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Posts posted by Marquette

  1. I am not surprised to learn that some offices have applied the clause on an order-by-order basis. The clause might plausibly be read to apply that way; note that the clause does not provide for extension of the contract, but of "any services." Now that the award of an order can be protested, order-by-order use is not inconsistent with the policy intent stated in FAR 37.111. But if I were going to interpret it that way I would argue that the clause does not have to be inserted in an order to be applicable to the order. It applies, by its own language, to "any services" ordered under the contract. However, if I were planning to apply the clause on an order-by-order basis, I would say so in the contract in order to avoid any dispute.

    There is a problem, however, under multiple award IDIQ contracts--the GAO's decision in Major Contracting Services, Inc., B-401472, 2009 CPD P 170; request for reconsideration denied, B-401472.2, 2009 CPD P 250, which requires that the -8 option either be priced and evaluated at the time of contract award or that exercise be accompanied by a sole source justification. Applying the clause on an order-by-order basis would make such pricing difficult during contract award. Moreover, the GAO's decision would presumably apply to each competitively awarded order, as well as to the contract. In my opinion, it would be hard to write a sole source justification to extend a competitively awarded task order.


    What is your opinion about exercising the option for 6 months if 52.217-8 is incorporated into a single-award IDIQ contract, but it is not in the task order?

  2. All -

    The Army's "Service Contract Approval Request" (also known as a SCAR - and it lives up to its initials) has ABSOLUTELY NOTHING to do with the Service Contract Act. It stems from the Army Policy for Civilian Hiring and Initiation/Continuation of Contracts for Service Personnel signed by the Secretary of the Army on 23 Feb 2006. All relates to insourcing and the SCAR basically requires the requesting organization to explain why they cannot perform the services requested with the people they are authorized on their manning document. And this is an annual requirement so has to be done before each option to justify why you still need the help.

    woops85: I know that. I would appreciate your response to the 3 discussion items in my initial post. Thank you.

  3. What does that mean?

    Does the Army want to hire a contractor to do the work of updating it's current software, or does it want to buy software updates that have already been developed and are being sold to the public?

    Mr. Edwards: The Army is buying software updates, and wants the contractor to provide reach-back expertise to help Army develop an Army Golden Master for the Red Hat/Linux product to be fielded in Army. The contractor provides subject matter expertise on the software product as needed. Last year, the Army bought the software updates but did not require any reach-back expertise.

  4. Army customer has a requirement for software updates. In addition to the software updates, less than 200 hours of professional services may be required. The professional services are incidental to and used solely to support the software, and cannot be purchased separately. The total requirement is less than $100K. The total for the incidental professional services is approximately $47K. To me, this requirement does not appear meet the definition of Service Contract at FAR Subpart 37.1 because the Contractor's primary purpose is NOT to perform an identifiable task. Rather, the Contractor's primary purpose is to furnish the software updates. Additionally, this requirement does not appear to meet the definition of Service Contract in FAR Subpart 22.1000 because the principal purpose is NOT to furnish services through the use of service employees. FYI, last year the Army customer did not use any of the incidental professional services labor hours.

    The Army Contracting Officer requires a signed Request for Services Contract Approval form prior to exercising the contract's option period. Here is an AFARS reference the Contracting Officer may have referred to when making this decision: Subpart 5107.5 -- Inherently Governmental Functions

    5107.503 -- Policy.

    (e) Requiring officials must provide the contracting officer with a copy of the ?Request for Services Contract Approval? form signed by an appropriate General Officer or Accountable member of the Senior Executive Service. Contracting officers shall not complete or sign the service contract approval form and shall not initiate any contract for service, or exercise an option , without an approved certification. The approval and completed worksheets shall be included in the official contract file. The accountable General Officer or Senior Executive may delegate certification authority for requirements valued less than $100,000 in accordance with Command policy. Contracting officers shall document the contract file with a copy of the Command policy before accepting a service contract approval that is signed below the General Officer/Senior Executive level.

    (1) The fillable version of the ?Request for Services Contract Approval? form with worksheets can be found on the ASA (M&RA) website: http://www.asamra.army.mil/insourcing. [AFARS Revision #25, Item V, dated April 1, 2010]

    Note: Command policy requires SES signature on the form. Questions for discussion: (1) Does this requirement meet the definition of Service Contract in FAR Subpart 37.1? (2) Does the preceding AFARS reference apply to the exercise of an option period for a contract supporting software updates which include incidental professional services? (3) Could the Contracting Officer simply document the file indicating he/she does not consider this requirement to be a Services Contract?

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