Jump to content
The Wifcon Forums and Blogs

JandA100811

Increase of Ceiling on CPFF Task Order

Recommended Posts

As you continue to gather and review the relevant facts, keep this in mind:

"An order in excess of the maximum quantity stated in the contract would be outside the scope of the contract. Such an order would result in a contract materially different from that for which the original competition was held and, absent a valid sole-source determination, would be subject to CICA requirements for competition." See Liebert Corp., B-232234.5, Apr. 29, 1991, 91-1 CPD.

Share this post


Link to post
Share on other sites

An increase in the level of effort of a level-of-effort term contract or order is a change in the scope of the contract/competitoin. That is because when you increase the level of effort you are buying more services, which is a new procurement. See Government Contract Changes 3d by Nash and Feldman, Sec. 4.8:

n [b-191078, 78-1 CPD para. 377, May 17, 1978], the GAO distinguished permissible contract modifications extending the time of performance to permit completion of the work originally called for and impermissible contract changes adding time to enable the contractor to perform added work. The GAO viewed the latter type of time extension—buying more time as a means of buying more services—as being clearly outside the scope of the Changes clause. This same reasoning would preclude the use of the Changes clause to extend the time of performance of term-type contracts, which specify that the contractor will provide a specific number of hours of work in a specific period of time.

See also the discussion of CPFF completion and term form contracts in Allison Div., General Motors Corp., ASBCA No. 15528, 1972 WL 233768, in which the board said that an increase in the level of effort of a CPFF LOE Term contract entitled the contractor to additional fee because the increase in the level of effort was a "new procurement." See also Program Resources, Inc., ASBCA No. 21656, 78-1 BCA para. 12867, Nov. 8, 1077:

In Allison Division, General Motors Corp., ASBCA No. 15528, 72–1 BCA ¶9343, the contract was a term form, cost-plus-fixed-fee contract similar to the one here considered. The level of effort was stated as ‘approximately’ 173,200 engineering hours. A contract modification added 31,864 hours to the required effort. The Board held that this was an increase in the scope of the work which entitled the contractor to an increase in the fee.

In light of your posts here I have no confidence that you have your facts right and know what you're talking about and that my answers are valid in your case, and I hesitated before making this post. You really need to talk to a competent person in your own organization about this.

Share this post


Link to post
Share on other sites

You said "I guess I was not thinking about scope in terms of hours but in terms of the additional work being requested due to the unknowns that remains in scope of the PWS."

Notwithstanding your choice of terms, which is confusing, a basic question is "are you increasing the actual 'scope of work' that is described in the contract?"

I can see a possible scenario where the government described the scope of work that was/is(?) described in the "PWS" in the RFP, the contractor may have proposed a certain level of effort that it said it would provide to perform that scope of work and then the government included that level of effort into the contract as a requirement to assure that the contractor would actually provide it. Is your scenario similar to this?

Then a question would be was the final intent of the contract to perform a level of effort in order to tackle (pursue completion of ) the necessary work or is it to complete the work that is decribed in the contract?

I agree with Vern that you talk to a competent person in your own organization about this. I don't think that you described the actual scenario well enough for anyone to provide a definitive answer.

Share this post


Link to post
Share on other sites

The very first words posted in response to the original question were: “This is an easy one.” That was an unwise response.

In Post # 17 JandA100811 said that the “ceiling” was a level of effort. Now look back at his original post. He said: “My customer is requesting an increase of ceiling of work within the PWS.”

In Post #21 he said: “Yes, the contract is a CPFF level of effort terms [sic] as described in FAR 16.306(d)(2).”

I was asleep at the switch, because I should have noticed and pointed out that you should not have a performance work statement (PWS), as defined in FAR 2.101, in a level of effort term contract, fixed-price or cost-reimbursement. A PWS specifies results in measurable terms. But the level of effort is supposed to be in the contract because you cannot specify the result that you want.

Confusion about contract types is widespread throughout the workforce. It’s gotten to the point where you cannot be certain what a person is talking about when they talk about a contract type.

Share this post


Link to post
Share on other sites

This begs another question why should we not have a PWS in a level of effort term contract? I realize the definition of a PWS in FAR 2.101, however, this by all accounts is a Performance Based Acquisition under FAR 37.6. Furthermore FAR 37.602 ( B) describes what shall be included in the PWS to the maximum extent practicable, all of which I would think could be described in a Level of Effort PWS. For example we can ask in our solicitation for the contractor to propose a QASP which describes how their performance should be measured against the requirements of the PWS using metrics such as performance, schedule, cost control etc., and set measurable performance standards that way.

Share this post


Link to post
Share on other sites

Think about it. Here is the description of a CPFF LOE Term contact from FAR 16.306(d)(2):

The term form describes the scope of work in general terms and obligates the contractor to devote a specified level of effort for a stated time period.

