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  1. I can see why the court would say they're not due the full amount. If the minimum order amount is $10,000 the government is obligated to order $10,000. If the contract is terminated with no orders the contractor shouldn't be able to stick the $10K in his pocket. If the government actually issued a $10K order at most he would be able to pocket the profit. Heck he could loose money on the order.
  2. That does help a little in regard to contract clauses. Not sure the new NDAA 2016 issues I spoke of would spark new clauses. They may influence provisions though. I was wondering if an agency has to comply for new solicitations since its enactment. I thought we did but your comment in #5 gave me pause.
  3. The reason I ask the question is it seem contradictory to this discussion: www.wifcon.com/discussion/index.php?/topic/3250-comply-with-final-rule-not-yet-in-far/
  4. Vern, would that reasoning also apply to the new laws concerning small business Joint Venture teams and Prime/Subcontractor teams that came from the NDAA 2016 (the one requiring the consideration of capabilities and past performance of individual members of JVs as the JV's and subcontractors as the prime's) before implementing regulations?
  5. No I simply stated what it says. It doesn't say all types of contracts except T&M and LH. Maybe they should rewrite it to state "some types of contracts"
  6. FWIW FAR 19.800(a) states: Section 8(a) of the Small Business Act (15 U.S.C. 637(a)) established a program that authorizes the Small Business Administration (SBA) to enter into all types of contracts with other agencies and let subcontracts for performing those contracts to firms eligible for program participation. The SBA?s subcontractors are referred to as ?8(a) contr
  7. The approach you are contemplating is an "exclusionary" approach which is fine. Another approach would be a "quantitative" approach. For instance the evaluation range may be from poor/marginal/average/good/exceptional. You may rate the neutral as "average" which GAO has upheld. In other words there is not cookie cutter approach in how to treat neutral past performance. In at least one COFC case the court actually preferred the "exclusionary" approact which they held as being the most pure method of handling no past performance as neither negative or positive. Here is a snippit from that case (Metcalf Construction Company, Inc., v. The United States and Lend Lease ACTUS (Intervenor), COFC No. 02-5C, September 24, 2002): The plain meaning of the word neutral is: ?Not allied with, supporting, or favoring either side... Not one thing or the other: indifferent;?33 i.e., having no effect, null or zero. When a literal interpretation is given to the statute, and a zero (or null) value is applied to the neutral rating factor, the subject offeror?s overall rating suffers as compared to other bidders.34 In the case at bar, the offeror is partially spared from the harshest possible result because the neutral rating occurs in only one of two equally weighted subfactors, instead of a whole category or factor. Operating from the standpoint of strict adherence to the language of the statute, no value or a null value should be substituted in the past performance subfactor under Factor C as illustrated below: According to the solicitation, the ratings in both subfactors, ?NR? and ?HA,? are ?equally weighted.? Therefore, the logical first-blush inclination would be to ?average? the two ratings to arrive at a single overall rating. Since these ratings are adjectival, rather than numerical, an exact (quantitative) value or rating cannot result. We are thereby faced with the confines of solving an equation of non-quantitative variables, which logically, we know, must yield a result that is lower than ?HA,? but for which the actual result is speculative. (If this were a numerical scheme, and HA = 3, and A = 2, the outcome would be 1.5, which is a rating lower than ?Acceptable?). This court, therefore, and in conjunction with the administrative cases cited above condemning the ?zeroing effect,? rejects the functionality (and fairness) of a null value application since said application has the effect of treating the offeror unfavorably. While the court found no binding authority on this issue, we have looked to the numerous administrative decisions dealing with the applicable statute. There are a couple of variations in applying the statute which have been contrived in order to avoid the otherwise harsh outcome that results from a literal application of the statute (the zeroing effect). First, there is assigning a quantitative value to the neutral rating reflecting the mid-point of the applicable rating scale; e.g., ?good,? or ?satisfactory.?35 And, in the case of a numerical rating scheme, a number representing the mid-point of the applicable rating scale is assigned.36 Alternatively, there are other cases where the category with the ?NR? rating is totally eliminated for the affected bidder(s).37 We will look at each approach separately. 