napolik

God bless Sister Mary Knuckles and her vocabulary classes!

DODers, note that the example offered by Carl is not apposite to DOD if the requirement >$100k. See DFARS 208.405-70 and PGI 208.405-70.

In my experience, BPAs can be unpriced collections of terms and conditions only. Or, they can include items of supplies and services to be priced during competitions among the BPA holders. The extent of the detail is a function of the market covered by your BPA.

Sometimes, tough love is the best love.

BPAs have been around at least 40 years. A few decades ago, any GS 1105 05 would have known the purpose of a BPA and the procedures one used to place calls against BPAs. There seems to be correlations between the "professionalization" of the 1102 workforce, the disappearnace of 1105s, the arrival of "automated procurement systems? and the lack of knowledge of procurement fundamentals seen today. The responsibility for recognizing the disappearance and for taking corrective steps rests with the supervisors and managers of each procurement organization. This puts squarely on the non-supervisory 1102s, the responsibility for researching the FAR to learn the rules and procedures.

BTW, the rules for using BPAs are set out in FAR 13.303-5 -- Purchases Under BPAs.

I have handled FMS contracts and other contracts requiring performance overseas. While it may be exempt from the SCA, your contract may be covered by the Defense Base Act. Take a look at FAR 28.305.

See also DFARS SUBPART 222.72--COMPLIANCE WITH LABOR LAWS OF FOREIGN GOVERNMENTS.

If the 6 month option prices were evaluated as part of the source selection using the prices in the final performance period, I do not see a problem if the 52.217-8 option is exercised earlier than the end of the final performance period. Oftentimes, the Government evaluates based upon its plans (e.g. will exercise all annual options) or estimates (e.g. the estimated number of hours, items, etc.). The fact that actual events vary from the plans or estimates does not invalidate the initial evaluation.

I think there is a much chance the agency will reject GAO's recommendation as there is a chance the FAR Council will modify usage of the clause or rewrite it.

See the third sentence of paragraph (a) below:

8.404 ? Use of Federal Supply Schedules.

(a) General. Parts 13 (except 13.303-2©(3)), 14, 15, and 19 (except for the requirement at 19.202-1(e)(1)(iii)) do not apply to BPAs or orders placed against Federal Supply Schedules contracts (but see 8.405-5). BPAs and orders placed against a MAS, using the procedures in this subpart, are considered to be issued using full and open competition (see 6.102(d)(3)). Therefore, when establishing a BPA (as authorized by 13.303-2©(3)), or placing orders under Federal Supply Schedule contracts using the procedures of 8.405, ordering activities shall not seek competition outside of the Federal Supply Schedules or synopsize the requirement; but see paragraph (e) of this section for orders (including orders issued under BPAs) funded in whole or in part by the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5).

Would it not have been unseemly for Alexander to have corrected Aristotle in haste?

P.S. "Aristotle had publicly supported Macedonian policies which were hateful to the subjugated Athenians. But he found continued support increasingly difficult as Alexander, flushed with conquest, became more arrogant and more capricious in cruelty. The political climate of Athens became dangerous for everyone, and especially for an independent philosopher. Aristotle broke with Alexander after he, Alexander, had Callisthenes, nephew of Aristotle, put to death for failing to reverence the ruler as a god. Aristotle went into exile, moving to Chalcis in Euboea in 323 B.C. He died this same year in Chalcis at age sixty-one."

I believe Vern typed a wrong number. The year of the Delex decision is 2008, not 2002.

Assuming the contract is more than a month or two long, you will need to figure out a payment mechanism describing when and how you will pay the contractor. Will you pay monthly, bi-monthly, quarterly? How will you compute the amount to pay?

Paragraph (a) (2) of FAR 52.232-7, Payments Under Time-and-Materials and Labor-Hour Contracts, states that ?The amounts shall be computed by multiplying the appropriate hourly rates prescribed in the Schedule by the number of direct labor hours performed.?

