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napolik

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  1. FYI, this extract comes from the GSA solicitation for SIN 874 of the MOBIS program: Quote ( Travel: The Contractor may be required to travel in performance of orders issued under this contract. Allowable travel and per diem charges are governed by Pub .L. 99-234 and FAR Part 31, and are reimbursable by the ordering agency or can be priced as a fixed price item on orders placed under the Multiple Award Schedule. Travel in performance of a task order will only be reimbursable to the extent authorized by the ordering agency. The Industrial Funding Fee does NOT apply to travel and per diem charges. Unquote I believe this reflects a commerical approach to dealing with travel.
  2. Interesting DODIG report. Over the course of 17 years, I underwent 6 PMRs. Since ship repair was such a large and important part of the business, our orders under MARAVs received special scrutiny. There were no comments on the improper funding of contingent liabilities. Perhaps the PMR teams did not recognize the obligations as improper because they had an empirical basis - all ship repairs had growth due to the inherent nature of the work. They were not wild guesses or efforts to dump monies. The estimates certainly were not developed like this method taken from an example in the report: Quote Growth Pools Contracting officers at the three maintenance activities inappropriately obligated approximately $63.5 million on 341 MSMO contract modifications and 13 IDIQ orders for growth pools. The obligation of growth pools violates 31 U.S.C. 1501, DoD FMR, volume 3, chapter 8, and the JFMM because the maintenance activities did not identify the specific work at the time of the obligation. Maintenance activities obligated funds without a sufficient description of the specific products or services needed to support the growth pool amounts. For example, a Business Clearance Memorandum supporting one contract modification stated: Funding put against this WI [work item] becomes a contract obligated pool reservation for undefinitized growth work that is encountered during the availability5. . . The ACO [Administrative Contracting Officer] backed into this dollar amount after definitization of all other TYCOM [Type Commander] funded WIs. The ACO determined amount for this growth pool reservation is $401,594. Unquote In any event, I escaped with no indictments, arrests or convictions.
  3. You are in a tough situation. In my experience, some project managers always set aside some percentage of contract funds to cover surprises. In other cases (e.g. ship repair), I actually obligated monies on the contract to cover growth work or things less foreseeable (e.g. Gov't delay). In the first case, I never asked the PMs how many $$ they stashed away. In the second, I generally used a % based upon experience. Can you not ask PMs to stash away a % to cover the antecedent liability? I cannot suggest a % as I do not have any empirical basis to make one. But, your money folks might know.
  4. It would be a funded NTE line item in the contract or delivery order. Assuming one could not reasonably estimate the travel sites and the volume of trips, I would do cost reimbursement, no fee, in accordance with FAR 31.205-46.
  5. 32.702 -- Policy. No officer or employee of the Government may create or authorize an obligation in excess of the funds available, or in advance of appropriations (Anti-Deficiency Act, 31 U.S.C. 1341), unless otherwise authorized by law. Before executing any contract, the contracting officer shall -- (a) Obtain written assurance from responsible fiscal authority that adequate funds are available or ( Expressly condition the contract upon availability of funds in accordance with 32.703-2. 1.602 -- Contracting Officers. 1.602-1 -- Authority. (a) Contracting officers have authority to enter into, administer, or terminate contracts and make related determinations and findings. Contracting officers may bind the Government only to the extent of the authority delegated to them. Contracting officers shall receive from the appointing authority (see 1.603-1) clear instructions in writing regarding the limits of their authority. Information on the limits of the contracting officers? authority shall be readily available to the public and agency personnel. ( No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met. 1.602-2 -- Responsibilities. Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall -- (a) Ensure that the requirements of 1.602-1( have been met, and that sufficient funds are available for obligation; ( Ensure that contractors receive impartial, fair, and equitable treatment; and ? Request and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate.
  6. Does anyone think an 1106 Procurement Assistant could create documents in SPS or other "Automated Procurement Systems", could pull documents from ABSS, could wrestle with WAWF or could do the keystrokes necessary for data entry in PPIRS?
