TAP

In my agency PowerPoint presentations are used for the debriefing, but not to document the Source Selection decision which is contained in the board reports & SSA decision itself. The debriefing should mirror the source selection criteria of the RFP and Source Selection Plan, and contain what is required by FAR Subpart 15.5.

The interpretation and enforcement of the Warranty of Construction Clause (FAR 52.246-21), with respect to the extension of the warranty period when repairs are performed during the one year warranty period, revolve around the interpretation of paragraph (d) of the clause which is reproduced below. "(d) The contractor shall restore any work damaged in fulfilling the terms and conditions of this clause. The Contractor's warranty with respect to work repaired or replaced will run for 1 year from the date of repair or replacement." Interpretation of this clause by the Armed Services Board of Contract Appeals (Humphrey Heating and Roofing. Inc., ASBCA No. 29730 (Nov. 8, 1984)) concluded that the one year extension applies only to replacement or repairs to work of property which was consequentially damaged in fulfilling the terms and conditions of the clause and not to the warranted item itself.

When I see the term "Evaluation Plan", I think of acquisitions conducted under FAR Part 13 procedures or FAR Part 16 orders placed against IDIQ contracts. SUBPART 13.1?PROCEDURES "Formal evaluation plans and establishing a competitive range, conducting discussions, and scoring quotations or offers are not required." SUBPART 16.5?INDEFINITE-DELIVERY CONTRACTS "Formal evaluation plans or scoring of quotes or offers are not required." Normally the evaluation factors for award would be contained in the RFQ or RFP itself. No formal plan required.

There are reasons a contract value may double which would not be considered out of scope, but if it was just "to add work" as stated in the question then generally speaking yes it would probably be considered out of scope.

Options which the Government has a unilateral right to exercise must be exercised per the option clauses included in the contract. If the option is expired, it?s really no longer an option available for the Government to exercise. Contractor?s may hold their option prices and in some instances gladly accept such a modification as a supplemental agreement (whether or not that?s right or wrong), but when it?s expired, it?s expired and there?s no more option available for the Government to exercise.

Look in the "PRICE AND PAYMENT PROCEDURES" SPEC SECTION, division 01, probably spec number 01 20 00.00 20 or thereabouts. It should cover payment for materials.

It's no incentive at all to offer to charge nothing unless the job gets done. Award of the contract would constitute an obligation of appropriated funds, and the CO would have to record an obligation by putting a fund cite on the contract document, otherwise you wouldn't have a valid contract. It's not like 100% completion was an option to be exercised later. TAP

There was nothing else I could do. They actually put the following language on the funding documents: "These funds are issued in anticipation of the enactment of the FY11 DOD Appropriation Act or passage of an FY11 Continuing Resolution Authority (CRA), and are subject to the provisions of whichever act becomes applicable. Obligate after 01 Oct 2010." "It is expected that most activities of the Department of the Navy will begin FY 2011 under a Joint Resolution extending funding authority, pending enactment of FY 2011 DOD Appropriations. Subject to and consistent with the appropriate availability or limitation of the funds clause contained in the contract associated with this document, the initial allocation made here provides FY2011 funding authority for the Continuing Resolution (CR) period, in the amount of $ 63,465.42 effective 01 October 2010. The anticipated annual commitment authority in the amount of $ 761,585.01 is authorized; obligational authority will be adjusted upon enactment of (any) additional CRA to reflect the new CRA apportionment or the FY2011 DOD Appropriations Act." They only funded 1/12th of the anticipated annual commitment authority for some of the customers?

I try not to write clauses. FAR, DFARS, NMCAS, and NFAS approved clauses should cover what we need to cover. But, you're right in that some contractor could make that arguement especially if there's a lapse in funding when funds are not put in place until after the fact. The contractor is performing at their own risk. This is not good. But as you say, they want the work and know uncle sam has deep pockets. So it's a risk the're apparently willing to take.

The language; "Funds are not presently available for performance under this contract beyond .................. The Government's obligation for performance of this contract beyond that date is contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment may arise for performance under this contract beyond, until funds are made available to the Contracting Officer for performance and until the Contractor receives notice of availability, to be confirmed in writing by the Contracting Officer." Per the contract the contractor is paid a fixed equal amount each month. The unit of issue is month and quantity is 12. So yes they perform, and we accept services one month at a time.

OK, maybe I should have said the availability of funds clause permitted this. The CRA language required us to do so according to our financial folks. Which by the way, I didn't agree with.

No, not under the particular option clause used to exercise the option. But it wasn't expressly forbidden either and the thinking is the availability of funds clause and CRA language permitted this.

The option was exercised for 12 months per the options clause, but funded 1 month at a time until all necessary funds were available for the entire year.

