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About NavyKGuy

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  1. My agency has received a protest regarding a contract awardee's ability to comply with the contract's SCA provisions at the awarded price. The protester argues that the awarded price is too low for the "Admin Assistant" wage determination labor category that they believe applies. The awardee has confirmed that they used the "General Clerk" wage determination labor category when they priced and they can be reasonably expected to perform at that price. Needless to say, the labor categories are substantially different in terms of their rates and both categories fall within the range identified as "Administrative Support and Clerical Occupations". The solicitation is also silent on which precise wage determination labor category applies Note: We usually just incorporate the entire wage determination and drive on and let the contractors worry about the exact categories. This approach is supported by the fact that I am unaware of an SCA requirement for the Government to specify the applicable labor category in the solicitation/contract. As such, I assume the determination is discretionary to the contractor, the awardee picked smarter/better than the protester and that's how it won the contract. That said, common sense tells me that such discretion is contrary to the purpose of the SCA both in terms of ensuring a reasonable wage and for enabling fair and reasonable competition. I'd appreciate any thoughts or insights and apologize in advance if I've missed something obvious in FAR 22, or the 52.22 clauses.
  2. A contracting officer and lawyer have both told me that I must remove/redact all of a contractor's identifying information (e.g. Company name/Address/Letterhead/contact info) from their technical proposal prior to the technical evaluation panel's review. The fear is that not redacting the identifying information could be used against us in a GAO protest in as much as it could be argued that knowing who the offerors are somehow made the evaluation biased. This sounds crazy to me and a lot of additional work/hassle (some companies have their logo on every single page) that could also easily lead to confusion on the Government's part if I/someone else forgets that HugeCorp should also be known as Offeror "A"...or was it Offeror "B"?. I asked "where in the FAR or GAO case law does it say that proposals must be redacted before technical evaluation " and received no answer. I also googled "Bias" and "GAO" and wasn't able to find any cases that successfully argued "they knew the names of the companies they were evaluating and favored one over the other". Is this a case of training by rumour and innuendo ("we've always done it this way...it avoids bias, yeah, that's what it does"), or is this approach based on some kind of common sense or legal savvy that I'm missing?
  3. A contractor is requesting contracting officer approval to cap his cost rates on a cost plus fixed fee contract he has with the Navy. If his actual cost rates are in excess of pre-established ceilings, the Gov't only pays the ceiling rates. If his costs are less than the ceilings, the Gov't pays the actuals. Sounds like a great deal for the Gov't. Questions: 1. Can the Gov't agree to this? 2. If we agree, is there a FAR provision which permits this? 3. Do we need to address the cap in relation to the CPFF clauses in the contract by changing "contractor will be paid allowable and allocable costs" to "contractor will be paid allowable and allocable costs up to the maximums specified in mod WHATEVER". 4. Am I missing something clever he's doing since the contract he's under is up for re-compete in the next six months? I'm thinking about when I do his cost realism and use his ceiling rates if his actuals are higher, or his actuals if they're lower than his ceiling. Appreciate any thoughts or ideas. Tx, NavyKGuy
  4. J_C_S, the contractor is look for the adjustment of indirects associated with the labor rates (the "time" aspect of T&M), or the materials which they are using? 52.232-7 also addresses material costs.
