ji20874

I have seen the same thing.  I am not aware of any policy.  I think it is general mispractice within our acquisition community. 

But, since you raised the question, let me ask -- I know that the clause is not required based on FAR 12.301(d) -- but can it fit under 12.301(e) and 12.302(c)?

And in the Glock case, the Army made a decision for the acquisition as a whole, not a decision that one allow for acceptance of one offeror's otherwise-failed offer.

What's the harm in a solicitation amendment and updated offers?  You can issue the solicitation today and require the updated proposals by Monday close-of-business.  Or, if the competition provided you with one or more good offers, just award to one of them.

formerfed,

Let's keep it to the matter at hand -- lease of a backhoe (without an operator).

We don't know your exact circumstances -- we haven't seen the solicitation, the offer, or the evaluation report.  You have to decide your next step.

(1) It is one thing to inadvertently err, or to see something differently than another, or to push the elasticity of a matter.  If this happens, and a protest follows, the protestor must show both your error and the prejudice it caused.

(2) It is something entirely different to purposefully lie, to purposefully treat an offeror unfairly, to purposefully break the rules.  

We can't tell your proposed action is (1) or (2).  Nothing in the article you cited gives you permission or discretion to purposefully waive a solicitation requirement in favor of one offeror -- it only gives you a defense in case you inadvertently do it.

I think FAR 15.306(b) is absolutely the wrong answer to your problem.  Maybe here is your solution:  If the solicitation included the provision at FAR 52.215-1, see para. (f)(3); or, if the solicitation included the provision at FAR 52.212-1, see para. (g); or, if the solicitation included the provision at FAR 52.214-10, see para. (b)(3).  If the solicitation included none of these, use these as a guideline or a principle anyway.  But only use this approach if doing so will be fair and honorable.

Otherwise, do the solicitation amendment. 

Is your procurement under the SAT?  Or above?

The proper (and only?) way to waive or relax a solicitation requirement is to amend the solicitation.  See FAR 15.206(c), (d), and (e). 

FAR 15.306(b) ("communications") gives you zero authority to waive/relax a solicitation requirement, as well as zero authority to fix a problem in an offer.  All it does is allow you to make an inquiry so that you can understand the offer and decide whether to keep it in the competitive range or throw the bum offeror out.

You can solve problems in offers under FAR 15.306(d) ("discussions").  You can also use discussions to correct mistakes in offers.

But for a problem in your solicitation, see FAR 15.206(c), (d), and (e). 

Freyr,

I cannot understand your story.  In the first paragraph, you talk about the solicitation being wrong.  Then, in the next paragraph, you talk about the offer being wrong.  Which is it?

If the solicitation is wrong, see FAR 15.206(c), (d), and (e).

If the offer is wrong, use FAR 15.306(a), (b), or (d) to deal with it.  Or, reject the offer and select a clean offer for award.

25 minutes ago, joel hoffman said:

What does the SCA apply to when there is no labor providing a service? The equipment rental company doesn’t fuel, grease or lube the equipment. The renter is responsible for that. . 

I'm with you.  There is no service, there is no service employee, the proposed contract fails as a service contract under the test at FAR 37.101 ("a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply") and also under the test at FAR 22.1003-1 ("the principal purpose of which is to furnish services in the United States through the use of service employees") -- and yet, some people still insist on calling a contract for the lease of a backhoe a service contract and maybe even subject to SCA.  And it is below the micropurchase threshold, and some will not allow the card to be used.  It makes no sense to me. 

Does FAR 22.1012-2 help?

The base (parent) contract did not expire — it is not dead.

Perhaps you meant to say that the parent contract’s ordering period has ended?

You may (must) administer the task order. If an adjustment in an order’s period of performance is called for by one of the contract’s clauses, the you may bilaterally agree on the equitable adjustment without regard to the end of the parent contract’s ordering period.  Indeed, the end of the parent contract’s ordering period is wholly irrelevant to the post-award administration of orders properly issued under the contract.

I am assuming that you are talking about extending the performance period of an order for reasons within the scope of the order, rather than adding new and out-of-scope work to the order.

A contract does not expire until both parties have completed all obligations under it.

The prime contract’s wage determination applies to both contractor and subcontractor employees who are directly involved in the work. 

The entire contract should be SCA or the entire contract should be DBA — this is the general rule.  However, if it is possible for the contract to segregate the work, so that one clearly-defined portion is SCA (and covered by the contract’s SCA WD) and the other clearly-defined portion is DBA (and covered by the contract’s DBA WD), then a contract may have both SCA and DBA WDs.

