(a) To the maximum extent consistent with law, and except as provided in subsection (b) of this section, executive branch departments and agencies (agencies) shall, in procurement, utilize fixed-price contracts, which for purposes of this order shall mean fixed-price contracts as defined in Part 16 of the Federal Acquisition Regulation, codified at title 48, Code of Federal Regulations, or contracts that tie profit to performance-based metrics when appropriate.

(b)(i)  Use of any non-fixed-price contract, including a cost-reimbursement contract, a time-and-material contract, a labor-hour contract, or any other non-fixed-price type of contract under Part 16 of the Federal Acquisition Regulation, must be justified in writing by the contracting officer to the agency head. 

(ii)   If the value of a non-fixed-price contract...exceeds [$XMM], then the agency head must approve the contract in writing:

(iii)  Agency heads may delegate approval under subsection (b)(ii) of this section to appropriate non‑career employees within the agency.

(iv)  Subsection (b)(ii) of this section shall not apply to contracts that [support disaster, contingency, R&D, major systems, FAR 34, FAR 35.]

What is the steel man argument here? What is the strongest case for why this EO is a good idea?

Am I not understanding something - does this imply "justified in writing" but not approved under threshold? If so, what does this mean?

Link to RFO Part 2: FAR Overhaul - Part 2 | Acquisition.GOV

Text in question:

(2) Services, including construction, of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions... (blah blah blah).

Setting aside the question of how one might decide which types of projects are commercial and which are not (and I have my ideas about that), it seems there are some fundamental and perhaps irreconcilable differences in standard commercial terms and conditions and federal construction terms and conditions. Changes come immediately to mind. Any thoughts on how the powers that be are going to unscramble this egg, or is this just going to be a regulatory free-for-all while everyone behaves differently?

Now, while I could support a sole source, the lead time for the quantity they are after extends well into the years, instead of months (we also have O&M funds which one could argue lead time exception to the bona fides, but my comptroller thinks a two plus year lead time is not in the spirit of the exception) that the end user would like to have them in. So, I went back to the manufacturer and inquired if they would be willing to allow other sources of supply to make this item in order for the Government to receive a fairly large quantity faster than if we only went to them and if they would provide assistance to them. They agreed.

I have read through the RFO and compared it to the "old FAR." The old FAR has set forth limitations and procedures, which are lacking in the RFO (also note that the RFO DFARS is silent). What are some unforeseen things others have encountered as a result of a LCC? Do you have any lessons learned that you have implemented to help ensure successful performance? For the follower company, are those sources you provided to the leader as suggested sources or since it is in theory a sub-contract did the leader company select?

I appreciate any and all feedback on this.

https://www.regulations.gov/deregulation

The website says, "Possible reasons for rescission include, but are not limited to: (1) the regulation is inconsistent with a statute; (2) the regulation is inconsistent with the Constitution; (3) the regulation’s costs outweigh its benefits; (4) the regulation no longer reflects the current state of technology; or (5) the regulation is bad policy, unreasoned, or unsound. If this is a final rule, you should respond to any relevant and timely comments. If there are other requirements for repealing a rule, please address those here."

Contracting professional: free yourself, via negativa.

1. What can contracting officers do post-RFO that they were prohibited from doing pre-RFO?

2. What are contracting officers not required to do post-RFO that they were required to do pre-RFO?

3. What are contracting officers required to do post-RFO that they were not required to do pre-RFO?

4. What are contracting officers prohibited from doing post-RFO that they were permitted to do pre-RFO?

I'm looking for noteworthy changes. If you can't think of responses for all four, that's fine. I'll take whatever answers you have. Please no AI-generated answers.

Can Anthropic refuse? Can the Defense Production Act of 1950 be used to force them to sell their product to DOD for lethal purposes?

Should an American take the position that Anthropic has?

