Don Mansfield

metteec,

I don't know about other agencies, but under the DoD-SBA Partnership Agreement the SBA remains the prime contractor when a direct award is made. The fact that agencies can make a direct award has no effect on the contractual relationship. See DFARS 219.800(a).

brian,

An interagency agreement is not a contract. "Acquisition" is acquiring by contract.

I find all of that to be ambiguous in light of FAR 12.102(a) and Subpart 19.8, and I don't see how the FAR councils have the authority to limit the applicability of the 8(a) program, so I would award an 8(a), sole source, T&M contract for commercial items in accordance with FAR Subpart 19.8 and 6.302-5 and let the chips fall where they may. I wouldn't engage in the rigamarole that brian described. If my bosses told me that I couldn't do it, then I wouldn't do it.

Others can agonize over it as they see fit.

Alternatively, one could argue that FAR 12.102( a ) does not apply to 8( a ) contracts pursuant to FAR 12.102( e )(5). Given that FAR 52.212-5 does not include any of the required 8( a ) clauses, there is some support for this argument.

Assuming the applicable inspection clause is FAR 52.246-5, Inspection of Services--Cost Reimbursement, see paragraph ( d ):

If any of the services performed do not conform with contract requirements, the Government may require the Contractor to perform the services again in conformity with contract requirements, for no additional fee. When the defects in services cannot be corrected by reperformance, the Government may—

(1) Require the Contractor to take necessary action to ensure that future performance conforms to contract requirements; and

(2) Reduce any fee payable under the contract to reflect the reduced value of the services performed.

David,

I don't understand what you're asking. Can you provide a specific example of what you're talking about?

Boof,

Which Inspection clause was in the contract?

PMDave,

Take a look at Engineering & Professional Services, Inc., B-289331, January 28, 2002. If this is analogous to your situation, then I think the ECP process you envision would be ok.

1. Is the contract an IDIQ or requirements contract?

2. Does the contract require the contractor to perform "modifications"? If so, does the contract contain a line item for "modifications"?

3. Did the original solicitation advise offerors that the contractor would be required to perform "modifications"?

4. Are "modifications" considered repair?

Knewbs,

See 13 CFR 124.510( a ) and 13 CFR 125.6( a ):

§ 124.510 What percentage of work must a Participant perform on an 8(a) contract?

(a) To assist the business development of Participants in the 8(a) BD program, an 8(a) contractor must perform certain percentages of work with its own employees. These percentages and the requirements relating to them are the same as those established for small business set-aside prime contractors, and are set forth in § 125.6 of this title.

§ 125.6 Prime contractor performance requirements (limitations on subcontracting).

(a) In order to be awarded a full or partial small business set-aside contract, an 8(a) contract, a WOSB or EDWOSB contract pursuant to part 127 of this chapter, or an unrestricted procurement where a concern has claimed a 10 percent small disadvantaged business (SDB) price evaluation preference, a small business concern must agree that:

(1) In the case of a contract for services (except construction), the concern will perform at least 50 percent of the cost of the contract incurred for personnel with its own employees.

(2) In the case of a contract for supplies or products (other than procurement from a non-manufacturer in such supplies or products), the concern will perform at least 50 percent of the cost of manufacturing the supplies or products (not including the costs of materials).

(3) In the case of a contract for general construction, the concern will perform at least 15 percent of the cost of the contract with its own employees (not including the costs of materials).

(4) In the case of a contract for construction by special trade contractors, the concern will perform at least 25 percent of the cost of the contract with its own employees (not including the cost of materials).

Likewise I am sure the new change in wording for the limitation matter is causing SBA some churn as they figure out its application to all the setaside programs.

The change in wording will not affect the HUBZone and SDVOSB programs. For these programs, "similarly situated entities" already count toward the prime's performance. See FAR 52.219-3( d ), FAR 52.219-4( d ), and FAR 52.219-27( d ).

Don is apparently saying that the underlying statutory basis for the requirement has changed, therefore until the implementing regulations catch up, there is some type of waiver process available. Am I correct? Does the underlying law provide for a process to implement into the CFR's? What is that process, Don?

The underlying statute authorizes the administrator to amend the limitation on subcontracting rules as they apply to small business set-asides and 8(a) acquisitions (see Knewbs post above). As far as asking for permission to deviate from the existing SBA rules, I don't know what the standard process is. As I wrote to Retreadfed, I assumed it was something that could be done.

I'm interested in the dialog on this. I've always found it weird that we pass laws that would in turn change various clauses in the FAR, yet we don't follow the law at the time until the FAR Council finally gets around to implementing it.

