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Don Mansfield

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Everything posted by Don Mansfield

  1. That's wrong. The only FAR clauses required in a commercial solicitation are FAR 52.212-4 and -5. The requirement for CCR registration is stated at FAR 52.212-4(t).
  2. Mr. Warren, If a contract contains the Indefinite Quantity clause (FAR 52.216-22), then the contractor is required to perform if the Government issues a task or delivery order, provided the Government complies with the Ordering (FAR 52.216-18) and Order Limitations (FAR 52.216-19) clauses. This requirement is in no way conditioned on the method the Government uses to select the contractor for an order under a MATOC (i.e., competitively or noncompetitively). So to answer your question, if the Government issued an order to a MATOC holder, they would have to perform whether the Government provided each offeror a fair opportunity to compete for the order or issued the order noncompetitively. If the Government issued an order to a MATOC contractor noncompetitively and no exception to fair opportunity applied, I don't know if that would then give that contractor the right to refuse the order. While other MATOC contractors could potentially file a claim or protest for the Government's failure to provide a fair opportunity, I have a hard time imagining what the MATOC contractor who received the order could argue. I would be surprised to see such a claim or protest.
  3. You have a prime contract or are you competing to win a contract?
  4. In case you missed it, I've started analyzing myth-information in my blog.
  5. No, the claim does not have to be paid for it to be a false claim. Presentment is sufficient. There are other considerations such as specific intent and materiality. You should really consult with an attorney.
  6. dwgerard, When you awarded MSMO contracts, did you consider the options to be priced or unpriced?
  7. Vern, I don't believe that NAVSEA's MSMO contracts violate the CPPC prohibition because fee is not paid as a percentage of incurred cost. At award, the parties have agreed to a percentage for base and award fee. After award and before the option is exercised, the parties agree to an estimated cost for that option and apply the predetermined percentages to determine the amount of base fee and the size of the award fee pool. After this negotiation, the parties will have agreed to an estimated cost, a base fee amount (expressed in dollars), and the size of the award fee pool (expressed in dollars). The base fee and award fee pool amounts remain the same regardless of the contractor's incurred cost. Would you say that such an option is unpriced? If so, how does it fail to meet the criteria at FAR 17.207(f)(3)?
  8. Navy, When the contract is awarded, the contract does not specify an amount at which the option may be exercised. All the parties have agreed to is the percentage for the base and award fee. After award and before exercise of an option, the parties agree to an estimated cost for that option and apply the predetermined percentages to determine the amount of base fee and the size of the award fee pool. I'm not suggesting that NAVSEA's interpretation of FAR 17.207(f)(3) is correct, because I'm not sure I know what it means. It doesn't require that an option in a cost-type contract state an estimated cost to be "exercisable at an amount specified in or reasonably determinable from the terms of the basic contract." It only requires that i) the option contain a fixed or maximum fee or (ii) the fixed or maximum fee amount is determinable by applying a formula contained in the basic contract.
  9. Vern, That's a good question and one that I have been thinking about lately. I'm not sure if they are unpriced options. Consider FAR 17.207(f)(3): NAVSEA would argue that their options meet those criteria. I don't know that they're wrong.
  10. If the preconceived notions that our students are bringing to the classroom is any indication, there's a good deal of myth-information being spread regarding indefinite-delivery indefinite-quantity (IDIQ) contracts. The one belief that I want to focus on today deals with obligating the contract minimum upon award of an IDIQ contract. This belief usually stems from a fundamental misunderstanding of the difference between creating and obligation and recording an obligation. The difference is explained in Chapter 7 of the GAO Redbook (p. 7-8): [bold added]. When a contracting officer awards an IDIQ contract, she has obligated the Government to purchase the contract minimum. She has created an obligation. When that same contracting officer cites a long line of accounting (containing the appropriation citation) and a dollar amount on the award document, she has recorded an obligation (when she distributes the award document to her accounting office, they will record the obligation in the agency's books). Let's say that the contracting officer awards the IDIQ contract, but does not record the amount of the Government's obligation on the award document. What has happened? An obligation has been created, but has not been recorded. Is there a problem with that? (Yes, go back and read the bolded sentence in the citation that I provided above). The problem is that the contracting officer has caused her agency to violate the ?recording statute,? 31 USCA ? 1501, which sets forth the criteria for recording an obligation as follows: In the second example I provided, there exists a binding document that meets the criteria of (1)(A) and (B.) (the IDIQ contract), but no obligation would have been recorded. The agency would have underrecorded its obligations. That's bad. Chapter 7 of the GAO Redbook (p. 7-6) states the following regarding under- and overrecording of obligations: I always urge my students to take a course in Federal Appropriations Law at some time in their career--the sooner the better. Unlike Federal Acquisition Law, where the acquisition team is permitted to "assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority", there is very little flexibility when it comes to applying the rules Federal Appropriations Law.
