Jump to content

Don Mansfield

Members
  • Posts

    3,371
  • Joined

  • Last visited

Everything posted by Don Mansfield

  1. Yes, you can factor in transportation costs as a price-related factor in your evaluation. See Volume 1, Chapter 5, Section 5.4, of the Contract Pricing Reference Guides regarding the use of transportation costs as a price-related factor. The example is written for a supply contract, but it is easily adaptable to your situation.
  2. ji20874, While you're at it, are you sure that the Government is liable for late payment interest if the lateness is caused by a soveriegn act of the Government (i.e., closure of the payment office)? Why wouldn't the sovereign acts doctrine apply?
  3. subbby2005, FAR 6.401(a) requires sealed bidding if the four conditions are met and the acquisition is subject to CICA: So you don't have the discretion to choose between sealed bidding and negotiation. For each of your acquisitions subject to CICA, you need to ask yourself if the four conditions exist. If they do, you must use sealed bidding. If not, FAR 6.401( b ) says you may request competitive proposals.
  4. Vern, In some cases, a stop-work order may be necessary. That's why I asked rios if the contractors would have been able to work even if the Government shut down. He said that some work could continue, some couldn't. If he wanted to stop the work that could have continued despite the shutdown, then a stop-work order would be necessary. For the work that couldn't continue, the Government doesn't have to issue a stop-work order or suspension of work.
  5. rios, I don't understand why you issued stop work orders for work that the contractor couldn't do because of the shutdown. You issue a stop work order if the contractor would have worked and you didn't want them to. When you issue a stop-work order under FAR 52.242-15, the contractor would potentially be entitled to an equitable adjustment in price and/or schedule. If the contractor can't work because of an act of the Government in its sovereign capacity (like a shutdown), the most the contractor would be entitled to is a schedule extension. There's something called the Sovereign Acts doctrine (Google it), which bars claims for increased costs caused by sovereign acts. Why did you think you had to issue stop-work orders?
  6. rios, If you did not issue the stop-work orders, would the contractors have been able to work?
  7. Are you trying to say that the work is outside the scope but under the terms of the existing contract?
  8. Suspension of work? You realize that may entitle the contractor to any increased costs caused by the suspension.
  9. All I have to say is that jail is too nice a place for COs who don't follow the FAR.
  10. Why do you think you have to "use" a clause to make a bilateral contract modification? Let me guess, you're fretting over what to put in Block 13C of the SF 30.
  11. Vern, I'm still having trouble with your interpretation of FAR 1.401(f) (Strangely enough, it came up in my dream last night ). For argument's sake, I will accept the interpretation of FAR 1.401(f) that you wrote in an earlier post as follows: In other words the "issuance" described at FAR 1.401(f) requires rulemaking, but has yet to go through the process. You say that such an issuance is unlawful. However, FAR subpart 1.4 and DFARS subpart 201.4 authorize agency heads to approve "deviations" as defined at FAR 1.401. I anticipate your response to be "Yes, but the agency head must first go through the rulemaking process." The problem is that if the issuance went through the rulemaking process, it would no longer be a deviation under FAR 1.401(f). As such, the agency head can't really approve a "deviation" as defined at FAR 1.401(f). Am I understanding you correctly?
  12. Vern, Would you say that anything meeting one of the definitions of "deviation" at FAR 1.401 would be required to go through rulemaking?
  13. Vern, What you wrote about the outdated cross-reference to FAR 1.301( a ) is reasonable, but I still think you are reading something into FAR 1.401(f) that isn't there. Your interpretation essentially adds the bracketed words below: I see no reason to interpret FAR 1.401(f) other than literally. The fact that DPAP does not commonly refer to such issuances as deviations is not persuasive. Common usage and understanding of words and terms often differs from FAR definitions. A COR is commonly understood to NOT be a "contracting officer", but the FAR definition includes CORs. A request for equitable adjustment is commonly understood to be different than a "claim", but the FAR definition includes REAs. I see the definition of "deviation" at FAR 1.401(f) as another one of these instances. Nonetheless, I will see if I can get a clarification from the DAR Council. As far as your assertion of noncompliance with 41 U.S.C. 1707, I have no argument with that. However, this is not unique to