  7. Based upon the following extract from the CFR, I believe you can exercise the option. Check your agency regs to see if there is a discussion of what constitutes "best interests of the Government". Also, check your agency regs to see how you report the transaction in FPDS. You may not be able to code the action as one with an 8(a) firm. This is from 13CFR124.514, effective 1 January 2009. Paragraph b appears to apply to you. Quote TITLE 13--BUSINESS CREDIT AND ASSISTANCE CHAPTER I--SMALL BUSINESS ADMINISTRATION PART 124_8(a) BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS STATUS DETERMINATIONS--Table of Contents Subpart A_8(a) Business Development Sec. 124.514 Exercise of 8(a) options and modifications. (a) Unpriced options. The exercise of an unpriced option is considered to be a new contracting action. (1) If a concern has graduated or been terminated from the 8(a) BD program or is no longer small under the size standard corresponding to the SIC code for the requirement, negotiations to price the option cannot be entered into and the option cannot be exercised. (2) If the concern is still a Participant and otherwise eligible for the requirement on a sole source basis, the procuring activity contracting officer may negotiate price and exercise the option provided the option, considered a new contracting action, meets all regulatory requirements, including the procuring activity's offering and SBA's acceptance of the requirement for the 8(a) BD program. (3) If the estimated fair market price of the option exceeds the applicable threshold amount set forth in Sec. 124.506, the requirement must be competed as a new contract among eligible Participants. ( Priced options. The procuring activity contracting officer may exercise a priced option to an 8(a) contract whether the concern that received the award has graduated or been terminated from the 8(a) BD program or is no longer eligible if to do so is in the best interests of the Government. © Modifications beyond the scope. A modification beyond the scope of the initial 8(a) contract award is considered to be a new contracting action. It will be treated the same as an unpriced option as described in paragraph (a) of this section. (d) Modifications within the scope. The procuring activity contracting officer may exercise a modification within the scope of the initial 8(a) contract whether the concern that received the award has graduated or been terminated from the 8(a) BD program or is no longer eligible if to do so is in the best interests of the Government. Unquote
  8. Ok, a few managers need to understand the interfaces between finance and contracting, but that does not mean working level 1102s need to spend inordinate amounts of time fighting with SPS. Back when my hair was brown and document copies were produced via carbon paper, a document preparation branch produced solicitations and contracts. 1106s did DD 350s, not to mention drafts of solicitation amendment, contract awards, and contract modifications. 1102s focused on the contents of solicitation and contracts, source selection processes and business deals. Why cannot these clerical functions be done today by staff supporting 1102s just as they were 40 years ago? Given today's IT infrastructures, this should be easy to do. k
  9. The automated procurement systems, whether or not integrated with financial management systems, have clericalized the very contracting workforce Congress and procurement managers sought to professionalize starting in the 1990s. While I do not have empirical data, only observations, I believe highly paid 1102s spend much, or most, of their time chasing electrons through the system in a vain attempt to create comprehensible procurement documents. The more serious consequences of this misdirected effort include the 1) issuance of documents that can't be read or understood, and 2) the creation of a demoralized workforce. The most serious consequence is the creation of a "professional" workforce that does not know the contents of the provisions and clauses contained in the documents it issues and that spends more time finding workarounds for obstacles in the procurement system than in defining and achieving good business deals. The solution is to turn the keystroke and mouse movements back to a support staff of 1106s and to hire 1105s to do simplified acquisitions. Let?s build a professional workforce that can apply the regulations and can create good business deals.
  10. DFARS subpart 204.7100 prescribes policies and procedures for assigning contract line item numbers. It does not prescribe clauses to be used. You fully fund the travel line item when you award the contract or place the order. You do not need a funding provision. You write a clause tying reimbursement of travel to the relevant parts of FAR 31.205-46. How does that conflict with 52.212-4? There is no need to tailor the payment paragraph of 52.212-4.
  11. Generally, the prime is flowing down the requirement of its contract with the Gov't. What does the prime contract say about travel? What type of contract is the prime contract- cost reimbursable? What does the proposed subcontract travel clause say about travel?
  12. The clauses are not applicable. The travel line item is funded upon award. Or, if the contract is an ID type, it is funded when the orders are placed.
