Don Mansfield

In post #26 Vern wrote "First, a building or work is a “construction activity,” not a thing." That's what I was responding to. Further, I don't think that Vern's interpretation of the definition of "building or work" at FAR 2.101 is in harmony with how that term is used, in some places, in the FAR. If we are always to interpret the term as the act of constructing something, then there would be illogical consequences. My post #32 cites examples within the FAR of a building or work "being constructed" or transporting portions of "buildings or works" from one place to another. We cannot reasonably interpret the term to mean the act of construction in these instances.

The funding of an overrun does not arise from antecedent liability--it is a discretionary action. As such, it would be improper to use prior year funding to cover a liability that did not exist in the prior year.

I disagree with Vern's assertion that a "building or work" cannot be a "thing". The definition of "building or work" lists what the terms include and they are all things. Further, the use of "building or work" in some instances in the FAR cannot reasonably be interpreted as the activity of "building or work". For example, the definition of "construction, alteration, or repair" at FAR 22.401 states: From the definition of "site of work" at FAR 52.222-6(a)(1): From FAR 52.222-6( b )-- From FAR 25.003-- Lastly, from FAR 23.206(d) I agree with Vern that replacement of the air conditioning system would be an acquisition of "supplies" as that term is defined at FAR 2.101. However, that is not conclusive as to the applicability of the Davis-Bacon Act. I think that a CO should consider the DoL guidance that Carl posted (see post #24 above) and make a judgment call.

joel, I think that the definition of "building or work" is broad enough to encompass prefabricated/temporary buildings. According to All-Agency Memorandum No. 130 issued by the DoL, "Building Construction" includes prefabricated buildings. Also, in a letter to the Postal Service, the Comptroller General said that it didn't matter whether a structure was permanent or temporary for the DBA to apply. The decision stated as follows: Both the memorandum and the letter date back to the 1970s, so it's possible that the DoL and/or the GAO have changed their minds. I could not find evidence of this, however.

joel, "Building or work" is defined at FAR 2.101:

Good question from a student: When applying dollar thresholds in the FAR in accordance with FAR 1.108( c ), do you include the value of the FAR 52.217-8 option? I think the answer is yes, based on the use of "all options" at FAR 1.108( c ): However, I doubt anyone is doing this.

Are you familiar with the Sovereign Acts doctrine? If not, Google it.

SapereAude, Only one of the conditions at FAR 15.403-1( c )(1) need to be met in order to have adequate price competition. The condition at FAR 15.403-1( c )(1)(iii) could theoretically be met in a sole source environment.

I don't see why. The clause states: How would having a priced line item for the period(s) covered by the -8 clause be inconsistent with the terms of the clause?

I understand your evaluation scheme. How would you structure your line items, though? Would you have separate line items for each of the potential -8 option periods or just one line item for the -8 option that could be exercised at the end of any period? If the latter, how would offerors know how to price the option?

Given that the -8 option could be exercised at the end of the base period or any one of the -9 option periods, do you think govt2310 would have to get pricing for each of the potential -8 option periods?

promptly: with little or no delay; immediately. If you have eliminated those ten offerors from the competition, you must notify them, in writing, immediately.

jwomack, Your hypothetical Schedule looked like this: IDIQ. CLIN 1, quantity of 1, minimum guarantee, value $10,000. CLIN 2, quantity of 49, total value $490,000. CLIN 3, pre-negotiated termination fee (maybe “settlement fee” would be more appropriate verbiage), value $3,000. Contract language. “CLIN 3 may be ordered in lieu of CLIN 1.” For CLIN 2, is the Government ordering 49 units or is 49 an estimate (i.e., the Government could order 0-49 units)?

In other words, the $3,000 is a contingent liability. As such, it cannot be recorded as an obligation.

govt2310, FAR subpart 19.12 is on its way out of the FAR. DoD has issued a class deviation telling folks not to follow it. If you don't work for DoD, I would check if your agency has issued a similar class deviation.

