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While one can negotiate anything they want to change a contract there are sometimes concepts that help in the negotiation that is satisfactory to both parties. In your case it would seem that you are concerned about the heavy handedness of the Governments negotiation position. An issue you will have to work through in the negotiations . This said there are some thoughts that jumped into my head that I might use to strengthen my position if I were in your shoes. Contract type - Was the contract awarded as a commercial services contract? If so has the agency considered the limitation on use of CPFF in commercial service contracting? (Ref: FAR 12.207) I mention without knowing the the true intention of the agency but I have got to guess that it is a cost saving matter or a control matter. I do wonder if a commercial services acquisition why they would not possibly look to options such as economic pricee adjustment or time and materials to accomplish whatever they are trying to accomplish. Scope - Some will call me out on this but is the agency changing the scope of the contract? I mention this from the standpoint that if the agency wants to push the heavy hand to the point of using a unliateral modification to make the change. The thought of "scope" might help in your effort to push your point as remember in scope or out the change can be made but mentioning scope might give cause to the agency to think. I did mention that some may call me out for mentioning this angle to negotiations and to this thought on my part here is past WIFCON discussion that I hope you read that will add clarity to the thought of scope. It just seems that based on your quote above the government is doing more than just changing a price structure. https://www.wifcon.com/discussion/index.php?/forums/topic/3866-adding-cost-reimbursement-clins-to-a-52217-9-extension/ Pay particulate attention to the last post in thread by Vern Edwards. All said the one thing that seems clear to me, or at least not offered in your post is the "Why" to the change. I would suggest that if everyone agrees to the "Why" and its benefit to both parties your concerns of BOE and reasonable might just be bridged.

I assume that there is a FFP CLIN for out year four. Question: Is the Government wanting to convert to CPFF because they feel the price is too high (e.g., unreasonable or lack of available funding)?

Don loves asking provocative questions. It's part of his Socratic method. 😁 The stated purposes of SAP in the current FAR 13.002 are as follows: The "procedures" are in FAR Subpart 13.1. FAR 13.106 describes the procedures for "soliciting competition, evaluation of quotations or offers, award and documentation." Read carefully, it does not describe procedures, i.e., step-by-step instructions of how to do something.. That being the case, I don't think allowing the use of SAP for all acquisitions would achieve any of the stated SAP purposes. What is would achieve is governmentwide procedural inconsistency, uncertainty, confusion, and hesitation. Don will undoubtedly say that it would open acquisition up to innovation. As I said: inconsistency, confusion, hesitation, and litigation. If the mass of contracting officers and contract specialists were professionally well-educated and trained, it might be okay. But they aren't. They never have been, really. And they never will be. Because the government won't take measures to ensure that they are. And please, don't mention DAU and FAI.

I assume that "BOE" means basis of estimate. That being the case, I don't understand the question. The government does not "award" a basis of estimate. Do you mean a CPFF estimated cost? Are you asking whether your actual salaries could be one of the bases for negotiation a CPFF estimated cost? If so, the answer is yes. I have no idea whether it is unreasonable. You apparently think it is. How would any of us know?

Well I am confused. Here is why. The SAP is a term of art with regard to the Federal government. So to me the premise of your question as clarified with the "disregard" is confusing. What you are really suggesting in my view is what if there was no such thing as the SAP and as such the FAR. I can see lots of issues that would arise. My simple example imagine sandlot baseball versus major league baseball. Rules matter especially when it is implied that about 267 million people can play the game.

More that I have time to list.

