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Found 44 results

  1. A termination fee is pre-negotiated into an IDIQ contract. The fee addresses the contractor’s entitlements in the event the Government fails to order the contract’s minimum guarantee (FAR 16.504(a )(1) and (2)). What is the extent of the government’s liability? The termination fee? The minimum guarantee? If you don't believe the termination fee is sufficient, why not?
  2. I would like to get some advice and opinions on a possible unique scenario we are facing in our Acquisition office. The program office wants to recompete and award a new IDIQ contract to incorporate changes that cannot be put into the current IDIQ contract. Also, due to the nature of the services, a minimum overlap of 18 months is recommended between the contracts. There is still an unexercised option period of 3 years available on the current contract, which is not due to be exercised for a couple years. Award of the new IDIQ contract is projected to happen before then. If the final option period is not exercised, there could be less than the minimum recommended 18-month overlap available. So, the plan is to exercise the final option period. Besides excessive duplication (more than 3 years) and increased contract administration effort, what other issues or legal ramifications might there be if we awarded the new IDIQ contract before exercising the final option period on the current IDIQ contract? Thank you in advance for your assistance. Sincerely, EJB_FederalCO
  3. I have been unable to find anything supporting this approach, nor have I found anything actually prohibiting it. I would like to canvass the professionals out there in the event someone has experience one way or the other: Contract will include FFP (fully-funded) Base CLINs, with option periods of performance (up to five years). Contract also will include FFP IDIQ CLINs for supplemental support hours (just in case). Question: Must IDIQ CLIN be associated with each period of performance, have min guarantee/max estimate, and be exercised each year? Or, can IDIQ CLIN be exercised with minimum guarantee at base award and remain open for use throughout the life of the contract? (subject to getting a firm fixed price for this lengthy period). Any feedback, lessons learned, gentle guidance, or good jokes will be appreciated. E
  4. I'm working on preparing a multiple-award IDIQ for FFP commercial supplies, and there has been some discussion in my office about multi-year vs. multiple year and the inclusion of options for ordering periods. Each multiple-award IDIQ is intended to have a single five-year ordering period without options. Each delivery order would be funded using single-year appropriations. Each IDIQ would also have a minimum obligation that we reasonably expect will be fulfilled almost immediately after award. However, these IDIQ's raise two very important questions: 1. Would the IDIQ's be considered multiyear or multiple-year? 2. If they are multiple-year, are options required? Here's a summary of our discussion, and the general consensus we've reached. Any other insight is welcomed, regardless of whether it's conflicting or supporting. Multiyear vs. Multiple-year. Based on the definition of multiyear in FAR, a multiyear contract is for the purchase of supplies for more than one year. Further, "The key distinguishing difference between multi-year contracts and multiple year contracts is that multi-year contracts, defined in the statutes cited at 17.101, buy more than 1 year’s requirement (of a product or service) without establishing and having to exercise an option for each program year after the first." Under FAR 17.104(a), "Multi-year contracting is a special contracting method to acquire known requirements in quantities and total cost not over planned requirements for up to 5 years unless otherwise authorized by statute, even though the total funds ultimately to be obligated may not be available at the time of contract award. " Our discussion leads us to believe the IDIQ contracts we're preparing are not multiyear. First, they're IDIQs, and by virtue of an IDIQ, the quantity is unknown, and fails part of the criteria at FAR 17.104(a). However, the use of a minimum obligation could encroach on the multiyear definition. If we specified the minimum obligation were to be met sometime throughout the contract term, and delivery orders were funded using single year appropriations, we'd essentially be committed to spending money in future years that we don't have yet. An availability of funds clause could handle that situation, but it seems if we specified the minimum obligation would be met before the fiscal year end after contract award, we'd very clearly be out of multiyear territory. Options in a Multiple-Year Contract Our second topic of debate is the inclusion of options in a multiple-year contract. Our logic follows that if a contract exceeds one year in duration, and is not a multiyear contract, then it must be a multiple-year contract. Some of us argue against the necessity of options in a multiple-year contract, but others insist they are required. However, I cannot find any requirement in the FAR to affirmatively support either case. We all understand that anything is permitted unless it's prohibited in the FAR, but the idea of a multiple-year contract without options makes some people uncomfortable. We've reviewed FAR 17.202( (2), "Inclusion of an option is normally not in the Government’s interest when, in the judgment of the contracting officer -- An indefinite quantity or requirements contract would be more appropriate than a contract with options.", and this would seem to be a smoking gun to resolve this question. However, others have argued this statement demonstrates some other intent, such as an IDIQ should be multiyear (which we've already argued amongst ourselves that an IDIQ is not). My sentiment is that although options may present some advantages and disadvantages, they are not explicitly required in a multiple-year contract. Can anyone back me up? To summarize my questions: 1. Is our logic correct in classifying this IDIQ as a multiple-year contract? 2. Is there anything out there that requires the use of options to extend the ordering period of a multiple-year IDIQ? Thanks in advance to everyone who offers us some meaningful insight.
