Jump to content
The Wifcon Forums and Blogs

Don Mansfield

Members
  • Content Count

    2,781
  • Joined

  • Last visited

Posts posted by Don Mansfield

  1. On 3/28/2020 at 10:28 AM, Lukevan said:

    My concern is that it seems like KOs often neglect to check a clause in (b) or (c) such as the SCLS (52.222-41) that I think should apply.  I'm uncomfortable deciding not to flow it down if it's missing a check mark, because it seems like (e)(1) could be simply telling me to flow those down if I'm supposed to (I'm wondering if the FAR drafting committee didn't trust KO's to select the correct clauses and wanted to make sure the list in (e)(1) always got flowed down if they applied?).  If it were a non-commercial prime contract and 52.222-41 was not listed in the prime contract, I might be able to ignore it because the contract would not contain a clause like 52.212-5(e)(1) that appears to say "regardless of what we said above, you must flow down this list of clauses if applicable."   I'm probably over-analyzing this but I find myself with extra time on my hands lately ... :)

    If the clause should have been incorporated in the prime contract, but wasn't, then it should be flowed down to commercial subcontracts if it's listed in (e)(1). You're smart not to rely on the contracting officer. However if a clause listed in (b) or (c) is not checked because it is inapplicable, then nothing requires you to flow down that clause.

  2. 7 minutes ago, formerfed said:

    The original post never mentioned FAR 12.102(f) and nothing claimed that’s the basis.   Ryan states FAR 18 which says under 18.202

    As I mentioned Ryan and his team are sharp. 

    Let's take a look at FAR 18.202:
     

    Quote

    (c) Treating certain items as commercial. Contracting officers may treat any acquisition of supplies or services as an acquisition of commercial items if the head of the agency determines the acquisition is to be used to facilitate the defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack. (See 12.102(f)(1) and 13.500(c).)

    (d) Simplified procedures for certain commercial items. The threshold limits authorized for use of this authority may be increased when it is determined the acquisition is to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to facilitate provision of international disaster assistance; or to support response to an emergency or major disaster. (See 13.500(c).)

    Two different authorities.

    The authority to treat certain items as commercial (the same authority stated at FAR 12.102(f)(1)) does not apply to acquisitions to support response to an emergency or major disaster. Period. End of story.

    The authority to use SAP up to $13 million for the purchase of commercial items does apply to acquisitions to support response to an emergency or major disaster.

    Anyone who reads (c) and (d) and concludes that you can treat an item as commercial because it will be used to support response to an emergency or major disaster is not sharp.
     

    Quote

     

    41 U.S.C. 1903

    §1903. Special emergency procurement authority

    (a) Applicability.-The authorities provided in subsections (b) and (c) apply with respect to a procurement of property or services by or for an executive agency that the head of the executive agency determines are to be used-

    (1) in support of a contingency operation (as defined in section 101(a) of title 10);

    (2) to facilitate the defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack against the United States;

    (3) in support of a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate the provision of international disaster assistance pursuant to chapter 9 of part I of the Foreign Assistance Act of 1961 (22 U.S.C. 2292 et seq.); or

    (4) in support of an emergency or major disaster (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)).

    (b) Increased Thresholds and Limitation.-For a procurement to which this section applies under subsection (a)-

    (1) the amount specified in section 1902(a), (d), and (e) of this title shall be deemed to be-

    (A) $15,000 in the case of a contract to be awarded and performed, or purchase to be made, in the United States; and

    (B) $25,000 in the case of a contract to be awarded and performed, or purchase to be made, outside the United States;

    (2) the term "simplified acquisition threshold" means-

    (A) $750,000 in the case of a contract to be awarded and performed, or purchase to be made, in the United States; and

    (B) $1,500,000 in the case of a contract to be awarded and performed, or purchase to be made, outside the United States; and

    (3) the $5,000,000 limitation in sections 1901(a)(2) and 3305(a)(2) of this title and section 2304(g)(1)(B) of title 10 is deemed to be $10,000,000.

    (c) Authority To Treat Property or Service as Commercial Product or Commercial Service.-

    (1) In general.-The head of an executive agency carrying out a procurement of property or a service to which this section applies under subsection (a)(2) may treat the property or service as a commercial product or a commercial service for the purpose of carrying out the procurement.

