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Found 8 results

  1. Whose requirement is this & how do I resolve?

    I am an Army Contracting Officer in charge of the source selection for the production of an Army system. Since it always looks good for the program management folks to reach out to the other services (demonstrates you understand the “big picture”), this has occurred. In this case, the USMC wants to “be part of the procurement.” On the contracting side, it has always been our position to attempt to accommodate where it makes sense and when it does not jeopardize our core objective of meeting the Army mission. Now in the current situation, the participation of the USMC is considerable. Their desired portion/impact has the following characteristics: (1) They would be getting about 55% of the produced systems; (2) They would be providing about 55% of the funding; (3) About 20% of the specifications are not shared between the Army and USMC, so the USMC systems would require adjustment; & (4) A small but critical portion of the USMC systems would require a major configuration change. Some other important factors: The Army has based its decision to move ahead with this acquisition based on the system being COTS or an NDI. This is not a designated joint program and there is no formal agreement between the Army and USMC (no MOA exists). There is also a question as to whether the major system configuration change desired by the USMC falls under COTS or NDI. As an Army contracting officer, I want to do the right thing and best serve the Warfighter (which includes marines). We are very much encouraged to do this. Alternatively, this is not just adding on a few extra systems for the USMC; this is slightly over half of the procurement. I (we) have already sketched out numerous legal/ regulatory pitfalls, etc., but I do not want to influence anyone. What does everyone think about this? What are some ideas on how to best resolve?
  2. Hello, I've taken a new position and have a situation presented to me that I require some expert advice. Apparently there is a new ID/IQ about to be awarded. The RFP language states that the guaranteed minimum will be met with the issuance of TO 1 (will be a simultaneous award). I understand I we could incrementally fund - but the guaranteed minimum requirement muddies the water for me. My question is this: Does this TO 1 have to be fully funded at time of award or can we incrementally fund? (Contract type will be hybrid, funds RDT&E, Award FY16 last quarter, I'm a little confused as some things I've read indicate it must be fully funded with the current FY funds since it is to meet the guaranteed minimum. (GAO Rebook on Obligation rules that the guaranteed minimum has to be fully funded on the IDIQ or the simultaneously awarded TO. Reference GAO 06-382SP Volume 2, 3rd Edition, Chapter 7, page 7-21, paragraph 2.) I'm told that FAR clause 52.232-19, Availability of Funds for the Next Fiscal Year and DFARS 252.232-7007 Limitation of Government's Obligation will be included in the contract award. Obviously being able to incrementally fund would be most beneficial - can anyone help me find here to educate myself further on the issue or provide any clarification? Thanks so much! v/r T
  3. I'm an Army 1102 tasked with awarding a modification to a services contract that affects price. I've encountered a bit of a funding dilemma and I'd appreciate anyone's input on this. My interpretation of the circumstances and the pertinent statutes/regs/rules/etc is that if the KO determines this modification is in-scope then the obligation must utilize award year money. Conversely if the KO determines that the mod is out-of-scope, then current year funds may be utilized--but there must also be a J&A documenting why the work isn't newly competed. There are differing opinions. Any thoughts? CONTRACT DETAILS: The contract is firm fixed price for