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1 hour ago, Ibn Battuta said:

What are some of your versions of what it means?

A couple of definitional issues are what does "anticipated" mean in this context?  We also don't know whose anticipation is to be considered.  Also, 1.108(c) refers to supplies or services "to be acquired."  In an IDIQ contract we know the minimum amount that is to be acquired, but we do not know the maximum amount to be acquired.  Instead, we know the maximum that may be required.  Further, although we have been talking about IDIQ contracts, this section would also apply to requirements contracts.  There we have estimates with no promise of the government buying anything.

 

 

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20 minutes ago, Ibn Battuta said:

That's 20 years without commentary or litigation, and I think it's reasonable to assume that in a litigious field like contracting the fact there were no questions about it when it was a proposed rule, no commentary in law reviews or newsletters, and no litigation about it in the 20 years since it took effect, it has not posed many if any interpretational issues.

Those may be indicators to you.  However, I know that in informal presentations, experienced government contract attorneys in private practice have raised concerns over the application of 1.108(c).  Thus, I am not alone.

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3 hours ago, here_2_help said:

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?

I'm not sure on the point you raised, but I do think it was Boeing that raised an issue concerning something similar with the court holding that the FAR Councils could adopt rules that they had not promulgated such as the CAS.

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25 minutes ago, Ibn Battuta said:

I have searched the GAO, BCA, and COFC databases and cannot find such a case. I have searched Karen Manos's book and the Government Contract Cost and Pricing newsletter. I have searched Briefing Papers. I cannot find such a case.

Any clues?

Raytheon Company, Space & Airborne Systems, ASBCA Nos. 57801, 57803, 58068, decided 7 May 2015. See Discussion beginning on Page 14 -- "The CAS Board's Authority to Regulate"

http://www.asbca.mil/Decisions/2015/57801, 57803, 58068 Raytheon Company, Space & Airborne Systems 5.7.15.pdf

Hope this helps ….

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Reference - https://www.federalregister.gov/documents/2008/11/12/E8-26953/federal-acquisition-regulation-far-case-2007-006-contractor-business-ethics-compliance-program-and

 

“Response: According to FAR 1.108(c), unless otherwise specified, if the action establishes a maximum quantity of supplies or services to be acquired, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options. That is, if it is anticipated that the dollar value of orders on an FSS contract will exceed $5 million, then this clause is included in the basic contract against which orders are placed.”

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18 hours ago, Ibn Battuta said:

But I thought our issue was the clarity of the regulation, not the effect of its application. So which is it?

To properly apply a regulation to a set of facts, you need to understand what it means.  Once you understand what it means, you can determine if it applies to the facts at hand.  Thus, the issue is what does 1.108(c) mean and how is it to be applied, e.g., to IDIQ contracts, multiple award IDIQ contracts, requirements contracts, contingent contracts.

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17 hours ago, here_2_help said:

Raytheon Company, Space & Airborne Systems, ASBCA Nos. 57801, 57803, 58068, decided 7 May 2015. See Discussion beginning on Page 14 -- "The CAS Board's Authority to Regulate

Interesting.  It seems like the CASB took the position that the issue is too hard for it to figure out so it punted to the FAR Councils.

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1 hour ago, Ibn Battuta said:

But if you want to keep asserting that the clause is, arguably, unclear or ambiguous, then you have convinced me and let's let it go at that

I accept.  Like a lot of the FAR, this is clear as mud but it covers the ground.

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On 1/14/2020 at 10:51 PM, Ibn Battuta said:

Emphasis added. 

Might be confusing to some.

I think your post is unfair. The author's two posts were made eight hours apart.

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On 1/14/2020 at 2:06 PM, joel hoffman said:

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...”

Not sure if there is still a argument about whether the fair opportunity notice is or isn’t what is used in MATOC ordering procedures instead of a “solicitation”  to request a task order proposal.

Per ji and according to the above, contract holders would respond to a “notice” . There is no need to use a “solicitation” in addition to or  instead of the “notice”.

When introducing the term “solicitation” in task ordering procedures, we start getting into questions concerning what FAR says must be included in a ”solicitation.” I suspect that using notice,  not solicitation was deliberate for reasons such as that. 

