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Don Mansfield

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Posts posted by Don Mansfield

  1. 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.

  2. 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.

  3. @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.

     

  4. @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..."

  5. 5 hours ago, Kaseybaja said:

    Do you know if more than 1 ACRN can be used for ELINs? Sub CLINs can only have 1.

    Assuming you are asking about a DoD contract, then see DFARS PGI 204.7105(c)(1):

    Quote

     (1)  Criteria for establishing.  The criteria for establishing exhibit line items are the same as those for establishing contract line items (see DFARS 204.7103).

    DFARS 204.7103-1(a)(4) states:

    Quote

     

     (4)  Single accounting classification citation.

                        (i)  Each contract line item shall reference a single accounting classification citation except as provided in paragraph (a)(4)(ii) of this subsection.

                        (ii)  The use of multiple accounting classification citations for a contract line item is authorized in the following situations:

                                (A)  A single, nonseverable deliverable to be paid for with R&D or other funds properly incrementally obligated over several fiscal years in accordance with DoD policy;

                                (B)  A single, nonseverable deliverable to be paid for with different authorizations or appropriations, such as in the acquisition of a satellite or the modification of production tooling used to produce items being acquired by several activities; or

                                (C)  A modification to an existing contract line item for a nonseverable deliverable that results in the delivery of a modified item(s) where the item(s) and modification are to be paid for with different accounting classification citations.

                        (iii)  When the use of multiple accounting classification citations is authorized for a single contract line item, establish informational subline items for each accounting classification citation in accordance with 204.7104-1(a).

     

     

  6. @novice See DFARS 252.247-7023(h):

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    (h) If the Contractor indicated in response to the solicitation provision, Representation of Extent of Transportation by Sea, that it did not anticipate transporting by sea any supplies; however, after the award of this contract, the Contractor learns that supplies will be transported by sea, the Contractor shall—

    (1) Notify the Contracting Officer of that fact; and

    (2) Comply with all the terms and conditions of this clause.

     

     

  7. This is difficult to answer in the abstract. Is there a specific scenario that you have in mind?

    If the contractor misrepresented or falsely certified in response to a solicitation provision, the Government could potentially argue that the contract was void ab initio. 

    Some clauses are worded such that the applicability of certain requirements are dependent on how a rep or cert was completed.

    Beyond that, I'm having a hard time imagining how reps and certs matter after award.

  8. On 9/20/2020 at 8:20 AM, Jamaal Valentine said:

    Since debriefings are hotly contested they are often less useful than they could (should?) be. Notifications and debriefings are uneven from office to office and contracting officer to contracting officer. For example, some offices/contracting officers won’t provide the successful offeror’s past performance rating and some will. The variation comes from inconsistent beliefs on whether or not the rules permit release of the rating.

    I think if we think in normative terms (i.e., the way things ought to be), then there's not much debate that a debriefing should provide the offeror with enough information to understand how they were evaluated and why they were or weren't selected.

    What if we thought of this issue like an economist? In other words, let's assume contracting officers are generally rational creatures that respond (consciously or unconsciously) to incentives.

    What is the incentive to provide more information in a debriefing than the minimum required by the FAR? In other words, what is irrational about the contracting officer only providing the bare minimum? Some may argue that this would increase the likelihood of receiving a protest. This hasn't been proven empirically, but let's assume that's true. What if the contracting officer thought it increased the likelihood of a protest from 5% to 10%? Would it then be worth providing more information than the minimum? Maybe, maybe not. What if providing more information than the minimum increased the likelihood of losing a protest? 

    Maybe contracting officers are not risk-averse. Maybe they are reacting rationally to the perceived risks and rewards that the situation presents.

  9. 2 hours ago, lotus said:

    The Government typically wants the contractor to sign a release of claims and some certifications after work in done and paid for.

    Has anyone ever taken the position that they will do so, but only if and after the Government signs similar forms releasing the contractor from future claims and making similar certifications (e.g., the government has back all of its property)?

    I don't think a contracting officer would be able to release the contractor from future claims involving fraud, so I don't believe a complete release would be enforceable. Otherwise, I can't think of why a contracting officer couldn't sign such a release. Not a lawyer.

  10. 4 hours ago, Retreadfed said:

    Later, X determines that the subcontractor is entitled to a $100K increase in the estimated cost of the subcontract.  At the same time, the adjustment entitles the subcontractor to an increase in the fixed fee.

    You may want to clarify what would entitle the contractor to the increase. For example, a change order.

  11. 4 hours ago, Retreadfed said:

    There is no such clause now.  However, in ancient times, the LOC clause did specifically state that fee would not be adjusted if the government added more funding to a contract to cover costs in excess of the estimated cost of the contract.  Over time, it appears that this became the accepted doctrine under the LOC clause.  However, at some point, the language on fee was removed from the LOC clause and everybody, including the boards of appeals and COFC continued to apply the no increase in fee rule.  

