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Don Mansfield

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Everything posted by Don Mansfield

  1. For those who have contracted for software development, what unit of measure have you used for the line item? Also, does anyone have any experience using a function point as a unit of measure in a software development contract?
  2. Looking at Neil's reference, I noticed the standards for publication from 41 USC 1707 are stated at DFARS 201.404(b)(ii)(A) and (B). So, only DPAP (now DPC) can approve a class deviation that would require publication.
  3. La Gloria, 56 Fed. Cl. 211. I provided a link in my last post.
  4. Wrong question. Right question: Does anything prohibit an agency from awarding a 10-year IDIQ for IT support services? If the answer to that is "no", then you can do it. See FAR 1.102-4(e).
  5. The CAS apply to procurement contracts. An OTA is not a procurement contract. Therefore, the CAS do not apply to OTAs. An OTA is a contract.
  6. Assuming that you are referring to class deviations, then a deviation that met the criteria in 41 U.S.C. 1707 would require publication in the Federal Register and an opportunity for public comment. Note that DFARS 201.301(a)(1) states: Also note that DoD class deviations issued as memoranda (prior to the COVID-19 pandemic) would typically state something like "this deviation remains in effect until incorporated in to the FAR (or DFARS) or is rescinded". That fact that something is a deviation has no bearing on whether it triggers the publication requirements of 41 USC 1707. See here starting on p. 13. Note this case was reversed on other grounds.
  7. I don't see a problem with making final payment on line items that have been performed and accepted while other line items are being performed. I've known contracting officers who do that.
  8. It would be included by operation of FAR 52.216-18(b).
  9. 1. No. See DFARS 204.7103-1(a)(4). 2. Yes. See DFARS 204.7103-1(a)(4)(iii), 204.7104-1(a)(3) and PGI 204.7104-2(e)(7). 3. No. See DFARS 204.7104-1(b)(1)(i).
  10. I would love to see the Government use employer's evaluations of their employees as an evaluation factor for award. Unsuccessful Offeror: Why did we only get a satisfactory rating for personnel qualifications? Government: We based that on your ratings of your employees.
  11. Are the nonfee bearing costs on a separate line item than the fee-bearing costs? The SEAPORT-E orders that I have seen contain both CPFF line items and Cost (no fee) line items.
  12. No, not in the FAR. Some agencies may have mandatory IDIQ contracts, though.
  13. I've read the determination. It's not as simple as "an item is commercial if it's being used to respond to the COVID-19 pandemic." They actually evaluated a laundry list of specific items and deemed them commercial.
  14. If the clause should have been incorporated in the prime contract, but wasn't, then it should be flowed down to commercial subcontracts if it's listed in (e)(1). You're smart not to rely on the contracting officer. However if a clause listed in (b) or (c) is not checked because it is inapplicable, then nothing requires you to flow down that clause.
  15. Let's take a look at FAR 18.202: Two different authorities. The authority to treat certain items as commercial (the same authority stated at FAR 12.102(f)(1)) does not apply to acquisitions to support response to an emergency or major disaster. Period. End of story. The authority to use SAP up to $13 million for the purchase of commercial items does apply to acquisitions to support response to an emergency or major disaster. Anyone who reads (c) and (d) and concludes that you can treat an item as commercial because it will be used to support response to an emergency or major disaster is not sharp. The statute is clear. The authority in (b) applies to (a)(1)-(4). The authority in (c) applies to (a)(2) only.
  16. Just stop. The COVID-19 pandemic is not a cyber, nuclear, biological, chemical, or radiological attack. That authority is inapplicable. I would say knock yourself out. Just don't insult people's intelligence by claiming you had the legal authority to proceed based on FAR 12.102(f).
  17. No, that's not the purpose of (e)(1). For example, (b)(1) lists FAR 52.203-6, Alt. I. That clause has a flow down requirement. However, by operation of (e)(1), that clause would not be required to be flowed down to commercial subcontracts.
  18. You're misinterpreting paragraph (e)(1)-- That doesn't mean you are required to flow down everything in (e)(1) to a commercial subcontract. The purpose of the paragraph is to limit the flow down requirements of the applicable clauses in (a)-(d) to commercial subcontracts. So, for commercial subcontracts, you would only flow down a clause listed in (e)(1) if it were incorporated in (a)-(d).
  19. Unless there is a new authority they are relying on, it seems that they are confused. While the authority to use SAP up to $13M for acquisitions of commercial items covers response to national emergencies, the authority to treat any acquisition as an acquisition of commercial items does not. FAR 13.501: FAR 12.102(f)(1): Nothing about emergency or major disaster.
  20. I think joel's point was that contractors shouldn't expect relief for increased costs under their fixed-price contracts. Relief will have to come from elsewhere. Maybe extraordinary contractual relief or an act of Congress.
  21. Do you request past performance information for similar efforts? If so, you could sample the personnel qualifications of employees that are working (or worked) on those contracts. That would probably be a better indicator of the personnel qualifications of the employees that would work on your projects. You'd be evaluating data instead of empty promises.
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