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Don Mansfield

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Posts posted by Don Mansfield

  1. 3 hours ago, Sam101 said:

    Now, I believe you, however I am desperately trying to find some case law to solidify this, i.e., I need to find case law that deals with a solicitation that tailored FAR 52.212-1 for SAP, to substitute the word discussions in that clause with another word, like "negotiate" or "bargain".

    You're not going to find such a case. So what are you going to conclude? The rules of FAR 15.306 apply to SAP, even if the solicitation expressly says they don't?

  2. 1 hour ago, C Culham said:

    Mutual agreement of both parties?   After all is not a contract a living document and if something is not working that affects one party enough that both parties agree we need to do something different to make the project a success can not it be done?     

    To be clear with regard to this particular thread I am not suggesting just putting a bunch of money into a contractors pocket I am taking about reasonable adjustment to the contract because it makes sense - good faith.   And of note good faith may suggest that the contractor should be as aware of reimbursement for taxes as the government is!  Anyone can read the FAR principles!

    Wouldn't there need to be consideration?

  3. 51 minutes ago, TonyWanKenobi said:

    Yes. The RFP also stated the established rates would be used to estimate future TO, which they took no exception.

    If the rates aren't maximums, I don't see what contractual significance they have. It seems like they are informational.

    If I were negotiating the estimated cost of the task order, my goal would be to reach an agreement on what the actual cost is most likely to be. If the rates stated in the contract weren't what I thought the actual rates were going to be, then I wouldn't use them in developing my position.

    Having said that, agreeing to a higher estimated cost does not necessarily mean you are agreeing to a higher fixed fee. These are two different points of negotiation.

  4. Let me see if I understand. The IDIQ contract contains labor rates. When you negotiate the estimated cost of a task order, you use the labor rates stated in the IDIQ contract. You then apply a predetermined % to the estimate to arrive at a fixed fee.

    The contractor thinks that the labor rates in the IDIQ contract are too low (i.e., they estimate their actual labor rates are going to be higher).

    Do I have it right?

  5. 7 minutes ago, C Culham said:

    So now you have folks wanting to set up BPA's for all kinds of stuff and lots of them that deal with procurements way above the SAT (as you have noted).

    I know of one agency that is using a FAR part 13 BPA for a major system acquisition. They have special emergency procurement authority, so they can make individual purchases up to $15 million (no, they are not breaking down requirements to stay under $15 million).

  6. 2 hours ago, Neurotic said:

    Thanks for the responses. My agency does not have an issue with reimbursing the contractor. The government created the requirement/conditions for the cost to happen. My original question goes to the treatment of the cost since the cost principles make this cost unallowable. The contractor (and at this point we don't see any other way) wants to include the tax differential cost in the profit of the T&M CLIN. I was asking if anyone had dealt with this type of cost and how they accounted/paid the contractor for it. 

    What would entitle the contractor to an adjustment in the fixed hourly rate in the initial contract?

  7. Imagine the time before the GCPC or the concept of micro-purchases. BPAs were an effective way to accomplish small-dollar purchases without burdening the contracting office. Typically, a contracting office would set up a BPA for an organization that did some buying, but not a lot. They would authorize certain individuals to make "calls" (actual phone calls) to vendors against a charge account. The authorized callers would keep a call log (actual paper log) that the contracting office would periodically inspect. I'm sure some of the folks on Wifcon have had experience in this type of environment.

    The advent of the GCPC changed things. There probably aren't that many organizations that need BPAs to make small-dollar purchases anymore. BPAs are used more as IDIQs for SAP these days (from my observations). I know of agencies that have competed multiple-award BPAs and subsequently limited competition for calls to the awardees. This technique has withstood protest at the GAO. Some of these BPAs may permit the placement of orders using the GCPC in amounts greater than the MPT.

    59 minutes ago, cdhames said:

    I've been unable to find a threshold that says specifically that a DD Form 1155 or SF 1449 needs to be issued when placing BPA calls above the MPT.

    Ok, but there are thresholds that limit the use of the GCPC. So, you have to use a different method to place the call above those thresholds. What else would you use? For purchases above the SAT, see FAR 12.204 and DFARS PGI 213.307.

