.gif)
Don Mansfield
-
Posts
3,377 -
Joined
-
Last visited
Content Type
Profiles
Forums
Blogs
Events
Store
Breaking News
Posts posted by Don Mansfield
-
-
Fara Fasat,
Based on what you've written, neither the BAA or the TAA would apply to your acquisition. However, the Balance of Payments Program (BOPP) may apply. The BOPP works like the BAA, except it applies to end products and construction materials for use outside the United States. See DFARS subpart 225.75.
Martin,
The BOPP is a discriminatory provision that would be waived under the TAA. The BOPP used to apply across the Federal Government, but now it only applies to DoD. Also, for purposes of applying the TAA in DoD, it doesn't matter where the end products or construction material will be used. All that matters is the value of the acquisition, whether an exception applies, and for end products, whether the item is in one of the FSGs listed at DFARS 225.401-70.
-
There's no blanket prohibition on contracting with universities using a BPA. The FAR even promotes contracting with certain types of universities at FAR 26.302.
-
metteec,
Some more questions--
1. For sole source actions that require a J&A, do you get the J&A approved before beginning negotiations?
2. Do you create a solicitation with proposal instructions and evaluation criteria, then send it to the prospective contractor to begin negotiations?
3. Using your procedure, wouldn't the prospective contractor be able to figure out that the action was not competitive, given the fact that you haven't synopsized it or (I assume) made the solicitation available through FBO?
-
metteec,
You said you wait until negotiations are done before issuing the FBO announcement. How long do you wait to award after the FBO announcement?
-
Mr. Edwards - I realize I am late to this thread, but out of curiosity, why did you ask the question? As a procurement analyst, I am a member of the peer review boards that assess solicitations prior to being released. When a sole source requirement is submitted for review, the solicitation usually does not have evaluation criteria. I understand that - no reason to distinguish amongst offerors (as they proposed to the evaluation criteria). But, if we have a sole source service requirement, how do we assess whether this contractor will meet our needs sufficiently? Do you believe that was done as part of a vetting process before we chose to go sole source? I guess what I am looking for is for some way to be sure that the contractor will deliver what we are expecting, if that makes sense. Perhaps we need this contractor to have certain certifications. Would we want to have them produce the certifications when submitting a proposal? Or do we need to have a clear understanding of the proposed training plan, so we need to have it submitted with a proposal. I hope this is clear, Monday being what it is. But I would be grateful for your thoughts.
Thank you.
Maureen,
Before awarding most contracts, even those that are awarded on a sole source basis, the contracting officer must determine that the prospective contractor is responsible (i.e. meets the standards at FAR 9.104-1). Why isn't that sufficient "to be sure that the contractor will deliver what we are expecting"?
-
If I were an SSA, I don't think I would use ratings at all. I would have the evaluation team evaluate the proposals against the evaluation factors stated in the solicitation, document the relative strengths, deficiencies, significant weaknesses, and risks (as required by FAR 15.305) and report back. I would then use those findings to make my decision. I don't see how having the evaluation team assign ratings would make my life easier.
-
I agree -- when FAR uses them in a sentence like that. In such a case the "context" rule in FAR 2.101(a)(1) kicks in, and the definition of "building or work" in FAR 2.101( b ) -- which says that "building or work" means "construction activity" as opposed to other kinds of activities -- does not apply.
So why did you quote the definition in FR 2.101( b ) in Post #21?
I don't agree with that. The second sentence of the definition says the term includes, without limitation, a list of both things and activities. No need to invoke the context rule.
I quoted the definition in FAR 2.101 because in post #20 joel said he didn't have a regulatory or statutory definition of "public building or public work", so I was helping him out.
-
Why not? Transporting materials or assemblies within the site of the work between adjacent storage areas or fab shops and the immediate building or construction site or transporting materials or assemblies from a secondary site that meets the definition of a secondary site of the work (e.g., an off-site fab shop set up specicially for the project off base to avoid base security restrictions or other on-base inefficiencies and government delays) to the building site is certainly part of the construction activity. Transporting fill material between the borrow area to the site is certainly part of the construction activity. DOL does make certain distinctions about when DBA applies to truckers or transportation of materials from suppliers but that isnt what was being described above.
joel,
I wasn't trying to say that those activities are not construction activities. I was trying to point out that when the FAR uses the term "building or work" in a sentence like this:
"Transportation of portions of the building or work between a secondary site where a significant portion of the building or work is constructed..."
the term is referring to a tangible thing rather than an activity.
-
In post #26 Vern wrote "First, a building or work is a “construction activity,” not a thing." That's what I was responding to.
Further, I don't think that Vern's interpretation of the definition of "building or work" at FAR 2.101 is in harmony with how that term is used, in some places, in the FAR. If we are always to interpret the term as the act of constructing something, then there would be illogical consequences. My post #32 cites examples within the FAR of a building or work "being constructed" or transporting portions of "buildings or works" from one place to another. We cannot reasonably interpret the term to mean the act of construction in these instances.
-
The funding of an overrun does not arise from antecedent liability--it is a discretionary action. As such, it would be improper to use prior year funding to cover a liability that did not exist in the prior year.
