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Don Mansfield

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Everything posted by Don Mansfield

  1. So do you concede that, for acquisitions subject to FAR part 6, a small business set-aside must be competitive?
  2. Again, so what? There is no exception to the policy stated at FAR 6.101( a ) for a sole source action on the basis of a firm's status as a small business concern. Period.
  3. So what? FAR 6.101( a ) states: There is no exception to this policy for a sole source action on the basis of a firm's status as a small business concern.
  4. 1. You should only check the box for a small business set-aside if you are limiting competition to small business concerns in accordance with FAR 19.502. 2. You can call it a set-aside, but that would not be true. 3. Which box are you referring to?
  5. FAR subpart 19.5 covers "Small Business Set-Asides." The two types of set-asides discussed in the subpart are "total small business set-asides" and "partial set-asides." The way the information is presented in the FAR, "total small business set-asides" are a subset of "small business set-asides."
  6. I can think of a couple of things. You could cap the rates at the proposed rates (or within some fixed % of the proposed rates). Or, you could make the proposed fee (stated as a percentage of estimated cost) a maximum for pricing task orders.
  7. That's a possibility. There could be some legal justification that I am not aware of. I'll see what I can find out.
  8. It was actually the FAR Council that added "for any contract type" without exception at FAR 15.408(n)(2)(ii)--not DoD. I don't know for sure if the FAR Council deliberately decided to permit application of the pass-through policy to contracts below the TINA threshold or if they did so by mistake. There was no explanation of why "for any contract type" was added in the FR notice.
  9. The statute in question (Section 852 of the FY 2007 NDAA) was originally implemented in the DFARS in an interim rule on April 26, 2007 (72 FR 20758-02). The prescriptions for the implementing provision and clause appeared as follows: On May 13, 2008, a second interim rule was issued (73 FR 27464-02). The preamble contained the following comment and response: The prescription for the implementing clause was changed to read as follows: In response to the second interim rule, the Professional Service Council submitted the following comment on July 14, 2008: On October 14, 2009, the FAR Council issued an interim rule to implement Section 852 of the FY 2007 NDAA in the FAR. The DFARS case was incorporated into the FAR case. The interim rule did not contain a response to the comment submitted by the PSC. The prescription for the implementing clause, now at FAR 15.408(n)(2)(i), read as follows: [bold added]. Instead of limiting the applicability of the clause below the cost or pricing data threshold to certain prescribed contract types, as the PSC suggested, the FAR Council explicitly stated that the clause may be used "for any contract type" without exception.
  10. Vern, FAR 15.408(n)(2)(i)( B ) implements the statute for DoD. It states: ​ Note the "any contract type" except--...(i) A firm-fixed-price contract awarded on the basis of adequate price competition. FAR 15.408(n)(2)(ii) provides guidance on the use of the clause below the stated threshold: Unlike FAR 15.408(n)(2)(i)( B ), it does not limit the application by "contract type" as that term is used in the paragraph. It does not say "any contract type except the following--".
  11. How about an act of Congress? Time for your COs to leave the cave.
  12. wvanpup, You're correct that the statute does not contain a dollar threshold. However, in implementing the statute, DoD decided to set a threshold (at the cost or pricing data threshold) above which the requirements of the statute would apply. DoD can do that. Below the threshold, the requirements of the statute do not apply. So, a contracting officer could include the clause in a FFP contract awarded on the basis of adequate price competition below the threshold and not be in violation of the statute. FAR 15.408(n)(2)(ii) merely provides guidance on the use of FAR 52.215-23 below the cost or pricing data threshold--it is not implementing the requirements of the statute.
  13. When the pricing occurs at the task order level, there is not much significance in the evaluation of cost when awarding the IDIQ. It's done to comply with law. We operate under the legal fiction that the costs/prices proposed for these IDIQ contracts represent the amount the Government will actually pay.
  14. wvanpup, The problem with how we were interpreting FAR 15.408(n)(2)(ii) was that it was not consistent with the statute. As Retreadfed pointed out, the statute (section 852 of P.L. 109-364) states: DoD chose to implement the requirements of the statute in contracts exceeding the cost or pricing data threshold. The final FAR rule (75 FR 77741) contains the following exchange: FAR 15.408(n)(2)(ii) provides guidance on the use of FAR 52.215-23 below the cost or pricing data threshold--it is not implementing the requirements of the statute. The use of "and for any contract type" has the same meaning as "regardless of contract type." This interpretation harmonizes the regulation with the statute. If we interpret FAR 15.408(n)(2)(ii) as permitting a CO to include FAR 52.215-23 in, for example, a fixed-price contract awarded on the basis of adequate price competition that exceeds the cost or pricing data threshold, we would be in direct conflict with the prohibition in the statute.
  15. It comes from the basic versions of FAR 52.215-20 and -21, which instruct the offeror/contractor to prepare a proposal IAW FAR Table 15-2. FAR Table 15-2, Part II.A. requires price analysis and cost analysis (if applicable). See my post #4.
  16. Steveatus, If you complied with FAR Table 15-2, your proposal included the following statement: Even if you didn't submit the price analysis with your proposal, you agreed to let DCAA examine it.
  17. Yes, I agree that the CO does not have the discretion to include the clause in contracts above the thresholds for the types of contracts listed at FAR 15.408(n)(2)(i)( B )(2).
  18. ohnoudidnt14, You're hung up on the "and" at FAR 15.408(n)(2)(ii). You think that two conditions must be met in order for the CO to exercise their discretion to include the clause. That's not what it says. The CO may include the clause, at their discretion,-- 1. When the total estimated contract or order value is below the thresholds identified in FAR 15.408(n)(2)(i) and the contract type is one that is not listed FAR 15.408(n)(2)(i)( B )(2), or 2. When the total estimated contract or order value is below the thresholds identified in FAR 15.408(n)(2)(i) and the contract type is one that is listed FAR 15.408(n)(2)(i)( B )(2). I think that you are having a problem seeing this because you want it to say something different.
  19. ohnoudidnt14, I think you are misinterpreting FAR 15.408(n)(2). Here's the relevant text: FAR 15.408(n)(2)(i) requires use of the clause when the two stated conditions are met. FAR 15.408(n)(2)(ii) provides guidance on the use of the clause when the stated conditions are not met. The guidance is the same regardless of whether the first condition or second condition is not met. It has the same meaning if it were written as: "The clause may be used when the total estimated contract or order value is below the thresholds identified in 15.408(n)(2)(i) when the contracting officer determines that inclusion of the clause is appropriate. The clause may also be used for any contract type when the contracting officer determines that inclusion of the clause is appropriate."
  20. There's a disconnect between FAR 15.404-3( b ) and FAR Table 15-2. FAR 15.404-3( b ) states: This seems to require the contractor to include the results of the price analysis or cost analysis in the price proposal, regardless of dollar value. However, FAR Table 15-2, Part II.A. states: So, your proposal may be compliant with FAR Table 15-2, but DCAA may be expecting more based on FAR 15.404-3( b ).
  21. The scenario is based on a true story. In the story, the program office was the first to receive the offer of the new widgets from the contractor. Thinking this was a good solution, one of the program folks informed the contracting officer and asked if it could be done. Backed by legal counsel, the contracting officer refused--saying that such a change would be outside the scope of the contract. She didn't offer an alternative, either. Unfortunately, I find this story much more believable than if the contracting officer had accepted the contractor's offer and found a way to make it work contractually.
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