There is no easy method for identification of solicitation provisions and contract clauses that flow down to subcontractors or their subcontracts. The best discussion of the topic, including an identification of flow down requirements, appeared in a version of the FAR published by Vern Edwards. I believe it is now out of print. If one does not have the Edwards FAR, one must read the texts of the provisions and clauses to determine which provisions and clauses flow down.

Poor choice of words on my part. My point was GSA Schedules and the ordering process complies with CICA (provided the procedures of FAR 8.405 are followed)

Ffed, note that DFARS mandates inefficient procedures for FSS actions > $100k.

A ?no cost contract? is unusual. There is no standard format.

Look at the definition of a contract in FAR Part 2:

Quote

?Contract? means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications. Contracts do not include grants and cooperative agreements covered by 31 U.S.C.6301, et seq. For discussion of various types of contracts, see Part 16.

Unquote

Will you, the buyer, pay for the services furnished by the lab?

Are you obligating the Government to an expenditure of appropriated funds?

What will be the consideration essential to contract creation?

There is also the matter of an Antideficiency Act prohibition on federal agencies? acceptance of voluntary services without specific statutory authority.

A few years back, GSA awarded a no cost contract for realty broker services. The contract was reviewed by GAO. Along with other "no cost" contracts, it is discussed in ?B-308968, No-Cost Contracts for Event Planning Services, November 27, 2007.? The link is here: http://www.gao.gov/decisions/appro/308968.htm.

I suggest you read the GAO decision, and then speak with your attorney about how to structure your solicitation and contract.

A ?no cost contract? is unusual. There is no standard format.

Look at the definition of a contract in FAR Part 2:

Quote

?Contract? means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications. Contracts do not include grants and cooperative agreements covered by 31 U.S.C.6301, et seq. For discussion of various types of contracts, see Part 16.

Unquote

Will you, the buyer, pay for the services furnished by the lab?

Are you obligating the Government to an expenditure of appropriated funds?

What will be the consideration essential to contract creation?

There is also the matter of an Antideficiency Act prohibition on federal agencies? acceptance of voluntary services without specific statutory authority.

A few years back, GSA awarded a no cost contract for realty broker services. The contract was reviewed by GAO. Along with other "no cost" contracts, it is discussed in ?B-308968, No-Cost Contracts for Event Planning Services, November 27, 2007.? The link is here: http://www.gao.gov/decisions/appro/308968.htm.

I suggest you read the GAO decision, and then speak with your attorney about how to structure your solicitation and contract.

I looked at this issue about 18 months ago.

The DOD Directive 5330.03 dated February 8, 2006 defines the mission, responsibilities, functions and relationships of the Defense Automation and Production Service (DAPS). After reading it several times, I could not figure out for what supplies and services DAPS was a mandatory source. Therefore, I called a representative of the DAPS DC Office Group (703-325-9906). Here is what he said: only printing is mandatory; everything else is optional. Optional items include copiers and copier services, scanning, EDM solutions, and document management.

I confirmed this with a DAPS source at DAPS HQ in Mechanicsburg PA.

Absent direction from your Agency, I do not believe you need to use the Schedule. Read this case:

Matter of: Murray-Benjamin Electric Company, LP

File: B-298481

Date: September 7, 2006

Here are extracts:

Quote

Agency is not required to order supplies under non-mandatory Federal Supply Schedule (FSS) contract, and where it is in agency?s best interests--including need to establish ?best value? among potential offerors--agency may compete its requirements among commercial sources of supply instead of under non-mandatory FSS.