Happy Friday the 13th! We hope your day is off to a lucky start and that everything is running smoothly. As a quick reminder, Valentine’s Day is tomorrow—so if it slipped your mind, there’s still time to grab some chocolate and flowers (and maybe avoid any Friday the 13th surprises!). Valentine’s Day Fun Facts: The Oldest Valentine: The oldest known valentine was a poem written in 1415 by Charles, Duke of Orleans, to his wife while he was imprisoned in the Tower of London. Teachers Get the Most Love: Teachers receive the highest number of Valentine’s Day cards, followed by children, mothers, and wives. Flower Power: Valentine’s Day and Mother’s Day are the busiest holidays for florists, with 189–250 million roses grown for the holiday. Not Just for Humans: About 3% of pet owners give Valentine’s Day gifts to their pets. We hope you get to spend time celebrating with your loved ones this weekend. Enjoy! Now, on to this week in federal government contracting news. Key stories including the cancellation of CIO-SP4 and SBA moving forward with additional 8(a) terminations. Decision to cancel CIO-SP4 had nothing to do with protests Technical debt puts federal cybersecurity at risk. The question now is how to break out of the cycle. DOL Sets New Minimum Wage for Federal Contractors Pentagon poised to curb some defense contractors’ payouts under Trump order Energy Department unveils Genesis Mission Consortium to spur partnerships GSA procurement leader says ‘community readiness’ poses challenge to acquisition overhaul A Strong GAO is Essential to Fiscal Responsibility and the Separation of Powers Government contracting compliance: Key challenges to overcome when pursuing federal contracts Real-time rewrite of federal buying rules is roiling acquisition Senate hearing examines 8(a) contracts critical to Alaska Native corporations At U.S. Senate hearing, tribal leaders speak up to protect a contracting program that benefits Native-owned businesses SBA Moves to Terminate Over 150 8(a) Firms in Washington, D.C. Following Eligibility Review The post SmallGovCon Week in Review: February 9-13, 2026 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Our KO wants to convert before exercising OY4. This is essentially a PMO CLIN. Under FFP we staffed it without concern for govt approval of reasonableness or realism. We used the funds available and created the best PMO and has executed well. Now that the negotiation of the CLIN under CPFF is taking place, we provided actual salaries and they are objecting to the being higher than their salary surveys. We would have to replace the entire staff as we have no plans to cut their salaries. They risk attrition, vacancy, and deteriorating performance. Doesn't our disclosure of the actual salaries constitute a BOE the Govt, can award? Is it unreasonable for the govt. exert such disruption to the Program Management function since they were responsible for wanting the conversion?

As a practitioner, I view federal acquisition as having risk tiers. The Simplified Acquisition Threshold (SAT) serves as the primary—though not sole—demarcation for low-risk acquisitions. Removing this limitation would allow low-risk procedures to be applied to acquisitions that would traditionally be categorized as medium or higher risk due to their dollar value. Scenarios: High $ and Low Risk. Much is gained (speed, simplicity) without much or any downside. Nothing is wrong with this. High $ and Medium+ Risk. If the risks are known and dealt with appropriately - which means doing more scrutiny and risk mitigation that is required by SAP, aka using an appropriate combination of procedures in 13, 14, 15, 35 or 36 - nothing is wrong, I think. High $ and Medium+ Risk. If the risks aren't known and/or aren't dealt with appropriately - bad. What could go wrong depends on the decisions of COs deciding what to do with an acquisition that is high $ and probably needs more scrutiny than doing only what is required under SAP. Are they going to listen to the little angel on their right shoulder and go with #2, or listen to the devil and go with #3? What are their incentives? Also, there are other and better ways than $ and FAR Parts for appropriately identifying and mitigating risk. Finally, I suspect the impact - or what could go wrong - about unlimited SAPs is very different for DoD vs. everyone else. DoD does perhaps twice as many actions >$9 million than all other agencies combined. So for the DoD upside of removing the limitation is probably more than for anyone else (they would take advantage of it far more), and the potential downside might be less since DoD (presumably) has scale-dependent controls and risk-mitigation procedures that civilian agencies just don't have.

I interpret this as a risk that the Government would generally pay more. Why do you think this would necessarily be the case?

Disregard the RFO. Assume the current FAR permitted use of FAR part 13 without a dollar limitation.

I agree that the option must be applied without a change in scope. I think that the option may be used as applicable to extend the contract beyond the five-year limit of FAR 17.204(e). For general background about 52.217-8, see the attached. OPTION TO EXTEND SERVICES A Broad Clause.pdf

Hasn't this been the question raised ever since FAR Part 12 came into being as related to the legal effect of a quotation. Does not the commercial sector operate of sorts in the world of what the Federal government calls simplified procedures for all kinds of things, or stated another way not as formal as prescribed for Federal acquisitions? Conclusion SAP is formal term for how to play the game within Federal acquisition. Yes but is it still SAP when combined? FAR 12.201-2 suggests to me that such a "combination" acquisition becomes other than one completed via SAP.

It would be great simplicity for the clueless who just want an award with the least effort. As for the taxpayers, whose interests may concern how much stuff will cost, will their best interests be served? Of course a great many citizens (and aliens in the country) don’t seem to care that there has been almost $2 trillion dollar annual deficits for some years now.

