DEEFARRD

Is the contract FFP or Cost-Reimbursement?

Work with your Contractor and do a bi-lateral modification to the contract. If the services required to be performed under the contract require the contracted employee to obtain certain training or maintain certain credentials, then that is the responsibility of the Contractor. Since this training was unanticipated at the start of this contract and since it is within-scope, then modify the PWS, and negotiate a price instructing the Contractor not to exceed the JTR reimbursement rates.

The Contractor is well within his right to negotiate G&A and profit on costs incurred. That is why the Government should want to negotiate the cost.

Leo1102, the contract is FFP. My KO wants me to place a PO against the manufacturer and not my KTR.

The current contract is expiring shortly and the KTR is not performing to standards. It does bring up a challenge as we are training a KTR employee that could jump ship anytime but the standard practice is that whichever next KTR wins the next contract, generally picks up the KTR employees who were the incumbents.

I don't know of anything that would prohibit it.



If the contractor's standard practice is to allocate G&A to its travel costs, why shouldn't they do so in this case?

If the G&A + travel costs go over the JTR, would that be acceptable? I thought we were not allowed to go over government per diem rates.

Well i talked to a KO and I received some clarification. There are these two main medical companies that provide a product for heart surgery supplies. The hospital chose to buy one product over the other in accordance with AFI 41.209 para 4.10 "To save a life" which they have authority to purchase a product without base contracting. They submitted a sole source letter after the fact one day from the emergency surgery. The issue is that it isn't a sole source since two companies provide the product. Because of that, I figured that FAR 6.302(a)(2) would justify it. "When the agency’s need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals, full and open competition need not be provided for."

I pointed out the bolded part to a KO and she said that the surgery is already done, why re-invent the wheel and do extra work with a J&A for urgent and compelling when it can be done as a sole source. I argued it isn't a single source though, urgent and compelling would allow us to limit competition to go directly to one company just like how the hospital did.

AFI 41-209 4.17.4
4.17.4. Urgent and Compelling Requirements.
4.17.4.1. Preparation of a J&A for an Urgent and Compelling requirement is similar to a Sole Source J&A except that it must:
4.17.4.1.1. Identify what serious injury the government will experience if the need is not fulfilled immediately (e.g., physical, financial or other).
4.17.4.1.2. Contain a required delivery date.
4.17.4.2. A J&A for an Urgent and Compelling need may be done after-the-fact for procurements that do not permit time for J&A preparation. See your contracting activity for details.

So lets say if it was a single source, what authority would give us the ability to not synopsize this requirement under FAR 5.202?

Sounds like if your heart situations, you should have an ID/IQ or BPA set up to make orders to replace the inventory happen. That way, when you use up an item, it is simpler to replace inventory. It sounds like it is reasonable to believe that these items will be used in the future. So doing emergency orders to replace inventory sounds like poor planning in my opinion. I would have to try really hard to convince a KO that replacing inventory is unusual or compelling.

Regarding the femur, I could probably do a J&A to show the urgency or a purchase of that (stuff not in inventory). I would have to state the dire consequenses of not getting the item (loss of limb, death, whatever).

The office has setup numerous BPAs with these medical companies but some of the products exceed the call limit. The reason they have to have replace the inventory immediately is that in the event of another emergency surgery of the same type, they would have the product on hand to rush into surgery with. I believe it is in the hospital's regulation somewhere.

DEEFAARD:

Have you read AFI 41-209, para. 4.17, "Justification for Other Than Full and Open Competition"?

That I have not until now. This has answered my inquiry, I'll forward this information up. Thank you.

How a saving of a life in not an urgent and compelling need is beyond me.

Been a little while where I actually had an emergency contract for the same type of product/services. First, I believe that the saving of someone's life DOES fall into that catagory (6.203-2(a) (2)). You did say it was an emergency so I am assuming that without the supply the person might die. I know we have had KO's get called at night and giving verbal approval on such emergencies. The next day a contract would be completed along with a MFR stating the circumstances (in those cases). Additionally, a J&A would need to be completed stating why this was so urgent (this should idealy be completed before award/purchase). Ideally the customer would provide their reasoning in the PR packet. Your J&A would have to be posted to FBO within 30 days after the action (not 100% sure of that time frame.)

Poor planning for a scheduled surgery is not reason to for an emergency procurement. Of course I suppose a the doctor could order it himself and deal with the aftermath of an Unauthorized Commitment.
Well a lot of these situations are planned as in, 4 weeks out the doctor sets up an appointment with the patient for heart surgery. The doctor knows that we will need certain tools but it cannot be determined what fittings, sizing, and what exactly will be needed until the day of the surgery. For example, a doctor may cut a patient open and insert a camera to find out what is needed then the doctor asks for the precise surgical tools needed. The hospital has a warehouse of surgical tool sets with an inventory of 1 of each product at all times. What is used from the inventory must be replaced immediately thus those tools are ordered from the vendor.


Also, some surgery cases are unforeseen such as someone breaking their femur. They will most likely live regardless of having surgery but the surgery must be done immediately to correct any complications down the road. It is to prevent 'pain and suffering'.

Sorry I was in a rush, I had to head out of the office before re-reading my post or explaining it thoroughly.

Deefarrd, did the person explain what processes should or do apply to purchasing materials for such emergency surgeries?
There is more to the AFI as to what they have to do.
para 4.10.3 The property custodian will submit an after-the-fact purchase request to medical logistics within one duty day after the emergency purchase. The following certificate will be completed: blablabla.. etc, etc.

They submit a PR to us at contracting then we confirm with the vendor what was delivered and the pricing we received. We then build a contract and add our clauses, etc. The funding is always there, the hospital has a revolving door of funds for this stuff that does not expire with FYs. Our new KO was asking if this would be a ratification but if each one was, we would be doing hundreds a year.

Are you questioning the legality of the Air Force Instruction?
Do you know under what authority it was issued or are you just thinking that it appears to be illegal? Is it possible that the Air Force or DoD has approved some type of class waiver for such situations or that other statutory or regulatory authority might apply?
I won't be able to answer this properly as my experience in this field falls short. I don't believe it is illegal in any nature. I just believe that there wasn't much guidance to it. I always wonder how Department of VA does it since they do a ton of these but we have to follow the DFARS and AFFARS so we can't do it their way.


Is there any documentation required to support the urgency of the acquisition?

The property custodian, NCOIC, Group Administrator has to certify the following statement:
"I certify that the items listed hereon were purchased in accordance with AFI 41-209, Chapter 4, paragraph 4.10. and the undersigned has received the items from (BUSINESS NAME, ADDRESS) at the price listed opposite the items and that an emergency situation precluded the use of normal procedures."

You said that you don't really see any other way and you didn't ask a question. What do you want to know? How is the actual purchasing done in such situations? I doubt that the Commander or doctor personally contacts a vendor and makes the purchase. Do they?

Our new commander personally reviewed some files as the deputy commander rejected a sole source for a surgical tool. We have 2 large businesses that provide the same product but the doctors at the hospital recommend one product over another which seems to be a 50/50. Some doctors were trained with one product and others with the other product and they justify that they must use this product as they are unfamiliar with the other product so it may cause complications. (This is dealing with the heart but they use the same justification for simpler things such as knee surgery, etc). To me, it seems to be a Ford vs Chevy thing. They make the same end product but with little differences yet some people prefer one over the other.