At Acquisition.gov at the tab "Regulations" there are 32 codified supplements to the FAR noted. At the tab "FAR Overhaul" at "Quick Access to Key RFO Resources" the click on for "Parts and Deviations" brings up the list of of overhauled FAR Parts. Each FAR Part listed notes how many deviations have been issued for each Part and the click on for the deviations notes the Federal entity that issued the deviation.

What caught my eye is that the number of deviations issued for each Part varies from 6 to 31. In some cases the deviations issued do not match, so to speak, with the Federal entities that are listed as the 32 that have codified the FAR. And most intriguing is the fact that RFO FAR Part 2 listed in the "Parts and Deviations" shows zero deviations have been issued.

From my view the following quick questions occurred to me -

Are the listed deviations accurate? By example the corollary of deviations for RFO FAR Part 1 to other Part deviations is confusing. Making of road map of the deviations would appear to be quite challenging.

The RFO effort is a simple one? Imagine a contractor thinking about participating in procurements today across several Federal entities some of whom have not deviated, some have deviated but for not all Parts.

RFO FAR Part 15 has only 8 deviations issued? Makes one wonder if the concerns that have been expressed in various thread discussions in WIFCON Forum have caught the eye of some Federal entities?

The Millennium Challenge Corporation? An entity that became a rabbit hole for me. Interesting!

Happy Thanksgiving to All!

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.

Google seems to think 3305 is applicable only to micro purchases but when reading the text they both reference SAT.

1901 is codified under a Division title called OFPP; while 3305 is codified under a Division title called Procurement.

Thoroughly confused on this.

The initial question was that the RFO FAR 12 rewrite still excepts CICA from SAP explicitly stating FAR 13 is excepted; however under the RFO, FAR 13 is now Non-commercial SAP. RFO Far Part 6 makes no exception to FAR 12 procedures.

One last point -- under the FAR 12 rewrite, SAP is no longer a thing. What has been messaged down in the DOW so far is that commercial SAP has been rolled into Part 12 and yet, there is no mention of SAP in Part 12. It only references "Simplified Procedures" now.

Hence, back to the difference between 1901 and 3305 which seem to differentiate between the two phrases.

Can anyone explain the difference?

I suspect Bob had a heart for these individuals.

Federal Register

Federal Register

Federal Register

For further information, search the RFO or the current FAR, Part 8, for "Procurement List".

Bob must have caught every one of these notices on the Federal Register. He would always put them on the front page.

Question One: You have funds appropriated for three years (3 year money). Can you issue a contract for severable services on the last day of the third year of availability with a period of performance for three years?

Attorneys point me to 41 USC 3902, which, to be frank, limits the period of performance for severable services that cross fiscal years to one year. But I don't think that statute makes a lot of sense where you have multiple year appropriations. Did Congress intend to limit 3 year appropriations in that manner? My reading of B-317636 makes me wonder. If annual appropriations have a one year severable services limit, why wouldn't three year appropriations come with a three year limit? (Again, willing to be wrong here, but I'm struggling with the logic.)

Question Two: Same scenario, but it is an other transaction instead of a procurement contract. Does that change the analysis?

It seems clear to me that 41 USC 3902 wouldn't apply here, but bona fide need would. But what's the bare minimum an agency needs to do to comply with bona fide need? I am not even willing to concede that severability need to be read into other transactions.

We have J&A and impact statement approved. As we finalize the parts list, we discovered the requirement includes 3-year software licenses necessary to operate the hardware. The licenses are a mix of term-based and cloud/SaaS, so these appear to fall under services rather than supplies (per recent legal guidance: perpetual = supply; term/SaaS = service).

Issue: If the hardware delivers ~120 days after award and the software license/support term begins at hardware acceptance, even a 12-month license term would extend the contract beyond 12 months from award, exceeding the FAR 6.302-2 limit unless we obtain HCA approval.

Questions:

1. If the software license is bundled/delivered with the hardware under the same hardware CLIN, can it be treated as a supply, thereby avoiding the 1-year PoP limit?

2. If treated as a service, is there any way to allow a full 12-month license/support period without an HCA exceptional circumstances determination?

