Matthew Fleharty

2 hours ago, Jamaal Valentine said:

I avoid Sep 31 actions … 

After all this time I'm just now finding out that we have an extra day in each fiscal year?!

The requirement for Brand Name Justifications is governed by the Competition in Contracting Act (CICA) and FAR Part 6, not FAR 11.105.  Since FAR Part 6 covers Brand Name Justifications under FAR 6.302-1( c ), refer to FAR 6.001 which states:

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This part applies to all acquisitions except --

(a) Contracts awarded using the simplified acquisitions procedures of Part 13 (but see 13.501 for requirements pertaining to sole source acquisitions of commercial items under Subpart 13.5).

Micro-purchases are a Simplified Acquisition Procedure under FAR Subpart 13.2, therefore they are exempt from FAR Part 6 requirements which include Brand Name Justifications.

Furthermore, the brand name documentation requirement anoncon is likely referring to is cited under FAR 13.106-1(b)(1)(i); however, that only applies when soliciting competition and FAR 13.203(a)(2) can exempt micro-purchases from solicitation procedures:

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Micro-purchases may be awarded without soliciting competitive quotations if the contracting officer or individual appointed in accordance with 1.603-3(b) considers the price to be reasonable.

Finally, FAR 11.105 deals with how agency requirements are written...if one is not writing a solicitation it would, therefore, not be applicable (though I'd further argue that the guidance to not preclude consideration of a product manufactured by another company unless "the particular brand name, product or feature is essential to the Government's requirements, and market research indicates other companies’ similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the agency’s needs" is sound advice regardless of the method of procurement). 

H2H,

For an IDIQ I'm not sure either - the approach I've mentioned is used on contracts to establish options/mechanisms to contract for quick reaction tasks or studies.  Establishing rates and a labor hour cap is necessary to comply with FAR 17.207(f), otherwise those efforts may require a J&A.

Assuming the work is not commercial, rather than using FFP rates (via task order or additional CLIN depending on how the contract is structured) where one pays the full amount regardless, one could use a pre-established CPFF rate(s) on a per labor hour basis. With a CPFF structure, the contractor would only be able to charge for actual costs of performance (which may be lower or higher than the amount established) and the fixed fee at the amount specified.  In terms of execution, the parties negotiate the amount of labor hours then apply the pre-established contractual CPFF rate and fee amount to arrive at the total estimated hours, target cost, and fixed fee amount for the effort.  

One could conceivably use a pre-established CPIF structure instead in order to encourage cost control during performance, although I have not seen this approach used (yet).

Vern,

Just curious, does your position on pre-negotiated rates change (to any degree) if one uses CPFF rates rather than FFP rates?

If hightytighty is in the situation I think he/she is in, the contractor's concern regarding providing a Certificate of Current Cost or Pricing Data for orders stems from being required (contractually) to use predetermined rates to price out work that one, two...five years down the road will almost certainly be different than the rates they're realizing. The contractor is likely arguing that it is, therefore, impossible to execute the required certification that the contractually required rates are accurate because their actual rates are not the same as the rates used to price out the work.

Not to pile on, but I agree with the position that utilizing or attempting to utilize a "blind" source selection process is not a wise approach.  Your time and energy would be better spent researching other, more impactful techniques, such as avoiding an "essay writing contest."  If you search these forums I'm sure you'll find plenty of helpful information.  Look here for starters:

For example, try oral presentations (FAR 15.102).  Maybe you could even have your evaluators wear blindfolds if you're still concerned with the identity of offerors...

15 minutes ago, NavyBuyer said:

Shooting instructor's have become a dime-a-dozen in the past decade thanks to the GWOT. Once these guys get hired, and can now pad their resume as an Instructor with this particular course, they jump ship for the higher paying jobs down range, or quit after the re-compete because each year their wages get drugged down as a result of the Department of Labor and Wage Determinations. There was a period for awhile where many shooters were coming home and taking these jobs because the overseas jobs were diminishing; however, with an uptick recently in contractors down range, the target market of shooters we want to attract to be heading back over overseas.

