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Don Mansfield

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Posts posted by Don Mansfield

  1. The DFARS PGI has a procedure for this:

    Quote

     

    PGI 217.7103-5  Repair costs not readily ascertainable.

          If the nature of any repairs is such that their extent and probable cost cannot be ascertained readily, the solicitation should—

          (1)  Solicit offers for determining the nature and extent of the repairs;

          (2)  Provide that upon determination by the contracting officer of what work is necessary, the contractor, if requested by the contracting officer, shall negotiate prices for performance of the repairs; and

          (3)  Provide that prices for the repairs, if ordered, will be set forth in a modification of the job order.

     

    It's covered under vessel repair, but there's no reason you couldn't use it for other types of repair.

  2. 7 hours ago, ji20874 said:

    You are, in my opinion and according to my practice.  Certified cost or pricing data is needed to support "the award of any negotiated contract..." based on the contract price (FAR 15.403-4(a)(1)(i) rather than the negotiation of said contract based on a proposal amount.

    I'm confused. I thought the argument posted by @Vern Edwards concluded that the certification would be required even though the award would be less than $2 million. Are you saying the certification wouldn't be required?

    If so, I thought you were right. But take a look at what precedes the language you quoted:

    Quote

     

    Unless an exception applies, certified cost or pricing data are required before accomplishing any of the following actions expected to exceed the current threshold or, in the case of existing contracts, the threshold specified in the contract:

                    (i) The award of any negotiated contract

     

    If the bolded language said "exceeding", then I think no certificate would be required because the award would be less than $2 million. But the "expected to exceed" implies that the threshold is to be applied prior to negotiation. After negotiation, you don't have an expectation of the negotiated amount--you have knowledge of it. 

  3. @Krimz, There's a clearer distinction between a presolicitation notice and a synopsis at FAR 9.206-1(e)(1):

    Quote

    Use presolicitation notices in appropriate cases to advise potential suppliers before issuing solicitations involving qualification requirements. The notices shall identify the specification containing the qualification requirement and establish an allowable time period, consistent with delivery requirements, for prospective offerors to demonstrate their abilities to meet the standards specified for qualification. The notice shall be publicized in accordance with 5.204. Whether or not a presolicitation notice is used, the general synopsizing requirements of subpart  5.2 apply.

     

  4. 8 hours ago, joel hoffman said:

    Actually the “contract price” stated in 52.232-5 is determined by “as provided” by the mechanics of the contract terms and conditions, adding up the prices of all the final line item quantities provided.

    “(a) Payment of price. The Government shall pay the Contractor the contract price as provided in this contract.”

    So, I think that the final “contract price” doesn’t have to be specifically stated in the contract itself, unless there is some agency requirement to modify the contract amount to match the final contract price. 

    For contracts with more than one line item, I think you're right.

  5. 42 minutes ago, ji20874 said:

    I am okay with what FAR 15.401 says.  But as I am learning that my referring to the combination of estimated cost and fixed fee as price, as is done in FAR 15.401, is so personally offensive to you (based on the multiplicity of words in remonstrance), I will try to avoid using that construction in your presence in the future.  My apologies.

    Personally offensive to me? No. Technically imprecise? Yes. Kind of like saying a CPFF contract has a ceiling.

    I'm ok with what FAR 15.401 says, too. Are you ok with what FAR 4.1005-1(a)(5) says? Are you okay with FAR clauses specifically written for cost-reimbursement contracts not using the term "contract price"? 

    But you're right, the issue is that I'm too sensitive--not that you're misinforming anyone.

  6. 1 hour ago, ji20874 said:

    Don,

    Please tell us what to call the combined estimated fee plus estimated cost -- I averred that ceiling is the wrong term, and said price is the right term.  You aver that price is the wrong term (even though FAR 15.401 says what it says) but have not told us the right term -- so what is the right term to use?

    ji,

    Look, you got on @tranceaddict's case about using precise terminology when you wrote:

    7 hours ago, ji20874 said:

    There is no such thing as a ceiling on a CPFF task order.

    Rather, there should be an agreed-upon and contractually-stipulated estimated cost and an agreed-upon and contractually-stipulated fixed fee.  These two combined become the contract price.