-
I disagree with Vern's assertion that a "building or work" cannot be a "thing". The definition of "building or work" lists what the terms include and they are all things. Further, the use of "building or work" in some instances in the FAR cannot reasonably be interpreted as the activity of "building or work". For example, the definition of "construction, alteration, or repair" at FAR 22.401 states:
“Construction, alteration, or repair” means all types of work done by laborers and mechanics employed by the construction contractor or construction subcontractor on a particular building or work at the site thereof, including without limitations—
(1) Altering, remodeling, installation (if appropriate) on the site of the work of items fabricated off-site;
(2) Painting and decorating;
(3) Manufacturing or furnishing of materials, articles, supplies, or equipment on the site of the building or work;
(4) Transportation of materials and supplies between the site of the work within the meaning of paragraphs (1)(i) and (ii) of the “site of the work” definition of this section, and a facility which is dedicated to the construction of the building or work and is deemed part of the site of the work within the meaning of paragraph (2) of the “site of work” definition of this section; and
(5) Transportation of portions of the building or work between a secondary site where a significant portion of the building or work is constructed, which is part of the “site of the work” definition in paragraph (1)(ii) of this section, and the physical place or places where the building or work will remain (paragraph (1)(i) in the “site of the work” definition of this section).
From the definition of "site of work" at FAR 52.222-6(a)(1):
(ii) The secondary site of the work, if any. Any other site where a significant portion of the building or work is constructed, provided that such site is—From FAR 52.222-6( b )--
Laborers employed by the construction Contractor or construction subcontractor that are transporting portions of the building or work between the secondary site of the work and the primary site of the work shall be paid in accordance with the wage determination applicable to the primary site of the work.From FAR 25.003--
“Construction material” means an article, material, or supply brought to the construction site by a contractor or subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material.Lastly, from FAR 23.206(d)
Unless exempt pursuant to 23.204, insert the clause at 52.223-15, Energy Efficiency in Energy-Consuming Products, in solicitations and contracts when energy-consuming products listed in the ENERGY STAR® Program or FEMP will be—
[...]
(d) Specified in the design of a building or work, or incorporated during its construction, renovation, or maintenance.
I agree with Vern that replacement of the air conditioning system would be an acquisition of "supplies" as that term is defined at FAR 2.101. However, that is not conclusive as to the applicability of the Davis-Bacon Act. I think that a CO should consider the DoL guidance that Carl posted (see post #24 above) and make a judgment call.
-
joel,
I think that the definition of "building or work" is broad enough to encompass prefabricated/temporary buildings. According to All-Agency Memorandum No. 130 issued by the DoL, "Building Construction" includes prefabricated buildings. Also, in a letter to the Postal Service, the Comptroller General said that it didn't matter whether a structure was permanent or temporary for the DBA to apply. The decision stated as follows:
WITH RESPECT TO WHETHER THE MAILBOXES IN QUESTION ARE PUBLIC WORKS, THE DEFINITIONS SUPPLIED BY LABOR'S REGULATION AT 29 CFR 5.2(F) PROVIDE THAT THE TERMS ‘BUILDING‘ OR ‘WORK‘ INCLUDE WITHOUT LIMITATION BUILDINGS, STRUCTURES AND IMPROVEMENTS OF ALL TYPES, SUCH AS BRIDGES, DAMS, PLANTS, HIGHWAYS, PARKWAYS, STREETS, SUBWAYS, TUNNELS, SEWERS, MAINS, POWER LINES, PUMPING STATIONS, RAILWAYS, AIRPORTS, TERMINALS, DOCKS, PIERS, WHARVES, WAYS, LIGHTHOUSES, BUOYS, JETTIES, BREAKWATERS, LEVEES, CANALS, DREDGING, SHORING, REHABILITATION AND REACTIVATION OF PLANTS, SCAFFOLDING, DRILLING, BLASTING, EXCAVATING, CLEARING, AND LANDSCAPING. THESE ILLUSTRATIONS APPEAR TO CONTEMPLATE THAT THE TERM ‘PUBLIC WORK‘ SHOULD ENCOMPASS ANY GOVERNMENT-OWNED FACILITY NECESSARY FOR CARRYING ON COMMUNITY LIFE AND TO COVER ANY ARTICLE OR STRUCTURE WHICH IS PLACED, EITHER PERMANENTLY OR TEMPORARILY, AT A PARTICULAR LOCATION TO SERVE A PUBLIC PURPOSE. WE FIND NO REASON TO DISAGREE WITH THIS CONCEPT, AND ANY ATTEMPT TO FURTHER DISTINGUISH BETWEEN MANUFACTURED AND CONSTRUCTED ITEMS IN THESE CIRCUMSTANCES (AS CONTENDED BY YOUR GENERAL COUNSEL) WOULD THEREFORE BE UNWARRANTED, SINCE IT IS OUR OPINION THAT A MANUFACTURED OBJECT MAY, UPON BEING INSTALLED AT A SPECIFIC LOCATION FOR A PUBLIC USE OR PURPOSE, BECOME A PUBLIC WORK.Both the memorandum and the letter date back to the 1970s, so it's possible that the DoL and/or the GAO have changed their minds. I could not find evidence of this, however.
