Whynot

or Door Number 1?

no follow-on

"one year extension to an existing contract that will expire at the end of the year."

can extensions be for a year?

Door Number 3?

No extension.

"follow-on one year contract to an existing contract that will expire at the end of the year."

Since we are waiting for clarification on the certifying prices terminology, I would also like to get clarification on whether we are talking about an extension of a current contract that is about to expire, an exercise of an option under a current contract period that is about to expire (priced or unpriced), or a separate stand alone follow-on contract to the original contract. I think if we are talking about an extension of an original contract it may not be necessary to certify at all.

I always thought of everyone in this forum as a jailhouse lawyer, including Vern. There is nothing finer then when a jailhouse lawyer beats the real lawyer. Not much satisfaction though in one jailhouse lawyer taking on another jailhouse lawyer ? the real lawyers will only laugh at us. We need to stick together, and above all no whining and never apologize.

Lawyers need to fear WIFCON.

For the forum rules I propose we should add no whining, no apologies and no real lawyers allowed.

This forum has a long history of not being enthralled by GSA interpretations and actions.

In the referenced VBus post - the GSA clause, C-FSS-370 references Public Law 99-234 and FAR 31.205-46. Makes it all look and sound proper. The GSA clause does not implement the public law. The lawyer says it is descriptive.

The purpose of this thread was to look at C-FSS-370 and see if it was proper. VBus post is good for the additional references to Public Law 99-234 and FAR 31.205-46 for further avenues of discussion. I think will be fruitful.

Referencing C-FSS-370 for purposes of resolving the issue is circular.

I am interested in Vbus' post. Nothing in Pub. L. 99-234 addresses contract type. Makes sense under T&M.

Is there anything in the redbook after the Federal Streamlining Act was implemented?

Your position is unconvincing.

Find me case law that ever relied on the position - this is the way it is done because this is way it always has been done.

I am reminded of an example provided to me by a teacher in a business class.

A company manufactured white walled tires. When they shipped them to stores many of the white walls often got marked up and scratched in transit and the stores ended sending them back. The company wanted a way to reduce this costly damage. Their experts and outside consultants came up with various ways to protect the tires during shipping ? all at a cost. A newbie came up with the answer ? stop making white walled tires, nobody is buying them anymore. The company switched to manufacturing black wall tires.

Your premise that travel can not be fixed price, and if you do, it will cost you more is not a given. Competition, the enormous reduction in administration costs to industry and government might very well result in a windfall savings to everyone. At the very least it will be compliant with law.

DON - see FAR 12.207. I agree that T&M can now be used for commercial services under certain restrictions. We seem to be mixing and matching features of various contract types to come up with a contract variant that is not described in the regulations - (FP & M).

I would assume that if you are using 12.207 to support travel reimbursable under T&M then in our hybrid mixed contract construct that the T&M restrictions would need to come along with it - can't cherry pick.

The lawyer says the clause is descriptive (nonrestrictive).

Stunning logic (part 2)

Statute (commercial acquisition) trumps regulation.

Here is another position.

Travel is ODC.

From GSA website.

Other Direct Costs

Other Direct Costs (ODCs) are charges in direct support of a service. They are commercial items. To the extent possible, all anticipated ODCs associated with performance and within the scope of the GSA Schedule contract should be offered and have an established contract price. Other Direct Costs must not be the primary purpose of the task order.

Travel is Open Market.

From GSA website.

Open Market Items

The Federal Acquisition Regulation (FAR) has been amended to incorporate policies that address the handling of open market items.

Note: Open market items are also known as incidental items, noncontract items, non-Schedule items, and items not on a GSA Schedule contract.

In accordance with FAR 8.402(f), for administrative convenience, an ordering activity contracting officer may add items not on the GSA Schedule (Multiple Award Schedule) contract?i.e., open market items?to a GSA Schedule Blanket Purchase Agreement (BPA) or an individual task or delivery order only if?

All applicable acquisition regulations pertaining to the purchase of the items not on the GSA Schedule contract have been followed (e.g., publicizing (FAR Part 5), competition requirements (FAR Part 6), acquisition of commercial items (FAR Part 12), contracting methods (FAR Parts 13, 14, and 15), and small business programs (FAR Part 19));

The ordering activity contracting officer has determined the prices for the items not on the GSA Schedule contract are fair and reasonable;

The items are clearly labeled on the order as items not on the GSA Schedule contract; and

All clauses applicable to items not on the GSA Schedule contract are included in the order.

I think you are wrong.

Travel is open market and is not covered by FAR Part 8.

The logic is stunningly simple:

Commercial items must be Fixed Price.

Travel is Commercial.

Therefore, Travel must be Fixed Price.

Nothing really convincing has been put forward to defeat the lawyer's position - other than a lot of inertia. The reference to 16.206-1 is clearly limited to research and development contracts less than $100,000.

