Don Mansfield

For DoD, authority comes from DFARS 213.301(2).

Have I misread FAR?

No, I did. You and Carl have it right.

I also agree with Carl that FSS orders would require public announcement. I checked Defenselink.mil and contracting activities are publicly announcing them. Learn something new everyday.

NOTICE: The following post is not a test or trap. The poster is seeking opinions on the proper interpretation of a rule.

Does DFARS 205.303(a)(i) require the public announcement of FSS orders in excess of $6.5 million (excluding unexercised options)? Here's what it says:

The threshold for DoD awards is $6.5 million. Report all contractual actions, including modifications, that have a face value, excluding unexercised options, of more than $6.5 million.

(A) For undefinitized contractual actions, report the not-to-exceed (NTE) amount. Later, if the definitized amount exceeds the NTE amount by more than $6.5 million, report only the amount exceeding the NTE.

( For indefinite delivery, time and material, labor hour, and similar contracts, report the initial award if the estimated face value, excluding unexercised options, is more than $6.5 million. Do not report orders up to the estimated value, but after the estimated value is reached, report subsequent modifications and orders that have a face value of more than $6.5 million.

© Do not report the same work twice.

I understand that FAR 5.303(a)(3) generally exempts FSS orders from public announcement, but DFARS directs public announcement for "all contractual actions, including modifications."

Don,

Did you ask for interpretations? I thought you did, so I presumed interpretations of others would be welcome. And did you write that FAR 15.503((1) should perhaps read "or had not been previously notified under paragraph (a)(1) of this section" instead of "or had not been previously notified under paragraph (a) of this section"? I thought you did.

Vern is right in saying that "paragraph (a)" in FAR 15.503((1) means either one of the notices required by paragraph (a), either (a)(1) or (a)(2). He is also right in saying that what matters is what the regulation actually says -- it actually says "paragraph (a)" -- it does not say "paragraph (a)(1)". In this matter, I "act in strict accordance with what the regulation says."

I'm not saying there is anything wrong with sending out the ( notice to firms who have already received an (a) notice -- more power to you, if you want to do so -- but Don asked for interpretations of whether the ( notice is required for firms who have already received the (a)(2) notice, and I gave my interpretation based on the plain language of the FAR text. Vern is intent on proving me wrong, but that doesn't achieve anything. The best answer might be to re-write the sentence to read (a)(1) instead of (a).

Joel, I customarily send the (a)(2) notice to the successful offeror also. The FAR doesn't require it, but I choose to do it because it makes sense to me. I do get requests for debriefings based on the (a)(2) notices, and I honor them.

Hi, ji20874,

To clarify, I started out the thread reading FAR 15.503( just like you read it. I suspected that my interpretation was wrong, which is why I started the thread. I now see how I misread FAR 15.503(. FAR 15.503( requires that a postaward notification be sent to each offeror in offeror whose proposal was in the competitive range but was not selected for award. Period. The "or had not been previously notified under paragraph (a) of this section" does not qualify "the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award." The "or had not been previously notified under paragraph (a) of this section" increases the population of offerors that will receive a postaward notification.

ji20874,

If you read FAR 15.503((1) closely, it doesn't say that the postaward notice doesn't have to be sent if a preaward notice was sent. Here's what it says:

"Within 3 days after the date of contract award, the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award (10 U.S.C. 2305((5) and 41 U.S.C. 253b?) or had not been previously notified under paragraph (a) of this section."

So the contracting officer will notify each offeror that meets at least one of two conditions--1) that offeror was in the competitive range but not selected for award or 2) that offeror was not previously notified under paragraph (a). Offerors don't have to meet both conditions in order to be sent a postaward notice--just one.

A problem with your interpretation is that if all that was required to be sent was a preaward notice for small business programs, the clock for requesting a debriefing would never start. The clock for a preaward debriefing begins upon receipt of the notice at FAR 15.503(a)(1) and the clock for a postaward debriefing begins upon receipt of the notice at FAR 15.503(.

joel,

Thanks for the link.

Vern,

No need to write back. It all makes sense now.

Vern,

More like this is the kind of thing CON 090 students ask DAU professors to explain.

Do you think that the notification at FAR 15.503(a)(2) (the preaward small business notification) only gets sent to offerors that were eliminated from the competitive range? I interpret FAR 15.503(a) to require the contracting officer to send 1) a preaward notification of exclusion from the competitive range to each offeror excluded from the competition and 2) a preaward notification for small business programs, if applicable, to each offeror (whether excluded from the competition or not). I think this makes sense because any offeror can challenge the size status of the apparent successful offeror, so why would the CO send the preaward notification for small business to only those offerors that received a preaward notification of exclusion from the competitive range?

joel,

Note that FAR 15.503( requires a postaward notice to offerors that "had not been previously notified under paragraph (a) of this section." An offeror that received the preaward notice described at FAR 15.503(a)(2) would have been previously notified under paragraph (a), correct? As such, FAR 15.503( would not require that they be sent a postaward notice.

