1 hour ago, Retreadfed said:

I have looked at that Code section and can find nothing in it that relates to using cost reimbursement contracts to acquire commercial products/services.

I don't think it has to have that exact language. Maritime could argue that per 113 (a), it is not subject to FAR cost reimbursement bar in this situation (if there is such a bar), because it is inconsistent with Maritime 113 (e)(15) purposes of its program and the effective, efficient conduct of its activities to administer this program.  

20 hours ago, C Culham said:

You then provide a hard "No" to your own question.   As a hard and fast rule under the contract represented how so? 

It wasn’t a “hard No”. If a FFP or task order has already been priced and awarded and the prime awards a  cost reimbursement subcontract that doesn’t affect the price the government pays, then it might be okay for the government. Maybe not so for the prime.

The reason I say that is I’ve dealt with a VERY large, Union prime contractor that couldn’t find a FFP electrical subcontractor for a huge, complex FFP construction project.

So they entered into a cost reimbursement arrangement with a Hanford, Washington area firm with the Hanford Union workforce, hoping to closely manage the CP effort.

The result was a disaster for the prime. The electrical labor inefficiency (65+% overrun) affected the other craft labor trade productivity and the project schedule.

 

17 hours ago, Neil Roberts said:

Joel, would this be applicable?

201.104 Applicability.
(a) Applicable statutes, the FAR, 48 CFR chapter 1, and the TAR, in this chapter, apply to all
acquisitions within the Department unless otherwise specifically excluded by statute, the FAR, or the
TAR.
(b) The following order of precedence applies to resolve any question of applicability concerning an
acquisition regulation or a procedure found within the TAR, or the TAM which comprises the
Department's internal operating procedures and guidance—
(1) U.S. Statutes;
(2) The FAR;
(3) The TAR;
(4) DOT Orders; and
(5) The TAM.
(c) The Maritime Administration may depart from the requirements of the FAR and TAR as
authorized by 40 U.S.C. 113(e)(15), but shall adhere to those regulations to the maximum extent
practicable. Deviations from the FAR or TAR requirements shall be documented according to
Maritime Administration procedures or in each contract file, as appropriate.

The TAR is a supplement to the FAR.
https://www.acquisition.gov/tar/part-1201—federal-acquisition-regulations-system#Subpart_1201_1_T48_5053521

I don’t know if the Title 41 USC prohibition Is an “applicable statute” to MARAD acquisition of commercial products and services. If it is, then MARAD departure from FAR/TAR described in (c) above doesn’t authorize departures from applicable Statutes.

I found no exception in TAR Part 1212 or other TAR parts.

Again, It’s not a commercial item or commercial services contract under Parts 12 or 13.

It has been described as a Part 15 trade off acquisition for acquiring and refurbishing and/or modifying vessels. I can’t review the solicitation in SAM. 

11 hours ago, C Culham said:

As it goes I am resigned to think that the government was challenged and created a procurement the best they could and the OP in winning the contract now better understands the challenge and anomalies and together with the government do the best they both can with the contract vehicle in hand. 

@ Everyone

I have not read all of the recent posts in this thread. (I am in France and not inclined to think about government contracts.) But it seems that the recent focus has been on whether the contract is for a commercial product or services. Frankly, that is irrelevant, though not inconsequential, and not particularly interesting. If an issue comes up that becomes a dispute lawyers will resolve it by focusing on the text of the contract, not on the labels attributed to it by the parties. The contract says what is says.

It seems to me that all but one of you have largely failed to grasp the real lesson to be learned. The only one who seems to have grasped it (remember, I have admitted that I have not read all the posts) is Carl Culham:

11 hours ago, C Culham said:

As it goes I am resigned to think that the government was challenged and created a procurement the best they could and the OP in winning the contract now better understands the challenge and anomalies and together with the government do the best they both can with the contract vehicle in hand. 

Now, take a look at the RFP. The "Final" version was issued on February 21, 2020, and stated that proposals were due on March 20, 2020. I may have missed something, or misread it (remember, I'm in France) but the agency appears to have given offerors less than 30 days to read the 145-page RFP, including all of its attachments, and prepare a proposal. That is revelatory.

What sensible business persons would undertake such an unusual, important and, apparently, complex competitive acquisition in that way, strictly in writing, allowing insufficient time to read, think, propose, discuss, revise, discuss some more, and only THEN sign on the bottom line?

Who does that?

Competitive negotiation under the Federal Acquisition Regulation is, all too often, a clown show, with many missions and millions of dollars at stake, conducted by and participated in by people𑁋many with graduate "business" degrees𑁋who seem to have little understanding of the absurd rules and "case law" under which they must do business and of the right way to do that business under the circumstances.

The real lesson to be learned from this thread is that (1) our ambitious Federal executive branch is often incompetent, regardless of the politics of those historically and currently in charge, and that (2) we must urgently think about ways to fix it before it "fixes" all of us.

AND I AM NOT REFERRING TO THE CURRENTLY ONGOING, NEVER-ENDING PRESIDENTIAL CAMPAIGN. The problem of government incompetence transcends parties and candidates. And, as professionals, that is what should concern us.

And, as for contractors, if you decide to participate in an incompetently conducted clown show of a competition, be prepared to live with what you win.

What if anything can be done to fix this? What if anything can WE do to fix it?

16 hours ago, joel hoffman said:

Again, It’s not a commercial item or commercial services contract under Parts 12 or 13.

Is it a valid contract if it was awarded contrary to statute?

Who knows? Depends on the statute, the argument, and the facts. Speculation is pointless.