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Don Mansfield

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  1. Don Mansfield
    I'm not sure I understand. If the change that the Government wants would increase the cost of performance, why wouldn't you want to negotiate a change in the amount of fixed fee?
  2. Don Mansfield
    It's certainly easy to read.
  3. Don Mansfield
    brian, You must be looking at an old FAR. There is no FAR 5.207( c )(15)(ii). Not on the FARSite, Not on the Acquisition Central site.
  4. Don Mansfield
    I think that the modification can be unilateral, based on the wording of FAR 52.232-22( b ): "The parties contemplate that the Government will allot additional funds incrementally to the contract up to the full estimated cost to the Government specified in the Schedule, exclusive of any fee. The Contractor agrees to perform, or have performed, work on the contract up to the point at which the total amount paid and payable by the Government under the contract approximates but does not exceed the total amount actually allotted by the Government to the contract." Think of it this way, what if the contractor refused to sign the bilateral modification allotting the additional funds? I think that the Government could still compel performance by unilaterally allotting the funds. As far as what is "proper", I don't think it's a big deal.
  5. Don Mansfield
    brian, When an agency decides to pursue a sole source acquisition, they still must give others a chance to compete. See FAR 5.207( c )(16)(ii). Not sure if you meant it, but your post is one of the better examples of free verse that I've seen in this forum. Someone with some musical talent could make a decent folk song from your post.
  6. Don Mansfield
    The FAR doesn't contain any clauses or provisions implementing trade agreements for services--only supplies and construction.
  7. Don Mansfield
    Yes, I did. And, no, they were not. However, I don't necessarily see a problem with this. FAR 1.301( b ) only requires publication of proposed regulations in the Federal Register "when they have a significant effect beyond the internal operating procedures of the agency or have a significant cost or administrative impact on contractors or offerors." The Paperwork Reduction Act adds a requirement for rulemaking if the regulation would require a collection of information from 10 or more members of the public (see FAR 1.106). I assume the parts of the supplements that met these criteria were published in the Federal Register and the parts that didn't were not. The parts that were not would have the same status as the DFARS PGI. Of the FAR supplements I mentioned, I'm most familiar with the NMCARS. I would say that most of the content of the NMCARS does not meet the criteria for rulemaking. It's a lot of delegation of authority and send this document here for approval before sending it there.
  8. Don Mansfield
    I learned something yesterday about FAR Supplements that made me feel kind of stupid. I had always thought that a given chapter (other than Chapter 1) of Title 48 of the CFR contained a given agency FAR supplement in its entirety. However, that is not always true. For example, if you look at the the Army FAR supplement (AFARS) at the Hill AFB FARSite, you will see parts 5101, 5102, 5103, all the way up to 5153. However, most of the AFARS is not actually contained in Title 48, Chapter 51, of the CFR. The only parts in the CFR are 5108, 5119, 5145, and 5152, and only portions of these AFARS parts appear. The same thing goes for the Navy-Marine Corps Acquisition Regulation Supplement (NMCARS)--only portions of it are contained in the CFR. The Air Force FAR Supplement (AFFARS) does not appear in the CFR at all--Chapter 53 of Title 48 is reserved. Just to be sure, I searched the Federal Register for unique phrases in the AFARS, NMCARS, and AFFARS (but not in the CFR) and, sure enough, they never appeared in the Federal Register. Just thought I'd share in case you didn't already know this.
  9. Don Mansfield
    I would say yes. If you are soliciting more than one source, it's a competitive solicitation.
  10. Don Mansfield
    rios0311, The pricing may stay the same, but the performance period would not. If you're talking about awarding a new contract that would be subject to CICA (not an order under an existing contract), then I am out of ideas.
  11. Don Mansfield
    rios0311, In order to obtain the required services at this point, you will have to solicit a new offer from the contractor, correct?
