Don Mansfield

If you were pursuing an 1102 position in DoD, you could get a waiver from the Component Acquisition Executive. See DoDI 5000.66:

E6.1.4. Waiver. In exceptional circumstances, the CAE may waive qualification requirements for current DoD employees or members of the Armed Forces if the CAE determines that the individual possesses significant potential for advancement to levels of greater responsibility and authority, based on demonstrated job performance and qualifying experience. For any current DoD employee or member of the Armed Forces who has not occupied an 1102 or similar military occupational specialty, a waiver of qualification requirements must be approved prior to appointment to an 1102 position or similar military occupational specialty. Process waivers according to the Desk Guide for AT&L Workforce Career Management and DoD Component procedures.

I pulled the final rule from the Federal Register on 29 Jun 12 and furnished it to my supervisory contracting officers asking if we should implement it by adding the provisions IAW the prescriptions. I was told emphatically that until our HQ told us what to do, that we were not to take any action prescribed in the final rule. I find this amazing. The final rule is a final rule - the DFARS has been updated. We are a DoD agency. Now we have to wait until our HQ tells us to do what the DFAR update already tells us to do and until then, we are operating without the directions prescribed by the new provisions.

That's what you get for asking.

If the BAA provision is in the solicitation then only BAA compliant product can be bid without receiving the evaluation penalty – regardless if the items are commercial IT.

Not necessarily. The evaluation factor wouldn't be applied to a low offer that was a noneligible offer if 1) there were no domestic offers or 2) there is an eligible offer that is lower than the lowest domestic offer.

I have a technical question regarding the June 6 "Class Deviation." From what FAR/DFARS section or requirement is DoD deviating? Could it be that this is another DPAP Policy memo that has been issued in the guise of a deviation?

Sometimes DPAP issues things that they call "class deviations" that are technically not deviations at all. Another example is Class deviation 2012-O0006, Update to Accelerated Payments to Small Business. Conversely, DPAP sometimes issues things they call "policy memos" that are really class deviations. I don't know why they do this.

I know of one Navy contracting activity that uses the TIs as you described. The funding for each TI is added to the task order via modification. If not for the requirement for fair opportunity, the activity would not conduct business that way.

From what I know of these creatures, technical direction letters (TDLs) are used to specify the work to be performed under the overarching IDIQ task order. In effect, the TDL is a task order under a task order under an IDIQ contract.

I'm not aware of any such decisions. Let's give it another 2-3 years.

I didn't read your first post carefully, but my answer is still the same. The FY11 funds have been appropriated (by Congress) and, since they are R&D, are still available for obligation in FY12. No Anti-Deficiency violation because you're not making an obligation in advance or in absence of an appropriation. You have a bona fide need in FY12 that you are fulfilling with funds available for obligation in FY12. No bona fide needs problem.

What do you think you may be doing wrong?

Assuming that you will be using FY12 funds, then I see no violation of either the Anti-Deficiency Act or the bona fide needs rule. You are not obligating funds that have not been appropriated and you are using FY12 funds for a bona fide need of FY12.

What is the period of performance?

It's not required by the FAR or DFARS. Your organization may require it for some reason.

That's consistent with FAR 19.203( c ).

The GAO has also expressed problems with just using fixed unit prices and estimated quantities to compare overall price reasonableness because those quantities may not actually represent realistic labor mixes and quantities on real task orders.

If the estimated quantities do not realistically reflect the amount of work to be ordered, then the GAO will have a problem. See AirTrak Travel, Comp. Gen. Dec. B-292101, 2003. However, if the estimates are realistic, the GAO should not have a problem.

Whether using sealed bidding or competitive negotiation, you are required to evaluate price or cost. There are two primary methods for evaluating price when the quantity of work is unknown (like in an IDIQ)--the sample task method and the estimated quantities method. I assume that "seed project" is your organization's vernacular for using the sample task method. Under the sample task method, the solicitation will require offerors to submit prices for a typical requirement to be ordered under the IDIQ. The requirement may be real or fictional. The offeror's prices for the sample task are then used in making the source selection decision in a competitive negotiation.

Alternatively, can use the estimated quantities method. Under this method, agencies can normalize certain cost elements such as labor hours and material costs by stating in the solicitation that offerors must use the prescribed amounts of labor hours and material in developing their proposed prices. There typically is no sample task when using this method.

Some agencies prefer sample task, others prefer estimated quantities. Personally, I prefer estimated quantities. Whichever method you use, some element of the offeror's price must be binding to pass muster at the GAO.

For more on this, I suggest you read "EVALUATING PRICE OR COST IN TASK ORDER CONTRACTS" in the November 2005 issue of the Nash & Cibinic Report.

_{I don't know of any, but I'm somewhat ignorant in the area of Federal Supply Schedules. The only potential liability for the contractor that I see is if the contract contains a price reduction clause that is triggered if one Government customer receives a better price than another. Given the last sentence at FAR 8.405-4, it seems that such a clause would be unusual.}

Will the vendor get himself into trouble by deviating from the BPA pricing to give the new location a discount? In otther words, will the grant of a discount to the client (the DoD agency) from the stated pricing terms of the BPA for a 48 month lease open the vendor up to a complaint that it overcharged for the 60 month lease and thus owes the client a discount for the amount the client paid to date under the 60 month lease in the first location?