    I agree that a typical CPFF contract does not technically have a term called a "ceiling", at least in the context of the regulations, even though it's common practice for people to call the estimated cost and fee the "ceiling" informally. Even the FAR uses "ceiling" to refer to estimated costs in a cost-reimbursement contract at FAR 16.301-1:

    Quote

    Cost-reimbursement types of contracts provide for payment of allowable incurred costs, to the extent prescribed in the contract. These contracts establish an estimate of total cost for the purpose of obligating funds and establishing a ceiling that the contractor may not exceed (except at its own risk) without the approval of the contracting officer.

    But a typical CPFF contract does not technically have a term called a "price", either, even though it's common practice for people to call the sum of the estimated cost and fixed fee in a CPFF contract the "price" informally. 

    FAR 15.401 merely defines "price" as it is used in FAR subpart 15.4. So, whenever we come across the word "price" we are to interpret as including estimated cost and fee. It's most likely a drafting convention so the authors didn't have to write "price (or estimated cost and fee)" over and over. Your interpretation of FAR 15.401 as meaning that "price" is an actual term of a cost-reimbursement is not consistent with FAR 4.1005-1(a)(5), which tells us how to describe the line item in a contract:

    Quote

     

    (i) For fixed-price line items:

                         (A) Unit of measure.

                         (B) Quantity.

                         (C) Unit price.

                         (D) Total price.

                    (ii) For cost-reimbursement line items:

                         (A) Unit of measure.

                         (B) Quantity.

                         (C) Estimated cost.

                         (D) Fee (if any).

                         (E) Total estimated cost plus any fee.

     

    I'm all for being technically precise when using formal terms, which is why I don't use "ceiling" when referring to the estimated cost and fee in a CPFF contract. But, "price" isn't technically precise, either.

    As far as what term you should use to formally refer to estimated cost plus fixed fee in a contract, how about "estimated cost and fee"? That's what the FAR uses in clauses written specifically for cost-reimbursement contracts. Such clauses make no reference to the contract price. Informally, call it whatever you want.

     

     

  7. 20 minutes ago, Krimz said:

    Am I missing something here?

    No, but your co-worker is. The FAR distinguishes between presolicitation notices and synopsis at FAR 5.204:

    Quote

    Contracting officers must provide access to presolicitation notices through the GPE (see 15.201 and 36.213-2). The contracting officer must synopsize a proposed contract action before issuing any resulting solicitation (see 5.201 and 5.203).

    You don't have to issue the presolicitation notice described by 36.213-2 below the SAT, but you still have to synopsize.

  8. 9 minutes ago, ji20874 said:

    Don,

    That's entirely too many words for an irrelevant point.  As I said, CPFF contracts have estimated costs and fixed fees, which should be agreed-upon and contractually-stipulated.  And when combined, they are prices as mentioned in FAR 15.401.  So your assertion that cost-reimbursement contracts do not have prices is error -- see FAR 15.401.  That said, I generally agree that it is preferable to clearly speak of estimated cost and fixed fee in a CPFF arrangement, and that is why I offered what I did to the previous poster -- if one wants to speak of those combined, as is commonly convenient, the term price is better than the term ceiling. 

    You err in thinking I was writing for your benefit.

    10 minutes ago, ji20874 said:

    Can you offer anything helpful to the conversation?

    Yes. The OP should disregard baseless assertions like this:

    3 hours ago, ji20874 said:

    Rather, there should be an agreed-upon and contractually-stipulated estimated cost and an agreed-upon and contractually-stipulated fixed fee.  These two combined become the contract price.

    Ji is hanging his hat on FAR 15.401 to claim that "price" is a term of a cost-reimbursement contract. However, FAR 15.401 begins with "As used in this subpart--" That definition merely clarifies the use of "price" as used in FAR subpart 15.4. One cannot conclude from that definition that "price" is a term of a cost-reimbursement contract.

    Why am I not surprised ji is trying to make me the bad guy? 

  9. 2 hours ago, ji20874 said:

    Rather, there should be an agreed-upon and contractually-stipulated estimated cost and an agreed-upon and contractually-stipulated fixed fee.  These two combined become the contract price.

    No, that's incorrect. CPFF contracts do not have "prices". They have estimated costs and fixed fees. Contrast the required data elements FAR 4.1005-1(a)(5)(i) and (ii):

    Quote

     

    (i) For fixed-price line items:

                         (A) Unit of measure.

