govt2310

Vern ? I agree with what you are saying, but in practice, this is very difficult, most agencies won?t pursue breach of contract litigation. They will just sole source to the contractor with the justification that the incumbent contractor owns the source code and it is not available from any other source. Then, for the recompete acquisition planning, the agency finds that it will have to structure the Statement of Work in such a way that the potential pool of offerors can "start from scratch" to develop new software, and this time, the contract will make the source code a deliverable. But then what happens is that, the incumbent contractor also bids, and since he does not have to start from scratch, the price of his proposal is the lowest, and no matter what the evaluation criteria, price is always a factor, so the agency may, at that point end up awarding to the incumbent. Even though it seems like the agency wins in the end by finally getting the source code under the terms of the new contract, in my view, this is still the agency "paying twice" for the source code it was entitled to in the original contract. I have talked to my counterparts at DOD/Navy, DHS, DOJ, and some other civilian Departments, and they all have horror stories that follow this fact pattern. All of them made the same decision to not pursue the refusal to comply with the Additional Ordering Requirements clause as a breach of contract, and all for the same reason: litigation is too costly and time-consuming.

For DOD, there are additional regulations re: "additional ordering," deferred ordering, and deferred delivery of technical data or computer software: DFARS 252.227-7026 Deferred Delivery of Technical Data or Computer Software. As prescribed at 227.7103-8(a), use the following clause: DEFERRED DELIVERY OF TECHNICAL DATA OR COMPUTER SOFTWARE (APR 1988) The Government shall have the right to require, at any time during the performance of this contract, within two (2) years after either acceptance of all items (other than data or computer software) to be delivered under this contract or termination of this contract, whichever is later, delivery of any technical data or computer software item identified in this contract as ?deferred delivery? data or computer software. The obligation to furnish such technical data required to be prepared by a subcontractor and pertaining to an item obtained from him shall expire two (2) years after the date Contractor accepts the last delivery of that item from that subcontractor for use in performing this contract. (End of clause) and DFARS 252.227-7027 Deferred Ordering of Technical Data or Computer Software. As prescribed at 227.7103-8(, use the following clause: DEFERRED ORDERING OF TECHNICAL DATA OR COMPUTER SOFTWARE (APR 1988) In addition to technical data or computer software specified elsewhere in this contract to be delivered hereunder, the Government may, at any time during the performance of this contract or within a period of three (3) years after acceptance of all items (other than technical data or computer software) to be delivered under this contract or the termination of this contract, order any technical data or computer software generated in the performance of this contract or any subcontract hereunder. When the technical data or computer software is ordered, the Contractor shall be compensated for converting the data or computer software into the prescribed form, for reproduction and delivery. The obligation to deliver the technical data of a subcontractor and pertaining to an item obtained from him shall expire three (3) years after the date the Contractor accepts the last delivery of that item from that subcontractor under this contract. The Government's rights to use said data or computer software shall be pursuant to the ?Rights in Technical Data and Computer Software? clause of this contract. and DFARS 227.7103-8 Deferred delivery and deferred ordering of technical data. (a) Deferred delivery. Use the clause at 252.227-7026, Deferred Delivery of Technical Data or Computer Software, when it is in the Government's interests to defer the delivery of technical data. The clause permits the contracting officer to require the delivery of technical data identified as ?deferred delivery? data at any time until two years after acceptance by the Government of all items (other than technical data or computer software) under the contract or contract termination, whichever is later. The obligation of subcontractors or suppliers to deliver such technical data expires two years after the date the prime contractor accepts the last item from the subcontractor or supplier for use in the performance of the contract. The contract must specify which technical data is subject to deferred delivery. The contracting officer shall notify the contractor sufficiently in advance of the desired delivery date for such data to permit timely delivery. ( Deferred ordering. Use the clause at 252.227-7027, Deferred Ordering of Technical Data or Computer Software, when a firm requirement for a particular data item(s) has not been established prior to contract award but there is a potential need for the data. Under this clause, the contracting officer may order any data that has been generated in the performance of the contract or any subcontract thereunder at any time until three years after acceptance of all items (other than technical data or computer software) under the contract or contract termination, whichever is later. The obligation of subcontractors to deliver such data expires three years after the date the contractor accepts the last item under the subcontract. When the data are ordered, the delivery dates shall be negotiated and the contractor compensated only for converting the data into the prescribed form, reproduction costs, and delivery costs.

