So, if the Government provided the platform and the computer it would be Government site?

2 hours ago, here_2_help said:

What about the situation makes use of the contractor's facility offsite rate "unreasonable"?

I thought I'd hear from you. I think you're interpreting my post as an indictment of the contractor. That's not what I intended. I'm assuming the parties did not contemplate the present work arrangement. If the contractor is billing at a rate that is likely to differ significantly from actual rates, then it may be time to revise the billing rate (see FAR 42.704(c)).

I don't think your situation is unique. There are a lot of support contracts that didn't contemplate the amount of telework that we have seen since 2020. That doesn't mean that there is a clear answer. I would not be surprised to see a board or court decision on this issue in the near future.

If I were a CO, I would be interested in knowing if the contractor's standard practice for allocating indirect costs to direct telework labor before the pandemic was consistent with how they are allocating it now. If it was standard practice to charge the off-site rates, then I might try to negotiate an agreement for "telework" rates. It seems unreasonable to charge the contractor site rate for an employee who would otherwise be working at the Government site. However, that doesn't necessarily mean the Government site rate is appropriate for telework. I wouldn't start with a DCAA Form 1 and I wouldn't lawyer up at the outset.

I'm assuming that the Government authorized the telework and that you are referring to a cost-reimbursement contract.

On 12/15/2022 at 8:05 AM, here_2_help said:

I guess I'm just naïve. If the goal is to buy commercial items, why don't the holders of the GPCs just do a Google (or Bing) search for what they need? Why does the Gov't. require a unique system to replicate what the market already provides?

I think the goal is to set up something like Amazon that would ensure compliance with socioeconomic policies (i.e., FAR part 8, FAR part 23). These policies apply to micro-purchases. 

1 hour ago, sackanator said:

Following guidance for subdivisions for sequence.

FAR 1.105-2(b) 

(2) Subdivisions below the section or subsection level consist of parenthetical alpha numerics using the following sequence:

          (a)(1)(i)(A)(1)(i)

FAR 10.002 goes to paragraph (e) like below...., then goes to another Subsection.  

      (e) The head of the agency shall document the results of market research in a manner appropriate to the size and complexity of the acquisition.

10.003 Contract clause.

--------------------------------------------------

Looking at DFARS again.

DFARS 210.002 "Procedures" 

(e)(i) 

Based off FAR .105-2(b) shouldn't DFARS paragraph be (e)(1) instead of (e)(i)?  Is it just me or are there quite a few mistakes in this supplemental sub-part?

 

 

See DFARS 201.303(a)(i)(A):

Quote

Implemental numbering is the same as its FAR counterpart, except when the text exceeds one paragraph, the subdivisions are numbered by skipping a unit in the FAR 1.105-2(b)(2) prescribed numbering sequence.  For example, three paragraphs implementing FAR 19.501 would be numbered 219.501(1), (2), and (3) rather than (a), (b), and (c).  Three paragraphs implementing FAR 19.501(a) would be numbered 219.501(a)(i), (ii), and (iii) rather than (a)(1), (2), and (3).  Further subdivision of the paragraphs follows the prescribed numbering sequence, e.g., 219.501(1)(i)(A)(1)(i).

I'm not convinced that would be necessary if, when placed, the order was within the maximum.

25 minutes ago, formerfed said:

I believe a CO could justify and document use of that type without a FAR revision or at least an individual agency exception.  But how many COs are willing and able to do that.  Certainly they would get pushback from policy oversight and review personnel as well as legal.

I agree.

2 hours ago, JMeiers said:

Good day,

I use the FAI tool located here: https://www.fai.gov/tools/Buy-American-and-Trade-Agreements-Decision-Tools

😁

We need more tools like this. 

7 minutes ago, Retreadfed said:

Don, this test would apply if a protest is filed.  However, there is another aspect to this issue and that is whether the contractor is required to comply with a mod that results in the maximum dollar value of an IDIQ contract being exceeded.   The resolution of this question would fall within the disputes process and not protest procedures.

Yes, good point. I was referring to the issue of whether a J&A would be required.

19 hours ago, formerfed said:

Apparently DoD agencies don’t see that’s possible.  How do you see it can be done?

The 809 Panel suggested adding "fixed-price resource units" as a new contract type to FAR subpart 16.2 to enable contracting for consumption-based "solutions". What prohibits the use of that contract type now? I appreciate the Anti-deficiency Act issues, but I'm not understanding why the FAR needs to change.

1 hour ago, Vern Edwards said:

What does reasonableness have to do with anything when it comes to rules?

When applying the "scope of the competition" test, the GAO considers "whether the modification is of a nature which potential offerors would reasonably have anticipated under the changes clause." 

1 hour ago, formerfed said:

This appeared in the latest NCMA Journal of Contract Management.  The summary is: 

The full article is available as a free download from NCMA. https://www.ncmahq.org/Web/Insights/Journal-of-Contract-Management.aspx

While I personally don’t think this is the ideal fix, the authors should be commended for offering a solution to a long standing (over 20 years) issue.  It’s the first solution I’ve seen offered despite many criticisms from both government and industry that offered nothing but complaints.

