joel hoffman

Ahh. I didn’t answer your specific questions. I dont know. I do know that my KO’s would occasionally settle for somewhat more than our bargaining position in some cases in order to close the matter rather than have to significantly extend the life and cost of our offices in Saudi Arabia to litigate. We could have possibly ended up paying much more in settlement cost, plus interest. This was at the end of the USACE Saudi Arabia Assistance Program back in 1987 Our cost to the Saudi Government was more than ten million dollars per month to maintain the remaining USACE staff and our offices and support contracts. The Saudis paid all costs for the Assistance Program, including the Corps of Engineers’ direct and indirect costs.

If the government thinks that its case for no ambiguity is weak, I’d say it is appropriate to settle the dispute. The KO has the authority to settle the dispute.

Pretty much. Thanks! appears that the KO hasn’t made a convincing case to its lawyer.

Before answering the first question, on what basis for this (hypothetical?) situation does the KO “think” this? And has the the KO determined that the impact is $40,000, as claimed?

I agree with Carl Culham. i found some sites that discuss the situations you described. If you are wondering about Federal versus State coverage of labor laws, note that there are exceptions to Federal Supremacy issues, in particular for Labor laws. For instance, see https://uniontrack.com/blog/federal-and-state-labor-laws#:~:text=Article 6 of the U.S.,explains Andrew Latham at Chron. California is one prominent example. However, I would advise you to contact the state labor agency or an attorney.

Then it’s important to mutually agree to an “effective date” for the new task order… From the latest explanation by the OP, they apparently want the contractor to do predatory planning before the start of the level of effort work.

And who the heck is going to protest an acquisition they didn’t participate in because why? The government decided to make an earlier award but the performance time doesn’t change? Gimme a break already.

As previously mentioned, I’d discuss it.

And the solicitation should be amended if necessary after such discussions, before award to reflect any change in price and to indicate any delay between award and start of performance.

If the government wants to “award early” and delay start of performance, which wasn’t indicated in the solicitation, it can discuss this and any implications with the sole offeror prior to award. This would be consistent with the DoD procedures for when only one offer is received. In the revised hypothetical scenario, there would be a two month delay within the same fiscal year. The OP apparently revised the scenario in the original opening post to simplify and respond to the questions over crossing fiscal years, which was described in the original scenario. Yes, the OP should consult with their legal representatives and whoever wants to award early, as well as the contractor.

That’s one possibility why one would discuss the idea with the sole offeror!!! One wouldn’t simply unilaterally decide to amend the stated terms to award early without first discussing (negotiation).

Vern, the OP revised the initial post concerning the dates. The original hypothetical dates were in different fiscal years. Under the overall stated circumstances - dealing with a single proposer, under DFARS 215.371-3, not a cardinal change to the solicitation that would affect competition, same funding for the award date and start date, the government could negotiate the change in the award date with the offeror. The government could initially include a similar award date two months earlier earlier than start of performance in the same fiscal year in a solicitation, can’t they? So why can’t they amend the anticipated award date prior to award as long as the sole offeror agrees?

Your “management’s” concern is ridiculous. If there is no regulatory prohibition, no problem with funding, the offeror is the incumbent and DFARs already put you into an effective sole source procedure where you can negotiate/clarify, you can amend the solicitation to specify the the official start date of the period of performance far the record. Get the offeror’s concurrence before awarding… Then everything is clean.

The original post has been clarified that the delay in beginning performance is two months, within the same fiscal year. And the anticipated date for start of performance doesn’t change. There would be no cardinal change by early award with the same period of performance. The incumbent would be well aware of the time to perform the new contract. What’s the problem?? This is apparently DOD (“FMR” referenced), so DFARS 215.371-3 would be applicable when only one proposal is received. Actually, if additional data is necessary to determine reasonableness, the parties could be negotiating anyway and the early award with same start of performance can be clarified… Even if price negotiations aren’t necessary, the government could ask the proposer if there is any problem with early award but I doubt that the incumbent would have any objection.

We (Corps of Engineers) often awarded construction contracts earlier than the allowable start of the construction period of performance, when funding availability wasn’t an issue.

What did GSA say when you asked?

Deleted. My question was clarified below by RJ_Walther.

