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Don Mansfield

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Posts posted by Don Mansfield

  1. 4 hours ago, ContractingPeoplesHatred said:

    Do you know of any rule or regulation that would not allow us to have a fee associated with the IDIQ pricing that would then be sent as a check to our office to fund positions? 

    So your fee would be built into the pricing in the IDIQ contract? Then the contractor would send you a check?

  2. 1 hour ago, CharterParty said:

    Now more generally if a contract initial award under a BAA included an option that for any reason the Government failed to exercise during its unilateral right period, can both parties agree to perform the work originally agreed to at award? Does it run afoul of CICA or the “Spirit of CICA”? Which specifically separated out the BAA.

    As long as the modification is within the scope of the competition, then I don't think it would run afoul of CICA. The fact that the work is R&D and the contract was properly awarded under a BAA, I think it would be difficult for a third-party to win a CICA protest. However, a high likelihood that it's ok is not the same as a rule that it's ok. 

  3. 21 minutes ago, ji20874 said:

    For contracts covered by FAR Part 6, we may add "new work" to an existing contract as long as we comply with the competition requirements of FAR Part 6 -- competitive proposals are not required for work resulting from a BAA, so as long as your proposed modification (to turn on an option) is covered by FAR 6.102(d)(2), you don't need a J&A to justify not being covered by (a), (b), or (c).

    In the OP's scenario, the Government lost its right to exercise the option. The proposed bilateral modification would be to add the work originally contemplated by the option that was included in a contract awarded under a BAA.

    Having said that, what proof do you have for your assertion that a J&A would not be required for such a modification?


    1 hour ago, CharterParty said:

     I have not found any cases only opinions, and I believe that the typical Government Contracting Officer response to the scenario is changed by that key fact, the original award was properly executed against a BAA.

    So what? Do you think the GAO or Court uses the "typical Government Contracting Officer response" standard to decide whether a given modification is within scope?

    The determination of whether a given modification is within the scope of the contract has nothing to do with the specific solicitation technique used to form the original contract.

    See Neil R. Gross & Co., 69 Comp. Gen. 247 (B-237434), 90-1 CPD ¶212:


    In weighing [whether a modification is beyond the scope of the competition], we look to whether there is a material difference between the modified contract and the prime contract that was originally competed…. In determining the materiality of a modification, we consider factors such as the extent of any changes in the type of work, performance period and costs between the contract as awarded and as modified…. We also consider whether the solicitation for the original contract adequately advised offerors of the potential for the type of changes during the course of the contract that in fact occurred … or whether the modification is of a nature which potential offerors would reasonably have anticipated under the changes clause.

     That's the test. However, you seem to want to infer an exception to the general rule--

    On 10/25/2018 at 8:17 AM, CharterParty said:

    ...should an Agency fail for any reason to exercise an option under a contract properly awarded against a BAA a bi-lateral modification to continue the original performance be agreed to by the parties then performance may continue absent the need for a FAR 6 J&A.

    While the nature of R&D work is uncertain and the scope is comparatively less defined than for other contracts, your claim goes too far. Taken to its extreme, you would have to say that it's impossible for the work covered by the unexercised option to be out of scope. It may or may not be within scope. 

  5. 3 hours ago, CharterParty said:

    My position is should the fact pattern presented in B-21913 be modified to switch the award authority the conclusion would change.   In the possible scenario above should an Agency fail for any reason to exercise an option under a contract properly awarded against a BAA a bi-lateral modification to continue the original performance be agreed to by the parties then performance may continue absent the need for a FAR 6 J&A.

    What is your reasoning?

  6. There's a procedure for vessel repair that's similar to what ji suggested at DFARS PGI 217.7103-5:



    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.


    Although it appears in the DFARS PGI coverage for vessel repair, it could be used for other types of repair.

  7. 6 hours ago, DWGerard1102 said:

    The CFR has for years indicated that SB regulations apply to US procurements when the preponderance of the process (as above), is domestic and FAR 19 is only exempted when the preponderance of the procurement is OCONUS (Product: OCONUS; Contacting Office: US or OCONUS; Delivery location: OCONUS).

    Where does it say that?

  8. 1 hour ago, Fairly New 1102 said:

    Someone at work mentioned Highest Technical Rating at a Fair and Reasonable Price? Is that a viable approach where I work (Army)? It actually sounds closer to what our customers need than the others as they need highly experienced and specialized technical support people.

    If by "viable" you mean "not prohibited", then the answer is yes. 

    1 hour ago, Fairly New 1102 said:

    My question is: Are there any other named/identified source selection procedures? (not including hybrids of ones already mentioned).


    What do you mean by "named/identified"? Do you mean identified in the regulations?

  9. 7 hours ago, elsmiles said:

    Thank you, ji20874, for the input.  The nature of the contract requires the contractor to output at a high rate which in turn results in funds spent faster than your typical common contract.  The contractor does not have additional funds that a for-profit has to be able to sustain at such a high rate without additional resources.  The demand is the government's and not the contractor, so to alleviate the high demand and support the high output, the government pays faster.  The question was not whether or not the government should pay faster or not, the question was are there any other authorities that can be used to further decrease the payment days.       


