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Don Mansfield

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Posts posted by Don Mansfield

  1. 4 hours ago, Desparado said:

    They don't argue that there can be options... but insist they much be priced.

    They are really just going with the basic concept that any award has to have a negotiated cost/price (even if a ceiling) to be legal and binding.


    I don't think unpriced options are binding, either. They lack the requirement for certainty of terms. We probably shouldn't call them "options" at all, because they don't meet the FAR definition of "option". I understand them as an agreement to negotiate the price of work that may or may not be defined in the contract.

    For an A-E contract, you select your contractor and then negotiate the price. I don't know of anything that requires you to price the entire contract all at once. I think you can price some contract work now (for work you want done now) and some later (for work you want done later). Call the work you haven't priced "unpriced work"--don't call it an "unpriced option".

  2. On ‎5‎/‎13‎/‎2019 at 9:59 AM, Desparado said:

    I've utilized unpriced options in the past but recently a co-worker has raised that these were determined by GAO back in 1986 ( https://www.gao.gov/assets/150/144237.pdf ) to basically be sole-source contracts.

    The GAO report resulted in a change to FAR 17.207(f) (see FAC 84-37, 53 FR 17858; Miscellaneous Amendments: Item X - Options). The change had no effect on options in A-E contracts.

  3. 20 hours ago, VipinOwl said:

    Just so I'm clear, does the CO ever need to independently analyze a subcontractor's proposal (cost/cost realism/price analysis)?

    Yes. For example, if the CO is pricing a contract or contract modification and the subcontractor does not share cost information with the prime. In that case, the CO would have to perform any required cost analysis.

  4. 2 hours ago, Desparado said:

    So does that then mean that we cannot have ANY options in an A&E contract??  Seems pretty restrictive.

    Not at all. You can have options in an A-E contract, but the rules in FAR subpart 17.2 don't apply. FAR 17.200:


    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; (b)architect-engineer services; and (c)research and development services. However, it does not preclude the use of options in those contracts.

    The use of options in A-E contracts is not regulated by the FAR. Nothing says you can't do it, so you can (FAR 1.102(d)).

  5. 1 hour ago, VipinOwl said:

    Yes, its about consent.  Does the CO's consent involve a CO's independent determination of a fair and reasonable price for the subcontract or can he/she rely on the prime's certification?

    No, consent does not require the CO's independent determination of a fair and reasonable subcontract price. FAR 44.203(a):


    The contracting officer’s consent to a subcontract or approval of the contractor’s purchasing system does not constitute a determination of the acceptability of the subcontract terms or price, or of the allowability of costs, unless the consent or approval specifies otherwise.


  6. 28 minutes ago, Contractor said:

    My question remains:  What should occur when evaluators receive strikingly similar technical and/or management volumes?  Are they scored equally or is there a mechanism to address the obvious issue.

    There is no rule that addresses your question, if that's what your asking for. The Government encourages the type of behavior that you describe by reducing source selections to essay-writing contests. The Government should stop doing this.

  7. On 4/16/2019 at 11:33 AM, Confused1102 said:

    Scenario: You're doing an EDWOSB Sole Source award via 10 United States Code 2304(c)(5), as implemented by FAR 6.302-5: Authorized or Required by Statute using EDWOSB Program,15 U.S.C. 637(m), as implemented by FAR 19.1506(a). Assume all requirements of 19.1506(a) are satisfied.

    Are you required to post a synopsis required by FAR 5.201(b)?

    Excpetion at FAR 5.202(a) "The proposed contract action is expressly authorized or required by a statute to be made through another Government agency, including acquisitions from the Small Business Administration (SBA) using the authority of section 8(a) of the Small Business Act (but see 5.205(f)), or from a specific source such as a workshop for the blind under the rules of the Committee for the Purchase from the Blind and Other Severely Disabled;"

    My thought is No, you don't need to post the synopsis because you are making an award authorized by statute from a specific source (an EDWOSB). But I feel the wording of 5.202(a)(4) isn't exactly clearly. Wanted to see what others thought of this sitaution. If my interpertation is accurate, then this would apply to EDWOSB, WOSB, SDVOSB, and HUBZone.


    I agree with you. FAR 5.202(a)(4) is using the same language that is used at FAR 6.302-5. The only difference is the list of examples is shorter. Neither list is exhaustive.

  8. 2 hours ago, Retreadfed said:

    some prime contractors do require subcontractors to submit certified cost or pricing data in regard to subcontracts although the prime contractor was not required to submit such data

    If the data were not required to be submitted by the FAR, then they would not be "certified cost or pricing data."