I think that the phrase at FAR 15.503( should say "...had not been previously notified under paragraph (a)(1) of this section." However, it doesn't say that.

If an unsuccessful offeror receives a preaward notice for small business programs (FAR 15.503(a)(2)), but not a preaward notice of exclusion from the competitive range (FAR 15.503(a)(1)), is the contracting officer required to send that offeror a postaward notice (FAR 15.503()?

Here's the rule:

( Postaward notices.

(1) Within 3 days after the date of contract award, the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award (10 U.S.C. 2305((5) and 41 U.S.C. 253b©) or had not been previously notified under paragraph (a) of this section.

That's how I read the clause. Seems pretty straightforward to me.

rsenn,

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They're offering a 35% discount on their 2011 classes.

No. A "qualification requirement" is a specific thing covered in FAR Subpart 9.2. It doesn't apply to the situation that you described. It is defined at FAR 52.209-1(a) as follows:

?Qualification requirement,? as used in this clause, means a Government requirement for testing or other quality assurance demonstration that must be completed before award.

wayforward,

I suggest you read the September 2011 Briefing Papers article titled "Challenging Contractor Performance Evaluations: FAR Processes and Claims Before The Court of Federal Claims and The Boards of Contract Appeals" by Kara M. Sacilotto.

Tell them that if they cannot show you that the government estimate is wrong or that they have intentionally proposed a price that is below the cost of performance, then you may decide that their proposal is technically unacceptable on grounds that they do not understand the work and that their proposal is too risky.

Vern,

Wouldn't the solicitation have to say that "understanding of the work" would be evaluated in determining technical acceptability?

ipod24,

I think you have the wrong idea. A contracting officer is required to make a determination of responsibility for prospective contractors, whether they are large or small. Upon determining a small business concern nonresponsible, the CO is required to refer the matter to the SBA. The SBA then gives the small business concern the opportunity to apply for a COC. The CO doesn't ask the SBA for a COC.

In any event, you seem to have doubts as to the financial responsibility of a prospective contractor. Follow the procedures in FAR 9.105 and 9.106 (and DFARS 232.072 if you are in DoD) to obtain the information that you need to make a determination of financial responsibility.

VinceS,

FYI, the clause expressly prohibits two types of subcontracts:

(g) No subcontract or modification thereof placed under this contract shall provide for payment on a cost-plus-a-percentage-of-cost basis, and any fee payable under cost-reimbursement type subcontracts shall not exceed the fee limitations in FAR 15.404-4©(4)(i).

VinceS,

You wrote that your prime contract is CPFF. If so, then it probably contains the clause at FAR 52.244-2, Subcontracts. This clause generally requires the prime to provide advance notification and to seek consent to subcontract from the contracting officer prior to awarding a T&M subcontract.

I came across this announcement this morning:

Army Awards $106 Million Vehicle Sustainment Contract. Science Applications International Corp., McLean, Va., was awarded a $106,275,386 firm-fixed-price level-of-effort contract. The award will provide for the sustainment services of the Mine Resistant Ambush Protected Vehicle, and provides the joint logistics integrator capability for integrated logistics, engineering, and fielding services. Work will be performed in McLean, Va.; Kuwait; Afghanistan; and Iraq, with an estimated completion date of September 19, 2012. One bid was solicited, with one bid received. The U.S. Army Contracting Command, Warren, Mich., is the contracting activity.

Now, here's the FAR guidance on the use of FFP/LOE contracts:

16.207 Firm-fixed-price, level-of-effort term contracts.

16.207-1 Description.

A firm-fixed-price, level-of-effort term contract requires?

(a) The contractor to provide a specified level of effort, over a stated period of time, on work that can be stated only in general terms; and

( The Government to pay the contractor a fixed dollar amount.

16.207-2 Application.

A firm-fixed-price, level-of-effort term contract is suitable for investigation or study in a specific research and development area. The product of the contract is usually a report showing the results achieved through application of the required level of effort. However, payment is based on the effort expended rather than on the results achieved.

16.207-3 Limitations.

This contract type may be used only when?

(a) The work required cannot otherwise be clearly defined;

( The required level of effort is identified and agreed upon in advance;

© There is reasonable assurance that the intended result cannot be achieved by expending less than the stipulated effort; and

(d) The contract price is $150,000 or less, unless approved by the chief of the contracting office.

Some questions came to mind.

