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Don Mansfield

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Everything posted by Don Mansfield

  1. Buy American Act and Services

    FAR 52.225-5 requires the contractor to deliver U.S.-made or designated country end products. It does not require or prohibit the performance of services by a contractor established in any particular country or class of countries. Paragraph (b) states: FAR 25.403( c )(1) restricts the purchase of other than U.S. or designated country services, but subsequent to award no FAR or DFARS clause requires or prohibits the contractor from using sources from nondesignated countries to perform work.
  2. They protested a solicitation on August 1. I don't know the result, though. They've been banned from my inbox.
  3. Buy American Act and Services

    Neither the FAR nor DFARS contain any provisions or clauses that implement the TAA for services.
  4. Parts received after Task Order PoP end date

    Completion contracts don't necessarily require actual completion--they could just require a contractor's best efforts to achieve completion. The terms "completion" and "level-of-effort" are used to describe how the contract describes the scope of work. There's a good discussion of the distinction in the FAR as it relates to CPFF contracts at FAR 16.306( d ): In a cost-reimbursement contract, either form obligates the contractor to provide its "best efforts". This obligation is stated in either the Limitation of Funds or Limitation of Cost clause. See FAR 52.232-20( a ): Make sense?
  5. Parts received after Task Order PoP end date

    You meant "level-of-effort" not "best effort", right?
  6. Cost Monitoring Plans

    (1) Don't know of any provision or clause. Nothing would prevent the contractor from telling the Government "N/A". However, take a look at So, it looks like the plan would be to ding a business system if the ACO didn't like your lack of a strategy. Probably estimating system. (2) If the contractor had such information, I think it would be part of their estimating system, correct? If so, then I would go with DFARS 252.215-7002, Cost Estimating System Requirements.
  7. PTA above ceiling price — how big a deal, really?

    No. In my scenario, once costs get up to $3,437,500 the contract becomes a FFP contract for $3,250,000.
  8. PP Neutral Rating

    I don't think you'd have to be that explicit. The solicitation could just say that respondents who fail to follow the instructions herein will be evaluated unfavorably under "compliance with solicitation requirements".
  9. PTA above ceiling price — how big a deal, really?

    Did you read that case Vern posted?
  10. PTA above ceiling price — how big a deal, really?

    I assume your reference to FAR 16.403-1(a) was to "when final cost is more than target cost, application of the formula results in a final profit less than the target profit, or even a net loss." As far as cost allowability, one of the standards at FAR 31.201-2( a ) is "Terms of the contract". Why couldn't the parties enter into an advance agreement that would disallow a portion of costs by the amount of any negative profit? So the answer to the original poster's question--"PTA above ceiling price — how big a deal, really?"--seems to be a big deal.
  11. PTA above ceiling price — how big a deal, really?

  12. PTA above ceiling price — how big a deal, really?

    Yes, I think you understand.
  13. PTA above ceiling price — how big a deal, really?

    If the contractor incurs another dollar above $3,250,000, the Government pays $0.40 and the contractor's profit goes down $0.60. The total amount the Government pays is $3,175,000.40.
  14. PTA above ceiling price — how big a deal, really?

    Yes, that's wrong. If the contractor incurred $3,250,000 in cost, the Government would only pay $3,175,000. See my first calculation above. Cost sharing would continue up to $3,437,500. At that point and above, the Government would pay $3,250,000 (the ceiling price).
  15. PTA above ceiling price — how big a deal, really?

    I'm sorry, Vern. My example above disproves that assertion. In my example, the ceiling price is $3,250,000, but the PTA is $3,437,500. Your assertion is only true if profit will be >= $0 at the ceiling price.
  16. PP Neutral Rating

    I disagree that OMB has interpreted the law as not applying to RFPs. The PRA regulations expressly apply to RFPs. 5 CFR 1320.3( c )(1) states: I also disagree that agencies would necessarily have to get OMB approval for each individual RFP. An RFP contains dozens of information collections--some approved by OMB, some may not be. If an RFP contained an information collection that was not approved by OMB, then approval would be required for that specific information collection.
  17. PTA above ceiling price — how big a deal, really?

