joel hoffman

Thanks for the help, Carl! I can go directly to clauses that I'm familiar with at the Hill AFB website on this Blackberry. But I can't navigate through FAR in the "windows" for that site or at the Acqnet website, unless I am on a regular computer. I apologize for my "limitations on research" capabilities. The Notice of Set-aside clause you referenced for Service-disabled Veteran-owned Small Business Set-asides has similar requirements as the Limitation on Subcontracting clause at 52.219-14 that is used in small business and 8(a) set-asides. And I forgot that HUBZone set-asides use a similar Notice of Set-aside clause (52.219-3) as the one used SDVOSB set-asides. Sorry. I have also found that the definitions in the SBA's regulations for self-performed work in Title 13 vary slightly between HUBZone and other types of set-asides, like 8(a). So one should read that coverage, too.

I don't have access to the required clauses for your type set-aside contract, tonight. Is 52.219-14 in the contract? If it is, then the percentage for the applicable type of work apply to the prime.

The clause at 52.236-1 is inapplicable to 8(a) set-aside contracts for construction. This is for unrestricted contracts. The clause that I mentioned specifies the minimum self-performance requirements for 8(a) set-aside contracts. There is fairly clear explanation of this in the SBA Code of Federal Regulations, that will answer your question. The "concern" is considered the "Contractor" and your sub is just that - a subcontractor.

Please advise whether or not this answers your question. If the contract is a set-aside for sole source 8(a), competitive 8(a) or small business, the following clause is required: 52.219-14 -- Limitations on Subcontracting. As prescribed in 19.508(e) or 19.811-3(e), insert the following clause: Limitations on Subcontracting (Dec 1996) (a) This clause does not apply to the unrestricted portion of a partial set-aside. (b ) By submission of an offer and execution of a contract, the Offeror/Contractor agrees that in performance of the contract in the case of a contract for -- (1) Services (except construction). At least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern. (2) Supplies (other than procurement from a nonmanufacturer of such supplies). The concern shall perform work for at least 50 percent of the cost of manufacturing the supplies, not including the cost of materials. (3) General construction. The concern will perform at least 15 percent of the cost of the contract, not including the cost of materials, with its own employees. (4) Construction by special trade contractors. The concern will perform at least 25 percent of the cost of the contract, not including the cost of materials, with its own employees. (End of Clause)

X, I don't believe that the JOC process complies with the Brooks Act requirements for acquiring A-E design services or with FAR 36.104 restrictions/authorizations for acquiring D-B services in lieu of the Brooks Act, but I may be wrong. Please consult an attorney who can research the appropriate authorities for D-B. FAR 36.104 essentially says (in part) that unless the Brooks Act procedures for traditional Design-Bid-Build are used (FAR 36.6), design-build process must use the 2 phase, competitive D-B procedures (FAR 36.3) ** unless some other authority is available. Read another way, it essentially says that the D-B-B process must be used, absent other authority to use D-B in lieu of D-B-B . The "One step Turnkey" competitively awarded D-B process in 10 USC 2862 may also be used, where appropriate, for Military Construction (MILCON and family housing), but not for the Coast Guard or for Civil Works for the Corps*. The Corps and NAVFAC have used the 2 phase process for selecting Multiple Award Design-build ID/IQ base contract holders, who compete for military D-B task orders (Corps calls them "MATOC's" and NAVFAC calls them "MAC's"). Although I don't have immediate access to it, the concept of the Corps using MATOC's for Design-Build was challenged a few years ago in US Court and the Government prevailed. The Corps also used Single award ID./IQ's for awhile but they selected the contractor, using a 2 phase D-B process. A single contractor would then be issued task orders for D-B projects. We aren't currently using that process and I'm personally of the opinion that it isn't authorized, after reading a US Cort of Federal claims case***, where the judge essentially said that the D-B legislation all requires competitive acquisition procedures for design-build. Even though the SATOC or a JOC holder may have been selected on a competitive basis, individual orders are non-competitive. The Corps doesn't allow sole source 8(a) A-E contracts because of the Brooks Act restrictions. I'm also of the opinion that a sole source 8(a) D-B contract isn't allowed for the same reason, plus not being a specifically authorized process, per 36.104. JOC job orders are non, competitive and JOC doesn't use the 2 phase method to select the JOC contractor. However - there may be a possibility that 10 USC could cover O&M funded design-build minor construction. I'd have to do some more reading of the definition of construction for that. However - can job orders be issued non-competitively, even though the contract was competitively awarded? *!0 USC 2801 (d) says that 10 U.S.C. ?? 2801 et seq. (other than sections 2830, 2835, and 2836 of Chapter 169 [10 U.S.C. ?? 2830, 2835, 2836]) does not apply to the Coast Guard or to civil works projects of the Army Corps of Engineers. ** The 2 phase D-B process is authorized by 10 U.S.C. 2305a for Military Construction and Family Housing or 41 U.S.C. 253m for other agencies, including Coast guard and those Civil Works projects by the Corps of Engineers. ***The Court of Federal Claims decision was Fluor Enterprises, Inc., v. the US, No: 00-207 C, March 24, 2005.