  11. I've seen contracts with option CLINs that only state a fee percentage. The estimated cost for the options is not negotiated until after the contract is awarded. For example, NAVSEA's multi-ship multi-option (MSMO) contracts for ship repair, which are CPAF contracts, contain numerous option CLINs that look like this: Estimated Cost: $ Base Fee: 0% Award Fee Pool: 10% I'm not advocating stating fee as a percentage, just pointing out that agencies do it.
  12. Yes. Did you not believe me when I answered you the other day? Here's the instruction for the SF 294:
  13. Not if the fixed fee was 6% of estimated costs. However, if the contract were written to say that the contractor would be paid 6% of incurred costs, then you would have an illegal CPPC arrangement.
  14. So you didn't tell offerors how you were going to evaluate foreign offers in the solicitation (which would be done by including the appropriate Part 25 clause and provision) and now you are wondering how to evaluate a foreign offer that you have received. Do you see a problem with that? Don't you think you should amend your solicitation to include the appropriate Part 25 clause and provision?
  15. Ok. Read FAR 19.702: No exception for "foreign businesses" (whatever that means). Want more proof?
  16. Phillygal, Why should you award at the offeror's estimated cost? Wouldn't it make more sense to award at the most probable cost? Did you read the citation that I provided?
  17. I don't think so. I think you can, and probably should, award a cost-reimbursement contract at the most probable cost. Here's an excerpt from Formation of Government Contracts, Third Edition, by Cibinic & Nash (p. 1107-8):
  18. Bailers, What Part 25 clauses/provisions did you include in your solicitation?
  19. For what purpose are you counting? If you are reporting on an SF 294 or 295 (or using eSRS), the full value of the subcontract would be reported in both the WOSB category and the SDB category (it would also be reported in the "small business" category).
  20. First, I'd like to thank everyone that contributed to my thread seeking myth-information in federal contracting. I culled another 20 pieces to add to the seven that I was able to come up with. If you come across any or are able to think of any more, please add to the thread or send me a message. Second, I'd like to comment on something that Retreadfed wrote in the aforementioned thread: While I hadn't thought about it, I like the distinction that Retreadfed made. Myth-information exists due to ignorance of the rules. If you want to read about stupidity, there's an excellent compilation of it in DoD's Encyclopedia of Ethical Failures (don't miss the 2008 update). Now, back to the point of this entry. Vern Edwards contributed the following nugget to the misinformation thread: No doubt this belief is the result of overlawyering and/or taking the "better safe than sorry" approach to source selection. Let's take a look at what the FAR says concerning this subject. FAR 15.201(f) states: [bold added]. As you can see, the scope of the information that must be shared with all offerors when it is shared with one offeror prior to receipt of proposals is much narrower than "anything that you say." However, it is common practice at some contracting activities to record every question received and answer provided regarding an RFP (no matter how mundane) in an amendment and issue to all prospective offerors (the better safe than sorry approach). While such an approach is compliant, it is not required and makes for long amendments and the excessive provision of information. Regarding what can be said during discussions, FAR 15.306(d)(1) states: [italics added]. Tailored. This necessarily means that you are not required to discuss the same areas with each offeror. In Trident Sys., Inc., Comp. Gen. Dec. B-243101, the rule was stated as follows: Exchanging information with offerors involves thoughtful judgement and discretion. Unlike some other areas of contracting, it is not a mechanical exercise governed by a simple mandatory rule. Those who shy away from using their judgment and discretion (probably to avoid criticism) are always in search of mandatory rules (even if none exist) such as "During a source selection, anything that you say to one offeror you must say to all other offerors." This contributes to the persistence of myth-information. Don't be one of those people.
  21. pmh, Does this help? 45.000 Scope of part. This part prescribes policies and procedures for providing Government property to contractors, contractors? management and use of Government property, and reporting, redistributing, and disposing of contractor inventory. It does not apply to property under any statutory leasing authority, (except as to non-Government use of property under 45.301(f)); to property to which the Government has acquired a lien or title solely because of partial, advance, progress, or performance-based payments; to disposal of real property; or to software and intellectual property. [italics added].
  22. Sure, let me give you an example. Let's say last year I had a competitive procurement for the purchase of 1000 widgets. Three responsible offerors, competing independently, submitted priced offers that satisfied the Government?s expressed requirement, award was made to the offeror whose proposal represented the best value, price was a substantial factor in source selection, and there was no finding that the price of the otherwise successful offeror was unreasonable. In other words, I had adequate price competition pursuant to FAR 15.403-1©(1)(i). The contract price was $700,000 ($700/widget). This year I have the same requirement for 1000 widgets. Instead of having a competition, I'm going to do a HUBZone sole source to Contractor A in order to help meet my agency's small business goals. I receive a price from contractor A and price analysis clearly demonstrates that the proposed price is reasonable in comparison with the contract price for last year's contract, adjusted to reflect changes in market conditions, economic conditions, quantities, and terms and conditions. In other words, I have adequate price competition pursuant to FAR 15.403-1©(1)(iii). Make sense?
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