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napolik

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  1. Hi-

    I have a competitively awarded, commercial purchase for five widgets. Prior to delivery of these widgets, client desires six widgets due to a mission change. Is this within scope? May I add another widget to this order without doing JOFOC (J&A)? I will appreciate any guidance.

    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.

  2. Posted for lkinser:

    "Would like to know if a RFQ goes out Open Market and the quotes all reference a GSA Contract for services but Open Market for equipment how should this be handled? The RFQ went out GSA with no quotes to start with."

    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?

  3. Please remember this is a cost contract and as such title vests with the Gov't when payment is received or when material is released to the floor for performance of the contract. I recognize F.O.B states title passes on acceptance by Gov't at destination. That is the problem I see here; title has already passed. We do not have 52.246-16 in the contract; I believe this pertains to FFP only. Appreciate your comments Thanks ED]

    In summary, I believe the contractor remains liable for damage to the government property. This is because 1) subparagraph (h) of the clause FAR 52.245-1 -- Government Property, relieves the contractor from liability "Unless otherwise provided for in the contract?" and 2) subparagraph (B)(4) of the FAR clause 52.247-34 -- F.o.b. Destination, otherwise provides for the contractors liability. After reviewing the FAR coverage at the clauses 52.245-1 and 52.247-34 and at a 1987 ASBCA decision, I believe the contractor is not relieved of risk of loss under the cost reimbursement contract. However, my conclusion is based upon an analysis of a single, 23 year old ASBCA decision. I have been unable to check my conclusion against Westlaw to determine if there are more recent decisions.

    My rationale follows.

    First, your contract contains the FAR clause 52.245-1 -- Government Property. The most recent version is dated August 2010; the previous version is dated June 2007. Both versions of the clause contain the same subparagraph (h), Contractor Liability for Government Property. It says

    Quote

    (1) [unless otherwise provided for in the contract, the Contractor shall not be liable for loss, theft, damage or destruction to the Government property furnished or acquired under this contract, except when any one of the following applies...

    Unquote

    Note the first 7 words in the subparagraph: "Unless otherwise provided for in the contract ..."

    Next, I assume you have in your contract FAR clause 52.247-34 -- F.o.b. Destination. Subparagraph (B) (4) says that the contractor shall

    Quote

    Be responsible for any loss of and/or damage to the goods occurring before receipt of the shipment by the consignee at the delivery point specified in the contract;

    Unquote

    In my view, subparagraph (B) (4) is coverage "... otherwise provided for..." by the first sentence of Subparagraph (h) of the clause at 52.245-1.

    I attempted to find a case confirming my belief. After researching in several sources including Administration of Government Contracts, Fourth Edition, Cost Reimbursement Contracting, Third Edition, and discussions on government property revealed via Google, I could find only one ASBCA decision similar to your circumstance: Appeal of‑‑Litton Systems, Inc./Guidance & Control Systems Division, ASBCA, 29,762, 88‑3 BCA 21,008. You may download the decision from the DAU site if you Google it.

    Here is an extract from the opinion:

    Quote

    This appeal was taken under the Contract Disputes Act from a final decision of the contracting officer requiring appellant to replace an Inertial Measurement Unit Test Set which was damaged by a common carrier. Each party claims the other has assumed the risk of loss for this damage under the terms of the contract. Appellant claims that the standard Government Property clause places the risk of loss upon the Government after the Government accepted the unit.

    Unquote

    In his decision, the judge sets out Litton's theory for transferring liability. Then, in the concluding sentence of the first paragraph of the decision, the judge undermines the theory that responsibility for the loss transferred to the Gov't because title was transferred to the Gov't when the Gov't accepted the item:

    Quote

    Appellant argues that the Government must bear the risk of loss to the inertial measurement unit test set caused by the negligence of the common carrier in moving the unit from the bonded Government property storage area operated by appellant to appellant's loading dock. It is undisputed that title to the unit passed from appellant to the Government when the Government inspected and accepted the unit prior to the accident (finding 2). Thus, appellant contends that the Government Property clause is controlling. This clause places the risk of loss on the Government for damage to Government property in the possession of appellant either (1) in the absence of willful misconduct or lack of good faith of appellant in handling that property or (2) unless some other contract clause provides otherwise (finding 4). Thus, this clause by its very terms only applies if some other clause, such as the Title and Risk of Loss clause, does not provide guidance governing the risk of loss.

