napolik

Then, you should be OK. I suspect that Don is worried about a conflict with this GAO decision: Harris IT Services Corporation, B-411699,B-411796, Oct 2, 2015. He is well aware of it. See it here: https://www.gao.gov/products/B-411699,B-411796

In reviewing FAR 19.805-2 and the clause 52.219-18, the answer appears to be February 20, 2019, the date responses to the solicitation are due. Normally, the responses include Section K Reps and Certs. Since the procurement is being conducted as an 8(a) competition pursuant to FAR 19.805, the solicitation must include clause 52.219-18:

I didn't cite this because of these words: One can establish contracts of different types under other FAR Parts.

16.104 -- Factors in Selecting Contract Types. There are many factors that the contracting officer should consider in selecting and negotiating the contract type. They include the following: (e) Combining contract types. If the entire contract cannot be firm-fixed-price, the contracting officer shall consider whether or not a portion of the contract can be established on a firm-fixed-price basis.

A: To answer both Qs 1 and 2, since you are talking about modifying a commercial contract then you will be referencing 52.212-4. This clause calls for all modifications to be bilateral (as stated in the clause part (c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties). You make mention in your question that you tailored the language in your contract to allow for administrative modifications to be unilateral. If this is the case, then proceed.

Per Black's Law Dictionary: provision. 1. A clause in a statute, contract, or other legal instrument. 2. A stipulation made beforehand. See PROVISO. proviso: 1. A limitation, condition or stipulation upon whose compliance a legal or formal document's validity or application may depend.

From the Fourth Edition of the Government Contracts Reference Book:

https://www.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=3&cgiQuestionID=109722

You may be able to modify the clause to permit the Government to issue unilateral changes if such a practice is consistent with customary commercial practice. If it is not consistent with customary commercial practice (I believe this to be the case), you may be able to modify the clause if you obtain a waiver per your agency's procedures. I believe it is unlikely you have the basis to do so, but you make that decision after you look a the the FAR and a GAO decision. See FAR 12.302( c): (c) Tailoring inconsistent with customary commercial practice. The contracting officer shall not tailor any clause or otherwise include any additional terms or conditions in a solicitation or contract for commercial items in a manner that is inconsistent with customary commercial practice for the item being acquired unless a waiver is approved in accordance with agency procedures. The request for waiver must describe the customary commercial practice found in the marketplace, support the need to include a term or condition that is inconsistent with that practice and include a determination that use of the customary commercial practice is inconsistent with the needs of the Government. A waiver may be requested for an individual or class of contracts for that specific item. See a discussion of such waivers in the GAO decision U.S. Foodservice, Inc.; Labatt Food Services, LP File: B-404786; B-404786.2; B-404786.3; B-404786.4, May 13, 2011: https://www.gao.gov/assets/400/392210.pdf. DIGEST Protest of the terms of solicitation for food distribution services on grounds that the terms are inconsistent with commercial practice and are otherwise unreasonable is denied where the agency properly issued a waiver in accordance with Federal Acquisition Regulation § 12.302(c) for commercial item solicitation requirements that may be inconsistent with customary commercial practice, and the record shows that the terms are reasonably justified. -------- On October 22, 2010, DLA Troop Support executed a class waiver to include provisions in the solicitation that are inconsistent with customary commercial practice. Agency Report (AR), Tab 11, Class Waiver. This waiver was signed by the contracting officer and approved by the Director of Subsistence Supplier Operations. Among other things, the waiver justified modifications to commercial practices involving economic price adjustments; rebates, discounts, and other price-related items; unilateral changes to the contract; and most favored customer warranties. Id. -------- The waiver here identified several terms that are inconsistent with commercial practice, including (among others): (1) the inclusion of a tailored economic price adjustment provision, (2) modifications to rebate, discounts, and other price-related provisions,3 and (3) the inclusion of a unilateral changes clause. AR, Tab 11, Class Waiver and Addendum. The agency explained that these deviations were necessary to insure transparency in food pricing and to prevent fraud, especially given that there had been several fraud indictments involving subsistence contracts outside the continental United States. Contracting Officer’s Supp. Statement at 1-2. In addition, the agency relied on a Department of Defense Inspector General report that found that DLA Troop Support did not provide sufficient oversight of costs of subsistence vendors in Afghanistan and recommended better contract administration of prime vendor costs. Id. -------- The waiver explained that customary commercial practice usually involves bilateral changes. However, the waiver justified the inclusion of a unilateral waiver provision because the government needs the right to make unilateral changes in delivery and shipment requirements in order to be able to supply food on a daily basis to its military customers, whose needs may change over the course of the contract. Id. at 1.

The CO either modifies the contract to incorporate the WD and adjust contract price after receiving post award notification of a wage modification, or the CO solely adds the WD number and date if the WD doesn't increase or decrease the wage rates. 22.404-6 Modifications of wage determinations. (b) The following applies when contracting by sealed bidding: (5) If an effective modification is received by the contracting officer after award, the contracting officer shall modify the contract to incorporate the wage modification retroactive to the date of award and equitably adjust the contract price for any increased or decreased cost of performance resulting from any changed wage rates. If the modification does not change any wage rates and would not warrant contract price adjustment, the contracting officer shall modify the contract to include the number and date of the modification. (c) The following applies when contracting by negotiation: (1) All written actions modifying wage determinations received by the contracting agency before contract award, or modifications to general wage determinations published on the WDOL before award, shall be effective. (2) If an effective wage modification is received by the contracting officer before award, the contracting officer shall follow the procedures in 22.404-5(c)(3) or (4). (3) If an effective wage modification is received by the contracting officer after award, the contracting officer shall follow the procedures in 22.404-6(b)(5).

I like style as well as substance. But, first, substance. I think 110 sample size represents an increase in 10 and an adequate consideration for a delay in filing the report. As to style, (i.e.font size, italics, page limits, margin sizes, etc.), look at the "proposal" (i.e. essay) preparation direction given to contractors by COs in the solicitations they issue. Style seems to carry a weight for the COs during the pre-award stage. Why not during the post-award stage?

Ask the contractor to increase the font size and to change the color of the font for the Section titles of the report. Throw in italics and underlines if you want to deter the contractor from further tardiness.

Not my experience. If the CO knows what he or she did and why, and if he or she can clearly demonstrate this knowledge, the contractors will be deterred. If the CO cannot/ will not provide the info, the contractor can obtain it only via a protest.

I have always liked debriefings for 2 reasons. First, the pain-in-the-ass contractors spend a lot of time and effort preparing essays and submitting offers for the Gov't's benefit. They're entitled to know why they lost. Second, it gives contracting officers the opportunity to demonstrate that they know the procurement inside out and to explain clearly and directly why one contractor won and the other contractors lost. This debriefing deters a protest.

Take a look at this thread: