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  1. Today
  2. Here ia a letter from the Professional Services Council about Beta.Sam.gov. You need to click the one line on the page to download the file.
  3. Ah you clicked in memory. I can not find this on the web but I have a hard copy - Bureau of Customs and Border Patrol Protection - Automated Commercial Environment Contract, B-302358, December 27, 2004. Has a great discussion of multiyear contracts and IDIQs. Sorry for raising the matter without my further research. In reality 1.102-4 does not come into play it still all revolves around 17.1 and its statutory connection. A IDIQ is not a multiyear contract as noted in the aforementioned GAO decision.
  4. JOC and SABRE contracts are used for the purposes that ji is referring to. There is much guidance and policy on those easily accessible on the Internet. In my reviews, I did not see whether they are multi-year or base plus option years - I just don’t see any advantage to a multi-year construction ID/IQ, though. Use options. Single award Construction contracts would not have been addressed in 17.1. i don’t think that construction ID/IQ’s , other than JOC/SABRE, are specifically discussed in FAR or DoD Supplements.
  5. Thomas, Are you talking about a construction contract to do minor repairs on a pre-priced basis, such as a coefficient off the RS means book, or are you talking about a contract to do brand new construction of brand new buildings? I am assuming the former, and I think Joel is assuming the latter. Carl, We are talking about an IDIQ contract, so FAR 17.1 is not implicated. A key to FAR 1.102-4(e) is sound business judgment. When I point to that citation, I inherently mean that sound business judgment is needed. No one can rely on that citation as permission to proceed without sound business judgment. An IDIQ contract with a 5-year ordering period for pre-priced minor construction services would be far closer to sound business judgment than an IDIQ contract with a 5-year ordering period for new construction.
  6. Carl, one clarification - the OP specifically referred to 17.204, which falls under 17.2, Options. Therefore - it should be obvious - it would not have referenced construction contracts. However, I completely overlooked 17.1. I tend to agree with you. Construction contracts were Traditionally awarded for whatever period was deemed appropriate for a single project and weren’t addressed as ID/IQ’s In the FAR (to my knowledge). I wish that I could find the Protest Decision that addresses whether ID/IQ’s can be used for construction. Obviously, they are used.
  7. @joel hoffman @ji20874 @formerfed I find the OP's post interesting and I wonder if the responses to date have overlooked some facts. Here are my thoughts. Has not the OP proposed the idea of a multiyear base period? If so why isn't the reference FAR 17.1 in a total read. More specifically FAR 17.101 states that it implements 10 USC 2306b. 10 USC 2306b at (k) states the following - For the purposes of this section, a multiyear contract is a contract for the purchase of property for more than one, but not more than five, program years. Such a contract may provide that performance under the contract during the second and subsequent years of the contract is contingent upon the appropriation of funds and (if it does so provide) may provide for a cancellation payment to be made to the contractor if such appropriations are not made. A further read of DFARS 217.1, as has been pointed out by the OP, discusses services and supplies and not construction. There is much discussion about the FAR being specific and that "construction" by definition is held out to be neither a service or a supply. DFARS 217.1 would support that a MATOC/SATOC for service with regard "Operation, maintenance, and support of facilities and installations" is an appropriate use. But what about straight construction? All said it would seem to me that a ordering period of 5 years for an IDIQ for specifically "construction" would not only be questionable as Joel points out in one of his posts but one could, in a deep dive, of the regulation conclude that a IDIQ for "Construction", in other words not "supplies or services" (FAR 17.101), would not be appropriate. Rather a IDIQ for strictly construction would need to have a base of 1 year with options to extend. I pose these thought's genuinely. I do understand the reference to FAR 1.102-4(e) but wonder if alternatively any attempt to have a 5 year base period in a construction IDIQ would have to be authorized through FAR 17.1 and associated agency supplements thereto? Where am I off track? PS - I dug this up too http://www.wifcon.com/anal/analfiveyear.htm
  8. I also recall a Protest within the past 20 years against the idea that ID/IQ’s. Can be used for construction because it wasn’t specifically authorized or mentioned in FAR. Might be the same Weeks Decision or another one. I do remember that the protestor did not prevail on that point. Sorry that I don’t have a Specific reference. Regardless, unless there is some reason why an ID/IQ would unreasonably restrain trade, they are being used and for up to five years ordering periods (single or with options) are not uncommon.
