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Don Mansfield

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Everything posted by Don Mansfield

  1. No, you're not off base. Generally, a contracting officer doesn't have the authority to award a contract without first determining the prospective contractor responsible. I get what your leadership is trying to avoid, but they shouldn't be asking COs to skip (or rubber stamp) the responsibility determination.
  2. I wouldn't refer to such a contract as a firm-fixed-price contract. I would refer to it as a combination of FFP and cost.
  3. “How do you do simplified acquisition?” is a common question I hear from acquisition personnel that are more familiar with using FAR part 15 procedures to solicit offers and award contracts. The question presupposes that there is a regulated set of procedures that one must follow—similar to what is prescribed in FAR part 15, agency FAR supplements to FAR part 15, agency guidebooks on source selection, and the decisions of the Government Accountability Office (GAO) and Court of Federal Claims (COFC). Fortunately, that is not the case. Rather, FAR part 13 (Simplified Acquisition Procedures (SAP)) expressly states that certain procedures contained in FAR part 15 (Contracting by Negotiation) do not apply and requires contracting officers to “use innovative approaches, to the maximum extent practicable, in awarding contracts using simplified acquisition procedures.” FAR 13.003(h)(4). An underlying message in FAR part 13 is to not bring your FAR part 15 baggage with you. The following list presents thirteen reasons why SAP is simpler than the competitive negotiation procedures of FAR part 15. See complete list.
  4. You need to 1) Modify the contract IAW FAR 1.108(d) to include the new clause before issuing any new orders or exercising an option and 2) include the provision in all solicitations for an order, or notices of intent to place an order, including those issued before the effective date of the rule. FAR 1.108(d)(3) permits the contracting officer to incorporate FAR changes in existing contracts "with appropriate consideration." In this case, the FAC requires it (note the "Unless otherwise specified--" at the beginning of FAR 1.108). The law applies to executive agencies and does not give the Government any authority to incorporate the clause unilaterally. Contractors most certainly have a choice--they can decline to sign the modification, although they risk not receiving any more orders or not getting their options exercised. The fact that there's nothing in the contract to entitle the contractor to an adjustment is irrelevant. There's also nothing in the contract that requires that the contractor comply with the new clause until they agree to it. If the Government wants to include the clause, they should expect to cover the cost impact.
  5. Yes, you can use SAP in this circumstance.
  6. Joel, the question has to do with a contractor making a purchase under a contract--not the Government making the purchase. Funds were obligated when the original contract was awarded. Thanks.
  7. Yes, paid as usual. The catch was that the conference was going to take place outside the PoP. I don't think that's relevant if the cost is incurred during the PoP, but wasn't sure. You're not being dense. You're being helpful (true to your handle). Thanks.
  8. The contractor will seek reimbursement from the Govt. after making payment to the venue. If by "customer" you mean the Government, they will pay after receiving the contractor's invoice.
  9. Allow me to change an assumption. The contractor will make full payment for the venue prior to 30 Sep. The venue requires advance payment in full.
  10. Maybe, but I'm only asking about the cost of the venue. I'm not asking about costs incurred after the PoP end date. Assume yes. A contractor will be required to manage the conference. However, the incumbent may not win the follow-on.
  11. Assume a contractor is performing a cost-reimbursement contract that has a period of performance that ends on Sep. 30. The contractor is required to secure a venue for a conference that will take place in November. To secure the venue, the contractor must enter into a subcontract with the venue prior to Sep. 30. Assuming the cost of the venue is otherwise allowable, would the fact that the conference took place after the period of performance ended affect the allowability of the cost? Assume the contractor uses the accrual accounting method.
  12. @Philistines, I think that you're under the impression that you need a contract clause to support an extension of the ordering period due to the pandemic. If that's what you think, then I disagree. Contract clauses like Excusable Delays and Changes deal with a party's right to an adjustment under prescribed conditions. The presence or absence of such clauses in a contract does not limit the parties' rights to negotiate adjustments to contract terms to adapt to conditions that they did not contemplate during contract formation. Further, such adjustments are not necessarily outside the scope of the competition. For example, let's say the Government competitively awards a contract to Acme Corp. to deliver 100 widgets by 31 July at a price of $100K/widget. On 17 July Acme Corp. calls the contracting officer and asks if the delivery date can be moved to 31 August because they are experiencing an unusually high volume of orders. The contracting officer checks with the customer, who is ok with the later delivery. The contracting officer then agrees to adjust the delivery date if the contractor agrees to a price reduction of 5% as consideration. Contractor agrees and the contract delivery date and price are modified accordingly. The contracting officer doesn't write a J&A. The change agreed to by the parties has nothing to do with the Excusable Delays clause, Changes clause, or any other standard FAR clause. The modification is not necessarily outside the scope of the competition. Do you think any law or regulation has been violated? Let's say I were administering an IDIQ contract that had a 12 month ordering period and, during that period, the contractor was unable to accept orders due to circumstances beyond its control for a period of two months. I would argue that the clock on the 12 month period stopped during those two months. If someone were to argue that the 12 month period necessarily ended at the end of 12 calendar months, I would ask why a calendar (rather than a stop watch) was necessarily the correct way to measure the time period. I think you would still have two more months of ordering period at the end of 12 calendar months. If the contract had a stated end date to the ordering period, I don't think a modification to change the date would necessarily be outside the scope of the competition. Note that this has nothing to do with the Excusable Delays clause, the Changes clause, or any other standard FAR clause. It's just the parties adapting to unforeseen conditions. That's what contract administration is all about.
  13. Yes. The way I see it, you can measure a period of time with a calendar or a stop watch. If you measure the period with a stop watch, it could read less than 12 months even though 12 months have passed on the calendar. Perhaps you had to stop the watch during the pandemic?
  14. @Philistines, Is the ordering period stated with calendar dates in the contract? Or does it state that the ordering period is "12 months"? If the latter, was there a time period where the Govt. couldn't issue orders or the contractor couldn't accept them because of the pandemic?
  15. How so? What exception at FAR 6.001 applies? You said that "extensions of ordering periods are changes in scope." FAR 6.001 only states an exception for modifications that are within the scope of the contract.
  16. nkd9, You would need to amend the RFP to allow for alternate delivery dates, or to specify a later delivery date.
  17. No. The timeliness of the qualifying proposal would be determined by what the parties agree to in DFARS 252.217-7027(b).
  18. See FAR subpart 4.10. If you are with DoD, see DFARS 204.71. After reading those, ask yourself if it makes sense to have multiple line items for the purpose of segregating costs. When you're thinking about it, do not consider what you or others have done in the past or what you've been told.
  19. If you deobligate funds from a task order, those funds may not be available for obligation on another task order because the period for obligation expired.
  20. Ask DLA for a valid OMB Control Number for the requested collection of information. Remind them that, pursuant to 5 CFR 1320.6, they may not penalize you for your failure to comply with a collection of information that does not display a valid OMB Control Number. They probably won't know what hit them.
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