  5. The U.S. Navy has awarded a firm fixed price indefinite delivery indefinite quantity contract (base plus options) for architecture/engineering (A/E) services associated with the revision of technical manuals dealing with environmental issues. Task orders have been issued specifying performance over multiple years using annual operations & maintenance, Navy (O&M,N) funds. The KO considers the services to be non-severable and the obligation of funds in this fashion acceptable because it is for A/E services. I have the following questions: 1. Can non-severable task orders using annual appropriations have a performance period greater than 1 year? FAR 32.703-3(a) provides an exception for crossing fiscal years for end products that cannot be feasibly divided (i.e. non-severable) and DFARS 232.703-3 permits severable contracts to cross fiscal years as long as performance doesn't exceed 1 year. The duration of non-severable contracts doesn't appear to be discussed. 2. Is this in reality a "multi-year" contract? 3. As a side question, can a firm fixed price contract that permits "progress payments" be considered non-severable? I'd argue that if you can pay for progress on a FFP contract (i.e. "this portion of the work is definitively done and I am paying you for it"), the services are severable? Does this make sense (I ask because the KO is calling the services "non-severable", but permitting partial/progress payments? Tx, NavyKGuy
  6. I'm a Department of the Navy contracting type who hopes to award multiple IDIQ contracts for services that may be performed world-wide. Contracts will each have a five year ordering period and a $100.00 minimum. FAR 16.505((1)(i) states that the KO "must provide each awardee a fair opportunity to be considered for each order exceeding $3,000.00". I read an "opportunity" to be a two-way street where an awardee can opt out of competing for an order. How is this possible under the normal terms of an IDIQ contract where the Gov't maintains a unilateral right to place orders within the contract's specified order parameters? I ask because some of my world-wide locations are wonderful (San Diego/Norfolk/Washington, DC/Naples/Far East/Dubai), but some of my others (Africa/Iraq/Afghanistan)...maybe not so much. A contractor may not want the hassle of doing business there and/or may not be able to find someone who wants to go there even after making a good-faith effort to do so. I give them the "opportunity" to submit an offer. Can they decide not to? Further, they're not the only one of my multiple awardees who decides not to participate...and I somehow end up with no takers for this particular opportunity. What remedies do I have? Are awardees compelled to compete on every order? If "yes", what does that compulsion do to my competitive contract pricing (i.e. I've got some of my contractors "pricing not to win" this particular task order)? If "no", do I have an IDIQ or a BPA? Tx, NavyKGuy
  7. I'm in the process of awarding a firm fixed price contract in support of the Navy housing office. We have furniture (refridgerators/washers & dryers/couches etc.) that we keep in a warehouse and then have a contractor deliver/pick-up when the unit is occupied by a sailor. The contractor also does repairs when the fridges and washer/dryers break-down. Contractor personnel run the warehouse tracking what items are in inventory or coming/going, but the Government keeps the keys to the warehouse and is always there arranging pick-ups/deliveries and dealing with the sailors/other Government personnel (OGP) through a Gov't GS type we'll call "the warehouse manager" and the furniture is only in the "possession" of the contractor when it is on the truck being delivered/picked-up and signed for by the sailors/OGPs. My questions are... 1. Is the warehouse Government furnished property since its never technically in the possession of the contractor i.e the "warehouse manager" has it under his/her control? 2. Is the furniture GFP since it's only in the possession of the contractor from the warehouse (where it's under the Gov't "warehouse manager's" cognizance) to the sailor/OGP who signs for it? From a "property book" perspective, it goes from the warehouse manager to the sailor/OGP and only passes momentarily through the contractor via the contract. I'm contending that it is NOT GFP for various reasons...including the fact that I'd rather not assume the administrative responsibilities of FAR 52.245-1 if I can reasonably justify not having to. Any thoughts?
  8. Formerfed/Brian/Rodolfo, Thanks for your thoughts. I believe that Formerfed's contention "I say that DFARS 237.106(2) applies to orders in your case, but not the contract. Saying that it applies to an IDIQ contract, which doesn't involve the obligation of funds, doesn't make sense" is incorrect because it is based on the erroneous assumption that an IDIQ doesn't involve the obligation of funds. I support this belief via the following statement from the General Accounting Office (B-318046, July 7, 2009): "In the case of an IDIQ contract, the agency must record an obligation in the amount of the guaranteed minimum at the time the contract is executed because, at that point, the government has a fixed liability for the minimum amount to which it committed itself. B-308969, May 31, 2007; B-302358, Dec. 27, 2004." I think that my problem is that I am proposing to use annual appropriations (or "an appropriation limited to obligation for a definite period" which "may be obligated only to meet a legitimate or bona fide need arising during the period of availability of the appropriation" (B-289801, Dec. 30, 2002)) to meet a liability which exists over a 5 year period. Despite the likelihood that my funds will be expended within the period of the availability of the appropriation (i.e. within the first few weeks of the contract or, better yet, the same fiscal year as the annual appropriation), the fact that they might not be is the source of my dilemma. Working thru this, the 1-year base period w/ one 4-year option approach is starting to make sense. Thoughts? Thanks again for everyone's help, NavyKGuy
