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Don Mansfield

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Posts posted by Don Mansfield

  1. 52 minutes ago, Fear & Loathing in Contracting said:

    How the contract is classified will drive what type of approvals I will have to pursue from those above me. 

    Ok, but what set of rules are trying to apply? There's no universal definition of multi-year contract. Are you asking to determine whether FAR subpart 17.1 applies? If so, then the contract you described would not meet the definition of multi-year contract if you would be purchasing for more than 5 program years.

  2. 3 hours ago, Fear & Loathing in Contracting said:

    The following has triggered quite the debate at work:

    We have a 6 1/2 year year Foreign Military Sales (FMS) requirement. It will be a "C Type" contract with no options. It will be funded 100% upfront with non-expiring FMS funds. 

    Will this be a multi-year or multiple year contract?

    For what purpose are you trying to classify the contract?

  3. 2 minutes ago, Tzarina of Compliance said:

    Thanks, Don, so thats my question.  So the option periods are considered new needs for the purpose of obligation of funds?  So if the base period was funded with say multi year or no year funding) and the funds were still unexpired, they could be used for option years because you could re-obligate them until they expire. 

    Yes, provided the obligation also met the "purpose" and "amount" tests.

  4. 3 hours ago, Tzarina of Compliance said:

    Many thanks.   I guess my question is more on the appropriations side.  If the base period is one year money which is allotted to the contract for the base year, would it be possible to roll it over to options and spend it in the option years.  Is it considered one contract for the availability of funds or separate contracts?

    Assuming the funds obligated for the base year are prior year funds, then you would not be able to use them for new obligations in subsequent fiscal years. That would violate the Bona Fide Need rule.

  5. 41 minutes ago, FrankJon said:

    That's interesting, Don. Do you have a reference for that text?

    Here you go: https://donacquisition.com/blog/10-blog/23-13-reasons-why-sap-is-simpler

    7 minutes ago, ji20874 said:

    Based on the case Don cited, you can do one synopsis up front to establish the BPAs and then you do not have to do further synopses for individual purchases.

    Would you cite the exception at FAR 5.202(a)(11)?

    Quote

    The proposed contract action is made under the terms of an existing contract that was previously synopsized in sufficient detail to comply with the requirements of 5.207 with respect to the current proposed contract action.

    If so, how would you respond to someone saying that the exception only applies to contracts, not BPAs. 

  6. 6 minutes ago, FrankJon said:

    1. Over the SAT, under $6M.

    2. Yes, the CIG has deemed it commercial.

    Why not a competitive multiple-award BPA? You can rotate purchases among the awardees. You don't even have to deal with the fair opportunity process. 

    Quote

     

    FAR part 13 does not explicitly discuss competitive awards of multiple BPAs or purchases made thereunder. However, the Government Accountability Office (GAO) denied a protest against the Drug Enforcement Agency’s (DEA’s) use of this procedure in Logan LLC, Comp. Gen. COMP. GEN. DEC. B-294974.6, December 1, 2006. After competing the award of multiple BPAs, the DEA planned to rotate purchases among the multiple BPA holders instead of conducting competitions. The protestor argued that the rotation procedure failed to meet the competition standard of FAR 13.104 (i.e., “competition to the maximum extent practicable”). The GAO disagreed—

    “In this case, DEA complied with the statutory requirement to obtain maximum practicable competition when it established the BPAs for these small purchases. Under these circumstances, there is no requirement that DEA compete among the BPA holders each individual purchase order subsequently issued under the BPAs.” [Internal citation omitted].

    Note that the limit for purchases under BPAs for commercial items is $7 million (or $13 million under certain conditions) (FAR 13.303-5(b)(2)). While there is no monetary limit for orders under a multiple-award contract, there are competition requirements at FAR 16.505(b) (i.e., “fair opportunity”) that begin for orders above $3,500 and become increasingly more burdensome depending on the value of the order. By comparison, the rotation procedure is comparatively simpler.

     

     

  7. 23 minutes ago, FrankJon said:

    That’s a potential outcome being discussed, possibly with prospective price redetermination. As I said earlier, one of the fundamental constraints is that the unpredictability, volume, and relentless occurrence of requirements doesn’t lend itself to the fair opportunity process, at least not in a way that I’ve seen and would feel comfortable with.  

    1. What would be the value of a typical order?

    2. Is the acquisition for a commercial item?

  8. 15 minutes ago, FrankJon said:

    Can you clarify, Don? It sounds like you're saying ji's "regional" approach is a split award, and to your mind acceptable. I agree. This seems clear based on case law.

    But how would you describe the situation described by 52.216-21 (Alternate III)? Surely that must be multiple award, right? I'm not trying to be pedantic here. I would love to find a way to apply the flexibility of that clause to the large businesses in my situation and I'm looking for any plausible explanation to account for the apparent glaring contradiction that the clause creates.

