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It isn’t possible for one contractor in a MAC to be awarded orders for the maximum contract amount, since the other pool members will have guaranteed minimums within the max limit.

However, unless the guaranteed minimums are substantial amounts, that delta probably wouldn’t matter, except if it affects CAS status or if it affects a construction contractor’s bonding capacity.

But one firm could win all the orders. 

 

 

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I don’t think the FAR requires a maximum. 

That's an interesting thought.

I think the FAR does require a contract maximum for IDIQ contracts.  FAR 16.504 (a) calls for "within stated limits" and (a)(1) calls for a "stated maximum."  I think the "should" in (a)(1) cannot be read to eviscerate the requirement for a maximum, and to eviscerate the maximum mentioned in para. (b) of the clause at FAR 52.216-22, Indefinite Quantity.  Thus, for me in my practice, the "should" in FAR 16.504(a)(1) merely describes how the maximum should be established.

As I understand, GSA did a deviation (or something else) to provide for no maximum on OASIS.

Edited by ji20874
to add "(or something else)"
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2 hours ago, formerfed said:

I don’t think the FAR requires a maximum.  

I disagree.

FAR implements statute. See 41 USC §§ 4101(1)(A) and (2)(A); 4103(b)(2) and (e); and 4106(f)(1)(A). I don't know how GSA managed a deviation, especially in light of 41 USC 4103(b)(2) and (e). Same requirements in 10 USC.

Have I missed something?

 

 

 

 

 

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30 minutes ago, Vern Edwards said:

I don't know how GSA managed a deviation, especially in light of 41 USC 4103(b)(2) and (e).

I don't know, either -- I definitely remember hearing a few years ago that something happened to allow a no maximum approach -- but I don't recall if it was a deviation, or an OMB waiver, or a legislative action.

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I’m still not sure GSA needed a waiver or something else to do GWACS without establishing a ceiling.   41 USC 4103(b) says 

Quote

Solicitation.—The solicitation for a task or delivery order contract shall include—

(1)
the period of the contract, including the number of options to extend the contract and the period for which the contract may be extended under each option;
(2)
the maximum quantity or dollar value of the services or property to be procured under the contract; and
(3)
a statement of work, specifications, or other description that reasonably describes the general scope, nature, complexity, and purposes of the services or property to be procured under the contract.

So what if GSA says there isn’t a maximum in response to (2)?

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Just speculating Vern.  I don’t know either.  I’m guessing GSA did some kind of waiver or sought approval knowing how much attention GWACS get just to be safe.  I know a couple GSA people are here so maybe they will chime in.

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20 hours ago, formerfed said:

I don’t think the FAR requires a maximum.

It depends........

From FAR Part 2 - "Should means an expected course of action or policy that is to be followed unless inappropriate for a particular circumstance."

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19 hours ago, joel hoffman said:

It isn’t possible for one contractor in a MAC to be awarded orders for the maximum contract amount, since the other pool members will have guaranteed minimums within the max limit.

Not quite accurate.   I did not go looking but I believe one could find decisions where a guaranteed minimum for a particular contract was not realized and the matter was litigated otherwise.  In fact that standards of fair opportunity are  read with the implication that a contractor may  not realize their minimum and in such cases the government could, if they wanted,  place an order to satisfy a minimum guarantee.  I do not read the FAR as this being a have to.

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David Drabkin or a protégé could answer this. I’m thinking that it is open ended for stated period limit. 

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6 minutes ago, C Culham said:

Not quite accurate.   I did not go looking but I believe one could find decisions where a guaranteed minimum for a particular contract was not realized and the matter was litigated otherwise.  In fact that standards of fair opportunity are  read with the implication that a contractor may  not realize their minimum and in such cases the government could, if they wanted,  place an order to satisfy a minimum guarantee.  I do not read the FAR as this being a have to.

There have been one or more cases where the government was only liable for a portion of the minimum guarantee, when no orders were made, not the entire amount.

my point is that the entire contract amount generally isn’t available for any single pool member. But that would be fairly easy to state in the solicitation and basic ID/IQ. 