  9. In 2009, the Court of Appeals for the Federal Circuit later reversed the 2007 Court of Federal Claims, Weeks Decision and the permanent injunction, therefrom. https://caselaw.findlaw.com/us-federal-circuit/1379675.html.
  10. I wrote RFP’s for construction Multiple award ID/IQ’s for Mobile District back in1996. I moved on to another USACE Division before they were advertised but they awarded the first one and others, subsequently. Many Districts have awarded similar MATOC’s. Mobile used options. however, there wasn’t any reason why one couldn’t have used a single ordering period. It just didn’t make sense at the time for the reasons I mentioned above. I do remember a successful (2007) Court of Federal Claims protest by a dredging company (Weeks Dredging) against a solicitation for a USACE South Atlantic Division Dredging MATOC, to replace individual Dredging contracts that were traditionally awarded using IFB’s. Restraint of competition for the life of the MATOC was one of the grounds for the protest. in addition, the Government hadn’t justified why sealed bidding shouldn’t be used to award dredging contracts per 6.401(a). As a result, the USACE issued policy that anything other than IFB’s had to be justified pursuant to 6.401(a) and 14.103-1(a).
  11. My advice is don’t worry about finding anything construction specific because there isn’t any, at least at the FAR/DFARS level. Just do it. GSA Schedules have 5 year ordering periods. To provide flexibility, they use EPA provisions. They also allow for new items to get added by contractors. ji20874, I think I know you. You used to work at Commerce NOAA?
  12. So true! I'll be back with more questions or with updates once the dust settles.
  13. Yesterday
  14. By tiered evaluation, do you mean cascading set-aside? Go ahead!
  15. See FAR 1.102-4(e): "The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound." I don't think you're going to find anything that specifically authorizes a five-year ordering period, or even a one-year ordering period for that matter -- you can have an ordering period for as long or as short as you want using sound business judgment.
  16. FAR 13.302-4, Termination or cancellation of purchase orders, begins by discussing purchase orders that have been accepted in writing in paragraph (a). In paragraph (b), it then discusses purchase orders that have not been accepted in writing. In that context, it ends, "If the contractor does not accept the cancellation or claims that costs were incurred as a result of beginning performance under the purchase order, the contracting officer shall process the action as a termination prescribed in paragraph (a) of this section." This leads me to believe that if the purchase order was accepted in writing or if you know the contractor has partially performed, then cancellation isn't an option. I don't see the word cancellation outside the context of solicitations in my day-to-day work, so my apologies if I'm misunderstanding your question. Edit: I see FAR 49.402-3(a) uses the phrase, "no-cost cancellation," but I think it just means a bilateral no-cost termination I also see FAR 42.302(a)(63), which lists as among the contract administration functions normally delegated, "Cancel unilateral purchase orders when notified of nonacceptance by the contractor. The CAO shall notify the contracting officer when the purchase order is canceled." So you may want to be mindful of that unless you are both the PCO and ACO.
  17. Ok, then my advice is to check with those who regularly use construction ID/IQ contracts, like the Army Corps of Engineers. if you are an attorney, you can check with USACE Office Of Counsel. I have a contact at HQ in Construction Policy who might be able to answer your question but would need to know particulars.
  18. I have a firm fixed price purchase order for maintenance services on scientific equipment. If the equipment is decommissioned prior to the end of the purchase order for the maintenance agreement, can the purchase order be cancelled since the equipment no longer exists or does this need to be processed as a termination?
