Witty_Username

My understanding is that from the contractor perspective TINA creates enough risk that they are unable to quickly certify cost and pricing data even with significant historical pricing information. Inability to certify may be how they got into a UCA situation in the first place. edit: in fact looking at some notes I think I heard this explicitly from NAVAIR regarding the difficulties of using "priced offers" based on 20 years of cost history in the F/A-18 program to speed the negotiating process.

Ah, I was understanding the RFO to have removed the clause from the FAR entirely, throwing it into the realm of agency or local clauses. If it remains optional that would be much easier to deal with.

Agency supplements, however, restrict or control contracting officers' ability to use their own clauses, see DFARS 201.304(4), for example. So agencies would likely have to incorporate this clause back into their own supplements to make it usable without individual approval each time.

The government's approach to contracting in the recent past has been primarily transactional (vice relational) and based on contracts of adhesion (vice arms-length, bilateral, negotiated, etc.) at least in terms of clauses, where the government drafts the terms and conditions in advance and the vendor has to take it or leave it. This works fine in markets where the government is the primary buyer, like traditional defense systems, but starts to break down in commercial markets, like information technology, where the government is a minority buyer competing for sellers who may well walk away from a deal rather than submit to onerous government terms and conditions.

If I employ the NMCARS definition of "clause" as language which imposes a duty on the Government or contractor and is not directly related to the production or performance of a contract deliverable it makes sense to me that the majority of the clause language would be imperative and not permissive if the goal is to write a contract which is rigid, risk-averse, (paraphrasing from Contracting in the New Economy by Frydlinger, et al.) and attempts to protect the government against all pitfalls, seen, and unseen, (paraphrasing from the Agile Contracts Primer, Arbogast, Larman, and Vodde) through the imposing of duties. Note that I'm not saying that I agree with that goal, which is why I have those two references close at hand, but I do think that in the current very transactional government contracting environment you would expect to see contract clauses constructed of rigid, inflexible language. Edit to add: So it tells me that that the government's goal is to create rigid, risk-averse contracts which attempt to guard against all pitfalls, seen and unseen...

I think the whole point of raising the micro-purchase threshold is to raise the threshold above which agency heads have to monitor actions to ensure they are proper and buyers have to justify fair and reasonable pricing, trading off increased risk of waste or abuse for anticipated faster purchasing. So, if agency heads are going to increase their scrutiny of "bigger" micro-purchases or impose some higher standard than the FAR 13.203(a)(2) standard that the purchaser "considers the price to be reasonable" then it may not make sense to raise the threshold in the first place.

Here's what the JAG CONTRACT ATTORNEYS DESKBOOK says: Rule (Deobligation): A termination for convenience does not result in an immediate or complete deobligation of all funding on the contract at the time of the termination. Rather, the contracting officer must release only those funds in excess of the estimated termination settlement costs (in the contracting officer’s assessment). FAR 49.101(f); 49.105-2 DOD Financial Management Regulation 7000.14-R, vol. 3, ch. 8, para. 080612.

I can't find anything specific to back this up, but it seems like a critical implicit part of the meaning of modification in this specific definition is "who is asking for the modification?" If the vendor unilaterally chooses to modify their product based on a shifting supply chain, advances in manufacturing, security updates, or any other business decision it would not seem to constitute a "modification" for the purposes of the definition, otherwise there would be no such thing as a commercially available off the shelf product beyond the first version ever produced. So for the definition to make sense it must refer specifically to modifications requested by the purchaser. This doesn't fully answer the original question, since I think it is still not clear whether a product commonly sold in the commercial marketplace with customer-specified modifications, such as a custom-engraved knife, is COTS, but I think it is reasonably safe to ignore modifications that aren't made on behalf of the buyer.

I think half the issues depend on the funding: if it is "no year" funding then there would be no issue with the fiscal year when the specific requirement was finally established, i.e. when the actual repair part required was identified, but it would still seem to be improper to record the obligation upon initial award (or funding) of the repair part CLIN before the need for any specific repair part occurred. That said, I've seen this type of contract used many times to mitigate the fact that it could take 60 days to fund and award a new contract for a specific repair part once the need is identified without an ODC parts CLIN, potentially deadlining a piece of equipment; my recommendation was always to try to take the government out of the loop as much as possible to reduce the appearance that the government is "placing the order" only when the specific parts need is identified, so writing the service part of the contract to say that the requirement is to keep such and such piece of equipment functional using the labor CLIN for the labor and the parts CLIN for the parts, and basing the obligated amount on historical maintenance costs. This seems to align more closely with GAO's opinion in B-321296 where they found it proper for the government to obligate funding for court reporting in the next year based on a reasonable estimate.

