Jump to content
The Wifcon Forums and Blogs


  • Content count

  • Joined

  • Last visited

Everything posted by TAP

  1. TAP


    In either scenario the contractor would be required to pay the prevailing wages as determined by DoL retroactively from the start of the contract, and would not be entitled to an adjustment to the contract price.
  2. TAP

    Contractural Threshold

    Take a look at FAR 52.219-14 Limitations on Subcontracting, and the clause prescription; "The contracting officer shall insert the clause at 52-219-14, Limitations on Subcontracting, in solicitations and contracts for supplies, services, and construction if any portion of the requirement is to be set aside for small business and the contract amount is expected to exceed $150,000." This may answer your questions.
  3. Per our desk guide for SCA contract price adjustments that would be considered a business expense (G&A or overhead) and not allowable as part of the contract price adjustment.
  4. I agree with Drabkin for the reasons stated. Clearly this phrase is written as future tense. May not be what was intended, but that's how it is written.
  5. TAP

    Multiple award preference

    Yes, I could imagine such a set up working quite well on a large BOS contract for example, with IDIQ line items for certain over and above facility repair work such as roofing, HVAC, fire protection, elevators, security systems, etc. It might make sense to put all them under a single solicitation, and then make multiple awards for the various items of work whether single or multiple offerors get awarded contracts for specific CLINs.
  6. 1. Yes 2. SBA 3. 8(a) Program Participant
  7. TAP

    A response to a call for comments

    Here are just a few: Government Property clauses included in the contract conflict with the PWS and with each other. No Davis-Bacon Act wage determination included in the contract. Only reference to requirements for Davis-Bacon Act wage rates in the PWS is for certain IDIQ work. However, FFP does include some mention of "construction" work, and allows for service calls exceeding the 32 hours (which could be construction) to be completed under the IDIQ portion of the contract for the hours over 32. Per DFARS if a Davis-Bacon Act trade is involved in a repair exceeding 32 hours it is all considered construction. PWS language regarding termination conflicts with the contract termination clauses. There are many, many more examples.
  8. TAP

    A response to a call for comments

    I was once asked how we were going to solve the numerous problems we encountered on our $250M, 10 year Base Operating Support (BOS) facility service contract. Although I provided my input at the time, perhaps a better answer would have been “an ounce of prevention is worth a pound of cure” as Benjamin Franklin famously said. In other words, it’s better to avoid problems in the first place rather than deal with them after they arise. After the contract has been awarded and performance begins, things tend to get complicated. You can avoid many problems by writing the performance work statement (PWS) in clear, concise, consistent, and legally enforceable terms, and in agreement with the contract overall. I've read the “Proposal for a New Approach to Performance-Based Services Acquisition” article, and this is truly a great concept that merits consideration and could well be applied to BOS service contracts. But I also agree with the idea of “Improving statements of work to improve contract management.” The folks who write the PWS often lack a basic understanding of contracting principles and other rules and concepts that need to be considered when writing the PWS. The result is that much of the Government’s and contractor’s resources post award that could otherwise be directed towards the actual services under contract, are instead spent interpreting, clarifying, correcting, debating, and modifying the terms and conditions of the contract itself. I call this the “opportunity cost” of a poorly written contract. Time and effort is wasted, and quality of service, timeliness, and customer satisfaction often take a back seat. Not to mention the detrimental effect this has on the partnering relationship between the parties, as well as the equitable adjustments and claims that are sure to follow. A new approach to Performance-Based Services Acquisition might be good, but if we can’t get it right now with the current approach I really don’t see us mastering concept of "Relational Contracting” with much success. I do like the idea of Statements of Objectives (SOO), and believe that getting industry, stakeholders, and subject matter experts involved early in the template writing process, and then following the template approach as key to writing better SOO/PWS and resulting contracts.
  9. TAP

    BAA/TAA COTS exception

    No, you understood correctly. It appears I misunderstood or misremembered some guidance I was given years ago on the subject by our lawyer. But the components (AHU sections) weren't domestic anyways, so in this case it really didn't matter. Thanks for straightening me out though. I learn something new every day.
  10. TAP

    BAA/TAA COTS exception

    As the Canadian made AHU sections weren't manufactured in the United States I don't see how I erred. Simple assembly of those section doesn't constitute being manufactured in the United States. 52.225-9 Buy American-Construction Materials. “Domestic construction material” means- (1) An unmanufactured construction material mined or produced in the United States; (2) A construction material manufactured in the United States, if- (i) The cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or (ii) The construction material is a COTS item.
  11. TAP

    BAA/TAA COTS exception

    Vern, I may have mixed up some TAA terminology here, but I think to determine the country of origin it's essentially the same. I had a contractor who wanted to "assemble" non-domestic construction material (in this case a large AHU that comes from the manufacturer in sections) on-site and call it "domestic". Naturally I told him no. He then asked what if they assembled it off-site? I told him that such assembly doesn't substantially transform the AHU and therefore wouldn't qualify as "domestic". Not to mention the sections would come from Canada, the contract was below the TAA threshold, and the AHU would have to be disassembled first to physically fit into the mechanical room and then reassembled. They had to substitute an American made AHU for the Canadian made one they were planning to use for the project.
  12. TAP

