napolik

You need to look at the Shay Assad 27 April 2011 memo entitled "Improving Competition in Defense Procurement". Specifically, the second bullet in the third paragraph tells you to obtain either certified cost or pricing data or other than certified cost of pricing data if you believe you must enter into negotiations to obtain a fair and reasonable price. You can find the memo here: Assad 27 April 11 memo

Tell your colleagues that they are prohibited from committing the Government to any product or service offered by any contractor with whom they are doing market research. To minimize confusion in the minds of your colleagues and of the contractors, tell your colleagues to state clearly to the contractor that their market research query is made strictly for the purposes of market research and that it does not constitute a request for proposal, a contract, a promise to contract, or a commitment of any kind.

I believe the question is this: "Can performance of a contract extending beyond 18 November 2011 be funded with monies provided by the CR?" I see no legal reason why it cannot be done, and I have done it under prior CRs. However, some agency Comptrollers may not wish to do it, and they may not make the $$ available.

You should have followed the procedures at FAR 49.402-3(e)(4) with regard to providing a copy of the cure notice to your small business specialist and the Small Business Administration Regional Office nearest the contractor. If the contract was awarded pursuant to FAR 19.8, contact SBA before terminating. I suggest you take a look at FAR 49.402-3 and at your agency's FAR supplement to see if anything else applies to your circumstance.

The answer to one is "Yes". Based upon 13CFR ? 121.404: The answer to 2 is "Yes". The coding of the contractor's size in FPDS must be consistent with the SBA's size status determination. If SBA determines the firm to be small " ... as of the date the concern submits a written self-certification that it is small to the procuring activity as part of its initial offer ...", then the FPDS coding must identify the contractor as small.

We are working on a follow-on 8(a) competition. The incumbent 8(a) contractor became an object of interest of the Department of Justice. Some of the company's officers were indicted; one has pled guilty. Seizure of assets and / or debarment is a potential short term outcome. If this outcome occurs or if, for any reason, the contractor could not perform, my agency would be in a real bind. Given the likely dire consequences if the incumbent 8(a) contractor is unable to perform, I am dealing with SBA to obtain an OK to award an interim contract outside the 8a program while the follow on competition is conducted. Below is the coverage in the SBA regulations of release of an 8(a) contract from the 8(a) program. 13 CFR ? 124.504 (d) Release for non-8(a) competition. (1) Except as set forth in (d)(4) of this section, where a procurement is awarded as an 8(a) contract, its follow-on or renewable acquisition must remain in the 8(a) BD program unless SBA agrees to release it for non-8(a) competition. If a procuring agency would like to fulfill a follow-on or renewable acquisition outside of the 8(a) BD program, it must make a written request to and receive the concurrence of the AA/BD to do so. In determining whether to release a requirement from the 8(a) BD program, SBA will consider: (i) Whether the agency has achieved its SDB goal; (ii) Where the agency is in achieving its HUBZone, SDVO, WOSB, or small business goal, as appropriate; and (iii) Whether the requirement is critical to the business development of the 8(a) Participant that is currently performing it. (2) SBA may decline to accept the offer of a follow-on or renewable 8(a) acquisition in order to give a concern previously awarded the contract that is leaving or has left the 8(a) BD program the opportunity to compete for the requirement outside of the 8(a) BD program. (i) SBA will consider release under paragraph (2) only where: (A) The procurement awarded through the 8(a) BD program is being or was performed by either a Participant whose program term will expire prior to contract completion, or by a former Participant whose program term expired within one year of the date of the offering letter; ( The concern requests in writing that SBA decline to accept the offer prior to SBA's acceptance of the requirement for award as an 8(a) contract; and © The concern qualifies as a small business for the requirement now offered to the 8(a) BD program. (ii) In considering release under paragraph (2), SBA will balance the importance of the requirement to the concern's business development needs against the business development needs of other Participants that are qualified to perform the requirement. This determination will include consideration of whether rejection of the requirement would seriously reduce the pool of similar types of contracts available for award as 8(a) contracts. SBA will also seek the views of the procuring agency. (3) SBA will release a requirement under this paragraph only where the procuring activity agrees to procure the requirement as a small business, HUBZone, SDVO small business, or WOSB set-aside. (4) The requirement that a follow-on procurement must be released from the 8(a) BD program in order for it to be fulfilled outside the 8(a) BD program does not apply to orders offered to and accepted for the 8(a) BD program pursuant to ?124.503(h).

Invoice payment.

Use the same words you used in your solicitation when you stated the basis for your award (e.g. The Agency will award a contract to that firm presenting the offer representing the best value to the government considering price and other factors).

16.505 ((1) (ii) includes this sentence: ?The competition requirements in Part 6 and the policies in Subpart 15.3 do not apply to the ordering process.? The fact that ?it does not apply? does not mean that FAR 15.3 is prohibited. Even if one did discern a prohibition where none exists, the Tradeoff Process and the Lowest Price Technically Acceptable Source Selection Process are discussed in FAR Subpart 15.1, not FAR 15.3. You can use either the Tradeoff Process or the Lowest Price Technically Acceptable Source Selection Process to compete TOs under FAR Part 16.5.

I did not cut and paste the entire clause. FYI, here is the remainder: Total Payments: The contractor shall be paid the entire firm fixed price only if the contractor expends the entire LOE. If the entire LOE is not expended, the total of monthly payments to the contractor shall be a percentage of the FFP equal to the total LOE expended divided by the total LOE. Assuming the contractor expends 3,000 hours, the total payments to the contractor would be $681,181.18 plus any travel costs. Total Payments = [(total LOE expended / total Section B LOE) X firm fixed price] + travel costs Total payments = [(3,000 / 4,400) X $1,000,000] + travel costs Total payments = (.6818 X $1,000,000) + travel costs Total payments = $681,181.18 + travel costs. I think this payment mechanism is consistent with FAR 16. 16.207-2 -- Application. A firm-fixed-price, level-of-effort term contract is suitable for investigation or study in a specific research and development area. The product of the contract is usually a report showing the results achieved through application of the required level of effort.

I am not sure that contractors want to await completion of the expenditure of the LOE. So, FYI, I use this payment clause: Invoices for payment of LOE identified in line Item 0005 shall be computed and paid as follows: Monthly Payments: The contractor shall be paid based upon level of effort (LOE) expended, plus travel costs incurred. The amount of the payment for the monthly LOE expended shall be developed by multiplying the percentage the month's LOE represents of the total annual LOE times the firm fixed price. Assuming the total firm fixed price is $1,000,000, the total annual LOE is 4,400 hours, and the monthly LOE expended is 300 hours, the monthly payment would be $68,181.82 plus any travel costs. Monthly payment = [(monthly LOE / annual LOE) X firm fixed price] + travel costs. Monthly payment = [(300/4,400) X $1,000,000] + travel costs Monthly payment = (.0682 X $1,000,000) + travel costs Monthly payment = $68,181.82 + travel costs

Why can the billing not be by the hour?

Please read formerfed's reply: The source selection decision is made after you compare the substance of the non-price portion each offer, including risk - whether as a separate factor or as an element of another factor, and you trade off the advantages and disadvantages identified in the comparison against cost or price differentials.

If you have a contract with a DoD office, look for these DFARS clauses: 252.209-7001, 252.209-7002, and 252.209-7004.

Let?s look at the definition of a claim contained in paragraph (c ) of the Disputes clause, FAR 52.233-1: Look at the words in the first sentence. Assert that you are owed money, identify the basis (i.e. right) for the claim, and assert that you want a specific amount of money. If the claim exceeds $100,000, attach an invoice and see paragraph (d)(2)(iii):

From my review of the FAR and DoD Financial Management Regs, it appears that DoD should be guided by any constraints on the requesting agency's funds. Take a look at FAR 17.502-1(a)(1)(iii): Beyond the FAR, there is a DoD Financial Management Regulation: DOD 7000.14-R. VOLUME 11A, CHAPTER 3, paragraph 030402 says the following: If you have proof that your appropriation does not come with the $750k constraint, provide it along with the certification.

Take a look at an oldie-but-goodie identified by Signore Bob A about 10 years ago: The quote is from Washington National Arena Limited Partnership, B-219136, Oct. 22 , 1985.

The authority of the options clause allows you to extend the period of performance unilaterally. While the contractor may agree to sign a bilateral contract modification "restoring" the option, if the period during which you may exercise the option has expired, you do not have authority under the FAR to continue to contract with the contractor. In this regard, take a look at FAR 17.207(f): Assuming that the option prices were evaluated as part of the award of the contract containing the option, that the option is exercisable at an amount specified in or reasonably determinable from the terms of the basic contract and that the period during which the option may be exercised has not expired, you have authority to continue your contract with the contractor to perform the services described in the option. If the option has lapsed, you do not have the authority of the option clause to continue dealing with the contractor. Absent that authority, you can neither direct unilaterally the contractor to perform the services nor can you contract with the contractor absent another competition or a sole source J&A. Even if you prepare a sole source J&A to serve as a basis for extending the contract with the incumbent, you would be in a vulnerable position should another contractor protest the sole source award to the GAO. The protestor may argue successfully that the sole source award to the incumbent contractor was necessitated due to a lack of the government?s advance planning. The protest may very well succeed.

Posted in wrong location.

Let?s look at your questions one-by-one. Let's answer based upon the content of the FAR, not upon opinion or experience. 1. ?Is there an exemption for posting a sole source RFP to the GPE?? If your proposed contract action is expected to exceed $25,000 and is not covered by an exception in FAR 15.202, you must post a synopsis on the GPE. One of the special situations in FAR 5.205 may apply and may affect when you may or must post in the GPE. FAR 5.201 ((1) sets out the rule for synopsizing a requirement in the GPE: Quote (1) For acquisitions of supplies and services, other than those covered by the exceptions in 5.202, and the special situations in 5.205, the contracting officer must transmit a notice to the GPE, for each proposed -- (i) Contract action meeting the threshold in 5.101(a)(1); (ii) Modification to an existing contract for additional supplies or services that meets the threshold in 5.101(a)(1); or (iii) Contract action in any amount when advantageous to the Government.? Unquote The threshold set out in FAR 5.101(a)(1) is ?? proposed contract actions expected to exceed $25,000?.?. FAR 5.202 identifies 15 exceptions to the rule set out in FAR 5.201. FAR 5.205 identifies 6 special situations affecting posts to the GPE. 2. Is a synopsis of proposed contract action to sole source under FAR 6.302-1 considered a solicitation that has been synopsized? Yes, it must be synopsized unless one of the 15 exceptions set out in FAR 5.202 applies. 3. FAR 15.203(e) allows for sending letter RFPs for sole sources are these suppose to be posted to the GPE? FAR 15.203 (e) specifically states that ?Use of a letter RFP does not relieve the contracting officer from complying with other FAR requirements.? One of those FAR requirements is the one to synopsize in the GPE. Absent one of the exceptions set out in FAR 5.202, one must synopsize a letter RFP. Note that there is no FAR 5.201 (e).

I see nothing unethical about using the threat of competition as a negotiating tactic. I might not specifically mention company X, but I would refer to the contractor's competitors: "Listen Mr. Contractor, if I can't get a deal from you, I will do my best to negotiate a good deal with your competitors - Companies X, Y and Z". I would be more concerned with losing my credibility in the contractor's eyes. If the contractor knows that Company X is not competing, you undermine your current and future negotiating positions.

If it is sole source, the DoD memorandum would not apply. If it is a competitive solicitation for most supplies or services, valued at more than $150k and open for less than 30 days, then the solicitation must elicit at least 2 proposals / quotes. Otherwise, absent a waiver by the HCA or his / her delegate, the requirement must be resolicited again and remain open for 30 days. See here: DPAP

You might want to check this thread: http://www.wifcon.com/discussion/index.php?showtopic=801.

Here is the FAR coverage on repetitive 8(a) contracts: Quote 19.804-4 -- Repetitive Acquisitions. In order for repetitive acquisitions to be awarded through the 8(a) Program, there must be separate offers and acceptances. This allows the SBA to determine? (a) Whether the requirement should be a competitive 8(a) award; ( A nominated firm?s eligibility, whether or not it is the same firm that performed the previous contract; ( c) The effect that contract award would have on the equitable distribution of 8(a) contracts; and (d) Whether the requirement should continue under the 8(a) Program. Unquote My experience over the years is that the SBA will not release a contract requirement from the 8(a) program: Once an 8(a), always an 8(a)! My most recent experience is that SBA will not allow competition among 8(a) firms if the prior contract was awarded to the 8(a) contractor on a sole source basis: Once an 8(a) sole source, always an 8(a) sole source!

I give them the "opportunity" to submit an offer. Can they decide not to? Further, they're not the only one of my multiple awardees who decides not to participate...and I somehow end up with no takers for this particular opportunity. What remedies do I have? Are awardees compelled to compete on every order? If "yes", what does that compulsion do to my competitive contract pricing (i.e. I've got some of my contractors "pricing not to win" this particular task order)? If "no", do I have an IDIQ or a BPA? Tx, NavyKGuy Holders of multiple award contracts are not required to compete on your fair opportunity offerings. However, you can consider their participation in your offerings when deciding to exercise an option. Your contract will include 52.216-22 -- Indefinite Quantity. I recommend that you include a clause, or add a paragraph to 52.216-22, that emphasizes your unilateral right to do a competition via fair opportunity or to place a delivery order directly with a contract holder without doing a fair opportunity competition. Make sure you use enough line items and specs so that you can issue task orders unilaterally. You have a contract, not a BPA, if you follow FAR 15 rules and procedures.