ji20874

OP asks, "We can always file a claim under the CDA, but if the contracting office has their hands tied and the issue is potentially originating from the top level, would it do any good?" Neil's link included the following, "It is essential that a contractor whose valid invoice is not paid raise the issue with its CO, state the invoice is in dispute because the government won’t pay, and file a formal claim of nonpayment." Why is OP hesitant to file a claim? Do it!

The contract is already formed and agreed to. If you want something different for a task order, will you try to negotiate that with the contractor? Maybe the contractor will agree, maybe for an additional price -- but if the contractor won't agree, are you asking if you can unilaterally impose the requirement with the next task order?

Maybe that's why I like the old way -- every contract has one single NAICS code, and every order under a contract uses that code.

Joel, Are you trying to make a case for a change? Fine with me if you are, but I don’t think Wifcon.com is where you need to make your case.

GSA is offering something for the optional use of other agencies. Any agency not liking GSA's ordering guidelines can establish its own no-cost contract. If GSA's ordering guidelines say considering past performance is required, then it is required -- and it's required because the ordering guidelines say so. To me, the OP's demand for a FAR citation seems inappropriate.

Atlas says, "52.246-2 is present and I understood the requirement to perform periodic inspections as required by the government. Again, I do not read anything in there that says they have full run of the facility at any time (e.g. they have access to those areas necessary to inspect at a negotiated time)." FAR 52.246-2, para. (c), says, "The Government has the right to inspect and test all supplies called for by the contract, to the extent practicable, at all places and times, including the period of manufacture, and in any event before acceptance. The Government shall perform inspections and tests in a manner that will not unduly delay the work." Atlas, I think you may err in your thought that the Government must negotiate with you for inspection times. Doesn't the clause that you agreed to allow the government, as the buyer, to have largely unfettered inspection privileges?

Carl is right, that the AFARS only requires IGE for procurement actions over the SAT. But even then, the AFARS text provides some appropriate flexibility -- for example, the text speaks of "...enough detail to verify..." and "...sufficient narrative and analytical detail..." -- perhaps the people you are dealing with have an understanding of "enough" and "sufficient" that differs from yours? I hope with professionalism and appropriate discretion you can solve your problem. You might note that the AFARS does not require "detailed" IGEs -- you are introducing the word "detailed" as an adjective for IGE. The AFARS merely requires an IGE with "enough detail" and "sufficient narrative" -- do you see the difference? For a very routine buy, there could easily be a dig difference between "enough detail" and "detailed IGE."

Don, Thanks for asking your question. I gave too much benefit to the original poster. Based on OP’s answer to your question, he or she has no business in FAR 17.1.

I recommend a conversation with your agency’s procurement executive of HCA (head of the contracting activity). Persuade him or her or your approach directly if possible. The statute behind FAR 17.1 uses the following text: “…funds are available and obligated for the contract, for the full period of the contract or for the first fiscal year in which the contract is in effect, and for the estimated costs associated with a necessary termination of the contract…”

Will FAR 5.202 provide your answer? Perhaps (a)(6) or (11) will fit your situation.

If we knew what the XYZ guidelines were, we might be able to be helpful. But still, even if the XYZ guidelines do not require staying on base, do they allow for staying on base? If so, maybe the agency's direction is "in accordance with" the guidelines.

Certainly, what you are suggesting is doable. There is no rule to prohibit it, and there is no rule to require continuous service with no breaks when exercising options. You can set up the contract to meet your needs. For example, can you easily imagine a janitorial services contract for a school with annual POPs from August to June, with each option period starting in August? Why are you concerned that it might not be possible?

Really? We know that all offerors will have their recent past performance in CPARS? I disagree. Offerors with excellent past performance for non-federal clients (and therefore no CPARS records) should be encouraged to participate in the federal procurement process. Banning them because of no CPARS seems like professional malpractice.

Voyager, The standard of reasonableness you speak of seems wholly unreasonable to me -- it suggests that the only past performance that can be used in a part performance evaluation is CPARS data, or that all past performance must be substantiated by CPARS data. This is not true. Of course, there is nothing wrong with special standards of responsibility, and FAR Part 9 tells contracting officers how to use them -- but I am thinking this solicitation is not presenting this as a special standard of responsibility. I hope the contracting officer is going treat an offeror without a 3-year-submission neither favorably nor unfavorably for past performance. But, I am talking about something beyond the OP's question, and her question has already been answered.

I am dismayed when I hear of contracting officers trying to do things like this -- essentially, it appears this contracting officer has established a qualification requirement or a special standard of responsibility. In my practice, I might have said that otherwise relevant past performance within three years of the solicitation release date will be considered as more relevant than older information.

You list one example. We do not know the OP's reason, but there are many, many reasons that an experienced professional could imagine where it might make sense to have a space of time before date of award and the start of the performance period.

Some posters here did not approve of my comment above, but I see no problem with it. If anyone would read the FAR text, they would see that use of FAR 1.102(d) as "authority" requires some effort -- it only fits if the approach in question evidences "sound business judgment" and "is in the best interests of the Government." It takes some professional thinking to arrive at conclusions in these matters, and I hope the OP is able and willing to apply some professional thinking to his or her question. I see nothing in this thread suggesting that OP has read the cited FAR text.

To answer your question: Will FAR 1.102(d) work for you? As an aside, it looks like you tried to do a competitive procurement, but you failed to achieve competition. I hope you inquire for the reason for the failure. As another aside, as a fellow professional, I apologize to you for your “Management.”

I don't know the official reason, but it makes sense that those contracts are not covered -- indeed, I think it would be impossible to apply TAA to them. Do you think they could be covered? Do you think they should be covered?

Carl, I appreciate your mastery of 13 CFR! I like the SBA's words. If contracting officers followed the guidance in (c)(1)(i) and (ii) (especially for (ii)), maybe there would be fewer problems. If they did follow the guidance, maybe there would not be surprises regarding NAICS codes for order opportunities -- and I agree that there should be no surprises at the order level.

This problem was foreseen. Several years ago, a contract (including an IDIQ contract) could have only one NAICS code -- to me, that was the right answer. Then, some of our contractors said only one NAICS code per contract wasn't fair, and they petitioned to allow multiple NAICS codes on a single IDIQ contract. They prevailed, and the rules were changed by people who did not understand the rules in the first place and who did not understand the implications of their great decision to change. Now, some of our contractors are complaining again. If anyone were to ask me, I would say to go back to one NAICS code per contract, period.

JKJD, Sometimes, it helps to know the perspective of the questioner when answering a question. Are you the contracting officer thinking to do an action? Or an analyst or attorney reviewing an action? Or a contractor wondering? Or something else?

So, you are a prime contractor, and you did a competition for a subcontract opportunity, and you want that competition to result in two awards? If the prices are similar, I think I would call both awards competitive and the prices reasonable based on adequate competition.

DawnS, Is your question about a government prime contract opportunity being split at award? Or a subcontract opportunity being split at award?

I love the imagery!