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Don Mansfield

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Everything posted by Don Mansfield

  1. I don't have any specific examples, but I can envision the evaluation of past performance being a waste of time is some situations. For example, the agency may be intimately familiar with all of the possible sources of supply and know that all have performed well in the past. In such a case, the only discriminating factor could be price.
  2. If the LPTA source selection process were being used, for example. FAR 15.101-2( b )(1) recognizes this possibility: Evaluating past performance when using LPTA is somewhat redundant, because you have to determine the acceptabily of the propsective contractor's past performance on a pass/fail basis when determining responsibility.
  3. Vbus, Past performance is already required to be considered as part of a responsibility determination, regardless of dollar value. See FAR 9.104-1( c ):
  4. How so? I don't see anything that would require the use of past performance as an evaluation factor.
  5. Consman, One last comment. If, at contract award, the contractor was not required to perform any work under the CLIN (and likewise the Government was not liable for payment), then an obligation was not created. If Government's liability was contingent on some future event, which in this case was the materialization of an emergency requirement, then you have what is called a contingent liability. Contingent liabilities are not obligations and may not be recorded as such. See pp. 7-55 to 7-57 of the GAO Red Book for a good discussion on contingent liabilities. When a contracting officer records an obligation to cover the amount of a contingent liability, he/she has not created an obligation for that amount--he/she has just overrecorded the amount of the Government's obligation. This violates the Recording Statute (31 USCA ? 1501), which requires that the amount of the obligation recorded equal the amount of the obligation created. In your case, it sounds like the amount of the Government's obligation was overrecorded at contract award and your modification made things right. For a discussion on the difference between recording an obligation and creating an obligation, the GAO Red Book states the following at p. 7-8: Not everyone understands this and, as a result, overrecording of obligations is fairly common. I've seen it and heard about it mostly in repair contracts that contain over and above work clauses. Some agencies will obligate funds to cover over and above work when the contract is awarded--before any over and above work has been identified or over and above work orders issued. I also suspect that it is common in some construction contracts because on several occassions I've explained the rules about recording obligations to students engaged in construction contracting and was asked "if that's true, then how do we fund contingencies?" Probably more than you wanted.
  6. It's discretionary. See definition of "may" at FAR 2.101. I guess somebody is arguing with you about it?
  7. carl, No, I hadn't read the decision and I didn't know about it--thanks. However, a purchase order is a contract action as defined by FAR 5.001 and, as such, must be synopsized if it is expected to exceed $25,000 unless an exception applies (FAR 5.201( b )). I don't see an exception that would apply to a purchase order issued under a BPA. If the action were a task or delivery order under an IDIQ contract, it would be excepted by FAR 5.202(a)(11), which states: [italics added]. However, we all know that a FAR Part 13 BPA is not a contract.
  8. Whynot, This is what you wrote: This makes it seem that, as long as the parties agreed, they could ignore the requirements for cost or pricing data (or the requirements of any other rule) even if they applied. Did you mean that?
  9. I assume, then, that the contract no longer requires the contractor to perform, or the Government to pay for, the work described in the CLIN. I guess the CLIN stayed in the contract in case you want to order the performance of emergency work at a later date, at which time you will provide funding. I don't see a problem with the modification from a fiscal law perspective. However, I wonder about the original obligation for the emergency work. At the time the contract was entered into, did the contract specify any emergency work that the contractor was required to perform? Or, was the emergency work to be defined at a later date, as it materialized? Regarding your question about a partial T4C, I don't quite understand. Would a partial T4C have been better in what way?
  10. Nothing. Yes. What's your point?
  11. If one were to make such an argument, which exception to the synopsis requirement would they cite if the call were to exceed $25,000?
  12. The possibility of the Government deciding not to extend the contract. That would be an option. So what if they do? What exception to cost or pricing data requirements would apply?
  13. Huh? Are you trying to say that a contractor may not agree to submit cost or pricing data when negotiating such a modification?
  14. Consman, If the modification deleted work (i.e., the Emergency Work), reduced the contract price, and deobligated funds, then I do not see a problem. However, if the modification merely reduced the amount shown on the contract as being obligated, no work was deleted, and the price stayed the same, then I see a problem. Which was it?
  15. Ok, now you are confusing me. You wrote: What is the difference between [1] and [2]? Does [1] refer to the exercise of an option pursuant to FAR 52.217-8 and [2] refer to the exercise of an option pursuant to another option clause? Please clarify.
  16. FAR 52.217-8 is an option clause. Note the use of "(not an option)" in my question. You referred to three possible scenarios: 1. an extension of a current contract that is about to expire, 2. an exercise of an option under a current contract period that is about to expire (priced or unpriced), 3. a separate stand alone follow-on contract to the original contract. When applying TINA, what's the difference between scenarios 1 and 3?
  17. Whynot, For purposes of applying TINA, what difference does it make if the contract action is a contract modification extending the period of performance (not an option) for one-year or a new one-year contract?
  18. Mary D, You need to ask the contracting officer who issued the RFP. He/she knows what he/she wants. We don't.
  19. I agree with that, but I don't think that the GAO would, given the MCS decision.
  20. Yes, I don't think you would necessarily have a CICA problem. However, you could end up paying Year 5 rates at the end of Year 2. Those rates may not be fair and reasonable when the option is exercised. I think the solution is to either advise offerors that, when proposing rates for each period, they should consider the prospect of the Government extending performance up to six months at the proposed rates. An alternative would be to evaluate each of the proposed rates over an 18-month period.
  21. If that's what the CO wanted, then the CO should have asked for it. You can't fault the winning quoter for not providing information that was not requested. It seems that the CO used unannounced evaluation criteria (% of work that will be subcontracted) to evaluate quotes and subsequently downgraded those quoters who planned to subcontract a portion of the work. If that's the case, then the CO has been unfair to those quoters. Again, CO's fault--not the winning quoter's. I think that the CO should have amended the RFQ to inform quoters of the actual basis for award.
  22. I often have engineers from the ACOE in my class that are pursuing an ACO warrant, but never any from NAVFAC.
  23. That only solves the problem if the option were exercised after the final option year. What if the Government wanted to exercise the option to extend after the completion of the base year, like in the MCS case?
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