Don Mansfield

Retreadfed,

No, that's not what I meant. It seems the PCO, in this case, is cutting corners on proposal analysis because the action is subject to TINA. That's why I quoted the FAR passage.

ContractPriceAnalyst,

In order for there to be defective pricing, the certification made by the contractor in the Certificate of Current Cost or Pricing Data would have to be false. The fact that the basis of estimate is "engineering judgment" is irrelevant. Even if the data were defective, the Government would have had to rely on the defective data (not the estimates) during the negotiations in order to be entitled to a price adjustment.

You may want to point out FAR 15.406-2(d) to the CO:

"Possession of a Certificate of Current Cost or Pricing Data is not a substitute for examining and analyzing the contractor’s proposal."

Thanks, civ_1102. I knew about GSA Global Supply. I'm looking for a system that sees everything (GSA, DLA, VA, and military inventory control points). A colleague of mine said that the Navy has such a system, but access is strictly controlled. A CO wanting to verify the nonavailability of supplies from wholesale supply sources would not typically have access. The CO could call someone with access and would have to take their word for it.

I'm interpreting "nongovernment employees" to mean contractors. The CO is incorrect. FAR 7.503( c )(12)(ii) would prohibit a contractor from "Participating as a voting member on any source selection boards." However, FAR 7.503(d)(8) and (14) permit "Contractors providing technical evaluation of contract proposals" and "Contractors participating as technical advisors to a source selection board or participating as voting or nonvoting members of a source evaluation board."

Did you issue a bilateral or unilateral modification? If bilateral, did you adjust the estimated cost and fixed-fee? If unilateral, under what authority did you issue the modification?

No problem.

Vern,

I don't see anything in the MILSTRIP manual that says something like "Check the following database to see if the required item is available from a wholesale supply source..."

Let's say a contracting office receives a requisition for a supply and the requiring activity claims that the item is not available from a required source. There are easy ways to verify that an item item is not in agency inventory, is not available as excess property from other agencies, is not available from FPI, and not on the AbilityOne Procurement List. How can the contracting officer verify that an item is not available from a wholesale supply source?

FAR 8.002(a)(1)(v) states the following as a mandatory source of supply:

"Wholesale supply sources, such as stock programs of the General Services Administration (GSA) (see 41 CFR 101-26.3), the Defense Logistics Agency (see 41 CFR 101-26.6), the Department of Veterans Affairs (see 41 CFR 101-26.704), and military inventory control points;"

Is there an easy way to find out if an item of supply is available from wholesale supply sources? If not, how do you ensure that an item is not available from wholesale supply sources before purchasing from a Federal Supply Schedule or a commercial source?

I understand your logic, but I'm not sure I agree that FFP is the "class" in this case. FAR permits use of "firm-fixed-price contracts or fixed-price contracts with economic price adjustment" for commercial items. These both fall under "Subpart 16.2—Fixed-Price Contracts" (specifically in 16.202 and 16.203), and "Firm-fixed-price, level-of-effort term contracts" also fall under "Subpart 16.2—Fixed-Price Contracts" (specifically in 16.207). But note that Subpart 16.2 (what I was considering the "class") is "Fixed-Price Contracts", not "Firm-Fixed-Price Contracts". In this Part, "Firm-Fixed-Price contracts" seem to be a species under "Fixed-Price Contracts".

mrsbadexample,

I think you are reading too much into the structure of the FAR Subpart 16.2. I read it like Vern. Fixed-price is the family, firm-fixed-price is the genus, and FFP/LOE is the species.

You might consider issuing a BPA against the schedule contract and either funding each individual BPA call (in which case you wouldn't end up with excess funds) or issuing a funded BPA, and then deobligating excess funding when you get to the end of the year.

The "funded BPA" sounds fishy. When you fund the BPA, is the contractor ordered to do any work? Or are they only required to perform work when subsequent orders are issued against the BPA? If it's the latter, then it sounds like you've recorded an obligation prior to creating the obligation.