  19. Joel, to clarify, I'm looking for guidance that allows the use of 5 year ordering periods for construction IDIQ contracts. Not the use of options. I realize what FAR/DFARS state about this situation, but that language is specific about it applying to supplies and services. I'm just wondering if there is guidance out there that specifically applies to construction contracts. If it doesn't, then I'm ok with that. Just was trying to use WIFCON as a source while researching this topic.
  20. Here at SmallGovCon HQ, we’re trying to withstand these last few weeks of winter as we hold out for spring. But in the mean time, our attorney authors will be speaking at some upcoming events. Matthew Schoonover will outline Developments in Small Business Contracting at a PubK Webinar on February 26 and also present on Size & Affiliation Issues for a Maryland PTAC Webinar on February 27. In federal contracting news, there are some interesting highlights. Among them are reactions from contractors to the beta.sam.gov portal, changes in agency priorities in the 2021 budget, and a new adaptive acquisition framework for defense agencies. Federal Contracting Community Shreds FBO Replacement Site in Letter to GSA. [nextgov] Change is hard vs. real problems: The tale of the beta.sam.gov portal. [federalnewsnetwork] Does The Government Consulting Paradigm Create Incentives Against Innovation? [forbes] 11 Major Agency Reforms in Trump’s 2021 Budget. [govexec] Can access to results from federal research projects be improved? [federaltimes] After hearing complaints, GSA moves to make beta.SAM.gov information easier to find. [federalnewsnetwork] Overstock.com protest could delay GSA commercial e-marketplace pilots until April or beyond. [fedscoop] New adaptive acquisition policies for defense contractors. [federalnewsnetwork] View the full article
  21. This is not true. You may administer (even modify) the contract. If the additional time is due solely to unusually severe weather (not just "weather" but "unusually severe weather" as an excusable delay), you may process that modification. The types of modifications you cannot do are those described in FAR 9.405-1(b). But if the contractor hasn't performed any of the work, the excusable delay notion won't hold any water. This is irrelevant. Did the contractor submit a performance bond? No, not unless you terminate the contract. No. Not yet. Have you considered issuing a show cause notice with notice to the surety, preparatory to termination for default?
  22. It’s a change to the notice terms but the work is in-scope. The contractor can waive the required notice period. Why not “Other” and cite that the contractor waives the notice period? Will require supplemental agreement.
  23. As we’ve previously discussed on this blog, a substantial number of GAO bid protests are resolved through voluntary corrective action. While corrective action is typically a desirable outcome for a bid protest, it by no means affords a protester the opportunity to relax. Indeed, as one offeror recently discovered, the failure to diligently protest the scope of a corrective action barred raising certain challenges later on. GAO’s decision in CPS Professional Services, LLC d/b/a CATHEXIS, B-417928.2 (Comp. Gen. Feb. 5, 2020), involved a procurement by the VA for project management services to support its logistics program office. CATHEXIS timely submitted a proposal in response to the solicitation. Following the deadline for proposal submission, the VA amended the solicitation to increase staffing estimates. Offerors were instructed that they could provide revised proposals, but revisions were not required for any volumes that would remain unchanged. The same day the amendment was issued, the VA also followed up with competitors to assess whether proposal revisions were anticipated. Contractors were advised that proposal revisions would likely have adverse impacts on the evaluation schedule. In response, CATHEXIS worked with the VA to come up with a strategy for modifying its proposal following the amendment without providing a complete proposal revision. Instead of submitting a revised proposal, CATHEXIS would provide a basis of estimate that would highlight any changes to its proposed approach. CATHEXIS understood the VA to prefer this approach to minimize delay to the evaluation schedule. CATHEXIS timely provided a basis of estimate to the VA summarizing the changes to its proposal resulting from the revised staffing estimates. Interestingly, all of CATHEXIS’s competitors elected to submit revised proposals, instead. Roughly three weeks after submitting its basis of estimate, the VA notified CATHEXIS that it had not been selected for award. During its debriefing, CATHEXIS learned that the VA had not