  5. We just bought a company that was awarded an IDIQ contract in one of the multiple technical categories in the small business category. The award was for a 2 year base with 3 one year options. The previous owner did not pay one of his sub-contractors. We are in negotiations with the sub-contractor for a payment plan and will use a waiver of liens to solidify the payment plan. The waiver includes liens against the Government. The KO issued a notice not to exercise the next option year. KO's reasoning is financial instability. What options does a contractor have to challenge the non-exercise of the next option year. KO did not state what documentation was acceptable to demonstrate financial stability.
  6. An agency issues a task order solicitation off of a Multiple Award IDIQ Master Contract. It is a competitive 8(a) award off of the 8(a) STARS II GWAC. The Master Contract requires the task order solicitations to contain the Limitation on Subcontracting clause. Somehow, the ordering agency forgot to include this clause. In evaluating the proposals, the agency realized this particular FAR clause is missing. For very good reasons which I will not go into here, the agency believes it is best NOT to amend the solicitation. That would require allowing for revised proposals and starting the evaluation process all over from the beginning. Is there any authority which the agency can use to say that the missing FAR clause is "included by reference" or something like that? We looked at the Christian Doctrine, but it turns out it only applies to contracts, not solicitations. We looked at FAR 52.216-18, which says that, in the event of any conflict between the Master IDIQ K and the task order, the Master Contract takes precedence. But again, it sounds to us like that clause only applies/addresses the contract administration stage, not the solicitation and evaluation of proposals stage. If we have to amend the solicitation, then it would be good to have GAO or COFC decisions to support this course of action so as to more easily convince the end user program office client of why it needs to be done. So we looked at whether this could be framed as a "scope" issue. FAR 16.505(a)(2) requires the orders to be "within the scope . . . of the contract." Could the task order, which was missing the FAR clause on Limitation on Subcontracting, be considered beyond the "scope" of the Master Contract, because it was missing that clause? But that seems like a dead end b/c there is a GAO decision which stated that the "scope of work" in these scope determinations refers only to the real "work" in the solicitation, meaning "Section C" stuff, not anything else. See Colette, Inc.--Request for Reconsideration, B-407561.2, Jan. 3, 2013 ("In entertaining protests related to the issuance of task orders, we have consistently understood "scope" to refer to the scope of work authorized in the underlying contract." GAO rejected the protester's argument that non-compliance with the Master Contract's instructions on how to conduct task order competitions increased the scope of work). Any ideas?