Yes, it is a strange phenomena. Sometimes laws are passed and the executive branch is quick to implement it. If I recall correctly, the authority to do SDVOSB set-asides and sole source actions was implemented within months of the authorizing legislation. On the other hand, it was over ten years before we saw a rule implementing WOSB set-asides in the SBA regulations from the time the authorizing legislation was passed. I assume politics has something to do with it.

Don, do you think a deviation is possible since the Small Business Adminstration is the agency with primary jurisdiction over the Small Business Act and its regulations impose the limitation on subcontracting currently in place. In other words, wouldn't you be attempting a deviation to the SBA's rules?

Yes, I think that you would be deviating from the SBA's rules. I'm assuming that the SBA can authorize deviations from its regulations. Having said that, I couldn't find any statement to that effect in Title 13 of the CFR.

What agency do you work for?

Yes, once implemented, this would change things. I don't think you'll see this change in the FAR in the next couple of months, though. I didn't see an open FAR case specifically implementing this section of the NDAA.

If you want to allow other 8(a) concerns to count toward the 50% requirement, you could request a deviation from FAR 52.219-14. It shouldn't be that hard to get given the language of the NDAA.

Knwebs,

Only the prime's performance counts toward the 50%. See http://www.gao.gov/assets/380/379065.pdf.

Note that the statute does not say that a demand or assertion is not a claim until certified. It says that certain "claims" must be certified. The FAR councils and the boards and courts have screwed it up by saying that a demand or assertion is not a claim until certified, when what they should have said is that the right to a CO final decision and the right to appeal a CO final decision are not in effect until the claim has been certified. That is the important point.

Just to clarify, the FAR councils say that a demand or assertion for payment exceeding $100,000 is not a claim until certified. Are you saying that the boards and courts have said that a demand or assertion for payment, adjustment, or other relief exceeding $100,000 is not a claim until certified?

joel,

I think the most relevant dictionary entry at m-w.com is: "to try to acquire or gain." I'll go with that.

In case you missed it, the Wifcon calendar shows that our esteemed Webmaster, Bob, turned 64 today. Please join me in wishing him a happy birthday and saying thank you for making Wifcon what it is.

Ok. Experiment's over. I have my data--10 "yes" votes and 2 "no" votes. Thank you all for participating. Commence free-for-all.

Great, thank you to everyone who responded. So that's nine "yes" votes to zero "no" votes. Ok, now for the second part of the experiment. I'm going to change the definition and the rule in my original post and ask another yes/no question. Here goes:

Definition: “Claim” means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, (1) the payment of money in a sum certain, (2) the adjustment or interpretation of contract terms, or (3) other relief arising under or relating to the contract. However, a written demand or written assertion by the contractor seeking the payment of money exceeding $100,000 is not a claim under the Contract Disputes Act of 1978 until certified as required by the Act.

Rule: Contractor claims exceeding $100,000 shall be certified as required by the Contract Disputes Act.

Question: Is a written demand by the contractor seeking, as a matter of right, an adjustment of the contract price exceeding $100,000 (but not seeking payment) a "claim" if it is not certified? Yes or no?

Please don't respond with court/board cases, excerpts from articles, commentary on my question, etc. (yet). Don't look outside this box. Base your answer solely on what is written in this box. You can change your answer later based on information outside this box and that would not make you a hypocrite. Apply the same logic that you used when responding to the first question and see if you arrive at the same answer. Just looking for a yes or no, but feel free to provide an explanation if you'd like.

I wanted to try out a new way to explain a concept to my students, so I thought I'd try it out here. I'm going to give you a definition of a word and a rule that uses the defined word. Then, I'm going to ask a yes/no question. Here goes:

Definition: "Driver" means someone who drives a (1) car, (2) truck, or (3) motorcycle. However, someone who drives a car is not a "driver" unless they have a license.

Rule: All drivers must have a license before driving on any public road.

Question: Is someone who drives a truck on a public road without a license a "driver"? Yes or no?

Don't try to figure out what I'm getting at, just answer yes or no. You don't have to explain, but you can if you want. I'm not trying to set you up or embarass you. I'm just asking you to do me the favor of providing your answer. Thank you in advance.

I've used those factors in source selection, too. I agree with everything napolik wrote.

Vern, I was wondering what career fields do you recommend for bright young people as opposed to 1102? What if someone had approximately 10 years of contracting experience but was looking for a change? Thanks.

How about Government contracts attorney?