(Emphasis added above)

Sounds like your issue isn't just with labor rates, but also with the inability to discriminate between levels of technical competence amongst shooting instructors...

I'm not sure the example used by Representative Duffy in his press release is indicative of the problems facing Federal employees on a day-to-day basis...

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An example of the kind of rules and regulations Federal employees should follow: Consider sanctions against North Korea, which Congress directed the President to promulgate in the form of Federal rules and regulations.  Under current law, Federal employees who are told by their supervisor(s) to violate North Korean sanctions have no whistleblower protections.  The Follow the Rules Act would fix this and should be considered by Congress.

https://duffy.house.gov/media-center/news/duffy-connolly-bill-offers-additional-protections-for-whistleblowers

5 hours ago, cblack20 said:

The contractor has now come back and wants to submit a claim for the equipment purchased, staff hired, and overhead. Asking for guidance on where to begin when looking at the costs submitted to determine what is fairly due to the contractor and what is fair and reasonable to the Government.

Without knowing the particulars of the contract in question, I hesitate to offer any advice on how to handle the situation; however, since you asked "where to begin," a good place would be the FAR 52.212-4 clause, specifically paragraph (l) regarding Termination for the Government's convenience which states in part (emphasis added):

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Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

Sounds like the notice of termination was never issued until now (or maybe still has not been issued), so ask yourself: what work was performed by the Contractor prior to the notice of termination?

On the other hand, if the Contractor insists on submitting a claim you should follow FAR 52.233-1 per paragraph (d) regarding Disputes:

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This contract is subject to 41 U.S.C. chapter 71,Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

Ultimately, be reasonable about the situation and use your best business judgment - what costs did the Contractor incur in preparing or trying to fulfill the contract?

58 minutes ago, here_2_help said:

Yes, it's not just about the ADA, but the ADA is my starting point because I can't repeal Congress.

What's the alternative? Or is there one? I'd imagine there would have to be because, according to the Constitution, Congress has the power of the purse...

2 hours ago, here_2_help said:

Let's eliminate the Anti-Deficiency Act, for starters

Why?

Read the prescriptions and you'll notice the difference.  FAR 52.217-8 is for services while FAR 52.217-9 is for other instances in which an extension of a contract with options may occur (think about the use of options in supply contracts).

This topic was covered recently in the following forum thread (don't be deterred by the use of "contingency" in the title...the posting/notice requirements from a general standpoint are discussed at length throughout):

16 minutes ago, PepeTheFrog said:

The contracting officer can add any clauses he wants to your contract, unilaterally, but you can respond with a claim or request for equitable adjustment (REA).

Pepe,

What authority would a contracting officer use to do this?  I'm not aware of any (but I may be mistaken)...

Let's first clear up the "Christian Doctrine."  The existence of the "Christine Doctrine" does not give the Government authority to make a change to a contract - if you read the case and the resulting legal analysis regarding the "Christine Doctrine" it will state something along the lines of:

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"if a clause is required to be included in the contract and it "is sufficiently ingrained in public procurement policy." the contract will be read to include it even though it is not physically incorporated in the document"   Cibinic, Jr. John, Ralph C. Nash Jr., and James F. Nagle.  Administration of Government Contracts, 4th Edition

That does not mean the Contracting Officer can make that determination and then incorporate the clause into the contract unilaterally.  If you're relying on the "Christine Doctrine," the clause will not appear in the contract, then you'll roll the dice when/if a dispute arises causing the Government and the Contractor to appear in court.  The judge will then decide if the "Christine Doctrine" standards are met.