                         (B) Quantity.

                         (C) Unit price.

                         (D) Total price.

                    (ii) For cost-reimbursement line items:

                         (A) Unit of measure.

                         (B) Quantity.

                         (C) Estimated cost.

                         (D) Fee (if any).

                         (E) Total estimated cost plus any fee.

     

    FAR 15.401 contains a definition of price that applies in FAR subpart 15.4 only:

    Quote

    Price means cost plus any fee or profit applicable to the contract type.

    People commonly misinterpret that to mean that all contracts have a "price". The definition is merely a convention that obviates the need to write something like "Contracting officers shall award contracts at a fair and reasonable prices (or estimated costs and fees)." When that convention is not used outside of FAR subpart 15.4, we get sentences like the following at FAR 16.103(a):

    Quote

    The objective is to negotiate a contract type and price (or estimated cost and fee) that will result in reasonable contractor risk and provide the contractor with the greatest incentive for efficient and economical performance.

    Also, many standard FAR clauses have fixed-price and cost-reimbursement versions. The cost-reimbursement versions typically don't refer to a "contract price". Contrast FAR 52.243-1(b) for fixed-price:

    Quote

    If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, the Contracting Officer shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall modify the contract.

    and FAR 52.243-2(b) for cost-reimbursement:

    Quote

     

    If any such change causes an increase or decrease in the estimated cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, or otherwise affects any other terms and conditions of this contract, the Contracting Officer shall make an equitable adjustment in the-

               (1) Estimated cost, delivery or completion schedule, or both;

               (2) Amount of any fixed fee; and

               (3) Other affected terms and shall modify the contract accordingly.

     

     

  10. 2 hours ago, faroutgeek said:

    You would take that action as the Contracting Officer absent any cure notices and no failure in performance and turn around and re-compete the exact same requirement?

    Yes, if the two choices were T4C or decline the option.

     

    2 hours ago, faroutgeek said:

    So, if I re-compete with absolutely no documented performance issues, what is preventing the incumbent from bidding on the re-compete?

    Nothing.

     

    2 hours ago, faroutgeek said:

    Why would the incumbent just walk away?

    Probably wouldn't.

     

    2 hours ago, faroutgeek said:

    What I am seeking is case law or any previous cases that show the Government does not exercise the option for no apparent reason and turns around and re-competes the exact same requirement 

    From Formation of Government Contracts:

    Quote

    GAO will no longer consider contractor contentions that their options should be exercised, C.G. Ashe Enters., 56 Comp. Gen. 387 (B-188043), 77-1 CPD ¶ 166; Lanson Indus., Inc., 60 Comp. Gen. 661 (B-202942), 81-2 CPD ¶ 176; Digital Sys. Group, Inc., Comp. Gen. Dec. B-252080.2, 93-1 CPD ¶ 228.

     

  11. @joel hoffman,

    FAR subpart 4.17 implements section 743(a) of Division C of the Consolidated Appropriations Act, 2010 (Pub. L. 111-117) and prescribes FAR 52.204-14 and -15. This statute does not apply to DoD. DoD is in the process of revising the DFARS to incorporate Service Contract Reporting pursuant to the statute that formerfed cited. That rule is not yet final.

  12. 10 hours ago, MAY-D-FAR-B-WIT-U said:

    I actually stumbled onto this post looking for answers to a separate but closely related question. Assuming you can have a FPI with EPA, would you make adjustment before or after applying the incentive geometry to the target cost? I have a Navy contract applying it before and a CG contract applying after? Any benefit from the Government or Contractor's perspective to either strategy?

    I don't know of anything regulating this. I guess you can do it either way.

  13. 10 hours ago, MAY-D-FAR-B-WIT-U said:

    These are common with Navy Shipbuilding contracts and less common with Coast Guard contracts but my thought is this lines up with 16.203-4(d) and is not a deviation. The EPA is pegged to BLS indices and projections (usually from IHS Global Insight)  and are incorporated into the contract and adjustment is made based on the percentage difference between the projections and actual index once published and usually contain an adjustment band say 3-5% where no adjustment is made.

    d) Adjustments based on cost indexes of labor or material. The contracting officer should consider using an economic price adjustment clause based on cost indexes of labor or material under the circumstances and subject to approval as described in paragraphs (d)(1) and (d)(2) of this section.