  7. Help! I am reaching out to the community for some synergy----- ideas on how I may accomplish this acquisition: Scenario: Numerous types and quantities of sample analyses required for space mission, over several years. Definite need, just don’t know when and how much at this time, only estimates and descriptions of the types of analysis to be performed. Client does not want to depend solely on evaluation of proposal and past performance info for selection of this contract award. Client ‘visualizes’ sending samples to be analyzed/ turned into data to vendors they found in their market research in order to see the contractors’ work product. This will all be based on very thoughtful criteria; researchers and scientists, here. Naturally, client is risk adverse and willing to pay for the effort to perform actual samples (via small contract(s)?) during this process and prior to award of large contract. Q: How do I make this large, multi-year contract a competitive procurement? The two step proposal process is the one that I am familiar with, but it does not seem to fit. There is actual work effort and cost will be incurred by contractors running these tests. And, if we find the one firm that suits the client for their long-term requirement, the larger contract won’t be competitive. Your thoughts on how I can make this happen, please?
  8. Can a contract designate other individuals, besides the Contracting Officer, as authorized to issue task orders off an IDIQ for services? I thought that only a warranted Contracting Officer or Purchaser could obligate funds on behalf of the Government. However, others I know believe that it is OK to designate the Contracting Officer's Technical Representative (COTR) as authorized to "issue task orders." I am told that this is a common practice at DOD and other agencies. I never heard of it before. Can anyone confirm this?
  9. I have researched this topic and would like to confirm that the protest limitation of $10M on orders issued on an IDIQ still does not apply to contract vehicles covered by FAR subpart 8.4. The case law I am seeing is dated and current case law is not forthcoming with regard to the value of the orders. Thank you.
  10. My company was awarded an IDIQ from the Gov't as part of a multiple prime IDIQ vehicle. We are currently weighing whether to issue our subcontractors a BOA or an IDIQ. Since each task order at the prime level (there are multiple primes) will be competed and our team will need to stay very flexible in order to win, I believe that a BOA would probably be more appropriate than an IDIQ Subcontract. We envision that labor rates within the established labor categories for each task order will need to be different depending on the SOW and the price to win. If we used an IDIQ in lieu of a BOA then any pricing that we established (labor rates) would most likely need to be discounted once the task orders are released/competed (so I don't think an IDIQ would be as appropriate). Another reason I don't believe the IDIQ would be appropriate is that my company would not be able to promise a minimum and would not do a very good job in estimating a maximum subcontract value. In order to stay as flexible as possible, I believe a BOA would be the right choice for my company to issue to subcontractors but I am seeking your help in determining possible pitfalls associated with BOAs (vs using an IDIQ subcontract). I understand that a BOA is not a contract and the subcontractor is under no legal obligation to accept a task order (or purchase order if that the preferred terminology when speaking about a BOA). But once my company issues a TO and the subcontractor accepts (either formally in writing or by commencing work), then they do have an obligation to complete that work in accordance with the terms and conditions of the BOA, incorporated docs and any instructions included in the TO. Both vehicles are used to streamline orders however I believe there is much more in setting up an IDIQ than a BOA because the IDIQ would contain pricing to be evaluated and a ceiling value which would set off many threshold related administrative work (FFATA cert, EEO, CAS, etc.). I realize that with a BOA, the administrative part would need to be completed with each TO award depending on the value of each award however I think this is a risk worth taking since we can't really predict how many task orders we will actually win or the values. I know that the values can be as low as 100k and as much as hundreds of millions. Does anyone have any experiences to share with respect to services based BOAs in lieu of IDIQs? Any concerns one might have with putting a BOA in place with their subs in this scenario? Oh yeah, workshare to the subs is not an issue in our situation as my company did not make any promises to any of the subs. From DAU website (https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=22&cgiQuestionID=18517): The key distinction in their application is that Government is in a position where it can commit itself to a minimum quantity when awarding an IDIQ contract, whereas the Government may not be able to commit to a minimum quantity when setting up a BOA. Further, BOAs are commonly used to streamline ordering when using simplified acquisition procedures. IDIQ contracts are commonly used to expedite the ordering process for requirements of any dollar value. The ceiling for some IDIQ contracts is in the billions, with individual orders under those contracts in the hundreds of millions. Just curious - Why are BOAs commonly used when using simplified acquisition procedures as stated above...why would there be a limit on the dollar value of a BOA?
