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Don Mansfield

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Posts posted by Don Mansfield


  1. 5 hours ago, Retreadfed said:

    41 U.S.C. 1707 generally requires the publication in the Federal Register for public comment proposed procurement policies and practices that have a significant impact on contractors.  Does this publication requirement apply to FAR deviations that otherwise meet the criteria in 41 U.S.C. 1707 for publication in the Federal Register?

    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:
     

    Quote

     

    The DFARS contains—

                        (i)  Requirements of law;

                        (ii)  DoD-wide policies;

                        (iii)  Delegations of FAR authorities;

                        (iv)  Deviations from FAR requirements; and

                        (v)  Policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors.

     

    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typically state something like "this deviation remains in effect until incorporated in to the FAR (or DFARS) or is rescinded".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.

    Quote

    The court finds that, based on the regulatory publication requirements and the acknowledged impact of the proposed class deviation, publication of the class deviation was required by the DLAR and § 22 of the OFPP Act.  Defendant did not publish notice of the proposed class deviation and, contrary to defendant’s assertion, the published notice of the proposed permanent revision did not provide notice of the class deviation. Because defendant obtained the class deviation in contravention of the publication requirements established by DLAR § 1.490, defendant’s own regulation, and § 22 of the OFPP Act, the class deviation was not authorized and is not valid for plaintiff’s 1997, 1998, and 1999 contracts. 

    Note this case was reversed on other grounds. 


  2. 1 hour ago, here_2_help said:

    Let me add a nuance please. Suppose the contract contains CLINs that have one-year money and CLINs that don't. At the end of the year (plus some months) I have final rates. Am I permitted to close-out and final invoice the one-year CLINs for which I have final rates? Or must I wait until the end of the contract?

    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.


  3. 23 hours ago, fgm said:

    did ry_lock ever get an answer to this?

    I have the same question.  I support an AF program in Utah.

    1.) Can CLINs (that Do NOT have subCLINs) have multiple Appropriations?

    I.e.  If you can fund Test with RDT&E, AF 3600, or O&M, AF 3400, on the same CLIN or do you need separate CLINs?  (Test is normally 3600 or 3400 requirement.)

    2.) Can CLINs with Informational-subCLINs be funded with multiple Appropriations (e.g. 100101, 100102)?  (To me, informational subCLINs have same scope and are only created for Administrative purposes to provide incremental funding.)

    3. Can each subCLINs within the same CLIN have multiple Appropriations (e.g. 1001AA, 1001AB)?  Since they are subCLINs (and not informational) they have different requirements and should be able to be funded with different Appropriations.

    thanks!!

    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).


  4. 2 hours ago, Mayonayze said:

    If I want to propose a 7% fixed fee for a CPFF contract where travel and material are 'non-fee bearing' and the ratio of fee bearing and non-fee bearing costs is weighted such that I would need to put 18% fee on the fee bearing cost items to achieve an overall program fee of 7%, is that acceptable given that the FAR limits fee on non R&D CPFF contracts to 10%? Asked another way, does the 10% limit apply only to fee bearing costs, or at the total cost line?

    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.


  5. On 3/28/2020 at 10:28 AM, Lukevan said:

    My concern is that it seems like KOs often neglect to check a clause in (b) or (c) such as the SCLS (52.222-41) that I think should apply.  I'm uncomfortable deciding not to flow it down if it's missing a check mark, because it seems like (e)(1) could be simply telling me to flow those down if I'm supposed to (I'm wondering if the FAR drafting committee didn't trust KO's to select the correct clauses and wanted to make sure the list in (e)(1) always got flowed down if they applied?).  If it were a non-commercial prime contract and 52.222-41 was not listed in the prime contract, I might be able to ignore it because the contract would not contain a clause like 52.212-5(e)(1) that appears to say "regardless of what we said above, you must flow down this list of clauses if applicable."   I'm probably over-analyzing this but I find myself with extra time on my hands lately ... :)

    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.


  6. 7 minutes ago, formerfed said:

    The original post never mentioned FAR 12.102(f) and nothing claimed that’s the basis.   Ryan states FAR 18 which says under 18.202

    As I mentioned Ryan and his team are sharp. 