    As for Don's post, FAR 16.306 is generally not a part of a contract.  If it is not included in a contract, it is not binding on the contractor, but good luck getting a contracting officer to agree to an adjustment under the LOC clause.

    FAR 16.306 doesn't need to be in the contract nor does the LOC clause need to state what is otherwise true. The contractor has no entitlement to increased fee if the Government decides to fund an overrun under a CPFF arrangement.

  12. It depends what form of CPFF was used. FAR 16.306(d):

     

    Quote

     

    Completion and term forms. A cost-plus-fixed-fee contract may take one of two basic forms-completion or term.

               (1) The completion form describes the scope of work by stating a definite goal or target and specifying an end product. This form of contract normally requires the contractor to complete and deliver the specified end product (e.g.,a final report of research accomplishing the goal or target) within the estimated cost, if possible, as a condition for payment of the entire fixed fee. However, in the event the work cannot be completed within the estimated cost, the Government may require more effort without increase in fee, provided the Government increases the estimated cost.

               (2) The term form describes the scope of work in general terms and obligates the contractor to devote a specified level of effort for a stated time period. Under this form, if the performance is considered satisfactory by the Government, the fixed fee is payable at the expiration of the agreed-upon period, upon contractor statement that the level of effort specified in the contract has been expended in performing the contract work. Renewal for further periods of performance is a new acquisition that involves new cost and fee arrangements.

     

     

  13. 5 hours ago, ji20874 said:

    Something else for the contracting officer to consider:  adverse past performance information to which an offeror has not had an opportunity to respond generally cannot be used in a tradeoff evaluation or selection process -- see FAR 15.306(a)(2), 15.306(b)(4), and 15.306(d)(3).  

    This is not "generally" true, unless you consider award without discussions to be an "exception". When awarding without discussions, the contracting officer may use adverse past performance information to which an offeror has not had an opportunity to respond as long as there's no reason to question its validity. From Competitive Negotiation:

    Quote

    The provision in FAR 15.306 (a)(2) that offerors "may" be given an opportunity to comment on adverse past performance information is permissive and, hence, a contracting officer may award without discussions to another offeror without obtaining such comments, NMS Mgmt., Inc., Comp. Gen. Dec., B-286335, 2000 CPD ¶ 197; U.S. Constructors, Inc., Comp. Gen. Dec. B-282776, 99-2 CPD ¶ 14; Inland Servs. Corp., Comp. Gen. Dec. B-282272, 99-1 CPD ¶ 113; Rohmann Servs., Inc., Comp. Gen. Dec. B-280154.2, 98-2 CPD ¶ 134. See A.G. Cullen Constr., Inc., Comp. Gen. Dec. B-284049.2, 2000 CPD ¶ 45, holding that clarifications would be required in this situation if it was an abuse of discretion to fail to seek the offeror's comments, as follows:

    Quote

    With regard specifically to clarifications concerning adverse past performance information to which the offeror has not previously had an opportunity to respond, we think that, for the exercise of discretion to be reasonable, the contracting officer must give the offeror an opportunity to respond where there clearly is a reason to question the validity of the past performance information, for example, where there are obvious inconsistencies between a reference's narrative comments and the actual ratings the reference gives the offeror. In the absence of such a clear basis to question the past performance information, we think that, short of acting in bad faith, the contracting officer reasonably may decide not to ask for clarifications.

     

     

  14. The form doesn't contemplate the tiered evaluation approach, so I would just do what I think makes sense. I think I would mark "unrestricted" since the competition isn't limited, it's just that there's no guarantee an offer will be evaluated. I assume the solicitation will contain a provision that explains how the VA will evaluate offers using the tiered approach.

  15. 8 hours ago, Supes said:

    Long time lurker here that just got his first supervisory job. I'm both excited and a little apprehensive for the new position, it's largely managing a team of 1102s doing small buys for a civilian agency. I've been a CO for a couple of years but haven't had any real supervisory experience. I'm hoping you all could provide any tips or advice for a new supervisor. I'll be happy with anything (advice, thoughts, reading, etc.) that anyone can provide!

    Don't be like Michael Scott or Bill Lumbergh. That should put you in the top 50% of supervisors.

  16. 15 minutes ago, Patrick Mathern said:

    Not sure if this belongs here or on a new thread, but regarding flowing down to subcontractors, are there exceptions to 52.204-24 and 52.204-25 based on either value or commercial item status?  Would it apply to a low-value COTS purchase from an online retail site?

    FAR 52.204-25 is listed in FAR 52.244-6 as a flow down to commercial subcontracts. It doesn't state any applicable dollar threshold.

    FAR 52.204-24 is a solicitation provision.

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