elgueromeromero

When the FAR or DFARS says something like "for an acquisition valued at...", how and when is the "value" determined? Scenario: a contractor submits a task order proposal under an IDIQ contract with a DoD agency and its offer is not successful. It requests a debriefing and receives a debriefing letter. The letter states that another offeror was awarded the task order for $9.5M. 252.215-7016 Notification to Offerors—Postaward Debriefings states that "the Government will provide a written or oral postaward debriefing to successful or unsuccessful offerors for contract awards valued at $10 million or more", and that "If a required postaward debriefing is provided, the debriefed Offeror may submit additional written questions related to the debriefing not later than 2 business days after the date of the debriefing." So how does the unsuccessful offeror know if the debriefing provided was "required", which would allow them to submit additional written questions IAW the enhanced debriefing rule? Is the "value" the award amount or is it an amount the agency determined prior to issuing the TO RFP?

Vern, We just made the decision today to retain outside counsel to advise on this matter. I typically try to do as much research as I can before seeking assistance from a consultant or attorney. I've been able to find answers to a lot of questions by reading the FAR, referring to Administration of Gov't Contracts (Cibinic and Nash), reading articles online written by Gov Con Attorneys, reading WIFCON content and occasionally posting to the discussion board. If, after all of that, I'm still not confident in the answer or best course of action, I will then advise my leadership that we should retain a consultant or attorney. WIFCON has been very helpful to me both as a Contracts Manager for a federal contractor and during my years as an 1102. I really appreciate the expertise and guidance provided here. Thanks

Even if that means forfeiting the ability to get a price adjustment per FAR 52.222-43? If we decide to voluntarily pay the current wage rates in accordance with a newly issued updated WD, I don't think we'd be able to seek a price adjustment for the increase given that the increase is calculated based on the delta of current rates being paid vs new rates required by new WD. That and because the Gov't has not changed the contract, so we would not have a basis for entitlement for the cost increase. It doesn't seem right that a contractor can recover the cost increase if the CO issues the mod, but is on the hook for the additional costs if the CO doesn't follow the FAR and issue the mod with the WD.

The CO has told us (verbally) that he's too busy to issue mods to incorporate updated SCA WDs. On other contracts where this has come up, I've sent an email to the CO asking if the CO intends to issue a mod to incorporate an updated WD. Unfortunately, in every case, the CO has ignored the email and follow-up requests. We've discussed going to DOL but that kind of seems like the nuclear option. But for this contract, it might be what we end up doing. I'd like to first get answers to my questions above before I go to the DOL as I want to be sure I understand our rights, obligations, and that we are interpreting the SCA clauses and regulation correctly.

Situation: Our company was awarded a multiple-year task order with a 5-year period of performance (no options). The task order is subject to SCA and had a wage determination included as part of the award. The task order is not subject to annual appropriations (at least I don’t think it is). Question #1: If I’m interpreting FAR 22.1007 correctly, isn’t the contracting officer required to obtain a new wage determination on the biennial anniversary date of the task order award and incorporate it into the contract via a mod? So for this TO with a five-year POP, shouldn't there be a mod issued at both the year 2 and year 4 marks to incorporate any updated/new wage determination? Question #2: FAR 52.222-43(c) seems to indicate that even if the contracting officer doesn’t issue a mod, the WD current on the anniversary date applies to the contract. Does this mean that the contractor is still required to pay current SCA wage rates even if the current WD wasn't incorporated into the contract? Question #3: I noticed that FAR 22.1007 distinguish between contracts funded by annual appropriations and those not funded by annual appropriations, but FAR 52.222-43 does not. For contracts not funded by annual appropriations, is it the anniversary date or is it the biennial anniversary date that triggers the requirement to pay the current WD rates? Question #4: What are we supposed to do when the contracting officer doesn’t issue mods to incorporate updated wage determinations? Are we still required to start paying the new SCA rates on the biannual dates of our TO? If so, do we just submit an REA for the cost increase associated with paying the updated rates, or would we submit a proposal for a price adjustment IAW FAR 52.222-43 even though we didn’t “receive” a new WD (we would have just pulled it from SAM.GOV)? I’ve always been told that if you “voluntarily” decide to increase wages (i.e., increase them without a mod that incorporates a new WD) to bring them in line with a current WD, you could forfeit your ability to get a price adjustment under FAR 52.222-43. In this case, we asked the CO if he was going to issue a mod to incorporate the new WD and the answer we received (verbally) was basically that they are too busy and won’t be issuing mods to incorporate new WDs. From what I understand, once a contracting officer initially determines that SCA applies to a contract, the Christian doctrine would apply for any future omissions under that contract related to SCA requirements (such as not incorporating a new WD into an existing contract). Note that on the old DOL site where the WDs used to live, the following statement was on the homepage in bold, red font: “CAUTION: Users should note that the only WDs applicable to a particular solicitation or contract are those that have been incorporated by the contracting officer in that contract action.” The current Federal Service Desk FAQs for WDs includes a similar statement: “Note: Access to the WDs on the SAM.gov is available to the public for information purposes only. The only WDs applicable to a specific solicitation or contract are those the contracting officer has incorporated in that contract.” This seems to contradict FAR 52.222-43(c). So which is it? Is the only WD that applies the latest one incorporated into the contract, which would be in line with the statements from the old DOL site and the current FSD FAQs, or does the WD current on the [anniversary]/[biannual anniversary] date of the contract apply, IAW FAR 52.222-43? I’m so confused. Any guidance would be very much appreciated.