    Let's take a look at FAR 18.202:
     

    Quote

    (c) Treating certain items as commercial. Contracting officers may treat any acquisition of supplies or services as an acquisition of commercial items if the head of the agency determines the acquisition is to be used to facilitate the defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack. (See 12.102(f)(1) and 13.500(c).)

    (d) Simplified procedures for certain commercial items. The threshold limits authorized for use of this authority may be increased when it is determined the acquisition is to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to facilitate provision of international disaster assistance; or to support response to an emergency or major disaster. (See 13.500(c).)

    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.
     

    Quote

     

    41 U.S.C. 1903

    §1903. Special emergency procurement authority

    (a) Applicability.-The authorities provided in subsections (b) and (c) apply with respect to a procurement of property or services by or for an executive agency that the head of the executive agency determines are to be used-

    (1) in support of a contingency operation (as defined in section 101(a) of title 10);

    (2) to facilitate the defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack against the United States;

    (3) in support of a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate the provision of international disaster assistance pursuant to chapter 9 of part I of the Foreign Assistance Act of 1961 (22 U.S.C. 2292 et seq.); or

    (4) in support of an emergency or major disaster (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)).

    (b) Increased Thresholds and Limitation.-For a procurement to which this section applies under subsection (a)-

    (1) the amount specified in section 1902(a), (d), and (e) of this title shall be deemed to be-

    (A) $15,000 in the case of a contract to be awarded and performed, or purchase to be made, in the United States; and

    (B) $25,000 in the case of a contract to be awarded and performed, or purchase to be made, outside the United States;

    (2) the term "simplified acquisition threshold" means-

    (A) $750,000 in the case of a contract to be awarded and performed, or purchase to be made, in the United States; and

    (B) $1,500,000 in the case of a contract to be awarded and performed, or purchase to be made, outside the United States; and

    (3) the $5,000,000 limitation in sections 1901(a)(2) and 3305(a)(2) of this title and section 2304(g)(1)(B) of title 10 is deemed to be $10,000,000.

    (c) Authority To Treat Property or Service as Commercial Product or Commercial Service.-

    (1) In general.-The head of an executive agency carrying out a procurement of property or a service to which this section applies under subsection (a)(2) may treat the property or service as a commercial product or a commercial service for the purpose of carrying out the procurement.

    (2) Certain contracts not exempt from standards or requirements.-A contract in an amount of more than $15,000,000 that is awarded on a sole source basis for a product or service treated as a commercial product or a commercial service under paragraph (1) is not exempt from-

    (A) cost accounting standards prescribed under section 1502 of this title; or

    (B) cost or pricing data requirements (commonly referred to as truth in negotiating) under chapter 35 of this title and section 2306a of title 10.

     

    The statute is clear. The authority in (b) applies to (a)(1)-(4). The authority in (c) applies to (a)(2) only.


  7. 3 hours ago, formerfed said:

    I bet this is correct as stated.  Ryan and his team are all sharp.  Just a guess but determining this facilitates “defense against....” is a justification.  Regardless of my speculation, I’m sure this is what they intended.

    We’re speculating and there’s no need. The determination is in place.

    Just stop. The COVID-19 pandemic is not a cyber, nuclear, biological, chemical, or radiological attack. That authority is inapplicable.

    1 hour ago, formerfed said:

    If I were a CO and had this in hand, I would proceed without questioning.  

    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).


  8. You're misinterpreting paragraph (e)(1)--

     

    Quote

     

    (e)

    (1) Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause, the Contractor is not required to flow down any FAR clause, other than those in this paragraph (e)(1) in a subcontract for commercial items. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause-

     

     

    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).


  9. 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:
     

    Quote

     

    (c) Under 41 U.S.C. 1903, the simplified acquisition procedures authorized in this subpart may be used for acquisitions that do not exceed $13 million when-

               (1) The acquisition is for commercial items that, as determined by the head of the agency, are to be used in support of a contingency operation; to facilitate the defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to support a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate provision of international disaster assistance; or to support response to an emergency or major disaster, or

               (2) The acquisition will be treated as an acquisition of commercial items in accordance with 12.102(f)(1).

     

     FAR 12.102(f)(1):

    Quote

    Contracting officers may treat any acquisition of supplies or services that, as determined by the head of the agency, are to be used to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack, as an acquisition of commercial items.

    Nothing about emergency or major disaster.


  10. 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.

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