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napolik

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Everything posted by napolik

  1. I am curious. Do you believe that "rotating orders" complies with the FAR 16.505 ( (1) requirement to provide all contract holders a fair opportunity to be considered for each order?
  2. There is not a single, clear definition of "Out of Scope". I suggest you read the discussion entitled "Meaning of 'Within the General Scope"' on pages 382 to 396 of The Administration of Government Contracts, Fourth Edition. Also, see here: http://www.wifcon.com/discussion/index.php?showtopic=65.
  3. When the Test Program for use of Simplified Acquisition Procedures for Certain Commercial Items expired in January 2008?
  4. Did your HCA issue a deviation?
  5. Does the OMB memo of July 2009 carry any weight? Quote Pending the completion of the legal review of the GAO?s decisions by the Executive Branch, the SBA?s ?parity? regulations should not be disregarded by contracting officers, and Federal agencies should not, as a result of the GAO?s decisions, be compelled to prioritize HUBZone small businesses over 8(a) BD or SDVOSBs. Instead, until the legal review is completed, Federal agencies should continue to give active consideration to each small business program pursuant to their pre-existing contracting practices and ?parity? policies. Unquote
  6. My guess is the customer needs the service in September but needs to obligate $$ now. Otherwise, its low obligation rate puts its funding in jeopardy. So, obligate now; perform later.
  7. There are two options for finding a fixed price contract incrementally: 1. The contract (excluding any options) or any exercised option is for severable services; does not exceed one year in length; and is incrementally funded using funds available (unexpired) as of the date the funds are obligated; or 2. The contract uses funds available from multiple (two or more) fiscal years and the contract is funded with research and development appropriations; or Congress has otherwise authorized incremental funding. Option 1 requires the contract to be for severable services. Option 2 does not. You are not the first DoDer to confront DoD's discouragement of use of T&M / LH contracts. DoD prefers that you move from T&M or LH to FFP type contract, not to the FFP LOE type. Note that DoD collects info on these contract types and on the FFP LOE contract type. If you cannot do a FFP contract, move to a cost type.
  8. See also here: Quote 232.703 Contract funding requirements. 232.703-1 General. (1) A fixed-price contract may be incrementally funded only if? (i) The contract (excluding any options) or any exercised option? (A) Is for severable services; ( Does not exceed one year in length; and ( C ) Is incrementally funded using funds available (unexpired) as of the date the funds are obligated; or (ii) The contract uses funds available from multiple (two or more) fiscal years and? (A) The contract is funded with research and development appropriations; or ( Congress has otherwise authorized incremental funding. (2) An incrementally funded fixed-price contract shall be fully funded as soon as funds are available. Unquote If your are not in DoD, check your agency's FAR supplement.
  9. I assume your scenario or question is implict here: "I was told that I could award the contract and issue the first Task Orders under a "phase in" period (2 months) and then have a 12 months base and 4 - 12 month options. I argued that once I issue Task Orders, I have started the performance period." Your "scenario" assumes 62 months of performance. 60 months is the max period. If I have inferred erroneously, please restate your scenario or question.
  10. Quote Actually, an LPTA procurement is part of the best value continuum. I believe the distinction you were trying to make is a Tradeoff Process (FAR 15.101-1) vs LPTA (FAR 15.101-2). Unquote In its decision, the GAO described the basis of award as "best value". Typically, a source selection using factors in addition to cost or price is called "best value". Quote I think GeoJeff was trying to point out what he views to be a general principle that applies to both types of procurements. Specifically, an offeror's price may be so high that it renders the proposal ineligible for award regardless of the technical merit or rating of the offer. In a tradeoff procurement, that will happen if, as GAO says, the "quoted price [is] too high in an absolute sense." In an LPTA that will happen if another technically acceptable proposal offers a lower price. Unquote The thread commenced with this question: "When conducting a lowest price technically acceptable source selection (see FAR 15.101-2), if the offeror with the lowest price is technically acceptable, may the agency award to that offeror without evaluating the technical acceptability of the other offerors?". The Gold Cross case involved an extraordinarily large price differential, and it did not address whether or not the contracting officer is obligated to perform a technical evaluation of all offers. Thus, I don't think it offers support for a "Yes" answer to the initial question.
