Drew

"Okay, so what you want to know is whether making a past policy, like EEO, inapplicable to future contracts might prompt the government to also renegotiate existing contracts to which the policy now applies, the goal being to [r]educe their prices and claim savings. Is that a correct interpretation of what you want to know?" Let's leave the goal part out of it, but yes. (User34 brings up the idea of cost reduction. But frankly, as we all recognize, anything's possible. And one possible goal could be to give a windfall profitability increase to those companies who are on contract today. Certainly not in the taxpayer's best interests, of course, but ... Another goal could simply be to eliminate social regulation, or mandated social responsibility, and if it reduces costs or increases profitability, then those are side benefits.) And yes, the question is admittedly speculative. It's the forecasting of the "considerable workload" that I am interested in and how it might be managed or mitigated. And yes, too, the more interesting question is definitely how people will do their jobs without the rules they've become accustomed to. For those of us in industry it could have whipsaw effects as a population of COs unevenly learn (as would any population of individuals) to navigate the new uncharted, undocumented terrain.

Nope, sorry, did not know that there were regulatory archives and that they would be referenceable and enforceable. This was a newbie question. I don't agree that these questions are utterly unjustified, but appreciate posters directing me to the correct references and structure. Not everyone is approaching the master or journeyman levels of competence, and discussions which include apprentice-level questions help apprentices learn. @Matthew Fleharty, thank you for your gentle guidance. Now I would ask for any hypotheses and speculations on intentions, and possibly gaming out some what-ifs. (Maybe, unstated, that's what my OP assumed and really intended.) If current administration policy means to make contracting simpler and more effective today, then it could be that as regulations are removed the administration also intends to remove the enforcement and enforceability of such regs. To have a real-world effect on what's happening with current contracts, rather than just future contracts. Maybe not, and maybe that's where the guidebook and archives will come into play. But it seems that at this policy and political inflection point if a given reg is removed from the FAR, then the administration would intend not only for it to become inoperative for future solicitations, but also non-operational for current contracts. If that's the case - and I admit this is a speculative question - is the administration hamstrung by any constraint that would force it to just default to archival references and leave all such clauses in place in existing contracts? Or could we see a further step to somehow remove the effectivity of these clauses from current contracts? If the latter, how would (could) that manifest itself? If a what-if or speculative question of this sort is not justified, then my apologies to the group.

Can anyone hypothesize (predict? project? get a ouija board answer? put together a well-engineered ChatGPT prompt?) on what might be the effect on signed contracts already in place if certain "clauses incorporated by reference" end up getting stricken from the FAR, or moved to the Guidebook, thus invalidating the incorporation mechanism? I guess I can envision some scenarios: Such clauses will still be in force and remain in the contract, but all contracts are changed so that the reference points to the supplemental Guidebook instead of to the FAR Such clauses are simply removed wholesale from the contracts, and mods are issued accordingly Such clauses are removed through negotiation in a piecemeal fashion, contract by contract, CO by CO, vendor by vendor, contract by contract... Any such clauses are just ignored, and it’s up to us as a contractor to request the government to remove them because the "incorporation mechanism” is no longer valid Any such clauses are left intact, but there will be a blanket superseding rule or clause that describes how to treat clauses incorporated by reference where there are now invalid references Any such clauses are just ignored, and we all wait for case law to develop for when someone decides to ignore an incorporated clause and the government attempts to enforce it but finds out they cannot COs will learn to use AI to rewrite contracts to, wholesale or piecemeal, to simply change the incorporation mechanism and instead of incorporated-by-reference make each clause incorporated-by-full-text. Any other implementation scenarios anyone can think of? Any of these that can reasonably be ruled out? Thanks!

"We are going to release it now, oops, never mind, and now, nope to soon, and now, nope we take that back." << we talkin' about FAR overhaul or tariffs?

THANKS TO ALL!!!

Thanks for the caution, Neil. I don't think we have risk of causing them extra work - it's more the reverse situation, like I describe in the original post above! I believe we do have enough supporting language, in the original solicitation and in the resulting contract which incorporates that, to document that this is the procedure we ought to follow. In fact, GSA has rejected our invoices when they included items that have not had prior consent. There might be some casualness when we say "this FAR clause requires us to do this or that clause requires us to do that" - it could be that it's not these clauses but other contract language that forces the actual practices. But we refer to the FAR clauses to understand the practices, because they provide a good model of well-executed / contractually-mandated processes. (Did I really write that last sentence? ) Just to re-iterate one of my practical questions above: 3) Can anyone provide a citation (CPSR finding? Policy and Procedures manual? Administrative decision or case law?) that shows (when) it is acceptable for non-material differences to be ignored?