commercial, "severable" type services for a military customer. It was competitively awarded. The contract's period of performance is one base year (9/2012-9/2013) plus one option year (9/2013-9/2014) in the total amount of ~$10M (incl base + option). The base contract was awarded in Sept 2012, obligated with FY12 O&M funds. The option exercise for the additional year was exercised in Sept 2013, obligated with FY13 O&M funds. MOD DETAILS: The mod is for new, additional work. Whether this work is in-scope or out-of-scope is still under debate. It's definitely related to the work in the original PWS but I personally I believe it's outside the scope (under the criteria cardinal change rule, material change, etc.). The contractor has proposed ~$200k for the mod. Currently, the funds provided are split 75/25 among FY14 and FY13 funds. PERTINENT REGS, RULES, ETC.: The following references have been consulted. FAR Subpart 32.7, Contract Funding - 32.703 provides statues that permits agency heads to fund contracts crossing fiscal years with annual appropriations DFARS 32.7, Contract Funding - 232.703-3 provides 10 USC 2410a as the applicable statute. FAR Part 43 Modifications - silent on the topic DFARS Part 43 Modifications - silent on the topic FAR Part 6 - 6.001 states CICA requirements apply to mods not within the scope of the original contract 2013 FISCAL Law Deskbook - Ch. 3, Sect. VII Use of Expired Funds, Paragraph B Contract Modifications Affecting Price: Subparagraph 1(a) "When a contract modification does not represent a new requirement or liability, but instead only modifies the amount of the government’s preexisting liability, then such a price adjustment is a bona fide need of the same year in which funds were obligated for the original contract." - I.E. IN-SCOPE mods mut use award year funds Subparagraph 1(b )(1) “In general, increases to the quantity of items to be delivered on a contract are viewed as outside the scope of most changes clauses. Thus, a modification to increase quantity will amount to a new obligation chargeable to funds current at the time the modification is made.” - I.E. OUT-OF-SCOPE mod can use current year funds but this would require a J&A IAW FAR 6.3 Subparagraph 1(b )(5) “Severable Services: A modification providing for increased additional deliverable services must be charged to the fiscal year or years in which the services are rendered… Note: In dicta, GAO has suggested that an increased services modification to a contract awarded for 12 months under 2410a would relate back to the funds initially placed on the contract. See GAO Redbook, Volume I,Appropriations Law, page 5-34 (2008). - I.E. this is a gray area but it appears GAO rules that OUT-OF-SCOPE mods for severable services also require award year funds GAO Redbook - Volume I, Appropriations Law, Sect 9a (page 5-44) “10 U.S.C. § 2410a authorizes the military departments to use current fiscal year appropriations to finance severable service contracts into the next fiscal year for a total period not to exceed 1 year” - I.E. the Redbook explains the intent behind the DoD Severable Services permission but is silent whether to use award year or current year funds for an in-sope mod. WIFCON, "Bona Fide Needs Rule" - "…a within-scope price adjustment, which is requested and approved in a subsequent fiscal year [subsequent from the current contract obligation], for example, under the “Changes” clause, will... be charged against the appropriation current at the time the contract was originally executed." - I.E. IN-SCOPE mods mut use award year funds
  4. Bulk funding

    Is this legal. "Firm Fixed Price bulk funded estimated quantities purchase order". The idea being the contract would be for ordering an unknown quantity and paying for only items ordered. Sure, perhaps an IDIQ would be a better choice contract type. That aside, anything out there that suggests this can't be done?
