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TO POP Extension, executed after base expires


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51 minutes ago, ji20874 said:

If you disagree with me, Don, please explain why -- I might learn something.  And I'm still wondering from an earlier question you haven't answered:  Do I err by not including the bankruptcy clause in fair opportunity notices over the SAT?

Let me get this straight. You make the following claim:

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A fair opportunity notice is not a solicitation within the construct of the FAR

Wondering how you reached that conclusion, I ask a simple question:

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Is a fair opportunity notice a request to submit offers or quotations to the Government?

You dodge the question multiple times, then wonder why I haven't responded to you?

Is this you being intellectually honest? By "meaningful and professional dialogue", do you mean we can make whatever claims we want without having to bear the burden of proof? And this is the direction we should move in?

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1 hour ago, Ibn Battuta said:

Question: "Is a fair opportunity notice a request to submit offers or quotations to the Government? YES or NO[?]"

Answer: No, not if we take the word "request" literally. Here is FAR 16.505(b)(1)(iii)(B):

Thus, the notice informs contractors that they may submit offers. Based on the plain language of the FAR, a notice does not request anything. Now look at the definition of solicitation in FAR 2.101:

According to my dictionary, The American Heritage 5th, a request (noun) is "an act of asking for something." See FAR 1.108(a). I don't see any language in FAR 16.505(b)(1) that tells COs to ask for anything; it tells them only to announce the chance to offer something.

So, based on plain English, my answer to the question is no, a FAR 16.505(b) notice is not a request to submit offers or quotes. It is an announcement that offers or quotes may be submitted. It is not a solicitation.

Thank you for doing what @ji20874 was incapable of doing.

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1 hour ago, Ibn Battuta said:

Question: "Is a fair opportunity notice a request to submit offers or quotations to the Government? YES or NO[?]"

Answer: No, not if we take the word "request" literally. Here is FAR 16.505(b)(1)(iii)(B):

Thus, the notice informs contractors that they may submit offers. Based on the plain language of the FAR, a notice does not request anything. Now look at the definition of solicitation in FAR 2.101:

According to my dictionary, The American Heritage 5th, a request (noun) is "an act of asking for something." See FAR 1.108(a). I don't see any language in FAR 16.505(b)(1) that tells COs to ask for anything; it tells them only to announce the chance to offer something.

So, based on plain English, my answer to the question is no, a FAR 16.505(b) notice is not a request to submit offers or quotes. It is an announcement that offers or quotes may be submitted. It is not a solicitation.

Ibn Battuta - I think you have a great answer here. I like your thought process.

Don - I really respect you and your knowledge, and often look to you for guidance on these forums. But I can't shake the feeling that your comments can sometimes have the flavor of smugness rather than charity. Whether ji20874 responded to you as you desired or not, his posts felt earnest in trying to provide info to solve the problem, rather than being tight-lipped and inquisitory for effect. Just my two cents. I appreciate you both nonetheless.

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23 minutes ago, aordway said:

Don - I really respect you and your knowledge, and often look to you for guidance on these forums. But I can't shake the feeling that your comments can sometimes have the flavor of smugness rather than charity. Whether ji20874 responded to you as you desired or not, his posts felt earnest in trying to provide info to solve the problem, rather than being tight-lipped and inquisitory for effect. Just my two cents. I appreciate you both nonetheless.

Thanks for the feedback, @aordway

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2 hours ago, Don Mansfield said:

Wondering how you reached that conclusion...

Just in case this is true, I'll try again... 

FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement.  I believe this is purposeful.

And because of this, as an example in my own practice, I do not insert the Bankruptcy clause in fair opportunity notices over the SAT, notwithstanding the clear text to include the clause in all solicitations over the SAT.  I'm still wondering, Don -- do you really think I err in this?  If so, please tell me why.

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The FAR at 16.505 (b) concerns ordering procedures for MATOCs. Ordering procedures are not “solicitations”, per se.

See 16.505 (b)(iii)(B):

”(B) The contracting officer shall—

(1) Provide a fair notice of the intent to make a purchase, including a clear description of the supplies to be delivered or the services to be performed and the basis upon which the selection will be made to all contractors offering the required supplies or services under the multiple-award contract; and

(2) Afford all contractors [RESPONDING] to [THE NOTICE] a fair opportunity to [SUBMIT AN OFFER] and have that offer fairly considered.“

The only mention of ”solicitation” in 16.505 is at (b)(2)(B), with regard to establishing and including ordering procedures in the solicitation for the ID/IQ CONTRACT: 

”D) Include the procedures in the solicitation and the contract; and...”