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I think the question was answered. The clause requires the contractor to repair and maintain the GFP. It’s a sole source contract. The price will be negotiated. The contractor will price this responsibility in its proposal. Nothing in the OP indicated that the contractor wants to know HOW to price the effort. if the gov’t has other plans for maintenance and repairs of some or all, then it should clarify this during the negotiation process and document it in the contract. I just noticed that the question concerns a follow-on contract. The contractor should already have been maintaining the GFP in its possession under the current contract. It should not be including additional costs in the follow-on contract price for currently required maintenance or repairs due to the current condition of the GFP in its possession, if that is part of the original question. The contractor should charge its costs of maintenance and repairs currently required during the current contract to the current contract, not to the follow-on contract . This assumes that the referenced GFP clause is in both the existing and the follow-on contract.

Yes it does provide an answer as to WHO maintains the property- unless, as others have said, the government needs to maintain that responsibility. Of course the government will pay for maintenance one way or the other. FAR 52.245-1(b)(1) “(b) Property management. (1) The Contractor shall have a system of internal controls to manage (control, use, preserve, protect, repair, and maintain) Government property in its possession. The system shall be adequate to satisfy the requirements of this clause. In doing so, the Contractor shall initiate and maintain the processes, systems, procedures, records, and methodologies necessary for effective and efficient control of Government property. The Contractor shall disclose any significant changes to its property management system to the Property Administrator prior to implementation of the changes. The Contractor may employ customary commercial practices, voluntary consensus standards, or industry-leading practices and standards that provide effective and efficient Government property management that are necessary and appropriate for the performance of this contract (except where inconsistent with law or regulation). (2) The Contractor's responsibility extends from the initial acquisition and receipt of property, through stewardship, custody, and use until formally relieved of responsibility by authorized means, including delivery, consumption, expending, sale (as surplus property), or other disposition, or via a completed investigation, evaluation, and final determination for lost property. This requirement applies to all Government property under the Contractor's accountability, stewardship, possession or control, including its vendors or subcontractors(see paragraph (f)(1)(v) of this cluase). (3) The Contractor shall include the requirements of this clause in all subcontracts under which Government property is acquired or furnished for subcontract performance. (4) The Contractor shall establish and maintain procedures necessary to assess its property management system effectiveness and shall perform periodic internal reviews, surveillances, self assessments, or audits. Significant findings or results of such reviews and audits pertaining to Government property shall be made available to the Property Administrator.”

Bob, would you consider invoking rule 17 here, tomorrow morning? It’s been four days since the two respondents asked for clarification and more context to the original post. The Original Poster logged in to visit this thread almost two days ago on Monday afternoon but hasn’t replied to any questions.

I said “if”. More than once… Why is the original poster asking about a need for certified cost or pricing data? What would be the purpose of obtaining cost or pricing data if it was necessary? For this best value competition the prime should have and did already evaluate both non-price and price factors (“categories”). The declared “winner” had the “best scores” in all categories (schedules, past performance and price). The “program” wanted to also award a subcontract to the “non-winner” for a 25% share of purchases. The non-winner’s prices, schedule and past performance werent good enough to “win” the competition but the program wanted to give the firm 25% of the sales. Wouldn’t the program office want to get a better deal than was initially offered - if there were significant differences in non-price and/or price categories? It would be apparent to me that cost or pricing data would supposedly have been used for negotiating prices, if it had been required for that purpose. The prime wouldn’t need cost or pricing data to bargain with the firm or either firm for that matter. By the way, I didn’t mention or hint that the second firm had “performance deficiencies.”

Since the original poster asked about the need for certified cost or pricing data, I suspect that they may have been thinking of negotiating or bargaining for better terms or performance or price for the alternate supplier. At least I hope so.

In this case there is no stated change to the terms of the solicitation. The prime contractor can negotiate or bargain for better price and/or performance with one or both of the proposed subs if that is company practice. If there is adequate price competition or the equipment is determined to be a commercial product it would generally be exempt from the requirements to submit cost or pricing data and to certify it. Beyond that I don’t see any need here for CCOPD. If the government wants to increase its supplier base and if there is a wide variance in prices and/or differences in proposed quality of performance, it would unwise* to simply offer an award without bargaining for improved prices and/or performance *poor business practice - AKA stupid business decision.

Fara, Carl didn’t suggest that…