  5. Question: At what point in the acquisition process does the Government need to have committed funds or the process is on hold? Situation: The Government has a hybrid CPIF/CPAF contract with a Contractor for what is most correctly classified as a series of complex non-commercial supplies which will be accomlished according to specifications. This contract is not an IDIQ, rather the ordering of work is done by modifying the contract to add the work according to option CLINs much like the issuance of a delivery order. The Government agency is a little short on money, needs to have some work done within the current fiscal year, but will not commit funds for the work just yet. The magnitude of the work is roughly $6M. The agency sends an unfunded purchase request to the contracting office for action stating that 'we would like to fund this'. The contract contains no clause which would restrict the Government from moving forward with a request for contract modification to add the work which would be considered within scope despite having no committed funding at the level of the Government estimate. The Contracting Officer has observed the agency behave in this manner previously; specifically two instances where the agency was not able to fund a major portion of the requirement for work similar in magnitude to the instant body of work but has gone through the process of requesting a change proposal and even negotiating and arriving at a negotiated target cost for the work, only to have the work scope significantly reduced to fit the actual amount of funding available. The result previously has been that the Government in the course of descoping work had to cut 1/2 of the work package to accomodate the deficit of 1/3 of the necessary funding for the entire work package. The Contracting Officer considers the following realistic potential Courses of Action (COAs): Course of Action 1: The Contracting Officer halts the process stating that funds must be committed at the level of the Government's estimate for the work in order to request a change proposal. The Contracting Officer conducts an exhaustive search for his / her authority to enforce such a standard, but is unable to find one. This exhaustive search includes the contract, agency internal controls and policies, FAR, agency FAR supplement(s), case law, Administration of Government Contracts, Formation of Government Contracts, wifcon archives, etc. The agency becomes displeased with the contracting office, does not commit funds, and communicates at the executive and senior executive level to force the request for change proposal to be issued by the contracting office. Course of Action 2: The Contracing Officer proceeds with the request for change proposal with no assurance that funds are available or budgeted to fund the requirement. History repeats itself. Discussion: I've got to say it seems like COA 1 is a losing battle. There's nothing explicit that I have been able to find aside from the Army FAR Supplement at 5101.602-2 that gives Contracting Officers the responsiblility and authority to force the agency to have funding in-hand or budgeted and that only seems to apply when forming a new contract. The Air Force in the past has used Special Advance Authority to identify within soliciations that fudning is not available and would assign a degree of probability that the requirement would become funded. But again, that was specific to forming a new contract. It just seems to me that an agency can't say with a straight face that it is proceeding in good faith with the Contractor to go through a 4 month change proposal process (which is paid for through costs on the contract) without (1) having funds committed in its accounting system, (2) having funds budgeted, or (3) at a minimum formally notifying the Contractor that funds are not currently available and may or may not become available. Any thoughts on this topic would be greatly appreciated.
  6. Hello Vern and all! I would appreciate your input on this issue - of course it is also going to legal for their opinion but you have more contract knowledge in your big toe than our legal has in the whole system, sadly to say. I thought I might get myself an educated answer here for my own peace of mind regardless of what legal has to say. So I am stuck between a rock and hard place; I have a task order written off an IDIQ base contract. The TO was written in FY 12. The CLINS are for people written in the quantity of "months". Each month was priced off of 40 hours per work week per person. Now we are in FY13 and have another 6 months of PoP remaining. The vendor has informed me that due to the start up of recruitment, security and placement we will have FY12 funds remaining that will be unbilled and that there is enough to add more people for the remaining 6 months if we would like. THe "rock" argues that we purchased man-hours toward an effort and in order to recover those man hours we should be able to legally add additional people. The "hard place" argues that additional people is considered outside scope and new work and that it would be a violation of the bona fide needs rule to use "left-over" FY12 funds to add additional people. Who is right? Second side question if you do not mind. The "hard place" also insist that since they are the CO of the IDIQ they get to make CO decisions on the TOs. I believe that once the TO is signed by me (another CO) that the CO decisions fall on me, unless they are a direct violation of the base IDIQ. Who is right on this issue? As always, thank you!!
  7. 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?
  8. My question relates to the usual last minute rush to get all of the current year's appropriations obligated before the end of the fiscal year. I'd like to know whether or not a prior year's annual appropriation can be obligated after the new fiscal year has begun if the need for the services arose and existed in the prior year, and the program office's request was delivered to Acquisition's personnel with enough time to have a contract awarded that year. Under this scenario, the contract does not get awarded prior to the end of the fiscal year due to factors beyond the control of the program office. In other words, a research division determines it has a bona fide need for a researcher on July 1st of FY 2012. A complete procurement request package is delivered to Acquisition personnel on July 20, FY 2012. Funds to be used for this requirement are from a FY 2012 annual appropriation. Due to workload or other factors, acquisition personnel don't get the contract awarded until November, FY 2013, time at which the annual appropriation is no longer available. Is it appropriate to obligate the FY 12 annual appropriation against this contract awarded in FY 2013 since the services that are being procured are a bona fide need of the previous year?
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