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Found 15 results

  1. Hello all, I am administering a contract that has a modification that should have not been awarded. The contract was misunderstood and the mod awarded when it shouldn't have. There are no funds associated with it, just time extension. Wondering how to go about creating a new mod to say the previous one is null and void?
  2. SAP Modification PNM

    I am being told that a PNM is required for all modifications. I thought PNMs were not required for FAR Part 13 mods under SAT. I would appreciate hearing other people's thoughts on the subject.
  3. Hello! I thought this would be a good question for this forum to get a good idea on how things are done in other agencies. How often do you check the System for Award Management (SAM) for active exclusions? Do you check it for every contract action? That is how I was trained but someone brought up today that this may not be necessary. The FAR prohibits soliciting, or awarding to vendors that are on the excluded parties list but does not specifically require the Contracting Officer to check for every modification (e.g. admin changes). I found two applicable references which are verbose but nothing specific to requiring the check for every contract action - FAR 4.11 and 9.404-9.405: FAR 4.1103(a)(1) says that the Contracting Officer "(1) Shall verify that the prospective contractor is registered in the SAM database before awarding a contract or agreement. Contracting officers are encouraged to check the SAM early in the acquisition process, after the competitive range has been established, and then communicate to the unregistered offerors that they shall register;" FAR 9.404(c)(7) says that each agency must "(7) Establish procedures to ensure that the agency does not solicit offers from, award contracts to, or consent to subcontracts with contractors whose names are in the SAM Exclusions, except as otherwise provided in this subpart;" I'm at the Dept of Homeland Security. I can't find any agency specific information to requiring a check for every contract action either. Do you think this is something that was passed down as a best practice but not a requirement? This could also adversely affect a CO if they award a modification and find out that a vendor has been suspended so it could result in more dire consequences. I would love to know what you think!
  4. Hello WIFCON! Would love some input here from any knowledgeable folks about this... I am an Army PCO tasked with negotiating a request for equitable adjustment (REA) on a fixed price commercial contract for severable services that I recently inherited from a predecessor PCO. It's $5.6M, five year contract (base + four option years). The initial award was about two years ago--we are currently in the first option year. Shortly after award, during the base year, the Government realized it had vastly underestimated the magnitude and needed additional performance out of the contractor, and so the contract was modified (five times over the course of the first two years) to pull forward performance scope from the out years. So now the contractor has submitted an REA for additional OH costs related to administrative burden and greater than anticipated subcontracting costs in order to meet accelerated deadlines. The REA amount is significant, and the circumstances are much more complicated than what I'm able to provide in this forum, but, basically I've determined the REA has merit, and I'm trying to write up my merit analysis and price negotiation memo. I have a few questions I'm hoping someone can help me with. THANKS! SCOPE: As I said, I'm inclined to determine the REA has merit, but my analysis leads me to believe that we're dealing with an out of scope change. I say this after reviewing the Contract Attorney's Deskbook (Chapter 21), which outlines several factors to consider for scope determinations. Ultimately, to me the cumulative effect of all the prior changes may have constituted a "cardinal change". If that's the case, what's the change authority I'd use for the modification? In my experience, typically out of scope changes require a J&A, and with a J&A I'd use the applicable J&A authority as my mod authority--but that doesn't make sense since this is an REA, right? I'm not going to write up a J&A for all the contract changes that ALREADY happened am I? (Seems to me the modification associated with the negotiated REA is only to equitably adjust the contract as a result of the constructive changes leading up to this point.) Often I use the changes clause 52.243-1 as my modification authority, but it's my understanding that the changes clause 52.243-1 is only good for WITHIN-SCOPE changes. And since this is an REA and not a claim (yet, at least), using the disputes clause 52.233-1 wouldn't be correct either. So what do I put in the SF-30? FUNDS: I assume the fiscal law associated with an REA is the same as any other modification? I.e. Within scope modifications use award year money and out of scope modifications use current year money? Other related details: each of the aforementioned modifications were done bilaterally. The contractor signed each SF30 without a price proposal, but all along he was corresponding with the PCO and COR that he felt the contract scope was creeping larger and larger and as a result he was facing cost impacts he hadn't anticipated.
