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Hi all, thanks in advance for your consideration and sharing your thoughts.

I am negotiating an IDIQ in which performance is anticipated (based on the previous task orders under the previous IDIQ) at our (Contractor's) facility.  However, as part of the performance it is almost always necessary that we travel to a federal facility to provide some integration and testing.  The work itself is services (research) as we do not deliver the items we integrate (they remain ours), in case that matters.  There is no "place of performance" in the IDIQ, AND, historically, based on the last IDIQ no mention of place of performance in the Task Order either.

There are several FAR and NASA FAR Supplement clauses which prescribe use based on work being performed on federally-controlled or owned facilities (see below a few examples):

  • 52.223-5 Pollution Prevention and Right-to-Know Information
    • FAR 23.1005(a) says "provide for performance in whole or in part, on a federal facility"
  • 1852.223-70 Safety and Health Measures and Mishap Reporting
    • NFS 1823.7001(a) says "when work will be conducted completely or partially on federally-controlled facilities"

I have been looking everywhere to determine what partial performance is described as.  There are onerous requirements if the predominance of performance is at our own facility and we "visit" the federal facility for a small portion of the work.  

QUESTION 1:  Does anyone have some familiarity with how NASA or the Government, generally defines partial performance that I could refer to?  I can't find anything in the FAR or NFS and I've grappled with this for years with different answers from different government COs. 

One time I came across in NASA procedures a distinction between visiting for work and performance, but sadly, did not realize the gold I had found and did not make note of it.  

QUESTION 2:  Is it feasible that I request we address the definition of partial performance in the contract (H clause I assume)?


Thank you all in advance for any thoughts you have on this.

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I read the two clauses you referenced.  I didn't discern anything in either clause that would strike me as onerous for the integration and testing you described (but I admit, the original posting is all I have to work with).  Can you share what portions of the clauses are onerous?  That may allow for specific solutions to be proposed, rather than general recommendations.

Here's a general recommendation:  Draft a proposed H clause (SCR) saying that the place of performance is your contractor facility, and that, notwithstanding any other text in the contract, your visits to government facilities for periodic and routine integration and testing activities do not constitute performing work on federal or federally-controlled facilities.  If the NASA contracting officer agrees, you're free.  It's all negotiation, right?

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50 minutes ago, ji20874 said:

I read the two clauses you referenced.  I didn't discern anything in either clause that would strike me as onerous for the integration and testing you described (but I admit, the original posting is all I have to work with).  Can you share what portions of the clauses are onerous?  That may allow for specific solutions to be proposed, rather than general recommendations.

You're right, these particular ones aren't overly onerous, I should have used some of the others out there.  However, I work for a non-profit institution of higher education so I try to get out any added effort as we're just not set up for managing compliance centrally.  The less clauses the better!

 

And thank you ji20874 for validating the H clause idea.

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What type contract is contemplated i.e. firm fixed price,  fixed price level of effort, cost type, hourly rate, etc? Are the non-profit's personnel performing any service, advice etc in connection with integration and test activities? Is it contemplated that such non-profit personnel would be paid contract dollars to be there? Are they just "observing" at no cost to the government and their being there for integration and test activities are not required by the contract???? More details would be better in my view.

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1 hour ago, Neil Roberts said:

What type contract is contemplated i.e. firm fixed price,  fixed price level of effort, cost type, hourly rate, etc? Are the non-profit's personnel performing any service, advice etc in connection with integration and test activities? Is it contemplated that such non-profit personnel would be paid contract dollars to be there? Are they just "observing" at no cost to the government and their being there for integration and test activities are not required by the contract???? More details would be better in my view.

The Task Orders are Fixed Price; we are providing mission support services which would include oversight of the integration of our "payload" and therefore our performance at the government facility is limited and oversight/observation only.  Based on some of the Task Orders on the old IDIQ, the bulk of the work is preparing for the mission, preparing the payload and performing the activities to ensure the payload can fly, all which is NOT done at the government facility.  We (and our payload) is at the government facility pre-flight and post-flight.

Technically,  this effort at the government facility is required in order to complete the SOW, but again, it's more a degree of what constitutes partial performance versus travel.  We can go to meetings pertaining to our performance/scope at the government facility and not have to have "partial performance" clauses.  

 

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Based on your response, mtclymer, my view is that you are performing work at a government facility and therefore the clauses are applicable. If you want to avoid that, I suggest you propose deleting all such work from the task order, reduce the price of the proposal accordingly (unable to determine if you already received an award contract) and seek a task order term and condition that the government agrees that you shall perform no work at any government facility.  I am not familiar with what a "partial performance" contract term would do for you. To me, either you are performing some work there, or you are not. I don't see how you can perform oversight without performing work (verbal or non-verbal communication).   

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Many years ago Vern Edwards provided tips for contractors.  I have found this advice valuable throughout my career and they may be valuable to the OP so I provide them as follows:

"...Here are 14 tips for the Truly Clueless Would-Be Government Contractors who think that winning a government contract is the yellow brick road to riches:

1. If you are thinking of competing for a government contract, hire good professional help to negotiate and manage the contract, and listen to them.

2. Your technical and marketing employees are the ones who are going to get you into trouble on a government contract. Keep them on a leash.

3. Buy first-rate training for all of the people who will be involved with government contracts. If you will not invest in training you have no business doing business with the government.

4. Don’t compete for a government contract if you are not sure that you can do the job to the government’s satisfaction. Make sure that you know what it will take to satisfy the government before you submit a bid or proposal.

5. Don’t assume that the government’s representatives know what they’re talking about when they explain rules, specifications, and the contract clauses. In my experience, most of them don’t.

