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leo1102

AbilityOne Follow-On Contract

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I am in the process of working a follow-on contract on the mandatory procurement list on AbilityOne.

Under the current contract, the Govt purchased all of the supplies, materials, trucks, mowers, etc used in the performance of the PWS.

Under the follow-on contract, the Govt does not have funds to purchase supplies, materials, trucks, mowers, etc to perform services IAW the PWS. The AbilityOne contractor is stating that they require funding to replace 5 year old trucks, mowers, etc. The AbilityOne contractor is stating that they can not afford to purchase the items themselves to perform under the PWS.

I have read FAR Part 8.7., CFR 41 Chapter 51 and OMB Cir A-122. I am unclear whether we are required to continue to provide the supplies, materials, trucks, and mowers necessary to perform under the PWS.

If the AbilityOne contractor continues to state that they can not afford to purchase their own supplies, materials, trucks, and mowers, does this give grounds to request that the requirement be removed from the AbilityOne mandatory procurement list?

Thanks for your input.

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In my limited experience, I haven't had any luck getting a requirement removed from the Procurement List. Your question is unclear (at least to me), in that it seems to assume that "supplies, materials, trucks, and mowers necessary to perform under the PWS" are somehow something the procuring agency would not end up paying for under the contract. Are you trying to suggest that this somehow reflects on its present responsibility? If so, take a look at FAR 9.102(B)(3), 41 CFR 51-2.4(a)(3) & 41 CFR 51-3.2(B). If I'm interpreting your question correctly, I suspect you're barking up the wrong tree.

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You also have not mentioned the Government IGE in your scenario. Did the Government adjust its IGE for the follow-on procurement to reflect that the contractor was now going to provide all the stuff? If so how did the IGE handle it versus how the contractor is proposing its cost/prices? Seems a strange statement to contend the Government "does not have the funds" as I would not believe that the Government expects the contractor to provide the stuff for free! Government pays either way, don't they?

Without details but based on guessed good past performance and other track record of the firm I suspect their affordability contention could be bridged with an appropriately priced proposal and good PR that educates a bank on what Ability One is all about (and possibly assignment of claims) for securing a loan to purchase the equipment, materials and supplies.

Overall I would suggest that rather than jumping to trying to remove the requirement you and the firm should be working together further to make this work.

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Under the follow-on contract, the Govt does not have funds to purchase supplies, materials, trucks, mowers, etc to perform services IAW the PWS. The AbilityOne contractor is stating that they require funding to replace 5 year old trucks, mowers, etc. The AbilityOne contractor is stating that they can not afford to purchase the items themselves to perform under the PWS.

If the AbilityOne contractor continues to state that they can not afford to purchase their own supplies, materials, trucks, and mowers, does this give grounds to request that the requirement be removed from the AbilityOne mandatory procurement list?

Thanks for your input.

Hi leo1102,

Not sure I can answer you definitively. But that never stops me from trying to help out.

1. I assume the Government currently has title to the 5 year-old trucks, mowers, etc. These are being tracked as Government-owned, Government-furnished property. (Note that the supplies issue is entirely separate from the tangible asset issue.)

2. The GFP is at the end of its useful life and your AbilityOne contractor says its time to replace them. You say the Government doesn't have funds to purchase the items. Instead, you want your contractor to purchase them for you.

3. You DO realize that if the contractor purchases the items, then the contractor is going to bill you for them, right? If it were my client, I would advise the contractor to send you a bill for the full purchase price the moment the items were purchased, as they would be direct costs of the contract.

4. But you don't have funds. So what you REALLY want is for the contractor to purchase the items on its own, as its own capital assets, and then depreciate the items over time into some kind of indirect cost pool. In essence then, you expect the contractor to fund the Government's needs. At the same time, if the contractor is subject to FAR Cost Principles, you will deny the contractor recovery of the interest expense it needs to finance the purchases, because it is unallowable.

5. And, to top off the situation, you are now looking to replace the AbilityOne contractor if it refuses to fund your needs. Somebody less charitable than I would say that's very close to extortion.

My opinion of your approach? It violates the covenant of good faith and fair dealing.

My answer to your question? No. You cannot remove an AbilityOne contractor for the rationale you are apparently cooking up. You know you need to replace the equipment. Replace the equipment. If you can't replace the equipment then I suppose you can terminate the contract but you won't be able to replace the contractor. Tell the base to cut its own lawn using its own personnel. Since there is no funding for equipment, I suppose the personnel can use their personal scissors and nail clippers.

Hope this helps.

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If you went forward with that rationale to remove the requirement from the AbilityOne program, you would embarrass your agency. First take a look at the Commission membership that looks at the Procurement List - 15 Presidentially appointed members. You would be telling these people you initially supplied the vehicles and supplies but now don't have the money. So you want contractor to supply them and they can't afford it so you want to take the requirement out of the program?

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Does FAR or 41 CFR require the procuring agency to give an Ability One contractor the things it needs to perform? If not, what about FAR 45.102?

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Deleted.

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I don't see anything that requires the government to give the contractor what it needs to perform. Unless I have missed something in that regard, I think some of the responses to leo1102's plea for are nonsense. Just follow FAR 8.705-4. I don't see the problem.

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Vern & Carl --

In my view the issue here is not whether the Government customer or the AbilityOne contractor provides the necessary equipment to perform the work. The issue here, as leo1102 has framed it, is that the Government customer doesn't have the necessary funds to pay for the equipment regardless of which entity acquires and holds title.