I agree to a certain extent. A mod is necessary to adjust the price and add or reduce funding in order to properly make payments but the work hasn't changed. It is a contract management function. Years ago, we sent in reconciliation forms to track variations and to alert the Finance and payment offices that pay quantities were different than the official contract price. Now, it is done by modification, which is better but the administrative mechanisms don't seem to be there yet. We were told to cite the VEQ clause as the authority for the mod to adjust estimated quantities to actuals. However, the VEQ clause is not the contract mechanism that allows us to pay for actual quantities. The contract will include measurement and payment provisions for the purpose, which are self acting. The VEQ clause only addresses the right to a unit-price adjustment under certain circumstances, if the actual quantity of an item falls outside a range of 85-115% of the estimated quantity. The clause also allows a time extension, if warranted, due to the additional work. However, it doesn't mention paying for actual quantities or adjusting the contract price. We certainly wouldn't want to use the changes clause, because routine variations in quantity, absent a change in the work, is not a "Change" or a "Change Order". I feel that either the VEQ clause ought to be broadened to cover the administrative aspect of paying for actual quantities, adjusting funding and quantities, etc. or admin mods should be used. At any rate, a construction contract with estimated quantities of unit-priced items is still called a FFP contract (of sorts) in accordance with FAR 36.207. So you can check the FFP block in your contracting software when using such a contract.

Notwithstanding what Vern said above, see FAR 36.207, Pricing fixed-price construction contracts. Subparagraph (a) says that generally FFP contracts shall be used for construction and says that they may be priced on lump sum basis, unit-price basis or a combination thereof. Because of the DoD contracting software system and reporting requirements, we must adjust the final contract price to reconcile final quantities of unit-price items with the adjusted contract price (100% complete reflects actual quantities). Due to limitations in SPS, we can't use an admin mod to make the total price adjustment, even though the rights of the parties are not affected by the adjustment, because the software won't accept price adjustments using an admin mod, so I've been told. The term FFP refers to the unit priced and lump sum CLINS, not the total contract price.

[Edited on 4/10/2011] 1) What agency is this for? 2) Did the RFP or RFQ mention anything at all about technical approach for Help Desk services or does the contract address data security or integrity? 3) Does the proposal response to the solicitation address what I asked about in number 2, above? 4) Is overseas or non-CONUS operation of an IT help desk acceptable to the agency, if it is likely that govt data might be accessible to the service desk reps? If the reps can get into computers remotely, then they will have access to data. I would think that there would be a concern with security of data or concern about controlling security, using foreign personnel in a remote location. 5) If there is a concern and if the RFP/RFQ didn't address such security concerns, can you amend and then conduct discussions? 6) Can you consider an overseas help desk a security threat and downgrade the proposal or quote without an amendment? 7) You asked: "Does anyone know of any active regulation that would prohibit this?" Your ordering activity IT personnel should be familiar with the information security regulations I'm quite sure that DoD has regulations that address data surety requirements. Our "internal Taliban" (my code name for the IT folks) watches over everything and our yearly training discusses security of IT data.

I believe that there are actually 50 Parts, plus 3 that are "reserved" (20, 21 and 40). Does anyone know why these were reserved or what they were reserved for? Were they originally designated for something that was deleted or reorganized under other Parts?

I'm curious why creyes814 might think that there is a problem with a performance assessment representative providing input to a government estimate. For that matter, we often have A-E firms and contracted professional estimating firms preparing the guts of government estimates for various construction contracts and some specialized services like explosive ordinance disposal.

1. Note: FAR 11.703 © refers to fixed-price construction contracts with variable quantities. Such contracts long pre-date the FAR and the automated contracting software. 2. Retreadfed addressed your question concerning commercial item contracts other than FFP or FFP with price redetermination.

Lean, do you think that FAR 19.800 literally means "all types" of contracts, including those prohibited or excluded by other statutes?

I learn something every day, here.

