joel hoffman

My point was that there is evidently a problem within the wording of 15.503 ((1) that seems to be the root cause of confusion within at least two WIFCON threads as well as Don's DAU class and even with Don. It has resulted in numerous hours of people's time to discuss in these WIFCON threads. Apparently at least one contracting official uses an incorrect notification procedure as a result. Does this represent a sampling of a bigger universe of misunderstanding? Or is it a dead horse issue, "solved" in WIFCON? I don't know. I doubt it but if Amy Williams or anyone else on the FAR committees reads this thread (ha ha, RIGHT!), please include an editorial correction to 15.503 ( (1) by removing the "or" and reword to indicate that a post award notice goes to those unsuccessful offerors in the competitive range and to any other offeror who wasn't given all required pre-award notices under 15.503 (a). The use of "or" here is ambiguous. It can indicate mutually exclusive choices. If one was thinking along the lines of programming logic (from my 40 and 30 year old programming memory), similar logic is something like "IF 'A' OR 'B' is present, then DO 'C'." It is improper logic to say "DO 'A' to 'B' OR to 'C'.", if you want the action to apply to both B and C. Pie in the sky request, I know. But it could be easily included in a FAR case for editorial corrections and clarifications. Have a good day!

How about that "or" in the middle of 15.503 ( (1)? I think it is probably the source of most of the confusion. There ought to be a clearer way to tell KO's to send the post award notice to those unsuccessful offerors in the competitive range as well as any other offeror who wasn't provided any required pre-award notice under 15.503 (a).

Vern, to clarify, I never said that 15.503( "says" anything. I was responding to Don's original scenario, which I thought was some sort of test. Under Don's scenario, 15.503 (a)(1) wasn't applicable because the firm he was asking about was still in the competitive range. I told him that was my assumption in my first response and he did not say otherwise in his next response. I then explained what 15.503 ( (using the same wrong paragraph designation that Don had supplied in his original post before he edited it in response to your post) "required" with respect to his (assumed) scenario, without going into every possible combination of circumstances. He was still referring to a single firm that was properly notified of who the apparent successful offeror was and he said that the firm wasn't entitled to a post-award notification because of that. I thought Don was trying to make a point concerning the "OR" choice in 15.503 ((1) that might be read as requiring a post award notice be sent only to a unsuccessful offeror in the competitive range OR to a firm that wasn't given a pre-award notice but not both types of offerors. However, yes -yes-yes, I should have been clearer in my response that I was limiting my interpretation of the "requirement" to that firm's situation and I should have used the correct paragraph numbering. And yes, a notice under 15.503 (a) (1) is definitely also required when applicable. Again - sorry for my sloppiness.

You asked: "2. Does any regulation or policy prohibit leaving funding on a contract that is not (at the instant time) for an actual requirement, but which is left on the contract as a contingency in the event it is necessary?" "3. Is the Contracting Officer free to leave these funds on the contract so that they are available in-the-event the necessary repair category changes? " It is unclear from your post whether or not the contract performance is complete. The scope was repair for four widgets; you have three being repaired, so far. It appears that the contractor has begun performance but there is a possibility that it could find additional level of repairs necessary upon tear down and repair. You said that the contract or order (is this a task order/delivery order or a individual contract?) says: "Upon completion of the contract/order, the ACO is authorized to issue a modification reflecting any downward contract funding adjustment required based on the repair effort that was authorized and performed." if the scope of the contract or order isn't yet complete, I'd say that you don't have to and perhaps shouldn't de-obligate the funds per the above wording in the contract or order. And further performance requirements appear to be a possibility, either for a fourth widget or for additional level of performance required if discovered during performance.

ji20874, I'm not trying to gang up on you. However, I just explained that the FAR at 15.503 (a)(2)(i) does require the KO to provide pre-award notice of the apparently successful offeror under a small business program to "all" offerors. To me, "all" reads pretty clearly as ALL the offerors, including the apparently successful offeror. This is distinguished from the other notification requirements in 15.503, which identify certain offerors.