Unquote

Quote

MBE?s assertions are without merit. Under a mandatory FSS contract, an agency generally must order its requirements under that FSS if its minimum needs will be met by the products or services listed in the schedule. Adams Magnetic Prods., Inc., B-256041, May 3, 1994, 94-1 CPD ? 293 at 3. However, as conceded by MBE, its FSS contract is not mandatory; thus, an agency?s use of that contract is voluntary.4 There is nothing else in the FAR, or elsewhere, that compelled the agency here to meet its requirements under MBE?s FSS contract. FAR ? 8.404 simply provides guidance on the use of the FSS--e.g., restricting competition to the FSS and eliminating the need for additional determinations of fair and reasonable pricing; it does not require agencies to use the FSS. Similarly, while the list of required sources found in FAR ? 8.002 places non-mandatory FSS contracts above commercial sources in priority, it does not require an agency to order from the FSS. Further, although an agency?s placement of an FSS order indicates that the agency has concluded that the order represents the best value (FAR ? 8.404(d)), the regulation does not establish a presumption that all FSS contractors represent the best value, such that the agency would be required to purchase from an FSS contractor.

Unquote

As your question is a bit broad, so too is my reply.

If you are in DOD, see here: http://www.dau.mil/catalog/Appendix_B.pdf

If you are not in DOD, see here: http://www.fai.gov/certification/specialist.asp.

Also, see here: http://www.whitehouse.gov/omb/procurement/...ing_program.pdf.

What is more commercial, grounds maintenance or vehicle leasing? See this article I found on one of Bob's blogs:

http://www.law.com/jsp/ihc/PubArticleIHC.j...d=1202429255150.

About 5 years ago, a contracting officer in my office awarded a contract for commercial services. Subsequent to award, an unsuccessful offeror, the incumbent, requested under FOIA release of the contract unit prices. As was the case in my agency, we notified the contractor whose pricing information was identified in the request. The contractor objected to its release asserting that it would reveal their confidential ?business strategy?.

Notwithstanding the assertion I was prepared to release the information based upon my knowledge of, and my experience with, FAR and FOIA. My attorney, and his boss, objected stating that their readings of court decisions supported the contractor?s assertion. The contractor hired a K street attorney to argue against release.

One thing led to another; the issue wound up at the Justice Department. The Justice Department attorney ruled that the unit prices could not be released based upon his interpretation of the court cases. I huffed and puffed. I employed some of the same ?logical? arguments I have seen in this thread. I even stated that I would use sealed bidding in the future to eliminate ?secrecy? in contracting.

All to no avail. He told me to read the court cases and get over it.

Until the court changes its mind or the Congress passes some legislation, I believe you cannot assume that contract pricing information, even commercial contract pricing, is releasable

Let me amplify on formerfed's comments. The GAO has stated the following in KPMG Consulting LLP, B-290716; B-290716.2, September 23, 2002: ?Under a request for quotations (RFQ) issued in a competitive procurement under the Federal Supply Schedule, where the RFQ does not contain a late quotation clause, the contracting agency may accept quotation modifications received prior to the source selection if acceptance will not prejudice the other competitors.?.

The KPMG decision is consistent with earlier GAO decisions such as Instruments & Controls Services Company, B-222122, June 30, 1986: ?Where a request for quotations under small purchase procedures does not contain a clause advising that quotations must be submitted by a certain date to be considered, the contracting agency should have considered the protestor?s low quotation received prior to award since no substantial activity had transpired towards award and the other offeror would not have been prejudiced?.

When you prepare your RFQs be sure you are aware of what provisions you are inserting in the solicitation. Do not insert a late proposal provision if you do not want it.

When I was much younger and I was doing small purchases, I generally did them orally. When I did them in writing, I used a standard form requesting quotes. The standard form identified a time and date for submission of quotes, but did not invoke a late proposal provision. With the development of automated procurement systems, the introduction of Commercial Items coverage and the use of the Commercial Item Test Program, many contracting officers create FAR 13 and FAR 8 solicitations containing a Late Proposal provision. Sometimes, this is done inadvertently as contracting officers frequently do not know the content of the provisions inserted ?by reference only? via an automated procurement system such as the Standard Procurement System (SPS).