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2 hours ago, ji20874 said:

I do not insert the Bankruptcy clause in fair opportunity notices over the SAT

@ji20874 Apologies for continuing the thread but this is interesting to me because we get back other discussion threads in the Forum specifically with regard to FAR 52.216-18.   52.242-13 in a TO/DO actually depends on more than the prescription.

Attempting to not to go back into other positions offered regarding notice versus solicitation using the clause to substantiate a notice is not a solicitation seems off base.  After all definition of the FAR that has stood its ground in case law is that a task/delivery order is a contract therefore a TO/DO over the SAT shall include 52.242-13, right?  

52.242-13 is in the IDIQ parent no worries pursuant to 52-216-18(b) which is hopefully in the parent.   Neither clause in the parent, maybe because folks did not think a TO/DO would be over the SAT, and they don't like the FAR Ordering clause, yet a TO/DO comes along that is over the SAT, the clause needs to be in that specific TO/DO, right?   Pursuant to 52.216-18 it can be added or if -18 is not in the parent it still can be added, right?   And if so then it seems not having 52.242-13 in the notice would be inconsistent with the direction of the FAR to give a fair opportunist the ability to decide if they want to provide a response to the notice accepting that 52.242-13 will be in the TO/DO. 

 

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Carl,

- If an IDIQ contract’s maximum amount exceeds the SAT, that contract will include the Bankruptcy clause and that clause will be applicable to all orders against that contract.

- If an IDIQ contract’s maximum amount is under the SAT, the Bankruptcy clause is not prescribed. By definition, all orders will be under the SAT and an order over the SAT is impossible.

In my practice, a delivery or task order over the SAT will not include the Bankruptcy clause. That clause is already in the parent contract and need not be repeated in either the fair opportunity notice or the resulting order.  It is not necessary and is poor practice IMHO to repeat every clause from the parent contract in the notice and the order.

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4 hours ago, Ibn Battuta said:

Emphasis added. 

Might be confusing to some.

Not confusing at all. The clause is already (supposed to be ) in the contract.  In the event of a conflict between a task order and the contract, the contract requirement prevails.  Quit trying to over complicate this. Common sense. 

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13 minutes ago, Ibn Battuta said:

@joel hoffman I think you have come late to the party and missed the notice vs solicitation kerfluffle.

I didn’t miss any of it. Task ordering procedures are not contract solicitations

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23 hours ago, Ibn Battuta said:

According to my dictionary, The American Heritage 5th, a request (noun) is "an act of asking for something." See FAR 1.108(a). I don't see any language in FAR 16.505(b)(1) that tells COs to ask for anything; it tells them only to announce the chance to offer something.

Isn't this the same as publication in SAM?  Put another way, isn't publication in SAM an announcement of the opportunity to offer something?

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16 hours ago, Ibn Battuta said:

A CO might invoke the Christian Doctrine to read a clause into an IDIQ contract or a TO/DO in accordance with government contracting case law, but it cannot be done pursuant to any FAR clause of which I am aware.

To clarify, if a clause can be read into a contract in accordance with the Christian Doctrine, can a CO physically add that clause to a contract without contractor agreement?

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11 hours ago, ji20874 said:

If an IDIQ contract’s maximum amount exceeds the SAT, that contract will include the Bankruptcy clause and that clause will be applicable to all orders against that contract.

This brings up an interesting point.  Many clauses have limitations on their applicability such as dollar amount, contractor size status and place of performance.  If a clause with such limitations is included in an indefinite delivery contract, will that clause apply to all orders issued under the contract or only those orders where the limitations placed on the use of that clause do not apply?  For example, if a contract includes the SCA clauses but an order is issued to a foreign firm for performance outside the US. would the SCA clauses apply to that order?

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18 hours ago, Ibn Battuta said:

No! Nothing in FAR 52.216-18 gives a CO the power to add a clause to a TO/DO that is not in the base contract.

I assume  this comment is intended for me.  Let me clarify that my post is based on this....."It seems to me that para. (b) of the contract clause at FAR 52.216-18, Ordering, clearly allows for orders with terms and conditions in addition to those in the parent contract." As quoted by ji20874 found here so be shocked beyond me please!

 

18 hours ago, Ibn Battuta said:

Yet a conspiracy comprised of FASA, widespread multiple-award contracting, and modern contracting "innovative" practice have corrupted (yes, corrupted) the IDIQ concept to the point at which it is no longer recognizable and no longer understood by most contracting people. Much the same has happened with the concept of the blanket purchase agreement.

I agree completely.  In this thread I am reminded about my brother who's health issues cause him to take excemption to doctors who have a "practice".   He opines for that they "practice" on him all the time rather than finding something to actually fix him! 

