Navy_Contracting_4

For what it's worth, the SBA published a notice in today's Federal Register, officially reinstating subparagraphs (a)(1) through (4) of 13 CFR 125.6. See http://www.gpo.gov/fdsys/pkg/FR-2014-06-03/html/2014-12609.htm.

As Don pointed out, Table 15-2 does say to conduct price analyses of all subcontractor proposals. So while Table 15-2 may not require them all to be submitted as a part of the proposal, you definitely should be prepared to provide them as supporting data to the auditor. You need to demonstrate that you're not going to become the source for the next $42,000 hammer (or toilet seat, or whatever).

Congratulations on reaching that point in your career and your life when you can retire. I hope that you feel it's been a good ride, and that you can truly enjoy riding that hammock. Good luck.

It may be closer than you think. Did you see CONSULTANT LISTS DHS’ MOST (AND LEAST) ANNOYING CONTRACTING OFFICERS or Doing business with DHS: Ranking DHS’s contracting officers ? It certainly isn't CPARS, but it does provide some discrimination between various COs. Who knows where it may lead?

Another possibility that occurred to me for what the drafter had in mind for the use of "indirectly" is to prohibit the company from participating in a joint venture that would contract with Client X for services Y and Z.

I just want to note that there may be occasions where arrangements like that described in this thread are advantageous, and that, at least in DoD, industrial facilities have authority to sell certain articles and services to non-government entities under 10 USC 2563. As for Vern's roundabout scenario with paying money to the contractor, then getting it back only to deposit it into the Treasury, 10 USC 2563 addresses it thusly: "(e) Deposit of Proceeds.— Proceeds from sales of articles and services under this section shall be credited to the funds, including working capital funds and operation and maintenance funds, incurring the costs of manufacture or performance." I don't know about any similar authority at any of the civilian agencies.

It depends on why you're publishing the notice and what your intent is. If you're publishing it to comply with FAR 5.201/203, then Presolicitation Notice is fine. Why would you want to call it a Sources Sought synopsis if you're actually not seeking sources?

Happy Birthday, Bob! Enjoy it. And thanks for all you've done, and continue to do, for the profession, and by extension, for our country.

See also FAR 31.205-32, Precontract costs.

Hasn't this issue been discussed more than once in this forum? Have you searched the forum archives at all? The most recent discussion I can readily recall is at http://www.wifcon.com/discussion/index.php?/topic/2269-can-a-proposal-be-excluded-based-solely-on-price/?hl=lpta. Give it (and the Gold Cross decision cited in Post #4) a look. If you search, I expect you'll find a couple of other discussions, too.

DOD 7000.14-R, Vol. 2, para. 010202, says, in pertinent part: "*010202. Full Funding of Procurement Programs A. General. A budgeting rule that requires the total estimated cost of a, military useable end item, be funded in the fiscal year in which the item is procured. Under the full funding policy, the entire procurement cost of a weapon or piece of military equipment is to be funded in the year in which the item is budgeted. An end item budgeted in a fiscal year cannot depend upon a future years funding to complete the procurement. Regulations governing the full funding policy are found in Office of Management and Budget (OMB) Circular A-11 and DoD Directive 7000.14-R 1. The full funding policy is intended to prevent the use of incremental funding, under which the cost of a weapon system is divided into two or more annual portions or increments. Thus, full funding provides disciplined approach for program managers to execute their programs within cost and available funding. 2. There are two general exceptions to the full funding policy: one permits the use of Advance Procurement (AP) funding for components or parts of an item that have long production lead times; the other permits advance procurement funding for economic order quantity (EOQ) procurement, which normally occurs in programs that have been approved for multiyear procurements (MYP). Advance Procurement funding is used routinely and extensively in the procurement of components for major end items due to manufacturing and production lead times. The use of MYP has to be approved by the Congress on a program-by- program basis. Congressional approval permits DoD to use a single contract to procure multiple copies of a given item that are scheduled to be procured across a series of years. MYP arrangements are governed by 10 USC 2306( . EOQ procurement involves procuring multiple copies of a key component of a weapon covered by an MYP at the start of the MYP period in order to achieve significantly reduced costs on that component. B. Policy for Full Funding. The total estimated cost of a complete, military useable end item or construction project must be fully funded in the year it is procured. There are 2 basic policies concerning full funding. 1. To provide funds in the budget for the total estimated cost of a complete, military usable end item to document the dimensions and cost of a program. 2. Exceptions to this policy are advance procurement for long lead- time items and advance economic order quantity (EOQ) procurement. EOQ may be used only in connection with multiyear procurements. Both efforts must be identified in an Exhibit P-10, Advance Procurement, for the Budget Estimate Submission and the President’s Budget request. ..."

Likewise, using the DFARS website link.

That should be adddressed in the termination notice. See FAR 49.102(a)(3) -"The notice shall state--,,,[t]he extent of termination") and FAR 49.002( - "Contractors shall use this part, unless inappropriate, to settle subcontracts terminated as a result of modification of prime contracts."

FAR defines contract as: “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 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. Contracts do not include grants and cooperative agreements covered by 31 U.S.C. 6301, et seq. For discussion of various types of contracts, see Part 16. [emphasis added] I wouldn't put any stock in the distinction between "contracts" and "purchase orders," insofar as it relates to clause use, however, FAR 52.219-14 is required only in contracts exceeding $150,000, so it won't apply.

Don, It may be available elsewhere, but I found it only at TAB A of the DOD Panel on Contracting Integrity's 2008 Report to Congress. See http://www.acq.osd.mil/dpap/cpic/cp/docs/panel_on_contracting_integrity_20090108.pdf.

Wasn't that memo canceled and superseded December 21, 2005 by DOD Instruction 5000.66? See Enclosure (1) and Paragraph 5.3.12 of the instruction at http://www.dtic.mil/whs/directives/corres/pdf/500066p.pdf. This policy was reinforced by the Deputy Secretary of Defense on August 27, 2008, which I believe is the current expression of DOD policy on the subject.

Don, Good one. Of course, I have to say I consider a requirements contract an acquisition, but you got me on the "use of appropriated funds." I'm going to have to give that some thought. Tomorrow.

August, I respectfully disagree. I think you're missing, or ignoring, an essential part of the definition - "...acquiring by contract with appropriated funds..." BPAs not being contracts in the first place eliminates them from the definition, but also, award of a BPA doesn't involve any funds at all, much less appropriated funds. I think your focus on the "selection of sources" phase is misplaced.

Retreadfed, Why would it concern you if part of the amount claimed for the overrun is really an amount that relates to increased costs caused by the late delivery of the GFP? What are the potential negative consequences of this behavior that cause you concern? What would be the contractor's motivation to get out of certifying in this situation?

Jason, Read FAR 8.405-6(a)(1)(i)(A) - "An urgent and compelling need exists.." [emphasis added.] :-p

Is it clear to both parties how much of the funding is associated with the over-run and how much with the POP extension? Does the modification increase the fee at all?

Rios, August is right. Situations like that occur frequently.

Rios, I recommend you start with your agency labor advisor, as suggested by FAR 22.1008-2(d)(3). Agency labor advisors are listed at http://www.wdol.gov/ala.aspx.

Then I'd say FAR 28.101-1(a) prohibits you from requiring a bid guarantee, unless you're also requiring a performance bond or a performance and payment bond.

Item e. from your post #4 seems determinative that the prices were not changed, notwithstanding the ambiguous wording in item f, which, I assume, was meant to refer to the amount of funding, not the contract price. Did the contractor bill and get paid more than was funded? How could the paying office pay more than the funds available, and more than the contract price? There's a bigger problem if their system doesn't prevent that!