    Unquote

    The Government Property clause examined in the Litton decision came from the Defense Acquisition Regulations (DAR). The clause said the following at paragraph (g) Risk of Loss:

    Quote

    (1) The Contractor shall not be liable for loss or destruction of or damage to the Government property provided under this contract except as provided in (2) below....

    (2) The Contractor shall be responsible for any loss or damage (i) to the extent specifically provided in the clause or clauses of this contract designated in the schedule or (ii) which results from:

    Unquote

    Note subparagraph (g) (2) (i):

    Quote

    The Contractor shall be responsible for any loss or damage (i) to the extent specifically provided in the clause or clauses of this contract designated in the schedule...

    Unquote

    In the first paragraph of his decision, the judge made this observation about the DAR government property clause:

    Quote

    Thus, this clause by its very terms only applies if some other clause, such as the Title and Risk of Loss clause, does not provide guidance governing the risk of loss.

    Unquote

    Later in his decision, after concluding that the contract delivery terms were FOB Destination, the judge examines risk of loss under FOB destination:

    Quote

    We turn now to that portion of the Title and Risk of Loss clause covering f.o.b. destination delivery terms. That clause expressly provides that the risk of loss only passes after both acceptance and the transfer of possession to the Government at the destination specified in the contract whichever occurs later ...

    Unquote

    In your contract, the FAR clause 52.247-34 -- F.o.b. ? Destination, at subparagraph (B) (4), says that the contractor shall

    Quote

    Be responsible for any loss of and/or damage to the goods occurring before receipt of the shipment by the consignee at the delivery point specified in the contract;

    Unquote

    In summary, I believe the contractor remains liable for damage to the government property. This is because 1) subparagraph (h) of the clause FAR 52.245-1 -- Government Property, relieves the contractor from liability "Unless otherwise provided for in the contract..." and 2) subparagraph (B)(4) of the FAR clause 52.247-34 -- F.o.b. Destination otherwise provides for the contractors liability.

  4. Title to this property is already vested in the Gov't prior to shipment and as such is Gov't Property.

    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.

    (B) 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 (B) 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 (B) of this section shall apply.

    (d) Under paragraph (B) 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?

  5. Maybe it's just me, but I have trouble with the concept of "rates approved by DCAA." I always thought DCAA audited and recommended, but it took a warranted Contracting Officer to approve. Am I out of line?

    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.

  6. For as long as I can remember I have seen scads of synopses daily at FedBizOpps (and the old Commerce Business Daily) for commercial items and services clearly available on GSA Schedule (Federal Supply Schedules). 8.002 requires the purchase be made from a schedule (if available) before going to "commercial sources" (open market). These are not buys exempted by the priority system in 8.002 in the name of national security or national emergency. How can this be? What am I missing?

    GSA schedule competitions are not required to be posted at FB0 so it is a pretty secret process. Are Agencies really going through this priority process or documenting why not? I suspect neither.

    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.

  7. Thanks for replying, do I also need a reviseed cost proposal? Does this constitute additional work?

    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.

  8. Situation:

    CPFF IDIQ contract on its third Option Year which is the last option on the contract. Option Year III was exercised on 09 June 2010 and expiring on 08 June 2011 for an estimated total of $722,571.00. Out of that amount we have only obligated $69,764.00; however COR stated that before end of FY10 an estimated $400k might be obligated on task orders leaving an approximately balance of $253k.

    Because we still working on the follow on contract. My recommendation is to increase the funding amount on current option; however if I do so do I need to request a new cost proposal? Or this is just a simple modification to increase funding? Please note funding will be increase only up to 25% of total contract value which is $3,495,370.

    This simple scenario with my limited experience have me really thinking. I appreciate if someone with experience can help point me the right direction.

    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.