Absent specific language in the BPA that covers this situation, then I would say no. BPAs of the type described in FAR 13.303 are typically not contracts--they are charge accounts created to fulfill anticipated repetitive needs of low-dollar value (i.e., "purchases"). As such, the parties are free to deviate from the terms of the BPA when it comes to making individual purchases. The client who paid the BPA price would not have a contractual right to a price reduction just because a different client got a better price under a different purchase. The client may complain, but the vendor wouldn't "owe" them anything.

Was the BPA issued under a Federal Supply Schedule (FAR 8.405-3) or is it a stand-alone BPA (FAR 13.303)?

3556ua,

Uncle Sam needs you! If you are interested in working for the Government, a lot of agencies have intern programs in contracting. I am a graduate of the Navy's program. I teach for DoD now and many of my students are interns of the military departments and the defense agencies. Civilian agencies also have intern programs.

Also, you used the term "contract administration" in your post. That term is generally understood to mean "post-award" in the field of Federal contracting, which would mean those activities that take place after the award of a contract (e.g., performance monitoring, quality assurance, payment, etc.). It's not generally understood to include the solicitation of offers and award of contracts. I'm saying this because, since you're new to the field, I'm not sure if that's what you really meant.

Before you award, you must make an affirmative determination of responsibility that includes verifying that the prospective contractor has a "satisfactory performance record." See FAR 9.104-1(d).

i've re-read Delex and re-read the posts in this thread and still have questions:

if the CO exercised his/her discretion under 16.505( B )(2)(i)(F) and decides to not set aside the task order, even though there are two small businesses under the MAC capable of doing the work at market prices, then (a) must the CO, under the Rule of Two, document his/her decision in order to show that the decision was reasonable and ( B ) if the CO's reasoning for not setting aside the TO is not documented or, even if not documented, is unreasonable, then would one of the small businesses have grounds to protest (assuming the dollar threshhold is met) that the CO abused his/her discretion?

The FAR doesn't require such documentation, but contemporaneously documenting such rationale is probably worth the trouble.

The relevant rule for orders under multiple award contracts is at FAR 16.505( b )(2)(i)(F):

"In accordance with section 1331 of Public Law 111-240 (15 U.S.C. 644®), contracting officers may, at their discretion, set aside orders for any of the small business concerns identified in 19.000(a)(3). When setting aside orders for small business concerns, the specific small business program eligibility requirements identified in part 19 apply."

Also, see FAR 19.502-4( c ). Maybe the CO did not set aside the task order in question because they exercised their discretion not to.

You're welcome.

JandA100811,

Do you understand that some statements of work are performance-based and some are not? Those that are performance-based are called "performance work statements." I'm asking because I suspect you may be thinking that all statements of work are "performance work statements."

I don't believe that the fact that the service will carry over into FY 2013 makes it a bona fide need of 2013.

From p. 5-18 of the GAO Red Book:

There are situations in which it is not only proper but mandatory to use currently available appropriations to satisfy a need that arose in a prior year.¹⁴ We refer to this as the “continuing need.” If a need arises during a particular fiscal year and the agency chooses not to satisfy it during that year, perhaps because of insufficient funds or higher priority needs, and the need continues to exist in the following year, the obligation to satisfy that need is properly chargeable to the later years funds. “An unfulfilled need of one period may well be carried forward to the next as a continuing need with the next periods appropriation being available for funding.” <a href="http://redbook.gao.gov/14/fl0069038.php">B-197274, Sept. 23, 1983. Thus, an important corollary to the bona fide needs rule is that a continuing need is chargeable to funds current for the year in which the obligation is made, regardless of the fact that the need may have originated in a prior year.

What do you believe now?

Sorry to break the news to you, pmh. A grant is typically a contract. The FAR definition of "contract" excludes grants and cooperative agreements because the FAR only applies to procurement contracts. The last sentence of the definition means nothing more than that when the word "contract" is used in the FAR, it does not mean grants and cooperative agreements. It does not mean that grants are not contracts in general. A procurement contract is one several types of contractual transactions that the Government enters into. The Government uses contracts when purchasing real property, selling real or personal property, making grants, cooperative agreements, CRADAs, and other transactions, and employing personnel. None of these are subject to the FAR, but they are still contracts.

See the discussion of "Transactions" and "Grants and Cooperative Agreements" in Chapter 1 of Formation of Government Contracts, Fourth Edition, by Cibinic and Nash. Here's an excerpt:

"...most grants now require the funds or property only for specified purposes, 42 Comp. Gen. 289 (B-149441) (1962). Such grants are contractual agreements but are not procurement contracts, Thermalon Indus., Ltd., v. United States, 34 Fed. Cl. 411 (1995). See also Westmoreland Human Opportunities, Inc., v. Walsh, 246 F.3d 233 (3d Cir., 2001) treating a grant as a contract at a preliminary stage of the litigation, and San Juan City College v. United States, 391 F.3d 1357 (Fed. Cir., 2004), treating a grant in the form of a 'program participation agreement' as a contract."