Don Mansfield

7 minutes ago, Pappy said:

Do you have any advice on the incremental funding that the limitation of funds clauses won't cover?

I don't think what you are describing is incremental funding. You are just buying a base quantity and buying more later when you have funds--like any other option. You don't need a limitation of funds clause.

18 hours ago, Pappy said:

I did not intend to include option CLIN's, just one info CLIN with a NTE quantity and fixed unit price, then as funding becomes available, add sub-CLIN's (AA, AB, etc...) to increase funding and total quantity ordered.

You don't have to add an optional line item to do what you want. Compare FAR 52.217-6 and -7. I think you would use -6.

3 hours ago, PATRICK3 said:

I get that, but if the country is having a strike, how are we going to harm the contractor for this contract?

You're not harming the contractor. If they experience an excusable delay, they get more time to complete the contract. 

6 hours ago, New CS said:

13.003(b)(1) Acquisitions of supplies or services that have an anticipated dollar value above the micro-purchase threshold, but at or below the simplified acquisition threshold, shall be set aside for small business concerns.

Is there an exception to the above reference that allows the use of FAR part 13 to solicit and award to a large business?

FAR 19.502-2(a):

Quote

Each acquisition of supplies or services that has an anticipated dollar value above the micro-purchase threshold, but not over the simplified acquisition threshold, shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of fair market prices, quality, and delivery.

Is the BAA Council a VA thing? Never heard of it. 

So, from what I understand you're being told that a determination of nonavailability is required for each order because you can't trust that the CO got one approved when planning the original contract. Is that correct?

I don't see anything about BAA waivers in the VAAR. Do you mean Determinations of Nonavailability?

11 hours ago, philb said:

Basically, do COs need to seek waivers for the NMR and BAA when we issue orders off of existing government contracts?

No, because--

1. Requests for individual waivers of the nonmanufacturer rule are discretionary (see FAR 19.505(c)(4)(i)(B)), and

2. There is no requirement for the CO to request a "waiver" of the BAA under any circumstance. 

45 minutes ago, MileHighAcq said:

I've never seen an unauthorized commitment not ratified, but the possibility of it not being ratified and being personally financially liable, plus the detrimental impacts to one's career, are generally sufficient to keep most people on the straight and narrow and not abuse their authority. 

Here you go...

b-262168.pdf

The PGI is just giving an example of compliant numbering--it's not requiring that numbering. The rule is that the numbering be sequential.

10 minutes ago, Vern Edwards said:

If a company is approached by a person with a government ID who says, "I'm a contracting officer and I want to buy $30,000 worth of X. Let's agree on terms, and I'll send the paperwork later. I'll give you a hand-written note confirming the order." What should the company say?

"Ok, but I need to confirm that you have the requisite authority to bind the Government." 

According to FAR 1.602-1(b), this information should be "readily available to the public".

14 hours ago, Vern Edwards said:

If not, what then?

Formalize the informal commitment under FAR 50.103-2(c)?

45 minutes ago, MileHighAcq said:

I find gray areas of law, regulations, ethics, etc. fascinating and am curious how other COs handle such issues. Also can be practical advice when/if I encounter such issues

Me, too. I'm glad you asked the question.

3 minutes ago, Vern Edwards said:

They can't fail very many. What would that say about management?

Are they using the NCMA CPCM exam?

No. It will probably be closer to the CCMA exam.

Good questions. Here's how I see it.

Contracting officers have the authority to enter into contracts (FAR 1.602-1(a)).

By definition, contracts are in writing "unless otherwise authorized." (FAR 2.101)

There are two instances that seem to authorize oral contracts:

Purchases under BPAs should be made orally when it is not considered economical or practical to use electronic methods. (FAR 13.303-5(e)(1))

Purchases using imprest funds or third-party drafts should normally be placed orally. (FAR 13.305-4(b))

I don't see a writing requirement as a big deal with the technology we have today. If you can reach someone by phone, you can probably also send an e-mail or text to the same device.

1 hour ago, Patrick Mathern said:

Is anyone aware of a precedent for this?

I am not. I'm not seeing a problem. 

From what your auditors wrote, they seem to think that profit is allocated like indirect costs (e.g. "IDWA can only have profit applied..."). Although the Government's structured approaches to profit analysis assume so, profit is not necessarily a function of cost. Just because it can be expressed as a percentage does not mean that it gets "applied" to costs. The prime should propose the dollar amount of profit it wants for the contract and should not link it to its proposed costs. The prime shouldn't submit an Excel spreadsheet that contains a formula in the "Profit" cell that changes when other costs on the spreadsheet change. If the contracting officer tells the prime that they're not allowed to have profit on a particular cost, the prime should explain that there is no direct relationship between their proposed profit and their proposed cost.