A fixed rate and fixed price can "be one in the same". Certainly there are contracts with "fixed rates". I would usually refer to those as "unit-priced items", as opposed to "lump sum" priced items. And there is no prohibition in including a not-to-exceed quantity of a unit-priced item. And unit-priced items may be included in or even comprise all the line items in a "fixed-price" contract. FAR 16.2 discusses "fixed-price contracts". Actually, the broad term referring to "fixed-price" doesn't mean that "at the end of a fixed price contract, there should be no remaining funds--no need to descope or deobligate." A fixed-price contract may provide for a firm price or an adjustable price, depending upon the specific type and depending upon how the prices are set up. You might be thinking of the firm-fixed-price type contract discussed in 16.202. The FAR at 16.202-1 says that a FFP "contract provides for a price that is not subject to any adjustment on the basis of the contractor's cost experience in performing the contract." It doesn't say anywhere in FAR Part 16 that the final price must match the original price, absent a modification. Fixed price contracts can include unit-priced items which may vary from the estimated quantity or even an established quantity. See, for example, Subpart 11.7, Variations in Quantity. See 11.701 Supply Contracts. This section discusses where there can be variations in a "fixed-price supply contract" . See 11.703 for clauses for use in fixed-price supply contracts (52.211-16 and -17). I have had a lot of experience using firm-fixed price construction contracts with estimated quantities of unit-priced items. See 11.701 for construction contracts, which says that construction contracts may authorize a variation in estimated quantities of unit-priced items. The mechanism used in the contract that authorizes the variation will be stated in the contract, in a bid or line item schedule or in the statement of work, specifications, measurement and payment provisions, etc. See 11.703 ?, where it says to use the Variation in Estimated Quantity (VEQ) clause at 52.211-18 when a "fixed-price construction contract is contemplated that authorizes a variation in the estimated quantity of unit-priced items". This clause is NOT the mechanism used to authorize a variation in the estimated quantity. The VEQ clause only provides a mechanism for an adjustment of the unit-price for certain quantities of unit-priced items outside the stated range of variation from the estimated quantity. My point in mentioning the VEQ clause is that 1) it discusses estimated quantities of unit-priced items in a "fixed-price" construction contract and 2) it authorizes a price adjustment based upon the contractor's cost experience. Since the VEQ clause provides for an adjustment to the "fixed-price" based upon differences in "the contractor's cost", the statement at 16.202-1 that "the price is not subject to any adjustment on the basis of the contractor's cost experience in performing the contract" is technically incorrect. I didn't research the entire FAR for other discussion of fixed-price contracts, with respect to services or any other variation in "fixed-rate" items. However, I've seen and used service contracts that had unit-priced items with estimated quantities. For example, grass mowing services may have prices per acre or per cutting to allow for variations in growing seasons, weather conditions, adding or subtracting areas, etc. I know that the FAR isnt very clear and can be confusing at times. As I've said before, it dioesn't have all the answers on to "how to contract." Not all Parts and subparts are coordinated with each other, either. Much of the current language preceded the current organization of the FAR and/or has been moved from other Parts, without editing. For example, the VEQ clause, which preceded FAR, was actually moved years ago from Part 17, I think.

Bob, the 3rd edition of "Formation of Government Contracts" by Nash and Cibinic (published in 1998) discussed the bid opening time in Chapter 5, "Sealed Bidding", Section I. D. Bid opening Time. on pages 525-528. there were numerous Decisions cited that essentially say that the clock in the bid opening room will generally be used (if there is one) if it is reasonably close to universal time, even if it slightly varies from Western Union, Federal Express, telephonic report, clock in the hall outside, or the Bid opening officer's watch. One instance was cited where the clock in the bid opening room was 3 minutes fast. "The determination of the bid opening officer of when the bidding time has arrived is binding unless it is clearly unreasonable. See W.W. Asphalt, Comp. Gen. B-235560, 89-2 ?​ 106. Occasionally, a BOO declaration of the bid opening time has been shown to be unreasonable, but the examples discussed the actions of the BOO, not the clock.

Interesting. Block 9 of the "old" SF33 states that "Sealed offers...will be received...until...". Block 9 of the SF 1447 is local fill in. I don't think that there is anything ambiguous about the term "until". I do think that the term "not later than..." can be ambiguous or at least argued that way. At any rate, the bid opening official's (BOO's) announcement should have closed the bid receipt period. From the 3rd edition of Nash and Cibinics' "Formation of Government Contracts", page 525: "A bid may be submitted up to, or simultaneously with, the time the bid opening officer announces that the time for bid opening has arrived, Carouthers Constr., inc. V. United States, 18 Cl. Ct. 745 (1989) ". It also cites the aforementioned Amfel Constr., Inc. Comp Gen. Decision. It would appear in this instance that the BOO did declare the bid opening time prior to receipt of the bid. The BOO will hopefully consult with their counsel. I'm assuming that "Seeker" is either an interested person or is an alternate monilker for someone testing this Forum (I believe that I read hat Seeker initially addressed "Seeker" in the second person in one post, herein).