As for the other, larger issue, regarding changes to contracts, that all depends on the contract in question (is it commercial or non-commercial, fixed price or cost-reimbursable, etc.).  Read the contract and figure out what the contract says regarding changes to it and go from there.  What you won't find in any of the Changes clauses is the ability to unilaterally modify the clauses of the contract.  So here are some options to consider (not an exhaustive list):

• If you and your organization's legal counsel are confident that the clause(s) meet the Christian Doctrine standards, don't bother trying to negotiate their inclusion.  If a dispute arises over the issue that the clause governs, per the "Christian Doctrine" the clause will be read in and applied appropriately.
• If you and your organization's legal counsel is confident that the clause(s) meet the "Christian Doctrine" standards and you want the contract to read correctly, leverage that to incorporate them via bilateral modification with no (or minimal) consideration provided (after all, it would be read in anyways).
• If the issue is unclear and in dispute between the Government and the Contractor, incorporate them via bilateral modification providing appropriate consideration (if warranted/necessary).

2 hours ago, DJEarl said:

James Nagle's A History of Government Contracting is a surprisingly interesting read for those who enjoy military history. Nagle takes what could be a very dry litany of facts and dates and weaves a captivating tale of our nations history from the perspective of federal procurement. Check out this review: 

http://www.governmenttraininginc.com/A-History-of-Government-Contracting-Handbook.asp

Still trying to figure out how to obtain a copy of this (or "these" as it appears the Third Edition is two volumes) - thus far my attempts at purchasing through their website haven't work (the "Secure Payment Server" is a broken page full of Asian characters) and no current editions are available on Amazon or elsewhere (at least that I've been able to find).

Also, welcome to Wifcon and congrats on the first post!

2 hours ago, Jamaal Valentine said:

I was recently loaned It Worked for Me: In Life and Leadership by Colin Powell. It is a really good book. I have the paperback (library checkout) and audiobook (mentor loaner) where Colin Powell does the reading. It has a conversational story-like feel to it as you hear Colin Powell share old experiences.

I'm going to purchase both versions.

Huge fan of that book Jamaal - lots of tidbits of useful information in quick, digestible chapters that are easy to read independently (and share with others - as you experienced).  If you enjoyed that book, I'd also recommend Duty by Robert Gates (https://www.amazon.com/Duty-Memoirs-Secretary-at-War/dp/030794963X) - certainly a different format (way more biographical), but interesting nevertheless (especially when he begins discussing acquisition program cuts).

On my way into work this morning, NPR aired a segment on making better predictions (http://www.npr.org/2016/09/01/492203116/want-to-make-better-predictions-researchers-explore-where-we-go-wrong).  The research (http://repository.upenn.edu/edissertations/1074/) was focused on predicting sporting events and in cases where more details were given or required to be assessed, individuals made (some) worse predictions.  Disclaimer: I haven't completely read the dissertation (it's an EOFY work day and the dissertation is 200+ pgs...), but I couldn't help sharing due to its applicability to the contractor selection process, which is ultimately a predictive process itself.  Assuming these issues/difficulties are also present in the contractor selection process, the large amounts information/data requested from contractors could not only be wasteful (in that it doesn't help the acquisition team make a better decision team) it might actually be harmful (in that it results in a worse prediction).  Thoughts?

56 minutes ago, Vern Edwards said:

Matthew:

So if an agency included FAR Subpart 15.3 type procedures in its task or delivery order contract, including notice of elimination, and if the agency did not follow those procedures, then the contractor would have a basis for demanding a remedy for breach of contract. Right?

Would the contractor have a basis for demanding a remedy for breach of contract and a basis for a bid protest if the order were for more than the protest dollar threshold?

I believe so - at the moment, I cannot see why that would not be the case.

Just to reiterate my previous "disclaimer," by no means am I advocating that it is a sound approach to incorporate FAR Subpart 15.3 procedures (or procedures that are substantially the same) as the ordering procedures for multiple award IDIQs - I'm just stating that it is possible that could be the case as the framework established by FAR 16.505(b) does not prohibit doing so (FAR Subpart 15.3 does not violate any of the criteria at FAR 16.505(b)(1)(ii) (A) through (E) or FAR 16.505(b)(1)(v))...FAR 16.505(b)(1)(ii) just states that FAR Subpart 15.3 does not apply by default to the ordering process.