Vern, I'm not sure if you were referring to my post above. I said that ji20874's practice makes no sense to me. The language of the FAR at 15.503 (a)(2)(i) requires all offerors to be notified pre-award under a small business program. That would exclude anyone from a post-award notification under his "practice".

ji20874, nobody would get a post award notice under a small business program using your stated practice of giving a pre-award notice or a post-award notice "but not both". That doesn't make any sense at all to me. By the way, I think that ALL firms - not just the unsuccessful offerors - must be given a pre-award notice under a small business program at 15.503 (a)(2): "(2) Preaward notices for small business programs. (i) In addition to the notice in paragraph (a)(1) of this section, the contracting officer shall notify each offeror in writing prior to award..." There are several reasons why that I say ALL firms get the (a)(2) pre-award notifces for small business programs. 1) Everyone but the apparently successful offeror would know who that firm is if only the unsuccessful offerors were notified under (a)(2). 2) The language at (a)(2)(i) specifically says "the contracting officer shall notify each offeror..." 3) In distinction, the language at (a)(1) specifically calls out pre-award notification of "offerors promptly in writing when their proposals are excluded from the competitive range or otherwise eliminated from the competition". 4) In distinction, the language at ( specifically calls out post-award "notification to each offeror whose proposal was in the competitive range but was not selected for award (10 U.S.C. 2305((5) and 41 U.S.C. 253b?) or had not been previously notified under paragraph (a) of this section."

Disregard - I pushed the wrong button. Was still typing...

Sorry - I tried last night but couldn't determine the URL for the earlier WIFCON thread on the @$#@%#^& Blackberry. Might have saved a lot of trouble and a couple of hours of my time last night. Inasmuch as it has contributed greatly to my Carpal Tunnel Syndrome, I'm thinking of taking it for a one way sail on Mobile Bay.

I apologize for searching the FAR on a Blackberry and trying to go back and forth between the FORUM and the FAR websites, late at night. It doesn't work. I was responding to your scenario plus I neglected to include any instance where the government failed to notify a firm of its exclusion from the competitive range or that it was otherwise eliminated before award under 15.503 (a)(1). I was trying to say (very awkwardly) that even though a firm in the competitive range received a pre-award notice, it still gets the post award notice and that the post award notice contains different information than the pre-award notice. Vern's post is succinct.

Don, while waiting for Vern's response, he answered the question in this archived thread: Your interpretation is correct, according to the thread. http://www.wifcon.com/discus/messages/8520...html?1204312343

Don, the phrase at 15.503 ( b ) ( 1) requires post notification of 1) those firms in the competitive range (which refers only to those firms), OR 2) notification of those not previously notified under FAR 15.503( a )( 2). I am assuming that this refers to all firms that submitted offers. This in the event that the government didn't notify anyone before award because of an urgent requirement to award without pre-notification. In the 2nd case above, the FAR requires all firms to be notified before award. However, there is an exception at 15.503 (a )( 2) (iii) to the pre-award notification requirement that allows government not to notify anybody: "The notice is not required when the contracting officer determines in writing that the urgency of the requirement necessitates award without delay or when the contract is entered into under the 8(a) program (see?19.805-2)." I don't believe that there is any prescription for only notifying certain firms and not others before award. I suppose that it would be possible but I don't envision such a scenario, with today's communications technology. So one will likely either notify everyone who submitted offers or no one. To state it another way, I believe that the post award notice is for the firms remaining in the competitive range UNLESS the government didn't notify anyone before award under the small business programs. In that case, everyone gets the more detailed post award notice. In addition, the post award notice contains different information than the pre-award notice. It is intended for the firms that were still in the competitive range. But if nobody was notified before award, the government then has to notify all those firms- not just those still in the competitive range- after the contract award with the full complement of information included in that notice.

Yes. The pre-award notice allows other firms who submitted offerors an opportunity to challenge or raise an objection to the status of the apparent successful offeror, if warranted. The post award notice and associated information is intended for those firms in the competitive range, which is who I think you asked about. Plus any firms that normally should or would have been but were not previously notified prior to award would also be included in the post award notice. I guess an example is where exigency precludes the pre-award notice. There was a discussion thread related to this question several years ago on this forum. Unless something has changed, I believe that was the gist of the discussion.