1. Quantitative Approach This court is unpersuaded that the assignment of any value at all to a neutral rating operates within the meaning of the statute since ? ?the offeror may not be evaluated favorably or unfavorably on the factor of past performance.? Surely even a middle value may favor or disfavor an offeror. The defendant apparently applied this ?mid-point? theory, by treating the neutral rating as equivalent to the ?Acceptable? rating - - ?The Navy therefore, [sic] rated all offerors equally, consistently, and fairly, as each offeror receiving one ?highly acceptable? and one ?acceptable? (or ?neutral?) received an overall ?acceptable? rating.? Def. Motion at 26. The court rejects this approach as inconsistent with, and therefore violative of, the operative statute. 2. Exclusion Approach Remaining, then, is the theory of totally eliminating the factor, or in this case, the subfactor, from the affected bidder?s evaluation. In Meridian Mgmt. Corp., past references questionnaires contained thirty-one (31) questions that were rated separately, then divided by 31 to arrive at an overall ?experience/past performance score.? The protester in that case argued that it was penalized when it received a ?0? for a question regarding laboratory work that was ?not applicable? in a prior contract. The agency involved in that solicitation agreed that the protester should not be penalized, and subsequently recalculated the protester?s score by dividing the total for the thirty (30) answered questions by 30, instead of 31. In doing so, the agency totally eliminated the question that was ?not applicable? to the protester from its overall ?experience/past performance score.? The court finds that the approach taken in Meridian is the better approach, which neither (1) treats the bidder favorably nor unfavorably by unduly quantifying (as ?Acceptable?) the neutral rating, nor does it (2) lead to a speculative or unfavorable result (via averaging). Therefore, under the Meridian approach, subfactor 1 of Factor C, in the case at bar, is completely eliminated from Metcalf?s Factor C evaluation, since subfactor 1 is, in effect, ?not applicable? to Metcalf. Thus, Metcalf is to be evaluated purely on subfactor 2, which, in this case, becomes its overall rating for Factor C, to wit, ?HA.? This approach is consistent with the outcome derived by the TEB in its September 10, 2001 report. (App. A, page 3 of 4).
  8. Why just texting? I have a problem with shaving, putting on makup, eating, etc. We need a clause for these too! If it wasn't so sad I'd be laughing my butt off.
  9. I delved into an issue that I have not been able to come to any resolution. There seems to be two distinct camps when I talk to others about it. The issue revolves around the use of subcontractors on a T&M (or LH) task order issued against a multiple award, indefinite delivery indefinite quantity (MA/IDIQ) contract such as a MAC or GWAC. The underlying contract has established labor categories and fully loaded ceiling rates to be used on T&M and LH task orders. First, let?s start with the FAR: 16.601 Time-and-materials contracts. (a) Definitions for the purposes of Time-and-Materials Contracts. ?Direct materials? means those materials that enter directly into the end product, or that are used or consumed directly in connection with the furnishing of the end product or service. ?Hourly rate? means the rate(s) prescribed in the contract for payment for labor that meets the labor category qualifications of a labor category specified in the contract that are? (1) Performed by the contractor; (2) Performed by the subcontractors; or (3) Transferred between divisions, subsidiaries, or affiliates of the contractor under a common control. ?Materials? means? (1) Direct materials, including supplies transferred between divisions, subsidiaries, or affiliates of the contractor under a common control; (2) Subcontracts for supplies and incidental services for which there is not a labor category specified in the contract; (3) Other direct costs (e.g., incidental services for which there is not a labor category specified in the contract, travel, computer usage charges, etc.); and (4) Applicable indirect costs. (Underline added) To make a long story short, do the ceiling rates in the underlying contract (MAC/GWAC) apply only to the prime contractor, i.e., can the subcontractor propose rates different than the prime?s rates. Said another way, when the FAR references ?the rates prescribed in the contract? and ?labor category specified in the contract? are they the rates/labor categories established at the task order level where there?s a real requirement or the underlying MAC/GWAC. I don?t think the FAR was written with task orders issued against MACs/GWACs in mind. My kneejerk personal opinion is that subcontracts are what they are and their rates can be different that the prime?s and would be considered rates prescribed in the task order (contract). I don?t consider subcontractor labor rates and categories established in the task order as incidental services. P.S. I understand that the T&M payments provisions provide for either coming up with blended rates or the subcontract labor can be broken out at the COs discretion (except for DoD which has to have them separated).
  10. Quick question for you guys. Do any of you have experience with or know of Agencies paying for the costs associated with NCMA certifications for employees? Said another way, can agencies do this?
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