6. READ THE SOLICITATION. THE WHOLE THING.

7. If you win the contract, take a firm, formal, arm’s-length, businesslike approach to all aspects of the deal. Comply strictly with all contract terms and insist that the government do the same. Know all of your contractual deadlines and meet them. Know all of the government’s contractual deadlines and notify them in writing the moment that they are late. The very moment. Neither ask for nor grant exceptions except through formal processes, such as engineering change proposals, formal waivers, and change orders. Know your obligations and fulfill them. Know your rights and insist upon them. When you truly believe that the government owes you something, ask for it in writing. If you don't get favorable action within a reasonable period of time, submit a claim in accordance with the contract Disputes clause and FAR Subpart 31.2. If the contracting officer does not make a decision within the deadlines set by the Disputes clause, hire an attorney and appeal to a board of contract appeals or to the Court of Federal Claims, unless you are willing to let the government keep what you think is yours.

8. Never yield to threats from a contracting officer or a contracting officer's representative. If you do, things will only get worse. When you insist upon your rights and the contracting officer’s representative says: That cuts both ways, just say: Yes, and we can live with that.

9. Don’t rely on personal relationships with government personnel. Good personal relations are important and desirable; but, in the end, it’s a dog-eat-dog world. Never consider a government representative to be your “friend.” Remember that government personnel are not business persons. They are government officials with limited authority, limited knowledge, a heavy workload, and lots of people looking over their shoulders. They will not (and should not) stick their necks out for you(emphasis added). If they do they are either stupid or dishonest and cannot be trusted. Some will make an extra effort for you, which is okay, but many will not. Assume from day one that you are on your own.

10. Keep good records. Document every telephone call and meeting. EACH AND EVERY ONE. Write down who, what, when, where, why, and how, and make your people do it as well. Check to see that they do. File every email and letter. EACH AND EVERY ONE. He or she who does not document or who skimps on documentation is a fool.

11. Promptly follow up on oral understandings and agreements in writing. Send crucially important communications by certified mail, return receipt requested, including confirmation of emailed and oral understandings and agreements.

12. It's business, not personal. When speaking with and corresponding with government personnel, always be calm and polite, no matter how badly they have behaved or how angry about it you are, but always be determined and firm.

13. Remember the 999/1,000 rule: You can do things wrongly 999 times out of 1,000 and nothing bad will happen. It’s the 1,000th time that will do you in.

14. Make sure that you have the telephone number, email address, and street address of a good government contracts attorney and a good government contracts accountant. If you can't afford that kind of help, stay away from government contracts(emphasis added).

 

Now, I know that many readers will consider some of the above to be impractical. Business people are risk takers, and many will consider what I suggest to be too formal and stern. In their experience, business doesn’t work well when there is too much formality and insistence upon strict contractual compliance. So be it. I bow and yield to your superior wisdom. I have to admit that as a government contractor I have not always followed all of my own advice. So if you don't follow my advice and things go badly for you, the good Vern will not say I told you so, but the bad Vern will laugh."

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21 hours ago, mtclymer said:

QUESTION 1:  Does anyone have some familiarity with how NASA or the Government, generally defines partial performance that I could refer to?  I can't find anything in the FAR or NFS and I've grappled with this for years with different answers from different government COs. 

One time I came across in NASA procedures a distinction between visiting for work and performance, but sadly, did not realize the gold I had found and did not make note of it.  

QUESTION 2:  Is it feasible that I request we address the definition of partial performance in the contract (H clause I assume)?

 

Caveat: I do IT services, and my informal method may not work for different types of contracting - like supplies with incidental services like delivery or maintenance, services covered by SCLS, construction, etc. 

The informal method I use

  • If the contractor shall be physically present at a gvt-facility, at any time to do work (even briefly, like for meetings) , to be compliant with the contract, then the work is at least partially on-site.  For my contracts, this is very important since requiring any type of on-site will probably limit competition to the local area, or we will need to consider travel costs (ugh).
  • If the contractor being on-site at any time is recommended, or encouraged, or a good business practice, but not a matter of compliance - then I do not consider it on-site.
  • Edge cases I'm not sure about - If our solicitation or contract is silent on the matter, but

                              the contractor's proposal states they will be sometimes on-site.

                              the requirement cannot be met without the contractor being on-site at some point.

 

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20 minutes ago, General.Zhukov said:

Caveat: I do IT services, and my informal method may not work for different types of contracting - like supplies with incidental services like delivery or maintenance, services covered by SCLS, construction, etc. 

The informal method I use

  • If the contractor shall be physically present at a gvt-facility, at any time to do work (even briefly, like for meetings) , to be compliant with the contract, then the work is at least partially on-site.  For my contracts, this is very important since requiring any type of on-site will probably limit competition to the local area, or we will need to consider travel costs (ugh).   
  • If the contractor being on-site at any time is recommended, or encouraged, or a good business practice, but not a matter of compliance - then I do not consider it on-site.  In my work, admin & management stuff like on-site meetings are almost always this category.  
  • Edge cases I'm not sure about - If our solicitation or contract is silent on the matter, but

                              the contractor's proposal states they will be sometimes on-site.

                              the requirement cannot be met without the contractor being on-site at some point.

Edit: Based on what you've written, if I were the CO I'd say your performance is at least partially on-site and the clauses apply if that's the only criteria. 

My common sense and vague familiarity with dangerous stuff (I dabbled in CBRN and blowing stuff up in the Army)  is that whomever is responsible for the payload - presumably the thing with bad stuff in it that is the subject of the clauses - does the environmental & safety compliance work, not some  researchers.   

 

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