    “Certified cost or pricing data” means “cost or pricing data” that were required to be submitted in accordance with FAR 15.403-4 and 15.403-5 and have been certified, or is required to be certified, in accordance with 15.406-2. This certification states that, to the best of the person’s knowledge and belief, the cost or pricing data is accurate, complete, and current as of a date certain before contract award. Cost or pricing data is required to be certified in certain procurements (10 U.S.C. 2306a and 41 U.S.C. chapter 35).


  9. On 4/5/2019 at 11:57 AM, animalspirits said:

    Scenario: Contract is awarded for XY services. Government wanted to add Z, which was out of scope. Government prepared and issued adequate JOFOC. Current contract is now for XYZ services.

    Question: Now Government is now attempting to add Q services to the contract. For the sake of argument, assume the following: Q services are within scope of XYZ contract, but they are out of scope of XY contract. When deciding whether a JOFOC is required to add Q to the contract, may the Government's analysis be based on the current iteration of the contract (i.e. XYZ contract, meaning that Q is in scope and a JOFOC isn't required)? Or must the Government's analysis be based on the original contract at award (i.e., XY contract, meaning that Q is out of scope and a JOFOC is required)? Regulations or cases supporting your position would be helpful. THANK YOU!

    Z is a contract, correct?

  10. From Formation of Government Contracts, Chapter 9, Section V, "Level of Effort Contracts":


    There are two techniques used to contract for a level of effort. First, the parties can agree to fixed hourly rates for specified classes of labor with payment based on the number of actual hours incurred. These rates include the contractor's indirect costs and profit. If this type of contract calls for labor only, it is called a "labor-hour" contract, FAR 16.602. If it includes the purchase of materials as well as the incurrence of labor effort, it is called a " time-and-materials" contract, FAR 16.601. The second technique provides a stated amount of compensation for the incurrence of a specified number of labor-hours over a fixed period of time. This type of contract is generally called a "term" type contract and can be written as a "firm-fixed-price, level-of-effort term contract," FAR 16.207, or a cost-reimbursement term contract, FAR 16.306 (d). In the former contract, the contractor is paid the price upon the incurrence of the labor-hours, while in the latter contract, the contractor is paid the fixed fee plus the costs upon the incurrence of the labor-hours.

    From The Government Contracts Reference Book:


    A type of contract stating the work in terms of an amount of effort (usually labor-hours or labor-years) to be performed by specified classes of employees over a given period of time. There are four types of level-of-effort contracts: the FIXED-PRICE LEVEL-OF-EFFORT CONTRACT, the TIME-AND-MATERIALS CONTRACT, the LABOR-HOUR CONTRACT, and the TERM CONTRACT.


  11. 14 minutes ago, Virgil Sollozzo said:

    Does Limitation of Funds create a contingency (like Availability of Funds might in other circumstances) that limits the Government's liability to the amount of incremental funds placed on the contract?

    The Limitation of Funds clause limits the Government's liability to the amount "allotted by the Government to the contract".

  12. On ‎3‎/‎28‎/‎2019 at 7:33 AM, Virgil Sollozzo said:

    So the KO is ready to make this award, months in advance of the performance start date. I know he can put on contract the entire estimated cost. Can he put on half of the estimated cost? Can he put on $100? Can he put on $0?

    First, there's a difference between creating an obligation and recording an obligation. The amount recorded doesn't change the amount created and vice-versa. The Recording Statute requires that agencies record of obligations reflect the amount of obligations created.

    So, if the contract creates an obligation for half the estimated cost or $100, then that's the amount that should be recorded. If the contract doesn't create any obligation at the time of award (like in a requirements contract), then no obligation should be recorded.

  13. 2 hours ago, Constricting Officer said:

    The situation that sent me down this rabbit hole was a requirement I received to purchase $1.9 million worth of supplies and have them installed for $250K. It sure don't sound like the "principal purpose" is to in that case is to provide services. Not trying to get out of the work (as I am almost done with the requirement), but simply to make the case to leadership.

    Maybe the definition of "supplies" at FAR 2.101 would help?


    “Supplies” means all property except land or interest in land. It includes (but is not limited to) public works, buildings, and facilities; ships, floating equipment, and vessels of every character, type, and description, together with parts and accessories; aircraft and aircraft parts, accessories, and equipment; machine tools; and the alteration or installation of any of the foregoing.


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