Don Mansfield

charles, For purposes of interpreting the word "contract" as it is used in the FAR, task orders are contracts. Note that in the ASBCA decision that you cited, the board was not trying to interpret the word "contract" as it is used in the FAR--they were trying to interpret the term "contracting opportunities" as that term was used in a statute. See http://www.wifcon.com/discussion/index.php?app=blog&module=display&section=blog&blogid=6&showentry=2044.

Navy, FAR 15.306( c )(1) states: Now to FAR 15.305(a)(1): So, the way I read this is that a competitive range determination must be based on the results of the proposal evaluation. The proposal evaluation must include a cost realism analysis when contracting on a cost-reimbursement basis. Doesn't it follow that a cost realism analysis be completed prior to the establishment of the competitive range?

As opposed to an "incomplete" cost realism analysis? Please explain the distinction that you are making.

I read a lot of rules—proposed rules, interim rules, final rules, second proposed rules, second interim rules, etc. In fact, I decided a year or so ago that I would read all new rules in the Federal Register that affect the FAR or DFARS (I’m only a few rules behind as of this writing). In my reading, I noticed a strange phenomenon that went unexplained in the Federal Register notices—the letters “P” and “S” were getting smaller. That is, citations to FAR parts and subparts were being changed from “FAR Part X” and “FAR Subpart X.1” to “FAR part X” and “FAR subpart X.1” (Notice the lower-case “p” and “s”). I wondered what was going on. Who decided that lower case “p” and “s” were now correct? Why wasn’t the FAR Council following its own rules in the FAR Drafting Guide or at FAR 1.105-2( c)(3) (recently amended—more on that later), which both showed the correct way to cite a part or subpart is with an upper-case “P” or “S.” I also submit a lot of public comments. My comments usually are usually technical in nature—I don’t get into whether this or that policy is good or bad for the Government. They are usually of something like “If you mean this, then I suggest you say it this way.” As such, I started pointing out that use of the lower-case “p” in “part” and “s” in “subpart” was inconsistent with both the FAR Drafting Guide and FAR 1.105-2( c)(3). Yes, important stuff. I was convinced that there was some unreasonable bureaucrat in the labyrinthine review process of FAR rules who would arbitrarily withhold approval until the “p” and “s” were lower-case. All they had to do was simply read either the FAR Drafting Guide or FAR 1.105-2( c)(3) and they would be forced to relent, I thought. Eventually, I found out that there was more to the story. The change from upper-case to lower-case could be traced back to the 2008 version of the Government Printing Office Style Manual. The manual contains an entire chapter of capitalization rules (Chapter 3). Rule 3.9 states as follows: The list of examples following Rule 3.9 (or is it “rule 3.9”?) contains the entry “part I”. Chapter 4, which contains a list of capitalization examples, contains the entry “part 2, A, II, etc.; but Part 2, when part of title: Part 2: Iron and Steel Industry”. Ok, so there was no unreasonable bureaucrat to blame. However, the GPO Style Manual was inconsistent with both the FAR Drafting Guide and FAR 1.105-2( c)(3). “What a crisis!”, I thought. This brings us to a technical amendment published in Federal Acquisition Circular 2005-60 (77 FR 44065) that formally amended FAR 1.105-2( c)(3) to illustrate the “correct” way to cite a part or subpart of the FAR: Crisis averted. However, there still is a lot of text within the FAR that uses upper-case when referencing parts and subparts. These co-exist in the FAR with citations of parts and subparts that are lower-case. For example, FAR 4.1402( b ) starts with: The very next paragraph, FAR 4.1402( c) states: It’s fair to say that my prodding probably had something to do with the change in FAR 1.105-2( c)(3). However, in retrospect, I’m not sure that the desired result—consistency—was achieved.

Not in the FAR.

What is the basis for this assertion?

Besides formal training, there are other ways to obtain continuous learning points. One can earn CLPs following the self-directed study program that Vern describes above. From the DAU Continuous Learning Web site (http://www.dau.mil/clc/Pages/apv.aspx): This is how I meet my CLP requirement. The Web site provides many examples of ways to earn CLPs other than through formal training.

Look, he doesn't want to accept your terms and you can't compel him to do so. Either propose different terms or find someone else willing to accept your terms.

Whether recorded on the IDIQ contract or not, the award creates an obligation for the amount of the guaranteed minimum. That's why it's incorrect to say that "no funds are obligated nor guaranteed by the award of this contract." I don't see a problem with recording the obligation on a concurrent order in lieu of the IDIQ contract. As long as the amount of the obligation created is equal to the amount of the obligation recorded, the Recording statute has been satisfied.

If the contract did include a guaranteed minimum, then the statement "No funds are obligated nor guaranteed by the award of this contract" is inaccurate. An obligation would have been created for the amount of the guaranteed minimum upon award of the contract.

Before you start looking for courses, I suggest that you determine what skill or ability you need to develop to do your job better. Then, determine how best to develop that skill or ability. The answer may or may not be a training course. View training as a means to an end--not an end itself.

Yes, essentially.