3. If not, am I correct that the available compliant paths are:

   • Shorten the license/support PoP so the entire contract ends within 12 months of award,

   • Obtain HCA approval for performance beyond one year, or

   • Separate the software license requirement and award it under a different authority/competitive action later?

Looking for interpretations, experience, or examples from others who have handled similar urgent hardware + software license requirements under 6.302-2.

The A.I. suggested, and I decided, that the RFO initiative needs to balance accountability with agility, and procedural correctness with mission success. I did not let the A.I. base its perspective outside of Wifcon.com. That means, subject to any user error and the limits of the technology I used, 27 years of forum activity is advising this document.

What do you think? Would anyone like to augment, refine, or disagree with these points on this forum? If you agree with any of these points, what is an example of it in the RFO Parts that could lead to actionable public comments on the Federal Register? I view this feedback as merely a conversation starter.

RFO Feedback.pdf

• "the contractor shall" appears 1,250 times;

• "the government shall" appears 165 times;

• "the contracting officer shall" appears 141 times;

• "the contractor may" appears 117 times;

• "the government may" appears 160 times;

• the contracting officer may" appears 213 times;

• "the contractor must" must appears 14 times;

• "the government must" appears 4 times;

• "the contracting officer must" appears 4 times;

• "the contractor should" appears 6 times;

• "the government should" appears 0 times;

• "the contracting officer should" appears 3 times;

• "the contractor will" appears 46 times;

• "the government will" appears 163 times; and

• the contracting officer will" appears 77 times.

Check the FAR definitions of shall, may, must, should, and will.

What if anything does that say about government contracts?

This makes me cringe: "This proposal would increase the Simplified Acquisition Threshold for commercial products and services in phases from $250,000 to $10 million over 5 years..." Source

FAR doesn't increase the SAT, it allows the use of SAP for commercial products and services up to a certain dollar threshold. Seemingly minor distinction, but a meaningful one. I'd expect the people involved in this process to know the difference.

I'd love to hear others' thoughts.

Excerpts
"One of the central proposals by GSA focuses on enhancing Simplified Acquisition Procedures for small-dollar contracts. Under this initiative, the threshold for simplified purchases will gradually increase as follows:

(A) $2,000,000 through Sept. 30, 2027;

(B) $5,000,000 from Oct. 1, 2027 through Sept. 30, 2030; and

(C) $10,000,000 after Sept. 30, 2030."

and
"Also included is a substantial overhaul of the Micro-Purchase Threshold, which will increase from $10,000 to $100,000 over five years. Despite the flexibility this would bring, the Buy American Act will still apply to all micro-purchases above $10,000, preserving domestic preference. GSA anticipates the move could streamline over half a million transactions annually, significantly reducing the workload on contracting officials."

GSA completes the statutory foundation for expanded, consolidated procurement authority

Legislative Proposals | GSA

In my perspective, these do not account as "errors and omissions" so no need to go back to the DOR for any restamping or concurrence. However, the PM is persistent that they do need to go back or it will violate the Colorado state licensure boards for engineers and architects.

I have found nothing that states this and looking for insight to either yes, we do need to go back to the DOR or that is it not required. Hopefully, some insight or technical or FAR reference to this can be provided to point me in either direction.

A missed opportunity to move the government away from prescriptive rules, in my view.

Anybody see things differently?

I have no experience with this, although it appears that agencies have been conducting such competitions for some time.

I'm curious, and have some questions:

1. Must multiple-award Part 13 (not FAR 8.405-3) BPAs be publicly competed, or may agencies privately choose the firms they want to solicit based on market research and buying experience?
2. Are such competitions "contract actions" as defined in FAR 5.001? Must they be synopsized?
3. Is it proper to refer to the firms responding to the solicitations as "offerors"?
4. Is it proper to say that such BPAs are "awarded"?
5. With reference to Question 4--If not, how should COs describe the competition decision if it's not an "award" decision?