Whynot

Also, I would imagine that if were found to an invalid contract it would not have to be terminated - it simply would not exist.

It was a valid contract and the initial purchase order you awarded under it was valid. You chose to terminate the contract but not the purchase order. You had two options - T4C or T4D. You chose T4C. Any contract can be T4C at any time for no reason at all. T4C allows the terminated contractor to collect costs as a result of the termination - termination settlement. My point is that there is not a third flavor of termination - (T4C and not collect costs as a result of the termination - no termination settlement).

Did SBA or OHA direct you to cancel the contract as a result of the protest? What remedy did they specify in the decision?

FAR 19.302(k) appears to indicate that incorrect size representation does not necessarily invalidate a contract.

Perhaps, since performance by the contractor does not appear an issue ? you could have let the contract expire at the end of the base year.

I don?t see how a T4C settlement can be denied because of a size misrepresentation ? maybe that is why after your agency settled with the contractor. There is nothing in the T4C clause that you could use. You would have to T4D.

You could have kept the contract despite the incorrect size status ? it is still a valid contract. It seems that by going the T for C route you opened yourself up to termination settlement costs. Whether they are entitled to termination costs has nothing to do with their size representation. I think if we took the incorrect size element and other emotions out of this thread, the advice from this forum on a termination settlement would have been much different. It seems to have tainted the discussion.

If a contractor has multiple DUNS numbers, and conducts its Federal business primarily through a business segment (not subsidiary) covered by a specific DUNS number, does the reference to ?offeror? in the CCR database apply to the entire company or to just the segment of the company covered by the specific single DUNS number? CCR allows only one DUNS number. Some of the data elements in CCR do not seem to make sense if you restrict your response to a single DUNS number and others don?t make sense if you look at the entire company. What is the rule?

Well it sounds like you need to negotiate - which means that you need to offer something in return. Some contractors may be willing to accept the risk of cancellation under certain specific conditions, one of them being annual appropriations (not incremental funding). This means that you can not cancel the license simply because you decide you don't want it or you do not use good faith to secure funding. I have even seen some finance institutions accept this risk and allow the contractor to sell their anticipated revenue stream to them and cash them out up front without recourse. You need to negotiate fairly and in good faith.

The Contractor's proposed language sounds very similar to the FAR cancellation clause 52.217-2. This clause does not conflict with the ADA, what you need to do is fund the possible cancellation charge with current year funding. SOP.

Are we OK with the NASA SEWP approach?

Is the not to exceed the GSA price a critical element of the NASA approach, and if this element were eliminated would the over-all approach fail?

Did you distinquish between Direct (sales directly to a customer) and Indirect (sales made through a reseller or other prime contractor) sales on your CSP?

Internal sales are likely a different class of customer on your CSP. The Basis of Award and Price Reduction are probably not tied to this class of customer. However, if these sales were included on the CSP for the class of customer that is tied to your BoA and Price Reduction, then your stuck with it.

For number 3 can government approval take place at time of order and on an order by order basis?

one online catalog

I am not sure I understand the relationship of unit prices to the anti-deficiency act - however does a contract that adjusts its prices based upon some index (CPI) essentially cause the same issue for you.

Keep in mind that the ordering activity will see the current price at time of order and can decide then if they want to order the item at that price or not - not a requirments contract.

For a number of reasons I would like to have a contract (not a BPA) that has its unit product prices specified in terms of a discount from the product?s list price as opposed to specifying the discrete discounted price of the individual product(s). For example: I have a product that has a list price of $100, I would like to propose its price in terms of a discount, say 20% instead of discretely specifying its price of $80. As the list price may change over time, the discount would remain constant, the net contract price however would change as the list price changes. I believe that the NASA SEWP IDIQ contracts work in this way.

My question:

What specific issues, rules or regulations need to be addressed at time of contract award, or afterward, to ensure that this approach is acceptable?

It would alleviate a lot of contract administration overhead.

Ok - one more time

1) Bad debt - not allowable

2) Relocation Costs Voluntary Termination within 12 months - not allowable

3) Relocation Costs Termination for cause within 12 months - allowable

The situation is number 3 - allowable

I don't get it.

Relocation Costs for an employee voluntaryily resigning within 12 months are unallowable.

Bad debts are unallowable.

Relocation Costs for an employee terminated for cause within 12 months are allowable.

