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Don Mansfield

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  2. All Time Favorites

    in Contracting Workforce

    Posted

    1. What is your all time favorite book? One Hundred Years of Solitude by Gabriel Garcia Marquez.



    2. What is your all time favorite song or album? Loser by Beck



    3. What is your all time favorite movie? The Godfather



    4. Who is your favorite poet? Pablo Neruda


  3. DCAA Guidance

    in Contract Pricing Including CAS & Allowable Costs

    Posted

    The DCAA Guidance is wrong. According to FAR 1.104, the FAR applies to "acquisitions" as defined at FAR 2.101. According to the definition of "acquisition", an acquisition is made by the Federal Government. When a contractor enters into a contract with the Federal Government, they may agree to comply with certain regulations cited in the contract's terms and conditions. However, to say that the FAR is an acquisition regulation for contractors is just plain wrong.

    See "What is the relationship between the FAR and a federal contract?" on p. 23 of this report.

  6. Commerical Supply IDIQ: Multiyear or Multiple-Year? Options Required?

    in Schedules, GWACS, MACs, IDIQs

    Posted

    jb208,

    The issue is whether you must have options in an IDIQ contract with an ordering period that exceeds one year. There's no need to classify such a contract as a multiple-year contract to make your case. If others want to argue that multiple-year contracts must have options, then I would say fine--then this contract doesn't meet your definition of multiple-year contract. However, that would be irrelevant as to whether an IDIQ contract with an ordering period exceeding one year must contain options.

    There is no requirement in the FAR or VAAR that IDIQ contracts contain options if the ordering period is to exceed one year. As you have already found, the FAR even advises against including options in an IDIQ contract. Here's an excerpt from an old Nash & Cibinic article on the subject (see IDIQ Contracts and Options: Varied Guaranteed Minimums, 16 NC&R 9, September 2002):

    We have never been advocates of the use of options in indefinite delivery, indefinite quantity (IDIQ) contracts. A multiple-year IDIQ contract contains all of the advantages of an option with none of the disadvantages. One of the major disadvantages of options is that if they were not evaluated at the time of initial award, they must be competed. See FAR 17.207(f). Even the FAR has a lukewarm caveat against the use of options in IDIQ contracts. See the instruction to Contracting Officers in FAR 17.202(B):
    "Inclusion of an option is normally not in the Government's interest when, in the judgment of the contracting officer--
    * * *
    (2) An indefinite quantity or requirements contract would be more appropriate than a contract with options. However, this does not preclude the use of an indefinite quantity contract or requirements contract with options."
    In short, the CO is authorized to do a dumb thing. Unfortunately, many contracting agencies choose to include options in IDIQ contracts.

  12. NDI Support Services

    in Contract Award Process

    Posted

    Nondevelopmental items are supplies by definition:

    “Nondevelopmental item” means --

    (1) Any previously developed item of supply used exclusively for governmental purposes by a Federal agency, a State or local government, or a foreign government with which the United States has a mutual defense cooperation agreement;

    (2) Any item described in paragraph (1) of this definition that requires only minor modification or modifications of a type customarily available in the commercial marketplace in order to meet the requirements of the procuring department or agency; or

    (3) Any item of supply being produced that does not meet the requirements of paragraph (1) or (2) solely because the item is not yet in use.

    FAR 2.101

  13. DFARS Clause 252.222-7000 - Inadequate Clause Prescription

    in Contract Award Process

    Posted

    Here's DFARS 222.7000( b ) in its entirety:

    This subpart applies only—

    (1) To construction and service contracts to be performed in whole or in part within a noncontiguous State; and

    (2) When the unemployment rate in the noncontiguous State is in excess of the national average rate of unemployment as determined by the Secretary of Labor.

    ​

    I think you are misinterpreting (2). The Secretary of Labor determines the national average rate of unemployment. They do not determine whether the unemployment rate in a noncontiguous state exceeds the national average rate of unemployment.

    BTW, unemployment rate for Guam.