the most recent class deviation. Almost all class deviations conclude with something to the effect that "this deviation remains in effect until incorporated into the FAR [or DFARS] or is otherwise rescinded." Neither is this practice unique to the issuance of class deviations. DPAP has a history of issuing policy memos that mandate compliance prior to the rulemaking process. Remember the "Only One Offer" policy that essentially eliminated the exception to the requirement for certified cost or pricing data if only one offer was received and there was adequate price competition? That was issued as "amplifying guidance." DPAP even has a procedure for coding policy memos that contain policy to be incorporated into the regulations. The practice of implementing policy by memo and worrying about rulemaking later is standard and has been for as long as I can remember. Noncompliance with 41 U.S.C. 1707 is pervasive. Just turn to Section H of the nearest Government solicitation. You will undoubtedly find homegrown contract clauses that meet the criteria for rulemaking in the statute, but never actually went through the rulemaking process. Several Navy activities recently issued "Tripwires" policies, which impose all kinds reporting burdens on contractors, without complying with 41 U.S.C. 1707 (or the Paperwork Reduction Act, for that matter). NDIA wrote a letter to Frank Kendall about it. It's a problem.
  14. Vern, I don't understand that comment. Some deviations require rulemaking, some don't. Agency supplements contain deviations that have been through rulemaking. For example, DFARS 201.301( a )(1) states: [bold added]. I provided an example of such a deviation in my prior post. You are correct that the DFARS PGI is not an agency acquisition regulation. That is why the DFARS PGI meets the definition of "deviation" as described at FAR 1.401( f ):
  15. Vern, No. FAR subpart 1.4 does not authorize agency heads to disregard 41 U.S.C. 1707. If the deviation has "a significant effect beyond the internal operating procedures of the agency" or has "a significant cost or administrative impact on contractors or offerors", then 41 U.S.C. 1707 would require the deviation to go through rulemaking. An example of such a deviation would be DFARS 225.105( b ), which deviates from FAR 25.105( b ): "Use an evaluation factor of 50 percent instead of the factors specified in FAR 25.105( b )." Retread, Yes, DFARS PGI meets the definition of "deviation" at FAR 1.401(f).
  16. FAR 1.401(f) doesn't say anything about rules that are not "to be" incorporated into the agency's FAR supplement. It uses present tense: "The issuance of policies or procedures that govern the contracting process or otherwise control contracting relationships that are not incorporated into agency acquisition regulations in accordance with 1.301(a)." Whether the deviation was issued properly (i.e. without rulemaking) is a different issue. I don't see that as having any effect on whether the issuance itself is a deviation. When the policy gets incorporated into the DFARS, it will no longer be a deviation under FAR 1.401(f).
  17. There's no prohibition on using sealed bidding procedures to award an IDIQ contract. In fact, you are required to use sealed bidding procedures if the conditions at FAR 6.401(a) are met (assuming FAR part 6 applies to your acquisition).
  18. DAMB, Your story is very familiar to me--I worked in the same environment at one point in my career. I also looked for some type of rule that said funds needed to be committed before negotiations could begin with a contractor--and I came up empty. I probably dealt with the same customer that you are dealing with now. I think you should elevate the issue to your management. Maybe they can get more of a "commitment" from the customer before "committing" their employees to negotiating contracts that don't come to fruition.
  19. Why do you think that you have to make this determination before award? If you have an offer that promises to comply with the clause and you don't think they can, the most you can do in your situation is refer the matter to the SBA for a CoC.
  20. I'm surprised by the holding in the NASA BCA case. However, it works both ways. If the Inspection clause is inapplicable to conformance with the BAA clause, then the Government's acceptance of the item does not constitute an acknowledgement that an item is BAA-compliant. If we assume that the contractor is not liable under a contract clause, it doesn't mean that they would not be liable for breach of contract (i.e., absent a dispute arising under the contract, the government may still have a dispute related to the contract). If the amount offered by the contractor is fair, I would follow your legal advisor's opinion.
  21. Bob, Would you please enable the "Like This" button--just this one time?
  22. Would you please provide the citation to the NASA case?
×
×
  • Create New...