That is supposed to be done  in the original solicitation for the Base Multiple Award IDIQ contract . Dont repeat the same provisions and clauses during the task ordering procedures. You might refer to  a clause in the contract but don’t repeat inclusion of the clause.

I thought ji’s explanation concerning the bankruptcy clause was pretty straightforward and clear too.

“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.”

I don’t have access to my pre-FARA/FASA FAR books today . I’m curious what the ordering process said prior to the introduction of the terms “fair opportunity” and “notice”

Will do some further study. 

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3 hours ago, Ibn Battuta said:
  Quote

Insert clause 1352.216–74, Task Orders, or a substantially similar clause in task order solicitations and contracts, making changes, as appropriate. Contracting officers are encouraged to make appropriate modifications to the time requirements and procedures to meet the Government's needs.

 
Ibn, This Prescription appears to refer to a clause,  describing general  ordering procedures that would go in the IDIQ (“task order”) Contract as well as in the solicitation for the ID/IQ (“Task Order”)  contract..
The clause doesn’t contain any task order specific information or requirements.  Therefore, why would it be repeated for every task order? Just reference it if necessary in the request for a task order proposal.
 

“1316.501-2-70 Task orders.

Insert clause 1352.216-74, Task Orders, or a substantially similar clause in task order solicitations and contracts, making changes, as appropriate. Contracting officers are encouraged to make appropriate modifications to the time requirements and procedures to meet the Government's needs.”

 

“1352.216-74 Task orders.

As prescribed in 48 CFR 1316.501-2-70, insert the following clause:

 

“Task Orders (APR 2010)

(a) In task order contracts, all work shall be initiated only by issuance of fully executed task orders issued by the Contracting Officer. The work to be performed under these orders must be within the scope of the contract. The Government is only liable for labor hours and costs expended under the terms and conditions of this contract to the extent that a fully executed task order has been issued and covers the required work and costs. Charges for any work not authorized shall be disallowed.

“(b) For each task order under the contract, the Contracting Office shall send a request for proposal to the contractor(s). The request will contain a detailed description of the tasks to be achieved, a schedule for completion of the task order, and deliverables to be provided by the contractor.

“(c) The contractor shall submit a proposal defining the technical approach to be taken to complete the task order, work schedule and proposed cost/price.

“(d) After any necessary negotiations, the contractor shall submit a final proposal.

“(e) Task orders will be considered fully executed upon signature of the Contracting Officer. The contractor shall begin work on the task order in accordance with the effective date of the order.

“(f) The contractor shall notify the Contracting Officer of any instructions or guidance given that may impact the cost, schedule or deliverables of the task order. A formal modification to the task order must be issued by the Contracting Officer before any changes can be made.

“(g) Task orders may be placed during the period of performance of the contract. Labor rates applicable to hours expended in performance of an order will be the contract rates that are in effect at the time the task order is issued.

“(h) If multiple awards are made by the Government, the CO shall provide each awardee a fair opportunity to be considered for each task order over the micro-purchase threshold unless one of the exceptions at FAR 16.505(b)applies.”

 

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Ibn, I agree that, if a task order is incrementally funded, then you’d include the Limitation of Funds Clause in the task order - it would be task order specific.

As for agencies referring to a task order solicitation, so they can call it what they want to. But the FAR ordering procedures don’t refer to it as a “solicitation”. 

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6 minutes ago, Ibn Battuta said:

You're right about that clause. I included the wrong one in my post. But I provided plenty of other examples that show that agencies, including your Corps of Engineers, issue task order solicitations. I found many more examples that I posted.

Okay, As I said you found agencies referring to it as a “solicitation”.

They can call it what they want to. But the FAR ordering procedures don’t refer to it as a “solicitation”. 

I said it tends to confuse people- even you - as you admitted above. I’m sure that you are very experienced and well qualified.

But the poorly written prescription for that clause tends to prove my point. 

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I believe that the definition in FAR 2.101 doesn’t apply if another section defines/describes the process for seeking proposals differently.  The FAR committee appears to differentiate between the solicitation for the ID/IQ CONTRACT and the fair opportunity task order process under the ID/IQ.

I think that the “fair opportunity”  competition requirement is  fairly “recent”  (within 25 years or so. time flies when you’ve been around a long time). I can remember when our agency was “spreading the wealth” for task orders for various reasons. I’m at my hunting camp. My older hard copies of FAR are at home. I’d like to check out a 1997 or, preferably old version of the ordering process. Darned hard to do on an iPhone with two bars for signal strength. 
 