    Yes, the ceiling price of $3,250,000 is the most that the Government will have to pay the contractor. The parties are cost sharing up to $3,437,500.
  18. PP Neutral Rating

    Just to be clear, I did not call such an opinion a penalty. In my hypothetical, failure to distribute questionnaires to references would have no bearing on an evaluation of past performance--it would affect a factor such as "compliance with solicitation requirements." Suppose an agency issues an RFP that requires an offeror to submit past performance information in the form of a list of contracts and a brief description of the work required under each. For each contract identified, the offeror is required to send a PP questionnaire to a POC for each contract. The agency does not comply with the display and notice requirements contained in 5 CFR 1320.3(f) and 1320.3(b) when requesting the information. The RFP contains an evaluation factor for "compliance with solicitation requirements." An offeror submits an offer with the list, but does not send any of the questionnaires to its POCs. The agency now has to contact the POCs to obtain the information that would have been in the questionnaire. Accordingly, the offeror gets an unfavorable rating for "compliance with solicitation requirements." Putting aside the issue of whether it would be stupid in doing so, it would be justified under the terms of the RFP. I think that an argument can be made that the agency's actions constituted a "penalty" under the PRA. Note that under "Obligation to Respond" in the Information Collection for Past Performance Information: Responses During Source Selection it states "Required to Obtain or Retain Benefits." So, it seems that a contract is viewed as a "benefit". I don't agree with that assessment. A given RFP contains dozens of information collections. Some of these have been cleared by OMB, some have not. Most of the entries on the list at FAR 1.106 are provisions and clauses. A representation or certification will typically have an associated OMB Control Number. Most forms in the FAR/DFARS display an OMB Control Number if they require an offeror to complete them. In fact, there is an OMB Control Number for collecting past performance information during source selection--9000-0142--but I doubt anybody is complying with the display and notice requirements contained in 5 CFR 1320.
  19. PP Neutral Rating

    "Downgrade" probably isn't the right word. What I'm trying to describe is evaluating an offeror unfavorably under an evaluation factor such as "compliance with solicitation requirements" because they didn't bother to send past performance questionnaires to their references. According to the Information Collection Review, the sections affected are "4.5; 14.205; 15.201(c) and 36.213-2." That's a good question. My guess is that 1) Some agencies don't know what their responsibilities are under the Paperwork Reduction Act, 2) Some agencies do know but it's too hard to comply with, 3) some offerors don't know their rights under the PRA, 4) Some offerors do know their rights but don't enforce them because they're trying to win a contract, and 5) nobody really cares. This article may shed some light on the topic. Avoidance of OIRA (created by the PRA) is not unique to acquisition.
  20. PP Neutral Rating

    The "downgrade" would be for failure to comply with solicitation requirements (i.e., the offeror had references, but didn't have them complete and submit surveys). The information collection approved under OMB Control No. 9000-0037 is for "Presolicitation Notice and Response." See the last FR Notice. If you are referring to the list at FAR 1.106, it is misleading.
  21. PTA above ceiling price — how big a deal, really?

    If we define the PTA as the cost that, when added to the contractor's profit, equals the ceiling price, then the PTA can exceed the ceiling price if profit would be negative when total cost is equal to the ceiling price. The OP's parameters: Target cost = $2.5 million Target profit = $375,000 Overrun share ratio = 40/60 (G/C) Ceiling price = $3,250,000 The PTA formula he used yielded a PTA of $3,437,500: If actual cost turned out to be $3,250,000, the contract price would be $3,175,000: Final Price = Final cost + (Target profit - Contractor share of overrun (Amount of overrun)) = $3,250,000 + (375,000 - (.6*750,000)) = $3,250,000 - $75,000 = $3,175,000 For costs in excess of $3,250,000 up to $3,437,500, the contractor does not assume 100% of the costs--they only assume 60%. So, let's say actual costs were $100K higher than the ceiling price. In that case, the final contract price would be $3,215,000 ($40K higher): Final Price = Final cost + (Target profit - Contractor share of overrun (Amount of overrun)) = $3,350,000 + (375,000 - (.6*850,000)) = $3,350,000 - $135,000 = $3,215,000 So, PTA can exceed ceiling price.
  22. PP Neutral Rating

    joel, What if the protest is not of the requirement itself, but of the agency's actions in response to failing to comply with the requirement? Wouldn't that be a timely protest? You may be right that downgrading an offeror would not be a penalty, but a good lawyer may be able to argue that it is. To my knowledge, this argument has never been made in a protest. I'd love to see what a court or the GAO would decide. There are a lot of protests denied because an offeror failed to provide every last piece of paper required by the solicitation. Why not invoke the public protection provision of the Paperwork Reduction Act? I think it's worth a try. I'm probably the only one, though.
  23. PP Neutral Rating

    Let's assume that the requirement for submitting past performance information was a "collection of information" as defined at 44 U.S.C. § 3502. Let's also assume that this solicitation requirement did not display a valid OMB control number, as required by 5 CFR 1320.3. Would the agency be justified in rejecting or downgrading the offeror for failure to provide the past performance information? 5 CFR 1320.6 states:
  24. Kickstarter and the GCPC

    Do you think using the Governmentwide Commercial Purchase Card to fund a project on Kickstarter is prohibited by law (statute or case law), Executive order or regulation? If yes, please specify what you think would prohibit it.
  25. Kickstarter and the GCPC

    Government would not be the sole funder. It's "crowdfunded".