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TAP

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  1. No, it appears to be a REA rather than a claim.
  2. I just did one the other day and in SECTION A - SOLICITATION/CONTRACT FORM I changed the contractor organization to the Transferee. All mods and new task orders will now show the Transferee as the contractor.
  3. According to the Fiscal law Deskbook; "Demolition of an excess facility is always classified as repair." So it appears the use MILCON funds would be appropriate.
  4. It is generally a bad idea to word it that way. It sets the stage for disagreement between the parties as to what all is included. When unreasonable people on either side are involved in the interpretation, it can become a problem. When possible compete the list.
  5. "Q: Did I goof up by incorporating the latest DB wages without giving it an extra thought or heads up to anyone?" Yes, you probably should have issued an amendment with the latest wage determination and gave the contractor a chance to update their pricing accordingly.
  6. As I read this, LPFB is LPTA as opposed to a tradeoff process, but what is "TA" is a moving target. Sounds OK in theory, but I'm not sure how this would work in practice?
  7. If there is such a policy it is probably in an agency supplement. NFAS policy for instance states; "Level III contracting officer approval is required when the price of a modification will exceed the original contract price or when the sum of the modifications issued to date, together with the one proposed, exceeds the original contract price."
  8. vern, Yes, by pricing arrangement I mean contract type and line item pricing structure, which per the decision was Firm Fixed-Price and based on staffing levels. (Example CLIN 0001 Base Year FFP Staffing / QTY 12 / Unit of Issue MONTH X Unit Price = Total Line Item Price) At least that's what I gathered from the decision. I've read the relational contracting article before, and it's a truly great concept. But until it's adopted we have to use performance based service contracts whether they really work well as they are supposed to or not
  9. "Not necessarily. It might be based on both." Quote: "The PWS simply does not require the CFT contractor to perform a defined number and type of tasks (nor does the FON establish pricing by task completion)." Isn't the payment arrangement usually consistent with the pricing arrangement? "Yes. So what? PBC for this kind of requirement is virtually impossible. Trying to write a PWS would be either stupid or fraudulent." But didn't they write a PWS? "How else will the work get done?" By describing the work in terms of outcomes to be accomplished (if possible), and holding them to it. I'm not troubled by combining performance requirements with staffing levels as long as it's clear what they buying. Based on the protest there would seem to be some confusion, and based on the pricing arrangement and decision they are essentially buying qualified staffing. If that's what they want, then fine by me.
  10. So, if the successful contractor is meeting the performance requirements with only 105 FTEs, it is in breach of contract? Yes, it would be in breach of contract with only 105 FTEs. However, this one is a real head scratcher. The FFP portion of the contract has a PWS (or "performance based" SOW), which per the FAR "shall" to the maximum extent practicable describe the work in terms of the required results rather than either “how” the work is to be accomplished or the number of hours to be provided. However, as stated in the decision "the Air Force is essentially buying qualified staffing" (FTE hours). Sounds like a personal services contract? But it's not. The requirements are stated in both performance and staffing terms. Pricing and therefore payment are established by staffing levels, and not by task completion. What? So the Air Force has defined the requirements (with regard to staffing), and established the pricing and payment scheme in such a way that would appear to be in conflict with the whole idea of a performance based services contract? While this may not be prohibited by the FAR, it seems rather odd to me. I'd be curious to see if there was a schedule of deductions for not meeting the performance standards included, or if they try to "supervise" the contractor's employees.
  11. We were once given the following guidance regarding the Buy American Act - Construction, and it's applicability to Utility Energy Service Contracts (UESCs): "Buy America Act (BAA). BAA does not apply to Utilities & Energy Service Contracts. These contracts are considered services NOT construction." However, I don't believe this is correct. BAA applies to contracts for construction, alteration, or repair (see 25.200 & §8303 below). Although technically UESCs are "service" contracts, they usually do include construction, alteration, or repair work (see § 2913 below). I don't think the language in 25.200 or §8303 can be construed to mean it has to be a "construction" contract per se for BAA to apply. I believe the proper reading is that if any contract (be it construction, service, R&D, etc.) includes construction, alteration, or repair of any public building or public work in the United States and none of the exceptions apply, then BAA applies. Another possibility would be that somehow the Executive Order regarding energy conservation, energy policy, or UESC enabling legislation provides a BAA exception. However, I can find no evidence of such an exception. Can anyone shed some light on this situation? Thanks! TAP Subpart 25.2-Buy American Act-Construction Materials 25.200 Scope of Subpart. ( It applies to contracts for the construction, alteration, or repair of any public building or public work in the United States. 25.201 Policy. Except as provided in 25.202, use only domestic construction materials in construction contracts performed in the United States. §8303. Contracts for public works (a) In General.-Every contract for the construction, alteration, or repair of any public building or public work in the United States shall contain a provision that in the performance of the work the contractor, subcontractors, material men, or suppliers shall use only- (1) unmanufactured articles, materials, and supplies that have been mined or produced in the United States; and (2) manufactured articles, materials, and supplies that have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States. § 2913. ENERGY SAVINGS CONTRACTS AND ACTIVITIES (d) Agreements With Gas or Electric Utilities.- (1) The Secretary of Defense may authorize the Secretary of a military department having jurisdiction over a military installation to enter into agreements with gas or electric utilities to design and implement cost-effective demand and conservation incentive programs (including energy management services, facilities alterations, and the installation and maintenance of energy saving devices and technologies by the utilities) to address the requirements and circumstances of the installation.
