Don Mansfield

KMY, Does each labor category have its own LOE for a given task order, or is there one LOE for the entire task order?

KMY, When issuing task orders, will you be negotiating anything? Or will you just be ordering off a pre-priced schedule?

eriand2, Your position is clear, but the original basis of your position ("past consideration is no consideration") is no longer present in your posts. This prompted my question as to why. Have you found this basis to be inapplicable to the exercise of options in IDIQ contracts? Or do you still think that a promise to buy the minimum under an IDIQ is "past consideration" when exercising the option?

eriand2, What happened to your "past consideration is no consideration" argument? There's no mention of it in your last five posts. Did you realize that you had been misusing the term "past consideration"? If your answer is no, then please define "past consideration" for us.

Whynot, Note that the ASBCA was trying to interpret the word "contract" as it was used in the Small Business Competitiveness Demonstration Program Act--not as it is used in the FAR.

There you go again. You are misusing the term "past consideration." You think that the consideration given upon formation of the IDIQ contract is "past consideration" when it comes to exercising the option. That is not "past consideration." "Past consideration" has a specific meaning. It is used to describe a situation where the consideration is given prior to the exchange of promises. From my post #19: Past consideration: Something that has already been given or some act that has already been performed that cannot therefore be induced by the other party's thing, act, or promise in exchange and is not truly a consideration. For example, A gives B a ride to the market and back home again. When A delivers B to his house, B promises to give A some gas money. A cannot sue B to enforce B's promise since the consideration (A's act of giving B a ride) occurred before B's promise. A gave B the ride without expecting anything in return. (A did not give B a ride in exchange for B giving A gas money.) That does not describe a situation under an IDIQ contract with options whereby the consideration is concurrent and subsequent to the exchange of promises. The discussion on "One consideration for a number of promises" that Vern posted above more accurately describes what happens under an IDIQ contract with options. Your argument is based on a false premise.

The basis for your assertion in bold was that "past consideration is no consideration." Now that you seem to acknowledge that you've been misusing the term "past consideration", what support do you offer now?

According to FAR 8.405-2( c ): According to FAR 8.405-2( b ): The FAR doesn't define the term "statement of work", so I don't know if it includes a SOO. My understanding is that a SOO is not a statement of work, but I can't prove it using the FAR. As such, I think if your SOO includes the information required by FAR 8.405-2( b ), then you can use a SOO. That's a technical reading of the FAR. If you ask GSA, they would probably say sure, go ahead, no problem.

My initial thought is: Why are you linking the payment of fee to incurred cost? Why aren't you linking the payment of fee to the percentage of completion (for a CPFF completion contract) or the percentage of the level of effort delivered (for a CPFF term contract)? You are setting yourself up for being in a position where you have paid out all of the fixed fee and either the contract is not complete or the level of effort has not been delivered. What if there will be an overrun and you decide not to provide additional funding? Are you going to request that the contractor pay back part of the fee?

Note that DFARS subpart 208.4, which contains special rules for orders exceeding $150,000, contemplates the receipt of offers, not quotations, when soliciting FSS contractors. When the new DFARS rule titled "Only One Offer" (DFARS Case 2011-D013) was out for comment, I submitted a comment asking if the rule applied to quotations because, pursuant to FAR supbart 8.4, agencies solicit quotations when ordering under Federal Supply Schedules. I also pointed out the inconsistency between FAR subpart 8.4's use of "quotations" and DFARS 208.4's use of "offers" and suggested that DFARS subpart 208.4 be revised for consistency with the FAR. The response that I got, which I honestly don't understand after reading and re-reading several times, is shown below: I think this means the DAR Council believes that agencies solicit offers when using FSS procedures for orders over $150,000.

Acq_4_Life, What do you think of the comments that you received from legal?

eriand2, I don't think that you understand what "past consideration" is. The way you have been using the term (e.g., contrasting it with "good and current" consideration), it seems that you think it means consideration for a contract formed in the past. That is not what it means. Far from it. First, let's distinguish between executory, executed, and past consideration. Executory consideration: Something given or accepted in return for a promise, where the promised act remains to be performed on a future date. For example, A promises to deliver widgets to B at some future date and B promises to pay A for the widgets when he receives the shipment. If A does not deliver the widgets to B, B can sue A for breach of contract. Executed consideration: Something given or accepted in return for a promise whose promised act has been performed. Using the example above, if A timely delivers the widgets to B, A's consideration becomes executed. Past consideration: Something that has already been given or some act that has already been performed that cannot therefore be induced by the other party's thing, act, or promise in exchange and is not truly a consideration. For example, A gives B a ride to the market and back home again. When A delivers B to his house, B promises to give A some gas money. A cannot sue B to enforce B's promise since the consideration (A's act of giving B a ride) occurred before B's promise. A gave B the ride without expecting anything in return. (A did not give B a ride in exchange for B giving A gas money.) While your position that past consideration is not valid consideration is correct, it has no application to the exercise of an option that extends an ordering period under an IDIQ contract. In that case, the exchange of promises occurs concurrent with executory consideration and prior to executed consideration.

HigherEd123, 1. Is the contract for basic or applied research? 2. Is the contractor an educational institution?

What are market-based, cost-based, and based on estimates of past and future economic benefits? Does this help? http://www.wipo.int/sme/en/documents/value_ip_intangible_assets.htm

Ok. Thanks.

That's a good question. I'm going to defer to Joel.

Joel, Thanks.

For our readers, DCAA Contract Audit Manual 7-1002.5(d): H2H, Retreadfed, Consider the following scenario: A contractor has a cost-reimbursement contract and uses a corporate credit card to make purchases that are directly charged to the contract. The card is only used for this purpose. The contractor accrues frequent flyer miles or hotel points (i.e., the kind the IRS doesn't care about according to H2H's point #1) whenever the card is used. The contractor redeems the miles/points to defray travel costs under its fixed-price Government contracts and commercial contracts. In your opinion, has the contractor done anything wrong?

Ok. Then I would say that you are heading down the wrong street with the change order. A fixed-price contract would not generally entitle the contractor to a price adjustment due to damage caused by severe weather. As Joel explained, delays caused by severe weather are generally excusable so a time extension may be in order. Ask an attorney as Vern advised. However, if the attorney tells you to issue a change order to repair the damage, ask a different attorney.

ndean's question, as I understood it, has to do with benefits accruing to the contractor through the use of a corporate credit card--not benefits accruing to contractor employees through use of personal credit cards. If the contractor received awards for using the card (i.e., cash back or purchase discounts) for allowable costs reimbursed by the Govt., those would have to be passed on to the Govt. in the form of cost reductions or cash refunds.

The Government doesn't want the points. They want a cost reduction or a cash refund.

mrbatesville, Which of the following happened? (1) Contractor was renovating the entire building. The storm caused damage to parts of the building already renovated or to be renovated under the contract; or (2) Contractor was renovating part of the building. The storm caused damage to parts of the building already renovated or to be renovated under the contract AND to parts of the building not included in the renovation contract.

joel, FAR 52.236-7 states that "The Contractor shall also be responsible for all damages to persons or property that occur as a result of the Contractor’s fault or negligence." How would that make the contractor responsible for storm damage?

ndean, If the contract is subject to cost principles for commercial organizations, see FAR 31.201-5: Other cost principles have similar provisions.

Cody, If you are in DoD, you need to follow the Department of Defense Source Selection Procedures. Chapter 2 covers source selection plans.