It is also wrong to think that proposing/negotiating travel on a fixed price basis will likely end up costing more.

I am not yet convinced the lawyer is wrong.

It does appear to me that if travel is considered commercial then travel should be contracted for on a fixed price basis.

I think GSA treats travel as an open market item that is not on their contract.

If you have a contract that has fixed priced items and cost reimbursable items then you have a mixed contract type (FP&M?). Doesn't sound right.

I see that DFAR 235.006 provides some direction "...do not award a fixed price type contract for a development program..". However, I am not sure if this prohibition is only applicable to contracts over $25M.

I am not sure that everyone is using the definition in FAR 16.207 for FP LOE. I think they some may be using the term LOE not so much to define the quantity of hours to be delivered but that the work does not have a specific deliverable based SOW. Would something like a FP of $200,000 for a full time one year onsite Program Manager to perform Program Managament work be considered a FP LOE contract or just a FP contract?

It was not my intention to zero-in on a particular contracting situation. I would like to know if there are other guidelines or references for selecting contract type besides those found in FAR Part 16 - in particular guidelines or references that match contract type to the type of work. For example, is there a reference that states if you are developing rocket software you should use a particular contract type and if you are developing invoicing software you should use this particular type of contract? I am intersested in the guideline. I will match my situation(s) to the guideline - not the other way around.

Please disregard my specific interest in an appropriate contract type for software development. I am looking for something more general.

I am looking for published documentation for using a particular contract type based upon the type of work to be performed. I am familar with FAR part 16. I am particularly interested in the most appropriate (or conversely the least appropriate) contract type for software development work.

Reminds me of a class I took once. In the class, the instructor gave a group of six or so students an assignment. The assignment was to listen carefully to what they are being told and to be able to repeat it as accurately as possible. The instructor had all the students in the group leave the room except for one, he then, in front of the class, verbally gave that one remaining student some information. He then brought in one of the students that left the room and had the student that he just told the information repeat the information to the student that just came in. This was repeated, where the second student passed on the information to the third student, so and so on.

You would be amazed, despite the students? best efforts to complete the assignment, at how the message changed as it was passed along.

I think it will take a lot of creative archeology to extract the original relevant information. It might be best to start with a fresh slate.

It would be a good idea to make sure it does not create a problem under any teaming agreement or non-disclosure agreement that the company may have signed as a prime and/or as a subcontractor - otherwise the company may have to create two separate proposal teams and firewall them from each other.

I will go with your GAO case. However, I can see nothing in the two referenced decisions, Simplicity and ITT, that supports their conclusion. Nonetheless, it is a conclusion.

By the way, Vern is cited in the SERCO case.

I am not sure the cited cases provide much help.

In SERCO the Court?s statement (page 31): ?While the regulation does not define what it means by ?adverse? past performance information, the adjectival ratings here defined such information as that which resulted in a past performance rating of ?L/N? or ?1.?? I feel is limited or constrained to ?the adjectival ratings here? in their particular Acquisition/RFP. In our scenario, there are no adjectival ratings, other than you win - you almost won. So super imposing the courts words to our scenario we could get the following: ?While the regulation does not define what it means by ?adverse? past performance information, the adjectival ratings here defined such information as that which resulted in a past performance rating of ?you almost won? or ?only exceptional??.

The case is a good one to read ? it is a study in how to conduct a flawed past performance evaluation.

http://www.uscfc.uscourts.gov/sites/defaul...opdredacted.pdf

I don?t see anything in the protests that deal with a protest being denied because the past performance was found not to be adverse in the first place and therefore did not require the bidder to be given a chance to respond. The protests seem to deal with CO discretion, validity of the past performance information, and responsibility of the bidder to provide information.

I don?t see how if there are two bidders, and everything else being equal, and the award is based upon past performance, if the awarded bidder is subjectively found to have very exceptional past performance and the loosing bidder is subjectively found to have only exceptional past performance that the loosing bidder?s past performance was not adverse.

Where is adverse defined as having to be poor or bad in its own right?

Under this scenario, should the offeror be given the opportunity to respond to subjective adverse past performance information? Because this is a subjective evaluation, can "adverse" be defined as not as good as the next bidder.

The RFP that I am looking at now does - in section K. I assume that this provision invokes the applicable certifications in ORCA automatically.

What about having both TAA/BAA clauses?

I have seen several RFPs that include both the contract clauses 52.225-1 and 52.225-5, but do not include the associated solicitation provisions 52.225-2 or 52.225-6. How does this work? If a contractor does not provide a certification, how does the government make an award? And if an award is made (without certification or other representation), must the contract items be both BAA and TAA compliant, or one or the other compliant, or neither compliant?

For how much and when? Or do you mean issue a blank check? It sounds like the equitable adjustment for the change order will be based upon actual hours needed to perform the change - nothing to negotiate.