Did the IFB state that bids must be received "by" 3:00 PM or "before" 3:00 PM?

Did the bid opening officer follow the traditional rule at 14.402-1 (a) to announce that the time for bid opening had arrived (or that bids were closed for receipt) prior to the time that the courier arrived with the bid?

Steve, you didn't explain if this involved current ot prior year funding. Please clarify. Thanks. There are rules which restrict re-obligating prior year funds from work that was terminated for convenience. Would this be a similar scenario?

I agree, Vern. I was probably editing my post as you were typing but you are correct.

Yes, thanks, Carl. I was in Walmart, being hurried by my wife. I didn't mean to refer to a BOA. Now I'm sitting in the gym, watching my wife's volleyball team. I had some time to fix it. Thanks.

Why is it so hard to understand that the terms of the blanket purchase agreement are simply incorporated into the orders? A BPA (at least under Part 13) is simply a prearranged, "agreed" set of terms and conditions that apply to any orders, placed against it, so that the parties don't have to issue reams of paper and establish all the details each time an order is issued. Isn't the order the actual contract vehicle?

Alexreb, it depends upon the circumstances, of course. But we wouldn't normally direct a contractor to fix defective work by change order. Unless we knew that the specs were defective, our ACO and/or KO would probably direct the contractor to correct the deficiency, but ensure that sufficient funding was reserved in the event that the specs were defective. I think I remember at least one instance where the KO directed the work (by letter) with a specific statement, recognizing that if the specs were found to be defective that an equitable adjustment would be made. Sometimes, the KO has to take calculated risks. Contract clause 52.246-12 -- Inspection of Construction contains a similar but more specific provision for inspecting suspected deficient work that is covered up and that must be uncovered to inspect. Our policy has been that the KO can direct the action but must ensure that sufficient funds are reserved to cover the estimated cost of tear out and replacement of the work that is covering up the suspect work. And yes, I know that funding is not necessarily guaranteed, even if you "reserve the funds" in the system. From 52.246-12 h) "If, before acceptance of the entire work, the Government decides to examine already completed work by removing it or tearing it out, the Contractor, on request, shall promptly furnish all necessary facilities, labor, and material. If the work is found to be defective or nonconforming in any material respect due to the fault of the Contractor or its subcontractors, the Contractor shall defray the expenses of the examination and of satisfactory reconstruction. However, if the work is found to meet contract requirements, the Contracting Officer shall make an equitable adjustment for the additional services involved in the examination and reconstruction, including, if completion of the work was thereby delayed, an extension of time." That isn't the same as directing repair or replacement of work while the adequacy of the specifications are in question. But it is an example of where the KO must take a certain amount of risk without directing via a change order modification. One must also consider if the cost of a delay, while waiting for a defective specification determination, might cost more than the possible equitable adjustment in the event that the specs were defective. Other considerations might be, what can we delete down the road to pay for the fix, if the specs are defective and if the funds to cover the action disappear. Those are all things that a KO should take into consideration but indecision is more dangerous and often more costly to the taxpayers.

It appears that the extension is out of scope, isn't that correct? Did you have the option not to accept the extension? If so, is such an out of scope modification considered a "new contract", added to the existing contract for administrative convenience? If it is out of scope, one cannot necessarily equate a scenario of an out of scope supplemental agreement with the situation in the above cited E. Huttenbauer & Son, Inc. (B-258018.3, Mar. 20, 1995, 95-1 CPD para. 148 at 2) , where "...a contracting officer was not required to make a new responsibility determination before deciding whether to exercise an option because the concept of responsibility has no applicability with respect to a contract once that contract has been awarded". This difference is that an option is within the scope of the original contract.

I'd love to be their contractor or a contractor negotiating with those type government negotiators. They've just turned the table around on themselves... The original poster mentioned "the spreadsheets". Unless one removes various columns to only show 'objective" and "proposed", any PNO of any significant size I ever developed, reviewed for oversight or used included columns for the IGE, audit input, if any, technical input, if any, etc. to help the negotiator and/or KO, summarize differences, visualize and develop the negotiation objectives.