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Don Mansfield

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Everything posted by Don Mansfield

  1. Everyone who voted got it correct. The untailored version of FAR 52.212-1 incorporates the firm bid rule (FAR 14.304(e)) in (f)(5): FAR 52.215-1 incorporates the rule about withdrawal of proposals (FAR 15.208(e)) in (c)(3)(v): FAR 52.212-1 was written to accommodate both invitations for bids and requests for proposals. However, the firm bid rule doesn't apply to contracting by negotiation. Fortunately, you can tailor FAR 52.212-1 to remove the firm bid rule if you are using the provision in an RFP.
  2. I think it could lead to an unfair outcome. You could have multiple competing offerors proposing to use the same subcontractor, but only one would have the benefit of having the subcontractor present at the oral presentation.
  3. I think that's a common misconception: https://www.estimancy.com/en/2018/10/02/function-points-for-agile-software-projects/
  4. @uva383, Did you ever consider function points? The European Parliament recently recommended the International Function Point Users Group (IFPUG) methodology for pricing software development. Whenever I bring up function points to Government technical folks involved in software acquisition, they usually 1) have never heard of it and 2) like the idea. Just today I learned about simplified function point measurement from a cost estimator. It's not a perfect measure, but unlike other common measures of software development (sprint, story point, mVP, etc.) it's a standard measure.
  5. Transdigm should refund the money under the condition that it be redistributed to DoD contractors that suffered losses of more than 15% and the agencies awarding those contracts be publicly shamed for allowing such losses to happen.
  6. FWIW, I don't think a vessel design in the sense that the OP is referring to it is patentable subject matter. The author of the design would instead protect the work by using a copyright.
  7. Exactly where I was going when I asked Voxx my question.
  8. The contractor is not required to provide consideration. However, like ji said, the Government could terminate for default if the contractor refuses. In cases where a termination for default is not a realistic option, the Government could instead re-establish the delivery schedule without receiving consideration (and ding you on CPARS).
  9. Would you be relying on an express contract term or just common law legal principles?
  10. @Krimz, the FAR's coverage of what constitutes personal services is notoriously misleading. I think you may have been misled. I know I was misled in the past. I remember gearing up for the same battle that you were considering. Both the SARA Panel and the Section 809 Panel dedicated parts of their final reports to the issue of personal services and the need to clarify FAR 37.104. I suggest you read the relevant sections of both reports. A service can check all of the boxes in FAR 37.104 and not create an employer-employee relationship. An agency can decide to award a service contract instead of hiring a federal employee and not create an employer--employee relationship. A COR can assign work to a contractor employee and not create an employer-employee relationship. Read the cases referenced in the reports I cited before concluding that your agency has been contracting for personal services. You may be surprised.
  11. @Krimz, You seem to have concluded that the contracts are for personal services. What exactly led you to that conclusion?
  12. No, that's incorrect. Cost-reimbursement contracts do not have "prices". They have estimated costs and usually fees. Contrast the required data elements FAR 4.1005-1(a)(5)(i) and (ii): FAR 15.401 contains a definition of price that applies in FAR subpart 15.4 only: People commonly misinterpret that to mean that all contracts have a "price". The definition is merely a convention that obviates the need to write something like "Contracting officers shall award contracts at a fair and reasonable prices (or estimated costs and fees)." When that convention is not used outside of FAR subpart 15.4, we get sentences like the following at FAR 16.103(a):
  13. So the quantities are an estimate and you only pay for what you actually order?
  14. Why can't you include options for additional quantities?
  15. FAR 15.403-1(c)(1) doesn't say that there's no requirement for certified cost or pricing data when using LPTA. It explains the standard for adequate price competition, which is not dependent on any specific source selection process. Stating that you will use LPTA in the solicitation may or may not result in adequate price competition. Further, the contracting officer can't determine whether adequate price competition existed until after they've received responses. As such, an offeror would have no basis in claiming that the Govt. was prohibited from obtaining certified cost or pricing data because adequate price competition existed before they even submitted a response..
  16. You don't "certify your costs" when you execute a certificate of current cost or pricing data. You certify that the facts that formed the basis for your cost estimate are accurate, current, and complete. These facts can be used to make both optimistic or pessimistic estimates of future costs, depending on the judgment that you apply. You can re-estimate your costs to arrive at a more optimistic cost estimate in the BAFO, lower your profit, or both. This doesn't necessarily require you to recertify your cost or pricing data.
  17. The PC "assures" that they will do it in their subcontracting plan (see FAR 52.219-9(d)(9)). The contracting officer could potentially dispute such a determination. The prime assures the Government that it will require OTSB subcontractors to submit a SBSP if the subcontract exceeds $1.5 million on the date of subcontract award. You are not required to submit a SBSP. The prime may require you to submit one as a condition of subcontract award, but you can choose to decline the subcontract. Yes, you can. However, the prime may tell you to aim higher. The PC. Goals are negotiable. You can decline the subcontract if you don't want to accept the PC's goals. I don't know for sure.
  18. Scenario: Acme Corporation responds to two different RFPs issued by the Government. RFP 1 is for commercial items and contains the untailored version FAR 52.212-1, Instructions to Offerors--Commercial Items. Acme responds to RFP 1 with Proposal 1. RFP 2 is for noncommercial items and contains FAR 52.215-1, Instructions to Offerors--Competitive Acquisition. Acme responds to RFP 2 with Proposal 2. The deadline for submission of the proposals for both RFPs is June 30. Both of Acme's proposals were submitted on time. On July 15, Acme realizes that it made an estimating mistake and has priced the proposals lower than they should have. Acme asks the contracting officer for each RFP if they can submit a revised proposal, since award has not yet been made. Both contracting officers refuse Acme's request. Acme then asks to withdraw both proposals.
  19. There's no general FAR rule. However, when DoD implemented the increased TINA threshold, they included a statement that contracting officers shall modify contracts to include modified versions of FAR 52.215-12 and -13 at the request of contractors. See https://www.acq.osd.mil/dpap/policy/policyvault/USA001197-18-DPAP.pdf
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