  12. Workarounds Until SAM is Completely Operational Federal Acquisition Regulation (FAR) Requirements for Contracts: FAR 4.11 – requires contracting officers ensure the entity is registered. For new registrants who have been unable to begin or complete their registration during the SAM implementation period – contracting officers may always consider good faith attempts of new vendors to register and use their judgment accordingly along with the exceptions that FAR 4.1102 allows. Although if a contracting officer does employ an exception based on the inability to register, they should ensure that the vendor realizes they must complete their registration as soon as capable as to not impact payment processes once they begin to invoice.
  13. Vern, Yes, I've seen this before and "Relational Contracting” is a truly great concept that merits consideration, and could well be applied to BOS facility service contracts. This is the kind of contract I administer and had in mind ($250M 10yr BOS contract). With BOS service contracts you do have an ongoing, long-term relationship, and therefore really do need to have a good working relationship with the other party. "Relational Contracting” takes the idea of "partnering" to a whole new level, and would require a much different mindset then many folks in Government contracting now have, which could be a good thing. As Albert Einstein said, “We can't solve problems by using the same kind of thinking we used when we created them”. But "Relational Contracting” would be a quantum leap from where we are now with the “Performance-Based” BOS service contracts that I administer. I’ll spare you the details, but there’s a really good Guide to Specification Writing for U.S. Government Engineers by John Oriel, NAWCTSD on the NAVAIR website. The BOS contract that I administer probably breaks every spec writing rule in the guide, along with several more. If we could start with a decently written contract to begin with, then we’d be well ahead of where we are now and I do believe it would save time, energy and resources. If we could take that small step first, then it may be possible to that quantum leap to "Relational Contracting” in the future. As always, I appreciate your thoughts and reply. http://nawctsd.navair.navy.mil/Resources/Library/Acqguide/spec.htm
  14. http://saveaward2012.ideascale.com/a/dtd/Open-Process-to-Develop-Standards-for-Service-Contracts/378530-19787
  15. Does anyone else find the Comptroller General protest decision "Ambiguity, latent, patent. See IAP-Hill, LLC, B-406289, B-406289.2, B-406289.3, Apr 4, 2012. (May 29, 2012)" a little odd? The protester asserted latent ambiguity, which technically is not correct. But there is a conflict or patent ambiguity between the following: The new CBA which included escalated wage rates. Pargraph B.11 UNIT PRICE ADJUSTMENTS IN OPTION PERIODS of the RFP which states "offerors shall not include escalation of wage and fringe benefit rates for Service Contract Act covered employees" in option years. 52.222-41 Service Contract Act of 1965. Paragraph (f) Successor contracts. Which states neither the Contractor nor any subcontractor under this contract shall pay any service employee performing any of the contract work less than the wages and fringe benefits provided for in such collective bargaining agreement. 52.222-43 FLSA and SCA—Price Adjustment. Paragraph ( The Contractor warrants that the prices in this contract do not include any allowance for any contingency to cover increased costs for which adjustment is provided under this clause. If a contractor is required by contract to comply with the new CBA which included higher minimum wages and fringe benefits payable to service employees in the option years, then no adjustment should be provided by clause 52.222-43 when the options are exercised since those minimum rates are already included in the contract. In other words, protester loses the protest but couldn't the winning contractor be required to comply with the new CBA option year amounts with no adjustment? Generally contractors may only request a contract price adjustment if the contracting officer modifies the contract to incorporate a new or revised wage determination. They wouldn't necessarily have to do so in this case since it's already included.
  16. I seems like you're expecting the contractor to propose and pay more than SCA requires to be competitive within the local market. That being the case they would not be due a price increase due to SCA wage increase since they are already paying more than SCA. (Example; SCA $17 + fringes, contractor pays $25 + fringes. If SCA wage rate increases from $17 to $20, the contractor is not due a price increase due to SCA wage increase.) Therefore no violation of unallowable contingency for increased costs for which adjustment is provided under 52.222-43, because adjustment is not provided for under the clause if they are already paying more than SCA.