We also had to fund our service contracts that way at the begining of the year. When I exercised the option, I stated in the mod: "In accordance with contract clause FAR 52.232-19 AVAILABILITY OF FUNDS FOR THE NEXT FISCAL YEAR (APR 1984), funds are not presently available for performance under this contract beyond 30 Sept. 2010. The Government's obligation for performance of this contract beyond that date is contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment may arise for performance under this contract beyond, until funds are made available to the Contracting Officer for performance and until the Contractor receives notice of availability, to be confirmed in writing by the Contracting Officer. When available, funds for the Firm Fixed-Price portion of the contract will be obligated on separate Task Order." Then funds had to be put in place by the first of every month. On the funding task order I stated: "In accordance with FAR 52.232-18, AVAILABILITY OF FUNDS (APR 1984), and as authorized by the enactment of the FY 2011 DOD Appropriations Act, funds in the amount of $8,220,360.38 are hereby obligated for performance on the Firm-Fixed-Price Work in the third option year, CLINs 3001, 3002 & 3003. Funds are presently available for performance under the contract for the period of 10/01/2010 through 10/31/2010." But as I said, I made sure I issued the task order to have funds in place by the first of the month.

Since there's not a FAR definition of "submitting", I would say it then has the same meaning as it does when used elsewhere in FAR Part 15. In other words, like when when "submitting" a proposal in response to a RFP. It has to actually be received as the designated place, by the specified time. Well that's my 2 cents worth.

DFARS 204.7104 Contract subline items states: ?Exhibits may be used instead of putting a long list of contract line items or subline items in the contract schedule.? Example: ID/IQ service contract for a base and 4 option years with 100 ?line items? each year. The contract Section B structure would be 5 CLINS, one for each year, and the ?line items? would actually be ELINS. The Unit of Issue for the CLINS would be $US, and the Unit Price $1.00. Let?s says you wanted to order 20 different services (?line items?) off of the schedule totaling $50K. You actually have only one CLIN to match in SPS, the appropriate Base or Option Year ID/IQ CLIN. You order a quantity of 50,000 $US off of that CLIN. The task order SLIN is an informational ?placeholder? for the payer referencing the fund ACRN and funding document number from Section G. The actual ?line items? or ELINS ordered would be on an exhibit external to SPS. This is the way we do it at NAVFAC. I don?t pay my particular service contracts through WAWF, but I know others in my that office do. You might want to check out DAU?s CLC 033 Contract Format And Structure For Dod E-Biz. I hope this helps. TAP

DWGERARD, Regarding your comment about big ID/IQ contracts, with 6,000 line items: "For that contract, the generation of DO's, matching CLINS and other technical procedures takes up to 45 minutes to complete, while the 1102 sits on their hands and waits. Somehow I think that there is a better way to do that, but I have not done the research to find that solution. The command is looking at it now but has not resolved it either." The simple answer would be to use Exhibits (ELINS) external to SPS, vice an extensive list of CLINS/SLINS in SPS. TAP

Vern, Yes, that makes perfect sense. Regarding a contracting agency?s discretion to determine its needs and include restrictive requirements ?only to the extent they are necessary to satisfy the agency's legitimate needs.? The legitimate needs should be established in the agency's actual program requirements. Using the rifle example, sure there would be no objection to buying a more efficient rifle. But if one contractor proposed providing storage cases which were not ?necessary? to satisfy the agency's legitimate needs, then they should not pay a premium for the cases. If they needed the cases they should have asked for them. Going along with your previous post on this subject, I believe source selection trade-off procedure is often misused. The connection I was trying to make was that if either the RFP requirements or contractor?s proposed solution exceed the minimum, essential, validated requirements of the program for which an agency is contracting for, then any premium paid may or may not be a necessary expense? The ?discretion? to determine its needs may have already been exercised by the agency when it established its overall policy documents for carrying out its mission. The specifier needs to follow those policy documents and not add requirements just because they think they?re a good idea. Thanks for the lesson! TAP