4 hours ago, Vern Edwards said:

Matthew:

So an ordering agency must comply with FAR 15.3 procedures and provide a notice of elimination from the competitive range if, and only if, their contract stipulates the use of such procedures. Is that correct? So compliance would be a matter of contract performance. Right? FAR Subpart 15.3 otherwise does not apply to task order competitions. Correct?

Correct.

58 minutes ago, Vern Edwards said:

Matthew: Who would require that an agency comply with Part 15 in a 16.505 acquisition? How do you know that they would require it?

To know whether or not compliance is required, I'd read the IDIQ's ordering procedures.  The ordering procedures may refer to FAR Part 15 or it may simply use the same (or similar) language/procedures from FAR Part 15.  I'm not advocating anyone establish an IDIQ that does so, just that it isn't outside the realm of possibility.

1 hour ago, ji20874 said:

If you decide to open discussions under a fair opportunity consideration, you are not obligated to follow all the FAR Subpart 15.3 procedures -- see the pentultimate sentence in FAR 16.505( b )( 1 )( ii ).  The GAO tells us clearly that the FAR Subpart 15.3 procedures are not needed, only that the discussions should be fair and not misleading.  Even forming a competitive range is a FAR Subpart 15.3 process, and is not required before holding discussions under fair opportunity consideration procedures.  The GAO has repeatedly ruled that FAR Subpart 15.3 procedures don't apply -- only that the discussions must be fair and not misleading.  [repition for emphasis]

With one exception: if the office decided to use a process identical or similar to the FAR Subpart 15.3 process when they wrote their ordering procedures, the office would be required to follow those procedures in spite of the rulings you allude to.

govt2310, what do your IDIQ's ordering procedures state?  FAR 16.505 provides a framework for those procedures...just because it is silent on an issue does not mean your ordering procedures are as well.

Thanks Don - middle of the workday, otherwise I'd normally do it myself.

24 minutes ago, Don Mansfield said:

Some of you seem to think that the requirement for set-asides overseas is an open issue. The SBA regulations have required set-asides overseas when the applicable conditions are met for over two years. The GAO and the COFC have consistently held that the SBA regulations trump the FAR when there is a conflict. 

Don,

Apologies in advance for being lazy, but could you point us to the requirement and the "applicable conditions" - I'd be interested to read and understand them.

3 hours ago, PepeTheFrog said:

PepeTheFrog predicts the SBA (and, surprisingly, the banned protestor) will eventually get their way-- application of FAR Part 19 overseas. Whether it will be discretionary or mandatory remains an open question.

I don't think they'll be successful, especially when contingency environments like Iraq or Afghanistan are considered.  In those environments, I'd argue that the mission trumps concerns for US small business goals.  That is not to say that small businesses should be ignored or precluded - if a small business can offer a fair and reasonable price that meets the Government's requirement (often urgent in those cases), then great, but I can't envision an environment where they'd be the default option.

It's also worth considering the impacts of Status of Forces Agreements (SOFAs) the US has with other countries on contractors overseas - in most cases, they do not cover contractors (https://www.state.gov/documents/organization/236456.pdf pg. 1 subscript) and in other cases, the US Government agrees to purchase directly from the local economy (correct me if I'm wrong, but I recall this being the case in Qatar though quick research wasn't able to turn up the specific SOFA).  Furthermore, the local requirements and laws of other countries vary considerably as well (for some examples refer here: http://www.au.af.mil/au/awc/awcgate/awc/2006_ratton.pdf ...whether or not the author's conclusion is sound on reducing "outsourcing" to contractors is another conversation altogether, but the examples in the paper do provide some insight into the complications awaiting small businesses in any overseas environment).

I think there is more than enough work for the SBA in advising US small businesses on how to properly comply and perform contracts in compliance with US laws and the FAR before considering the difficulties/challenges awaiting those companies in an overseas (potentially contingency) environment.