  8. 18 hours ago, cdhames said:

    I've long been somewhat confused on when to issue an actual contract vehicle against a BPA call, but the subjects come up recently in my office so I thought i would finally ask.  When do you issue a contract vehicle (SF 1155 or 1449) against a BPA call?  Our latest guidance is that it's required for any calls above the MPT.  I can't find any references that supports this or invalidates it, but i know that it doesn't make sense.  If the Government Purchase Card (GPC) is the preferred method of purchase for under the MPT; and a CO must issue an 1155 for any BPA call above the MPT, then of what value is there in establishing a decentralized "charge account"?  Apologize if i sound like a noob, I'm not really, but it's long been a gap in my understanding.  Thanks.  

    I'm confused by some of the wording in your question. I think you are asking at what dollar value a BPA call needs to be issued on a DD Form 1155 or SF 1449, instead of using the GCPC to make a purchase. I also assume that you are referring to a FAR part 13 BPA.

    DFARS 213.270 generally requires the use of the GCPC for purchases at or below the MPT. FAR 13.301(b) states that: "Agency procedures should not limit the use of the Governmentwide commercial purchase card to micro-purchases." DoD allows the use of the GCPC to make purchases above the MPT as described in DFARS 213.301. There may be other circumstances in which the Air Force permits the use of the GCPC above the MPT.

    Above those thresholds, I think you would have to make the purchase using a DD Form 1155 or SF 1449. 

  9. 4 hours ago, ScottR said:

    The prime has flowed down the standard FAR GFP clauses.

    See paragraph (d)(3) of that clause.

    6 hours ago, ScottR said:

    Thank you Don.  I think what you are saying is that we should re-price the part, less the CFM, using current costs and profit.  In this scenario, the new price could actually end up higher than the existing price.

    No, that's not what I'm saying. Assuming the prime flowed down FAR 52.215-21, you would be required to submit your proposal in the format of FAR Table 15-2. In section III.B, there's a format for the submission of line item summaries for change orders, modifications, and claims. In your case, the cost of all deleted work would be the current estimate of what the raw material cost would have been to complete the contract (plus whatever other costs you would have incurred in purchasing the raw materials). That cost goes in column 2. Assuming your column 3 entry would be $0, your net cost to be deleted in column (4) would be the same as the entry in column (2). In column 5, you are going to estimate additional costs caused by the change (e.g., managing the CFM, etc.). If the entry in column 4 is greater than the entry in column 5, then the net cost of the change in column 6 is going to be a negative number. That would suggest a downward price adjustment would be appropriate.

  10. 3 hours ago, ScottR said:

    Is it proper to re-price the entire part, bottoms-up less the CFM, and provide that new price to the customer?

    An equitable price adjustment is based on the cost impact of the change. The measure of the cost impact is the difference between the current estimate of the cost to complete the contract as changed and the current estimate of what the cost would have been to complete the contract had there been no change. In your case, this would be a negative number (i.e., there should be a downward price adjustment). Your estimates from five years ago are irrelevant.

    See III.B of FAR Table 15-2.

  11. 10 hours ago, C Culham said:

    Maybe the lynch pin and maybe not but training.  Show me one required course for acquisition personnel that is strictly and succinctly about commercial product and service acquisition.   They may well exist and Don may well show me the way but my experience suggests "commercial" gets just a modicum amount of exposure in all the  required courses.

    I don't know of one that is required.

    You just gave me an idea 🤔 

  12. 13 hours ago, Minnen said:

    I have a situation where a CO signed a base and two option year contract for $150K, but the CO only has a warrant for $100k. The base year is $50k and each option is $50k, for a total of $150k. The contract was recently signed and is still in the base year. Is it possible to avoid an unauthorized commitment is the CO does a mod to remove the last option year? Or is the UC has already occurred when the CO signed awarded the contract above his warrant level, even though the government hasn't made payments above his warrant level yet, as it's only committed to the base year thus far. If it is an unauthorized commitment, would it be for the full $150k or just the option years for a total of $100k? 

    How do you know that their warrant is limited to $100k per action including options? 

  13. 18 hours ago, Fara Fasat said:

    I don't know the details of the contract or the products that the SB is selling. The fact that 252.225-7001 is in the contract should mean two things: the buying agency is DoD; and the contract value is under the TAA threshold. If the CO has used the correct clause, then a product that meets the definition of commercial information technology should be exempt. You will have to ask the CO is he/she believes the products are commercial IT, and if so, does the exception apply.

    Wouldn't the fact that the CO used the clause also indicate that they did not think an exception applied? I'm looking at DFARS 225.1101(2)(i)(C).

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