@Neil Roberts: Oh how I wish! Yes, we've considered this closely over the years. Our primary CLins are FFP for labor, but the ODC and travel CLins are reimbursed-at-cost + a de minimis material handling fee (for ODCs), or just at-cost (for travel). We have been managing ODC purchases (and travel authorizations) with our clients and GSA contracting officers this way for more than five years now. Even if your interpretation could be applicable to these CLins - and I see how one could reason that way - the practical way of managing these is with some sort of CTP process. Our company, the CO, and our client all need to make sure that ceiling, awarded, and funded amounts on an ODC line item are sufficient for the required purchase. And the client has a technical approval step in there that precedes final CTP approval, so that we know purchases are directly fulfilling their requirements, and that the procurement derives from, extends, or completes the originating Phase I SBIRs that underlie this Phase III contract. Given all these practical reasons for having some kind of consent process, is there still any way you can see that 52.244-2 wouldn't apply?

Sorry, Neil, are you asking how we decided to award the subk? We honored the rip-and-replace / cancel-rebuy constraint of the OEM publisher and "awarded" the license renewal to them. But that's where the CO choked and would not consent to that decision until we knocked the price down and gave them their $4. Or are you asking how we decided that these purchases are subject to CTPs? That has been the standing practice for all 40 TOs awarded under this IDIQ, and use of the CTP process is explicitly called out in the TO solicitation. Our Task Order does include the Subcontracts clause (FAR 52.244-2). These purchases are on separate cost-reimbursable CLins, and so we agree and accept that 52.244-2 (c) (1) applies: "If the Contractor does not have an approved purchasing system, consent to subcontract is required for any subcontract that- (1) Is of the cost-reimbursement...type."

We have a prime contract (IDIQ Task Order) that includes the Competition in Subcontracting clause (FAR 52.244-5). We do not yet have an "approved" purchasing system (that is, one reviewed in a CPSR and found to be without material weaknesses), but we strive to have an "acceptable" purchasing system, in compliance with DFARS 252.244-7001, Contractor Purchasing System Administration. We are writing and following policies accordingly. In the meantime, while awaiting a CPSR, all subcontracts (purchases) on this TO for materials like software licenses are subject to a consent-to-purchase from the CO. For our client we have procured software licenses for an engineering CAD application. We made this original purchase from the "OEM," the software publisher, and not from a reseller. The licenses are now up for renewal, and another purchase must be made. We obtained a quote from the OEM for another year's license. There is a published price for this software from a reseller that is available on the DoD's Enterprise Software Initiative Blanket Purchase Agreement (https://www.esi.mil/). (A point of confusion may have come into this discussion because both the publisher and the reseller are listed on this ESI BPA.) The publisher's price quote was exactly 20¢ higher per license than the reseller's price on the ESI BPA. We attributed this to a rounding difference, the OEM's pricing tool having had values entered for discounts, list prices, dates, etc. as of today's prices, and the reseller's ESI listing having been produced by their (different) pricing tool a number of years ago. The net difference in the total price was less than $4.00 out of a $70,000 purchase. (Yes, that's a 0.0057% difference.) We deemed it to be not material. In addition, we were aware of the publisher's policy against cancel-rebuy actions (or, "rip and replace"). This prohibits their ecosystem of resellers from cannibalizing each other's business. No reseller can undercut pricing from another reseller, or from the publisher, for a license renewal. This is in fairness to each reseller, who expects to recoup their sales costs over time with the renewal revenue, and also to the OEM as it prevents downward pressure on their pricing. Given what we had in hand (the publisher's quote, the ESI BPA list pricing from the reseller, and knowledge of market dynamics), we submitted the CTP with a price analysis for a fair-and-reasonable determination that pointed to the ESI BPA, an existing, active contract with the Government for this product. Without citing the clauses, we were relying on the rationales in: * FAR 13.106-3 (a)(2)(ii) ("Comparison of the proposed price with prices found reasonable on previous purchases"), * FAR 15.404-1 (a)(2)(ii) ("Comparison of the proposed prices to historical prices paid), and * ...(vi) ("Comparison of proposed prices with prices obtained through market research for the same or similar item"). We made the determination that the 20-cent difference was not material to the sourcing decision, nor was it material to a fair-and-reasonable determination. The comparison showed a non-material difference from historical prices, market research, and previous purchases. We also made a determination that further effort to obtain a lower price was unlikely to be successful, given the differences in systems that produced the quoted and comparison prices; and that further effort was not warranted because the cost of pursuing a $4 reduction was not worth the expenditure of time and energy, either our effort or the publisher's. (Since the rip-and-replace policy would've prohibited us from going to the reseller anyway!). Yet the CO chose to not accept this reasoning, and still insisted on getting those four bucks. The CO refused to consent to the purchase until we offered a discount to get the total price down to match a purchase made off of the ESI pricing. 1) What did we miss? 2) Is a policy that establishes thresholds for materiality, in sourcing or F&R determinations, acceptable? 3) Can anyone provide a citation (CPSR finding? Policy and Procedures manual? Administrative decision or case law?) that shows (when) it is acceptable for non-material differences to be ignored? 4) If we're following our policies for making sourcing and F&R determinations, and they include these materiality thresholds, can a CO insist on further efforts or further reductions beyond what our policies say we have to do? This scenario is the kind of thing that just cries out for acquisition reform - spending hundreds of dollars in time and energy for savings that won't even buy a good cup of coffee. Thoughts, anyone?