Vern,

The professors are typically DAU faculty. Some questions are farmed out to experts in niche areas. I believe Joel used to answer questions regarding Construction/A&E.

contractor100,

Your're making a basic interpretation mistake. Your interpretation renders FAR 8.405-5(a) meaningless. When an interpretation of one part of a regulation renders another part meaningless, that would be an indication that said interpretation is incorrect. You need to harmonize FAR 8.405-5(a) with FAR 8.405-2 when you're interpreting--you have to give meaning to everything. Although the passages from FAR 8.405-2 that you bolded would seem to require consideration of quotations from large businesses if an FSS order were set-aside for small business, such an interpretation ignores FAR 8.405-5(a).

FYI, the Ask-A-Professor program now allows anyone to rate a particular answer from 1-3 stars.

hutch_05,

First you said that the clause doesn't have to be in the basic contract for it to apply to task orders. When I asked how this could be, you said by modifying the basic contract to incorporate the clause. If that makes sense to you, then that makes one of us.

As far as adding clauses to an order, you would still have to get the contractor to agree to their inclusion.

The clause should be in the contract if set aside and over $150k. As for existing contracts, if you place an order against an IDIQ, the fact that the clause isn't in an existing basic contract doesn't mean it won't apply and is not an excuse not to use/enforce in the task/delivery order as shown in the clause.

How so? What would compel the contractor to comply? A clause that is not in their contract?

In addition, the clause says that for supplies if it is procured from a nonmanufacturer then it does not apply. So not sure any loop is fully closed, See 52.219.14 below

A nonmanufacturer would still have to comply with FAR 52.219-6(d).

How many people think that FAR 52.212-4( c ) gives the parties the authority to modify a contract? If a contract did not contain a statement that changes would be bilateral, do you think the parties would not be able to modify the contract?

(But, I've also never figured out how a small business prime delivering hardware under a set-aside or an 8(a) could provide a large businesses' equipment, unless the contracting officer characterized it as a "services" contract under which the contractor is also supplying equipment.)

This could happen if the nonmanufacturer rule has been waived for the required items and the offeror is a nonmanufacturer.

Velhammer,

No, I don't think that FAR 52.219-14( c )(2) only applies where the nonmanufacturer rule is waived or in the case of kit assemblers. It applies to supply contracts awarded to manufacturers. If the contractor were a nonmanufacturer, then ( c )(2) would not apply. However, the nonmanufacturer would still have to comply with FAR 52.219-6( d ) if the nonmanufacturer rule had not been waived.

Yes, I suppose they could.

The prescription for the Limitation on Subcontracting clause currently states (FAR 19.508(e)):

The contracting officer shall insert the clause at 52.219-14, Limitations on Subcontracting, in solicitations and contracts for supplies, services, and construction, if any portion of the requirement is to be set aside or reserved for small business and the contract amount is expected to exceed $150,000. This includes multiple-award contracts when orders may be set aside for small business concerns, as described in 8.405-5 and 16.505( b )(2)(i)(F).

So, this closes the loop for future contracts. As for existing contracts, if the clause isn't in the contract, then the limitation on subcontracting doesn't apply. I don't read the language that you bolded as referring to the limitation on subcontracting clause, because I don't view a contract clause as a "program eligibility requirement."

Mere symantics my friend since I am referring to this gentleman's specific question and scenario. It is under a CPFF contract, and he is in a sole source environemnt, and I am not aware of other circumstances to make assumptions. A cost analysis may be used to evaluate data other than certified cost or pricing data... (4). Let's help the professional out by offering useful information.

Did you mean "semantics"? In any case, what you wrote was incorrect and not useful. If you want to help people, give them accurate information. If you want to be professional, admit when you make a mistake.

The cost proposal will be a sole source action; therefore, a cost analysis will be required.

Incorrect. The fact that an action is sole source does not dictate whether cost analysis is required. Cost analysis is required when certified cost or pricing data are required (FAR 15.404-1(a)(3)).

sdvr,

The limitation on subcontracting doesn't apply to a nonmanufacturer. See FAR 52.219-14( c )(2).

No, I can't. I came across this when I was a small business specialist and wondered why this practice wasn't somehow recognized in the regulations.

See Medical Development International, Inc., B-402198.2:

As a general matter, and as noted by the agency, it is not improper for an agency to accept an expired offer without reopening negotiations where acceptance is not prejudicial to the competitive system.