Whynot

Under a FAR Part 12 fixed priced commerical contract with the 52-212-4 clause: what law, rule, regulation or agency requirement would the government possibly be trying to comply with by mandating that travel be cost reimbursable and/or subject to 31.205-46 and/or not exceed the FTR? Likewise, under what circumstances would a FAR Part 12 contract ever be subject to the Cost Principles at FAR Part 31?

Separately, does Alt 1 of the 52-212-4 clause for T&M/LH contracts invoke the cost principles?

The alt 1 version of 52.212-4 is for T&M/LH and the payment provisions are very different from the base clause- I think tailoring or moving to alt 1 payment version would constitute a cardinal change to the contract. The alt 1 version provides how to reimburse travel. My point is that it can not be done unilaterally if the contract is already controlled by 52.212-4.

I think we agree that the reimbursable travel makes that part of the contract cost reimbursable.

DFAR 204.7103-1(a) supports this conclusion.

Are you saying that if you have a cost reimbursable contract that you don't need a funding or payment clause? Or are you saying that you tailor those clauses?

I think we will agree that you can not tailor the payment clause in 52.212-4, but I guess it would be OK for a new solicitation.

With respect to 52.232-20 Limitation of Cost and 52.232-22 Limitation of Funds, these clauses are listed in the FAR Matrix as REQUIRED when applicable. You will need a funding clause one way or the other when you have a cost reimbursable CLIN/contract. They are not OPTIONAL.

I think you would need 52.216-7 Allowable Cost and Payment.

If you already have a commercial fixed priced contract with the 52-212-4 clause you can not unilaterally add cost reimbursable CLINs. The addition and/or ommsion of clauses would have to be bilaterally agreed for any cost reimbursable work under an exisiting fixed price contract.

I would think that if you have cost reimbursable CLINs then that portion of the contract is considered to be a cost reimburasable contract. Contract clauses appropriate for a cost reimbursable contract are identified in 16.307 and subpart 32.7. DFAR 204.7103-1(a) see (iii)( and © specifies that you have a mixed contract.

Is there a current definition of "sold in substantial quantities" besides the definition that used to be found at 15.804-3(f)(2) pre FASA? For my purposes, I would like to find support for a definition of "Sold in Substantial Quantities" as "sales of more than a nominal quantity based on the norm of the industry segment. Models, samples, prototypes and experimental units are not substantial quantities". I am looking for a slam dunk - if possible.

What's an SSA?

You might want to look at how to protect information from release under FOIA - lots of stuff on the web.

H2H

Thanks. I might try it.

Are you relocating to the Washington DC area?

I think the clause is inappropriate for the solicitation. However, I think it is more or less harmless - although the 20% final payment is above my normal commercial practices.

I have 232.501-1. I would like to set a payment method based on accepted supplies and services (partial deliveries). Is such a payment method in conflict with the progress payment clause? Or does the progress payment clause merely limit the amount of the last payment based on final acceptance - as stated in the clause it is not less than 20%?

I have a fixed priced proposal for equipment and various services - I am unclear if I propose a payment plan based on some milestones if this payment plan is considered Progress Payments. I am under the belief that Progress Payments are cost based - my payment plan is not based on incurred cost.

Sorry, the formatting got lost in the tables.

"Under the RFP, proposals were to be evaluated for ?best value? on the basis of the following evaluation factors listed in descending order of importance: ?design technical,? performance capability, and price. RFP at 4 and 5. The two non-price evaluation factors when combined, were equal to price.?

If the above evaluation approach is accurate - what is it telling us to do?

Does the following make sense?

If we look at a notional evaluation consisting of four proposals, with two possible scores ?good? and ?average?:

Evaluation Factor Bid 1 Bid 2 Bid 3 Bid 4

Design Technical Good Good Average Average

Performance Capability Good Average Good Average

Price

In this evaluation Bid 1 is the winning bid from a non-price standpoint. Bidders 2, 3 and 4 would have to offer a lower price than Bidder 1 to make-up for their lower score. The question then becomes how much lower? Perhaps ?the two non-price evaluation factors when combined, were equal to price? helps us establish a means to calibrate this dollar threshold.