    (2) Certain contracts not exempt from standards or requirements.-A contract in an amount of more than $15,000,000 that is awarded on a sole source basis for a product or service treated as a commercial product or a commercial service under paragraph (1) is not exempt from-

    (A) cost accounting standards prescribed under section 1502 of this title; or

    (B) cost or pricing data requirements (commonly referred to as truth in negotiating) under chapter 35 of this title and section 2306a of title 10.

     

    The statute is clear. The authority in (b) applies to (a)(1)-(4). The authority in (c) applies to (a)(2) only.

  3. 3 hours ago, formerfed said:

    I bet this is correct as stated.  Ryan and his team are all sharp.  Just a guess but determining this facilitates “defense against....” is a justification.  Regardless of my speculation, I’m sure this is what they intended.

    We’re speculating and there’s no need. The determination is in place.

    Just stop. The COVID-19 pandemic is not a cyber, nuclear, biological, chemical, or radiological attack. That authority is inapplicable.

    1 hour ago, formerfed said:

    If I were a CO and had this in hand, I would proceed without questioning.  

    I would say knock yourself out. Just don't insult people's intelligence by claiming you had the legal authority to proceed based on FAR 12.102(f).

  4. You're misinterpreting paragraph (e)(1)--

     

    Quote

     

    (e)

    (1) Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause, the Contractor is not required to flow down any FAR clause, other than those in this paragraph (e)(1) in a subcontract for commercial items. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause-

     

     

    That doesn't mean you are required to flow down everything in (e)(1) to a commercial subcontract. The purpose of the paragraph is to limit the flow down requirements of the applicable clauses in (a)-(d) to commercial subcontracts. So, for commercial subcontracts, you would only flow down a clause listed in (e)(1) if it were incorporated in (a)-(d).

  5. Unless there is a new authority they are relying on, it seems that they are confused. While the authority to use SAP up to $13M for acquisitions of commercial items covers response to national emergencies, the authority to treat any acquisition as an acquisition of commercial items does not. FAR 13.501:
     

    Quote

     

    (c) Under 41 U.S.C. 1903, the simplified acquisition procedures authorized in this subpart may be used for acquisitions that do not exceed $13 million when-

               (1) The acquisition is for commercial items that, as determined by the head of the agency, are to be used in support of a contingency operation; to facilitate the defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to support a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate provision of international disaster assistance; or to support response to an emergency or major disaster, or

               (2) The acquisition will be treated as an acquisition of commercial items in accordance with 12.102(f)(1).

     

     FAR 12.102(f)(1):

    Quote

    Contracting officers may treat any acquisition of supplies or services that, as determined by the head of the agency, are to be used to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack, as an acquisition of commercial items.

    Nothing about emergency or major disaster.

  6. I think joel's point was that contractors shouldn't expect relief for increased costs under their fixed-price contracts. Relief will have to come from elsewhere. Maybe extraordinary contractual relief or an act of Congress.

  7. 10 hours ago, Sam101 said:

    I take this to mean that in accordance with FAR 31.205-46, a contract can never be FFP since it would be nearly impossible to estimate the true cost of Travel at time of submitting a proposal. And that there is no point of indicating in the contract that the Travel CLIN has a "not to exceed" limit (I always indicate that the Travel CLIN has a NTE limit, although I'm not sure if that is common practice), since if during performance the contractor incurs Travel costs beyond the "not to exceed" amount, the contractor can still bill for Travel costs incurred anyways. 

    And if 31.205-46 is saying that Travel is required to be an allowable cost, I am now beginning to assume that a solicitation can never say that "Travel shall not be reimbursed at all", can it?

    I asked a question. I did not state anything that should lead you to conclude that a contract should never be FFP. If you decide to answer, stop and think about the question before you start writing.

    In reading your posts in this thread and others, I've noticed that you tend to take hard positions that you don't know to be true and leave it to others to correct you. Assuming that you're a beginner, let me suggest a different approach. Think through how you could be wrong before posting. If there's something that you don't understand, ask a question. Be more tentative about your conclusions. Practice intellectual humility. Don't state something is true unless you can prove it to be true.

    Just some advice that you're free to ignore.

  8. 1 hour ago, Sam101 said:

    which means the terms that are in the solicitation, and the terms in the solicitation can be that only transportation is an allowable cost.

    Assuming that contract stated that allowability of costs would be determined in accordance with FAR subpart 31.2, wouldn't that be a FAR deviation?

