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Don Mansfield

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  1. ERS, What makes you think that you must use competition to select your subcontractors? Is it the Competition in Subcontracting clause (FAR 52.244-5)? That's not much of a requirement. Read paragraph (a): "(a) The Contractor shall select subcontractors (including suppliers) on a competitive basis to the maximum practical extent consistent with the objectives and requirements of the contract." [italics added]. There's a heck of a lot of wiggle room there. Also, if you're a contractor you shouldn't be worried about a "justification for using Other than Full and Open Competition." CICA does not apply to you. You should be thankful for that. Contractor team arrangements are covered in FAR 9.6.
  2. If the preconceived notions that our students are bringing to the classroom is any indication, there's a good deal of myth-information being spread regarding indefinite-delivery indefinite-quantity (IDIQ) contracts. The one belief that I want to focus on today deals with obligating the contract minimum upon award of an IDIQ contract. This belief usually stems from a fundamental misunderstanding of the difference between creating and obligation and recording an obligation. The difference is explained in Chapter 7 of the GAO Redbook (p. 7-8): [bold added]. When a contracting officer awards an IDIQ contract, she has obligated the Government to purchase the contract minimum. She has created an obligation. When that same contracting officer cites a long line of accounting (containing the appropriation citation) and a dollar amount on the award document, she has recorded an obligation (when she distributes the award document to her accounting office, they will record the obligation in the agency's books). Let's say that the contracting officer awards the IDIQ contract, but does not record the amount of the Government's obligation on the award document. What has happened? An obligation has been created, but has not been recorded. Is there a problem with that? (Yes, go back and read the bolded sentence in the citation that I provided above). The problem is that the contracting officer has caused her agency to violate the ?recording statute,? 31 USCA ? 1501, which sets forth the criteria for recording an obligation as follows: In the second example I provided, there exists a binding document that meets the criteria of (1)(A) and (B.) (the IDIQ contract), but no obligation would have been recorded. The agency would have underrecorded its obligations. That's bad. Chapter 7 of the GAO Redbook (p. 7-6) states the following regarding under- and overrecording of obligations: I always urge my students to take a course in Federal Appropriations Law at some time in their career--the sooner the better. Unlike Federal Acquisition Law, where the acquisition team is permitted to "assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority", there is very little flexibility when it comes to applying the rules Federal Appropriations Law.
  3. Normally, you can award contracts using either competitive or noncompetitive procedures in accordance with 10 USC 2304 and FAR Part 6. This bill would only allow the use of competitive procedures.
  4. No, I don't think the bill would allow for the use of FAR 6.302-1 at all. As written, the bill wouldn't allow for HUBZone or SDVOSB sole source awards, either.
  5. Requirements Contracts

    Yes, I've heard of them in theory, but I've never heard of an agency awarding one.
  6. I think that the bill specifically precludes the use of funds to pay for contracts awarded on a sole-source basis, not restrict funds for contracts awarded using other than full and open competition. Use of other than full and open competition does not necessarily mean that a contract cannot be awarded using competitive procedures.
  7. Myth-Information: Obligating the Minimum in IDIQ Contracts

    "Presumably these business rules are written as an interpretation of policy and regulation." That's a questionable presumption. If what you've written is correct, then all we can conclude is that the folks who developed the business rules did not want obligations on basic IDIQ contracts reported in FPDS. This does not mean that obligations are not created or that obligations should not be recorded in the agency's accounting records when IDIQ contracts are awarded.
  8. Some of you were confused when I classified the following statement as myth-information in the Federal Contracting Myths thread: Let me explain where I was coming from. In April of 1994, OFPP used a variation of the word neutral with the term "past performance" in a Federal Register notice soliciting comments on their proposed pilot program to increase the use of past performance information in source selections. The notice stated: In November of 1994, the Federal Acquisition Streamlining Act (FASA) (Public Law 103-355) amended 41 USC 405 to include a new subsection (j) implementing the Government's policy of considering past performance in source selections. (j)(2) contains the following language: The FAR Council attempted to "plain language" the statute when it came time to implementing the new policy. In a proposed rule implementing the past performance information policy, FAR 15.608(a)(2)(iii) contained the following statement: When the final rule came out in March 1995 (FAC 90-26), the proposed rule was changed to read as follows: The background statement of the FAC stated that the final rule "clarifies that firms lacking relevant performance history shall receive a neutral evaluation for past performance." (60 FR 16718-01) However, since there is no discussion of the comments received in response to the proposed rule, it is unclear why the proposed rule needed clarification. Apparently, the FAR Council thought that the rule needed even further clarification and proposed the following definition of a neutral evaluation in the first proposed FAR Part 15 Rewrite: However, this only muddied the waters. The background of the second proposed rule provides the following explanation: The second proposed rule also contained a valiant attempt to define a neutral past performance evaluation as follows: This language failed to clarify anything, so in the final rule the FAR Council said the heck with it, let's just parrot the statute: This final rule gave us the rule as it is stated now at FAR 15.305(a)(2)(iv): So the FAR Council took the language of the statute, attempted to clarify it by introducing the term "neutral past performance evaluation", tried again to clarify it by defining "neutral past performance evaluation", confused a lot of people, then gave up. "Neutral past performance" was removed from the FAR over 11 years ago after a brief and infamous appearance. Despite this fact, it remains popular in the federal contracting vernacular.
  9. Delivery Orders Not Binding? Huh?

