ji20874

MileHighAcq, Why are you pushing so hard on this issue?

I think I might have a higher comfort level with gray than some. I do not think we could make everything black and white even if we wanted to -- if we did, we wouldn't need professionals and we could all be clerks.

MileHighAcq, Think about it -- if you don't trust OFPP to do it right, then isn't it really best to leave well enough alone? If there is no gross abuse or no scandal, why try to create more rules? Please do consider the real scenarios I shared earlier -- I faced those real circumstances, and I dealt with them promptly and responsibly -- would you want to take away whatever flexibility I had (or that I imagined that I had)?

The contracting officer is the one who forbears, not the judge.

Maybe it is best to leave well enough alone? Do you trust OFPP to issue procedures for this?

Why are you asking this question? Is it mere academic curiosity, or do you need help with a real situation? Are you making the argument that verbal purchase orders are illegal? Are you making the argument that a verbal purchase order requires ratification before formalization? If not verbal purchase orders, what are your solutions to the following very real situations that I have faced in my career-- On a Sunday afternoon, a tree falls on powerlines on a military base (the military owns the power lines). On a Friday evening, a landslide covers an important roadway for which a federal civilian agency has jurisdiction. Please answer practically with real solutions, not theoretically with concepts.

An agreement is not necessary as a precursor to forbearance. The contracting officer can do it unilaterally and without any agreement. It is not necessary for the contractor to request forbearance -- the contracting officer can forbear termination without any request from the contractor. Forbearance need not be in writing, at least not early on. Forbearance need not be a promise hinged on consideration. In my book, a unilateral forbearance most certainly is possible. There is no need to "request with a promise." I guess we have different understandings of forbearance.

I am okay with a contracting officer's being done bilaterally as a reasonable (and maybe even preferred) practice. However, we need to remember that a contracting officer's forbearance can also be done unilaterally.

In a procurement with a many proposals and/or many evaluation factors, the assignment of adjectival ratings by evaluators can be helpful during the comparative evaluation by the selecting official. However, in a procurement with few proposals and few evaluation factors, it might be more efficient to skip the adjectival ratings and to simply compare each proposal to the others and to rank-order the proposals.

Don, You're being pedantic again. Do you have anything that might be helpful to the original poster?

I wrote that Contractor-Acquired Property (CAP) does not mean property acquired by the contractor -- this might seem illogical, but that's how it is. Rather, CAP has a definition in the places to which I pointed, and which you cited. Indeed, CAP does not simply mean any property acquired by the contractor. Rather, CAP means means "property acquired . . . by the contractor . . . to which the Government has title." There is nothing careless in what I wrote. Rather, it is careless to label any contractor acquired by a contractor as CAP. When speaking of CAP in a FAR setting, one must know and use the FAR definition. It the Government doesn't have title, it isn't CAP. Just because a contractor acquires property doesn't mean it is CAP.

For newbies reading this thread, remember that Contractor-Acquired Property (CAP) does not mean property acquired by the contractor -- this might seem illogical, but that's how it is. Rather, CAP has more limited definition -- see FAR 45.101 and, more importantly, FAR 52.245-1(a). These two places use the same words (but one has a comma that the other doesn't have). In FAR settings, government property (GP) comprises government-furnished property (GFP) and contractor-acquired property (CAP). Arithmetically, GP=GFP+CAP. Or, using set notation, GP={GFP,CAP} and CAP∈GP. If the contractor has title to the property, it is not CAP.

We see things differently. Maybe yes in some particular cases, but as a rule, no. To me, the particular case you cited does not stand for a rule. Example: In a fixed-price contract for painting (with no progress payments 🙂), a contractor might buy a paintbrush and a few cans of paint -- the contractor wholly includes these costs in its price, and charges the full cost to the contract in its internal bookkeeping -- therefore, during performance, the contractor must treat the brush and cans as CAP and comply with the Government Property clause? No. Maybe yes in a some particular cases*, but as a general rule, no. At least, that's how I see things. *I quickly admit there are some particular cases where it makes sense -- I have done it myself -- but these particular cases do not make a general rule.

here_2_help, Nothing in the original posting suggests progress payments; indeed, the original poster's reliance on FAR 45.402(a) suggests there are no progress payments. But if you think the contract might include progress payments after you read FAR 45.402(a), why don't you ask the original poster the question?

Government property may be divided into government-furnished property and contractor-acquired property. The equipment you are talking about is not CAP, and is not government property at all -- the FAR's Government Property clause does not apply. Yes, the contractor keeps the property at contract end, but not because of anything in the Government Property clause. The contractor is free to sell or re-purpose the property at any time, before, during, or after contract performance. Even if it were CAP, which it isn't, you would not need a separate CLIN for CAP. You must not think of this property as CAP. It isn't. Does the government want to take possession of this equipment?

Oversight, I guess an important question is whether your prospective contractors can accept a contract with no upper limitation?

I provided a sort-of answer in the other forum.

The terms might be identical in the minds of some practitioners, or different in the minds of others. It might depend on the circumstances. I do not think you will find a perfect answer. But whenever anyone uses either of these terms, maybe you should ask that person both for his or her definition and a citation for the definition? You might find that person doesn't even know, notwithstanding his or her use of the term.

You do not need an ATP for a unilateral change order. A change order is an order, and talk of an ATP following a change order simply makes no sense. A change order can be issued by SF-30, or by electronic means (FAR43.201(c)). You do not need a change order and then an ATP. After the government issues the change order, the contractor immediately implements and then has a period of time to submit a proposal for an equitable adjustment in the contract price, the delivery schedule, and so forth (particulars are dependent on the contract's Changes clause). A change where the government and contractor agree on the change and the equitable adjustment beforehand is a supplemental agreement, not a change order. So, for this thread, I need to ask the OP: Are we talking about-- change orders, where the government orders the change and the contractor immediately implements and comes back later with a proposal; or supplemental agreements, where the parties agree on the change and the appropriate contract changes before the change is implemented?

I think a stand-alone platform is overkill -- an easier and adequate approach in my mind would be a simple certificate from sellers on their own platforms that they accept the GPC -- government cardholders could search the internet for the products they need and make purchases from sellers who advertise the certification -- think of a government label approximating kosher or halal.

You might want to re-read the citations I shared.

Read FAR Subpart 36.6. Note that the proper term is discussions, not interviews. Further note that these discussions are not discussions as that term is used in FAR Subpart 15.3.

Katherine, Have you read FAR 28.305 and 12.301(a)? I think these will answer your question.

It might work better if you selected one scenario for your question.

Retreadfed, See FAR 32.1004(e)(2) to see how it reaches to performance-based payments for non-commercial items.