Don Mansfield

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."

Is it appropriate to obligate the FY 12 annual appropriation against this contract awarded in FY 2013 since the services that are being procured are a bona fide need of the previous year?

No. What matters is when the obligation is created. Sending a procurement request to a contracting office does not create an obligation. Awarding a contract creates an obligation.

Also, if you still need the services after the passing of FY12, then they would then be a bona fide need of FY13.

A grant is not a contract.

Not true. Although a grant is not a procurement contract governed by the FAR, it is typically a contract.

If you want the offerors to revise their prices, your only choice is to conduct discussions. That alone is a valid reason to conduct discussions.

One of the more persistent and aggravating notions in government contracting is that there is a categorical difference between an REA and a claim. There is no such difference. But some people have that notion in their heads and it seems almost impossible to get it out. Even people who ought to know better harbor that idea.

I agree. I think the confusion stems from the fact that the distinction that is made between REA and claim is practical--not official. There is no word or term that, by definition, describes something that requests a contract adjustment, but that is not a claim. In practice, many refer to such a thing as an REA. However, "request for equitable adjustment" is not officially defined, so there is no basis for saying that an REA is not a claim.

CON46,

I think that's a good idea. I hope you'll share what you come up with.

If DCAA/DCMA refuses to perform a subcontract cost/price analysis under a Prime Contract subject to TINA (certification required) what options are available to determine fair and reasonableness? The options I have heard (and my rebuttal to each) are:

1. Request the subcontract to provide 'data other than cost/pricing''; however I believe this to be insufficient because a cost/price certification is needed from the subcontractor

2. Have a mutually agreeable 3rd party perform the cost/price analysis (this can be costly); or

3. Reach out to the Contracting Officer and rely on she/he to perform the analysis

Does anyone have any experience with a similar scenario?

Why didn't the prime contractor analyze the subcontracts? FAR 15.404-3( b ) states:

The prime contractor or subcontractor shall—

(1) Conduct appropriate cost or price analyses to establish the reasonableness of proposed subcontract prices;

(2) Include the results of these analyses in the price proposal; and

(3) When required by paragraph ( c ) of this subsection, submit subcontractor certified cost or pricing data to the Government as part of its own certified cost or pricing data.

bigred,

Just wondering--how would your company respond to the employee's request if the contract were firm-fixed-price?

In my opinion, it's necessary to place an order to satisfy the minimum guarantee at any time the minimum guarantee has not been satisfied. I don't know of any decisions on point.

Let me know if it's any good.

Don:

Does that thing come with user instructions? How big is it in real life? Did DAU hire a contractor to do it?

What has been the general reaction to it?

The back of the chart tells you what everything means on the front. They come in different sizes. The standard poster size, which I used to have hanging in my office, is 34" x 22". There's also giant ones on thin foam boards for use in the classroom. I don't know if a contractor did it.

The chart has been around for a long time. I found one from 2001 on the Web. It was made interactive a couple of years ago. In contracting courses, we may refer to it to illustrate the point that contracting is one function supporting the acquisition process. In other disciplines, such as program management, they make more use of it.

You want one? I'm sure JK can get one for you when he's on the main campus.

Hi, Nathan,

1) DAU doesn't have an experience requirement for CON 090. However, your organization may impose one.

2) Yes.

3) That's a question for your specific organization.

To help answer my own question, under AIDAR (USAID Acquisition Regulation) Part 706, it states:

"706.302-71 Small Disadvantaged Businesses.

(a) Authority.

(1) Citations: Sec. 579, Pub. L. 101-167 (Fiscal year (FY) 1990), Sec. 567, Pub. L. 101-513 (FY 1991), Sec. 567, Pub. L. 102-145 (FY 1992), Sec. 562, Pub. L. 102-391 (FY 1993), Sec. 558, Pub. L. 103-87 (FY 1994), and Sec. 555, Pub. L. 103-306 (FY 1995).

(2) Except to the extent otherwise determined by the Administrator, not less than ten percent of amounts made available through the appropriations cited in paragraph (a)(1) of this section for development assistance and for assistance for famine recovery and development in Africa shall be used only for activities of disadvantaged enterprises (as defined in 726.7002). In order to achieve this goal, USAID is authorized in the cited statutes to use other than full and open competition to award contracts to small business concerns owned and controlled by socially and economically disadvantaged individuals (small disadvantaged businesses as defined in 726.7002), historically black colleges and universities, colleges and universities having a student body of which more than 40 percent of the students are Hispanic Americans, and private voluntary organizations which are controlled by individuals who are socially and economically disadvantaged, as the terms are defined in 726.7002. "

Is it correct to read this section that if the acquisition is being made under the statutory authority of (a)(1) and is for "development assistance," then USAID can do a SDB set aside?

I'd be surprised if appropriations passed between FY90 and FY95 would still be available.

CON46,

I think dcarver is describing the Integrated Life Cycle Chart. It's available at https://ilc.dau.mil/.

To Don-

#2 - The agency has cut a piece of the requirement and limited competition for that piece to SDBs. The RFP states that "[t]his set aside will be exclusively for the implementation of the [XYZ] component."