  13. Why do you need the clause 52.216.-7? Do you have a FAR cite? Of course, contracting officers cannot add new work unilaterally. If travel is being added, then both parties to the contract must sign the contract mod. I suspect we are at the solicitation stage. The solicitation contains the travel clin - with a maximum amount - and any SOW and relevant clauses. The contractor signs the 1449; the contracting officers countersigns. Voila! The contract is created with a travel line item, a travel $$ max, a travel SOW and a clause covering payment of travel.
  14. I do not believe that either of the clauses should be used in your circumstance because they are not designed to address a single travel reimbursement line item in a FP contract and because there are more efficient ways to control the travel costs. Look as the prescriptions for the two clauses: 52.232-20 Limitation of Cost. As prescribed in 32.705-2(a), insert the following clause in solicitations and contracts if a fully funded cost-reimbursement contract is contemplated, whether or not the contract provides for payment of a fee. The 60-day period may be varied from 30 to 90 days and the 75 percent from 75 to 85 percent. ?Task Order? or other appropriate designation may be substituted for ?Schedule? wherever that word appears in the clause. 52.232-22 Limitation of Funds. As prescribed in 32.705-2(, insert the following clause in solicitations and contracts if an incrementally funded cost-reimbursement contract is contemplated. The 60-day period may be varied from 30 to 90 days and the 75 percent from 75 to 85 percent. ?Task Order? or other appropriate designation may be substituted for ?Schedule? wherever that word appears in the clause. Each clause addresses too many circumstances and rules that do not apply to your case. One of these is the payment of fees. I would not pay fees on travel. Instead of using either of the Limitation clauses, I suggest you 1) specify in the pricing schedule the maximum amount of dollars available for the travel line item; 2) write a brief SOW or clause for the line item stating that there is a maximum beyond which no travel will be reimbursed; and 3) include, either in the SOW or in a clause, the pertinent restrictions set out in FAR 31.205-46, Travel costs (e.g. compliance with JTR).
  15. Marv, I believe your approach is fine. However, let me add a suggestion. If you must send your source selection decision to a higher level for approval, I suggest you check with someone at the higher level to assure they support your approach. I have run across instances where the HQ did not like the approach you describe.
  16. Yes, the COR may participate. If the COR does particpate and if he or she possesses knowledge of one of the competitor's performance, he or she must consider the information if it is relevant to the work to be performed. ?While we understand the Navy's rationale for initially not sending out a past performance survey on the PHNS contract, we do not understand the Navy's failure to consider the information in its possession regarding GTSD's performance on that contract. The record shows that this contract was deemed so relevant to the requirements at issue that it served as a basis for the government estimate. Post-Negotiation Business Clearance Memorandum at 54. Moreover, the COR for that contract, the individual who eventually completed the past performance survey, was a member of the TEB for this procurement. PHNS Past Performance Survey; Pre-Negotiation Business Clearance Memorandum at 6. Under the circumstances, the agency could not reasonably ignore personally known information about GTSD's prior experience on the PHNS contract merely because the firm did not submit a Contractor Past Performance Data Sheet for that contract. See Safeguard Maintenance Corp., B-260983.3, Oct. 13, 1995, 96-2 CPD para. 116 at 12. While there is no legal requirement that all past performance references be included in a valid review of past performance, some information is simply too close at hand to ignore. See International Bus. Sys., Inc., B-275554, Mar. 3, 1997, 97-1 CPD para. 114 at 5.? This is an extract from GTS Duratek, Inc. B-280511.2; B-280511.3, October 19, 1998. The decision is set forth here: http://redbook.gao.gov/17/fl0084720.php.
  17. In the absence of more detail on the prior competition and the SOW, I have two recommendations. First, practice KISS. Think about using very few evaluation factors (e.g. price, experience and past performance). Second, do market research. Call the competitors for the current contract. Ask them what they thought about the types and number of evaluation factors, the basis of the award and any other aspect of the competition (e.g. the SOW and Ts and Cs).