In the context of software maintenance services, are they considered a supply/product or a service for purposes of Brand Name Restriction? FAR 11.105 concerns "Items" peculiar to one manufacturer, and allows for a brand name restriction only when "the particular brand name, product, or feature is essential to the Government's requirements . . . ". I have seen this interpreted to mean that FAR 11.105 only applies to "items," meaning tangible products/supplies, and that FAR 11.105 does not apply to services. But what happens with a software maintenance services contract? What if the agency requires a brand name restriction: for example, what if the agency has Oracle software on its work stations and needs to obtain software maintenance services for the next year. Only Oracle, and Oracle resellers, are capable of performing such maintenance services. How does the agency restrict the procurement to only Oracle and Oracle resellers? At my previous agency, we did it this way: we believed FAR 11.105 did not apply to services, so we used FAR 6.302-1, Only One Responsible Source. Of course, I worked at DOD/Army, so the language at FAR 6.302-1(a)(2), which says DOD is allowed to justify limiting competition to "one or a limited number of responsible sources," allowed us to limit the procurement to Oracle and Oracle resellers. Now I work at a civilian agency, and this language does not apply to us. It appears that FAR 6.302-1 allows civilian agencies to justify limiting competition to "only one responsible source" - but there is more than one responsible source: Oracle and Oracle resellers. So what can a civilian agency do? I'm curious to hear how other agencie are handling this situation. Also, just FYI, GSA lists software maintenance as both a service and a product on its Special Item Numbers (SIN), see http://www.gsa.gov/portal/content/188085. SIN 132-32 and 132-33 are consider "Maintenance of Software as a Product," and SIN 132-34 is considered "Maintenance of Software as a Service." Here are the FAR clauses: FAR 11.105 -- Items Peculiar to One Manufacturer. Agency requirements shall not be written so as to require a particular brand-name, product, or a feature of a product, peculiar to one manufacturer, thereby precluding consideration of a product manufactured by another company, unless -- (a) (1) The particular brand name, product, or feature is essential to the Government?s requirements, and market research indicates other companies? similar products, or products lacking the particular feature, do not meet, or can not be modified to meet, the agency?s needs; (2) (i) The authority to contract without providing for full and open competition is supported by the required justifications and approvals (see 6.302-1); or (ii) The basis for not providing for maximum practicable competition is documented in the file (see 13.106-1() or justified (see 13.501) when the acquisition is awarded using simplified acquisition procedures. (3) The documentation or justification is posted for acquisitions over $25,000. (See 5.102(a)(6).) ( For multiple award schedule orders, see 8.405-6. and FAR 6.302-1 -- Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements. (a) Authority. (1) Citations: 10 U.S.C. 2304©(1) or 41 U.S.C. 253©(1). (2) When the supplies or services required by the agency are available from only one responsible source, or, for DOD, NASA, and the Coast Guard, from only one or a limited number of responsible sources, and no other type of supplies or services will satisfy agency requirements, full and open competition need not be provided for. (i) Supplies or services may be considered to be available from only one source if the source has submitted an unsolicited research proposal that -- (A) Demonstrates a unique and innovative concept (see definition at 2.101), or, demonstrates a unique capability of the source to provide the particular research services proposed; ( Offers a concept or services not otherwise available to the Government; and, © Does not resemble the substance of a pending competitive acquisition. (See 10 U.S.C. 2304(d)(1)(A) and 41 U.S.C. 253(d)(1)(A).)

