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Written Acquisition Plan for under $50M CPFF


USN1102

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FAR 16.301-3(2) requires a written acquisition plan has been approved and signed at least one level above the contracting officer for cost-reimbursement types of contracts.

DFARS 207.103(d)(i)(B) requires a written acquisition plan for those acquisitions for production or services when the total cost of all contracts for the acquisition program is estimated at $50 million or more for all years or $25 million or more for any fiscal year. 

Questions:

1. Is there some other policy that negates DFARS from the FAR Part 16 AP requirement? Since these are addressed in different parts of the FAR/DFARS it doesn’t seem to be a supplement unlike the FAR $4M public award announcement vs DFARS $7M public award announcement requirement.

2. Regardless of the dollar threshold, shouldn’t any/all Cost Type contracts require a written AP per the FAR vice DFARS?

3. And if that is the case, shouldn’t either the DFARS address the cost type FAR part 16 requirement? Currently they are silent on those aspects in their respective Part 16 sections.

Edited by USN1102
Grammar and Clarity
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Jacques,

According to DFARS 201.301(a)(1), the DFARS contains--

                    (i)  Requirements of law;

                    (ii)  DoD-wide policies;

                    (iii)  Delegations of FAR authorities;

                    (iv)  Deviations from FAR requirements; and

                    (v)  Policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors.

The different thresholds for written acquisition plans in the DFARS are a deviation from FAR requirements.

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On ‎10‎/‎25‎/‎2019 at 4:24 PM, Don Mansfield said:

According to DFARS 201.301(a)(1), the DFARS contains--

                    (i)  Requirements of law;

                    (ii)  DoD-wide policies;

                    (iii)  Delegations of FAR authorities;

                    (iv)  Deviations from FAR requirements; and

                    (v)  Policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors.

I still must be missing something.  All this says is that the DFARS can contain deviations from FAR requirements.  I don't think it was intended to invite folks, whenever there is a way to read an inconsistency into the two regulations, to do so.  I don't think DFARS 201.301(a)(1)(iv) calls on us to ignore normal rules on harmonizing and just declare any apparent inconsistency a conflict where the reader's interpretation of the DFARS governs.  When the DFARS was modified to add this language, I took it to mean that deviations would appear in the DFARS proper rather than the newly-created DFARS PGI.

To invite this "repeal by implication" interpretation of FAR 201.301 also seems inconsistent with practice.  In DFARS Case 2010-D018, 76 Fed. Reg. 71824 (Nov. 18, 2011), a couple commenters seem to complain the new rule deviated from the FAR.  Rather than just citing to DFARS 201.301(a)(1)(iv), the response stated, "DoD has complied with the requirements of FAR subparts 1.3 and 1.4 and DFARS subparts 201.3 and 201.4."  In fact, you can go back to DPAP's website and find Class Deviation 2010-O0003, Responsibility and Liability for Government Property, dated 12 Feb 2010.

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48 minutes ago, Don Mansfield said:

@Jacques,

You asked if I had a "specific express deviation in mind". What did you mean? Do you think the only class deviations are those that are in the form of a DPC memorandum?

I guess I'll stop dancing around.  There is no written deviation because there is no need for a deviation because the FAR doesn't require what you seem to assume it does.

In the interim rule for FAR Case 2008-030, FAR 16.301-2(b) read, “The contracting officer shall document the rationale for selecting the contract type in the written acquisition plan and ensure that the plan is approved and signed at least one level above the contracting officer (see 7.103(j) and 7.105).  If a written acquisition plan is not required, the contracting officer shall document the rationale in the contract file.  See also 16.103(d).”  76 Fed. Reg. 14543, 14547 (Mar. 16, 2011).  Note the context:  FAR 16.301-2(b) appears in FAR 16.3, which relates to cost-reimbursement contracts.  FAR 16.103(d)(1) provided, “Each contract file shall include documentation to show why the particular contract type was selected.  This shall be documented in the acquisition plan, or if a written acquisition plan is not required, in the contract file.”

The final version of the rule removed the highlighted language from FAR 16.301-2(b), not to represent a change, but because “the need to document the contract file with regard to selection of contract type is already adequately addressed in FAR 16.103(d)(1).”  77 Fed. Reg. 12925, 12926 (Mar. 2, 2012).  A response to a comment notes, “There are circumstances, such as low dollar thresholds or non-complex contracts, when a formal acquisition plan is not required.  However, if a written acquisition plan is not required, the contract type selection must still be documented in the contract file.”  77 Fed. Reg. at 12925.  The disjunctive "OR" suggests agency procedures could implement the requirement for an acquisition plan in such a way that even a "complex contract," if it was a low-dollar one, need not be supported by an acquisition plan.

