Vern Edwards

I think the promise of an opportunity to compete would be consideration. So the deal would go down like this: The contractor with the BPA contacts a GSA CO and say it has a BPA under another contract that is about to expire and offers to transfer it to the CO's contract and compete for orders, which would benefit the the government by increasing competition. The CO agrees to do it and promises to let the contractor compete, which serves as consideration in return for the contractor's offer. Is that it? Is that how it works?

All contracts are presumably beneficial to both parties. You still need consideration in order to seal the deal. In the case of government bilateral contracts, such as a supplemental agreement, what usually happens is that one party makes an offer (a promise) and the other party accepts and makes a return promise. The return promise is the consideration.

@formerfedI think that a mod to move a BPA from an expiring contract to a continuing contract affects the rights of the parties. If so, then it cannot be an administrative change. See FAR 43.101: If the mod is a supplemental agreement, then there must be consideration. I'm not sure what you meant by "mutual consideration."

@formerfedWould the transfer of a BPA from one contract to another be a contract modification? If so, what kind of mod would it be, administrative change or supplemental agreement? If a supplemental agreement, what would be the consideration needed to make the mod binding? From which party should the consideration flow?

@contractor100 Thankyou.

What if the new GSA contract includes contract clauses that were not in the old GSA contract, or different versions of the clauses that were in the old GSA contract?

Where does Kingdomware say that a "GSA schedule award" is not a contract? On what page? Provide a quote.

Contracts end. That is part of the expected order of business. Businesses must plan for that and take the actions necessary to survive or they will die. The "transfer" of a BPA from a dying MAS contract to a living MAS contract in order to keep it "alive" is a strange idea to an old-timer like me. But the GSA MAS program is a madhouse of procedures and "vehicles", so I do not doubt that agencies do it. As for worries about survival, such worries are every businessperson's reality.

Here's another option: Let the BPA under the expiring MAS contract expire and let the contractor seek a new MAS contract and a new BPA.

Maybe true professionals should study, know, and understand the what, how and why of the regulations, policies, and organizational norms that govern their routine tasks. Then, when determining a course of action, they should: (1) ascertain the facts of their situation, (2) consider their objective(s), (3) consider what the regulations, policies, and norms require and would permit, (4) consider their resources, (5) tentatively develop a preferred plan of action and an argument in support of it, (6) consider arguments against, and (7) develop a fallback plan in case they can't sell their preferred plan. And remember the maxim: People who know what and how work for the people who know why.

Excellent question.

The most often answer: Yes.

See the time-and-materials payment clause, FAR 52.232-7. Neither 52.216-29 nor 52.232-7 indicate that the hourly rate(s) proposed/negotiated for subcontractor work must be the amount that the prime will pay to the sub for its work. Offhand, I can't think of why what you describe would be illegal or necessarily improper, but I would strongly advise that you disclose to the government what you plan on doing. I also suggest that you have a good explanation for why you plan on doing it. I'm not sure what that means, but I think you have to identify each subcontractor and the rate(s) you will charge for its work.

In short, what you want to know is if you can propose/negotiate a rate of $150/hr for subcontractor senior engineers, then negotiate a lower rate from the subs, such as $100/hr, then bill the government at $150 and keep the extra $50 for yourself. Is that what you want to know?

No funds, no obligation. Think about it. See also 31 USC 1341. This is Contracting 101. The OP's question has been answered.

It would be okay between the parties, but a competitor who learns about it (unlikely) might protest that the parties changed the terms of the option. See FAR 17.207(f). I don't know what the outcome would be.

There are two possible issues. First, does the contractor object? Second, does FAR permit? As to contractor objections, there have been a number of board of contract appeals decisions based on a contractor's objection to the exercise of an option subject to the availability of funds. Contractually, an option must be exercised in strict accordance with its terms. It appears that the government cannot exercise an option subject to the availability of funds unless the contract permits it to do so. The boards have rejected attempts by the government to insert an availability of funds clause at the time of option exercise. See Grumman Technical Services, Inc., ASBCA 46040, Sept. 5, 1995. But if the Availability of Funds clause, FAR 52.232-18, is already in the contract, then the government may exercise an option subject to the availability of funds. See American Contract Services, Inc., ASBCA 46788, April 6, 1994: As to whether FAR permits, 32.703-2(a) applies to contract actions. See the definition of contract action in FAR 32.001: I don't think the exercise of an option is a contract action under that definition. Nevertheless, it is clear from cases that agencies apply the availability of funds clause when exercising options, so go figure. I have not done extensive research. The cases I cited are a little old, and your agency may have a policy about exercising an option subject to the availability of funds. So I suggest that you confirm the above in consultation with your CO and your attorney before attempting to exercise an option subject to the availability of funds.

