages, but the remaining pages (recently spit out by the system) would only show 39.
  11. Sounds like the page numbering was from the original solicitation, and that when the award was made (i.e. by signing the actual offer), that sections K, L, & M account for the missing pages, or if a SF 1449, the Reps and Certs dropped off?
  12. If you are in DoD, please see the deviation 2012-O0018, which can be found on the WIFCON home page.
  13. I appreciate your point of view, which is why I'm asking for other opinions. To respond to your points in the hope of advancing the conversation: 1) Unobligated funds are being rescinded. In my opinion, that is not the same as saying the funds are no longer available for new obligations. Stated another way, the funds won't be expired, they just won't be available. 2) If I had written a 2 1/2 year contract (the full term) with no options, and this turn of events occurred, there would be no issue.
  14. I have a service contract that is funded with ARRA funds (Post Construction Award Services type work). The Dodd-Frank Wall Street Reform and Consumer protection Act has a little blurb about all unobligated Recovery Act funds. It states the funds will be rescinded on 31 Dec 2012 and used to pay down the deficit. I'm still waiting to see how this is going to be implemented, but presumably I won't have funds after 31 Dec 2012, if not sooner. My service contract is currently in option year #1, which expires at the end of April 2013. There is still a remaining option year, and the services will still be required. Some of the positions are SCA covered, but even if a change in WD occurs, the rates being paid are well above the SCA minimums, so no adjustment would be due. Since I don't have a bona-fide needs rule problem due to the five year funding (4 1/4 now), and I won't see an SCA adjustment; I cannot think of any reason that I cannot exercise the option about 5 months early. Am I missing anything else?
  15. I would remove the solicitation requirement. Sounds like a bleed over from the requirements of the 8(a) program. Having retail vendors add the manufacturing NAICS to their profile would be encouraging them to misrepresent themselves. If this is a SB set-aside, this may impact your acquisition strategy if there are no small business manufacturers; unless it is already on the waiver list.
  16. Maybe I'm just being picky, but when I see a solicitation number that has "X's" in Instrument Type and in the Serial Number (12-X-XXXX); I'm left with the impression that the CS's is new and he's operating without any oversight.
  17. I'd have to agree that 52.225-1 isn't as straight forward as the construction clause, but the exemption does still exist. 25.103 – Exceptions. (e) Information technology that is a commercial item. The restriction on purchasing foreign end products does not apply to the acquisition of information technology that is a commercial item, when using fiscal year 2004 or subsequent fiscal year funds (Section 535(a) of division F, Title V, Consolidated Appropriations Act, 2004, and similar sections in subsequent appropriations acts). I personally wouldn't provide an itemized listing of IT equipment if the entire class has already been determined to be exempt.
  18. Whynot: I have to disagree. As an example, FAR 52.225-9 (b ) states: "This requirement does not apply to information technology that is a commercial item..."To the OP's original question: The definition in the FAR (and in the article posted by Napolik) is from the Clinger-Cohen Act. I don't think you are going to find further clarification, except possibly at the agency level. The fairly recent policy changes addressing IT procurement for the Navy and Marine Corps use the same definition. It sounds like the CO's are going to have to use their best judgment. Within the Dept of Navy, the purchase of IT (as a supply) usually requires higher level approvals, so the CO has resources to ask. But if the IT is part of a construction contract, as a general rule, I would say that any equipment that connects to a network is IT.
  19. Kathleen: It sounds as though you are negotiating with an 8(a) to procure commercial items that are on an FSS Schedule. Does this comply with the non-manufacturer rule (19.102 (f))?
  20. Heretalearn: I don't think there is really an agreement that an anti-deficient contract is void on initiation (See Vern's post #21). Regardless, bearing in mind that I didn't have the benefit of this insightful thread, we did not terminate or otherwise indicate that the contract was void; we issued a suspension of work. The contractor had performed early-start/fast-track work; so we had a building that was partially demolished. Among other costs, he had to maintain the fencing, his Storm Water Pollution Prevention Plan, and safely secure hazmat on site while we pursued the reprogramming route. Having him walk off the site didn't appear to be the best option, but then again we didn't realize it would take 18 months to resolve.
  21. Vern, here's my thoughts: I don't know of any responsiblities placed on the contractor to police the potentially improper funding actions made by the Gov't, but out of pure self-interest; the contractor should raise the concerns in writing and hold onto that correspondence. If the action is later discovered to be anti-deficient, then the contractor may be left holding a big burning bag of poo. Presumably the agency would suspend or even terminate the action. If the contractor was lucky, the agency may be able to obtain the proper funds after a couple months of internal investigations. To illustrate: When I first started doing post-award construction a few years ago, one of the first projects I "inherited" was later determined to be anti-deficient because it had not been properly programmed (you can read about it on last year's GAO ADA reports # 11-22). Sad part is, I didn't even know there was a problem until the someone started asking questions. The contract was suspended for 18 months until it was resolved. During that period he had to continue maintaining the site without receiving a single payment. We nearly ruined his business. I think most of us are not so arrogant (or blatantly corrupt) that we wouldn't mind addressing a contractor's concerns and would do the right thing if we found out the contractor was correct.
  22. Don: Sorry for the delay is responding. I guess it was a nomenclature problem: I've always refered to the website as webflis. I believe that if you are actually registered for restricted access, you have access to all the data that DLA tracks. It has been years since I've done supplies, but the webflis search was pretty effective at pulling up items and letting you know if they were assigned items, what the advice code was, and which issue control point you needed to contact. Having the DLA handbook was also useful.
  23. Don: WebFLIS claims "capability to view material assets in storage, in-process, in-transit, and in-theater for all services, DLA and GSA" www.dlis.dla.mil/webflis/pub/pub_search.aspx
  24. deen: It seems like you answered your own question about whether you have to compete the requirement in post #3. The language you cited says that CICA applies to no-cost contracts for civilian agencies. I'm not convinced that cost cannot be a factor. True, your agency is not paying the cost; but the participants (I assume the vendors that attend) will. It isn't unreasonable to conclude that a higher fee would result in lower participation. By the way, thanks for an informative post. Proof, yet again, that just because it has been done that way in the past, that it isn't necessarily correct.
  25. One experience I've had with this is for the base newspaper. We received a weekly paper and the contractor recouped his costs and O&P through advertisements. We did structure it like any other contract, minus the payment clauses; so I wouldn't agree the FAR doesn't apply (unless you truly mean agreement like a co-operative agreement). We also computed the approximate value of the consideration from advertising and the estimated production/delivery costs. I don't remember the figures, but we synopsized the requirement like any other competitive acquisition. Our old official travel contracts were also structured the same way, where the contractor obtained consideration in the form of discounts from the airlines.
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