  18. It is easy to become confused when reading the FAR coverage of options. Some - like 52.217-7 - deal with increased quantities. Others deal with extension of the contract term. Absent 52.217-9, you need to write a J&A to extend the contract. Are you sure that your order did not incorporate the -9 clause by reference? Was it in the solicitation but not picked up when preparing the award of the order? How is the contract term identified in your order?
  19. Does your order include this clause: "52.217-9 OPTION TO EXTEND THE TERM OF THE CONTRACT (MAR 2000)"?
  20. Please look at the definition of "contract financing payment" in FAR 32.001. Paragraph 92) of the definition says this "Contract financing payments do not include-- (i) Invoice payments; (ii) Payments for partial deliveries; or (iii) Lease and rental payments." You should get paid the unit price for each unit of the supplies or services you are providing. You do not need to deliver all the units to invoice and receive payment for deliveries / performances. Check the payment clause of your solicitation. There are several clauses depending upon the method of acquisition being used. In any event, for a firm fixed price contract, the clause should say will get paid for delivery of supplies accepted or for services rendered and accepted. If your solicitation has the DFARS clause, ask the CO why you cannot propose firm fixed unit price for the items.
  21. For FY 10, DOD has revised the way it develops its competition goals to consider competition for task orders issued under multiple award contracts. It has also modified its data collection mechanism to capture information on the degree of competition obtained when issuing a task order under a multiple award contract. If only one source is solicited, the action is non-competitive.
  22. While Monsieur Edwards is correct as to the FAR definition of MAC, the acronym is commonly used in DOD to represent "Multiple Award Contract". Here is an extract from the DFARS: "216.501-1 Definitions. ?Multiple award contract,? as used in this subpart, means-- (1) A multiple award task order contract entered into in accordance with FAR 16.504©; or (2) Any other indefinite-delivery, indefinite-quantity contract that an agency enters into with two or more sources under the same solicitation."
  23. Pursuant to which FAR clause was the termination made ?
  24. Interesting question. If the prime has an approved purchasing system, FAR 44.201-1 (a) requires consent for subcontracts specifically identified by the contracting officer in the Subcontracts clause of the contract - FAR 52.244-2. The Subcontracts clause expands the requirement for consent and establishes a requirement for advance notification when consent is required. Paragraph (e) (1) of the Subcontracts clause says that ?The Contractor shall notify the Contracting Officer reasonably in advance of placing any subcontract or modification thereof for which consent is required under paragraph (, ©, or (d) of this clause?? Paragraph ( of the clause says ?( When this clause is included in a fixed-price type contract, consent to subcontract is required only on unpriced contract actions (including unpriced modifications or unpriced delivery orders), and only if required in accordance with paragraph © or (d) of this clause.? Since the prime contract is a T&M contract, paragraph ( does not apply. Paragraph © says ?c) If the Contractor does not have an approved purchasing system, consent to subcontract is required for any subcontract that- (1) Is of the cost-reimbursement, time-and-materials, or labor-hour type; or (2) Is fixed-price and exceeds? (i) For a contract awarded by the Department of Defense, the Coast Guard, or the National Aeronautics and Space Administration, the greater of the simplified acquisition threshold or 5 percent of the total estimated cost of the contract?. So, if the prime does not have an approved purchasing system, it must provide advance notification per clause paragraph (e) (1). Paragraph (d) says ?(d) If the Contractor has an approved purchasing system, the Contractor nevertheless shall obtain the Contracting Officer?s written consent before placing the following subcontracts: ________________________________________________________________________ ________________________________________________________________________ _______________________________________________________________________? So, consent would be required if the contracting officer required consent of a fixed-price subcontract that exceeds both the simplified acquisition threshold and 5% of the estimated cost of the contract. If consent is required, clause paragraph (e) (1) requires advance notification. To summarize, consent would be required either if the contracting officer required consent in clause paragraph (d) or if the prime contractor does not have an approved system as described in clause paragraph ©. If consent is required per paragraphs © or (d), clause paragraph (e) (1) requires advance notification.
  25. The GAO "informal" opinion is that a shift in contract type is outside the scope of the competition. Since GAO no longer issues "advance opinions" on protest issues, only appropriations issues, we will not receive a definitive opinion until GAO receives and decides a protest on this point.
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