evaluated its basis of estimate because the submission exceeded the solicitation’s page limit. CATHEXIS protested this decision with GAO. In response the VA elected to take corrective action, and requested GAO dismiss the protest. Under the corrective action, the VA would reevaluate proposals—including the basis of estimate supplied by CATHEXIS—then make a new best value determination based on the revised evaluation results. Based on the VA’s representation that it would be taking corrective action, GAO dismissed CATHEXIS’s protest. It does not appear CATHEXIS objected to the nature of the corrective action or its scope before GAO dismissed the protest. Following its reevaluation, CATHEXIS was again notified that it was an unsuccessful offeror. CATHEXIS protested the VA’s award for a second time. This time, CATHEXIS alleged the VA’s corrective action failed to address the material flaws in the prior evaluation. Specifically, CATHEXIS argued it had been discouraged by the VA from submitting proposal revisions. Thus, CATHEXIS argued, the VA’s corrective action should have allowed CATHEXIS to submit a revised proposal. In response, the VA argued that CATHEXIS’s protest was really a challenge to the scope of the corrective action. Given that it had been more than 10 days since the VA had proposed taking corrective action, the VA argued CATHEXIS’s second protest was untimely. The VA’s untimeliness argument relies on GAO’s bid protest regulations, which provide specific requirements for protests to be raised. For those interested, these regulations can be found at 4 C.F.R. § 21.2. As relevant here, GAO’s bid protest regulations require that any challenges to the terms of a solicitation be filed prior to the due date set for proposals. In circumstances where new proposals are not requested, however, “any alleged solicitation improprieties must be protested within 10 days of when the alleged impropriety was known or should have been known.” 4 C.F.R. § 21.2(a)(1). According to the VA, challenging the scope of a corrective action is tantamount to challenging the revised terms of a solicitation. Thus, the VA argued, CATHEXIS had been aware that the corrective action did not anticipate allowing offerors to submit revised proposal submissions when the VA proposed corrective action in the first protest. As the 10-day timeliness window had long since expired, CATHEXIS’s current protest of the corrective action scope was untimely. GAO agreed with the VA. First, GAO confirmed that, generally, “[a] protest allegation that challenges the ground rules that the agency has announced for performing corrective action and recompetition is analogous to a challenge to the terms of a solicitation and also must be filed prior to the deadline for submitting revised proposals.” CATHEXIS was challenging the scope of the corrective action. But, while CATHEXIS argued the VA’s corrective action had been incomplete, “the protester knew that the agency did not intend to request revised proposals” from the corrective action notice submitted by the VA under the earlier protest. From this conclusion, the principal question for GAO to resolve was whether CATHEXIS’s protest was timely. Since no revised proposal submissions were anticipated by the VA as part of the proposed corrective action, CATHEXIS would have needed to protest within 10 days of the VA’s proposed corrective action. Since CATHEXIS waited until the VA issued the results of its corrective action—nearly a month after the corrective action was proposed—its protest was untimely. CATHEXIS’s protest was subsequently dismissed by GAO. CATHEXIS’s protest serves as a stark reminder of how strict GAO’s bid protest deadlines can be. Despite protesting the original evaluation and obtaining corrective action, CATHEXIS’s decision not to challenge the scope of the corrective action within 10 days precluded it from raising the challenge later. GAO’s decision is a sobering reminder of the fact that corrective action does not guarantee an award. View the full article
  24. You didn’t explain whether or not anyone else was administering the several contracts but they all appear to be under way. It does look strange to me that there would be no status or record of progress on them. Other than the instant contract, are the rest recently awarded?
  25. Do you have a legal advisor/office of counsel/agency attorney? If the contractor is on the active exclusion list, the government supposedly cannot do business with the firm. Do NOT reimburse the contractor for the bond until the KO decides whether or not the contract should be rescinded or terminated. Other than that, there isn’t enough information here to determine anything about the status of the contract.
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