@General.Zhukov: @C Culham pointed me to the ADA Redbook. Obviously haven't consumed it all yet (....and really don't think I will...), but I did grab this nugget: Appropriations made for a definite period of time may be used only for expenses properly incurred during that time. 31 U.S.C. § 1502(a). This is known as the bona fide needs statute... This points to one mis-reading of the circumstances, that the CO may be incorrectly thinking that there is a future expense being incurred, when in fact there is none. And your example is spot-on: what would the government do if we weren't in the middle, and they were purchasing this license or renewal directly? Thanks for the reply. Again, calling on anyone else for thoughts. But if we finally reach a resolution on this I will post the update to this thread.

@C Culham / @Retreadfed: Thank you both; you're affirming my perspective. I will keep the Anti-Deficiency Act link handy as the discussions progress. As to FAR 52.216-22, it is present in the IDIQ solicitation, which was a combined solicitation for both the IDIQ labor rates and the Task Order #1 proposal. The solicitation is incorporated by reference into both the IDIQ award and the Task Order 1 award. The date is specified in the solicitation as "May 09, 2029 (estimated)." Which is well into the future, long beyond the term of the licenses or renewals that we're talking about. And I agree with you, it would seem to permit continued performance. But I don't think we're talking about that....! We're making the purchase and including a plan for assigning the end user license rights over to the government. Once we exercise that assignment, say, at the end of our TO, our performance ends. The software vendor's performance continues, but that is under the license agreement that continues with the government as the end user / assignee. The license or renewal that was purchased was fully paid for with the properly obligated funds that were applied to our TO. So I'm thinking the provisions of 52.216-22 are moot with respect to this issue. But thank you for pointing me to that provision - it was definitely worth checking out to verify understanding. As to your final question, re: "title," that's just the term in the form being used. You are correct, the government is not getting "title" to the software. But they are getting recognized by the vendor as the end user, as the party who can log support tickets, who is responsible for on-going maintenance fees after this year (if they wish to continue beyond the term we're purchasing), who can access the documentation, who receive upgrades and patches, etc. So in this context, yes, we are transferring "right to use." Which we've effectively done during our TO PoP anyway, but we are mutually interpreting this form to mean that the right to use will persist with the Government, for the duration of that license (or renewal) purchase, even if extends beyond our PoP. @anyone_else: other ideas or clauses to look at? Again - thanks to both C Culham and Retreadfed!

We have a Prime contract (task order award on an IDIQ contract) through GSA which requires consent for subcontracts and purchases against a cost-reimbursable CLIN. This is formalized in a Consent to Purchase form, which includes a specification for "title shall vest with:_________." We submit the form when we need to purchase more cloud capacity or software licenses, either for new packages, for new modules, for license renewals, or for maintenance agreements which provide for continuing software updates and support. There are plenty of operational, budgetary, and market-standard business practices which give us reason to buy the software licenses with terms (durations) that are not co-terminus with our Prime contract Period of Performance (PoP). These reasons include simple things like vendors being unwilling to sell for terms less than a full year. But they also include the Government's desire to use the installed software in exercising a persistent capability, one which may extend beyond our contract and any of its renewals. Or it may be convenient to expend available funds before year-end price increases. All of these reasons mean that the software license, maintenance, or renewal purchase could extend beyond our PoP. As part of the purchase we ensure that assignment rights are present in the purchase agreement, End User License Agreement (EULA), and/or the Terms of Service (ToS), and that there is no cost to assign the user rights to the government at the end of our PoP. The CTP is submitted with the "Title Shall Vest with Government" field specified. Our GSA CO is insisting that all such purchases should be co-terminus with our PoP, asserting that if they extend beyond our PoP that an Anti-Deficiency Act violation occurs. I cannot see how. Can anyone? We hold that the combination of the CTP Vesting specification, along with the Assignments clause, commits us to turn over the software to the government at the end of our contract with no additional obligation of funds beyond the purchased license term, and that the full purchase of the license term is occurring with the funds already obligated to our contract. (There is neither an obligation of funds not yet appropriated, nor an obligation of funds in excess of what is appropriated.) Any idea of where else we should look to see if the CO is right? Or are they just hitting the easy button and not walking through the logic to see that the Government's interests are being met? I'm certainly willing to be schooled here... Thanks in advance!