Evaluation Factor Bid 1 Bid 2 Bid 3 Bid 4

Price

More Important 5 % 10 % 15 %

Equal Important 10 % 15 % 20 %

Less Important 15 % 20 % 25 %

Therefore, if price is of a lower evaluation importance than technical the question becomes ?how much lower in price must the bid be to overcome the lower technical score?

But, if price is of a higher evaluation importance than technical then the question is reversed and becomes ?how much better technically must a bid be to overcome the lowest price?

Evaluation Factor Bid 1 Bid 2 Bid 3 Bid 4

Price Lowest 2nd Lowest 3rd Lowest 4th Lowest

Design Technical

Performance Capability

Maybe, the two questions yield different results: ?how much lower in price must the bid be to overcome the lower technical score? is not equal to ?how much better technically must a bid be to overcome the lowest price?.

It would be interesting to see if two acquisitions, RFPs and proposals received are identical in every aspect but the only difference is ?in descending order of importance? is changed to ?in ascending order of importance? in the evaluation approach would the same Bid win?

The paradox can be solved using negative values:

A >= B

B >= C

C >= A + B

A = -1

B = -2

C = -3

Maybe we uncovered another contracting myth.

A GSA BPA that does not have additional discounts or terms from the parent schedule is nothing more than an ordering guide for administrative convenience. I think that such a BPA does not require signatures.

Of interest is that the suggested BPA Format on the GSA website does not have a signature block. Perhaps a call into GSA would be enlightening.

Vern's recommended "Economical LPTA" approach sure would be ill advised in this situation.

Did anyone else see the horse move - just a little?

From The Government Contractor:

As for the CICA stay?the stay of a contract award decision that automatically comes into play when that contract award decision is challenged before GAO?this stay may simply be unavailable in the context of task orders because such orders may not be ?contracts.? The FAR councils could probably resolve

the CICA stay issue by redefining the term ?contract? under FAR 2.101 to include task orders, but given the serious nature of the controversy and its likely impact on other aspects of the multiple-award IDIQ contracting system, that sort of redefinition appears unlikely because treating task orders as ?contracts?

could trigger other procedural obligations.

and

The first time period, from the date of contract award to 10 days after contract award, is irrelevant to protesting task orders, since such orders are not ?contracts? in themselves. See definitions of ?task order? and ?delivery order? under FAR 2.101.

http://www.pubklaw.com/papers/TGC51-20-174.pdf

Because a horse is never too dead to stop beating it, I found this position from the ABA

FAR 2.101 defines "contract" as "a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the government to an expenditure ofapproved funds ...." On the other hand, the terms "delivery order" and "task order" are defined as orders "placed against an established contract" and, thus, arguably do not constitute "contracts" under the FAR.

http://www.abanet.org/contract/federal/reg...rmation_011.pdf

Also, this forum has concluded that a task order is a contract as defined under FAR 2.101, and is considered to be a "negotiated prime contract" for purposes of FAR Part 15.4.

Maybe you can look at FAR Case 2008-006 Enhanced Competition for Task and Delivery Order Contracts--Section 843 of the Fiscal Year 2008 National Defense Authorization Act and FAC 2005-27 for some background on why the change was made to this FAR and in so doing find some references that would provide clarification to your COs to its proper interpretation.

T&M contracting requires a vendor to have a certain accounting system capability in order to properly perform - under FFP, such accounting capabilties are not required. Therefore, it is possible that a vendor did not bid on the original contract because it was not FFP.

I would think that the technical evaluation has to come first. If you look at the price first, sort the offers by price and then give the proposals one-by-one to the technical evaluators to determine if it is technically-acceptable and then stop when you reach the first one may not be fair to all offers. The technically-acceptable bar may not be so clear cut or black and white. The evaluator knowing the price rank may be influenced in their technical evaluation.

When I look at the definition of ?contract? in 2.101, and try to determine if a ?task order? falls within the definition, I do indeed see the word ? order? but only after the words ?in addition to bilateral instruments?, so therefore I assume ?order? as used in this definition refers exclusively to unilateral orders and doesn?t fall within this meaning. I believe that task orders under multi award ID/IQ master contracts are bilateral orders.

I suppose ?task order" could fall within ?all types of commitments that obligate the Government to an expenditure of appropriated funds?. But if so, why does the definition go on to further define contracts? Everything else worded in the definition, with the exception of what isn't a contract, would merely be a subset to this broad catch all.

Maybe, I am not understanding the syntax of this defintion.