“2.101   Definitions.

(a) A word or a term, defined in this section, has the same meaning throughout this regulation (48 CFR chapter 1), unless— 

(1) The context in which the word or term is used clearly requires a different meaning; or 

(2) Another FAR part, subpart, or section provides a different definition for the particular part or portion of the part.“

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52 minutes ago, Ibn Battuta said:

...it was ji20874's post which confused me...

My apologies for confusing -- I try to be clear.  I thought I had been consistent and clear, but I will re-state to erase any confusion.

  1. FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement;
  2. I believe this is purposeful;
  3. I use the word “notice” in my own practice, not “solicitation";
  4. To me, a fair opportunity notice is not a solicitation within the construct of the FAR (see 1. and 2. above), even though it may be commonly referred to as such within our community; and
  5. As an example, when the FAR's prescribing text for the Bankruptcy clause calls for insertion of that clause in all solicitations exceeding the SAT, I don't insert that clause in my fair opportunity notices (because they aren't solicitations) (the clause is already included in parent IDIQ contracts exceeding the SAT and is applicable to the resulting orders, so it isn't needed in my notices).

In short, the FAR doesn't call it a solicitation, so I don't.  The FAR calls it a notice, so I do, too.

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ji's argument only holds water if a notice of fair opportunity, by definition, does not request quotations or offers from the Government. He presents no basis for that other than he would not put the Bankruptcy clause in a notice of fair opportunity. A "solicitation" is defined as:

Quote

 “Solicitation” means any request to submit offers or quotations to the Government.

Why can't a notice of fair opportunity request quotations or offers? Maybe some do and some don't.

ji has avoided answering the question of whether a notice of fair opportunity requests quotations or offers from the Government because a "yes" answer would undermine the distinction he's trying to make. A "no" answer would require him to explain why that is necessarily so, which he cannot. 

Further, ji believes that the FAR Councils came up with "notice of fair opportunity" to distinguish it from "solicitation" when developing FAR 16.505 procedures. The evidence presented is that "solicitation" does not appear in FAR 16.505. That's an interesting theory, but there's not enough evidence for a reasonable person to draw such a strong conclusion. Certainly not enough to claim "A fair opportunity notice is not a solicitation within the construct of the FAR" as a matter of fact. Or to accuse others of being sloppy. Some of what has been posted in agency supplements seems to contradict that theory.

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Don,

Of my numbered statements 1. through 5. reflecting my thought process, which do you judge as untrue?

Earlier in this thread, I asked you a question and you haven’t answered it yet.  Will you answer it now?

T   F   FAR 16.505(b)(1) repeatedly uses the word “notice” and never uses the word “solicitation” to describe a fair opportunity announcement.

And one more?  It also has been asked, but you haven’t answered it yet.

Y     N     In your own practice, do you insert the Bankruptcy clause in every fair opportunity notice exceeding the SAT (even though the clause is already included in the parent contract and will be applicable to the order regardless of whether or not you insert the clause in the notice)?

You err in providing the reason that I will have not answered your question.  You really shouldn’t put words in my mouth.  Your question has a flawed premise, and answering your question with a simple yes or no (as you demanded) would not provide for an honest discussion.  

But please answer my questions above — that actually will help us have an honest discussion.

If you tell me which of the five statements is offending you, and why, I am hopeful that I can resolve your concern and assuage your animus.

If you answer TRUE to the FAR text question, I am hopeful we will have found common ground.  If you answer FALSE to that question, we will be miles apart.

If you answer YES to the bankruptcy clause question, we will have a difference of opinion — you do what you need to do in your practice, and me in mine.  If you answer NO, I will be glad you aren’t wasting ink and paper but it will seem inconsistent with your insistence that a notice is a solicitation.

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@ji20874,

If you truly want to continue this discussion, intellectual honesty demands that you defend your initial claim:

Quote

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

Whether or not something is a "solicitation" depends on the whether it meets the definition of "solicitation" at FAR 2.101.

Quote

“Solicitation” means any request to submit offers or quotations to the Government.

