Don Mansfield

So, if the Government provided the platform and the computer it would be Government site?

I thought I'd hear from you. I think you're interpreting my post as an indictment of the contractor. That's not what I intended. I'm assuming the parties did not contemplate the present work arrangement. If the contractor is billing at a rate that is likely to differ significantly from actual rates, then it may be time to revise the billing rate (see FAR 42.704(c)).

I don't think your situation is unique. There are a lot of support contracts that didn't contemplate the amount of telework that we have seen since 2020. That doesn't mean that there is a clear answer. I would not be surprised to see a board or court decision on this issue in the near future. If I were a CO, I would be interested in knowing if the contractor's standard practice for allocating indirect costs to direct telework labor before the pandemic was consistent with how they are allocating it now. If it was standard practice to charge the off-site rates, then I might try to negotiate an agreement for "telework" rates. It seems unreasonable to charge the contractor site rate for an employee who would otherwise be working at the Government site. However, that doesn't necessarily mean the Government site rate is appropriate for telework. I wouldn't start with a DCAA Form 1 and I wouldn't lawyer up at the outset. I'm assuming that the Government authorized the telework and that you are referring to a cost-reimbursement contract.

I think the goal is to set up something like Amazon that would ensure compliance with socioeconomic policies (i.e., FAR part 8, FAR part 23). These policies apply to micro-purchases.

See DFARS 201.303(a)(i)(A):

I'm not convinced that would be necessary if, when placed, the order was within the maximum.

I agree.

We need more tools like this.

Yes, good point. I was referring to the issue of whether a J&A would be required.

The 809 Panel suggested adding "fixed-price resource units" as a new contract type to FAR subpart 16.2 to enable contracting for consumption-based "solutions". What prohibits the use of that contract type now? I appreciate the Anti-deficiency Act issues, but I'm not understanding why the FAR needs to change.

When applying the "scope of the competition" test, the GAO considers "whether the modification is of a nature which potential offerors would reasonably have anticipated under the changes clause."

Why can't agencies use consumption-based contracting under existing acquisition rules?

I think it comes down to the "scope of the competition" test, which is stated in Neil R. Gross & Co., 69 Comp. Gen. 247 (B-237434), 90-1 CPD ¶212: If the solicitation for an IDIQ contract contained a Changes clause, the offerors were on notice that prices of orders could be adjusted after issuance as a result of change orders. While I think that potential offerors could reasonably expect the agency to ensure that orders are within the contract maximum before issuing them, I don't think it's reasonable to expect the agency to continuously look over their shoulder to ensure subsequent price adjustments don't exceed the contract maximum.

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Why the distinction between work and nonwork (?) modifications? Why would that matter?

Great point.

Just wondering...do our automated systems tolerate BPAs without maximums or estimated amounts?

The way the contract's work requirements are described--in terms of outcomes.

I suspected you had a DoD background when I read your original post and that you probably haven't been in the field more than 10 or so years. DoD cracked down on use of "local clauses" ~10 years ago, which culminated in the current policy stated in DFARS PGI 201.301. Going forward, any local clauses would have to go through the same rule making process as FAR or DFARS clauses if they met the stated criteria (most probably did). The belief that the Services and Defense agencies would comply with the publication requirements is adorable. What happened is the contents of Section H, traditionally the dumping ground for local clauses, became the focus of review teams. Local clauses began to disappear from section H, which is probably why Vern was able to find a DoD RFP with nothing in that section. However, these clauses didn't go away, nor was a local clause ever published for comment in the Federal Register. Instead, they started appearing in SOWs. This was not because they describe the work in any meaningful way--it was merely a workaround. We're now at a point where the Navy prescribes standard "SOW language" in the NMCARS to implement policy. So, what you are seeing in practice in DoD has less to do with a thoughtful application of UCF policy, and more to do with stealthy bureaucratic maneuvering.

One other thought. You may already be doing this, but when you are doing the weighted guidelines you can assign below normal value for contract type risk if some or all of the costs have already been incurred (like proposal prep costs).

You don't have to agree to the proposed fee. You can break precedent. New sheriff in town.

What do you mean by "fee-bearing"? Have you agreed to pay fee as a percentage of their proposal costs?

That may be true, but what's a guy to do when the discussion starts going over his head and he still wants to contribute and seem wise?

I don't see a definition of "specification" in FAR part 11.

I'm pretty sure agencies post most solicitations online and prospective offerors download them. Unless the acquisition was a set-aside, I don't know how a contracting officer would know who would be responding.