  5. Situation: I am modifying a contract to descope some work that is no longer required by the government. The descoped work is individually priced in the contract and the prices were determined fair and reasonable based on adequate price competition. The value of the modification is over the TINA threshold. Question: Am I required to obtain certified cost and pricing data? FAR 15.403-1(b)(1) prohibits obtaining certified cost and pricing data when the CO determines that the the prices are based on adequate price competition. I would argue that, since the modification prices are based on the contract's competed prices, the modification prices are also based on adequate price competition. The counterargument is that the prices cannot be based on adequate price competition since the modification is inherently sole source. Which view is correct? Is there guidance to support either side?
  6. I have a contract to provide cyber security monitoring and analysis which are severable services. I have a request to add another set of analysis, which would cost approximately 10% of the total contract value. My legal team is telling me that since these are severable services, any additional work is consdered out of scope and must be done with a J&A. The work is the same or similiar as what is currently being done and would not have changed the competition at time of award. My question is, can you never add work to a severable services contract and call it within scope because there is a cost associated with it? Can I also modify the option periods since they have not yet started? Thank you in advance for any information!
  7. Situation: Agency awarded a 5 year FFP contract for $240K (5 year total). Contract is currently in the first option year ($40K). Agency would now like to add some additional work to the contract. The nature of the additional work is very closely related to the work already being done under the contract (it would not result in a material change of the contract). Cost for the additional work has not yet been determined (agency is in the process of determining the cost parameters for a modification within scope). Furthermore, the RFP included this type of work in it - hence, offerors would reasonably have anticipated a modification of this nature at the time of award. Requirement was competed using SAP. Question: The nature of the work would itself not result in the modification being out of scope - but what are the cost limitations on ensuring the modification remains in scope? Would a modification for more than the micro-purchase threshold need to be either competed or justified with a sole source justification? Some individuals utilize a 'rule of thumb' percentage for cost that can be added in a modification to keep it with in the scope of the contract, but I have found no actual references to back that up. Upon reading the following post, it seems as though the cost limit to ensure the modification remains in scope could be the micro-purchase threshold - but I'm not sure. http://www.wifcon.com/discussion/index.php?/topic/1173-change-in-scope-qty-and-delivery-schedule-change/ However, part of the discussion in the post below indicates that as long as the nature of the additional work itself was included in the RFP, the modification for additional work would be with in the scope of the competition (even when adding the corresponding cost for that additional work, regardless of exceeding the micro-purchase threshold): http://www.wifcon.com/discussion/index.php?showtopic=801 I'm aware of the regulation that FAR Part 6 does not apply when using simplified acquisition procedures, but from my understanding of FAR 13.501, a sole source acquisition for a SAP requirement (in this case, a modification for additional work) would still require a sole source justification to be drafted and posted, etc., and I'm having trouble reconciling the guidance from these 2 references. Thanks in advance for any and all assistance.
  8. Good Morning WIFCON Community, Scenario: I have a question regarding contractual authority on a FFP commercial services contract. This contract is for physician services paid at an hourly rate. The contract states that the annual quantity is 2,080 hours. We are at the end of the base period of performance, and the government only used 1,980 hours. I now need to modify the contract and de-obligate the excess funds. What authority do I have to modify the contract and de-obligate the excess funds? My Thoughts: I have only two options for modifying the contract to de-obligate the excess funds. The first option is a bi-lateral modification (supplemental agreement) under the authority of 52.212-4©. The second option is a partial termination for convenience under the authority of 52.212-4(l). Other than utilizing one of these two options, I don't see any other authority I have to modify this contract and de-obligate the excess funds. I have always treated these modifications as bi-lateral, as I don't think that the de-obligation of excess funds is an administrative action. In my opinion, changing the amount of hours and associated value of the contract explicitly changes the terms of the contract. Therefore, the only unilateral modification authority I would have to take such an action would be termination for convenience. Other Opinions: I have some folks suggesting that the de-obligation of funds is only an "administrative modification" or a "funding only modification," and that it can be done unilaterally - especially since that particular performance period is now over. Are there any additional authorities I might have to modify a FFP commercial services contract other than those I've outlined above? Thanks in advance for any insight you can provide. -VA1102
  9. My Procurement Exec and one Attorney believe GAO recently used the so-called "10%" rule to determine a contract modification was within scope and therefore denied a protest. Neither has been able to produce anything other than their own recollection. Everything I have found in my previous and recent research indicates they are seriously mistaken. So if anyone out there has seen anything from GAO to support their statements, please post a link.