    BAA/TAA COTS exception

    To meet the Rule of Origin test an article has to be “substantially transformed into a new and different article.” Acceptable would be actual manufacturing and/or meaningful and complex assembly. The gist of this is that to qualify, most of the value in the product must originate in the “designated country”.
  13. "The CO is stating that the award cannot be made to that vendor because the NAICS is not resident in SAM." How do they come up with these things? With this logic a contractor would have to list all possible NAICS codes in SAM they potentially might want to compete for or otherwise risk being excluded from award. There was a "Federal Contracting Myths" blog thread a while back, and it never ceases to amaze me all the "myth-information" that exists in the 1102 world. Here's another one: "While it would be convenient to extend the contract performance period beyond one year, the only way to extend a performance period is by use of an option to extend the performance period. If that were possible to extend a contract beyond the performance period without the use of option periods, we would have "extended" the performance period on the IDIQ ______ contract, as we had a lot of capacity remaining, but it had no additional options. So the Government had to re-procure." In this context we were discussing the possibility of extending an IDIQ contract that was awarded on sole-source basis under the SBA's 8(a) program. See if you can find all the myth-information.
  14. I didn't say you had to do a notice and then a solicitation. I would probably only do so if I had 2 or more small business, as well as other than small businesses, and I planned on soliciting as a small business set-aside. If 2 small business didn't respond I'd then go unrestricted.
  15. I don't see anything wrong with using RFP in the context of requesting proposals for a new task order against a multiple award contract. If you had 2 or more small business you could send out a "notice" of a planned small business set-aside for a new task order, then based on the response send out the actual task order "solicitation" (RFP) accordingly once the acquisition strategy was determined.
  16. Joel, I understand that no adjustment is provided for the G&A, Overhead or profit elements under paragraphs (d) and (e) of clause 52.222-43, and that's not what I am saying. It's understood that the adjustment is provided under the clause to reflect the Contractor’s actual increase or decrease in applicable wages and fringe benefits, social security, unemployment taxes and workers’ compensation in order to comply with a new wage determination. But if a contractor includes contingency for G&A, Overhead or profit for a potential increase in wages and fringe benefits that may or may not happen, then it is to cover increased costs (G&A, Overhead or profit associated with a potential increase in wages and fringe benefits) for which adjustment is provided under the clause. I don't think that was intended and I don't think it is right, but as written it could be interpreted it that way.
  17. You just got to love wording like this; "any allowance for any contingency". So to answer your question, yes this would be a violation. Strictly speaking it's an allowance for contingency to cover increased costs for which adjustment is provided under the clause. Although, perhaps that's not what was intended.
  18. TAP

    HVAC work on non-building

    With the total estimate being $30k with $15k being the price of the 3 units "and the rest labor", then the labor wouldn't be incidental to the purchasing of supplies, and if performed on Government property would have to be covered by either DBA or SCA. Since it's not a building or public work, then it would not be DBA. The definition of 23410 HEATING, VENTILATION, AND AIR-CONDITIONING MECHANIC, in the SCA DIRECTORY OF OCCUPATIONS reads: "The Heating, Ventilation, and Air-Conditioning Mechanic installs, services and repairs environmental-control systems..." So I would say the installation would be considered service work covered by SCA.
  19. I had this happen on a DBA covered contract as well. What I told the 8(a) contractor was: “See the attached response from the US Department of Labor to your request for an additional classification and wage rate to General Decision Number XXXXXX, contract XXXXXX-XX-X-XXXX. As stated in the letter, the conformed rate for "Glazier" is $12.92 per hour. This is the minimum wage for all workers performing in this classification under this contract. This conformed wage rate will be paid retroactively to the first day work was performed in this classification. No contract modification or price adjustment shall occur as a result of this conformance.” They had proposed a wage rate of $10.00 and all were in agreement, but DOL said $12.92 per hour.
  20. A “conformance” per FAR 52.222-6 Davis-Bacon Act approves additional classifications. It does not change the contract or add a new wage determination. Theoretically the conformance process just enforces © (1) (iii) below ensuring the contractor pays a reasonable rate in compliance with the clause. “…©(1) The Contracting Officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The Contracting Officer shall approve an additional classification and wage rate and fringe benefits therefor only when all the following criteria have been met: … (iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.” The contractor in my case was told this was between them and DOL. They could dispute it with DOL, but felt it was in their best interest to agree instead so they had to eat the costs. They were a SDVOSB as well, and the amount was over $50K.
  21. Unless the Contracting Officer actually changes the contract, then there is no "change" to the contract and no basis for entitlement. The contractor could have pursued this prior to award, but instead took a chance. So contractually this is on them as unfair as it may seem. I had a similiar thing happen in a SCA situation, and that was the outcome.
  22. Is the contractor allowed an equitable adjustment for this much higher rate? Sure, if you decide to allow it. However, they are not entitled to it and you are not required to pay it. It may not seem fair, but that's the way it is.
  23. We do include the applicable clauses. What I said was if we have pre-priced ELINs (typically a single award IDIQ) then we don't include a new wage determination because the prices are for the option period and the wage determination included at the time the option was exercised covers the option period. If it doesn't have pre-priced ELINs (typically a MACC) then we do include the current wage determination with the RFP becase there is no established pricing for the option period and no need to include a wage determination when the option is exercised because there is no established pricing that may need to be adjusted if wages and H&W were increased.
  24. jwomack "“Contract” means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise“Contract” means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise wise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications.wise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications...." In this would include a task order. If the IDIQ basic contract is already priced, that is to say it has pre-priced ELINs, then we don't include a new wage determination. If it does not have pre-priced ELINs, then we do include the current wage determination with the RFP and task order.
  25. TAP

    Is this a claim?

    Our command's process for REAs states; "Verify that Contractor's letter clearly states that the request is an REA (versus a contract claim)." And, "Immediately obtain written clarification from the Contractor if the Contractor’s letter does not clearly identify whether the request is an REA or a claim." Also, DFARS 243.204-70 talks about converting the request (REA) to a claim under the contract disputes act. Maybe it's a distinction without a difference? But unless I knew the contractor's intent was to file a claim and that there was an actual dispute, I would have assumed it was a REA. You learn something new every day. Thanks Vern!