WifWaf

“Section C is changed to add to the Government-furnished facilities list, a condition for access to the following sites/buildings, that each of Contractor’s personnel must first present to the Contracting Officer or his/her authorized representative the following documents: either the person’s CDC COVID-19 Vaccination Record card or record from the applicable state health department’s immunization information system (IIS), and, when the CO requires heightened force protection, a copy also of the results of an acceptable COVID-19 test conducted within the prior 5 days. [Insert details about what constitutes an acceptable vaccine card and acceptable test results]. “[List affected sites/buildings]” The guidance to COs should be clear that a bilateral agreement on the change order’s ceiling price per FAR 43.102(b) is the preferred route. It should also prescribe a limitation-of-funds clause for use when agreement cannot be reached. Two weeks from memo issuance should be enough to allow all COs time to write the change order and seek the agreement. In developing the maximum price, a suggested number of labor hours should be given in the guidance, for each CO to apply to each labor category he/she thinks will need to be onsite during performance.

Please share your case law, if you have it handy. Thanks! In any event, we appear to be in-scope with the change order. We are discussing imposing a facility safety measure on all service contractors, that each person be vaccinated to enter government-owned or leased facilities. That open-ended COVID clause would go away. None, for the change order. How about this: a promise that, by the end of the POP, a supplemental agreement will make the Contractor whole its actual, allowable costs for having to pay to test, vaccinate, and hold accountable its personnel.

Agree. Moving onward to scope of the contract, does a change order introducing the new requirement of vaccination to enter the Government’s facilities: 1. Possibly change the contract type? 2. Substantially change the period of performance? 3. Change costs/prices substantially due to the Government fundamentally altering technical requirements? Reference B-296358.3; B-296358.4, Biodefense, Inc.; Emergent BioSolutions, January 31, 2006

Change order is not a synonym for unilateral action, it is an example of one. FAR 43.103 Why not? Would an interested party that chose not to offer at solicitation timeframe be treated unfairly by this post-award change? Oh, you’re leaving. Merry Christmas!

Noncommercial services and construction: 52.243-1 Alt. II, -2 Alts. I-IV, -3, and -4 paragraph (b). Commercial services: 52.212-4(c). A template definitization clause would need to be standardized by CAAC memo authorizing a deviation, and added to the contract alongside the new facility access requirement in the SOW. The “agreement of the parties” per this changes clause is thus to use noncommercial terms to make the change and sort the cost out later.

To stay on topic in this thread, my answer is simply that the appropriate authority in SF30 Block 13 of the change order that ji proposes would be the applicable Changes clause's explicit contractual authority that, "The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in...Description of services to be performed."

I have a problem with this: This is essentially saying, “My boss told me I could insert this new requirement.” It is not a modification authority that exists in the contract. The purpose of this field on the SF 30 is to cite what makes the CO think the Contractor signed up for the unilateral mod action at award. Per the SF 30 instructions: “Item 13. Check the appropriate box to indicate the type of modification. Insert in the corresponding blank the authority under which the modification is issued. Check whether or not contractor must sign this document. (See FAR 43.103.)” When you go to FAR 43.103, you find this to be relevant: “Unilateral modifications are used, for example, to… ”(2) Issue change orders; “(3) Make changes authorized by clauses other than a changes clause (e.g., Property clause, Options clause, or Suspension of Work clause)” In ji’s proposal we want to issue a change order and definitize it later (terms of art used in FAR 43.204). This FAR Subpart, titled "Change Orders", then prescribes all clauses designed for issuing change orders at FAR 43.205. If we plan to pay the cost effected by the change order via supplemental agreement later (e.g., after the total hours of time off for personnel to get vaccinated is finalized), then we should choose from whichever of these clauses is in the contract before we go citing the broader EO as authority.

You’re right, I have been too hasty in this thread. These days I don’t think I am alone in my overly pragmatic thinking, but my jumping to a conclusion that an idea is “brilliant” and then having to defend that conclusion from scrutiny afterwards in the same forum is just not ideal. I await Don and others’ arguments to fully flesh out our hypothetical revision to this disastrous EO.