  10. Assignment of Claims

    When using a modification to incorporate an assignment of claims, should the name of the Assignee appear in Block 8 of the Standard Form 30 (SF30) or the name of the original contractor?
  11. 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
  12. CPFF, completion type contract for R&D. Contract contains FAR 52.232-20. Effort includes a prototype as final deliverable, a demonstration of that prototype, and several data deliverables along the way (including reports). During performance, contractor was months late on delivering several important reports. The contractor does not dispute this fact, but argues that it gave its best effort overall under the contract. Oversight was not as thorough as it should have been, but the COR asked the contractor for the missing reports several times during performance. The contracting officer was not made aware of the late deliveries until one month before the contract expired; as a consequence, perhaps some good opportunities to issue show cause notices were missed. The contracting officer wants consideration for the late deliveries, and has explained his position to the contractor in detail. Why relax the delivery schedule for nothing in return? The contractor will absolutely not provide any form of consideration. Despite being late, all deliverables have been received except for the demonstration. The demonstration is scheduled for two weeks after contract expiration. As the contracting officer, you're considering an extension to allow the demonstration to take place. You'd prefer to formalize the consideration in this modification, but again, the contractor absolutely refuses to provide any. What contractual remedies are available to you? Note: Termination will not accomplish anything for you, because the contract is near completion and you still want to receive the upcoming demonstration. You just want some consideration.
  13. I am working to get a contract awarded for contractor logistics supprt. Included in the contract is the unit level and depot level support, which is funded by O&M. The contract will be awarded as a CPFF for X dollars. The question rests in the whether or not we can negotiate FFP modifications, when they become necessary or known through the changes clause processing them through an ECP type process. The reason I say ECP type process, is because an ECP is associated with pre-fielding or production. MWO is the process used once fielded. The scope includes language and depot maintenance provides for modifications, but they are not know at the time of award. The awarded contract is for a baseline of services with language to allow for modifications. The contracting office believes whatever modifications/upgrades become necessary during the performance period would be considered new work requiring a J&A, etc. Conceptually increasing the contract cost without limit. This is obviously something that is dealt with on a daily in many weapons system PM offices, but I am simply not familiar with the process. Any thoughts would be appreciated.
  14. 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!!
  15. Good afternoon, Mr. Edwards: First, let me thank you in advance, for your assistance. This site is wonderful for getting another perspective on all things Federal Government contracting. Here is my question: Recently, the Department of Labor has been conducting an audit of the Service Contract Act to ensure we have been following appropriate procedures (i.e. paying correct wage and health and welfare). Last week, we received an amendment to modify a Blanket Purchase Agreement (BPA) through an amendment that retroactively incorporates the Wage Determination schedules for 2011 and 2012. What they are attempting to do is force our customer to have us sign the amendment so that we would be responsible for the wage differences and health and welfare from the inception of the contract. I have done a quick calculation and for the number of hours that we have put into the BPA calls, it would add up to a very large number. We would have never priced the contract as we did if this was an SCA contract and we stand to lose a significant amount of dollars if we were to accept this retroactively. Can you please tell me what recourse we may have. Thank you very much!
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