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Don Mansfield

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Posts posted by Don Mansfield

  1. 43 minutes ago, joel hoffman said:

    Actually, it says that “ (a) firm-fixed-price contract provides for a price that is not subject to any adjustment on the basis of the contractor's cost experience in performing the contract.”

    I think it would be clearer if it said "solely on the basis of the contractor's cost experience." That sentence has confused many students. 

    51 minutes ago, joel hoffman said:

    However, It can also be adjusted on the basis of the contractor’s actual cost experience in some instances. Some examples are directed and constructive changes,  a differing site condition, a variation in estimated unit priced quantities beyond a certain range (if the unit cost of the work outside of the range varied from the contractors unit cost within the range), newly imposed excise taxes, labor escalation or reductions at time of award of options and other contract clauses that may provide for price adjustments.

    Joel has it right. There is no right to a change in price due to a differing site condition unless it affects the contractor's cost experience. 

  2. 2 minutes ago, aordway said:

    Is 15.404-1(a)(3) trying to say that WHEN individual cost elements have been proposed (or when a Contracting Officer has requested they be submitted/proposed), they must be evaluated using cost analysis, OR is it trying to say that cost analysis must always occur when certified cost or pricing data is required?  Stated another way, could we do only a price analysis when certified cost or pricing data is required?

    I bolded the answer to your question.

    4 minutes ago, aordway said:

    For example, lets say I have a non-commercial purchase for a supply item that will cost $2.5M.  The Contractor is able to provide numerous previous invoices proving they have sold the item in question to other Government agencies at the same price.  As a result, we feel we are able to justify a fair and reasonable price based on price analysis alone. However, because the purchase is above $2M, certified cost or pricing data is required per 15.403-4(a)(1). And also as a result, 15.404-1(a)(3) says that cost analysis SHALL BE USED. If we were to award our contract using only price analysis, did we comply with 15.404-1(a)(3) because no cost element breakdown was submitted or requested to be submitted? Or did we fail to comply with 15.404-1(a)(3) because cost analysis was not used at all in the evaluation, and it says cost analysis "shall be used"?

    In this situation, you could potentially make the argument that there was adequate price competition based on FAR 15.403-1(c)(1)(ii)(B) (provided the acquisition is not for DoD, NASA, or the Coast Guard). If you can't do that, you can request a waiver for the submission of certified cost or pricing data from the HCA. However, If no exceptions apply, you must obtain certified cost or pricing data and perform a cost analysis.

  3. 11 hours ago, Andrea Tichenor said:

    Reference Interim Rule for FAR Case 2019-009 published July 14, 2020 in the Federal Register - https://www.govinfo.gov/content/pkg/FR-2020-07-14/pdf/2020-15293.pdf

    Ultimately, I would like to know your opinion whether a bilateral contract modification should be pursued to update FAR 52.204-25 to the newest AUG 2020 version.  The clause is currently included in my IDIQ commercial services contract.  The contract base and all options is anticipated to be 60 months in length, estimated total $12M.  The contractor completed their representations in SAM for provisions 52.212-3(v)(2) and 52.204-26(c) and stated "does not" provide covered telecommunications equipment or services for both provisions.  Provision FAR 52.204-24 is also being updated AUG 2020.  Do I need their representations for FAR 52.204-24(d)(2)?  Potentially prior to exercising an option???

    The Interim Rule states contracting officers shall modify existing contracts prior to placing future orders.  On page 11 of the Federal Register publication it states, "the objective of the rule is to provide an information collection mechanism that relies on an offer-by-offer representation that is required to enable agencies to determine and ensure that they are complying with section 889(a)(1)(B)."

    FAR 52.204-25 AUG 2019 does not address section 889(a)(1)(B).  FAR 52.204-25 AUG 2020 added a second paragraph under (b), the second paragraph pertains to section 889(a)(1)(B).  If I do not modify my contract to update FAR 52.204-25, will I potentially be in violation of section 889(a)(1)(B)?  I can't recall ever modifying a contract just to include the most current version of a clause.

    Do you think a modification to update FAR 52.204-25 to AUG 2020 is appropriate?  If so, would you expect this to be a no-cost mod?

    Thanks in advance for participating in this discussion!

     

    You need to 1) Modify the contract IAW FAR 1.108(d) to include the new clause before issuing any new orders or exercising an option and 2) include the provision in all solicitations for an order, or notices of intent to place an order, including those issued before the effective date of the rule. FAR 1.108(d)(3) permits the contracting officer to incorporate FAR changes in existing contracts "with appropriate consideration." In this case, the FAC requires it (note the "Unless otherwise specified--" at the beginning of FAR 1.108).

    The law applies to executive agencies and does not give the Government any authority to incorporate the clause unilaterally. Contractors most certainly have a choice--they can decline to sign the modification, although they risk not receiving any more orders or not getting their options exercised. The fact that there's nothing in the contract to entitle the contractor to an adjustment is irrelevant. There's also nothing in the contract that requires that the contractor comply with the new clause until they agree to it. If the Government wants to include the clause, they should expect to cover the cost impact.

  4. 17 minutes ago, joel hoffman said:

    Bonafide needs rule application for a function that will occur in a subsequent fiscal year needs to be determined.