All, thanks for your reasoning through on this question. We're going to consider these FFP TOs as "in" the population of contracts that then decide the population of subcontracts subject to review. To clarify for some of the threads: A CPSR has NOT yet been determined as necessary. GSA is advising us to get ready for one. Based on historical performance under our first IDIQ and the 40 or so TOs awarded under it, and the second IDIQ recently awarded and the third IDIQ solicited-but-not-yet-awarded, we all expect our sales to the USG to reach the threshold where a CPSR would be needed. The DCMA would then conduct the review. We're anticipating that in CY 2025, to be conducted on the population of TOs and their subcontracts that are awarded to us, and issued by us, through calendar year 2024. Again, many thanks.

First, thanks to everyone for this critical analysis. An important part of this posting-and-response dynamic is refining the question and/or picking on the right points to argue from, and I appreciate the give and take. @Don Mansfield: the IDIQs have "rate schedules," which are not prices. Admittedly, different things. We recognize the TOs are sole-source. But does applying 5 USC § 638 in any way change or override the determination of what contracts, and their subcontracts, are in the scope of the CPSR? ...638 says to consider these awards to satisfy competition. @C Culham I'm sure they ACO and CPSR review team would definitely "help" us. What I'm trying to avoid is missing the mark first time out. As I understand a CPSR review, they ask for the population of sub-k's and purchase orders in the period under review, we pull and provide those data, or give them access to the system, and then that's what the review is performed on. What happens if I include too much or too little? If I include too little I don't want a finding that comes back and says "you're not properly tracking the right body of procurement events to have a compliant purchasing system - fix that." If I include too much, I risk possibly exposing more items to review and findings where I may have mistakenly misapplied or not applied all relevant (FAR/DFARS-driven) business rules (because I thought they were out of the review population). So it's only a matter of getting the population correct. Knowing and fixing that target, I can make sure we apply all the rules correctly, and consequently have the right data available for the CPSR. Also, to reiterate from some other posts I've asked on this general topic of CPSRs and sub-k's: we're not trying to avoid this in any way. We know it's coming and are just trying to prepare for it the right way. @Neil Roberts responding to your posts in reverse order, yes the CPSR Guide points to contracts, but then the rest of the review is concerned with purchases in support of those contracts. So yes, the Guide's applicability, and our being subject to CPSRs, comes at the top-level, sales-to-the-government amount. But then everything below that population-of-contracts-that-determines-CPSR-eligibility is the population of subcontracts that will get reviewed. So that leads to back to your first question: We believe, and GSA has advised us, that there will be enough sales to the government in the T&M TOs to qualify for a CPSR. What I'm asking is, do the FFP TOs also count in that total for the CPSR review eligibility and the contract review population, such that their supporting subcontracts are also part of the procurement review population? Is there any additional info I can provide to clear up the confusion regarding "company has" and "requirement(s) for competition were met?" We were awarded the Phase III SBIR IDIQs ("company has"), and they were sole-sourced to us because we competed in Phase I and Phase II solicitations as these products matured. @JRT132 I have no familiarity with it, but I will review the FPDS-NG and US Spending to see if they shed any light. But why disclaim that it might not matter? Thanks all for your comments!

Our company has multiple Phase III SBIR IDIQ contracts through GSA, each of which can be used by DoD components to award FFP, FFP LoE, or T&M Task Orders. The TOs are negotiated using Alpha contracting processes, and are sole-source awards. The government’s requirement(s) for competition were met in the Phase I and Phase II awards under the SBIR program. The IDIQ solicitation and contract, and the resulting TOs, include the Subcontracting clauses 52.244-5 Competition in Subcontracting, 52.244-2, Subcontracts, as well as DFARS 252.244-7001 Contractor Purchasing System Administration. Subcontract purchases under these TOs require consent to purchase, as we are still in the process of setting up, but do not yet have, a CPSR-reviewed and approved purchasing system. Refer to the thread CPSR driven by FAR 52-244-2? for the kind of logic I want to apply to make sure we get all relevant contracts and subcontracts into the population of CPSR-reviewable purchases (and exclude those that don't need reviewed). Are the subcontracts and purchase orders for TOs that are firm, fixed-price subject to the CPSR? The two sides of the argument: IN: Since the TOs are not competitively awarded FFP TOs, their subcontracts and purchase orders would be subject to a CPSR. OUT: The IDIQ, however, did fulfill the government’s requirements for competition, and the SBIR law says the awards should be considered to satisfy the requirements for competition. So perhaps the FFP TOs, and their subcontracts and purchases, should be excluded from the CPSR population? On which side of the fence should we come down? Are the FFP TOs in or out of the CPSR population? Thanks all!