Vern, I interpreted the above to be a definition of reform only, with innovation undefined in the quote. Is that what you meant?

I think your separation of the two terms "improvement" and "innovation" is splitting hairs. FAR 1.102-4 uses, but does not define, “innovations” where it says, “absence of direction should be interpreted as permitting the Team to innovative [sic] and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound.” This use of this term in 48 CFR sounds like its definition would be what you call “improvements”. Recommend you simplify to just defining reforms (which are out of Executive Branch control) and innovations (within Executive Branch control and a duty squarely assigned to the CO). In other words, improvement is a synonym for innovation.

The stay on OSHA’s Emergency Temporary Standard is dissolved. OSHA can mandate employers with 100 or more employees be vaccinated or tested. The Court of Appeals for the 6th Circuit opinion, issued today, is viewable here: https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0287p-06.pdf

I want to disagree. But only because this would mean, from a FASA purist standpoint, it should not be imposed on commercial service acquisitions. That would complicate its enforcement. I see the proliferation of vaccine mandates by commercial employers to get in the building, e.g. hospital workers, as potentially damning of your argument.

This is absolutely brilliant. Can we just skip all the temporary injunction delays and go to doing this? It’s probably what the EO should have said anyway.

To support this point, see the below fun fact identified in the Section 809 Panel's Recommendation 2, titled "Minimize government-unique terms applicable to commercial buying". In January 2018, it reported findings that: The Panel goes on to recommend removal of all but 7 of the 165 between FAR 52.212-5 and DFARS 212.301. All of the provisions would go. Only a financing clause, four payment clauses, and of course the clauses at FAR 52.233‐3, Protest After Award, and FAR 52.233-4, Applicable Law for Breach of Contract Claim would remain. It would add those to FAR 52.212-4. What do we lose in doing this? In reviewing FAR 52.212-5 and DFARS 212.301, can anyone answer formerfed's question, "Why does the federal government think [FAR 52.212-4 plus state and local labor rules] are not enough?"

You, sir, must work for The Good Guys. 👍

Thanks, you two read my mind. Very sad for Western Kentucky. FEMA Administrator Deanne Criswell held a briefing to the media just over an hour ago from Mayfield, KY, and made a few points relevant to contracting. A "Major Disaster" will be declared in a very short time. Governor Andy Beshear was signing the paperwork to send to the President. (Per FAR 26.201 it will be published in the Federal Register and made available at https://www.fema.gov/disasters/disaster-declarations) The requirements are going to be, firstly, housing. Gov. Beshear made it known later in the briefing that over 1000 homes will need to be replaced. Other requirements to procure included water, power, fuel, and telecommunications. I looked up Major Disaster because of the way Ms. Criswell discussed this term. FAR 2.101 begins discussing it by referencing the FAR Parts to look for its use: With these acquisition flexibilities, the requirements can be set aside to local contractors, or, if determined a commercial service or product, can be awarded without competition under Simplified Acquisition Procedures up to $15M pursuant to FAR 13.500(c) IAW FAR 13.106-1(b). I hope the local contractor community is ready to begin work. The Disaster Response Registry of construction contractors on SAM.gov for Graves County, KY, where FEMA briefed from, appears to be empty as of today. Not sure about the other counties.

Do any feds on here have experience in contingency contracting in response to a natural disaster? Did you physically relocate for it? Was it a worthwhile endeavor?

Those are fun facts. 😁 https://www.federalregister.gov/documents/search?conditions[agencies][]=defense-department&conditions[term]=2.101&conditions[type][]=RULE&order=oldest The above link is like a walk through a museum. Seems it all started in the Summer of ‘95, when someone had to define “written” and “day” for us.

@joel hoffmanMaybe you're right, maybe I'm right, or maybe it's "of a type" (commercial service definition 2). I don't have the details so I can't go any further specific to this contract.