The Government currently provides equipment as GFP. The contractor (user) has informed the Government that the GFP is at the end of its useful life. At some point during future performance, the equipment will stop working. Then it will be defective GFP. Prior to that point, the equipment may not operate efficiently or require undue amounts of repair/maintenance. Then the contractor will not be able to perform as proposed and the cause will be GFP not operating as reasonably expected.

Delay & disruption. Defective GFP. I smell a nice REA coming. Which is exactly what the AbilityOne contractor is trying to avoid, by telling the Government customer that the GFP is at the end of its useful life.

H2H

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H2H - I could not agree more on the "framing". Vern is correct that Leo can just follow process (ref: FAR 8.7)as well in which case, however the matter is framed by the Government, the central non-profit agency will have the final say. You would expect the central non-profit agency to provide the assistance necessary to bridge the gap or provide an exception (Ref: FAR 8.706).

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We're talking about a prospective new contract. The government is not obligated to provide government property. If it does, it can provide it "as is." It is ridiculous to say that the government is violating some covenant of good faith and fair dealing by not providing GFP for a new contract.

The government does not need money to pay for the equipment the contractor needs. It needs money to pay a fair market price for the service. If Ability One cannot provide the service at the established fair market price it will have to grant an exception. The government has a problem if it cannot pay the fair market price.

FAR 8.712 is inapplicable to this situation.

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If Ability One cannot provide the service at the established fair market price it will have to grant an exception. The government has a problem if it cannot pay the fair market price.

This is key. The issue that hasn't been addressed is how a waiver benefits leo1102. He hasn't provided any information on the fair market value of the services, with or without the GFP. I believe AbilityOne has a pretty good track record of performing at the fair market price across the board.

In addition, leo1102's requirement is on the Procurement List. Once something is included there, it is very difficult to get it removed. This is from their website and explains the process of adding a new requirement.

Process from Start to Finish:

Contracting Officer identifies a requirement to offer to the AbilityOne Program, or is contacted by NIB or NISH about an existing requirement.

Contracting Officer communicates with NIB or NISH about the requirement and timeframes.

Contracting Officer provides Statement of Work (SOW) to NIB or NISH.

Contracting Officer receives a ?no-obligation? price proposal from NIB or NISH.

Contracting Officer negotiates the proposal; upon completion, signs a letter concurring to the price.

NIB or NISH send request and required documentation to Committee for Procurement List addition.

Committee initiates review and rulemaking process, including Federal Register publication (90-120 days). NIB or NISH provide updates to the Contracting Officer on the Procurement List addition status.

If the Committee approves addition to the Procurement List, a notice is issued to the Contracting Officer and NIB or NISH will contact to discuss performance start.

I mentioned earlier that the Committee consists of 15 Presidentially appointed members. They take their jobs very seriously and truly support the AbilityOne mission. It took a lot of time and effort by a number of very senior people to get a requirement included, including publication in the Fedearl Register. Someone would need a very compelling reason to now have a requirement removed from the List.

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I''m sure the Ability One committee takes its job seriously. That's beside the point. Leo should not try to get the requirement removed from the List. FAR provides a procedure that requires Ability One to make an exception under certain circumstances. It may be that those circumstances exist in his case, I don't know. It appears that the prospective Ability One contractor wants something from the government that it cannot provide, and so the parties cannot reach an agreement. Leo should study the prescribed procedures in FAR and in his agency supplement and go forward accordingly.

In my opinion, some of the responses here to leo's request for help have been outlandish. And some people don't seem to know as much as they should about contract pricing.

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This is key. The issue that hasn't been addressed is how a waiver benefits leo1102. He hasn't provided any information on the fair market value of the services, with or without the GFP. I believe AbilityOne has a pretty good track record of performing at the fair market price across the board.

In addition, leo1102's requirement is on the Procurement List. Once something is included there, it is very difficult to get it removed. This is from their website and explains the process of adding a new requirement.

...I mentioned earlier that the Committee consists of 15 Presidentially appointed members. They take their jobs very seriously and truly support the AbilityOne mission. It took a lot of time and effort by a number of very senior people to get a requirement included, including publication in the Fedearl Register. Someone would need a very compelling reason to now have a requirement removed from the List.

It appears that the requirement has changed from GF equipment and materials to Contractor furnished.

It appears that negotiations have occurred for the new contract or at least discussions concerning scope of who provides the equipment.

It appears that the contractor cannot afford to purchase the materials and equipment up front, to amortize over some period. The government agency apparently cannot afford to directly pay for or to reimburse the contractor up front, either and would require the contractor to spread the costs over the contract or some other means.

We don't know what communications have occurred between the parties or if the Committee has been made aware of the change in requirements/circumstances.

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Some folks posting to this thread are confusing the authorities of Ability One, NIB, NISH and the Committee as stated not only in the FAR for exceptions (and reallocations) but in reality each entities role overall for JWOD. All are different and have separate roles. I suggest a closer read of FAR 8.7 by some of the posters for the conclusions they are making as it is wrong as well as suggest all posters read the following including Leo.

http://www.abilityone.gov/abilityone/laws_...ing_memo19.html

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Ability One is the program. It is run by the Committee. NIB and NISH are players, as are the CNAs. Roles and responsibilities are set forth in the regulations -- FAR and 41 CFR. Exactly who does what is not pertinent to this discussion.

The questions in this thread wwre (1) Must the agency provide GFP to the contractor if it did so under the predecessor contact? and (2) What should the agency do if it cannot reach agreement on the GFP issue with the Ability One contractor? Those questions were answered.

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