    Have you considered an advance payment pool? See DFARS 232.470(a).

  10. I wrote about conflicts between the FAR and SBA regulations in the September 2015 Nash & Cibinic Report:



    Conflicts Between FAR And SBA Regulations: What’s A CO To Do?
    In responding to a public comment alleging a conflict between FAR and SBA regulations under FAR Case 2006-032, Small Business Size Representation, 74 Fed. Reg. 11821 (Mar. 19, 2009), the FAR councils stated their position with respect to such conflicts—
    The stated purpose of the interim rule is to improve the accuracy of small business size status reporting, at the prime contract level, over the life of certain contracts. Contracting officers under the Executive Branch are required to follow the FAR. In cases where there are inconsistencies between Title 13 (SBA regulations) and Title 48 (FAR) of the Code of Federal Regulations, contracting officers follow the FAR. [Emphasis added.]
    This is a questionable position given that both the U.S. Court of Federal Claims and the GAO have viewed the SBA regulations as controlling when they conflict with the FAR. In C & G Excavating, Inc. v. U.S., 32 Fed. Cl. 231 (1994), 36 GC ¶ 599, the court dealt with a FAR rule that limited the scope of SBA review to those areas of responsibility identified as lacking by the CO when considering an application for a COC. The SBA regulations contained no such limitation. In resolving the conflict, the court stated:
    With regard to the direct conflict between 13 C.F.R § 125.5(e) and FAR § 19.602–2(a)(2), the court finds that the restrictive language in the FAR concerning the scope of SBA’s site investigation cannot be interpreted to limit the scope of SBA’s general review authority. The clear intendment of 13 C.F.R. § 125.5(e) is that the SBA may perform a site investigation examining all elements of responsibility. This interpretation is consistent with the [Small Business Act] and shall be given deference.
    In Adams Industrial Services, Inc., Comp. Gen. Dec. B-280186, 98-2 CPD ¶ 56, 1998 WL 546000, 40 GC ¶ 460, the GAO sustained a protest where the agency, relying on FAR 19.302(j) (48 C.F.R. § 19.302(j) (1998)), argued that size protests received after award had no effect on the award—they only have prospective applicability. The GAO stated:
    While FAR Sec. 19.302(j) treats size status protests received after award of a contract as having no applicability to that contract, SBA’s regulations, which we view as controlling in this area, provide that “[a] timely filed protest applies to the procurement in question even though a contracting officer awarded the contract prior to receipt of the protest.”
    See also Diagnostic Imaging Technical Education Center, Inc., Comp. Gen. Dec. B-257590, 94-2 CPD ¶ 148, 1994 WL 588043, 36 GC ¶ 609 (timely filed postaward size protest applied to instant award despite FAR stating that decisions on such protests have only prospective applicability).
    Thus, if a conflict exists between the FAR and the SBA regulations, it seems that a CO would be in the difficult position of having to deviate from the FAR to comply with the law as interpreted by the Court of Federal Claims and GAO. See FAR Subpart 1.4, “Deviations from the FAR.”
    In C & G Excavating, the Court of Federal Claims stated:
    While the parties did not specifically raise this regulatory conflict, and the discrepancy was unnecessary to decide in [Reel–O–Matic Sys., Inc. v. U.S., 16 Cl. Ct. 93, 99 (1989)], the Government has been on notice since 1989, when Reel–O–Matic was decided, that the conflict exists and poses problems. The Government’s regulatory machinery has perpetuated a conflict that should have been resolved to avert future litigation.


    Having said that, I don't think its practical or reasonable to require COs to request deviations for every small business set-aside (what ji said).
    However, if the issue were protested, the GAO and the COFC would likely defer to the SBA regulations to resolve the conflict. But maybe not. In this case, there is a proposed rule in the pipeline to revise the FAR. In the cases I cited above there was a conflict that the FAR Council was ignoring.

  11. 8 hours ago, Retreadfed said:

    FAR 1.602-1(b) "No contract shall be entered into unless the contracting officer ensures that all requirements of law, [which includes the NDAA amendment of the SBA] executive orders, regulations, [which includes 13 CFR] and all other applicable procedures, including clearances and approvals, have been met."  If the contracting officer wants to be safe, (s)he should ask for a deviation.

    Technically, I think the safest thing to do would be to request a deviation. That way, the CO would be compliant with the FAR, the NDAA, and the SBA regulations. However, I don't think it's practical for the contracting officer to ask for a deviation every time they're going to do a small business set-aside. I think a CO should take ji's approach. If someone protests, request a deviation.

  12. On 9/21/2018 at 12:00 PM, GeoJeff said:

    Is this yet another case of FAR not having "caught up" with an underlying regulation, as is the case with the limitations on subcontracting changes?

    Yes, it is. Status of FAR Case 2016-011:


    09/21/2018 OIRA cleared proposed FAR rule. FAR staff processing.

    It's only been a little over two years since the SBA published the change in its regulations, which implemented a section of the FY 2013 NDAA. You don't want to rush these things.

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