  9. I'd like to add to this thread with the following scenario... Background: 1. I work for the Navy so the DFARS and Navy policy and regulation apply. 2. I want to award an indefinite delivery, indefinite quantity contract for severable services with a 5 year effective period. 3. The contract schedule specifies a minimum of $10,000.00 and a maximum of $50 million over the 5 year effective period. 4. My minimum is funded/obligated at the time of award using annual operations & maintenance, navy (O&M,N) appropriations. 5. Given that my $50 million estimate is based on prior years' usage ($10 million more/less per year for the past five years), it is reasonable to expect that the $10,000.00 minimum will be ordered well within the first year of the effective period (the first few weeks, most likely). It should also be noted that the contract anticipates the placement of several task orders (with individual values ranging between $5K and $100K), all funded with annual appropriations with none of the orders having a performance period in excess of 1 month. I'm being advised that I cannot have a five year effective period for this contract because DFARS 237.106(2) states "the contracting officer may enter into a contract, exercise an option, or place an order under a contract for severable services for a period that begins in one fiscal year and ends in the next fiscal year if the period of the contract awarded, option exercised, or order placed DOES NOT EXCEED ONE YEAR" (emphasis mine). Apparently, my five year effective period runs afoul of the "does not exceed one year" portion of the DFARS even though I will, in all likelihood, meet the minimum well before one year of the contract goes by. The best I'm being offered is a one year base with one 4 year option...and once the minimum is actually ordered, I can deobligate the original funds and also exercise the option. To me, this smacks of an unnecessary work-around, but the rules seem clear. Unfortunately, my admittedly limited research skills (a quick search of the GAO website and WIFCON) hasn't revealed any ready answer to this problem so I'd appreciate any assit. Tx, NavyKGuy
  10. Gang, Got that you've never heard of "substantial" performance, but it happened to me again today. Room full of people, contract starts on 30 September 2009 using Fiscal Year 2009 Operations and Maintenance, Navy (O&M,N) funds and I was asked by an attorney "are we sure that we will receive some "benefit" from these services before the end of the year? Will there be "substantial" performance?" I'd ask her for the citations supporting her questions, but this attorney is more of a talker to the effect that all questions are answered with "there are GAO cases on this" than an "I'll give you a written opinion with specific case law" kind of a lawyer. This thinking is coming from somewhere...I just don't know where. Any thoughts? NavyKGuy
  11. At this time of year, I am regularly reminded by contracting officers and 1102s that there needs to be "substantial performance" in the correct fiscal year of my Operations and Maintenance, Navy (O&M,N) funded service contracts that cross fiscal years. By this I mean that I'm sitting in an office on the morning of 30 September trying to get approval signatures on an FY09 O&M,N funded service contract with a start date of 30 September 2009 and performance through 29 September 2010 and am being asked "Will there be substantial performance on this before tomorrow?" (As if the answer is going to be "no"). From where precisely does this question/test of "substantial performance" originate, what concrete examples of "passing" or "failing" exist and why do all 1102s apply it with such certainty? I'm familiar with the GAO Red Book's discussion of services rendered beyond the fiscal year (pg 5-23) and the distinctions there concern services which are either severable or entire and personal or non-personal. The "substantial performance" of the services in one fiscal year or the other doesn't seem to enter into the Red Book's discussion, but it certainly has a place of concern in the average 1102 mind I've encountered. I'm curious as to how/why it got into that typical 1102's head and why it's not in mine? NavyKGuy
  12. DoN, Always enjoy your blog, but I'd argue that FAR most definitely requires price analysis for every acquisition governed by the procedures of Part 12, 13, 14 and 15. In support of this interpretation, I note: FAR 12.209 stating that "...the contracting officer must establish price reasonableness in accordance with FAR 13.106-3, 14.408-2 or Subpart 15.4" FAR 13.106-3(a) stating that "Before making award, the contracting officer must determine that the proposed price is fair and reasonable". FAR 14.408-2(a) stating that "the contracting officer shall determine that...the prices offered are reasonable before awarding the contract". FAR 15.402(a) requiring that contracting officers "purchase supplies and services from responsible sources at fair and reasonable prices". How else would one determine a price to be fair and reasonable besides "analyzing" or "examining" or "evaluating" it (FAR 15.404-1((1))? My point, I suppose, is that fair and reasonable price determination by any other name is still price analysis. Other than a question, perhaps, of semantics, what point exactly are you trying to make with your discussion?
  13. NapoliK, Excellent post and I appreciate the info. My specific question concerns the Department of Defense's position on the use of GSA schedules. DFARS 208.404-1 and 208.404-2 previously provided guidance on mandatory/optional use, but these parts were deleted via DFARS Change Notice 20060321. As such, does anyone know when/if use of GSA schedules is optional/mandatory for DoD (specifically Navy)? There doesn't appear to be specific DoD policy, the Navy/Marine Corps Acquisition Regulation Supplement (NMCARS) is silent as is the Naval Supply Systems Command (NAVSUP). Am I missing something, or is it in the Public Law 107-107 National Defense Authorization Act for Fiscal Year 2002 somewhere (referenced in the aforementioned DFARS Change Notice)? Appreciate any thoughts/assistance, NavyKGuy
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