Vern, I'm a bit confused about your comment "There is no rule that the Government can buy only its minimum needs." The excerpt below is from the Guide to Specification Writing For U.S. Government Engineers by John Oriel, NAVAIR TSD: The specifier's authority "Here we have a civics lesson that deals with a topic fundamental to all modern forms of government: limitations on the authority of officials. It summarizes the essential difference between writing specifications for public contracts and writing them for private-sector work. Public policies imposing limitations on the authority of officials were developed in order to prevent the kinds of corruption that prevailed under the feudal system. Abiding by those policies is among the most fundamental of our responsibilities as government workers. As you probably know, the actual authority to obligate the Government contractually is held only by contracting officers, and the actions of those officers are very tightly constrained by extensive regulations. The work we do as acquisition engineers is actually in support of those contracting officers. We attend to the complex technical details while they take care of the complex legal and administrative details. By being delegated such responsibility, we also make a lot of decisions that affect the scope of the work to be done by contractors and the duties that must be performed by the Government. Along with this bit of delegated authority come the necessary limitations. For example, government engineers have authority to specify only minimum, essential, validated requirements. Such requirements should always be traceable to higher-level documentation, and should always be defensible in concrete terms of need. That means you can't specify a performance or design feature just because you think it's nice to have or is the latest and greatest thing to come from the vendors." I always assumed the above quote was correct, although I can not find any reference to the "minimum needs doctrine" as such. When I also consider "The Necessary Expense Doctrine" of appropriation law, I conclude the quote is correct. Isn't this very similiar to the "minimum needs doctrine" mentioned in the Doke testimony? So if the government has the authority to specify only minimum, essential, validated requirements, what gives it the authority to buy (or pay a premium for) more? Just trying to understand? Thanks! TAP

FAR 16.702 -- Basic Agreements. (2) "A basic agreement is not a contract." How is this statement in the FAR not applicable? TAP

Where is the consideration, on the FSS, the BPA, or the Order? My understanding is that it is upon placement of the order. But I could be wrong. TAP

BPA?s are not contracts because they lack some of the necessary elements of a contract. The elements of a contract being, offer, acceptance, consideration, legality of purpose, and competency of parties. The offer, acceptance, and consideration occur on the ?calls? when actual purchases are made. TAP

Vern, Yes, that's what I thought as quantity is not one of the items listed in the changes clause. But it seems that with other contracts you can bi-laterally change pretty much anything that's within the general scope of the contract. Per NFAS higher level approval is required when a mod will double the original price of the contract. I realize better acquisition planning would have provided more realistic IDIQ quantities, but now I'm stuck administering a ten-year $200+M contract that doesn't meet customer's needs and I have no way to fix it? Thanks! (3) 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. This approval is not required for utility service contracts with approved tariffs.

OK, I guess I should have been more specific. I'm asking about a modification that would increase the IDIQ amount by either increasing quantities or adding IDIQ line items to the schedule. Thanks!

For combination FFP/IDIQ contracts containing the standard NAVFAC clauses and language below, would a modification (as referred to in 5252.216-9313) to exceed the maximum dollar value of the contract be considered "out of scope" and subject to the requirements of FAR 6.302 -- Circumstances Permitting Other Than Full and Open Competition? In other words, require a J&A? Thanks! TAP Per NFAS 16.504-101 Facilities support indefinite quantity contracts: (a) The contract amount on the award document shall be the total of the extended unit prices for each line item for the base year. ( The "quantity" column on the Schedule shall be marked "Estimated". © The solicitation shall advise the contractor that once the estimated quantities for individual line items shown in the Schedule have been ordered, additional quantities may be ordered as long as the overall not-to-exceed (NTE) amount of the contract per year is not exceeded and the contractor agrees by signing the task order. 5252.216-9310 COMBINATION FIRM FIXED-PRICE/INDEFINITE QUANTITY CONTRACT (MAR 2002) (a) This is a combination firm fixed-price/indefinite quantity contract for the supplies or services specified, and effective for the period stated in the Schedule and any accompanying exhibits. Work items for the fixed-price portion are identified in the Schedule and any accompanying exhibits and include all work except that identified as Indefinite Quantity. The fixed-price quantities shown in the Schedule and any accompanying exhibits are considered to be accurate estimates for this contract period. ( Work items for the indefinite quantity portion of the contract are identified in the Schedule and any accompanying exhibits. The quantities of supplies and services specified in accompanying exhibits and the Schedule as Indefinite Quantity are estimates only and may be ordered by issuance of separate task orders. © Delivery or performance shall be made only as authorized by orders issued in accordance with FAR clause 52.216-18. Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule and any accompanying exhibits up to the contract stated maximum. The minimum guarantee of work to be ordered is the firm fixed-price portion of the contract. (d) Except for any limitations on quantities in FAR clause 52.216-19, in the Schedule, and in any accompanying exhibits, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations. Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the contractor's and Government's rights and obligations with respect to that order to the same extent as if the order were completed during the contract's effective period. (End of clause) 5252.216-9313 MAXIMUM QUANTITIES (JUN 1994) As referred to in 5252.216-9310, "COMBINATION FIRM FIXED-PRICE/INDEFINITEQUANTITY CONTRACT" clause, the minimum guarantee of work is the firm fixed-price portion of the contract. The maximum dollar value of the contract is the total dollar value of the fixedprice and indefinite quantity Items. The maximum shall not be exceeded except as may be provided for by formal modification to the contract. (End of clause)