14 hours ago, ji20874 said:

If an IDIQ contract’s maximum amount is under the SAT, the Bankruptcy clause is not prescribed. By definition, all orders will be under the SAT and an order over the SAT is impossible.

That is not what I posted.  I purposely posted this "maybe because folks did not think a TO/DO would be over the SAT" with no mention of the "maximum amount" of the IDIQ.   The use of 52.216-18 is discretionary and if I have an IDIQ whose minimum order guarantee is say $10,000 and I anticipate that no single TO/DO will not be over $250,000 I could reason that there is no need to put the 52.242-13 clause in the parent contract.   I dang will better put it in a TO/DO if my anticipation was wrong and I have one for $250,001, based on the prescription.  

14 hours ago, ji20874 said:

That clause is already in the parent contract and need not be repeated in either the fair opportunity notice or the resulting order.

I accept the clarification but honestly you should have clarified that a long time ago.

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7 hours ago, Ibn Battuta said:

Thus, FAR dollar thresholds are applied on the basis of an IDIQ contract's maximum value.

How do you get to this conclusion in regard to a multiple award IDIQ contract?  In some instances, an agency issues hundreds of contracts in response to a single solicitation.  It is logically inconsistent to say that the anticipated value of each of those hundreds of contracts is the total value of all orders that may be issued against all contracts, particularly since each contract has a minimum order quantity that needs to be subtracted from the total amount that can be ordered.  This is complicated even more by the fair opportunity requirement that we have been discussing here because you cannot say that the government can anticipate issuing orders to any one contractor that exceed the minimum order quantity.  Finally, I have an issue with the use of the word "anticipated."  Anticipated by whom?  Because the government is only obligated to order the minimum stated in the contract, that is all the contractor can anticipate receiving.

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38 minutes ago, Retreadfed said:

How do you get to this conclusion in regard to a multiple award IDIQ contract?  In some instances, an agency issues hundreds of contracts in response to a single solicitation.  It is logically inconsistent to say that the anticipated value of each of those hundreds of contracts is the total value of all orders that may be issued against all contracts, particularly since each contract has a minimum order quantity that needs to be subtracted from the total amount that can be ordered.  This is complicated even more by the fair opportunity requirement that we have been discussing here because you cannot say that the government can anticipate issuing orders to any one contractor that exceed the minimum order quantity.  Finally, I have an issue with the use of the word "anticipated."  Anticipated by whom?  Because the government is only obligated to order the minimum stated in the contract, that is all the contractor can anticipate receiving.

FYI, it's the DCAA's position on calculating the value of an ID/IQ contract for purposes of determining CAS applicability. I don't like it and many others have suggested that CAS be applied on a TO/DO basis rather than on the maximum ceiling value of the parent contract (similar to how TINA and LOC/LOF requirements are implemented) … but here we are. DCAA uses the max ceiling value, regardless of our view of the logic of it.

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11 minutes ago, Ibn Battuta said:

What else can they do given FAR 1.108(c)?

Well, back in the 14th century (as you know from your world travels), CAS was not part of the FAR. If I recall correctly it was in Title 4 of the Code of Federal Regulations not Title 48. My memory is hazy regarding exactly when, but at some point it was decided to move CAS out of Title 4 and into Title 48, creating a "FAR Appendix" in the process called Title 48, Chapter 99. A consequence of that decision -- perhaps unintended but who knows? -- was the application of FAR conventions to CAS issues. In the former arrangement, I would consider it a stretch to apply a convention of Title 48 to Title 4 issues; but apparently that's what is done in these modern times.

From a purist's point of view, the determination of "contract value" for CAS purposes would be a matter for the CAS Board, charged by statute with interpreting CAS rules and Standards, and not for the FAR Council. I realize that position is contradicted by facts and reality, but I can't help wishing the CAS Board were more proactive and would issue interpretations (as it once did) rather than let the FAR Council and DCAA take the lead.

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18 minutes ago, here_2_help said:

Well, back in the 14th century (as you know from your world travels), CAS was not part of the FAR. If I recall correctly it was in Title 4 of the Code of Federal Regulations not Title 48. My memory is hazy regarding exactly when, but at some point it was decided to move CAS out of Title 4 and into Title 48, creating a "FAR Appendix" in the process called Title 48, Chapter 99. A consequence of that decision -- perhaps unintended but who knows? -- was the application of FAR conventions to CAS issues. In the former arrangement, I would consider it a stretch to apply a convention of Title 48 to Title 4 issues; but apparently that's what is done in these modern times.

