Cajuncharlie

Should a contractor competing with fellow MATOC or IDIQ awardees have less right or ability to protest than the contractor would have under full and open?

If we assume that hourly consulting services NTE xx hours means a labor hour type contract, i.e. payment by the hour for consulting with/for a government employee who is the manager of a project, and that government employee leaves the government (for whatever reason), one would think that the requirement for somebody to provide consulting services to that person might no longer exist. To look at it another way... The project manager was not replaced. Did the project that she/he was managing continue? If so, under whose management? And did that successor management person need a consultant? Would there be an obligation on the part of the government to continue ordering consulting services after the project manager left? Not likely, but it depends on what the contract says, and depends on the paperwork exchanged by the parties. Was there a Stop Work Order? Suspension of Work? Termination for Convenience? Contracts sometimes contain such clauses even when the FAR does not prescribe them, but if they are in there and the parties agree to them, they apply. To me, the whole thing points to no further government need for the service, no recourse, but it is necessary to carefully examine the contract and the written record. Of course there would be no way to collect for hours not worked. Edited to add: This was posted before Jose's clarification, so it does not reflect a contract type of FFP with a CLIN for NTE hours, whatever that is, and does not reflect the previous information in the old wifcon thread. My answer, however, would not change much, and would still stress the importance of RTFC. (Read The Full Contract)

The correct answer would depend on a lot of facts that have not been provided, primarily what's in the FSS and any paperwork exchanged between VA and vendor. That may be why the forum gurus have weighed in on other topics since this question was posted, but not yet on this one. But I will stick my neck out and say the right answer to me would seem to be of course the vendor should notify the contracting officer of a government-authorized price change between selection and award. There may be a risk of losing the order, but keeping silent and getting the order on a foundation of withholding information would not set well and may spoil the relationship with the customer once the whole story comes out.

Years ago I learned to write contracts with "estimated" on CLINs rather than NTE, and leave the NTE for the bottom line, so that the contract specifically allows cross-CLIN funding without further administrative effort, which can be pointed out to the paying and auditing folks. Of course, this assumes no "color of money" problems, and always included documentation up front of the rationale for the decision.

Let's not forget the definition of "United States" in FAR 2.101, to connect the last dot to the $1M SAT. Looks like Steve won the luggage!

Not aware of any such prohibition, and such an arrangement would likely be preferred by the government rather than prohibited. Subcontracting is generally not subject to FAR but to the prime's policies, procedures, and practices ("contractor purchasing system"), which may or may not have Government approval, and to applicable clauses in the prime contract. Although not strictly subject to the entire FAR, most primes use FAR principles, including those governing (sub)contract type. A clearly defined scope and set of deliverables would point towards a fixed price subcontract, regardless of prime contract type. The simplified acquisition threshold doesn't mean much in subcontracting unless the prime's purchasing system parallels the FAR in this area, although the monetary amount might make a difference, depending on how one of the blanks is completed in the "Subcontracts" contract clause in the prime contract. The prime would not be asking for "approval from the government under FAR 44.201-2," first, because that is not a clause and would not be in the prime contract, and second, "approval" is such an inaccurate word in this context that it often provokes a negative reaction from government folks. Only the government is bound by 44.201. The prime and the government both would be bound by a contract clause that implements 44.201. Rather than "approval" the prime would more likely be asking for "consent to subcontract" under the contract clause at FAR 52.244-2, depending on how the blanks in the clause are filled in (among other assumptions). In my 37 years' experience, the government not only allows but prefers its cost reimbursement primes to subcontract on a fixed price basis when practical, as this reduces risk to the program for the portion of performance subcontracted on a fixed price basis. Others may give a more academically researched answer and may disagree, but based on my experience which is mainly in the trenches, this is my $0.02 worth.

Exercise FAR 52.244-2 and see how well it works. The result may be only a bit of creative writing down in the lower tiers, but it seems a likely tool, coupled with audit and/or requirements for detailed supporting documents with invoices. The real issue, however, is not a contracting or subcontracting problem; it's a program problem. Edited to add: This is based on experience in Iraq with a contractor providing security services and construction camp support to government and contractor customers.

Vern's post on the clause is spot on. In the absence of a clause, in addition to common sense, does your company have written policies and procedures on the subject? If so, those would be what you are audited to.

Examples? Without getting too specific about contractor name, could you let us know the monetary ranges of such contracts and the awarding agency(ies)? Always willing to learn. Stepping back from these specifics, I believe Joe's question has been answered.

GSA is also non-profit. GSA rates have already been determined F&R. Offering a discount off GSA rates to another non-profit would not be necessary to get to F&R pricing, and while it may not be a violation of GSA contract terms, would likely make life more difficult in the next price negotiation with GSA.

On a practical basis, without an approved purchasing system, a contractor's chances of a cost reimbursable award are slim to none - and Slim left town last week. The other was a poorly phrased contrast between an Purchasing System Review and a Cost Incurred Audit.

For the prime to win a series of cost-reimbursable contracts to furnish the item, the prime would need an Approved Purchasing System. The extent of the prime's cost or price analysis requirements in subcontracting would be spelled out in its Approved Purchasing System. The purchasing system (and indeed in general all the costs incurred on the reimbursable prime contract) would be subject to audit. If the Government really wanted to exert more control over the subcontracting aspects of this situation, the Government could exercise (after adding or modifying, as may be needed) FAR 52.244-2, Subcontracts, with particular attention to paragraph ( d ) and possibly also ( j ).

