Don Mansfield

Is the overall estimated cost fair and reasonable?

@FLContracts, Did the prime do a price or cost analysis of the subcontractors' proposals? Does the prime have an approved purchasing system?

If the rule were to check them off if I determined that the clause was consistent with standard commercial practice, then I don't see how any would apply. Imagine the howling by SBA if a CO decided not to check off the small business subcontracting plan clause, or DoL if a CO decided not to check off Service Contract Labor Standards clause, or domestic sources if a CO didn't check off Buy American.

I see. Instead of the FAR and DAR Council making the call, the contracting officer would make the call on a case-by-case basis. I'm having a hard time imagining how any clause required to implement a statute or executive order would be consistent with standard commercial practice. Isn't FAR case 2018-013 addressing this issue? You know, the one whose status says "awaiting CAAC concurrence" of a proposed rule as of 2/19/2020?

There doesn't need to be an exception, because you can tailor FAR 52.212-4 to be consistent with customary commercial practice.

FSS contracts have maximums, correct? If so, wouldn't orders under a FSS BPA count against the maximum? If so, wouldn't FSS BPAs be limited to an amount at or below the FSS contract maximum?

I'm not sure whether to help you or just let you continue to believe that.

For a good illustration of the flexibility a contracting officer has when using SAP, see https://www.gao.gov/products/b-281512.

You're not going to find such a case. So what are you going to conclude? The rules of FAR 15.306 apply to SAP, even if the solicitation expressly says they don't?

The agency didn't tailor FAR 52.212-1 for SAP. So, they brought in the discussions rules by virtue of paragraph (g). This can be avoided. See here for examples of how to tailor FAR 52.212-1 for SAP:

Why do you think this is true?

I don't understand this. What does the Government have to do with the pandemic?

Wouldn't there need to be consideration?

I wonder how many are FAR part 13 BPAs.

If the rates aren't maximums, I don't see what contractual significance they have. It seems like they are informational. If I were negotiating the estimated cost of the task order, my goal would be to reach an agreement on what the actual cost is most likely to be. If the rates stated in the contract weren't what I thought the actual rates were going to be, then I wouldn't use them in developing my position. Having said that, agreeing to a higher estimated cost does not necessarily mean you are agreeing to a higher fixed fee. These are two different points of negotiation.

Let me see if I understand. The IDIQ contract contains labor rates. When you negotiate the estimated cost of a task order, you use the labor rates stated in the IDIQ contract. You then apply a predetermined % to the estimate to arrive at a fixed fee. The contractor thinks that the labor rates in the IDIQ contract are too low (i.e., they estimate their actual labor rates are going to be higher). Do I have it right?

I know of one agency that is using a FAR part 13 BPA for a major system acquisition. They have special emergency procurement authority, so they can make individual purchases up to $15 million (no, they are not breaking down requirements to stay under $15 million).

What would entitle the contractor to an adjustment in the fixed hourly rate in the initial contract?

Imagine the time before the GCPC or the concept of micro-purchases. BPAs were an effective way to accomplish small-dollar purchases without burdening the contracting office. Typically, a contracting office would set up a BPA for an organization that did some buying, but not a lot. They would authorize certain individuals to make "calls" (actual phone calls) to vendors against a charge account. The authorized callers would keep a call log (actual paper log) that the contracting office would periodically inspect. I'm sure some of the folks on Wifcon have had experience in this type of environment. The advent of the GCPC changed things. There probably aren't that many organizations that need BPAs to make small-dollar purchases anymore. BPAs are used more as IDIQs for SAP these days (from my observations). I know of agencies that have competed multiple-award BPAs and subsequently limited competition for calls to the awardees. This technique has withstood protest at the GAO. Some of these BPAs may permit the placement of orders using the GCPC in amounts greater than the MPT. Ok, but there are thresholds that limit the use of the GCPC. So, you have to use a different method to place the call above those thresholds. What else would you use? For purchases above the SAT, see FAR 12.204 and DFARS PGI 213.307.

I'm confused by some of the wording in your question. I think you are asking at what dollar value a BPA call needs to be issued on a DD Form 1155 or SF 1449, instead of using the GCPC to make a purchase. I also assume that you are referring to a FAR part 13 BPA. DFARS 213.270 generally requires the use of the GCPC for purchases at or below the MPT. FAR 13.301(b) states that: "Agency procedures should not limit the use of the Governmentwide commercial purchase card to micro-purchases." DoD allows the use of the GCPC to make purchases above the MPT as described in DFARS 213.301. There may be other circumstances in which the Air Force permits the use of the GCPC above the MPT. Above those thresholds, I think you would have to make the purchase using a DD Form 1155 or SF 1449.

See paragraph (d)(3) of that clause. No, that's not what I'm saying. Assuming the prime flowed down FAR 52.215-21, you would be required to submit your proposal in the format of FAR Table 15-2. In section III.B, there's a format for the submission of line item summaries for change orders, modifications, and claims. In your case, the cost of all deleted work would be the current estimate of what the raw material cost would have been to complete the contract (plus whatever other costs you would have incurred in purchasing the raw materials). That cost goes in column 2. Assuming your column 3 entry would be $0, your net cost to be deleted in column (4) would be the same as the entry in column (2). In column 5, you are going to estimate additional costs caused by the change (e.g., managing the CFM, etc.). If the entry in column 4 is greater than the entry in column 5, then the net cost of the change in column 6 is going to be a negative number. That would suggest a downward price adjustment would be appropriate.

An equitable price adjustment is based on the cost impact of the change. The measure of the cost impact is the difference between the current estimate of the cost to complete the contract as changed and the current estimate of what the cost would have been to complete the contract had there been no change. In your case, this would be a negative number (i.e., there should be a downward price adjustment). Your estimates from five years ago are irrelevant. See III.B of FAR Table 15-2.

What would be the consideration for the rate increase?

I don't know of one that is required. You just gave me an idea 🤔

Why do you believe that?