  9. I am a contract administrator, and I am looking for relevant case law pertaining to the FAR definition of "fair and reasonable price." I've tried searching GAO and Wifcon but it proved unsuccessful. The context is that I'm trying to write a price justification for a subcontractor, and I'd like to incorporate case law as well as FAR citations. In the technical justification I've cited FAR 13.106-3, 15.402, and 15.404-3. Any help is greatly appreciated!

    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?

  10. I am getting ready to identify that apparent succesfull offeror under a competitive 8(a) procurement over $3.5 million. My agency has an MOU with SBA allowing us to issue awards directly to the 8(a) company. However, the MOU requires that we give SBA 5 days to determine eligibility of the awardee. In this case, I think there may be a responsibility issue. Under an 8(a) procurement, can I request a COC from SBA or are the regulations different for the 8(a) program regarding this matter.

    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.

  11. Your situation seems covered by the FAR. Take a look at 16.103 and particulary ?

    So if you have a contract situation where the parties gains knowledege and expertise about the requirements as performance progresses and you want to shift the risk to the contractor without paying an extraordinary amount, changing to a fixed price type might be a good midea.

    Is there any problem with regard to scope of the competition?

    http://www.wifcon.com/discussion/lofiversi...x.php?t477.html.

  12. I've seen agencies in similar situations do competitions. The solicitation describes the status quo and includes a schedule to replace equipment currently in use in a staggered or staged mode. The incumbent has an advantage because all their equipment isn't replaced at once and the agency can use the newer equipment for the remainding life. Sources other than the incumbent have the propose all new as well which puts them at some disadavatge as des the training cost.

    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

  13. Was the basis of our justification improper?

    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.

  14. 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?

  15. I have a contractor that submitted a low bid on a ARRA Funded project that is currently on the "Delinquent Federal Debt" list. Where do I go to find my backup support to not award to him? He is planning on protesting the award if I don't give it to him. The only reference I found in the FAR Part 9, was that this is reason for debarment, but is not clear in that I cannot award to him.

    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

  16. B)B)

    I'm a little surprised, but maybe I shouldn't be, at the lack of professionalism of the Government work force. I guess those who post on this forum are no different.

    I came on here looking for professional insights not personal attacks. To those who tried to have a helpful dialogue, I appreciate your efforts. To the few others, perhaps you should do the taxpayers a favor and find a different career!

    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.

  17. The basic order would not be an "order" in the official sense of the word, since it wouldn't really order anything. It would really be an "ordering arrangement," like GSA's BPA under FSS contracts. We've been referring to such an arrangement as an order for the sake of convenience. Absolutely nothing in FAR says that you cannot establish a further ordering arrangement within an existing ordering arrangement. If the name order bothers you, then use something else, like BPA or "subordinate ordering arrangement" (SOA), auxiliary ordering arrangement" (AOA), or "supplementary ordering protocol" (SOP), or something else with a vowel so you can create a fun acronym.

    I would just say "order" and explain what I'd done the file. Then I wouldn't give it another thought.

    Use your heads, people. Do what Clint Eastwood said: Improvise, adapt, and overcome. See FAR 1.102-4(e).

    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

  18. I agree that you could describe the services to be performed in a more general manner, but what about the subsequent part of 16.505(a)(2):

    16.505 -- Ordering.

    (a) General.

    * * * * *

    (2) Individual orders shall clearly describe all services to be performed or supplies to be delivered so the full cost or price for the performance of the work can be established when the order is placed.

    How can you establish the full cost or price of performance of an IDIQ task order at the time that the order is placed?

    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.

  19. Thoughts?

    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.

  20. Would anyone know whether a terminated contract with settlement should be closed out. It seems redundant but perhaps still required. Thanks.

    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 (B) below, a contract is considered to be physically completed when --

    (2) The Government has given the contractor a notice of complete contract termination.

    (B) 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.

  21. My question is whether other 1102's would have accepted the late proposal for evaluation, or done what the USAF C.O. did and refuse to consider it?

    Since I do not know all the facts, I make assumptions. Based upon assumptions, I believe the contracting officer cannot consider the late proposal of U.S. Aerospace. I also believe that either the contractor or contracting officer could have taken steps to avoid the late proposal.