There should be no confusion in a well-written contract that conforms to FAR instructions.  Perhaps your contract is not a well-written one?

How has your contracting officer responded to your question?

Perhaps the contracting officer has already been generous, maybe even overly generous?  After all, Christmas is approaching.

We don’t have the contract in front of us, but it appears from the comment thread that the government did not warrant the size or weight of anything.  If so, the contractor may be entitled to nothing, and thus should be very happy for the contracting officer’s generous agreement to pay for crane costs.

But regardless, if the contractor wants more money, it is the old question of who owns the schedule float?  Unless the contract specifically specifies, there generally is no single right answer.  That’s where lawyers and judges get involved.

Contractor employees do not get JTR or DSSR payments, period.  Even so, I understand that USAID expects its cost-reimbursement contractors to provide certain payments to some contractor employees working overseas through use of the clause at AIDAR 752.7028 -- the authority for these payments to contractor employees is the contract clause, not the DSSR, but the clause incorporates DSSR limits as caps or ceilings on payments.

On ‎11‎/‎17‎/‎2019 at 6:28 AM, DOECPA said:

What I'm trying to do is make sure that my potential contractors won't have an issue when they invoice for Post Hardship Differential Allowance and Danger Allowance.

You are thinking the wrong way.  You shouldn't care about these things especially for a fixed-price or T&M contract).

You should care that your future contractor has an employee pay package that will attract and retain employees of the quality you need for your mission and successful contract performance.  You might make that a part of your evaluation approach, if you feel there is a need to make sure of this before selecting the winning contractor.  

If Offeror A proposes to pay a certain employee category a rate of at least $100/hour and Offeror B proposes to pay at least $65/hour + actual reimbursement for meals and lodging + up to $100/day for danger location + whatever else, you can evaluate those two and select the best value offeror, considering all the evaluation factors.  But please, stop trying to treat contractor employees as federal employees.

And don't worry about the contractor's future invoicing.  The contractor can handle that imaginary problem.  If a contractor's accounting practices and disclosure statement sloppiness and so forth hinder its ability to get invoices approved, that is its own problem to rectify.  If a contractor tries to get reimbursement for paying amounts higher than those allowed by FAR 31.205-6 (compensation) or -46 (travel), it deserves to lose its argument.

You could simply copy and tailor the AIDAR clause into your solicitation and resulting contract, if it is a cost-reimbursement contract.  UCF Section H is a good place.

In all this, let’s not be too eager to change this into a cost-reimbursement contract or one where we indemnify the poor contractor against any risk or loss.  All delays are not money compensable delays.  Let the contractor use the Disputes process to prove its injury and the Government harm that caused it, as well as the legal case for money damages.

Read the Disputes clause of your contract.  You can also read FAR Subpart 33.2 to see the contracting officer’s instructions.  If you submit a claim amenable to that clause, and the contracting officer denies it, you may appeal to the board of contract appeals or a federal court — the denial letter should include the appeal instructions.

But first, read all of your contract.  Did the Government warrant or guarantee the weights in the contract, or were the weights provided as estimates and as a courtesy?

Did you comply with any contract terms that mandate prompt reporting of differing conditions to the contracting officer?  If not, you may have forfeited your right to a contract adjustment.

Best wishes!
 

It sounds like you won't be using the provision in your solicitations for commercial item contracts.

I haven't expressed a preference either way for my own practice or as advice to others. But you asked why some might use the provision in solicitations for commercial items for services.  I'll offer a few thoughts:

1. Some of our fellow practitioners extend the definition of commercial item for services far beyond what the FAR text contemplates, so they feel they need the assistance the provision can sometimes provide.
2. Some of our fellow practitioners are simply unaware of FAR 12.102(c) and 12.301(d), so they read FAR 22.1103 and include the provision even though they needn't.
3. Some of our fellow practitioners include the provision simply because it was in the sample or template they copied from.

As I wrote above, a contracting officer must think and must make a decision in the exercise of his or her discretion.  Some of our fellow practitioners are unable or unwilling to think, to make a decision, or to exercise discretion.  It seems our policy, oversight, review, and legal bureaucracies have smothered these possibilities.  In all this, I write generally rather than universally.  

FAR 52.219-27 only applies to SDVOSB set-asides -- it does not apply to SDVOSB concerns outside a SDVOSB set-aside context.

FAR 52.222-46 applies if the contracting officer includes the provision in the solicitation.  It is required in a solicitation for a non-commercial item contract as prescribed in FAR 22.1103 -- this includes a multiple-award IDIQ parent contract but not an order.  It is not prescribed for a solicitation for any commercial item contract, but one supposes it may be included under FAR 12.301(e).