1. Correct. REAs are usually messy anyway 🙂 2. 52.243-1 3. Adjustment to task order. I don't see how an "equitable adjustment" could be "equitable" if it doesn't make the contractor whole. Wouldn't you say that making the contractor whole is covering their actual costs of performing the changed work? If the contract labor rates are less than the actual rates used to perform the changed work (because of inflation or because the challenges of figuring out how to complete the changed work required additional senior staff), the contractor will likely be reimbursed less than the actual cost incurred. This is not equitable and does not leave the contractor whole. Thoughts?

To clarify, the entire REA wasn't due to a constructive change--just one part of it. Long story, but it basically comes down to a disagreement over contract requirements. The other part of the REA was not a result of a constructive change but rather differing site conditions.

There are two parts to the REA. The first is related to differing subsurface conditions and the entitlement is being sought under the Differing Site Conditions clause. The second part of the REA is related to additional requirements imposed upon us by the Government (unrelated to the subsurface conditions issue) and the entitlement is being sought under the Changes Clause (fixed price).

52.243-1 Alt I Changes--Fixed Price (Aug 1987) - Alternate I 52.243-2 Alt I Changes--Cost-Reimbursement (Aug 1987) - Alternate I 52.243-4 Changes 52.236-2 Differing Site Conditions

Situation: We have a FFP MATOC with established contract labor rates. We were awarded a competitive task order where our proposed price was calculated using the established contract rates. We submitted an REA for a constructive change to the TO/contract. The Gov't agrees that there was a change and the REA is warranted; however, there is disagreement on the buildup of the labor cost. For labor on the REA, we proposed our actual labor costs incurred + profit. The Gov't is pushing back and saying that we have to use rates "at or below" our contract rates. During a discussions call, they clarified what they meant by "at or below" and said we should need to map all of the personnel used to perform the changed work to a contract labor category and corresponding rate. They then said that we should use actual costs but only if the rates are below the "contract ceiling rates". For example, if we have a burdened contract labor rate of $150/hr for Senior Engineer, but we used a Senior Engineer whose actual burdened rate is $170/hr, we can only charge the Gov't $150/hr. However, if we used a Senior Engineer whose actual rate is $130/hr, we have to use the actual rate of $130/hr. We told them that we disagree, that we'd never heard of this approach, and that it would cause us to lose money. We explained that this approach would not leave us "whole" nor would it be "equitable". We provided some case law references (Bruce Constr. Corp. v. United States and United States v. Callahan Walker Constr. Co) to support our position that equitable adjustments are supposed to make the contractor whole and should be based on costs incurred (provided those costs are reasonable). The Contracting Officer (with advice from his Office of Counsel) is sticking to his guns and saying we "can't exceed the contract labor rates." Question: Is changed or added work subject to contract labor rates? I didn't think it was. If it's not, is there any case law that supports this? And shouldn't an REA (where the work has already been performed) be based on costs incurred?

The Gov't added "and prices". Specifically, the USACE. Basically a paragraph that said something along the lines of: in accordance with FAR 52.217-8, the Government may require continued performance of any services within the limits and at the rates and prices specified in the contract. And then they went on to add that it applies to task orders as well. Good point on raising the issue during the solicitation phase. I think in this case, we simply didn't notice it until after award. Thanks

Thanks, all. I appreciate the guidance. While I did use hypothetical scenarios, my company is dealing with some real life situations related to this clause. We've seen in more than one of our contracts with the Gov't language related, but in addition to, FAR 52.217-8 that states"...at rates and prices specified in the contract" [emphasis added]. So I wanted to make sure I understood how FAR 52.217-8 is supposed to work, and what rights it gives the Gov't, given the addition of "and prices" that we've seen in our contracts. We've also had a Prime try to force us to keep working for an additional 6 months at no additional cost. When we pushed back, they cited this clause, which was flowed down to us from their prime contract. I was pretty confident they were misinterpreting the clause, but wanted to ask here to be sure. Again, I appreciate everyone's guidance and expertise!

Well, this was a hypothetical scenario, but why don't we just say they're based on the completion of definable and measurable steps, which are considered integral and necessary to the achievement of the stated performance objectives.

Interim invoices. Milestone payments in accordance with an approved Milestone Payment Schedule.

Any thoughts on how this might be handled in FFP service contracts that are awarded on a lump sum basis and don't contain any contract rates?