One of several problems associated with using the passive voice is ambiguity.

It appears that the requirement has changed from GF equipment and materials to Contractor furnished. It appears that negotiations have occurred for the new contract or at least discussions concerning scope of who provides the equipment. It appears that the contractor cannot afford to purchase the materials and equipment up front, to amortize over some period. The government agency apparently cannot afford to directly pay for or to reimburse the contractor up front, either and would require the contractor to spread the costs over the contract or some other means. We don't know what communications have occurred between the parties or if the Committee has been made aware of the change in requirements/circumstances.

I agree with post #4 concerning clarity of the question. EDIT: For instance, is pabner asking about actually obligating the funding or obligating the funding for execution of something beyond the CR period?

One must read the language of the Continuing Appropriations Act for FY 2012. I found the language of H.R.2608, enrolled bill. The text of the bill sent to the White House in Section 106 says: "Sec. 106. Unless otherwise provided for in this Act or in the applicable appropriations Act for fiscal year 2012, appropriations and funds made available and authority granted pursuant to this Act shall be available until whichever of the following first occurs: (1) the enactment into law of an appropriation for any project or activity provided for in this Act; (2) the enactment into law of the applicable appropriations Act for fiscal year 2012 without any provision for such project or activity; or (3) November 18, 2011. " See also any other restrictions. http://thomas.loc.gov/cgi-bin/query/D?c112...p/~c112Aap9oy:: It became Public Law No: 112-36 on October 5th but I haven't been able to find (I'm not good at it) the official text of the actual law.

Deleted.

I will email the information I learned to Farat Fasat.

Checking, however I recommend checking with one of the Regional PARC offices if you can contact them.

There are joint venture agreements to pursue contracts. A joint venture as a contractor entity is generally on a contract to contract basis.

I agree that it is informative. Regardless of what the JV says it is "going to do", I believe that a JV agreement is generally valid for one contract at a time. So many practices are not the recurring, standard, consistent, customary practice - set in stone, take it or leave it. Thus, it is possible that "how the JV operates" in charging the customer for materials purchased from its members should be at least negotiable, if they don't seem to be reasonable. I'm assuming in the case here that these aren't materials that the member firm normally produce or sell commercially. I know there are exceptions for that. For instance, many of the big construction companies have learned the trick of renting equipment from their equipment rental subsidiaries or affiliates, who also rent commercially, at the commercial rates, so they or their parent organization can legally collect twice, so to speak. Of course, if it identified the intended practice in its proposal, as Here mentioned, then the government had the opportunity to negotiate or challenge the practice.

Here, I agree that we don't know if either cost principle applies to the situation. We also don't know why or if it is necessary for one of the firms to purchase materials for this contract outside of the JV's role as the prime contractor.

I've found a general reluctance on the part of many government personnel to bargain for better pricing during source selection discussions. Even in this forum, there seems to be some trepidation throughout many threads. If the current solicitation is based upon award to the lowest priced, technically acceptable offer, then one would think that price is important enough to try to persuade a firm that its price is unreasonably high and to understand the implications of a price that one thinks is uncomfortably low. I've been involved with enough instances where extremely low prices resulted in poor performance, poor cooperation, lack of performance and default. Dealing with all that is a major pain in the Gazoo and requires a lot of extra time and resources. It's better to find out as much as possible before accepting a high risk, low offer and to take advantage of the discussions process the extent possible.

Shultzm, I noted that you aren't the original poster here. Are you still concerned about the situation in the other thread where one of the JV members is selling materials to the joint venture that it is part of, then the JV marks it up again? I'm not at my computer but FAR 31.2 contains a general principle that there is no presumption of reasonableness and the contractor must justify reasonableness. Why can't the JV buy the materials directly - why does one of the members have to individually purchase them, mark them up and sell to the JV, of which it is a member? Why is that reasonable? There might be a valid reason, I don't know. EDIT: See FAR 31.201-3 for general discussion of determining reasonableness.