For an order, the contracting officer establishes the procedures, either at the parent IDIQ contract level or at the order level.  One supposes the clause may be used in a notice for an order under a multiple-award IDIQ contract.

This means a contracting officer must think and must make a decision in the exercise of his or her discretion.

On ‎11‎/‎8‎/‎2019 at 12:06 PM, General.Zhukov said:

Regarding the clause and authority to do an REA....

This is a commercial contract, so it has 52.212-4 and the paragraph about changes by mutual consent.  So, that is that in terms of clauses.

That citation gives zero authority for an equitable adjustment to the contract terms.  It allows you to change the terms, with mutual agreement -- but it does not allow for the Government to make a unilateral change which then creates an entitlement to an equitable adjustment.

I still think you should require the contractor to make its case for an adjustment in the contract's terms by pointing to a clause that provides for an equitable adjustment.  The contractor will likely be unable to do so.  Thus, there should be no talk of equitable adjustment.

Rather, I think you should be working under the Disputes clause of your contract.  You really should read it and require the contractor to follow it.  Really, it seems to me that you're trying to resolve an issue in controversy (that term is defined in FAR 33.201).  We cannot tell from your postings whether an injury occurred or whether there is any Government liability for said injury -- the mere facts you described do not prove any injury and do not establish any liability.  But if there was injury and there is liability, you deal with it under FAR Subpart 33.2, Disputes and Appeals (see 33.204, which Carl already pointed to), not by any REA doctrine.  Make the contractor prove the contractor's injury caused by the Government's action and make the contractor establish the Government's liability -- only then should you be talking how to compute the money amount of damages.

General,

The contractor has the burden of asserting a right to a change in the contract terms.  Please read the Disputes clause of your contract.  It sounds like your contractor has not convinced you of its entitlement to a change.  Thus, you should reject its request.

But there is no harm.  If the contractor really thinks it has an entitlement, it can make its case in an updated request or in a claim.  But you should not be talking amount (quantum) until after the contractor persuades you of its entitlement to a change.  Don’t give the contractor more money unless it proves entitlement.  You’re a general, not Santa Claus, and it is not Christmas.  

6 hours ago, REA'n Maker said:

So when you contract with a dedicated carrier for Transportation Services (IAW FAR 47)  you "acquire a tangible item" (the truck), ergo, a supply? 

A truck is an item of supply.  A contract for the purchase or lease of a truck is a contract for an item of supply.

A transportation services contract where the contractor provides transportation services (driver, loaders, storage, weighing, routing, and so forth) in addition to a truck (which contractor employees drive, load, store, weigh, route, and so forth) is probably better characterized as a contract for a service.

On 11/7/2019 at 10:08 PM, C Culham said:

Discussed many times the FAR does not define equitable adjustment but uses the term extensively.   An equitable adjustment is a doctrine to settle a matter in controversy/dispute in Federal contracting not just matters related to specific clauses. 

Yes, the FAR uses the term “equitable adjustment” extensively.  As I recall, every single time the term is used in the context of a specific clause or circumstance.  If the FAR does use the term generally, outside the context of a specific clause or circumstance, please point me to that usage.

A change made by mutual agreement of the parties under para. (c) of the clause at FAR 52.212-4 is not an equitable adjustment.  It is simply a change made by mutual agreement of the parties under para. (c) of the clause at FAR 52.212-4.  

If there is a contract clause that creates an entitlement to an equitable adjustment, the contracting officer should follow that clause in considering the equitable adjustment.  That’s why I asked the original poster about the clause(s) that are in play.  He or she should not even attempt to negotiate or grant an equitable adjustment unless he or she knows what clauses are in play, and then follows those clauses.

If the original poster wants to give the contractor more money to settle a matter outside of any contract clause which creates an entitlement to an equitable adjustment and which, if left alone, might result in a claim under the contract’s Disputes clause, he or she may do so without calling the additional money an equitable adjustment. 

Carl,

Right.  However, one need not reach to 41 USC Chapter 67 to know that SCA/SCLS doesn’t apply to the original poster’s situation — he or she may instead simply look to FAR 22.1003-1.

5 hours ago, C Culham said:

If s commercial item procurement remember a change is by mutual written agreement and no clause is really needed.  Same goes if you determine that the governments actions amount to a constructive change.

The original posting is about equitable adjustments, so it makes sense to ask about the clause(s) in the contract that provide entitlement to an equitable adjustment.