From a purist's point of view, the determination of "contract value" for CAS purposes would be a matter for the CAS Board, charged by statute with interpreting CAS rules and Standards, and not for the FAR Council. I realize that position is contradicted by facts and reality, but I can't help wishing the CAS Board were more proactive and would issue interpretations (as it once did) rather than let the FAR Council and DCAA take the lead.

It is when reading posts like this when I wish the WIFCON had "Like" buttons.

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25 minutes ago, here_2_help said:

From a purist's point of view, the determination of "contract value" for CAS purposes would be a matter for the CAS Board, charged by statute with interpreting CAS rules and Standards, and not for the FAR Council.

I agree totally.   However, I do not think you have to be a purist to believe this.  It is simply a matter of statutory authority.  By law, the CASB has sole authority to make and interpret the CAS.  This authority is not subordinate to the FAR Council's authority to issue procurement regulations.  We got a hint of this difference some time ago when the ASBCA ruled on the authority of the DoD CAS Working Group to  issue interpretations of the CAS stating that such interpretations were not binding.  Further, in that case, the interpretation at issue was wrong.

As for the more general interpretation of FAR 1.108(c), we can all come up with our version of what the text means.  However, I learned long ago that statutes, regulations and contracts mean what the courts say they mean.  Thus, until there is some precedential interpretation of 1.108(c), we can all voice our opinions realizing they are just that.

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1 hour ago, here_2_help said:

FYI, it's the DCAA's position on calculating the value of an ID/IQ contract for purposes of determining CAS applicability. I don't like it and many others have suggested that CAS be applied on a TO/DO basis rather than on the maximum ceiling value of the parent contract (similar to how TINA and LOC/LOF requirements are implemented) … but here we are. DCAA uses the max ceiling value, regardless of our view of the logic of it.

I think that an argument can be made that the CAS clause in the parent IDIQ contract should only apply to orders that would otherwise be CAS-covered. By operation of FAR 52.216-18, the terms and conditions of the IDIQ apply to orders issued under the IDIQ. If a contractor receives an order under a parent IDIQ contract that contains FAR 52.230-2, then that clause applies to the order. However, the requirements of the clause are premised on whether or not the contract is exempt. The clause begins with:

Quote

Unless the contract is exempt under 48 CFR 9903.201-1 and 9903.201-2...

We know from the Kingdomware decision that a task or delivery is a "contract" as defined at FAR 2.101. Thus we can reasonably interpret the above use of "contract" to mean the task or delivery order.  

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14 minutes ago, Retreadfed said:

I agree totally.   However, I do not think you have to be a purist to believe this.  It is simply a matter of statutory authority.  By law, the CASB has sole authority to make and interpret the CAS.  This authority is not subordinate to the FAR Council's authority to issue procurement regulations.  We got a hint of this difference some time ago when the ASBCA ruled on the authority of the DoD CAS Working Group to  issue interpretations of the CAS stating that such interpretations were not binding.  Further, in that case, the interpretation at issue was wrong.

As for the more general interpretation of FAR 1.108(c), we can all come up with our version of what the text means.  However, I learned long ago that statutes, regulations and contracts mean what the courts say they mean.  Thus, until there is some precedential interpretation of 1.108(c), we can all voice our opinions realizing they are just that.

Was it Raytheon or Boeing that challenged the FAR Council's authority to interpret CAS, and subsequently had the Judge tell them that since the CAS Board didn't object that meant the CAS Board agreed with the FAR Council's interpretation and was just fine with it? My memory is (once again) hazy but I know that happened in the past couple of years. I suppose I could research it but I'm sure anybody who cares enough can go find the case.

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2 minutes ago, Don Mansfield said:

I think that an argument can be made that the CAS clause in the parent IDIQ contract should only apply to orders that would otherwise be CAS-covered. By operation of FAR 52.216-18, the terms and conditions of the IDIQ apply to orders issued under the IDIQ. If a contractor receives an order under a parent IDIQ contract that contains FAR 52.230-2, then that clause applies to the order. However, the requirements of the clause are premised on whether or not the contract is exempt. The clause begins with:

We know from the Kingdomware decision that a task or delivery is a "contract" as defined at FAR 2.101. Thus we can reasonably interpret the above use of "contract" to mean the task or delivery order.  

I'm right there with you but it's not yet been litigated so ….

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1 hour ago, Ibn Battuta said:

That suggests to me that the language is clear and unambiguous and not subject to various interpretations.

I disagree.  It only indicates that the issue has not been litigated, just as the issue of what is a contract for the acquisition of commercial items has not been litigated in regard to CAS coverage.  The passage of time does without litigation does not indicate that the language of a regulation, or statute is clear.  For example, the second amendment to the constitution had been in existence for over 200 years before the Supreme Court held that it conveyed an individual right to own firearms.

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