FAR 52.227-16, Additional Data Requirements, provides a mechanism for an agency to order additional data, even if it was not specified as a deliverable in the contract, up to 3 years after acceptance of all items to be delivered under this contract. FAR 27.409(d) specifies that this clause is to be used for experimental, research type contracts, but that, "This clause may also be used in other contracts when considered appropriate." My first question is, what does "when considered appropriate mean"? The example they give in FAR 27.409(d) is very narrow, it seems. I can tell you, over the years, I have seen this FAR 52.227-16 clause put into almost every major IT acquisition contract I have worked on, and those projects were definitely not experimental, research type contracts. My second question is, this clause seems to say that the "additional data" at issue does not have to be listed as deliverable in the contract. But again, from my real life experience, I have seen the Government try to invoke the FAR 52.227-16 clause for additional ordering of data, and the contractor's response is to say, it was not listed as a deliverable, so we are not going to deliver it unless you pay us for it's value. The only way the Government can force the contractor to cooperate is to proactively litigate and sue the contractor in federal court to get them to cough up the data. As we all know, litigation could take years, and is a very time-consuming process. Most agencies won't fight this battle, they will just pay for the value of the data, which seems like having to pay for it again. So how do we prevent this? Here are the clauses: FAR 52.227-16 -- Additional Data Requirements. As prescribed in 27.409(d), insert the following clause: Additional Data Requirements (Jun 1987) (a) In addition to the data (as defined in the clause at 52.227-14, Rights in Data -- General clause or other equivalent included in this contract) specified elsewhere in this contract to be delivered, the Contracting Officer may, at any time during contract performance or within a period of 3 years after acceptance of all items to be delivered under this contract, order any data first produced or specifically used in the performance of this contract. ( The Rights in Data -- General clause or other equivalent included in this contract is applicable to all data ordered under this Additional Data Requirements clause. Nothing contained in this clause shall require the Contractor to deliver any data the withholding of which is authorized by the Rights in Data -- General or other equivalent clause of this contract, or data which are specifically identified in this contract as not subject to this clause. © When data are to be delivered under this clause, the Contractor will be compensated for converting the data into the prescribed form, for reproduction, and for delivery. (d) The Contracting Officer may release the Contractor from the requirements of this clause for specifically identified data items at any time during the 3-year period set forth in paragraph (a) of this clause. (End of Clause) and FAR 27.409(d): (d) Insert the clause at 52.227-16, Additional Data Requirements, in solicitations and contracts involving experimental, developmental, research, or demonstration work (other than basic or applied research to be performed solely by a university or college where the contract amount will be $500,000 or less) unless all the requirements for data are believed to be known at the time of contracting and specified in the contract (see 27.406-2). This clause may also be used in other contracts when considered appropriate. For example, if the contract is for basic or applied research to be performed by a university or college, and the contracting officer believes the contract effort will in the future exceed $500,000, even though the initial award does not, the contracting officer may include the clause in the initial award.

Thanks, Vern. What I find strange is that the Treasury site does not actually cite any authority for that position (that FAAs are not procurement contracts subject to the FAR). You would think the statutory authority would address it, but Treasury's does not, and other agencies statutory authority also is silent about it. So how did Treasury arrive at its conclusion? The FAR applies to "acquisitions, and FAR 2.101 defines "acquisitions to mean: ?Acquisition? means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. If the FAA is a contract, with appropriated funds exchanged for services, by and for the use of the federal agency, then doesn't it qualify as an "acquisition" IAW FAR 2.101?

Some Departments, like the Dept of Treasury, have statutory authority to enter into Fiscal Agent Agreements, also known as Financial Agency Agreements, with private banks. These FAAs sometimes involve payment to the banks out of appropriated funds. My question is, are these FAAs subject to the FAR? Is there a requirement for full and open competition? The various statutory authorities that I have seen do not address this question.

Is there any difference between a Cost Realism Analysis and a Price Realism Analysis? I ask because the term "Price Realism" does not appear in the FAR anywhere (did I miss it? Please point it out to me). All I can find in the FAR are these sections: FAR 15.404-1(, Price Analysis FAR 15.404-1©, Cost Analysis FAR 15.404-1(d) Cost realism analysis If Price Realism Analysis is different than Cost Realism Analysis, why doesn't the FAR address it/define it? Can anyone tell me what the difference is? I have already looked at http://www.wifcon.com/pd15_404.htm and all I can tell is that GAO has used the term "price realism" analysis but none of these cases define what a price realism analysis is.

I'm told that, last month (January 2011), Congress "recodified" the United States Code, and that this affects the Public Contracts section, Title 41. Can anybody shed any light on this? The most info I could find on this is in a footnote to case: The FAR is codified in Title 48 of the United States Code of Federal Regulations. It is issued pursuant to the Office of Federal Procurement Policy Act of 1974 (Pub. L. 93-400 and Title 41 of the United States Code), Chapter 7. ?On January 4, 2011?Congress altered the provisions of the CDA?. The session laws reflecting the alterations also note that the CDA will be recodified. See Act of Jan. 4, 2011, Pub. L. No. 111-350, ? 3, 124 Stat. 3677, 3816-26. Accordingly, the provisions of the CDA formerly listed in the U.S. Code at 41 U.S.C. ?? 601-613 will be listed at 41 U.S.C. ?? 7101-7109.? Found in footnote 1 at - http://www.leagle.com/xmlResult.aspx?xmldo...LWAR3-2007-CURR. The opinion was dated 2/25/11 and recodification does not appear finalized as the court states that ? ?We cite to the session laws and note the expected codification section of the U.S. Code because recodification was not finalized at the time of this Opinion.?