That's not how I understood jwomack's example in his post #11. I understood his CLIN 0002 to be IDIQ as well. jwomack, Please clarify.

No. The FAR only authorizes one way to ensure an IDIQ contract binding--a promise to purchase a minimum that is more than a nominal amount. All IDIQ contracts must contain such a promise. If a contract did not contain such a promise, it would not be an IDIQ. FAR 16.504(a) could not be clearer.

I think you meant the total costs for the prime's personnel ($400,000 in your example) divided by the total costs of performance incurred for personnel ($1,000,000 in your example) would give the percentage of costs of performance incurred for personnel. Your example is correct.

Instead of making assumptions, why don't you do some market research and compare the prices offered by the manufacturer to the prices offered by resellers?

The rule at FAR 8.405-3(d)(2) became effective on May 16, 2011 (see 76 FR 14548-01). Do you know when the solicitation for the BPA was issued? If it were issued before May 16, 2011, then the rule would have no effect on the placement of the BPA, IAW FAR 1.108( d )(1).

mtbyrne76, You wrote: "my point is that the funds obligated for the original contract are properly used for changes within scope and to fund variations permitted by the VEQ clause." I don't understand. Let's say you award a FFP construction contract for $1 million. You would record an obligation of $1 million, correct? Now, let's say that during contract performance, the CO issues a change order that increases the cost of performance by $100,000. How are the $1 million in obligated funds "used for the change"? Wouldn't you have to adjust the original obligation upward?

Good. Does your agency financial management regulation require that obligations be recorded within a certain amount of time of their creation? For example, DoD has a Ten-Day Rule (Volume 3, Chapter 8, 080301, of the DoD FMR): "Ten-Day Rule. Obligations shall be recorded in the official accounting records at the time a legal obligation is incurred, or as close to the time of incurrence as is feasible. In no instance shall obligations be recorded any later than 10 calendar days following the day that an obligation is incurred (to include obligations incurred when invoices are overpaid or duplicate payments are made). Every effort shall be made to record an obligation in the month incurred. Notwithstanding the 10-day rule, obligations of $100,000 or more--per fund citation or accounting line on the obligation document--shall be recorded and included in the official accounting records in the same month in which the obligation is incurred. If an obligation is not recorded within the specified timeframe, the guidance in section 0813 shall be followed." Also, if you anticipate needing more funds during performance for changes, why doesn't your agency commit funds? You wouldn't have to wait for certification--it would have already happened.

The thread actually died a year and four months ago, but I like the topic so I'll bite. mtbyme76, Assume that a contracting officer issues the type of change described in FAR 52.243-4 and the change will increase the cost of performance. Has the contracting officer created an obligation? You don't have to write everything you're thinking, just ponder the question and answer yes or no.

targabrite, 1. I agree. The table at FAR 1.106 is not reliable. Besides the imprecision of the citations, it is not kept up to date. It currently lists some OMB Control Numbers that have expired. 2. No. 3. The intent of the PRA is to reduce the administrative burden imposed by the Government on the public. The scope of the law is very broad and I wouldn't be surprised if it included the information collection that you described, even though I doubt that Congress considered that type of information collection. If I were you, I would check to see if your agency already has an approved information collection that would encompass the information that you want. I don't think any of the information collections in the FAR would apply. Also, study 5 CFR part 1320, which implements the PRA, to make sure that it really does apply. Consider the types of things that do not meet the definition of "collection of information"--could you obtain the information you want using any of those methods?

targabrite, According to the most recent request for extension to the approval of the information collection: The clearance is for presolicitation notices (mentioned at FAR 14.205, FAR 15.201( c ), FAR 36.213-2)--not for all of FAR subpart 15.2 or all of the items listed at FAR 15.201( c ). You have to read the clearance request to determine what it covers--don't rely on the citations at FAR 1.106.