    Yes, I think ji's regional approach is fine. I just wouldn't call it "multiple-award".

    I don't see what's described by 52.216-21, Alt. III as multiple-award, because each awardee gets half the requirement. That's different than each awardee getting a contract for potentially the whole requirement. 

  9. 4 hours ago, FrankJon said:

    Jeez. What an absolute mess of a section!! Two comments in response:

    1. The drafters still haven’t “dispelled the implication” because there is a clause (52.216-21 (Alternate III)) that expressly provides permission to award two requirements contracts for the SAME work. (I suppose their counterargument would be that small business interests outweigh the interest in having a single requirement contract. To what end, who knows?)

    2. I would still feel comfortable awarding multiple requirements contracts under a scenario such as the one ji mentioned, which is supported by the holding in JRS Management, B-401524.2. 

    In the context of FAR subpart 16.5, "multiple award" implies multiple contracts with the same scope. At least that's how the FAR Councils seem to be using the term.

    I wouldn't describe what you have in mind as "multiple-award". I think what you're describing is a split award.

  10. The following comment and response was contained in the final rule for FAR Case 2008-006 (75 FR 13416):

    Quote

     

    Comment 14. “Clarify Requirements Clause.” The commenter states that, without additional implementation language, it is assumed that without a determination under FAR 16.504(c)(1)(ii)(D), it will be a violation of FAR to issue requirements contracts over $100 million. The commenter further states that it is assumed that all contracts over $100 million will be multiple-award IDIQ contracts under FAR 16.504(c)(1)(ii)(D). If the assumptions are correct, the commenter requests additional clarifying language Start Printed Page 13419in FAR 16.503 to state that requirements contracts are not authorized over $100 million unless a determination is granted. In addition, if the intent is to allow multiple-award “requirements” contracts, the commenter requests that an alternate to FAR 52.216-21 be added to the ruling that defines how a multiple-award requirements contract will be implemented.

    Response: The Councils do not believe a change to FAR 52.216-21 is required as a result of this rule. The FAR does not preclude single-award task- or delivery-order requirements contracts over $100 million, it just requires a written determination by the head of the agency. FAR 16.503(b)(2) already states that requirements contracts are not authorized over $100 million unless a determination is granted. The Councils amended the language at FAR 16.503(a) to clarify that requirements contracts are awarded to one contractor. This change is made to dispel the implication at FAR 16.503(b)(2) that a multiple-award requirements contract may be awarded. See also response to Comment 12.

     

    https://www.federalregister.gov/documents/2010/03/19/2010-5989/federal-acquisition-regulation-far-case-2008-006-enhanced-competition-for-task--and-delivery-order

  11. @FrankJon,

    I used to teach the course. It's not really a "how-to-do" source selection course. It's more of a "how-to-think-about" source selection course. We would go in to depth on the concepts underlying source selection that other source selection courses gloss over if they cover them at all. For example, other courses may tell you that you should evaluate x, y, and z in a source selection and use the rating tables stated in this or that instruction. In Source Selection Bootcamp, we'd start with "what is value?", "what is evaluation?", "what is an evaluation factor?", "How do you measure an evaluation factor?", "What is rating?", "What is competition?", etc. There are also a lot of examples of what not to do in a source selection.

    It's for people who like to think about what they're doing. The feedback I would get was mostly positive, along the lines of "I never thought about source selection this way." Some students would leave frustrated because we didn't teach them how to do a source selection or provide examples they could copy and paste from. Not sure if they understood that was on purpose.

  12. 11 minutes ago, Steward said:

    Here is the question, can company A request the Government to grant 8(a) and Hubzone status to the IDIQ which was originally won as a regular SB?

    The question doesn't make sense. An offeror or contractor has a small business status--not a contract.

  13. 2 hours ago, here_2_help said:

    I'm unclear as to how "changes that could be issued unilaterally" differ from options. Would somebody please elucidate?

    Both a change order and an option exercise are changes that can be issued unilaterally. However, an option is for purchasing additional supplies and services or extending the contract term (see definition of "option" at FAR 2.101). A change order is not for the same purpose, although the corresponding adjustment could result in an extension to the contract term.

  14. @here_2_help

    I don't have any real world examples. 

    I can imagine a situation where the parties contemplate the possibility of a future change order based on the occurrence of Event A. There's a 50% chance that Event A will occur. If Event A occurs, it will increase the cost of performance by an amount than can be easily estimated from currently known conditions. As such, the parties agree to the amount of the price adjustment in anticipation of a future change order.

     

  15. @ji20874, that's a good example. How did you verify availability of funds before issuing the orders?

    On 10/2/2020 at 2:04 PM, ji20874 said:

    (by definition, a change order is always unpriced and is always within-scope, right?)

    No, a change order can be forward priced. FAR 43.204(a) contemplates such a thing by starting "When change orders are not forward priced..."

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