ji20874

Yes, pray tell, what is your objective? Then why disturb the vendor's peace with a contract modification? A ratification gives you authority to pay, but you have already paid. Instead of starting a ratification process, should you be starting an Anti-Deficiency Act process?

Have you read the excusable delays text in para. (f) of the contract clause at FAR 52.212-4? You really should. Why do you want to harm your agency? Why do you want to shift all of the contractor's costs associated with the nationwide strike to your agency? Let the contractor deal with the nationwide strike, and let the contractor deal with any cost impact. After the strike, you can use the excusable delays text in your contract to accept late delivery or performance without shifting the contractor's costs to your agency. If a "country is having a strike," you must be outside the U.S. -- based on this new information, I most sincerely advise you not to rush a Stop Work order. Since you have a commercial contract, I am supposing you don't have a construction contract, and you don't have a cost-reimbursement contract -- so I cannot imagine why you would want a Stop Work order. A strike is an excusable delay -- it is already covered by your contract. You do not need a Stop Work order to accommodate a strike. There might be, maybe, some other facts that call for a Stop Work, but you haven't shared any such facts.

A strike does not necessitate a Stop Work order. Generally, a company's contractual obligations remain in place even when it faces a strike. Assuming you are Government, why do you want to relieve the contractor of its contractual obligations because it may face a strike? Do you need anything beyond what is already provided for in under excusable delays in para. (f) of the contract clause at FAR 52.212-4 give you the coverage you need? My advice is to drill down on the question: WHY are you thinking about a Stop Work order? Why do you want to relieve the contractor of its responsibilities, and why do you want your agency to assume any and all costs associated with the contractor's stopping work? My advice is not to rush to a Stop Work order.

Well, if you look at what I actually wrote, and if you read the zero cost risk statement within the context it was presented, then what I wrote is true. However, if you strip it from its context, then yes, it is no longer true -- but stripping it from its context is unfair, and I want to expect better here.

The MCS case allows for the exercise of an unevaluated option: "In such circumstances, the agency must justify the use of noncompetitive procurement procedures in accordance with FAR Subpart 6.3 before exercising the unevaluated option." A J&A or similar document based on appropriate facts could have made a difference in the case.

I don't know what your prime wants, but FAR 2.101 has a definition of "data other than certified cost or pricing data."

The fee is fixed. An increase in your costs will not reduce or "eat in to" your fee. The Government has promised to pay all of your costs (reasonable, allowable, and so forth) plus a fixed fee. You have zero cost risk. Are you now wanting the Government to pay more than the fixed fee you already bargained for? Why?

Carl, You are moving the goalposts. The question is "Basically, do COs need to seek waivers for the NMR and BAA when we issue orders off of existing government contracts?" The answer is no. Your citation doesn't fit the discussion. As a general rule, the contracting officer has no affirmative duty to determine the size status of indefinite-quantity contract holders before placing an order -- your citation makes the case that the SBA may do its thing if there is a size challenge, and I am fine with that, but that is wholly irrelevant to this discussion thread. Even so, we're talking about orders for supply items -- there might not even be any "separate procurement[s]" going on. Issuing orders is supposed to be easy. Too many people want to bog the process down and sink the ship by imposing all sorts of unneeded demands on the ordering process.

I do care about the OP's circumstance, and am trying to be helpful to the OP. A determination that an offeror's price is too low is a valid basis for a determination of nonresponsibility once the apparently successful offeror has been selected. Of course, it goes without saying that "too low" will have to be supported in the determination -- I agree that your example from case law may be helpful to the OP, notwithstanding your lack of care for the OP or his or her circumstance.

I don't think PAE Government Services, Inc., B-407818, fits the OP's circumstances. Nothing in the PAE decision would stop a nonresposibility determination in the OP circumstances. Indeed, the GAO affirms in PAE that "a determination that an offeror's price on a fixed-price contract is too low generally concerns the offeror's responsibility, i.e., the offeror's ability and capacity to perform successfully at its offered price." I also don't think J.A. Farrington Janitorial Services, B-296875, fits. Like PAE, that case dealt with the evaluation, not a subsequent nonresponsibility determination. The agency didn't even evaluate the proposal! Neither of these cases deals with non-responsibility determinations. Note that in my comment, I wrote, "...if the company in question is the apparently successful offeror based on your evaluation criteria..." -- clearly, the evaluation and tentative selection has to occur before the question of responsibility or non responsibility even arises. But if the evaluation has been completed, and the company in question is the apparently successful offeror, the contracting officer can make "a determination that an offeror's price on a fixed-price contract is too low" (note that the GAO uses the words "too low"), along with the other reasons I cited. The OP's attorney can help him or her draft the wording to make it stick -- all three reasons will need to be fleshed out. But most likely, I am afraid that the OP will be afraid to do a non-responsibility determination even with the facts presented in the OP -- I hope I am wrong, but it seems contracting officers and their masters are becoming more timid as time passes.

I have always understood that trade agreements, if applicable, trump BAA.

I know that VA has some different statutory authorities, but I know nothing about the particulars. So I'm speaking generally... Some agencies make it too hard. If you have a procurement for medical equipment, you can issue an unrestricted solicitation with the appropriate BAA clauses/provisions (such as FAR 52.225-1 and -2). If you get both domestic and foreign offers, you do the price evaluation exercise and you award to either the domestic or the foreign, based on the outcome of the price evaluation exercise. If you get only foreign offers, well, pick the best one. There is no real need for a determination of nonavailability. That determination gets you out of the price evaluation exercise, but that exercise is really easy, far easier than getting a determination of nonavailability. See FAR 25.103(b)(3).

In addition to the above comments, if the company in question is the apparently successful offeror based on your evaluation criteria, you can determine the firm to be nonresponsible for three reasons: ridiculously low price, not their brand of work, and previous instances of fake emails or Point of Contacts.

Carl, It is true that I addressed indefinite-delivery contracts, but it is the same for schedule contracts as well.

It's quite simple. For NMR: If a set of parent multiple-award infinite-delivery contracts allows for orders to be set-aside for small business concerns, the contracting officer for the multiple-award infinite-delivery contracts will have already included the clause at FAR 52.219-33, Nonmanufacturer Rule, in the parent contracts. For BAA: If a contractor contemplates providing an end product that is not a domestic end product at any time during the life of the contract, it will have already declared such by including the product in the list in its response to the solicitation provision for the parent contract at FAR 52.225-2, Buy American Certificate, or other appropriate certification.