-
joel,
"Building or work" is defined at FAR 2.101:
“Building or work” means construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work. The terms include, without limitation, buildings, structures, and improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, dredging, shoring, rehabilitation and reactivation of plants, scaffolding, drilling, blasting, excavating, clearing, and landscaping. The manufacture or furnishing of materials, articles, supplies, or equipment (whether or not a Federal or State agency acquires title to such materials, articles, supplies, or equipment during the course of the manufacture or furnishing, or owns the materials from which they are manufactured or furnished) is not “building” or “work” within the meaning of this definition unless conducted in connection with and at the site of such building or work as is described in the foregoing sentence, or under the United States Housing Act of 1937 and the Housing Act of 1949 in the construction or development of the project. -
Good question from a student:
When applying dollar thresholds in the FAR in accordance with FAR 1.108( c ), do you include the value of the FAR 52.217-8 option?
I think the answer is yes, based on the use of "all options" at FAR 1.108( c ):
Dollar thresholds. Unless otherwise specified, a specific dollar threshold for the purpose of applicability is the final anticipated dollar value of the action, including the dollar value of all options. If the action establishes a maximum quantity of supplies or services to be acquired or establishes a ceiling price or establishes the final price to be based on future events, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options.However, I doubt anyone is doing this.
-
Are you familiar with the Sovereign Acts doctrine? If not, Google it.
-
SapereAude,
Only one of the conditions at FAR 15.403-1( c )(1) need to be met in order to have adequate price competition. The condition at FAR 15.403-1( c )(1)(iii) could theoretically be met in a sole source environment.
-
Don't ask the contractor to propose a price, because that would be inconsistent with the terms of the clause.
I don't see why. The clause states:
The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. The Contracting Officer may exercise the option by written notice to the Contractor within ______ [insert the period of time within which the Contracting Officer may exercise the option].How would having a priced line item for the period(s) covered by the -8 clause be inconsistent with the terms of the clause?
-
No. I would state in the solicitation how the evaluated prices will be developed for the base and option periods. For the - 8 option, I would state that it will be 50% of the final - 9 option period's evaluated price. If the final - 9 option is less than 12 months, then the equation will change.
I understand your evaluation scheme. How would you structure your line items, though? Would you have separate line items for each of the potential -8 option periods or just one line item for the -8 option that could be exercised at the end of any period? If the latter, how would offerors know how to price the option?
-
Yes. Sum the evaluated prices or costs for the base period and for the -9 and -8 options.
Given that the -8 option could be exercised at the end of the base period or any one of the -9 option periods, do you think govt2310 would have to get pricing for each of the potential -8 option periods?
-
promptly: with little or no delay; immediately.
If you have eliminated those ten offerors from the competition, you must notify them, in writing, immediately.
-
jwomack,
Your hypothetical Schedule looked like this:
IDIQ.
CLIN 1, quantity of 1, minimum guarantee, value $10,000.
CLIN 2, quantity of 49, total value $490,000.
CLIN 3, pre-negotiated termination fee (maybe “settlement fee” would be more appropriate verbiage), value $3,000.
Contract language. “CLIN 3 may be ordered in lieu of CLIN 1.”
For CLIN 2, is the Government ordering 49 units or is 49 an estimate (i.e., the Government could order 0-49 units)?
-
In other words, the $3,000 is a contingent liability. As such, it cannot be recorded as an obligation.
-
govt2310,
FAR subpart 19.12 is on its way out of the FAR. DoD has issued a class deviation telling folks not to follow it. If you don't work for DoD, I would check if your agency has issued a similar class deviation.
-
However, in your example you appear to have both an IDIQ CLIN and a non-IDIQ CLIN. In that case, the promise to buy the non-IDIQ CLIN items should be sufficient consideration to bind the parties to both CLINS. I say that you would not need a minimum for the IDIQ CLIN. No minimum, no obligation to buy. No obligation to buy, no need to obligate funds, and no need for an advance termination settlement agreement. The only duty associated with the IDIQ CLIN would be the contractor’s duty to deliver upon receipt of a government order. As long as such consideration is acceptable to the parties, it should be acceptable to the boards and courts. (You would still need a maximum quantity.) I don’t think such an arrangement would constitute a deviation or otherwise violate FAR.
That's not how I understood jwomack's example in his post #11. I understood his CLIN 0002 to be IDIQ as well.
jwomack,
Please clarify.
BAA, TAA, and DoD
in Contract Award Process
Posted
Fara Fasat,
You wrote:
Correct.
Correct.
Not exactly. If the BOPP applies and the TAA does not apply, then you will use DFARS 252.225-7000 and -7001. These treat qualifying country end products the same as domestic end products. There's no special treatment of eligible products.
If both the BOPP and the TAA applied, then you would use DFARS 252.225-7035 and -7036. These would treat both qualifying country end products and eligible products the same as domestic end products.