Page 15 includes astonishing data from the DoD IG on the administrative cost of competitive task orders under multiple award versus single award contracts too.

Why can't agencies use consumption-based contracting under existing acquisition rules?

I think it comes down to the "scope of the competition" test, which is stated in Neil R. Gross & Co., 69 Comp. Gen. 247 (B-237434), 90-1 CPD ¶212:

Quote

In weighing [whether a modification is beyond the scope of the competition], we look to whether there is a material difference between the modified contract and the prime contract that was originally competed…. In determining the materiality of a modification, we consider factors such as the extent of any changes in the type of work, performance period and costs between the contract as awarded and as modified…. We also consider whether the solicitation for the original contract adequately advised offerors of the potential for the type of changes during the course of the contract that in fact occurred … or whether the modification is of a nature which potential offerors would reasonably have anticipated under the changes clause.

If the solicitation for an IDIQ contract contained a Changes clause, the offerors were on notice that prices of orders could be adjusted after issuance as a result of change orders. While I think that potential offerors could reasonably expect the agency to ensure that orders are within the contract maximum before issuing them, I don't think it's reasonable to expect the agency to continuously look over their shoulder to ensure subsequent price adjustments don't exceed the contract maximum. 

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2 hours ago, Vern Edwards said:

I think that failure to apply the dollar value of task order work modifications (not wage determination increases) to the maximum quantity of an IDIQ contract effectively renders the maximum a nullity.

Why the distinction between work and nonwork (?) modifications? Why would that matter?

9 hours ago, Retreadfed said:

The OP said (s)he had a CPFF task order.  I am curious how the foregoing rule would apply if the task order value needed to be increased after the fact, i.e., performance under the TO was complete, because the contractor had a higher final indirect cost rate than contemplated causing an overrun.  For these purposes, the contractor did not know or could not have known of the overrun in time to give the CO notice of the overrun under the LOC clause.

Great point. 

Just wondering...do our automated systems tolerate BPAs without maximums or estimated amounts? 

3 minutes ago, govt2310 said:

What makes performance-based contracts different if it is not incentives? 

The way the contract's work requirements are described--in terms of outcomes.

2 hours ago, Voyager said:

@Vern EdwardsThat's my office, and I came from DOD.  It's why I wrote the OP.

I suspected you had a DoD background when I read your original post and that you probably haven't been in the field more than 10 or so years. DoD cracked down on use of "local clauses" ~10 years ago, which culminated in the current policy stated in DFARS PGI 201.301. Going forward, any local clauses would have to go through the same rule making process as FAR or DFARS clauses if they met the stated criteria (most probably did). The belief that the Services and Defense agencies would comply with the publication requirements is adorable. What happened is the contents of Section H, traditionally the dumping ground for local clauses, became the focus of review teams.  Local clauses began to disappear from section H, which is probably why Vern was able to find a DoD RFP with nothing in that section. However, these clauses didn't go away, nor was a local clause ever published for comment in the Federal Register. Instead, they started appearing in SOWs. This was not because they describe the work in any meaningful way--it was merely a workaround. We're now at a point where the Navy prescribes standard "SOW language" in the NMCARS to implement policy.

So, what you are seeing in practice in DoD has less to do with a thoughtful application of UCF policy, and more to do with stealthy  bureaucratic maneuvering. 

On 11/15/2022 at 10:05 AM, JustBlameMe said:

They basically roll all the actual hours and resources that were charged/incurred during their estimating period into them and add the profit or fee akin to all the other costs (the forward scope stuff they want us to award). 

One other thought. You may already be doing this, but when you are doing the weighted guidelines you can assign below normal value for contract type risk if some or all of the costs have already been incurred (like proposal prep costs). 

You don't have to agree to the proposed fee. You can break precedent. New sheriff in town.

What do you mean by "fee-bearing"? Have you agreed to pay fee as a percentage of their proposal costs?

3 hours ago, Vern Edwards said:

And I will add that your comment suggests a remarkable degree of ignorance of the complexities of contract interpretation and the often difficult task of identifying inconsistencies in contract terms in the absence of performance context.

That may be true, but what's a guy to do when the discussion starts going over his head and he still wants to contribute and seem wise?

6 hours ago, Voyager said:

So then the order of precedence unfolded from its higher UCF Parts is this?

1. Sections A, B, D, E, F, G, and H
2. Sections K, L, and M
3. Section I
4. Section J
5. Section C

Does anyone think it is instead this?

1. Sections A, B, C (less anything that can be defined as a specification pursuant to FAR Part 11), D, E, F, G, and H
2. Sections K, L, and M
3. Section I
4. Section J
5. Anything that can be defined as a specification pursuant to FAR Part 11

I don't see a definition of "specification" in FAR part 11.

11 minutes ago, Retreadfed said:

Here is what FAR 31.201-3(a) says "The contracting officer shall insert the provision at 52.230-1, Cost Accounting Standards Notices and Certification, in solicitations for proposed contracts subject to CAS as specified in 48 CFR 9903.201. "  If the contracting officer acts correctly, this provision should not be in a solicitation sent to you.

I'm pretty sure agencies post most solicitations online and prospective offerors download them. Unless the acquisition was a set-aside, I don't know how a contracting officer would know who would be responding.