After reading the Administration of Government Contracts, 4th edition, pages 385-86, I conclude that, in this case, the application of the ?cardinal change? principle requires the contracting officer to consider whether or not the changes are ?? within the scope of the competition conducted to achieve the original contract.? AT&T Communications, Inc. v. WilTel, Inc, 1F.3d 1201 (Fed. Cir. 1993).

GAO elaborated on this in Neil R. Gross & Co. (B-237434, February 23, 1990): ?In weighing the propriety of a modification, we look to whether there is a material difference between the modified contract and the prime contract that was originally competed. Indian and Native American Employment and Training Coalition, 64 Comp.Gen. 460 (1985), 85-1 CPD Para. 432. (In) determining the materiality of a modification, we consider factors such as the extent of any changes in the type of work, performance period and costs between the contract as awarded and as modified. See American Air Filter Co., Inc., 57 Comp.Gen. 285 (1978), 78-1 CPD Para. 136, aff'd on reconsideration, B-188408, June 19, 1978, 78-1 CPD Para. 443. We also consider whether the solicitation for the original contract adequately advised offerors of the potential for the type of changes during the course of the contract that in fact occurred, CAD Language Sys., Inc., B-233709, Apr. 3, 1989, 89-1 CPD Para. 342, or whether the modification is of a nature which potential offerors would reasonably have anticipated under the changes clause. American Air Filter Co., Inc., 57 Comp Gen. 285, supra.?

In the Gross decision, GAO found the change to be beyond the scope of the contract.

The GAO has applied this ?within the scope of the competition? guideline to a protest involving refuse collection at Fort Rucker, Alabama - Atlantic Coast Contracting, Inc., (B-288969.4, June 21, 2002). Atlantic Coast protested a change to a contract with four options totaling $2,819,990. The change shifted responsibility for furnishing trucks and containers from the Army to the contractor, increasing the unit price for the item from $11,399 to $22,467.25 and increasing the total contract price for the remaining 4 years and 6 1/2 months by $603,220.

?In determining whether a modification triggers the competition requirements under CICA, we look to whether there is a material difference between the modified contract and the contract that was originally awarded. Engineering & Prof?l Servs., supra, at 4; see AT&T Communications, Inc. v. Wiltel, Inc., 1 F.3d 1201, 1205 (Fed. Cir. 1993). Evidence of a material difference between the modification and the original contract is found by examining changes in the type of work, costs, and performance period between the contract as awarded and as modified. MCI Telecomms. Corp., B-276659.2, Sept. 29, 1997, 97-2 CPD para. 90 at 7-8. We also consider whether the solicitation for the original contract adequately advised offerors of the potential for the type of change found in the modification, and thus whether the modification would have changed the field of competition. Id. ?

In the end, the GAO concluded that the change in the refuse collection contract was not outside the scope of the contract.

?Atlantic also argues that the significantly increased cost to the unit price for this line item of services establishes that the modification exceeded the scope of the contract. However, where, as here, it is clear that the nature and purpose of the contract have not changed, a substantial price increase alone does not establish that the modification is beyond the scope of the contract. While the contractor's unit price for the service did substantially increase, the Army noted that this price was lower than Atlantic's price for performing the same service. Thus, we find that the increased cost is not in this case persuasive evidence that the modification exceeded the contract's scope. See Techno-Sciences, Inc., B-277260.3, May 13, 1998, 98-1 CPD Para. 138 at 8; Defense Sys. Group et al., B-240295 et al., Nov. 6, 1990, U.S. Comp. Gen. LEXIS 1182 at *11-13.

As you see, Atlantic?s higher unit price helped to sway GAO?s decision.

In your case, the dollar value increases of the changes could have led the contracting officer to conclude that the changes were beyond the scope of the competition. Or, the contracting officer may have concluded that he or she could get a better deal since the volume of services has increased so much.

Why don't you call the contracting officer to ask why the soliciataion was cancelled? In any event, I recommend that you answer the agency's questions.

You may be able to infer why the contracting office cancelled the solicitation from this FAR cite:

15.206

(e) If, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.