    Correct. Correct, with a caveat. Some MATOCs may require contractors to submit proposals in response to task order solicitations. In theory, the Government could hold a task order competition, receive proposals from all MATOC holders except contractor A, then issue an order to contractor A on a noncompetitive basis (provided one of the exceptions to fair opportunity applied) and contractor A would have to perform.
  10. ORCA and 52.212-3

    That's wrong. The only FAR clauses required in a commercial solicitation are FAR 52.212-4 and -5. The requirement for CCR registration is stated at FAR 52.212-4(t).
  11. Delivery Orders Not Binding? Huh?

    Mr. Warren, If a contract contains the Indefinite Quantity clause (FAR 52.216-22), then the contractor is required to perform if the Government issues a task or delivery order, provided the Government complies with the Ordering (FAR 52.216-18) and Order Limitations (FAR 52.216-19) clauses. This requirement is in no way conditioned on the method the Government uses to select the contractor for an order under a MATOC (i.e., competitively or noncompetitively). So to answer your question, if the Government issued an order to a MATOC holder, they would have to perform whether the Government provided each offeror a fair opportunity to compete for the order or issued the order noncompetitively. If the Government issued an order to a MATOC contractor noncompetitively and no exception to fair opportunity applied, I don't know if that would then give that contractor the right to refuse the order. While other MATOC contractors could potentially file a claim or protest for the Government's failure to provide a fair opportunity, I have a hard time imagining what the MATOC contractor who received the order could argue. I would be surprised to see such a claim or protest.
  12. You have a prime contract or are you competing to win a contract?
  13. What competition requirements?
  14. Federal Contracting Myths

    In case you missed it, I've started analyzing myth-information in my blog.
  15. No, the claim does not have to be paid for it to be a false claim. Presentment is sufficient. There are other considerations such as specific intent and materiality. You should really consult with an attorney.
  16. dwgerard, When you awarded MSMO contracts, did you consider the options to be priced or unpriced?
  17. Vern, I don't believe that NAVSEA's MSMO contracts violate the CPPC prohibition because fee is not paid as a percentage of incurred cost. At award, the parties have agreed to a percentage for base and award fee. After award and before the option is exercised, the parties agree to an estimated cost for that option and apply the predetermined percentages to determine the amount of base fee and the size of the award fee pool. After this negotiation, the parties will have agreed to an estimated cost, a base fee amount (expressed in dollars), and the size of the award fee pool (expressed in dollars). The base fee and award fee pool amounts remain the same regardless of the contractor's incurred cost. Would you say that such an option is unpriced? If so, how does it fail to meet the criteria at FAR 17.207(f)(3)?
  18. Navy, When the contract is awarded, the contract does not specify an amount at which the option may be exercised. All the parties have agreed to is the percentage for the base and award fee. After award and before exercise of an option, the parties agree to an estimated cost for that option and apply the predetermined percentages to determine the amount of base fee and the size of the award fee pool. I'm not suggesting that NAVSEA's interpretation of FAR 17.207(f)(3) is correct, because I'm not sure I know what it means. It doesn't require that an option in a cost-type contract state an estimated cost to be "exercisable at an amount specified in or reasonably determinable from the terms of the basic contract." It only requires that i) the option contain a fixed or maximum fee or (ii) the fixed or maximum fee amount is determinable by applying a formula contained in the basic contract.
  19. Vern, That's a good question and one that I have been thinking about lately. I'm not sure if they are unpriced options. Consider FAR 17.207(f)(3): NAVSEA would argue that their options meet those criteria. I don't know that they're wrong.
  20. I've seen contracts with option CLINs that only state a fee percentage. The estimated cost for the options is not negotiated until after the contract is awarded. For example, NAVSEA's multi-ship multi-option (MSMO) contracts for ship repair, which are CPAF contracts, contain numerous option CLINs that look like this: Estimated Cost: $ Base Fee: 0% Award Fee Pool: 10% I'm not advocating stating fee as a percentage, just pointing out that agencies do it.
  21. dollars towards socio economic category

    Yes. Did you not believe me when I answered you the other day? Here's the instruction for the SF 294:
  22. Not if the fixed fee was 6% of estimated costs. However, if the contract were written to say that the contractor would be paid 6% of incurred costs, then you would have an illegal CPPC arrangement.
  23. Buy American Act

    Good idea.
  24. Buy American Act

    So you didn't tell offerors how you were going to evaluate foreign offers in the solicitation (which would be done by including the appropriate Part 25 clause and provision) and now you are wondering how to evaluate a foreign offer that you have received. Do you see a problem with that? Don't you think you should amend your solicitation to include the appropriate Part 25 clause and provision?
  25. Ok. Read FAR 19.702: No exception for "foreign businesses" (whatever that means). Want more proof?