My understanding of the correct way to use these clauses is this: 52.217-9 is used to exercise options that are already named in the contract, thereby extending the PoP in an expected way. The correct way to interpret 52.217-8 is that it gives the Gov't the ability to extend a service contract for up to 6 months, within the limits and at the rates specified in the contract. "Within the limits" to me means without a change in scope. I believe this is considered a unilateral right of the Gov't (in practice I would exercise an unplanned extension like this as a bilateral mod whenever possible). Does the forum agree this is the correct way to interpret these clauses? I have this question because I have seen these two clauses, and especially -8, used very inconsistently. For example, at my (non-DOD) agency many contracts, particularly for five-year (one-year base and four 1-yr options) include a six-month option for the end of the contract meant to be exercised only if needed to bridge the gap before awarding to re-compete the same requirement. This Option 5 as I understand it is covered/authorized under 52.217-9. FAR 52.217-8 applies in the case that there is no existing option to bridge the gap, or perhaps even if there is a six-month option. On the other hand, I know that FAR 17.204(e) and 22.1002-1 say that service contracts (base+options) should not exceed 5 years. Wouldn't this mean that if you have a five year PoP, then you shouldn't use 52.217-8 at all? And you should not include that six-month option on top of a five year PoP either. Edit - I have also read this thread https://www.wifcon.com/discussion/index.php?/forums/topic/16805-52217-8-is-an-actual-6-month-option-line-really-required-to-be-priced-at-time-of-award/ which helps, but it still leaves me wondering if it's permissible to include the clause and option in addition to a five-year contract. If not, it would be nice to clear that up since there seems to be rampant use of it. And also, if having the clause in there without the option present actually allows for an extension with a J&A, if you are in a pinch and need to extend the services term.

Keep in mind FAR part 13 permits use of any appropriate combination of the procedures in parts 13, 14, 15, 35, or 36.

It’s not that I think it would be a “problem” but it would be interesting to see what achieves better outcomes. Could the AF have bought the B-21 raider using SAP? I suppose they could. Would it achieve a better outcome than how it was purchased? It’s an interesting hypothetical. Could the Navy use SAP to purchase the F/A-XX? How about the FAA’s next generation air traffic system. I think it all comes back to the requirements, how they are defined, and what risks the govt is willing to accept with regard to unsuccessful outcomes.

What would be an example of there being a problem with the authority to use SAP for something exceeding the existing dollar limitations?

Not referring to the RFO. Assume there would be no dollar limitation for using SAP--commercial or not.

I assume you are talking about under RFO, so it would be eliminate parts 14 and 15 and just use 13 for all non-commercial supplies and services ? Or are you talking about removing the $9M threshold at 12.201 and just have those procedures and still have the same parts 13,14, and 15? I think the “what could the problem be” will be dependent upon what we are buying.

