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napolik

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  1. The DOD FAR Supplement: 208.405-70 Additional ordering procedures. (a) This subsection-- (1) Implements Section 803 of the National Defense Authorization Act for Fiscal Year 2002 (Pub. L. 107-107) for the acquisition of services, and establishes similar policy for the acquisition of supplies; (2) Applies to orders for supplies or services under Federal Supply Schedules, including orders under blanket purchase agreements established under Federal Supply Schedules; and (3) Also applies to orders placed by non-DoD agencies on behalf of DoD. ( Each order exceeding $100,000 shall be placed on a competitive basis in accordance with paragraph © of this subsection, unless this requirement is waived on the basis of a justification that is prepared and approved in accordance with FAR 8.405-6 and includes a written determination that-- (1) A statute expressly authorizes or requires that the purchase be made from a specified source; or (2) One of the circumstances described at FAR 16.505((2)(i) through (iii) applies to the order. Follow the procedures at PGI 216.505-70 if FAR 16.505((2)(ii) or (iii) is deemed to apply. © An order exceeding $100,000 is placed on a competitive basis only if the contracting officer provides a fair notice of the intent to make the purchase, including a description of the supplies to be delivered or the services to be performed and the basis upon which the contracting officer will make the selection, to-- (1) As many schedule contractors as practicable, consistent with market research appropriate to the circumstances, to reasonably ensure that offers will be received from at least three contractors that can fulfill the requirements, and the contracting officer-- (i)(A) Receives offers from at least three contractors that can fulfill the requirements; or ( Determines in writing that no additional contractors that can fulfill the requirements could be identified despite reasonable efforts to do so (documentation should clearly explain efforts made to obtain offers from at least three contractors); and (ii) Ensures all offers received are fairly considered; or (2) All contractors offering the required supplies or services under the applicable multiple award schedule, and affords all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered. (d) See PGI 208.405-70 for additional information regarding fair notice to contractors and requirements relating to the establishment of blanket purchase agreements under Federal Supply Schedules. PGI 208.4--FEDERAL SUPPLY SCHEDULES PGI 208.405-70 Additional ordering procedures. (1) Posting of a request for quotations on the General Services Administration's electronic quote system, "e-Buy", (<A href=" http://www.gsaAdvantage.gov">www.gsaAdvantage.gov), is one medium for providing fair notice to all contractors as required by DFARS 208.405-70©(2). (2) Single and multiple blanket purchase agreements (BPAs) may be established under Federal Supply Schedules (see FAR 8.405-3) if the contracting officer-- (i) Follows the procedures in DFARS 208.405-70( and ©; and (ii)(A) For a single BPA, defines the individual tasks to be performed; or ( For multiple BPAs, forwards the statement of work and the selection criteria to all multiple BPA holders before placing orders.
  2. With an ID contract, you can have scope issues with additional quantities: "An order in excess of the maximum quantity stated in the contract would be outside the scope of the contract. Such an order would result in a contract materially different from that for which the original competition was held and, absent a valid sole-source determination, would be subject to CICA requirements for competition." See Liebert Corp., B-232234.5, Apr. 29, 1991, 91-1 CPD.
  3. I recommend you read the fourth edition of the Administration of Government Contracts, by Cibinic, Nash, and Nagle, pages 382-396. The discussion distinguishes between the concepts of "scope of the contract" and "scope of the competition". Your question is involves the scope of the competition. If delivery of the 5 "widgets" was the primary purpose of the contract, I believe adding a 6th widget would be outside the scope of the competition and would require a J&A. If your solicitation had discussed "upgrading" or "refreshing" the widgets periodically, the "upgrades" or "refreshes" probably would be within the scope of the competition. If the primary purpose of the contract was to provide a machine tool plus 5 spare "widgets", I believe that the addition of a 6th widget would be within the scope of the competition. Read pages 382-396 of the book.
  4. Did you send out a second RFQ for services using other than FAR Part 8 procedures after failing to receive any quotes against a solicitation issued under FAR Part 8? Or, are you speculating about doing so? If you did, how many quotes did you receive? Did the quotes cite the same GSA Schedule and SIN?
  5. Thank you. In DoD, we must post to eBuy all GSA actions > $100k. All contractors holding the schedule saw the solicitation.
  6. Why do you say this? Typically, for FOB Destination, title passes with acceptance at destination. Quote 46.505 Transfer of title and risk of loss. (a) Title to supplies shall pass to the Government upon formal acceptance, regardless of when or where the Government takes physical possession, unless the contract specifically provides for earlier passage of title. ( Unless the contract specifically provides otherwise, risk of loss of or damage to supplies shall remain with the contractor until, and shall pass to the Government upon? (1) Delivery of the supplies to a carrier if transportation is f.o.b. origin; or (2) Acceptance by the Government or delivery of the supplies to the Government at the destination specified in the contract, whichever is later, if transportation is f.o.b. destination. ? Paragraph ( of this section shall not apply to supplies that so fail to conform to contract requirements as to give a right of rejection. The risk of loss of or damage to such nonconforming supplies remains with the contractor until cure or acceptance. After cure or acceptance, paragraph ( of this section shall apply. (d) Under paragraph ( of this section, the contractor shall not be liable for loss of or damage to supplies caused by the negligence of officers, agents, or employees of the Government acting within the scope of their employment. (e) The policy expressed in (a) through (d) of this section is specified in the clause at 52.246-16, Responsibility for Supplies, which is prescribed in 46.316. Unquote Do you have this clause in your contract: 52.246-16 -- Responsibility for Supplies?
  7. In DoD, due to DoDIG reports about poor pricing and Congressional reaction to the reports, the balance of power has shifted toward DCAA. In certain instances, a contracting officer's refusal to accept DCAA recommendations can be reviewed. See this link: http://www.dcaa.mil/mmr/10-PAS-015.pdf.
  8. I do not believe agencies are required to use the optional FSS or to document decisions not to use them. This has been discussed in another thread. See here: http://www.wifcon.com/discussion/index.php?showtopic=176.
  9. smm, I'm glad you found your answer. I am a bit confused as to the real question.
  10. If you are increaing the ceiling, this is additional work. You will need a sole source memorandum or a J&A. The document you need depends upon the size of the ceiling increase. My assumption is that the increase will exceed the SAT. So, you will need a J&A. You will need a proposal from the contractor. With an IDIQ contract for services, I assume you have line items with labor categories, estimated hours and estimated costs per hour. I also assume that your ceiling is the sum of subtotals of line item cost extensions. If you decide to proceed with a sole source, I recommend that you identify to the contractor the labor categories and labor hours for each category for which you seek a proposal.
  11. You need a J&A to go past $3,495,370. See Liebert Corp., B-232234.5, Apr. 29, 1991, 91-1 CPD para. 413 at 11-12. Remember that J&As can be challenged successfully. This is particularly true if the need for a sole source is attributable to the agency's lack of advance planning.
  12. Before responding, I believe we need a little more information. First, are you working for the government or for a contractor? Second, what is the dollar amount of the subcontract? Third, did you receive adequate price competition?
  13. See FAR 19.809: 19.809 -- Preaward Considerations. The contracting officer should request a preaward survey of the 8(a) contractor whenever considered useful. If the results of the preaward survey or other information available to the contracting officer raise substantial doubt as to the firm?s ability to perform, the contracting officer must refer the matter to the SBA for Certificate of Competency consideration under Subpart 19.6.
  14. Is there any problem with regard to scope of the competition? http://www.wifcon.com/discussion/lofiversi...x.php?t477.html.
  15. Regarding "competitive advantage", I have met some 1102s who believe they have a legal obligation to eliminate an incumbent's competitive advantage. Here is the GAO position: Quote We have long recognized that a certain firm may enjoy a competitive advantage by its own incumbency. Aerospace Engineering Services, Corp., B-184850, Mar. 9, 1976, 76-1 CPD Para. 164; see, also, Holmes and Narver Services, Inc., B-208652, June 6, 1983, 83-1 CPD Para. 605. Furthermore, the government has no duty to equalize the position of competitors unless the competitive advantage results from a preference or unfair action by the government. John Morris Equipment and Supply, Co., B-218592, Aug. 5, 1985, 85-2 CPD Para. 128; Holmes and Narver Services, Inc., B-208652, supra. Unquote See B-228895, Dec 29, 1987, 87-2 CPD 636 http://www.gao.gov/products/437999
  16. No. However, at some point ? probably now, you need to stop copying by rote the information contained in the preceding Brand Name Justifications. Think carefully about your responses to the 11 entries required by 6.303-2 (a), particularly to paragraphs (5), (9) and (11). At some point, your Agency can no longer justify a Brand Name (aka sole source) acquisition of GPS equipment by saying its operations would be disrupted if it did not continue to use the incumbent contractor?s equipment. At some point, you must take steps to promote competition. With apologies to the Westlaw mavens among the WIFCONers, let me cite a case involving a sole source J&A: B-298627, eFedBudget Corporation, November 15, 2006. In this case the GAO sustained a protest where the record showed that the agency did not satisfy its obligation to engage in reasonable advance planning and to promote competition. While the eBudget case involves software services, not GPS equipment, I believe it presents principles that apply to your circumstance. In this case, the Department of State (DOS) had been contracting for 9 years with the same firm for implementation, maintenance, enhancement, and support for DOS?s worldwide budget and planning software systems. Quote The J&A states that ?[w]ithout seeking a follow-on contract with its current software vendor, the [agency] would experience an immediate and substantial time delay or actually be unable to fulfill its requirements to adequately meet agency budgeting and financial responsibilities,? and lists several attributes of the incumbent that ?make it a unique source for these services.? AR, Tab 3, J&A, at 1, 2. The J&A also describes the burden on the agency of adopting any other approach. Without continued support from the incumbent, according to the J&A, the agency ?would need to redesign its budget and planning systems to work with another software product, redesign its interfaces and duplicate the requirements analysis, design, and development stages of implementation to accommodate a new software package to perform the business functions? of the current, proprietary software. Unquote GAO considers the DOS arguments, but sides with the protestor. In so doing the GAO observes: Quote ?Under CICA, 41 U.S.C. sect. 253(a)(1)(A), contracting officers have a duty to promote and provide for competition and to provide the most advantageous contract for the government. In their role of promoting and providing for competition, contracting officials must act affirmatively to obtain and safeguard competition; they cannot take a passive approach and remain in a noncompetitive position where they could reasonably take steps to enhance competition. VSE Corp., Johnson Controls World Servs., Inc., B-290452.3 et al., May 23, 2005, 2005 CPD para. 103 at 8; HEROS, Inc., B-292043, June 9, 2003, 2003 CPD para. 111 at 7; National Aerospace Group, Inc., B-282843, Aug. 30, 1999, 99-2 CPD para. 43 at 8. See also S. Rep. No. 98-50, at 18 (1984), reprinted in 1984 U.S.C.C.A.N. 2174, 2191 (stating that CICA requires agencies to ?make an affirmative effort to obtain effective competition?). CICA further provides that under no circumstance may noncompetitive procedures be used due to a lack of advance planning by contracting officials. 41 U.S.C. sect. 253(f)(5)(A); Signals & Sys., Inc., B-288107, Sept. 21, 2001, 2001 CPD para. 168 at 9. Although the requirement for advance planning is not a requirement that such planning be successful or error-free, see Abbott Prods., Inc., B-231131, Aug. 8, 1988, 88-2 CPD para. 119, at 8, the advance planning must be reasonable. Signals & Sys., Inc., supra, at 13. Here, we conclude that the agency has failed to comply with the CICA mandate for reasonable advance planning. With regard to the feasibility of alternatives to a sole-source award, the agency principally focuses on the difficulties associated with either acquiring a new software system, or having another firm perform the required services without license rights to the RGII software. The agency also asserts that its advance planning efforts have been reasonable in that it has taken steps to avoid expansion of its reliance on RGII. In this regard, the agency notes, for example, that it has been considering using a program developed by another agency office, the Bureau of European Affairs, to meet its needs here, instead of contracting with RGII for the development of additional proprietary software. Agency?s Response to GAO Questions, supra, at 4. While, as discussed above, it is reasonable to conclude that, given the restrictive nature of the agency?s current licensing agreement with RGII, only RGII can now meet its needs, the agency?s arguments simply do not address the issue of whether the agency?s acquisition planning--in the face of those restrictions--was reasonable, given the requirement that the agency make an affirmative effort to obtain competition. The agency has produced no record of any steps that it has taken to end its reliance on the services of the incumbent to maintain the existing software systems; in fact, this latest proposed sole-source award has a potential term of 5 years. Unquote Based upon the foregoing, it seems to me that your agency needs to start planning a competition for GPS equipment. If you are challenged, you will have trouble defending another sole source.
  17. When issuing a RFQ under a GSA schedule containing multiple special item numbers, may I require contractors to possess more than one SIN? Suppose I believe the services I seek are described fully and accurately by SIN 123-1 with 100 contractors and SIN 123-2 with 50 contractors. Only 14 are on both SINs. On what basis, if any, could any of the 136 contractors excluded by the citation of the 2 SINS file a successful protest against the requirement that a contractor be listed under both SINs to receive an award?
  18. Your solicitation should have included FAR 52.209-5, Certification Regarding Responsibility Matters (Apr 2010). Subparagraph (a) (1)(i) (D) requires the Offeror to make the following certification Quote (D) Have [_], have not [_], within a three-year period preceding this offer, been notified of any delinquent Federal taxes in an amount that exceeds $3,000 for which the liability remains unsatisfied. Unquote If the Offeror responds affirmatively, FAR 9.104-5 (a) says the following: Quote (a) When a offeror provides an affirmative response in paragraph (a)(1) of the provision at 52.209-5, Certification Regarding Responsibility Matters, or paragraph (h) of provision 52.212-3, the contracting officer shall? (1) Promptly, upon receipt of offers, request such additional information from the offeror as the offeror deems necessary in order to demonstrate the offeror?s responsibility to the contracting officer (but see 9.405); and (2) Notify, prior to proceeding with award, in accordance with agency procedures (see 9.406-3(a) and 9.407-3(a)), the agency official responsible for initiating debarment or suspension action, where an offeror indicates the existence of an indictment, charge, conviction, or civil judgment, or Federal tax delinquency in an amount that exceeds $3,000. Unquote Since the Offeror is not currently debarred, suspended or proposed for debarment (see FAR 9.405), you must gather whatever additional information you need to reach a conclusion about the contractor?s responsibility. I suggest you look at FAR 42.1501 -- General. This FAR section includes the following among sources of relevant information: ??; the contractor?s record of integrity and business ethics, ??. Over the course of the past decade what constitutes a satisfactory record of integrity and business ethics has been the subject of political debates (e.g. Current and past administration rules addressing the Contracting Officer discretion / obligation to exclude contractors from federal projects for failing to comply with various statutes that have little to do with contract.). However, the debates have not made clear to me that failure to pay taxes in an amount exceeding $3,000, by itself, is grounds for debarment. Would a single delinquency exceeding $3,000 be sufficient to doubt a contractor?s integrity and ethics? Suppose the delinquency was $100 million? Suppose there are multiple delinquencies? You must assess these facts concerning integrity and the facts relevant to other elements of responsibility. Then, you must draw a conclusion. If you conclude that the contractor is not responsible because of integrity and if the contractor is a small business then you must follow FAR 19.602-1 -- Referral. Quote (a) Upon determining and documenting that an apparent successful small business offeror lacks certain elements of responsibility (including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting, but for sureties see 28.101-3(f) and 28.203©), the contracting officer shall -- (1) Withhold contract award (see 19.602-3); and (2) Refer the matter to the cognizant SBA Government Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located, in accordance with agency procedures, except that referral is not necessary if the small business concern -- (i) Is determined to be unqualified and ineligible because it does not meet the standard in 9.104-1(g); provided, that the determination is approved by the chief of the contracting office; or (ii) Is suspended or debarred under Executive Order 11246 or Subpart 9.4. Unquote
  19. Some or many posters on WIFCON are current or former Gov't contractors. The fact that they display little sympathy for your circumstance does not indicate a lack of knowledge of procurement law or regulation, or of your specific circumstance. Nor does it indicate a lack of professionalism.
  20. COMMITS is an indefinite-delivery, indefinite-quantity (ID/IQ) task order contract designed to offer information technology (IT) services and IT-based solutions to Federal customers. I found this in the COMMITS ordering guide: Quote Unauthorized Activities The following are not authorized under the COMMITS NG contract  Renting (it is ok for a contractor to enter into rental agreements to fulfill task order requirements, but the government will not be a party to them)  Leasing (it is ok for a contractor to enter into leases to fulfill task order requirements, but the government will not be a party to them)  While Blanket Purchase Agreements (BPAs) are not allowed, the same benefits may be realized through flexible contractual line items.  Task orders that are not primarily IT Service Orders.  Task orders that are primarily supplies or software/hardware maintenance  Task orders that are used to circumvent conditions on limitations on the use of funds . Unquote I wonder what are "flexible contractual line items"? http://www.gsa.gov/graphics/fas/revisedNEX...de5-14-2009.pdf
  21. GSA Federal Supply Schedules are indefinite quantity contracts. Placement of a BPA or BPAs against a Schedule contract pursuant to FAR 8.405-3 is not placement of an order. Orders are placed subsequent to the establishment of the BPAs.
  22. First, please re-read Monsieur Vern's reply. Where does FAR 8.405-3, Blanket Purchase Agreements (BPAs), limit use of BPAs to GSA? See also http://www.gsa.gov/portal/content/104445. Also, never allow the rules governing FPDS to influence how you read and interpret the FAR. To do so is like letting the smallest hair on the dog's tail wag the dog. Finally, there is a number of indefinite delivery multiple award contracts and GWACs. You must read the ordering provisions of each to determine if you can place an IDIQ order.
  23. Against what contract do you wish to place the order?
  24. If it is a partial termination, do not close the contract out until the contractor completes the unterminated portion. See these FAR cites: 4.804 -- Closeout of Contract Files. 4.804-1 -- Closeout by the Office Administering the Contract. ( c) A contract file shall not be closed if -- (1) The contract is in litigation or under appeal; or (2) In the case of a termination, all termination actions have not been completed. 4.804-4 -- Physically Completed Contracts. (a) Except as provided in paragraph ( below, a contract is considered to be physically completed when -- (2) The Government has given the contractor a notice of complete contract termination. ( Rental, use, and storage agreements are considered to be physically completed when -- (1) The Government has given the contractor a notice of complete contract termination; or (2) The contract period has expired.
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