    The answer depends upon the application of the facts to the rule set out in the FAR. Bremen has identified the source of the rule regarding proposals that arrive after the due date and time: FAR 15.208. It also appears in FAR 52.215-1 at paragraph©(3).

    Paragraph (B) of FAR 15.208 contains several elements:

    Quote

    (1) Any proposal, modification, or revision, that is received at the designated Government office after the exact time specified for receipt of proposals is "late" and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition ; and--

    (i) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or

    (ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of proposals and was under the Government?s control prior to the time set for receipt of proposals; or

    (iii) It was the only proposal received.

    Unquote

    The only facts we have are contained in the report contained in the link you provided. The report stated that

    Quote

    According to an industry executive, a messenger carrying a bid from U.S. Aerospace arrived at the Wright-Patterson gate at about 1:30 p.m., 30 minutes before the deadline. "Air Force personnel intentionally denied the messenger entry to the base? and later provided ?incorrect directions", and forced the messenger to wait when he got turned around. The proposal was marked 2:05 p.m., but this executive says that the bid was under Air Force control prior to that time

    Unquote

    In reviewing the facts, we know that the proposal was marked 2:05 p.m., 5 minutes after the exact time specified for receipt of proposals. If there is such evidence that it was "at the Government installation designated for receipt of proposals and was under the Government's control" prior to 2:00 p.m., then the contracting officer must consider it as the proposal is not late.

    If the proposal arrived after 2:00 p.m., then we must apply the elements of the rule set out in FAR 15.208 (B) to determine if we may consider it.

    We know that the U.S. Aerospace proposal was received prior to award of the tanker contract. We are probably safe to conclude that acceptance of the U.S. Aerospace proposal would not unduly delay the acquisition.

    We also know that the U.S. Aerospace proposal was not the only one received, and we can safely assume that e-commerce transmission was not permitted and that U.S. Aerospace did not submit the proposal electronically as well as via messenger. That leaves only paragraph (1) (ii) as a possible basis for considering the late U.S. Aerospace proposal.

    The "industry executive" asserts that the actions or inactions of Air Force personnel prevented the messenger from reaching the proposal delivery location by 2:00 p.m.

    The GAO has issued a number of decisions addressing the circumstance of a late hand carried proposal. The GAO position is summarized well in the Integrated Support Systems Inc decision:

    Quote

    However, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause for the late submission, and where consideration of the proposal would not compromise the integrity of the competitive process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD Para. 50 at 6. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time. Id.; Adirondack Constr. Corp., B-280015.2, Aug. 25, 1998, 98-2 CPD Para. 55 at 6.

    Unquote

    Integrated Support Sys. inc, B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2.

    Since I do not know the layout of Wright Patterson, the distance from the security gate to the contracting office, or the actual behavior of the security guards, I can only speculate as to whether or not the contracting officer must consider the late proposal.

    I have had many experiences arriving at many military bases and dealing with numerous security guards. Based upon my experience, I believe that 30 minutes was not sufficient time to get on base and to the contracting office. In other words, I believe that "... the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time." I also believe that the security guards did not intentionally deny the messenger entry to the base, and later provide "incorrect directions". See B-401148, ALJUCAR, LLC, June 8, 2009.

    These are my speculations as I do not know the facts.

    However, I do know that the contractor could have avoided this circumstance by not waiting until the last moment to deliver its proposal. I also know that the contracting officer could have avoided this circumstance by checking the proposal depository at 1:45 p.m. to determine if all likely proposals were received. If the contracting officer was expecting 3 proposals, but only saw 2, he or she could have extended the due time or date to allow timely receipt of the third proposal.

  22. As a practical matter I think I find myself settling in on number (3). While one may be able to demonstrate in a court of law that a specific provision of the FAR placing a requirement on a ?contractor? or ?subcontractor? does not have a sufficient connection to ?congressional intent? to be enforceable, it ? at least to me ? is uncertain enough that following approach (3) a practical interpretation to work under.

    Good luck!

    Please advise us the first time you get to the BCA in defense of your attempt to force contractor compliance, absent a contract clause, with a rule or guidance in FAR Parts 1 to 51 because to do so furthers the congressional purpose of achieving an "economical and efficient system" of procurement.

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