               (1) A clause providing adjustment based on cost indexes of labor or materials may be appropriate when-

                    (i) The contract involves an extended period of performance with significant costs to be incurred beyond 1 year after performance begins;

                    (ii) The contract amount subject to adjustment is substantial; and

                    (iii) The economic variables for labor and materials are too unstable to permit a reasonable division of risk between the Government and the contractor, without this type of clause.

               (2) Any clause using this method shall be prepared and approved under agency procedures. Because of the variations in circumstances and clause wording that may arise, no standard clause is prescribed.

    I agree. This was a new one for me when I saw it in a shipbuilding RFP. I don't think it's a deviation.

  14. 12 hours ago, formerfed said:

    Several agencies drafted their own interim clauses requiring contractors to submit data rather than agencies guessing.  So the answer, I guess, is nothing except for agency specific clauses or agencies just asking contractors to voluntarily submit the information.

    That is what I suspected. However, it looks like those agencies didn't comply with the DoD Clause Control Policy at DFARS PGI 201.301(b). There's nothing in their chapters of Title 48 of the CFR on this topic.

  15. What requires DoD contractors to report service contract manpower? I see nothing in the FAR or DFARS implementing such a policy or prescribing a clause to enforce the requirement in contracts. There was a proposed DFARS rule (DFARS Case 2012-D051) that was closed and rolled into another proposed rule (DFARS Case 2018-D063), which is where we stand now.

  16. 1 hour ago, Freyr said:

    I have a customer who's able to define what their bare minimum requirements are but they're willing to pay more if a contractor can propose something that exceeds those requirements in specific areas. I'm having trouble thinking of how to phrase the requirement though (It's a simplified acquisition, likely commercial). It's like saying at a minimum I need a vacuum that works on carpet but I'd be willing to pay more if it has a detachable hose. Would we be able to say we'll rate their technical acceptability as satisfactory if it meets the minimum XYZ, good if it meets XYZ and either A, B, or C, exceptional if it meets XYZ and any two A, B, or C, and outstanding if it meets XYZ and all 3 A, B, and C? Or maybe just each feature provides X number of points and rank them based on the number of points they have?

     

    Or am I overcomplicating the whole thing?

    I think you may be overcomplicating it. I think you need to state what the minimum requirements are and that the Government will consider inclusion of certain desired features in determining best value. Note that FAR 52.212-1 encourages submission of multiple offers, so respondents could submit a response that meets the minimum and another with bells and whistles.

  17. 3 hours ago, Gov Researcher said:

    (1) If the contracting officer is not "reasonably certain" the proposed price will be above the certified cost or pricing data threshold, but it turns out the bid (or negotiated price) does come in above the threshold, should the contracting officer still require certified cost or pricing data from the contractor per FAR (when no exceptions apply)?

    Yes. See FAR 15.403-4(a)(1):

    Quote

    The contracting officer shall obtain certified cost or pricing data only if the contracting officer concludes that none of the exceptions in 15.403-1(b) applies.

    The contracting officer's expectation before receiving a proposal is irrelevant to the requirement to ultimately obtain certified cost or pricing data.

    14 hours ago, Gov Researcher said:

    (2) If the answer to (1) above is yes, then does that mean that effectively the answer to the first question in my original post is (a) in practice, since (barring exceptions in FAR or waivers) anytime the cost is expected to exceed the threshold, the contracting officer should require certified cost or pricing data in the end?

    No, I would say that it would be unusual to request certified cost or pricing data after receiving a proposal. It would be rare to be in a situation where you wouldn't know whether the contract price would exceed $2 million. The CO would typically request certified cost or pricing data with the proposal. See the instructions for submitting proposals requiring certified cost or pricing data at FAR Table 15-2. 

    14 hours ago, Gov Researcher said:

    (3) Is there a generally accepted definition or interpretation for "reasonably certain", as used in FAR 52.215-20 for example (such as > 70% probability, > 50% probability, etc.)?

     Not that I know of.

    14 hours ago, Gov Researcher said:

    (4) Do KO's tend to err on the side of requiring certified cost or pricing data if the bids are likely to be near the threshold in your experience?

    Can't say generally.

     

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