  11. Please see here: http://www.wifcon.com/discussion/index.php?showtopic=644.
  12. Be careful, the Gold Cross case is not on point for a couple of reasons. First, it involves a best value source selection. This thread is dealing with a source selection made to the lowest priced, technically acceptable offer. Second, in Gold Cross, it is significant that the protestor's price was 8 to 20 times higher than other prices and the Government estimate. In the case of LPTA, the variance in prices among offers is irrelevant so long as you award to the technically acceptable offer with the lowest price.
  13. Actually, the GAO decision is dated 14 May while the Assad memo is dated 18 May. So, GAO could not have been commenting on his memo. I am sure there is frustration in dealing with the competing OMB and GAO views on the "parity" of the three socioeconomic programs. But, we are part of the Executive Branch, and we must follow the direction of the Executive Branch leadership. Speaking of delay and frustration, what happened to action to nullify the October 2008 GAO Delex decision that applies the rule of two to multiple award contracts?
  14. What do you say to Shay Assad? In his May 18 memo he says that the OMB policy on SBA parity regulations "... continues to be Executive Branch policy and components shouild follow the OMB guidance and all applicable regulations."
  15. While you have legal authority to sign actions up to $10 million, your agency or your office may have administrative controls that limit your ability to exercise your warrant. Such policies may require reviews above the contracting officer level of all proposed actions exceeding $10/$20/$50 million. I have seen such policies. Sometimes, these policies define the dollar thresholds for reviews to include the value of all options, or they focus on the total estimated or maximum contract amount. Be sure to adhere to your internal policies before signing any contracts.
  16. See DFARS 225.1101 "Acquisition of supplies". The DFARS offers its own clauses in lieu of the three you identified.
  17. As the threshold for obtaining cost or pricing data is $650,000, you need not obtain either the data or the certificate. See FAR 15.403-4 (a).
  18. I cannot find an ASBCA decision, but I did find the following in the July 27, 2005 Federal Register dealing with FAR Case 2004-003: Quote Task Order Versus Entire Contract 2. Comment: A respondent stated that the proposed rule is unclear as to whether the $50,000 ceiling on withholding applies to an individual task or to an entire contract. It recommended the proposed rule be clarified to identify the basis for application of the ceiling. The respondent added that it had previously recommended in an audit report that the $50,000 ceiling be applied to each order where orders are closed separately. The respondent's recommendation is based on the belief that the clarification will assist contracting officers in performing their jobs. Councils' response: The Councils agree that it would assist both contractors and the Government if the proposed rule were clarified as to whether the withhold ceiling applies to an entire contract or to individual orders. Such a clarification would reduce any possible confusion by either party as to the applicability of the ceiling and thus remove the potential for disagreements. The Councils agree that the withhold ceiling applies to the entire contract. Therefore, the Councils have revised the guidance at FAR 32.111(a)(7)(iii) and the clause at FAR 52.232-7(a)(2) to clarify that the withhold ceiling applies to the total contract. Unquote The source is here: http://regulations.justia.com/view/18937/.
  19. Are the children contract deliverables?
  20. Yes. See FAR 9.103( c ) Quote A prospective contractor must affirmatively demonstrate its responsibility, including, when necessary, the responsibility of its proposed subcontractors. Unquote Also, review 9.104(e), including the final word: Quote (e) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors). Unquote You do not need to say in the solicitation that you will consider subcontractors as part of your review of contractor responsibility.
  21. The discussion involves an IDIQ contract with a 5 year ordering period vice an IDIQ contract wiith a 12 month ordering period plus four, 1 year options. It does not involve use of a multi year contract.
  22. I think you underestimate the impact on a contractor of the decision to exercise or to forego an option. It is an easy means of focusing the contractor's attention on providing top flight performance. If the contractor is not performing as well as you?d like, doing nothing may not be an option. I understand the benefits of using an extended ordering period vice options. I like options for the reasons I state. I do not make the exercise of the options a labor of Hercules. Contracting is an art, not a science. Every contracting officer is an artist who has many brush strokes available to create a masterpiece.
  23. The threat to forego exercise of an option does have a salutary effect on contractor performance. Administratively, it is probably easier to withhold an option exercise than to terminate a contract.
  24. Given the definition of "contract" in FAR Part 2, I do not see a regulatory barrier if you comply with FAR 13.302 and 41.5.
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