Lacylu: Did you get any objection from the pool of offerors/vendors? How did you justify this restriction as reasonable?

napolik wrote: At first blush, I don?t think you can support the prohibition, but I am not an ITer. Is subcontracting for data storage prohibited now? Don?t Gov?t contracts for data storage on terra firma present the same issue you raise? Would you not have the same remedies against a prime that subcontracted the work? My answer: Well, to be practical, even though the agency could pursue its remedy against the prime ktr, in reality, the agency would be going without its precious Government Data, probably for months or years (litigation can be very slow), and in essence, the agency could not perform its mission.

Previously there was a thread on Any Subcontracting Limits on Unrestricted Procurements, see http://www.wifcon.com/discussion/index.php?showtopic=732. To take it a step further, my question is, Can an agency deliberately set a subcontracting limit on a procurement? Can an agency require that the prime contractor not subcontract at all? I'm thinking that the standard for whether this is OK or not is if the requirement is "reasonable." Here is an example in which a blanket restriction on subcontracting might be considered reasonable: for IT cloud computing IaaS/PaaS/SaaS services, including data storage and maintenance, it is quite a risk for an agency to allow a contractor to subcontract out this work, because what if the subcontractor refuses to return government data to the agency? Then the agency will lack privity of contract with the sub and it will likely halt the agency's performance of its mission. Does anyone see anything wrong with doing it this way?

Desparado - Thank you!

Thanks everybody! Oh and I found formerfed's quote on the GSA site here, http://www.gsa.gov/portal/content/101193.

formerfed, Thank you for the quote. Can you provide the link? Also, after reading your answer, I searched for it on gsa.gov, the only thing on the same topic that I could find was this, see http://www.gsa.gov/portal/content/104450 which states: "14. Variable Contract Periods Generally, GSA Schedules will no longer have a prescribed beginning and ending date. The Schedule periods will be continuous, and will contain contracts with contract periods that commence on the Date of Award (DOA) and expire in five years (exclusive of any options) from the DOA." I am not sure how to reconcile your quote with this quote. Can you help me understand?

Can a task order issued on GSA FSS have a period of performance (POP) beyond the expiration of the GSA Contract? Like if the GSA Contract expires in 2013, is it possible to make an award for a task order in 2011 that has a POP consisting of a base year and four option years, meaning it will expire in 2016?

Does anyone have experience with telephone service/utility contracts and "Letters of Agency"? My agency has a contract for IT services from a KTR. In order to perform the IT services they are contractually obligated to provide, the KTR needs to have cooperation from our local telephone provider. The telephone provider refuses to work with the KTR until the KTR provides a "Letter of Agency" signed by my agency. The DRAFT LOA states: "[the KTR] is authorized to act on behalf of [the agency] for the acquisition of supplies/services . . . leasing/rental of equipment . . . In addition . . . [KTR] has the authority for the issuance of tax exempt status for these supplies/services . . . ." We looked at FAR 51 and are not sure if this constitutes a "Letter of Authorization" as detailed in FAR 51. Also, the KTR is not being authorized to purchase off of another government contract, which is what FAR 51 is about. And we are wary of the "tax exempt status" language. Can anyone shed light on this for us? My agency does not usually encounter telephone service/utility contract matters. Should we sign the LOA? If we should modify the LOA, how so?

Napolik: Thanks for the link!

Agency heads and a ?relatively small number of high level officials? including heads of contracting activities are ?designated contracting officers solely by virtue of their positions,? FAR 1.601. There is brief mention of this in 1 No. 5 Nash & Cibinic Rep. ? 38, May, 1987, PROCUREMENT OFFICIALS: YOU NEED A PROGRAM TO TELL THE PLAYERS, by Ralph C. Nash and John Cibinic. But it would be great to find more discussion on this issue. I have a vague recollection that there was a wifcon thread some years ago on whether a Secretary of a department could sign a contract as a contracting officer. If anyone finds it, please post the link to it here.

Is there a list on wifcon, or anywhere else, of cases where GAO and the Court of Federal Claims differ on the same legal question? I find articles here and there, like in Nash and Cibinic, but I am looking for a comprehensive list of situations in which GAO and COFC diverge.

I'm trying to figure out who would be responsible for the cost of replacing destroyed equipment that is owned by a KTR, leased to an agency, "housed" on government property, then destroyed/damaged from an accident that is not the fault of the KTR nor the agency? And is the answer different if the contract is old, meaning it does not include FAR 52.245-1, v. if the contract is newer and does include FAR 52.245-1.