  14. Scope vs. Prescription

    in Contract Award Process

    Posted

    FYI, I received the following response to my suggestion for technical amendment today:

    The existing clause prescription is correct and this clause is required in all solicitations and contracts. All contractors will be required to implement the stated controls whenever they have marked controlled technical information on their information systems. Absent any marked controlled technical information the contractor will have no additional requirements.

    As stated at 204-7300(a) the subpart does apply when controlled technical information is present on a contractors information systems, however it was decided that the clause would be included in all solicitations and contracts.

  17. Commercial Item Exception - Market Prices

    in Contract Pricing Including CAS & Allowable Costs

    Posted

    Did you read FAR 52.215-20(a)(1)(ii)?

    Commercial item exception. For a commercial item exception, the offeror shall submit, at a minimum, information on prices at which the same item or similar items have previously been sold in the commercial market that is adequate for evaluating the reasonableness of the price for this acquisition. Such information may include

    • (B) For market-priced items, the source and date or period of the market quotation or other basis for market price, the base amount, and applicable discounts. In addition, describe the nature of the market;

  18. Scope vs. Prescription

    in Contract Award Process

    Posted

    I don't think the prescription was drafted properly. The FAR Drafting Guide states:

    (6) Prescriptions.

    (i) To make it easier to locate provision and clause prescriptions, consolidate the prescriptions in a subpart, section, or subsection with a separate heading at the end of the text that describes the subject matter.

    (ii) Do not prescribe a provision or clause in more than one place in the FAR. Use cross-references if necessary.

    (iii) Include in the prescription all conditions, requirements, and instructions for using the provision or clause and any alternates. Also include instructions for any optional use of the provision or clause. For example, consider the following:

    (A) Where used (solicitation only, contract only, both).

    (B) Requirement (mandatory, optional).

    © Type of acquisition (purchase, lease).

    (D) Purchase procedures (simplified acquisition, sealed bidding, negotiated, competitive, sole source, set-asides).

    (E) Acquisition value (estimated, actual).

    (F) Dollar threshold (micro-purchase, simplified acquisition, trade agreement).

    (G) Type of commodity (e. g., supply, service, construction, research and development, architect-engineer, major system, commercial item).

    (H) Type of contract (e.g., firm-fixed-price, fixed-price incentive, cost-plus-fixed-fee, award-fee, time-and-materials).

    (I) Location of purchasing office (inside, outside U.S.).

    (J) Location of item use (inside, outside U.S.).

    (K) Contractor location/place of performance (inside, outside U.S.).

    (L) Type of contractor (commercial, nonprofit, educational, Federally Funded Research and Development Center).

    (M) Size and status of contractor (e.g., large, small, small disadvantaged, women-owned small business).

    (iv) Do not use the word "all" in provision or clause prescriptions unless the provision or clause is required in all solicitations or contracts without exception.

    (v) Include in the provision or clause prescription any directions for completing (filling in the blanks) or modifying the provision or clause.

    I will suggest a technical amendment.

  22. Is this a claim?

    in Contract Administration

    Posted

    The Court of Federal Claims said that it was a claim. See K-CON Building Systems, Inc., v. U.S. In relevant part:

    In granting plaintiff’s motion, the court rejects defendant’s contention that the court lacks jurisdiction over plaintiff’s proposed claim. Specifically, defendant argues that plaintiff’s February 25, 2005 request for a price adjustment cannot constitute a valid claim under the CDA because plaintiff did not, in its letter, make a demand or indicate that it was seeking a final decision from the contracting officer. Defendant’s interpretation of the CDA’s requirements is too narrow. According to binding Federal Circuit precedent, there is “no requirement in the [CDA] that a ‘claim’ must be submitted in any particular form or use any particular wording.” Contract Cleaning Maint., Inc., 811 F.2d at 592; see also Transam. Ins. Corp. v. United States, 973 F.2d 1572, 1578 (Fed. Cir. 1992) (noting that “certain ‘magic words’ need not be used and that the intent of the ‘claim’ governs”). “All that is required is that the contractor submit in writing to the contracting officer a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim.” Contract Cleaning Maint., Inc., 811 F.2d at 592. Thus, the contractor’s request for a decision from the contracting officer need not be explicit; it may be implied. James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996); see also Transam. Ins. Corp., 973 F.2d at 1576 (“The statute’s broad language demonstrates that as long as what the contractor desires by its submissions is a final decision, that prong of the CDA claim test is met.”). Although plaintiff’s February 25, 2005 letter is terse, plaintiff clearly indicates that it is a “request” for extended overhead based on the delays it alleged in its other three February 25, 2005 letters. Not only is plaintiff’s “request” tantamount to a demand, but any reasonable contracting officer receiving plaintiff’s letter would have interpreted it as a request for a decision regarding plaintiff’s entitlement to extended overhead. In fact, it bears noting that Ms. Hundley rendered decisions in response to plaintiff’s other three February 25, 2005 letters, all of which contained language similar to the letter at issue (each of the three letters began, “[t]his letter serves as our request for time extension,” and each concluded, “[t]herefore [plaintiff is] requesting a non-compensable time extension” ).

  24. Is this a claim?

    in Contract Administration

    Posted

    Is this a claim?

    “This letter serves as our request for cost modification in the amount of $50,325.00 for extended overhead due to delays outlined in our request for time extension letters dated 25 February 2005.”

    That's all. Don't look up or cite any cases, just look at the statement and compare it to the definition of "claim":

    “Claim” means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. However, a written demand or written assertion by the contractor seeking the payment of money exceeding $100,000 is not a claim under the Contract Disputes Act of 1978 until certified as required by the Act. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim. The submission may be converted to a claim, by written notice to the contracting officer as provided in 33.206(a), if it is disputed either as to liability or amount or is not acted upon in a reasonable time.

  25. Can FAR 13.5 apply to ship repair services?

    in Contract Award Process

    Posted

    ipod24,

    I am familiar with your situation. Like ji20874 says, you are looking at it backwards.

    Regarding 10 U.S.C. 7299, the GAO has rejected the argument that it covers ship repair. From G. Marine Diesel Corp., 68 Comp. Gen. 411, B-234196 (May 1, 1989):

    First, 10 U.S.C. Sec. 7299 does not refer to ship repair and the Coast Guard does not explain why a ship repair contract should be considered to fall under 10 U.S.C. Sec. 7299. Further, the purpose of that legislation was to make clear the view of Congress that contracts for the construction or alteration of vessels are subject to the Walsh Healey Act. See 42 Comp.Gen. 467, at 477, supra. The legislation does not relate to whether ship repair contracts are to be considered service or supply contracts.

    [...]

    It is most significant, in our view, that the Coast Guard makes no argument that the classification of such a repair contract as one for supplies is logical. We do not understand how it can be argued that as between the two categories-- supplies or services-- a contract for the repair of a vessel is classified as one for the vessel itself rather than for the repair services to be performed on that vessel. Since we think the solicitation was properly one for services, the protester's failure to complete the Small Business certification does not affect the responsiveness of the bid. BCI Contractors, Inc., B-232453, Nov. 7, 1988, 88-2 CPD Para. 451. We therefore conclude that the protester's low bid was improperly rejected and we sustain the protest.

    In Matter of: Century Marine Corporation--Reconsideration; Century Marine Corporation—Protest, B- 233574, B- 234255, B- 234256, B- 233574.2, 89-1 CPD P 505 (May 25, 1989), the Comptroller General further explained his position:

    The analogy to 10 U.S.C. § 7299 must also fail because ship repair is not legally recognized as equivalent to ship alteration or ship construction work. For example, we point out that repair work, including the repair of such things as aircraft and vehicles, generally, is considered service work subject to the Service Contract Act. See 29 C.F.R. § 4.130(a)(33) (1988). In contrast, FAR § 2.101 (FAC 84-26) specifically defines alteration of vessels as "supplies."

    Despite these decisions, the position of the Naval Sea Systems Command is that ship repair is a supply because Walsh-Healey applies to it.

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