1. Given the FAR guidance, did the Army use the right contract type?

2. Or, is the FAR guidance out of touch with reality (i.e. do FFP/LOE contracts have a wider application than what's described at FAR 16.207-2)?

What do you think?

Sixth,

How is what you described different than a no-cost settlement?

FAR 49.109-4 No-cost settlement.

The TCO shall execute a no-cost settlement agreement (see 49.603-6 or 49.603-7, as applicable) if?

(a) The contractor has not incurred costs for the terminated portion of the contract or

( The contractor is willing to waive the costs incurred and

( c ) No amounts are due the Government under the contract.

Are you saying that FAR 52.232-32, Performance-Based Payments, is the applicable payment clause for your CPFF task order? That doesn't make sense. Performance-based payments are not for use in cost-reimbursement contracts (see FAR 32.1001(e)(1)).

What do you mean by "capacity"?

hutch_05,

FAR 17.200 states:

This subpart prescribes policies and procedures for the use of option solicitation provisions and contract clauses. Except as provided in agency regulations, this subpart does not apply to contracts for (a) services involving the construction, alteration, or repair (including dredging, excavating, and painting) of buildings, bridges, roads, or other kinds of real property; ( architect-engineer services; and ( c ) research and development services. However, it does not preclude the use of options in those contracts.

You just made a very basic, yet common, mistake in reading the FAR--determining the applicability of rules. If information in the FAR does not apply to all acquisitions, the FAR will typically specify the applicability of the information in a given part or subpart. A statement of applicability may be found in the ?Scope? section of a part or subpart, a separate ?Applicability? subpart or section, or somewhere else within the part or subpart. The statement of applicability can be stated in terms of the dollar value of the acquisition, the type of contract, the location of performance, the purpose of the contract (supplies, services, or construction), etc. The statement of applicability may state that the information in the part applies to a distinct set of acquisitions, does not apply to a distinct set of acquisitions, or both. Below are some examples of statements of applicability.

45.000 Scope of part.

This part prescribes policies and procedures for providing Government property to contractors, contractors? management and use of Government property, and reporting, redistributing, and disposing of contractor inventory. It does not apply to property under any statutory leasing authority, (except as to non-Government use of property under 45.301(f)); to property to which the Government has acquired a lien or title solely because of partial, advance, progress, or performance-based payments; to disposal of real property; or to software and intellectual property.

***************************

44.000 Scope of part.

(a) This part prescribes policies and procedures for consent to subcontracts or advance notification of subcontracts, and for review, evaluation, and approval of contractors? purchasing systems.

(The consent and advance notification requirements of Subpart 44.2 are not applicable to prime contracts for commercial items acquired pursuant to Part 12.

****************************

17.500 Scope of subpart.

(a) This subpart prescribes policies and procedures applicable to all interagency acquisitions under any authority, except as provided for in paragraph ( of this section.

(This subpart does not apply to orders of $500,000 or less issued against Federal Supply Schedules.

In addition to express statements of applicability, the FAR may also contain sections entitled ?Exceptions?, ?Exclusions?, ?Exemptions?, etc., that further narrow the applicability of stated policies and procedures. However, this information may not always be contained in a separate section?it could be contained in the same section that a policy or procedure is stated, but in a different paragraph. Below are some examples of these types of statements.

25.103 Exceptions.

When one of the following exceptions applies, the contracting officer may acquire a foreign end product without regard to the restrictions of the Buy American Act?

**********************

47.304-5 Exceptions.

(a) Unusual conditions or circumstances may require the use of terms other than f.o.b. origin or f.o.b. destination. Such conditions or circumstances include, but are not limited to??

**********************

39.204 Exceptions.

The requirements in 39.203 do not apply to EIT that??

Whenever you find a policy or procedure in the FAR, do not assume that it applies to your acquisition. You must always ask yourself 1) ?What does this policy or procedure apply to?? and 2) ?what are the exceptions to the rule?? Check the applicability of the section, then the subpart, then the part.

Oyster,

Thanks for the link.

Here's the definition:

?Government property? means all property owned or leased by the Government. Government property includes both Government-furnished and Contractor-acquired property. Government property includes material, equipment, special tooling, special test equipment, and real property. Government property does not include intellectual property and software.

Property leased by a contractor is not owned or leased by the Government.

FWIW, I looked for cases where the Government's notice of funds availability was late (i.e., was provided after the proposed start date). The only cases I could find were multi-year contracts that contained an automatic cancellation provision if the notice was not provided by a specified date. I wonder if the contractor would be required to perform if the contract were silent on this issue and the Government's notice was late. For example, the Government exercises an option subject to the availability of funds in September. The option period begins on 1 October. The Government does not provide notice of funds availability until 15 October. Would the contractor be required to perform after receiving the notice?