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Everything posted by ji20874
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FAR 13.106-2 and actions of the parties in terms of discussions
ji20874 replied to Sam101's topic in For Beginners Only
Too many 1102s want to apply FAR 15.306 everywhere. Back in the days when we had 1105s, they understood small purchases/simplified acquisitions and they handled them. When 1102s move into that arena, many of them carry their Part 15 baggage with them -- and they carry that baggage into purchases against schedules, orders under IDIQ contracts, and everywhere else. sam101, Look at these and tell me if you think they are fair... (1) Simplified acquisition, quotes at $36,200, $36,600, and $41,000 -- all quotes are identical except for price -- the contracting officer's requisition or purchase request is for $36,000. The contracting officer asks the first quoter if it can drop its price by $200 -- the first quoter says YES, and the purchase order is issued. I think this is fair and allowed under FAR Part 13. (2) Simplified acquisition, same quotes as above. The first quoter says NO to the request to drop its price by $200 -- the contracting officer asks the second quoter if it can drop its price by $600 -- the second quoter says YES, and the purchase order is issued. I think this is fair and allowed under FAR Part 13. -
FAR 13.106-2 and actions of the parties in terms of discussions
ji20874 replied to Sam101's topic in For Beginners Only
Yeah, I thought the linked thread was pretty clear, too. -
Can a BPA exceed its ceiling amount?
ji20874 replied to lawyergirl's topic in Contract Administration
I see them as different. The FAR text on schedule BPAs speaks only of estimate (not ceiling), and even allows for orders going beyond the estimate (not ceiling) -- this leads me to believe that estimate (not ceiling) is the correct and intended word. But I allow others liberty in their practice, and they may impose ceilings if they choose. -
Can a BPA exceed its ceiling amount?
ji20874 replied to lawyergirl's topic in Contract Administration
If the evidence suggests the parties had a common understanding at the time of schedule BPA establishment that the BPA had a ceiling (and not an estimate, or a separate lower estimate), I think I would want to respect that understanding and enforce the ceiling as limiting on the agency. It might be interesting to see how the attorney would make a case that a ceiling and an estimate are the same thing, and that both mean estimate. I note that we are now talking only about schedule BPAs, not simplified acquisition BPAs. -
Can a BPA exceed its ceiling amount?
ji20874 replied to lawyergirl's topic in Contract Administration
I think I would want to hear the protest parties make their arguments about whether the "ceiling/estimate" was intended to be (1) a ceiling; or (2) an estimate -- after all, they are two entirely different things. Whichever way I decided based on the arguments and evidence, I would probably want to bemoan the sloppiness of the agency's BPA text and to chide the protesters for not inquiring about which term was correct before the BPAs were established. A typo such as in a FAR citation is easily overlooked and forgiven, but a contracting officer's use of the terms "ceiling" and "estimate" as synonyms indicates a quality problem with the contracting officer as well as with all of the reviewers and attorneys who let the sloppy text slide through. -
Can a BPA exceed its ceiling amount?
ji20874 replied to lawyergirl's topic in Contract Administration
In my experience, contracting officers and others routinely believe that ceilings are required for BPAs, both FAR Part 13 BPAs and Subpart 8.4 BPAs. They are astounded when they learn the truth, and some refuse to accept the truth. I think most BOA ceilings are imposed because of this error in learning rather than by agency policy or purposeful contracting officer decision -- and if an agency does have a policy, that policy may well exist because of this error in learning rather than a legitimate agency-wide need to impose a ceiling. That said, where a ceiling is imposed, my practice has been to respect it. -
Use of FAR Subpart 37.2 with Interagency Agreements
ji20874 replied to CldGrl22's topic in About The Regulations
FAR 37.204's call for an agreement between agencies for one agency's federal employees to assist another agency in an evaluation is for a simple agreement. It most certainly IS NOT an "interagency agreement for advisory and assistance services" -- it IS NOT related at all anything in FAR 37.203 -- it IS NOT related to anything else anywhere else in the FAR -- it IS NOT an IAA in the sense that acquisition people think about IAAs -- the assistance being provided IS NOT advisory and assistance services as that term is used in the FAR. Your agency's HR office will know how to do any needed agreement -- if an agreement on paper is needed, it will be an HR agreement, not a procurement agreement. This is EASY. -
The prior contract (where the need for extended TDY wasn't contemplated at time of contract formation) and the new contract being negotiated now are two entirely separate matters. We must not conflate them. We're talking about the new contract being negotiated, as best as I can tell. The parties can protect their interests in the negotiation. If they are unable to come to terms, they can end the negotiation and walk away from the contract. I think OP is on the government side, and the agency's leverage in the negotiation will include whether the negotiation is sole source and how desperate the agency is for the new contract to be awarded. I don't know if the agency has strong or weak leverage -- but this matters, and the answer to OP's question is not merely an academic re-hashing of academic principles.