Isn't the question at hand - whether the packaging of relocation as a loan now make the cost a bad debt (not allowable) versus a relocation cost (allowable)?

I came across an interesting take on Trade Agreements. My information is 2nd and 3rd hand so I can not add much detail.

A prime contractor on a major MAS IDIQ GWAC has the Trade Agreements clauses 52.225-5 and 52.225-6 as prescribed in 25.1101©(1) and ©(2). The prime needs to add product to the contract to bid on a competitive (fair opportunity) requirement. However, the products do not qualify as Trade Agreement.

The government CO says the products do not have to be Trade Agreement compliant because the CO has found the products to be exempt from Buy American Act under 25.202 and the prescription at 25.1101©(1) allows the CO to use this exemption. The products did not qualify for exemption under 25.401 and the CO did not put them on contract because there were no other offers that were compliant.

I never seen it done this way before and I may have gotten some of the details wrong but I can confirm the result, the products are on contract.

What do you think?

Does a waiver to cost or pricing data indicate that the CO has made a determination that cost or pricing data is required but has obtained a waiver from the HCA?

See 15.403-1©(4) ?If the HCA has waived the requirement for submission of cost or pricing data, the contractor or higher-tier subcontractor to whom the waiver relates shall be considered as having been required to provide cost or pricing data?.

And does an exception to cost or pricing data indicate that the CO has made a determination that cost or pricing data is not required and has therefore granted an exception?

See 15.403-4(a)(1) ?The contracting officer must obtain cost or pricing data only if the contracting officer concludes that none of the exceptions in 15.403-1( applies? and ?Unless an exception applies, cost or pricing data are required??.

But exceptions to cost or pricing data include the granting of a waiver - see 15.403-1((4) ?When a waiver has been granted??.

How is granting of a waiver considered an exception ? they seem to be different; or somewhat similarly, can a waiver be granted on the basis of an exception?

With the upcoming elections, enormous deficit, government spending, the U.S. and world economies not recovering, I wonder if we may ever see another budget passed by congress. In anticipation of a prolonged funding crisis come this October 1st, with a possible Government shut down and no continuing resolutions, what actions should a Contractor and/or Government CO do now to lessen the impact to their programs or otherwise insulate their program?

It would appear that under a directed subcontract scenario that the subcontract would have to be limited to services to avoid a sole source justification, otherwise the subcontract for product would in essence be a brand name specification requiring a sole source justification 6.302-1©. Supplier vs subcontractor definition.

Does the surrogate price become the contract price? Why as a prime would I not bid a high contract price for the subcontractor if I will be evaluated at the lower surrogate price?

The recent DoD memo directing DFARS PGI 204.7108 (payment clauses) be put into the software acquisition systems is pretty clear (mixed contract types require multiple payment clauses):

http://www.acq.osd.mil/dpap/policy/policyv...534-10-DPAP.pdf

Yes - more or less.

I am keenly aware of the many facets of the definition of a commercial item - I am interested in this one particular facet.

Thanks.

Is there any FAR historian that knows what happen to the definition put forth in 15.804-1((iv) found in Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Proposed Rules

iv) Sold in substantial quantities. An item is sold in substantial quantities if there are sales of more than a nominal quantity based on

the norm of the industry segment. For services to be sold in substantial quantities, they must also be customarily provided by the

offeror, using personnel regularly employed and equipment (if any is necessary) regularly maintained principally to provide the services.

http://www.gpo.gov/fdsys/pkg/FR-1995-01-06/html/95-12.htm

FAR Case 94-721

Is it valid to use this definition of "sold in substantial quantities" rather than the one removed in 15.804-3 even though this proposed definition never made it into the final rule?

I don't know why the text gets converted to the silly faces. It seems to happen when you put the letter b in parens. And when you put the letter c in parens you get the copyright symbol.

Does anyone know what clauses the software acquisition systems (SAP, PD2, etc.) - as discussed on another thread - identify for use with a mixed contract type contract? Do these systems, for a mixed FFP and CR contract, identify that CR funding and payment clauses should be included? I think that DFAR 204.7103-1( and © is pretty clear that when you have more than one contract type within a contract that the contract will require more than one payment clause. FAR 16.307 prescribes the 52.216-7 payment clause for CR contracts - and you will need a funding clause (52.232-20 - 52.232-22) per 32.705 -2(a) and (.