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40 minutes ago, Vern Edwards said:

My point was that the wording of FAR 16.102(b) is logically absurd.

The ASPR at 32 CFR 3.401(b)  was much clearer. 

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“41 U.S. Code § 3901 - Contracts awarded using procedures other than sealed-bid procedures 

(a)Authorized Types.—

Except as provided in section 3905* of this title, contracts awarded after using procedures other than sealed-bid procedures may be of any type which in the opinion of the agency head will promote the best interests of the Federal Government.”

*Section 3905 prohibits cost plus percentage of costs contracts.

“10 USC 2306. Kinds of contracts

(a) The cost-plus-a-percentage-of-cost system of contracting may not be used. Subject to the limitation in the preceding sentence, the other provisions of this section, and other applicable provisions of law, the head of an agency, in awarding contracts under this chapter after using procedures other than sealed-bid procedures, may enter into any kind of contract that he considers will promote the best interests of the United States.”

It seems that both the ASPR and current FAR language are more restrictive than the current applicable (Titles 10 and 41). Statutory language. .  

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Vern, the ASPR is clearer than the FAR. The ASPR said: 

“Pursuant to the authority of 10 U.S.C. 2306, a contract negotiated under this part may be of any type or combination of types described herein which will promote the best interests of the Government, subject to the restrictions described below.” 

(The “restrictions” refers to the cost plus percentage of cost method.) 

Then it goes on to reinforce that by saying types other than those described herein can’t be used without a waiver. There is no contradiction.

On the other hand, FAR 16.102 (b)  leads off, teasing us with the seeming promise of allowing any type or combination that promotes the government s interest:

“Contracts negotiated under Part 15 may be of any type or combination of types that will promote the Government's interest, except as restricted* in this part (see 10 USC 2306(a) and 41 USC 3901)."

*(Again, the “restriction” refers to the cost plus percentage of cost method.)

Then, FAR 16.102 (b) contradicts itself in the very next sentence, as you stated above, by limiting contract types to those specifically described.

The slight difference in wording  between the two leads to some confusion in the FAR but is clear and consistent in the ASPR. 

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My other point was that the FAR (and the old ASPR) limit contract types to those described therein. The Statutes don’t.  

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14 hours ago, joel hoffman said:

current FAR language are more restrictive than the current applicable (Titles 10 and 41). Statutory language. .  

Ah but are "we" sure.   I stated the inclusive for a reason.   I did not spend a couple of hours looking at FAR part 16 in detail to sort it out rather my comment is based on FAR 16.000 that seems to provide the permissive and is followed by detail of each contract type with imperative limitations.   But as noted in part of this thread the imperative in some cases allows wiggle room.

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@Don Mansfield Imagine a contract that would work as follows:

The agency will specify a service task. The parties will negotiate an estimated number of hours, a fixed performance fee, and a ceiling price. The agency will pay the contractor only upon successful completion of the work. The contract is for completion, not best efforts.

The amount to be paid for acceptable performance will be the lesser of (a) allowable incurred costs plus the performance fee or (b) the ceiling price.

The clause at FAR 52.232-1 will apply if the total of allowable incurred costs and fee equals or exceeds the ceiling price. The clauses at FAR 52.216-7 and -8 will apply below the ceiling price. The contract will not include the limitation of cost clause at FAR 52.232-20.

Questions:

(1) Do you think such a contract is among the types already described in FAR Part 16?

(2) If your answer is yes, which type?

(3) If the answer to the first question is no, do you think the CO must seek an approved FAR deviation in order to enter into a contract of that type?

I'm not trying to set you up for an argument. I just want to understand your interpretation of FAR 16.102(b).

 

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45 minutes ago, Vern Edwards said:

(1) Do you think such a contract is among the types already described in FAR Part 16?

No

45 minutes ago, Vern Edwards said:

(3) If the answer to the first question is no, do you think the CO must seek an approved FAR deviation in order to enter into a contract of that type?

Yes

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Thanks, Don!

I suspect that many if not most COs would agree with you. I don't know the "correct" answers. I think that what I described is a "hybrid" combination of types described in FAR---FFP and CPFF. I don't think a deviation is needed. But I think the possibility that many would believe they need approval to deviate is an example of what Mike Wooten (former Administrator of Federal Procurement Policy) called "friction" in the acquisition system.

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