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deloftin

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About deloftin

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  1. FAR 19.702(a) says "(a) Except as stated in paragraph (b)of this section, Section 8(d) of the Small Business Act (15 U.S.C. 637(d)) imposes the following requirements regarding subcontracting with small businesses and small business subcontracting plans: (1) In negotiated acquisitions, each solicitation of offers to perform a contract or contract modification, that individually is expected to exceed $650,000 ($1.5 million for construction) and that has subcontracting possibilities, shall require the apparently successful offeror to submit an acceptable subcontracting plan. If the apparently successful offeror fails to negotiate a subcontracting plan acceptable to the contracting officer within the time limit prescribed by the contracting officer, the offeror will be ineligible for award. 15USC637(d)(4) states "(b)Before the award of any contract to be let, or any amendment or modification to any contract let, by any Federal agency which— (i) is to be awarded, or was let, pursuant to the negotiated method of procurement, (ii) is required to include the clause stated in paragraph (3), (iii) may exceed $1,000,000 in the case of a contract for the construction of any public facility, or $500,000 [NOTE: FDS does not have latest threshold version] in the case of all other contracts, and (iv) which offers subcontracting possibilities, the apparent successful offeror shall negotiate with the procurement authority a subcontracting plan which incorporates the information prescribed in paragraph (6). The subcontractingplan shall be included in and made a material part of the contract." In the case of a representation of a firm from small to large/"other than small" when exercising an option for a GSA schedule contract exceeding $650K in value, it would seem clear, at least to me, that feds would be responsible for requiring a subk plan in order to execute the modification. However, this does not appear to be the case according to GSA's policy office and the FPDS FAQ and answer below: "If I have a rerepresentation that means I should ask the vendor to submit a new subcontracting plan and should be able to change my answer to subcontracting plan in FPDS correct?No. The terms and conditions of the contract have not changed as a result of the rerepresentation." I'm not surprised that FPDS mirrors GSA policy since GSA administers the FPDS website. But, in my opinion, GSA's policy is contrary to FAR and the statutory requirements. Any thoughts? [Note: The contracts do include the FAR 52.219-8 clause, are negotiated, and are to be performed in U.S.]
  2. Recently it was discovered that a GSA FSS IT 70 Schedule contract was missing from the eLibrary while attempting to pull up the contract to review the approved list of clauses. Further investigation into FPDS revealed that GSA had issued a mod in Dec 2010, effective 2/17/11, as a "legal contract cancellation." Our understanding, based on GSA's Ordering Guidelines, is that no order may require performance that 'extend beyond the period of the Schedule contract.' Apparently GSA has a Cancellation clause, GSAM 552.238-73, mandated for all MAS contracts which permits cancellation of the "contract" upon written notice by either party. In talking with the GSA IT 70 Schedule Help Desk about our agency's plan to exercise an option soon, the representative emphatically stated that options could not be exercised against this IT Schedule 70 contract. However, FPDS indicates multiple agencies have, as recently as August 2011, been exercising numerous options on orders against this canceled/terminated schedule contract. So, below are our questions: 1. Are there any federal regulations that contain procedures for continuing Orders against GSA Schedule contracts that have been 'canceled', under GSAM's 552.238-73 clause, rather than under FAR's T4C/T4D clause? Or are we to assume that the Agency Head for each of the federal Ordering Activities (e.g. EPA, NPS, USCG) exercising options has made the 'written determination of compelling reasons for doing so" under FAR 9.405-1 (assuming the "cancellation" was for debarment/suspension absent any indication that the contractor is on the EPLS list or 'inactive' in CCR)? [As an aside, is there any FAR authority that allows "either party" to cancel a contract? FAR T4C clauses seem to indicate that only the Government can terminate a contract.] 2. Without any written notice by an ACO that a GWAC or Schedule contract has been terminated/canceled, how are Ordering Activities expected to know to proceed under FAR 9.405-1 (or other supplemental 'continuation of current contracts' clause)? [in 2003, GSA emailed all federal agencies when it announced to the media that it had suspended Worldcom pending debarment proceedings.] More importantly, are there other GWACs/Schedule contracts, like this one, that have been canceled or T4D'd/T4C'd over the years, without notice to Ordering Activities, resulting in numerous 'continuations' in non-compliance with FAR 9.405-1? 3. Also, without something official in writing, such as a formal modification, how can legal counsel "ensure the propriety of the proposed action" to either T4D or T4C an Order under FAR 9.405-1(a) simply on the basis that GSA's IT Customer Service Rep verbally stated that an option can not be exercised, or that the contract is not showing up in eLibrary, and/or on the description in an FPDS Report? In other words, is the fact the contract is not showing up on GSA's eLibrary sufficient supporting T4D/T4C documentation for federal Ordering Officials to use to make it official that the contract was canceled and assume 9.405-1( [or supplemental regulatory] procedures apply? Or will the FDPS modification Report, indicating the "Reason for the Modification" as "Legal Contract Cancellation," suffice as supporting documentation absent a copy of the mod itself or any formal announcement to that effect? 4. If an option can not be exercised on the contract, does that mean the FPDS data for the last mod, cancelling the contract, is inaccurate when it indicates that the 'Last Date to Order' is 07/09/2012? Isn't the 'Last Date to Order' the same as the period of performance? It should be, because a T4D/T4C should change the ending date of the period of performance to the effective date of the termination action. But then how does that impact the FAR 9.405-1 continuation of current contracts determinations made by federal Ordering Activities? In other words, will changing the date to align with the T4D/T4C action create a FPDS 'report validation error' for Ordering Activities when they try to execute mods against that contract after that date under the FAR 9.405-1 authority? Is there any date by which feds are required to cut off Ordering Activities from being able to award follow-on orders under 8.405-6(a)(1)(i)©, exercising options, or adding work via modification against a GWAC/IDIQ/Schedule contract that has been T4D'd/T4C'd? In other words, is there any time limit on how long Ordering Activities can 'continue' an existing Order against a GWAC/IDIQ/Schedule contract after it has been T4D'd/T4C'd? Any guidance/insight would be greatly appreciated.