  9. On ‎3‎/‎14‎/‎2020 at 2:33 PM, formerfed said:

    We scheduled a meeting with NAPA and two very elderly gentleman came in. One was a former Deputy Director of the Bureau of Budget and the other worked in the White House.  He mentioned something about some Truman policy that he drafted.  I looked around the table and everyone was mentally calculating ages.  We later found out one was 89 and the other 91.

    Spring chickens. Mr. Tatigian turns 98 this year and is in his 78th year of federal service.

    https://www.navsea.navy.mil/Media/News/Article/1326404/sarkis-tatigian-honored-for-75-years-of-navy-service/

     

  10. 46 minutes ago, lamkenar said:

    The math turns in to a fixed fee per labor hour construct.  The contractor earns more fee dollars with each hour the deliver.  Therefore there is no incentive for the contractor to manage costs efficiently.  i.e. to do the job for 95,000 hours vs. 100,000.  If they are prudent with the government's budget, they receive less fee and likewise if they are not prudent they get more fee dollars.

    Wouldn't delivering the hours at a lower cost increase the contractor's return on revenue?

  11. 9 minutes ago, formerfed said:

    Going back to my post responded to, I’m saying calls are synopsized in the BPA announcement.  Let’s say “agency plans to competitively award multiple BPAs for widgets and widget support services.  Agency anticipates this covers an annual value of $500,000 with 100 calls and the term of the BPAs are three years.  Historical value of individual orders range from $200 to $30,000 with delivery of four weeks.”

    Doesn’t that cover the intent of synopsizing?

    So one synopsis would cover multiple calls over $25,000?

    I don't think that would be compliant with FAR 5.201(b)(1):

    Quote

     

    For acquisitions of supplies and services, other than those covered by the exceptions in 5.202 and the special situations in 5.205, the contracting officer must transmit a notice to the GPE, for each proposed-

                    (i) Contract action meeting the threshold in 5.101(a)(1);

     

    I interpret that as each call over $25,000 requiring its own unique notice.

  12. On 3/10/2020 at 1:27 PM, formerfed said:

     

    Don,

    I’m saying the initial synopsis covers everything that is within the BPA scope.  The FAR 5.001 definition talks about a contract action but not including actions with the scope.  So no exception is required as long as calls fall within the published scope.

    Or another way of looking at it is assume a BPA is synopsized just like any type contract that involves ordering (except perhaps requirement type).   Orders within scope aren’t synopsized so why should BPA calls that fall within 

    The FAR 5.001 definition says "within the scope of the contract". So if we assume that a FAR part 13 BPA is not a contract, then a BPA call would not be "within the scope of the contract."

    Having said that, it doesn't seem consistent to require a synopsis for a call under a previously synopsized BPA, but not task or delivery orders under a previously synopsized indefinite delivery contract.

  13. On 3/11/2020 at 6:59 AM, C Culham said:

    Specifically to a BPA it just could be whether the terms of the BPA itself establishes a "mutuality of obligation" leading to the fact that the BPA if synopsized would satisfy FAR subpart 5.201.

    I don't understand Carl. Assuming a given FAR part 13 BPA does not meet the definition of "contract" at FAR 2.101, what exception to the synopsis requirement would apply to a call over $25,000?

  14. 6 hours ago, Retreadfed said:

    Therefore, the FAR definition of what is a contract must be applied when interpreting the CAS.  Put another way, when the CASB uses the term contract, it means contract as defined in the FAR.

    FAR 2.101(a) states:

    Quote

     

    A word or a term, defined in this section, has the same meaning throughout this regulation (48 CFR chapter 1), unless-

               (1) The context in which the word or term is used clearly requires a different meaning; or

               (2) Another FAR part, subpart, or section provides a different definition for the particular part or portion of the part.

     

    Nothing that I know of extends the applicability of the definitions in FAR 2.101 to 48 CFR Chapter 99.

    6 hours ago, Retreadfed said:

    FAR 52.216-18 is required to be included in IDIQ contracts.  That clause says that orders under the IDIQ contract are subject to the terms and conditions of the IDIQ contract.  For CAS covered contracts, the CASB has promulgated certain clauses that are to be used in CAS covered contracts.  One of those clauses has been incorporated into the FAR as 52.230-2.  That clause applies to contracts subject to full CAS coverage and begins "Unless the contract is exempt under 48 CFR 9903.201-1 and 9903.201-2, the provisions of 48 CFR Part 9903 are incorporated herein by reference and the Contractor, in connection with this contract, shall-"comply with all applicable standards and file a disclosure statement.  Clearly, this language makes the remainder of the clause applicable if the "contract" is not exempt from CAS applicability.  By operation of FAR 52.202-1, contract as used in 52.230-2 includes task orders.  Thus, to parse 52.230-2 and 52.202-1, the former must be interpreted to read, "Unless the task order is exempt under 48 CFR 9903.201-1 and 9903.201-2, the provisions of 48 CFR Part 9903 are incorporated herein by reference and the Contractor, in connection with this task order, shall."