Standard Form 30, block 13, says to use 43.103(b) as authority for an administrative change. But if you issued a task order that stated an erroneous period of performance you should prepare a supplemental (bilateral) agreement rather than an administrative change, state in the mod that the change was made to correct an error, and get the contractor to sign it.

@formerfedInteresting. You conduct a competition to select contractors to do various task order work, award a contract to specific contractors to do specific work, then let everybody compete to do everything, regardless of what they were awarded a contract to do.

Let's talk about standards. Standards for being competent. Competent to do what? Here's an excerpt from FAR 1.602, which specifies the authority and responsibility of contracting officers: There is a lot more to that than preparing, processing, and signing paperwork. Now suppose your office procures construction under contracts that average $1.5 million each. What do have to know and how much experience should you have in order to do what FAR requires? Suppose that your office is engaged in the acquisition of major systems. (See the definition at FAR 2.101.) What do you have to know and how much experience should you have in order to do it? What do you have to know and how much experience should you have in order to consider the advice you are given by specialists in audit, law, engineering, information security, transportation, and other fields? Consider advice, not do as you're told. Think about it. In another thread, someone posted this: Now, what does "2-3 year's experience" mean? What happens in two to three years? Is it the same for everyone in that shop? Is there a standard experience in a year? What do you know and how many of the duties described in FAR 1.602 are you competent to perform after working in a contracting office for two to three years? "Years" is an absurd measure of experience. Does doing something once make you "experienced" in the ordinary sense of that word? In my opinion, passing written exams and "boards" and having three years of experience in no way qualifies a person to do all the things required of a contracting officer with an unlimited warrant. I wasn't qualified when I got mine after four years. You need extensive and deep knowledge and experience to be competent at doing the things required by FAR 1.602. You need the ability to explain contracting concepts, principles, and rules to program managers, and to devise contracting solutions that meet their needs without having to convoke a synod. On the other hand, if in your shop all COs do is prepare documents, assemble files, ask their boss what to do next and how to do it, go to the lawyer to ask what is okay and what is not, and ask questions at Wifcon, well maybe two to three "years" experience is enough for an unlimited warrant. Why not, since COs in your shop don't do professional work. They're clerks, and the only reason they have a warrant is so they can sign things after someone else does the professional work, if anybody does it at all. And after two or three years you should know what to put in Standard Form 30 block 13C.

@louistm In your opening post you said: Then you said you got your answer, and C Culham said: To which you replied: In your opening you referred to the standards of responsibility in FAR 9.104-1. The FAR passage that C Culham wrote about is a different matter than the standards of responsibility in FAR 9.104-1. It referred to standards of comparison with other contractors. The standards of responsibility are pass/fail standards, not standards of comparison with other contractors. How much of what you are reading and saying in this thread do you understand?

You have to look at more than the matrix. See FAR 12.301, Solicitation provisions and contract clauses for the acquisition of commercial products and commercial services. Note paragraph (a), which says: Then see paragraphs (b) through (f). Does FAR 12.301 answer your question? As for the folks at DAU being smarter than you... Don't be so sure. 😆

@formerfed How did that work? Did it work like this? Suppose that an RFP for a MATOC specifies four "subject areas", each described by a CLIN. The RFP says that offerors can submit proposals for one or any combination of the four subject areas. Offeror A submits a proposal for Subject Area 1, CLIN 0001, but not for CLINs 0002, 0003, or 0004, and is awarded a contract. It is now a contractor for CLIN 0001, Subject Area 1, and is designated Contractor 1A. But when the agency issues a fair opportunity notice for CLIN 0003, Subject Area 3, Contractor 1A may submit a proposal and be awarded the order, even though it did not submit a proposal on CLIN 0003 and its award included only CLIN 0001. Is that how it worked?

T&M is a pricing arrangement, not an ordering arrangement. The government hires a contractor to do a job, the cost or which is uncertain. The parties agree that the contractor will make its best effort to complete the job within a ceiling price, and the government will pay an hourly labor rate and reimburse the cost of materials. If the parties combine a time-and-materials contract with an indefinite-quantity contract, then the government must promise to buy a minimum amount of work.

Well, now I'm not sure what your original question was. Try again. What do you want to do?