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Change Order Pricing for Receipt of CFM
ji20874 replied to ScottR's topic in Contract Pricing Including CAS & Allowable Costs
Are we talking about GFP? Or the prime contractor's property? -
Change Order Pricing for Receipt of CFM
ji20874 replied to ScottR's topic in Contract Pricing Including CAS & Allowable Costs
I don't, because I don't see anything in the standard FAR Changes clauses that allows for this sort of change. But maybe you are a subcontractor? If so, I suppose the Changes clause in your subcontract will control whether this is a permissible change order. -
Can a BPA exceed its ceiling amount?
ji20874 replied to lawyergirl's topic in Contract Administration
This is true. Unfortunately, too many practitioners (and reviewers) believe that a ceiling MUST be set -- that is error, but it is very commonplace error. I hope readers here are able to break free from error, misconception, or fallacy. Everyone, please repeat after me: BPAs, whether for simplified acquisitions or against schedules, do not require ceilings or maximums. I wonder if the OP is still reading? -
Can a BPA exceed its ceiling amount?
ji20874 replied to lawyergirl's topic in Contract Administration
Or rather, just try to negotiate discounts. Termination seems wholly unnecessary as there is no requirement to use the BPA in the first place. For schedule BPAs, the FAR calls for an annual review and, if the estimate has been exceeded, further invites the contracting officer to seek discounts for future orders. -
Can a BPA exceed its ceiling amount?
ji20874 replied to lawyergirl's topic in Contract Administration
A simplified acquisitions BPA under FAR Part 13? There is no requirement to have a ceiling on such a BPA. A BPA against schedule contracts under FAR Subpart 8.4? There is no requirement to have a ceiling for such a BPA, but only an estimate, and YES, orders may exceed the estimate. Practitioners who do not understand correct principles will often impose a ceiling on BPAs they establish, but hopefully they will learn correct principles one day and stop imposing ceilings. -
There is no requirement for a phase one evaluation to use only GO/NO-GO factors, meaning that the agency would eliminate only technically unacceptable proposals in that phase. Rather, the phase one evaluation may be selective and subjective. For example, if an agency wants to do oral presentations or needs to do technical testing, but only has capacity or appetite for such in-depth evaluations with a small number of offerors, a phase one may be used to narrow the field to the prospective offerors who are most likely to be successful. Of course, the solicitation needs to be written appropriately. govt2310, do you disagree with the finding in the case you cited?
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It depends. A few possibilities... Do you want to extend the period of performance to allow the contractor to overcome its failure to perform timely, as an alternative to termination for default or cause? Yes, you may do this as matter of professional discretion, and hopefully with some exchange of consideration. Do you want to extend the period of performance as part of an equitable adjustment under the Changes clause, Government Property clause, or a similar clause? Yes, you may do this as a matter of contract administration and fairness. Do you want to extend the period of performance because the contractor has completed the work but there are unspent funds, and you want to allow the contractor to collect those funds by doing more work? Well, this one is harder to justify. It depends.
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Why not exercise the option, and then do a termination for convenience at the appropriate time?
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What many people call fixed-unit-price contracts are often actually firm-fixed-price contracts -- that is, the amount the government pays for an item (the unit price) "is not subject to any adjustment on the basis of the contractor's cost experience in performing the contract." Isn't that the definition of FFP? Thus, generally speaking, FUP = FFP.
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Contract file closeout under FAR 4.804 is an administrative procedure for a government contracting office -- the office's closeout has zero effect on the rights and obligations of either of the parties to the contract. All rights and obligations that existed before closeout still exist after closeout. That is not what closeout in FAR 4.804 means. Would it work better to say closeout in FAR 4.804 means completion of administrative actions to make sure the contract file is ready to move from active management to retirement?
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Vessel Hull Painting (Partial vs Full)
ji20874 replied to Guest108830's topic in Contract Administration
I still say painting a vessel's bottom is not a "system" procurement in any sense of the word, and I have to believe that no instance of the word "system" in the FAR, any other procurement regulation, or any procurement court or board decision applies to a contract for painting a vessel's bottom. A vessel's hull and the paint applied to it simply is not a "system." So, my advice is to forget any regulation or decision involving a system procurement -- yes, certainly, you can contract for spot painting of a vessel's hull -- and yes, certainly, you can try to draft a homemade warranty clause if the standard FAR clauses don't fit, but I don't know how practical that will be (in other words, I don't know if prospective bidders will opt out of the procurement or raise their prices to exorbitant levels, and I don't know how you will enforce the warranty -- you will want to do some market research to answer these questions to your satisfaction). Best wishes. -
Vessel Hull Painting (Partial vs Full)
ji20874 replied to Guest108830's topic in Contract Administration
A contract to paint a vessel's bottom doesn't sound to me like a system procurement or an equipment procurement. Any FAR text (including warranty clauses) for systems and equipment procurements seems inappropriate, and should not drive your actions or decisions. -
FAR 4.804 closeout is wholly irrelevant to your situation. Contract closeout under FAR 4.804 is an administrative procedure for a government contracting office -- the office's closeout has zero effect on the rights and obligations of either of the parties to the contract. If you want to modify the contract to correct an error, talk to the contractor and do it. If you want to modify the contract to buy a battery, talk to the contractor and do it. But FAR 4.804 closeout is wholly irrelevant to your situation.