There is case law that says the government has no duty to "protect" a KTR's personal property. And if that personal property is destroyed/damaged while residing on government property or it is in the government's profession, the government has no duty to reimburse/compensate the KTR, unless the contract expressly states otherwise. So if a leased photocopier is destroyed by a fire, and the fire was not caused by the government, even if the fire was not caused by the lessor who owns the photocopier, the lessor cannot look to the government to get reimbursed/compensated for the cost of replacing the photocopier. And further, the lessor is still require to perform its contract with teh government and provide a new photocopier promptly. This is all assuming the contract at hand is one that was executed/awarded prior to the FAR 52.245-1 clause being created, and I do have a such a contract. So that contract does not include FAR clause 52.245-1 or any language addressing who is responsible for replacing destroyed/damaged equipment that is being leased under the contract. Here is the case law: The Armed Services Board of Contract Appeals (ASBCA) addressed a similar situation in Home Entertainment, Inc., ASBCA No. 50791, 99-1 BCA ? 30,147. In Home Entertainment, the appellant alleged that damages arose to its property from floods due to faulty piping in the ceiling of its concessionaire space on federal property. The Board held that it has no jurisdiction over a tort independent of the contract for which no violation of a contract duty is shown, and it cited several other ASBCA cases as precedent. See Donlin M. Rumley, ASBCA No. 46460, 94-3 BCA ? 27,113 at 135,129-135,130 (contract did not require Government to protect or insure contractor?s machines against damage; contractor could point to no implied contractual obligation to transform his tort claim into a contract claim); Asphaltos Panameos, S.A., ASBCA No. 39425, 91-1 BCA ? 23,315 (no express or implied Government duty to protect private vehicle of contractor?s employee from Government helicopter not involved in the contract); Alfred Bronder, ASBCA No. 29938, 86-3 BCA ? 19,102 at 96,558-96,559 (no contractual duty to protect or insure contractor?s property from fire damage and Board has no jurisdiction over such claim, which ?sounds in tort?).

But that scenario assumes the KTR willfully of negligently destroyed that property (the photocopier). What about if there is a fire, through no fault of the KTR nor the agency, and the photocopier is destroyed in the fire? IAW FAR 52.245-1(h), the KTR is not liable for replacing the photocopier. So who is? The agency? The contractor from whom the agency leased the photocopier? What if it is one and the same contractor: the agency leased the photocopier from the KTR, the agency employees use the photocopier, then there was an accidental fire, who is liable for replacing the photocopier? It looks like FAR 52.245-1(h) is saying, liability does not fall with the KTR. Am I missing something?

If the government has lease for motor vehicles, a simple lease, not a lease-to-own where title passes to the government, then isn't that property "contractor-owned property," not "government property"? If the government provides those leased motor vehicles to another prime contractor under a different contract, then those motor vehicles are "government furnished equipment," right? And so they would be considered "government property."

OK. What if the government contracts with ABC for a "services-only" contract, say for IT infrastructure services. However, this contract also calls for ABC to provide all necessary hardware , such as computer workstations, printers, etc., for federal employees to use in their daily work. ABC either owns the hardware or leases it from a third party supplier, then provides it to the government. Title to the hardware never passes to the government, but the government has, in effect, "leased" the hardware from ABC Inc. So instead of the government leasing the hardware from say XYZ Inc. and then furnishing it to ABC Inc. to use in performance of the ABC Inc. contract, the government is in fact leasing the hardware from ABC Inc. for ABC Inc. to have in performance of its contract. Therefore, the hardware is "Government leased property" which means it is "Government property" -- which I find strange. Can you help me sort this out?

There is a new clause at FAR 52.245-1, Government Property, just issued in AUG 2010, see it here https://www.acquisition.gov/far/current/html/52_245.html. I would post the farsite link, but for some reason I cannot access farsite right now. Anyways, this new clause defines Government property as "means all property owned or leased by the Government. Government property includes both Government-furnished and Contractor-acquired property. Government property includes material, equipment, special tooling, special test equipment, and real property. Government properyt does not include intellectual property and software." It also defines Contractor-acquired property as "means property acquired, fabricated, or otherwise provided by the Contractor for performing a contract, and to which the Government has title." Why did the FAR Council decide to make "leased" property = Government property? Seems to me, the only way that would make sense is if they further specified that what they meant was "leased-to-own" property would be Government property. For a simple lease, with no mechanism for passing title to the Government, I can't fathom how such leased property could be considered Government property. Thoughts?