    Joel, the question has to do with a contractor making a purchase under a contract--not the Government making the purchase. Funds were obligated when the original contract was awarded.

    48 minutes ago, Retreadfed said:

    Don, your original question asked about the allowability of the cost.  Looking at the criteria for the allowability of a cost contained in FAR 31.201-1, I don't see where any of these criteria have not been met in regard to this scenario.  Therefore, I see no reason why the cost of the venue would not be an allowable cost.

    Thanks.

  5. 1 hour ago, Retreadfed said:

    Don, is the contractor required to do something else in regard to the conference other than obtain the venue?

    Maybe, but I'm only asking about the cost of the venue. I'm not asking about costs incurred after the PoP end date.

    1 hour ago, Retreadfed said:

    Also, will payment for the venue take place after the conference?

    Assume yes.

    1 hour ago, Retreadfed said:

    This seems a strange way of conducting a conference if the contractor is not required to manage the conference.

    A contractor will be required to manage the conference. However, the incumbent may not win the follow-on.

  6. Assume a contractor is performing a cost-reimbursement contract that has a period of performance that ends on Sep. 30. The contractor is required to secure a venue for a conference that will take place in November. To secure the venue, the contractor must enter into a subcontract with the venue prior to Sep. 30. Assuming the cost of the venue is otherwise allowable, would the fact that the conference took place after the period of performance ended affect the allowability of the cost? Assume the contractor uses the accrual accounting method.

  7. @Philistines,

    I think that you're under the impression that you need a contract clause to support an extension of the ordering period due to the pandemic. If that's what you think, then I disagree. Contract clauses like Excusable Delays and Changes deal with a party's right to an adjustment under prescribed conditions. The presence or absence of such clauses in a contract does not limit the parties' rights to negotiate adjustments to contract terms to adapt to conditions that they did not contemplate during contract formation. Further, such adjustments are not necessarily outside the scope of the competition.

    For example, let's say the Government competitively awards a contract to Acme Corp. to deliver 100 widgets by 31 July at a price of $100K/widget. On 17 July Acme Corp. calls the contracting officer and asks if the delivery date can be moved to 31 August because they are experiencing an unusually high volume of orders. The contracting officer checks with the customer, who is ok with the later delivery. The contracting officer then agrees to adjust the delivery date if the contractor agrees to a price reduction of 5% as consideration. Contractor agrees and the contract delivery date and price are modified accordingly. The contracting officer doesn't write a J&A.

    The change agreed to by the parties has nothing to do with the Excusable Delays clause, Changes clause, or any other standard FAR clause. The modification is not necessarily outside the scope of the competition. Do you think any law or regulation has been violated?

    Let's say I were administering an IDIQ contract that had a 12 month ordering period and, during that period, the contractor was unable to accept orders due to circumstances beyond its control for a period of two months. I would argue that the clock on the 12 month period stopped during those two months. If someone were to argue that the 12 month period necessarily ended at the end of 12 calendar months, I would ask why a calendar (rather than a stop watch) was necessarily the correct way to measure the time period. I think you would still have two more months of ordering period at the end of 12 calendar months. If the contract had a stated end date to the ordering period, I don't think a modification to change the date would necessarily be outside the scope of the competition.

    Note that this has nothing to do with the Excusable Delays clause, the Changes clause, or any other standard FAR clause. It's just the parties adapting to unforeseen conditions. That's what contract administration is all about.

  8. 1 hour ago, CDBurner said:

    Thanks,  so in practice it sounds like definitzation schedules are just built with the end goal to have definitzation happen 180 days after qualifying proposal with the only constraint upon timelines for receipt of the proposal being the 217.7404-3(b ) of "timely", which I guess is left to the PCO's/Contractor's discretion.  Is that how you read it?

    No. The timeliness of the qualifying proposal would be determined by what the parties agree to in DFARS 252.217-7027(b).

  9. Quote

     

    216.603-2  Application.

          (c)(3)  In accordance with 10 U.S.C. 2326, establish definitization schedules for letter contracts following the requirements at 217.7404-3(a) instead of the requirements at FAR 16.603-2(c)(3).

     

     

  10. 4 hours ago, tranceaddict said:

    Hi All,

    I am currently in the process of beginning to work a pre-award for a CPFF Task Order.  I am currently in a debate with my COR who seems to think that having one CLIN for all of the work is sufficient. I've been attempting to explain that we should have multiple CLINS to segregate costs and should be broken out, even including a Not Separately Priced CLIN for CDRLs, a CLIN for ODC, etc.   

    Is there any clear guidance on how CLINS should be structured?

    Thanks for the assistance!

     

    See FAR subpart 4.10. If you are with DoD, see DFARS 204.71. After reading those, ask yourself if it makes sense to have multiple line items for the purpose of segregating costs. When you're thinking about it, do not consider what you or others have done in the past or what you've been told.

  11. 7 hours ago, tranceaddict said:

    Hi All,

    I am fairly new to the contracting world, so excuse my ignorance.  I manage 6 CPFF task orders under a Base IDIQ.  If we have to realign funds from one task order to another, is there anything else besides severability and ceiling constraints that I have to be aware of?

    Thanks for the assistance!

     

     

    If you deobligate funds from a task order, those funds may not be available for obligation on another task order because the period for obligation expired.

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