  17. Yes, that is the real question. FYI, per the SCA price adjustment desk guide regarding adjustment for taxes and insurance: "Employer payroll taxes that are calculated as a percentage of wages paid are included in the wage differential calculation to the extent that these taxes apply to the actual wage adjustment, and to the extent that the particular tax is allowable under this clause. Allowable taxes are the Social Security taxes (Federal Insurance Contributions Act, or FICA), Federal unemployment taxes (Federal Unemployment Tax Act, or FUTA) and state unemployment taxes (state unemployment tax acts, or SUTA), and workers' compensation insurance (WCn). Only the employer's share of taxes is allowable. No adjustment is allowed under these clauses solely for tax rate increases. However, the tax rate applicable to the contractor for the period being adjusted should be used in computing the payroll tax portion of the adjustment." As I read this, if no wage/H&W increase is due under the clause, then neither is an adjustment for taxes and insurance.
  18. " The Contractor warrants that the prices in this contract do not include any allowance for any contingency to cover increased costs for which adjustment is provided under this clause." This does not mean they can't pay their employees more than SCA. If SCA says $20.00 per hour + $3.50 H&W let's say, and they propose $21.00 + $4.00 H&W for a given year. If that's what they want to pay their employees, nothing provents them from doing so. If the SCA then happened to increase to $21.00 + $4.00 H&W for that year, the contractor would not be due an adjustment under the clause for this increase.
  19. If it's within the simplified acquisition threshold, then it's permitted per FAR part 13, and no J&A should be required. See 13.106-1(. (Sorry about the posts above. Apparently it doesn't like my cut and pastes?)
  20. <p class="MsoPlainText" style="margin: 0in 0in 0pt"><font color="#000000"><font face="Consolas">( Soliciting from a single source. (1) For purchases not<o:p></o:p></font></font></p> <p class="MsoPlainText" style="margin: 0in 0in 0pt"><font color="#000000"><font face="Consolas">exceeding the simplified acquisition threshold, contracting<o:p></o:p></font></font></p> <p class="MsoPlainText" style="margin: 0in 0in 0pt"><font color="#000000"><font face="Consolas">officers may solicit from one source if the contracting officer<o:p></o:p></font></font></p> <p class="MsoPlainText" style="margin: 0in 0in 0pt"><font color="#000000"><font face="Consolas">determines that the circumstances of the contract action deem<o:p></o:p></font></font></p> <p class="MsoPlainText" style="margin: 0in 0in 0pt"><font color="#000000"><font face="Consolas">only one source reasonably available (e.g., urgency, exclusive<o:p></o:p></font></font></p> <p><span style="font-size: 11pt; font-family: 'Calibri','sans-serif'; mso-ascii-theme-font: minor-latin; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin; mso-bidi-font-family: 'Times New Roman'; mso-bidi-theme-font: minor-bidi; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA"><font color="#000000">licensing agreements, brand name or industrial mobilization).</font></span></p>
  21. <p align="left"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2">If it's within the simplified acquisition threshold, then it is is permitted per FAR part 13, and no J&A is required. </font></font></font></font></p> <p align="left"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"> </font></font></font></font></p> <p align="left"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2">( </font></font><i><font face="TimesNewRomanPS-ItalicMT" size="2"><font face="TimesNewRomanPS-ItalicMT" size="2">Soliciting from a single source. </font></font></i><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2">(1) For purchases not</font></font></font></font></p> <p align="left"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2">exceeding the simplified acquisition threshold, contracting</font></font></font></font></p> <p align="left"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2">officers may solicit from one source if the contracting officer</font></font></font></font></p> <p align="left"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2">determines that the circumstances of the contract action deem</font></font></font></font></p> <p align="left"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2">only one source reasonably available (</font></font><i><font face="TimesNewRomanPS-ItalicMT" size="2"><font face="TimesNewRomanPS-ItalicMT" size="2">e.g., </font></font></i><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2">urgency, exclusive</font></font></font></font></p> <p><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2"><font face="TimesNewRomanPSMT" size="2">licensing agreements, brand name or industrial mobilization).</font></font></font></font></p>
  22. Sure, as a negotiating tactic the CO is correct to cite 31.205-26(e) or anything else for that matter as a basis for wanting to reduce the affiliates proposed by price by 10% for disallowance of profit. But technically speaking, no, the cost principles really don't apply. You only need to come to agreement on a fair and reasonable price overall and not necessarily on each element of cost.
  23. This practice is entirely unethical. It goes against the guiding principle for the Federal Acquisition System to; "Conduct business with integrity, fairness, and openness."
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