I think this is a common practice that may or may not be correct, depending on the specific contract in question. While there are clear statutory exceptions to the bona fide need rule that allow funding a severable service across fiscal years (10 U.S.C. § 3133 for DoD and 41 U.S.C. § 3902 non-DoD) I think the question of whether a separate repair parts CLIN really should be funded across fiscal years depends on whether the requirement for parts is sufficiently specific to create a recordable obligation at the time the CLIN is funded. According to the GAO Redbook Chapter 7 B.1.C "The [Antideficiency Act] requires documentary evidence of a binding agreement for specific goods or services. An agreement that fails this test is not a valid obligation." As for what constitutes specific the Redbook provides B-196109 where an order for a specific quantity of "REGULATORY, WARNING, AND GUIDE SIGNS" based on information to be supplied later was not sufficiently firm and complete to be considered a legal obligation. I think that based on this interpretation a contract line item for repair parts, which parts to be specified later by the government, would be improper. However, if the government is not really involved and the contractor purchases whatever repair parts are necessary, within a specified not-to-exceed amount, to complete the repair services they are contracted to provide it seems like it would be ok. I think the issue is that there are many contracts (not necessarily yours) where the government uses over and above parts/ODC CLINs to have contractors buy all sorts of things which the government tells them to buy later, which probably technically violates the bona fide needs rule (both by recording the obligation at initial award/funding of a parts CLIN before the requirement is firm and complete, and by directing the contractor make an ODC purchase of a now specific new need in a future year with the previous year's funds).

I would look to FAR clauses 52.216-18 Ordering and 52.216-22 Indefinite Quantity (or whatever is in your contract) to clarify the difference between the period of performance (effective period) during which task order work can be performed (which is probably specified in both the IDIQ and the task order) and the ordering period during which orders can be placed against your IDIQ, which is only in the IDIQ (since you won't be placing orders against your task order). Clearly if you modify either the ordering period or the period of performance (effective period) of your IDIQ it will not change the duration of the work the contractor is required to perform under a task order, so no modification of dates in the IDIQ is "flowing down" to the task order. But it sounds like maybe your question is if you intend to modify a task order to extend the period of performance beyond the five year limitation in FAR 17.204(e) do you need to get approval for all IDIQ task orders to potentially go beyond five years (although again, any actual modification to a task order period of performance would have to be made to that task order) or get approval for just the one task order to go beyond five years. I don't think that's a FAR question, it probably depends on both your agency procedures for approval and whether you have a need for longer periods of performance on all task orders or just one. Or maybe I'm misreading the entire question, I'm confused by the implication that your task orders have ordering periods and that your agency practice has been to increase the duration of work to be performed under task orders via modifications to the IDIQ (what would the contractor even invoice against?)...

It does create an issue with the option periods that are remaining. In negotiating a modification the government would potentially be giving up the options it currently owns and the contractor may or may not agree to new ones. Additionally, a contract modification requires consideration. In this case the contractor would be giving up "value", what consideration would the government provide in return? Realistically if you want to reduce the value of the contract you should probably be willing to reduce the supplies or services you expect them to deliver in some way.

This may be an oversimplification of a key stakeholder interest (or my explanation may be an overcomplification of something really simple 😜). But this could point to the need for a leadership discussion among key stakeholders (contracting, fiscal, requiring activity, etc.) to settle on a contract structure that balances the competing interests of all parties. Contracting may want simple administration and compliance, fiscal may want a particular funding commitment/obligation profile, the requiring activity may want flexibility (i.e. to move money around); and everyone will probably be happier with the outcome in the long run if you take all these things into account in creating the contract structure...

So, a requirements contract? Otherwise we'll end up in a discussion of consideration for what could be a credit card buy...

This sounds like either a requirement for a definitive contract awarded now with clearly defined availability and response timelines (if market research indicates buses may be scarce), or a pre-planned GPC buy/oral solicitation (e.g. have a market research report with local vendors, etc.) if you are confident there will be busses available from someone. The single BPA seems to risk unavailability of a bus when you need it, but will give people misplaced confidence that there is a solution in place.