As far as what a Government contracting officer would "conclude"--they shouldn't conclude anything regarding "collusion" without a lot more information. 

What evidence did the somebody provide to support their assertion?

33 minutes ago, ji20874 said:

Don,

You're being pedantic again.  Do you have anything that might be helpful to the original poster?

I already admitted to being the bad guy. What are you trying to prove?

Careless:

On 1/9/2023 at 2:58 PM, ji20874 said:

The equipment you are talking about is not CAP, and is not government property at all -- the FAR's Government Property clause does not apply.

Less Careless:

"Since I haven't read your contract, I can only answer generally. Typically, property acquired by the contractor under a fixed-price contract does not meet the definition of contractor acquired property as defined in the clause at FAR 52.245-1 because the Government doesn't have title. However, if a fixed-price contract provided for contract financing payments, the Government would have title to such property until final acceptance."

50 minutes ago, ji20874 said:

There is nothing careless in what I wrote.

Careless:

5 hours ago, ji20874 said:

For newbies reading this thread, remember that Contractor-Acquired Property (CAP) does not mean property acquired by the contractor -- this might seem illogical, but that's how it is. 

😦

Careful:

51 minutes ago, ji20874 said:

Indeed, CAP does not simply mean any property acquired by the contractor.

😀

Pedantic types might write something like 

CAP∈Property acquired by the contractor 

Joel,

Would it make sense if I said--

"A hammer is not a tool. A hammer is a tool for driving nails into wood."

Ji is writing carelessly, but that's your fault @Vern Edwards & @here_2_help. 

And I'm a bad guy for pointing it out.

2 hours ago, here_2_help said:

Don, I find myself in the position of once again disagreeing with your advice. Unless the contracting officer with cognizance over this contract is also the same contracting officer with cognizance over the contractor's final billing rate proposal and negotiation of final billing rates (see 42.705-1), I don't believe they have authority under 42.704 to issue a unilateral indirect rate determination. I base my position on the language at 42.704(a).

I agree that whoever has the authority to revise the billing rates in @TylerACC's agency should be the one to revise the billing rates, if necessary. However, I don't think it should be done unilaterally unless the parties cannot negotiate an agreement.

2 hours ago, here_2_help said:

I note that the original poster used the term "telework" which seems ambiguous. Does telework mean the contractor's employees are working from their own homes, or does it mean they are working from their offices at the contractor's facilities? I don't know. I also don't know whether the contractor is maintaining office space for its employees since they are not working at the government's facilities. That is a key unknown fact. If the contractor maintains office space for its employees then it would be reasonable and appropriate for it to bill the contract at higher indirect rates that include its facilities costs.

I don't think @TylerACC would be asking the question if the contractor's employees were teleworking from the contractor's facilities. Maybe @TylerACC can straighten me out if I'm wrong.

2 hours ago, here_2_help said:

To me, this issue should have been raised and addressed by the parties back in 2020, when the contractor began teleworking routinely. Now, here we are, two or three years later, trying to fix something that I'm not even sure is a problem.

Yep.

2 hours ago, here_2_help said:

The contract appears to be silent regarding the ratio of onsite and offsite work -- though the parties must have had a notion as to what that ratio was when they negotiated the contract's estimated cost. At this point, given the facts presented, I don't see a way for the contracting officer to force the contractor to change its billing rates. What's likely to happen is that the contractor will burn through its funding quicker than the parties intended ... and the contracting officer will then have leverage to force a change in contract terms (i.e., a third billing rate for teleworking employees) as a condition of either providing more funding or exercising the next Option Year. There will also be an opportunity in the CPARS rating to make any displeasure known.

...or the parties could act now to avoid this situation, if necessary.

36 minutes ago, TylerACC said:

130K. Mission partner wants to them to issue credit invoice. Contractor doesn't agree. Just curious on opinions. Don's statement earlier is true. This situation is not unique. I was curious if anyone else has run into this situation.

If they overbill their indirect costs, the Government would be credited. However, you're not going to know that until the final indirect cost rates are determined. I would let that process work itself out.

In the meantime, I would consider revising the billing rates (see FAR 42.704(c)). I see this as a billing rates issue--not a cost allowability issue.

Just trying to understand. I get it--the facility is not a physical place. I like it. 

So, if the Government provided the platform and the computer it would be Government site?