To bear the burden of proof you must provide evidence that a notice of fair opportunity does not, by definition, request quotations or offers. If you cannot do that, then your claim can be dismissed by operation of Hitchen's Razor.

quod grātīs asseritur, grātīs negātur ("What is asserted gratuitously may be denied gratuitously")

Just because someone questions your claim does not necessarily mean they oppose it.

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In a minor aside, I find that FAR 1.108-c is the subject of yet another disagreement in meaning. It has led me to question whether most folks accept the plain meaning of "all options" in  FAR 1.108(c.). 

Who here is sure to include the value ascribed to the FAR 52.217-8 Option to Extend Services, when present, in determining the threshold value? If that's not what you do in practice, then why not?

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20 hours ago, ji20874 said:

FAR 16.505(b)(1) repeatedly uses the word “notice” and never uses the word “solicitation” to describe a fair opportunity announcement.

ji, I am not taking sides in this, but what is the significance of 16.505(b)(1) not using the term "solicitation" if a notice requests offers or quotes?  It seems like such a notice would meet the definition of "solicitation" regardless of what label is placed on it in the FAR.

 

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On 1/17/2020 at 3:12 PM, Ibn Battuta said:

I disagree with your analysis. But what you "believe" about FAR 2.101 doesn't interest me.

The fair opportunity requirement dates to FAC 90-33, 60 Fed. Reg. 49723, September 26, 1995, effective October 1, 1995. It has been amended several times since then.

Yes, there is no mention of the “notice” in the January 1997 version of 16.505.

There is mention of the word “solicit” at (b)(3) where “The contracting officer solicits offers from two or more awardees for order placement when the price for the supplies or services is not established in the contract at the time of contract award.”

The July 1, 2006 edition at (b)(3) instructs the KO to “establish prices for each order using the policies and procedures in subpart 15.4.” The word “”solicit” is gone. 

There is no distinction between size of the MATOC order in the July 2006 FAR, nor is the term “notice” used.

So, as of July 2006, the term “solicit” was removed, but Part 15.4 processes were added Where there aren’t contract prices established. . No mention of “notice”.  There is no name for the ordering process. 

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The July 2011 FAR Edition distinguishes between orders exceeding the simplified acquisition threshold, and orders exceeding $5 million. It includes the “notice” requirement

For orders exceeding the simplified acquisition threshold the contracting officer shall “[p]rovide a fair notice of the intent to make a purchase“, etc. etc. The KO must “afford all contractors responding to the notice a fair opportunity to submit an offer and have an offer fairly considered”.

For orders exceeding $5 million the contracting officer must provide “a notice of the task or delivery order that includes a clear statement of the agencies requirements” etc. etc.

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For what it’s worth, both the 2011 and current versions include requirements for orders exceeding $5 million ($5.5 million) to disclose the significant factors and sub factors, including cost or price, that the agency expects to consider when evaluating proposals, and their relative importance” .  Both editions require, when using “best value basis” for award, a written statement documenting the basis for award and the relative importance of quality and price or cost factors.

The 2006 edition was less specific and simply required rationale for placement and price of the order including The basis for award and the rationale for any trade-offs among cost or price and non-cost considerations in making the award decision.

At any rate, as of July 2006, there was no mention of “solicitation” or “notice” or “ fair notice”.  No wonder many agencies use the term “solicitation”.

It’s a “Johnny come lately” term. 

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The term “fair opportunity notice” or “notice” first appeared in the order placement procedures  in 16.505 sometime after 2006.

It is in the 2011 FAR version that I have. I didn’t have time to track down what year it was incorporated into the ordering procedures between 2006 and 2011.

The term “solicitation”  hasn’t ever been used in the FAR procedures for fair opportunity competitive order placement to my knowledge, other than a requirement in the 1997 FAR edition to solicit price proposals when the IDIQ contracts don’t  have prices for the intended efforts. That word was removed sometime between  the 1997 and 2006 versions.

It appears that the FAR Council decided to adopt a name/term other than the standard “solicitation” to use with the fair opportunity order placement process sometime between 2006 and 2011.

However, since “notices” is a relatively recent addition to 16.505(b), it’s no wonder that many agencies call their task order proposal request procedures  “solicitations”, not “notices.”

There are some references elsewhere in the FAR to solicitations for task orders but that isn’t surprising. The FAR isn’t always coordinated across the various Parts and not all task orders are issued under fair opportunity procedures. 

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