 

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18 minutes ago, Vern Edwards said:

I think everybody gets what you've said.

Apparently not. They keep commenting. 

 

1 hour ago, C Culham said:

Not quite accurate.   I did not go looking but I believe one could find decisions where a guaranteed minimum for a particular contract was not realized and the matter was litigated otherwise.  In fact that standards of fair opportunity are  read with the implication that a contractor may  not realize their minimum and in such cases the government could, if they wanted,  place an order to satisfy a minimum guarantee.  I do not read the FAR as this being a have to.

The point is not that complex.

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Well, for what it's worth, I understand you and agree.

If you have multiple minimums, one for each contractor, and if the minimums counts against the maximum, then, assuming that more than one contractor receives its minimum, no one contractor can receive all of the maximum.

Right?

Now, what about my FAR deviation question, above?

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22 hours ago, formerfed said:

I don’t think the FAR requires a maximum.

It depends........

From FAR Part 2 - "Should means an expected course of action or policy that is to be followed unless inappropriate for a particular circumstance."

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This question has not been overlooked in the contractor community but it has also not been answered as far as I can see.  

I review subcontracting plans for multiple award contracts (one solicitation with separate contracts for each awardee), and the subcontracting plans vary depending on what the contractor thinks the "total" contract amount in the SubK plan is.  Some think it is the whole contract amount or maximum for the MAC, others think it is a subset of the maximum and other punt say they cannot figure what the total contract amount and have the Government tell them what to put into that area of their plan.

This situation has been around for at least 8 years now, for that is the time that I have been in the PCR role and it has always been that way.  Perhaps one day their will be an answer on how to resolve how MACs should be administered, but that day has not come yet.

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Vern,

My practice has always been to establish an identical minimum and a maximum for each multiple-award IDIQ contract.  Generally, I might set a contract maximum at half or two-thirds of the program's estimated maximum volume or quantity.

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57 minutes ago, Vern Edwards said:

Would it be a FAR deviation to incorporate 52.215-1 into a "fair notice of intent" (aka RFTOP) issued pursuant to 16.505(b)(1)?

 

 

I will take a swing.

No.  Fair opportunity is a competitive environment and GAO has reasoned that FAR part 15 can be applied to task order competitions.

References -

FAR 15.002

 https://www.gao.gov/assets/b-416654.2,b-416654.3.pdf

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19 minutes ago, Vern Edwards said:

@DWGerard1102 I'm surprised that COs don't stipulate an amount against which all competitors must plan. Do you know of any who do that?

None of the KO's that I have worked with via the Small Business Specialists have done that.  I have recommended it but the closest that I have seen is where the KO issued a sample task order or statement of work for them to submit a proposed cost for and then they used that cost to build their subcontracting plan. That does not happen in all of the plans that I have to review.  If I was the KO, that is how I would set up the subcontracting plan part of the question; but that does not answer the OP question. 

If it was up to me, I would state specifically what the minimum awards would be and then communicate that in a competitive arena, the best value proposal would win without regard to how many awards went to any specific contractor.  One contractor could very well win all of the maximum funding for the contract less the minimum awards.  Not all contracting offices would agree with me on that, I have worked with some that insist that all contractors should receive awards.  I have asked how they would deal with one contractor consistently not submitting the best proposal and they could not really answer that question.

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@C CulhamThanks, Carl. I don't think GAO has ever ruled on the question of whether application of Part 15 procedures to fair opportunities under 16.505(b) via 52.215-1 is a FAR deviation requiring approval.

GAO has said that Part 15 does not govern, but has acknowledged in at least 27 decisions that agencies apply it, and they say they will enforce such applications.

I don't think the application of Part 15 to fair opportunities has ever been challenged, and I believe that GAO is unlikely to take up the issue sua sponte.

Have I missed a decision? The one you cite doesn't address the issue I have raised.

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