  3. I have recently noticed that some agencies are awarding IDIQ contracts with expressed intent of obligating the minimum quantity guarantee required by FAR 16.501-2((3) in the base period only, with no 'guarantee minimum' included in any option periods. According to FAR 16.504(a)(2), '"To ensure that the contract is binding, the minimum quantity must be more than a nominal quantity, but it should not exceed the amount that the Government is fairly certain to order." 16.501-1 Definitions. ?Task-order contract? means a contract for services that does not procure or specify a firm quantity of services (other than a minimum or maximum quantity) and that provides for the issuance of orders for the performance of tasks during the period of the contract. I've been told by Contracting Officers that the minimum quantity guarantee obligated in the base year is intended to cover the entire 'contract period' which makes the assumption that all option periods will be exercised. In my opinion, that asssumption treats the contract as a multiyear contract as opposed to a multiple year contract. I was always taught that option periods served as their own stand-alone contract period. So I'm wondering how an option period can be binding on the government if there is no guaranteed minimum quantity? Also, in exercising option periods without a minimum quantity guarantee, it would appear that Contracting Officers can basically waive FAR 17.207©'s requirements for determining funds are available (since there is no obligation of minimum guarantee on the option period) under item (1), right? Likewise, can Contracting Officers make any determination under item (2) that 'the requirement covered by this option fulfills an existing Government need' when there is no "minimum quantity" in the option period that the "Government is fairly certain to order?" Isn't the minimum quantity guarantee intended to address the bona fide need rule for each option period under appropriations law?
  4. So am I not interpretting this reg incorrectly? I'm reading FAR to say that the 5 year limitations do NOT apply to IT contracts whereas you're saying they do. So is your response based on the assumption that the IT "support service" contract includes 1 or more positions that are included in DOL's SCA Directory of Occupations per FAR 22.1002-1? And if so, I agree but it still begs the question as to what limit, if any, is placed on IT contracts in general that are NOT subject to the SCA? Are there other statutes, besides the SCA, that could place limits on an IT contracts that I need to be aware of? I admit that I am new to the IT procurement arena. So I can use all the help I can get to make sense of this. GSA provides professional IT support services on schedule. From what I can tell, it appears that GSA can award schedule contracts for a period of up to 20 years (base 5-year period with allowance to exercise 5-year option periods no more than 3 times) under the authority of GSA's I-FSS-163 clause. So is that my answer? If professional IT support services are available on GSA schedule, then can the length of a non-schedule IT contract equal that of GSA's FAS/FSS schedules even though the clause that grants that authority only applies to GSA FSS schedule contracts? But that does bring up another question. Which Options clause in FAR pertains to the procurement of stand-alone professional IT support services that do not contain positions subject to the SCA? Typically the clause at FAR 52.217-9 and -8 are incorporated into contracts for support services that include positions that are subject to the SCA to align with FAR 22.1006-2©(1) FLSA clauses permitting "price adjustment" when exercising options for service contracts. But if procurement of professional IT support services does not include any positions subject to SCA, is it considered "other than those for services" (even though the word "services" is included in the contract title for "support SERVICES") thereby requiring the use of either FAR 52.217-6 or FAR 52.217-7 instead? If IT professional support services are available on GSA schedule, then I have to assume that it is being considered a "supply"/ "other than those for services" contract thereby requiring inclusion of one of the "increased quantity" option clauses rather than the service option clauses (which seems to make sense to me because the 'price adjustment' FLSA clauses would not apply). Does that sound reasonable? I think it's the mere use of the word "services" in the contract title for IT support services that is muddying the situation for me. But based on this research, I'm beginning to think that my agency has been wrong all these years in including the service option clauses 52.217-8 and -9 on other (including non-IT) professional service contracts where the SCA did not apply. It appears that we should have been using the supply option clauses instead.
  5. The definition of IT under FAR 2.1 includes "support services". However, based on my experience, support services have typically been procured as professional (advisory/assistance) services under FAR part 37. As such, federal agencies have normally limited their options to restrict the length of these "service" contracts to 5 years or less. However, based on FAR 17.204(e), it would appear that IT support services are exempt from this restriction. So is there any limitation on the lengths of contracts for IT support services? Also I'm finding federal agencies that are procuring, on a sole source basis, numerous multi-million dollar IT support services as 'commercial items' thereby eliminating the applicability of CAS and prohibiting the requirement for certification of C/P data. I'm a little concerned that IT support services are being treated so differently from other professional support services and are thereby being exempted from mechanisms that I see as critical to ensuring the Govt. obtains fair and reasonable prices. How does the Govt. determine when support services should be procured under FAR 37 vs. FAR 39? It is simply the use of the word IT in the SOW that exempts these contracts from the limitations placed on other support services? I'd appreciate any insight I can get on these issues. Thanks in advance.
  6. I?m not sure if you are wanting legal cases or procedures on how to pursue Government rights/remedies referenced in FAR 52.236-23 for A-E negligence or breach of contractual duty. If the latter, maybe the USACE?s 205-page A-E Contracting guide can help. It has some well thought-out procedures laid out in Chapter 7, entitled ?A-E RESPONSIBILITY MANAGEMENT PROGRAM,? which deals with A-E liabilities: http://140.194.76.129/publications/eng-pam...715-1-7/toc.htm
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