  12. Don Mansfield
    I assume that, if exercised, the option would have begun 45 days ago? And the contractor has not been performing for the last 45 days? If that's true, then it sounds like you would have to renegotiate the terms of the option. I think that you have the wrong idea if you think that Congress had in mind the punishment of agencies for failure to exercise options on time when passing CICA. Think of it this way--an option is an offer that may or may not be accepted by the Government. If the Government fails to exercise an option in strict compliance with the option clause, then they have not accepted the offer. As such, the Government will have to solicit new offers if they still have a requirement for the supplies or services. CICA requires that these new offers be solicited using full and open competition unless an exception applies.
  13. Don Mansfield
    Generally, the Government must exercise options in strict compliance with the option clause in order for the exercise to be valid. However, there are cases where the contractor was found to have waived the "strict compliance" rule by performing without objection. If the "strict compliance" rule can be waived implicitly, then I presume it can be waived explicitly. As such, if you can get the contractor to agree to waive its right to strict compliance with the option clause, then I think you can exercise the option. However, if the contractor wants to enter into negotiations for the terms of the remaining options, then I think that would be a sole source negotiation requiring justification. A risk that the Government runs with an invalid option exercise is that the contractor can claim that the exercise was a constructive change and, as such, request an equitable adjustment. This is why I suggest getting an explicit agreement releasing the Government from any such claims up front.
  14. Don Mansfield
    brian, What would be an example of an acquisition of commercial items directly from another Federal agency?
  15. Don Mansfield
    Thanks for the history lesson, Vern.
  16. Don Mansfield
    Vern, Were set-asides over the small purchase threshold considered "negotiated" pre-1984, even if sealed bidding was used? Also, check your answer to "What is negotiation?" in The Source Selection Answer Book (2000 edition).
  17. Don Mansfield
    Let me introduce you to the "Would have cost" rule, which dates back (at least) to a 1958 court decision. Courts and boards have consistently held that the proper starting point for pricing deleted work is the best estimate at the time of the change. Read more about it under "Deductive Changes" (p.663) here:
  18. Don Mansfield
    H2H, I say it's negotiated based on FAR 15.000, which states: "A contract awarded using other than sealed bidding procedures is a negotiated contract (see 14.101)." I interpret that to mean that if you did not use the procedures in FAR part 14 to award the contract, then it's a negotiated contract. Actual negotiation need not take place.
  19. Don Mansfield
    That's one way to do it. If you are reasonably confident about your estimate, I think that approach would be fine.
  20. Don Mansfield
    The use of "total value" makes things murkier. I tend to agree with dcarver's common-sense interpretation, but if someone were to argue that cost-reimbursement task orders should be counted toward the "total value" I would not be able to definitively prove them wrong. That would be consistent with FAR 1.108( c ).
  21. Don Mansfield
    Progress payments are contract financing payments.
  22. Don Mansfield
    The argument fails to address the Recording statute. Let's say the CO notifies the contractor that funds are available based on the belief that funds just have to be appropriated, not apportioned, to comply with FAR 52.232-18. The contractor would then be required to deliver the supplies and/or perform the services specified in the contract. As such, an obligation has been created. Pursuant to the Recording Statute, an obligation must be recorded by the agency in the amount of the obligation that was created. When you put a line of accounting on a contract document and a dollar figure, you are communicating the amount of the obligation created and to which appropriation it should be charged. The agency accounting office uses this information to record the obligation in the agency's books. In your scenario, it sounds like an obligation would be created but not recorded. Those making the argument may come back with "We'll just record the obligation later--when the funds come in." Agency financial management policies may place limits on how much time may pass between the creation of an obligation and the recording of an obligation. DoD adheres to the "Ten-Day Rule" in Volume 3, Chapter 8, 080301( A ) of the DoD Financial Management Regulation.
  23. Don Mansfield
    I agree with dcarver. FAR 32.104 refers to contract price--not contract value. The FFP CLIN has a price of $2 million. The CPFF CLIN has an estimated cost and a fixed fee of $8 million--not a price.
  24. 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).
  25. Don Mansfield
    brian, An interagency agreement is not a contract. "Acquisition" is acquiring by contract.
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