It is not uncommon for a disappointed bidder to consider filing a protest only after the agency has issued the award. While this is understandable, sometimes the basis for protesting stems from a misunderstanding of the solicitation’s terms, or that the terms felt unreasonably restrictive. However, unfortunately for the eager protester, it is by that point generally too late to challenge the terms of the solicitation. In a previous blog, Why File: A GAO Pre-Award Protest, we provided an overview of different reasons to file a pre-award protest. As noted there, the most common basis for a pre-award protest is a challenge to the solicitation terms. If a solicitation’s terms are unclear or inconsistent, offerors may submit proposals that fail to meet the agency’s expectations. But once the deadline for proposals has passed, it is too late for a disappointed bidder to argue that the solicitation was unclear (with the exception for latent ambiguities). GAO’s timeliness rules require that apparent defects in a solicitation be challenged before proposals are due, as reiterated in our previous blog, Timing is Everything: GAO Dismisses Post-Bid Protest of Solicitation Terms as Untimely. Thus, the ability to identify when challenging the solicitation terms is warranted can be helpful for any offeror. The Common Grounds for Challenging Solicitation Terms Ambiguous or Inconsistent Terms A common reason to challenge the terms is where they are ambiguous. An ambiguity exists where a solicitation on its face can reasonably be interpreted in more than one way. By including terms that could be reasonably interpreted differently than the agency intended, offerors may be misled in preparing their proposals. Further, inconsistencies in the terms could affect the overall fairness of the procurement process. For example, in Selex ES, Inc., B-420799, GAO sustained a pre-award protest where the solicitation seemed to require certain verifications at the time of proposal submission, while another section indicated those same verifications would only be required after award during contract performance. An inconsistency like the one here could play a significant role in a bidder’s ability to satisfy the terms of the solicitation. Similarly, GAO has addressed solicitations that included language supporting a lowest-price technical acceptable (LPTA) evaluation, while also suggesting it was a best-value tradeoff evaluation. But, what about situations where the ambiguity only reveals itself after awards are made? Such latent ambiguities (as GAO describes them) arise where the terms are ambiguous, but it is not reasonable for the protester to realize such until after the fact. This is opposed to a patent ambiguity where the protester knows or should have known the terms are ambiguous and thus inquired on the same. In the case of latent ambiguities, a protest after award is viable, as seen in Coastal International Security, Inc., B-411756, B-411756.2, but whether such terms are latently or patently ambiguous is very fact-dependent. Unduly Restrictive Terms A solicitation may also be challenged if its requirements are unduly restrictive of competition. While agencies are permitted to draft requirements that reflect the needs for the procurement, agencies cannot impose unreasonable requirements that would unnecessarily limit competition. For instance, in a prior decision discussed here, GAO considered a solicitation requiring small business joint ventures to obtain a facility security clearance in the name of the joint venture entity itself. Even if the individual members of the joint venture already had the facility security clearance, the agency noted this was insufficient. The joint venture itself was required to obtain clearance. GAO found this requirement unduly restrictive for joint venture offerors to obtain when the members themselves held the required security clearance, as the restriction did not benefit the competition or government in any way. It should be noted that the agency only needs to show it has a legitimate reason for such restrictive terms for it to succeed. The mere fact that a requirement is too restrictive does not mean that it is unduly restrictive. For example, an agency may say that it will only accept products with certain specifications if it can show such specifications are reasonable for its aims. Such a requirement would likely not be found unduly restrictive. Additionally, if a solicitation imposes requirements that are inconsistent with industry norms, offerors may have grounds to challenge these terms as unduly restrictive if the agency lacks reasonable justification for the restrictive terms. What is Required to Challenge Solicitation Terms Before challenging the solicitation terms in a pre-award protest, there are two requirements the potential protester must satisfy: Interested party status and timeliness. Interested Party A prospective bidder is an interested party if the bidder has expressed interest in competing and has a direct economic interest. Typically, the prospective or actual bidder must be eligible for award. GAO has held that “a protester is not an interested party to challenge the terms of a solicitation, even if the protest is sustained, if it is clear that the protester will be ineligible for award under the remaining terms of the solicitation.” DGCI Corp., B-418494 (Comp. Gen. Apr. 27, 2020). Timeliness When the protest is based upon “alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals,” the protest must be filed “prior to bid opening or the time set for receipt of initial proposal.” 4 C.F.R. § 21.2(a)(1). If the term on its face is ambiguous, a protester cannot wait until after award to raise the issue. Challenging ambiguous or unduly restrictive terms can be an effective tool for prospective bidders. But knowing what to look for in the solicitation before it’s too late is the key to successfully challenging the solicitation terms. Questions about this post? Email us. Needing legal assistance? Give us a call at 785-200-8919. Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Why File: A Refresher on Challenging Solicitation Terms in a Pre-Award Protest first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

What would be wrong with permitting the use of SAP without a dollar limitation?

@cdhames Have you read RFO 12.102(b)?

Great find Carl. So the answer is pretty sample.

I simply asked AI. No doubt the response changes based on the form of the question but this seemed to make sense to me. Noting that the RFO seems to make the same differentiation. "The primary difference between 41 U.S.C. § 1901 and 41 U.S.C. § 3305 lies in their scope of application regarding contract value and the types of products being acquired: 41 U.S.C. § 1901 (Simplified Acquisition Procedures): This section authorizes the use of simplified procedures specifically for the acquisition of commercial products and commercial services. It provides a higher dollar threshold—historically up to $7 million (or $13 million for certain acquisitions)—allowing agencies to use streamlined methods for high-value commercial items that would otherwise require more complex formal procedures. 41 U.S.C. § 3305 (Simplified Procedures for Small Purchases): This section serves as the general authority for simplified procedures for all types of purchases (not just commercial) but is strictly limited to amounts not greater than the Simplified Acquisition Threshold (SAT)."