The FAR does not require a written acquisition plan for every cost reimbursement contract.  The DFARS implementation is reasonable and consistent with the FAR.

 

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11 minutes ago, Jacques said:

There is no written deviation because there is no need for a deviation because the FAR doesn't require what you seem to assume it does.

I'm not assuming anything. FAR 7.103(e) states:

Quote

A written plan shall be prepared for cost reimbursement and other high-risk contracts other than firm-fixed-price contracts, although written plans may be required for firm-fixed-price contracts as appropriate.

 

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I'm sorry if I'm missing something with your question, "What do you mean, 'no deviation is required'?"  Sorry if the below isn't responsive to your question.

When FAR 7.103(e) is read in its full context, to include FAR Subpart 16.1 & 16.3, it does not require an acquisition plan be prepared for all cost-reimbursement contracts.  Therefore, when DFARS 207.103(d) & (e) says what it says, that language does not conflict with the language in FAR 7.103(e).  Therefore, the DFARS Council would not need to comply with FAR Subpart 1.4 and DFARS Subpart 201.4 to promulgate DFARS 207.103(d) & (e), and a contracting officer would not need to prepare a deviation to award, without an written acquisition plan, a cost-reimbursement contract supported by a determination signed one level above the contracting officer, merely because of the language you emphasize from FAR 7.103(e).

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@Jacques,

Let's try this. FAR 5.301(a) states:

Quote

Contracting officers shall make information available on awards over $4 million (unless another dollar amount is specified in agency acquisition regulations) in sufficient time for the agency concerned to announce it by 5 p.m. Washington, DC, time on the day of award.

DFARS 205.303(a)(i) states:

Quote

The threshold for DoD awards is $7 million. Report all contractual actions, including modifications, that have a face value, excluding unexercised options, of more than $7 million.

Is DFARS 205.303(a)(i) a deviation from a FAR requirement? Yes or no?

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@Jacques,

I need to understand what you think a deviation is. Based on your last response, I don't think we have a common understanding. It's a simple question. The subject of the rule I'm using as an example is irrelevant. The FAR says the threshold is $4 million, the DFARS says it's $7 million for DoD. Is the DFARS rule a deviation from a FAR requirement?

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Semantics aside, if I understand correctly:

1. As FAR 16.301-3(a)(2) is just repeating the requirement stated at FAR 7.103(e). DoD deviates from the FAR requirements for written APs as seen in  DFARS 207.103(d)(i)(B).  Therefore no written AP is required. 

2. However, per Class Deviation 2019-O0001, the procurement in question being CPFF between $25M and $50M, my HCA approval is required prior to award.

3. On a broader policy perspective, using the FAR 5.301/DFARS 205.303 public award announement example, there is a clearly traceable Part 5 "deviation" from $4M to $7M. The same approach can be used for my intial written AP query: DFARS 207 deviates from FAR 7.03 therefore, as a DoD 1102, I follow that written AP DFARS policy even though DFARS Part 216 is silent on deviating FAR 16.301-3(2) by the virtue that Part 7/207 "Acquisiton Planning" is more germane for all things written AP.

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20 minutes ago, USN1102 said:

Semantics aside, if I understand correctly:

1. As FAR 16.301-3(a)(2) is just repeating the requirement stated at FAR 7.103(e). DoD deviates from the FAR requirements for written APs as seen in  DFARS 207.103(d)(i)(B).  Therefore no written AP is required. 

2. However, per Class Deviation 2019-O0001, the procurement in question being CPFF between $25M and $50M, my HCA approval is required prior to award.

3. On a broader policy perspective, using the FAR 5.301/DFARS 205.303 public award announement example, there is a clearly traceable Part 5 "deviation" from $4M to $7M. The same approach can be used for my intial written AP query: DFARS 207 deviates from FAR 7.03 therefore, as a DoD 1102, I follow that written AP DFARS policy even though DFARS Part 216 is silent on deviating FAR 16.301-3(2) by the virtue that Part 7/207 "Acquisiton Planning" is more germane for all things written AP.

1. Correct.

2. Not sure. Can't access deviation.

3. Correct. 

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On ‎10‎/‎28‎/‎2019 at 11:40 AM, Don Mansfield said:

@Jacques,

I need to understand what you think a deviation is. Based on your last response, I don't think we have a common understanding. It's a simple question. The subject of the rule I'm using as an example is irrelevant. The FAR says the threshold is $4 million, the DFARS says it's $7 million for DoD. Is the DFARS rule a deviation from a FAR requirement?

FAR 5.303(a), while providing a default threshold of $4 million, specifically acknowledges an agency can specify “another dollar amount” in its agency acquisition regulations.  DFARS 205.303 takes advantage of this flexibility, listing a $7 million threshold.  Because of the language in the FAR, the DFARS Council did not need to do anything special to use a value different from the default value.