  11. I was assigned to administer an IDIQ contract with Options. FAR 17.202((2) says that an indefinite quantity contract can have options. We wish to exercise the IDIQ option. Since the IDIQ contract is unfunded as a whole (there are no funds required) does it follow that therefore we don’t need any funds to exercise the option? If there are no funds required on the base contract does this mean that there is no financial commitment on the IDIQ to verify funds for the option and that the Option is unpriced or $0? To exercise an unfunded Option appears to go against FAR 17.207©(1) and 15.403-2(a), which states that the exercise of an option must be at the price established at contract award or initial negotiation. Please clarify, is this correct?
  12. I have a fairly straightforward question regarding the use of funds obligated against an IDIQ contract at time of award when no order was issued concurrently with the contract. If, for example, I establish a minimum ordering amount of $1,000 on the base IDIQ contract, how do I use those funds when I finally award a task order? Do we deobligate the $1,000 from the base and obligate $1,000 on the task order? Or do we simply leave the funds on the base and find new money for the task order? I ask because I don't think I can pay an invoice for an order using funds obligated against the base without first "moving" the funds from the base to the order. If the proper method is to deobligate the funds from the base and then obligate an equal amount of funds on the task order, what happens if the funds used on the base were part of an annual appropriation that is no longer available for obligation? In other words, suppose the base IDIQ is awarded on September 1 FY'13 and funded with an FY'13 annual appropriation, then a new order is awarded on October 15th, FY'14. Although the funds on the base are good until September FY'14, one would not be able to use those funds once they're deobligated for the purpose of "moving" them to the task order. Once deobligated in FY'14 the funds are no longer available for use. Is the money "stuck" or "lost" on the base? One last consideration; how is this reflected in FPDS?
  13. Does the multiple award preference at FAR 16.504 apply to sole source awards pursuant to FAR Subpart 19.8? My contracting office has been requested to issue a solicitation sole source to an 8(a) firm for a single award IDIQ services contract. I know that authority for sole source contracts is found at FAR 6.302-5(b )(4) and FAR Subpart 19.8. However, my reading is that for IDIQ contracts, FAR 16.504 still applies. Hence the multiple award preference described FAR 16.504( c) would still apply and as such, in order to pursue a single award IDIQ, the Contracting Officer would have to document the file with a determination that a single award is most appropriate, giving consideration to the content provided at FAR 16.504( c)(1)(ii). The requirements are not for manufacturing, will not exceed $4M total, and are not for advisory and assistance services. My inclination is to push for a competitive procurement, perhaps an 8(a) or other small business set-aside if the market research supports it.
  14. Ignoring whether or not agency should have used this vehicle, agency establishes multiple IDIQ contracts with FSS holders under FAR Subpart 8.4. The award of IDIQ contracts would seem to bring FAR Subpart 16.5 into play. Agency then issues a request for quotations by issuing a solicitation to all the IDIQ holders. While it seems clear that a procurement under FAR Subpart 8.4 does not involve the use of competitive proposals (see Millennium Space Systems, Inc., B-406771, August 17, 2012, 2012 CPD ¶ 237), it appears unsettled whether the use of an IDIQ contract vehicle transform the procurement from one involving other competitive procedures to one making the use of competitive proposals. The FAR generally links competitive proposals language directly to FAR Part 15 (see FAR 6.102( B )), but a nexus is created in FAR 16.505( B )(4) wherein is mandated that FAR 15.506 procedures be followed for postaward debriefings. And, just to muddy the waters a bit more, the FAR is explicitly clear that “responses to requests for quotation (simplified acquisition) are ‘quotations,’ not offers” while “responses to requests for proposals (negotiation) are offers called ‘proposals.’” FAR § 2.101 (under “Offer”). And, as that same provision explains, an offer “means a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract.” Id. Thus, according to the FAR, there is a clear and unalterable distinction between “quotations” (where no contract is formed by its submission) and “proposals” (where the submission binds the offeror and a contract results). So here is the question: Is a FAR Subpart 8.4 procurement that utilizes IDIQ contracts under FAR Subpart 16.5 a procurement on the basis of competitive proposals?