    This is the same argument that I use--so I am in violent agreement. I just didn't see what the definitions in FAR 30.001 had to do with anything.

    Have you had any success with this argument?

  15. 2 hours ago, Sam101 said:

    I'm confused, what is the point of synopsising a part 13 BPA call order on the GPE if only the BPA holder(s) can quote on the call order RFQ anyways? What good will it do to have a synopsis that the government intends to solicit from the BPA holder(s) when the company that does not hold that BPA can't quote on the call order RFQ anyways?

     

    There's no exception for "it would be pointless".

  16. 12 minutes ago, formerfed said:

    No exception.  The entire procurement is synopsized upfront including description of sduuplies/services, estimated values, ordering procedures, etc.

    FAR 5.201(b)(1) states:

    Quote

     

    (b)(1) For acquisitions of supplies and services, other than those covered by the exceptions in 5.202 and the special situations in 5.205, the contracting officer must transmit a notice to the GPE, for each proposed-

                    (i) Contract action meeting the threshold in 5.101(a)(1);

                    (ii) Modification to an existing contract for additional supplies or services that meets the threshold in 5.101(a)(1); or

                    (iii) Contract action in any amount when advantageous to the Government.

     

    "Contract action" is defined at FAR 5.001:

    Quote

    “Contract action,” as used in this part, means an action resulting in a contract, as defined in subpart  2.1 , including actions for additional supplies or services outside the existing contract scope, but not including actions that are within the scope and under the terms of the existing contract, such as contract modifications issued pursuant to the Changes clause, or funding and other administrative changes.

    Unless you want to argue that a call is not a contract action, then a call over $25,000 under a BPA would require a synopsis.

    16 minutes ago, Krimz said:

    That’s initially what I thought myself, but then why is there an exception for TOs cut from IDIQs?

    Because a task order is a contract action and would require a synopsis if it weren't for the exception.

  17. 5 hours ago, Witty_Username said:

    The concept of "rotating" sources likely comes from the FAR Part 13.203 which says micropurchases [including BPA calls] "shall be distributed equitably among qualified suppliers", effectively rotating them among BPA holders if there are multiple, so it is only applicable to micropurchase calls.

    You need to read the decision Carl posted. The DEA awarded multiple BPAs on a competitive basis, then rotated calls in excess of the micro-purchase threshold among BPA holders. The GAO said that met the competition requirements of FAR part 13. This could theoretically be done for calls up to $13 million.

    4 hours ago, Krimz said:

    Personally, I do not understand the point of BPAs except to authorize not-warranted individuals to place calls.  Calls over $25k would have to be synopsized anyway; and under $25k you need only three quotes, for which you do not need a BPA, but can solicit oral quotes.

    That's a significant benefit. The contracting office doesn't have to keep processing purchase orders.

    4 hours ago, Krimz said:

    So, how would you place a call up to the SAT without synopsizing to the GPE?  I don't think you can.  Does that mean you must issue a proper solicitation for a priced BPA and then evaluate vendors?  And if you're contemplating orders up to the SAT (or $7 million for commercial items), what is the benefit of a BPA over an IDIQ?

    You would have to synopsize over $25k, unless there were an exception. The synopsis would have to say that "all responsible sources may submit a quotation which shall be considered by the agency." So, you'd have to have something for a vendor to respond to (like a specification or SOW). You could also say that the Government will consider established BPAs when making the award decision, so vendors with BPAs need not submit a quotation.

    Awarding an IDIQ contract is not a simplified acquisition method--establishing a BPA is. So, the question should be why award an IDIQ contract when using SAP?

  18. @Retreadfed,

    I'm not connecting the dots.

    The definitions at FAR 30.001 recognize task and delivery orders as contracts. Check.

    Kingdomware held that task and delivery orders are "contracts" as defined at FAR 2.101. Check.

    Therefore, CAS applicability for IDIQ contracts is determined at the order level?

    I don't see how you get to that conclusion by deduction. It seems like a hopeful inference.

×
×
  • Create New...