FAR 1.304(b)(2) provides, “Agency acquisition regulations shall not…except as required by law or provided in subpart 1.4, conflict or be inconsistent with FAR content.”  Here, when the DFARS Council promulgated DFARS 205.303(a), it did not need a statute or an approved deviation request, because the $7 million threshold is not inconsistent with FAR 5.303(a), because the FAR itself notes that the $4 million threshold is merely a default in the absence of the agency regulations saying something different.

Likewise, because the value at FAR 5.303(a) is a default, a DoD contracting officer would not need an approved deviation request from FAR 5.303(a) to forego announcing a contract award valued over $4 million but under $7 million.

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@Jacques,

Bad example. My apologies. Let's try this one instead.

FAR 32.501-1(a):

Quote

The customary progress payment rate is 80 percent, applicable to the total costs of performing the contract. The customary rate for contracts with small business concerns is 85 percent.

DFARS 232.501-1(a):

Quote

The customary progress payment rates for DoD contracts, including contracts that contain foreign military sales (FMS) requirements, are 80 percent for large business concerns and 90 percent for small business concerns.

Is the DFARS deviating from the FAR? Yes or no?

DFARS 201.304(a)(1)(iv) states that the DFARS contains "deviations from FAR requirements"? You wrote:

Quote

When the DFARS was modified to add this language, I took it to mean that deviations would appear in the DFARS proper rather than the newly-created DFARS PGI.

What did you mean by that? What would be an example of a deviation in the "DFARS proper"?

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1 hour ago, Jacques said:

Do you really want to use this example?  "Customary"?  Where FAR 32.501-1(b)(2) permits "advance agency approval" to use a higher rate?  I just want to make sure this is the example you want to use before I start researching.

No, you can skip the example. I think I'll be able to understand your concept of "deviation" if you just answer my last two questions. 

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Don,

Here was the point I was trying to make:

We should be suspicious of any interpretation of the DFARS that ASSUMES the DFARS language is a deviation from a requirement in the FAR.  These sorts of interpretations resemble those "revocation by implication" interpretations that are disfavored when interpreting a statute.  Rather, the normal rules on interpretation should be used, which includes harmonizing the language of the two regulations when they can be.

FAR 1.304(b)(2) provides, “Agency acquisition regulations shall not…except as required by law or provided in subpart 1.4, conflict or be inconsistent with FAR content.”  This seems to me as close as you can get to prescribing by rule the presumption against revocation by implication.

Here is where that good advice gets undermined by a lazy DFARS Council and where I am forced to eat crow:

DFARS 215.371-3(b)(2)(ii), in the context of "only one offer," states, "The negotiated price should not exceed the offered price."   Someone submitted a comment to DFARS Case 2011-D013 that was reported in the final rule at 77 Fed. Reg. 39126 (June 29, 2012) asking whether a deviation had been processed, as, in the opinion of that commenter, the DFARS was inconsistent with FAR 15.306(d).

Much to my chagrin, the response reads as follows:

Quote

FAR 1.304 provides that agency regulations may be inconsistent with the FAR as provided in FAR subpart 1.4, Deviations from the FAR.  FAR 1.404(b) provides that for DoD, class deviations are controlled, processed, and approved in accordance with the DFARS.  DPAP is the approval authority for class deviations or changes to the DFARS that constitute a permanent deviation from the FAR.  Incorporation of a policy or procedures in the DFARS is sufficient to establish that a policy or procedure different from the FAR is applicable to DoD.  DoD only processes a deviation from the FAR as a separate document when there is insufficient time to incorporate the changes in the DFARS or the incorporation in the DFARS is inappropriate for some other reason.

77 Fed. Reg. at 39131.  This is an unfortunate policy, as it seems to invite "revocation by implementation" interpretations despite the plain language of FAR 1.304(b)(2).  Hopefully readers of this post don't throw the baby out with the bath water and decide they can ignore the FAR when it is possible to comply with both the FAR and the DFARS.

As you might expect, the above quote from the Federal Register takes the wind out of my sails, so I really don't care about my earlier interpretation of DFARS 201.301(a)(1)(iv).

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@Jacques,

Thanks for your explanation. 

1 hour ago, Jacques said:

We should be suspicious of any interpretation of the DFARS that ASSUMES the DFARS language is a deviation from a requirement in the FAR.  These sorts of interpretations resemble those "revocation by implication" interpretations that are disfavored when interpreting a statute.  Rather, the normal rules on interpretation should be used, which includes harmonizing the language of the two regulations when they can be.

I agree with this, but I think that you also need to keep in mind that when the DFARS conflicts with the FAR, it's usually by design. I'm not sure you can typically make that assumption when harmonizing conflicting statutes or regulations.

Good discussion. Thank you.

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