  15. I am the owner of a small woman-owned HubZone company... and new to the forum ... We currently have an IDIQ base contract w/reqirements placed via task orders for (2) CPFF tasks and (1) CPFF completion type task. All the tasks are based upon proposed rates by labor category and represented in an hourly dollar amount. My question is what is the proper way to calculate the hours and appropriate cost for a salaried exempt employee who may work more than 40 hours in a week? For example a proposed labor category of Sr Computer Engineer at $40 per hour based upon 40 hrs a week ...if that employee works 60 hrs in a week the gross wages are $1600. Should the task be billed for 60 hour or 40 hours? should the task be charged at the $40 rate or is it the gross wages divided by the # of hours in essence reducing that $40 rate? Also, what if the employees actual is only $1520 ... is the billed amount at the proposed rate of $40 or is it once again the actual grosss wges divided by the number of hours actually worked? Someone please help clarify ... I apologize in advance for what seems like a very simple Contracting 101 type question, but a recent COR change has us now second guessing ourselves and past procedures...
  16. I posted this to another thread a few weeks ago (http://www.wifcon.co...?showtopic=1735) but never received a response so I thought I would give it another shot, two questions. (1) Views on the practice of not entering a date (i.e. 15 June 2014) or a period of time (90 days after the end of the ordering period) in 52.216-22(d) but entering something along the lines of, "end of the final task order's period of performance”? I'm not a big fan of using language similar to the above as I feel there should be a definitive end to the period of time of a contractor's obligations under a basic contract; setting scope of the contract with regard to time. (2) (contract admin question) What about modifying the date in 52.216-22(d) subsequent to the ordering period's expiration? For instance, ordering period ended 01 July 2012, task order was issued for 180 days on 30 June, 52.216-22(d) states 180 days, but on 21 August 2012 a KO tries to modify 52.216-22(d) date to 365 days to issue a subsequent mod to the aformentioned task order to extend it to 365 days. Contract was via full and open competition. My thought is sole source extension? Dynamics Corp. of America v. United States, 389 F.2d 424, 430-33 (Ct. Cl. 1968) (treat orders like options) in combination with Major Contracting Services Inc. B-401472 (option is a sole source if it wasn't evaluated at the contract award, requires J&A).
  17. Scenario: A multiple award IDIQ contract for R&D servcies was awarded sometime near the end of FY'09. The vehicle consisted of 37 base contracts with 37 different contractors. All base contracts were funded with the established minimum ordering amount. I have recently taken over this contract and the time has come to exercise an option period on all of the contracts. To date there are 15 to 20 contractors that have not been awarded task orders. My reasoning tells me that upon exercising the option on these base contracts, I should be required to obligate funds in an amount equal to the minimum ordering amount and ensure that those funds remain present throughout all periods of performance until that time when a task order is awarded and the minimum ordering amount has been satisfied. I don't think this has taken place to date. I believe the contracts were modified to exercise the options, but the amount required to satisfy the minimum ordering amount was never carried through to the new period of performance. What would be the effect had the funds that were obligated upon award been no-year funds? Also, the specific language that was used in the contract seems to suggest that the minimum ordering amount is payable only at the end of the contract period, inclusive of options. Does that make a difference as regards the amount that should have been funded on the contract at time of award? The exact language from the contract follows: Fulfilling Minimum Ordering Requirements The Government has no obligation to issue task orders to any contractor beyond the minimum amount specified above. For each successful contractor, there will be a one time "minimum guarantee award amount" during the life of the contract, which includes all option years, if exercised. This amount can only be claimed at the end of the contract period if the contractor takes advantage of fair opportunity by proposing on at least one Task Order, within the Technical Areas for which the Contractor received award, offered to the contractor during the years for which the contractor is eligible.
  18. If the Prime Contract is an IDIQ task order contract, is there any authority that would require that the team subcontracts also have to be IDIQ task order? Our team subcontractors were proposed IAW FAR 9.601(2).
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