It was something of a surprise that the GAO went beyond the instant case, in which all that was needed was to say the protest was timely filed under the old rule, and provided a deeper analysis with broader applicability, very useful guidance which should be applauded. At the risk of oversimplifying, all the changes to CICA from FASA and the 2008 NDAA restrictions rode off into the sunset, leaving CICA still in place, along with GAO jurisdiction, so "the plain meaning of 41 U.S.C. sect. 253j(e)(3) eliminates any bar to our jurisdiction to hear and issue decisions concerning bid protests arising from task or delivery orders of any value." Why should a holder of a MATOC IDIQ contract not have the right to protest an award the same way as a full and open award?

FAR 15.405( b ) as noted in Post #7 above. Can the "new players" who want to throw out proposals based on line item pricing without looking at the bottom line reconcile their proposed approach to the requirements of FAR 15.405( b )? If their argument is the solicitation does not talk about overall price evaluation, only line item price evaluation, therefore they can't do overall price evaluation, they are out of compliance with this portion of the FAR, which applies to all solicitations, regardless of whether expressly stated in the solicitation. Offerors are presumed to know the basic ground rules, as are the Government folks.

It was not necessary, imho, to again raise the specter of unbalanced pricing, which had already been mentioned. I was good to see that your post ended with the same point I was making. As the Moody Blues said, it's A Question of Balance.

My take is that the crux of the question is the different new approach of putting more emphasis on line item price evaluation versus more emphasis on the bottom line. I see a danger in getting so far down in the weeds as to lose sight of the main objective. The main objective, FAR 15.405( b ) tells us, is, "The contracting officer's primary concern is the overall price the Government will actually pay." That paragraph ends with, "...the contracting officer should not become preoccupied with any single element and should balance the contract type, cost, and profit or fee negotiation to achieve a total result -- a price that is fair and reasonable to both the Government and the contractor." This sounds like it's all about people who can't see the forest for the trees.

My experience is old, never having worked for the Government while employed by an agency, and having left the Government in 1978, but I worked mainly in the Middle East in contracting from 1980-2005. My employment was with contractors.

Interesting question. My old answer would have been the parts of the FAR that are within the funky four corners of the contract we signed. Now, those four corners have roped in not only the whole FAR but also the DFARS. Contractor purchasing systems used to have to follow FAR principles with wide latitude to use commercial best practices. Now they must "comply" with the FAR and DFARS, a much higher standard. May as well throw out all the old policies, procedures, and practices (except for a few such as Disputes, Prompt Payment, etc that cannot flow down as is, and must be adapted) and just use the FAR and DFARS for everything else. No longer can a contractor limit a bidders list to enough proven performers to maximize the likelihood of adequate price competition. Now it appears that a contractor must comply with those portions of the FAR and DFARS that implement CICA. Our company's procedures require a justification for non-competitive procurement. Now it looks like we will need a justification for anything other than full and open. Does FAR/DFARS compliance include posting subcontract requirements on FedBizOpps? Or some similar contractor web page? How far does this compliance requirement go? Every last detail? Literal compliance with every piece of FAR and DFARS will be a practical impossibility for contractors. It's times like this when I'm glad I work the prime contract side of the contractor house, and not the subcontract and procurement side.

I would have asked the question during the solicitation phase. I've done it before for clauses that should not be in an RFP, and succeeded and fishing out an amendment that deletes the offending clause.

One simple answer is, as you have done, RTFC (read the f-f-full contract). If a clause is in the contract, the parties have agreed to be bound by it, regardless of whether it might not have been prescribed, in my experience. Others may have different or better experience, but I am a four corners of the contract kind of person. A practical answer might be to simply check the VETS-100 website and print a page for the file, but last I looked, their website was down for maintenance, and the only way to check was call or email, if memory serves. That is contrary to, and goes back to, a very old and basic principle: If there is an administrative burden around, flow it down to your contractor (or sub, as applicable). But sometimes you do what you have to do to fill all the squares so you have a complete and pretty file.

Suggest turning this around and using the carrot instead of the stick, by putting a small incentive on each milestone. A milestone should be a complete and usable segment of work, inspected for compliance, quality, and timeliness, each of which carries brownie points.

My hazy recollection dredged up "Accounting Classification Reference Number" from the same rusty bin as "Paying and Disbursing Station Number" but drew a blank on CASE.

In DOD the 5% comes from the Office of Small Business Programs, not from the budget used for the contract. Again: Is the contract you asked about a DOD contract? Does it contain the DFARS clause?

The main reason I said the clause "cannot be flowed down" is that's what was on one of our company's internal PowerPoint training slide decks. It would have been more precise to say that a prime cannot flow down the prime's eligibility for the 5% incentive payment under the FAR clause.

FAR 52.226-1 cannot be flowed down; however, DFARS 252.226-7001 must be flowed down to subcontracts over $500K at any tier, and subs are eligible. Is it a DOD prime contract? Does your subcontract have the DFARS clause?