I know you read that because you cited it earlier. And here is what FAR 37.602 says about performance work statements:

(B) Agencies shall, to the maximum extent practicable—(1) Describe the work in terms of the required results rather than either “how” the work is to be accomplished or the number of hours to be provided (see 11.002(a)(2) and 11.101; (2) Enable assessment of work performance against measurable performance standards; (3) Rely on the use of measurable performance standards and financial incentives in a competitive environment to encourage competitors to develop and institute innovative and cost-effective methods of performing the work.

If you can write that kind of work statement why on earth would you need a level of effort?

Share this post


Link to post
Share on other sites

Because the required results is a level of effort, nothing is being delivered at the end of the period of performance, we are buying a level of effort (hours) ie. support services like FAR 16.306(d)(2) states.

Share this post


Link to post
Share on other sites

I don't understand. A PWS must not specify a number of hours to be delivered. A number of hours cannot serve as a performance-based result.

Share this post


Link to post
Share on other sites

I am confused as well, I am interested as to where you are coming to the conclusion a performance based acquisition cannot consist of a number of hours.

37.601 General.

( B ) Performance-based contracts for services shall include—

(1) A performance work statement (PWS);

(2) Measurable performance standards (i.e., in terms of quality, timeliness, quantity, etc.) and the method of assessing contractor performance against performance standards; and

(3) Performance incentives where appropriate. When used, the performance incentives shall correspond to the performance standards set forth in the contract (see 16.402-2)

As long as all of the above is included in our performance based contract and our PWS meets the definition in 37.602 that you outline in post #32, then what is the issue?

Share this post


Link to post
Share on other sites
37.602(B) Agencies shall, to the maximum extent practicable—(1) Describe the work in terms of the required results rather than... the number of hours to be provided... .
16.306(d)(4) (4) The term form shall not be used unless the contractor is obligated by the contract to provide a specific level of effort within a definite time period.

If you don't get it by now, then I know of nothing more to say to you, and I wish you well in your work,

Share this post


Link to post
Share on other sites

That does say to the maximum extent practicable right? I did not realize that means you shall not have a PWS in a level of effort scenario. I think some CO discretion can be used here as well.

Share this post


Link to post
Share on other sites

When FAR says to the "maximum extent practicable" it means that you shall specify a measurable result when you can, without specifying hours. When you cannot specify a result you may specify a level of effort, in which case you do not have a performance-based contract or task.

Performance-based and level-of-effort don't work together. Performance-based contracts specify output. Level of effort contracts specify input. If you mix the two, and if the contractor cannot achieve the result within the level of effort, then you have given the contractor a basis for demanding payment of the full fee and demanding more fee for continued performance in order to achieve the result, even if it has not incurred the estimated cost. And are you going to require them to deliver the specified level of effort even if they could complete the work with less? Who but a dummy would do those things?

A knowledgable professional does not mix performance-based with level-of-effort in the specification of a given task.

Share this post


Link to post
Share on other sites

A performance specification specifies a desired end result, without unnecessarily specifiying the means, methods or materials to achieve those results. Performance specifications also normally include means to verify or for the contractor to substantiate that the specified level of performance has been achieved. The CSI (Construction Specifications Institute) and other organizations provide like definitions of performanceformance specifying.

A level of effort specification "prescribes" the means and/or methods to be used to achieve or attempt to achieve some result. Thus, they are a form of prescriptive specifying.

I agree with Vern.

Share this post


Link to post
Share on other sites

JandA100811,

Do you understand that some statements of work are performance-based and some are not? Those that are performance-based are called "performance work statements." I'm asking because I suspect you may be thinking that all statements of work are "performance work statements."

Share this post


Link to post
Share on other sites

As always, well said Vern.

I've got the same problem CPFF though the requirement, maintenance and repair of real property does not fit into either the term or completion model (i.e. wrong contract type) and, of course, no mention of the LOE was included in the award document, etc., and now they want to increase the total estimated cost by 200% to accomplish additional work that they say is "within the scope" as they define the term. As a contractor, I'm looking for solutions but doesn't seem likely without being extremely creative.

Anywho, do you have any more recent cites, shepardized, etc. that I can review? I don't have access to Westlaw.

I can pay you, as consideration, by your acceptance of two (2) kittens I am fostering that will enrich your life beyond merely sentimental value if you could simply click on the Westlaw shepardize button and provide your analysis.

Also, I still maintain that the acquisition of a wife is no different than procuring services as your own Source Selection Authority and a BPA, clearly is not a contract, but I guess I'll be banned again for mentioning kittens, wife and George Washington as limited minds think these these things are not related to contracting or not appropriate items for discussion in this forum.

Tnx.

Share this post


Link to post
Share on other sites

I'm not sure what kind of cases you want. Cases about what?

You say the government wants to increase the total estimated cost. Do they want to add tasks or extend the performance period? I would not expect a contractor to object to that unless the government is unwilling pay additional fee. Is that the problem?

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×