Thanks

Ok. So it's a partial SDB set-aside. I know of no legal basis for such a thing. Maybe it's an error.

weissmana,

Vern is not the type to promote his own training in the discussion forum, so I will. Instead of the courses he recommended, take The FAR Bootcamp. It's the best FAR training I've ever taken.

MDJohn,

Which of the following is happening?

1. All offerors are competing for the same requirement, the agency will make multiple awards, one such award will be reserved for an SDB; or

2. The agency has cut a piece of the requirement and limited competition for that piece to SDBs.

Don't know. You can always ask the POC shown in the class deviation: http://www.acq.osd.mil/dpap/policy/policyvault/USA000414-12-DPAP.pdf.

Hi tguns,

You know, the action being contemplated here strikes me as a T4C situation. If it were being handled as a T4C situation, my understanding is that the contractor would only receive fee on accepted work, but would receive (after a negotiated settlement) actual incurred costs plus settlement expenses.

But you didn't want to go that route. Instead, you descoped the PoP. Now the contractor will incur (and bill) you less costs. Since the fixed fee was fixed and should not vary based on costs incurred, I would expect the contractor to be able to bill the entire fixed fee amount.

Hope this helps.

You assert that the contractor would be entitled to 100% of the fixed-fee even though it only completed 83% of the work. Following that logic, the contractor would only be entitled to the original fixed-fee amount if the contract were extended by two months. I don't agree. Whether it's T4C or a deductive change, the percentage of fixed-fee paid should reflect the percentage of completion. Note that FAR 16.306(a) states:

A cost-plus-fixed-fee contract is a cost-reimbursement contract that provides for payment to the contractor of a negotiated fee that is fixed at the inception of the contract. The fixed fee does not vary with actual cost, but may be adjusted as a result of changes in the work to be performed under the contract.

See RJO Enterprises, Inc., DOTCAB 2951, 96-2 BCA, P 28,379 for a case holding that the Government properly adjusted the fee downward as a result of a constructive change reducing the amount of work required under the contract.

FAR 8.102 means that if you need a hammer don't buy one if you already have one that you can use.

Assume you work for DoD and the hammer is in inventory at DLA or a military inventory control point. It is not excess personal property. DoD maintains an inventory of hammers that end users requisition on an as-needed basis. The same hammer is available as excess personal property from GSA.

Where does FAR 8.002(a)(1) require you to get the hammer? In other words, if you acquired the hammer from DLA or a military inventory control point, would you be acquiring it from "agency inventory" (FAR 8.002(a)(1)(i)) or a "wholesale supply source" (FAR 8.002(a)(1)(v))?

FAR 8.002(a) states:

Except as required by 8.003, or as otherwise provided by law, agencies shall satisfy requirements for supplies and services from or through the sources and publications listed below in descending order of priority—

(1) Supplies.

(i) Agency inventories;

(ii) Excess from other agencies (see Subpart 8.1);

FAR 8.102 states:

When practicable, agencies must use excess personal property as the first source of supply for agency and cost-reimbursement contractor requirements.

[bold added].

In light of FAR 8.102, do you think that "Agency inventories" at FAR 8.002(a)(1)(i) means "Excess agency inventories"?

Velhammer,

Thanks. WebFLIS is still very handy. I just registered for AV and I can now see inventory levels for DLA and military inventory control points. The program doesn't track inventory at GSA, however. No big deal--GSA Global Supply is easy enough to check.

Thanks for the education.

-Don

I interpret the distinction between "source selection board" and "source evaluation board" to be similar to the distinction made between "source selection advisory council (SSAC)" and "source selection evaluation board (SSEB)" in the DoD Source Selection Procedures. According to the DoD guide, the SSEB (which I believe to be the "source evaluation board" at FAR 7.503) has the following responsibilities:

1.4.4.2.2.1. Conduct a comprehensive review and evaluation of proposals against the solicitation requirements and the approved evaluation criteria.

1.4.4.2.2.2. Ensure the evaluation is based solely on the evaluation criteria outlined in the RFP.

1.4.4.2.2.3. Assist the SSEB Chairperson in documenting the SSEB evaluation results.

1.4.4.2.2.4. Support any post-source-selection activities, such as debriefings and post-award reviews/meetings, as required.

The SSAC (which I believe to be the "source selection board" at FAR 7.503) has the following responsibilities:

1.4.3.3.2.1. Review the evaluation results of the SSEB to ensure the evaluation process follows the evaluation criteria and the ratings are appropriately and consistently applied.

1.4.3.3.2.2. Consolidate the advice and recommendations from the SSAC into a written comparative analysis and recommendation for use by the SSA in making the best-value decision. Ensure that minority opinions within the SSAC are documented and included within the comparative analysis.

Don: WebFLIS claims "capability to view material assets in storage, in-process, in-transit, and in-theater for all services, DLA and GSA" www.dlis.dla.mil/webflis/pub/pub_search.aspx

Velhammer,

Where is that claim made in relation to WebFLIS? I see where DLA makes that claim regarding a program of theirs called Asset Visibility (AV), but not WebFLIS.

Velhammer & Retreadfed,

That's what I was looking for. Thank you.

ji20874,

I wouldn't expect a CO to check wholesale supply sources if the agency's standard procedure was to have the requisitioner check. However, as a CO, I would want to know how to check if I had any doubts.