No.

@RetreadfedAnything over $1M, like this three-year contract did, required a CID when a CO is using commercial item procedures. https://www.federalregister.gov/d/E8-1121 @ji20874Could I persuade you by referring to the DOD Guidebook for Acquiring Commercial Items in my proposal? A practical example for the Army CO to examine would be the one on pages 40-42 of Part A: Guidebook_Part_A_Commercial_Item_Determination_07_10_2019.pdf (osd.mil)

@joel hoffman@ji20874If I'm the contractor arguing for a CID, this one seems easy enough to file under commercial service definition (1): These are training services. Put a checkbox next to (1) above. They are training our logisticians how to manage contractors doing operational contracting - stuff like snow removal, salting the driveways, grounds keeping, etc. Any property management company must train its people how to manage the contractors working on its buildings too. Put a checkbox next to (i) above. The last thing I, the contractor, need to provide the CO, then, is a copy of our standard commercial T&Cs so the Government can put a checkbox next to (ii) above. Voilà. I think this work is also known by GSA as facilities services, which includes "Base facilities operation support services". You can view GSA's commercial T&Cs for that here: GSA eLibrary Contractor Listing

Good Morning ji, If I were the HCA and my CO wrote this up as a justification, IAW DFARS 212.102(a)(ii)(B)(2), to "Issue a determination that the prior use of FAR part 12 procedures was improper or that it is no longer appropriate to acquire the item using FAR part 12 procedures," I would not sign it. I would not sign any such determinations about a Small Business, because they could be technically "Nontraditional Defense Contractors" (not to mention JKB especially was, with no other awards on usaspending.gov). In fact, it would be incredibly rare for me to sign one of these determinations, given my only standard is the definition of "commercial item"* in FAR. The definition is too broad, so you are better off grabbing the bull by the horns and improving your market research to reduce the price commercially, rather than hiding behind the skinny flag poles of FAR 2.101. * (now broken out as commercial services/products)

@joel hoffmanMy first post yesterday was an attempt to display that JKB's counsel, in arguing the requirement was services and not a commercial item, didn't even know what the services were for. I wanted to point that out and say moral of the story is, expertise matters. Come to think of it though - and along the lines of recent discussions in Wifcon about not obeying illegal orders - I still don't agree that, from the CO's perspective, this court decision renders the service noncommercial in the future. You said, "Both the Court of Federal Claims and the Court of Appeals decided that it wasn’t a commercial items (commercial services) contract." Perhaps the contract in question is indeed now "determined" noncommercial by the court - this would have an effect solely on the award in 2015, as the Judicial Branch has a retrospective effect with their decisions. This should not, by itself, persuade the next Army CO that receives a requirements package for Army Logistics University services (i.e., "the follow-on") to determine the service noncommercial on the same basis as the courts did, or even just because the courts did. The DFARS is clear, and backed vigorously by statute, that a conversion of a procurement from commercial acquisition procedures to other-than-commercial procedures must be justified in writing. Absent an HCA-approved justification, the CO has no other recourse than to follow DFARS 212.102(a)(ii)(A) and, "[P]resume that a prior commercial item determination made by a military department, a defense agency, or another component of DoD shall serve as a determination for subsequent procurements of such item." No HCA with an elementary understanding of the FAR would agree with this court's basis for determining the service noncommercial, and if the HCA does not sign a determination to convert the follow-on to noncommercial procedures, then the CO has to keep it commercial. Nowhere in FAR 1.602-1(b) is the projection of this court decision on one contract cited as a CO responsibility; however, meeting the requirements of these DFARS policies and the FAR definition of "commercial item" is included. I'm just trying to preempt any non-critical thinking by COs here. Don't follow this court off a cliff!

That’s not factual. The Army CO’s CID stands until a future CO’s HCA comes along and follows DFARS 212.102(a)(ii)(B) procedures, documenting a conversion of the procurement from commercial acquisition procedures.