In my experience, "growth" meant additional work within the scope of the contract. "Growth" is the opposite of "new work" (additional work outside the scope of the contract). Navy ship repair contracts use both terms extensively, but do not define them.

simplemiz, I was a contracting officer in the ship repair world and I experienced the same type of thing when awarding prime contracts (i.e., an offeror would win with a low price and "get well" on changes). Did you ever see that picture of the yacht named "Change Order" with the little dinghy named "Original Contract" next to it? That was probably one of our contractors. I was discussing this situation with one of the disappointed offerors and I got an idea. I would create a line item for "Over and Above Work" with an estimated number of hours. Besides proposing a price for the specified work (open and inspect), the offerors would propose a binding rate for the over and above work that would be used to price the over and above work (what you are calling growth work). To evaluate a proposed price, I would add the proposed price for the specified work and the proposed price for the over and above work (proposed rate x estimated number of hours). The result was that we received more realistic pricing for the specified work and the incentive to seek changes during contract performance was reduced. As you can imagine, I was quite impressed with myself when I came up with this. That was until I found out that a lot of other agencies do the same thing when contracting for all types of repair and have been doing it that way for a long time. In any case, your contractor may want to consider doing something similar to mitigate what they experiencing with their subcontractors' prices.

Damn, I got "Scoped." I even use FAR 17.200( c ) to demonstrate to students how one can get scoped. This is a bad day.

That's a good point. The cases that I've read on "nominal amount" discuss the amount of the minimum guarantee compared to the contract maximum. However, I've never read a case where the basis of deciding that a minimum guarantee was nominal was that it was too small compared to the contract maximum.

Vern, The contract was awarded by the Navy, which has the authority to award task order contracts with ordering periods up to ten years pursuant to DFARS 217.204(e)(i).

You found it. They call it an IDIQ contract, but then end with: We've got a couple of possibilities: 1. It is an IDIQ contract that contains a minimum that they didn't report. In this case, they failed to record an obligation for the amount of the obligation created by the contract (the minimum)--a violation of the Recording statute; or 2. The "IDIQ contract" does not guarantee a minimum as required by FAR 16.504(a)(1), in which case the arrangement would lack consideration. Either way, something's wrong.

Bob posted an excerpt of a recent contract award announcement that I found remarkable. Here it is: "The Pennsylvania State University Applied Research Laboratory, State College, Pa., is being awarded an estimated $415,045,425 cost-plus-fixed-fee indefinite-delivery/indefinite-quantity task order contract to provide up to 2,060,076 staff hours for research, development, engineering, and test and evaluation in the areas of guidance, navigation and control of undersea systems; advanced thermal propulsion concepts and systems for undersea vehicles; advanced propulsors and other fluid machinery for marine systems; materials and manufacturing technology; atmosphere and defense communications systems; and other related technologies. The contract includes an option for an additional five years, which, if exercised, would bring the total cumulative value of the contract to $853,275,100 and the cumulative staff hours to 3,935,759. No funds are obligated nor guaranteed by the award of this contract; funds will be obligated on individual task orders." The announcement contains a clear indication of a violation of law. See if you can find it.

The prime would include the dollars in both categories. From the SF 294 instructions (which is used to report performance against a subcontracting plan):

I don't think that's the reason for the self-deleting language because FAR 52.230-2 is not prescribed for use in solicitations--it is prescribed for use in "negotiated contracts."

I like Retread's interpretation. If you interpret the passage the way I did, it implies that there are Cost Accounting Standards other than those at 41 USC Ch. 15. So the "under 41 USC Ch. 15" is necessary to specify which Cost Accounting Standards are being discussed. Since I don't know of any other Cost Accounting Standards, this interpretation doesn't seem right. If we go with Retread's interpretation, the implication is that there are other ways a contract could be subject to CAS and the clause is only concerned with contracts subject to CAS by operation of 41 USC Ch. 15--not when the parties agree to make a contract subject to CAS when it's not required. However, I looked at the final rule for the Business Systems case (77 FR 11355) and came across the following: Does the section 816 definition of "covered contract" match the definition at DFARS 242.7000(a)? That may have been the intent of the DAR Council, but I'm not so sure the definitions match. Here's the definition of "covered contract" from Section 816 of the NDAA for 2012: No use of "under." Compare the definition at DFARS 242.7000(a): I think if a court or board looked at the statutory definition of "covered contract" to interpret the DFARS definition of "covered contract", they may interpret the DFARS definition the way I did.

Is the IDIQ single-award or multiple-award?

"Contract opportunities" appears once in FAR part 19--at FAR 19.201(d)(11). "Contracting opportunites" appears once in FAR part 19, at FAR 19.402( c )(2), as part of the term "prime contracting opportunities." Neither term is defined in the FAR. Since the applicable definition of "contract" at FAR 2.101 is broad enough to include task orders, I would interpret "contract opportunities" to include opportunities for task orders. "Contracting opportunities" appears to be synonymous with "contract opportunities", so I think that would include task orders, too. As far as FAR part 5, "contract action" is defined at FAR 5.001 as follows: "'Contract action,'as used in this part, means an action resulting in a contract, as defined in Subpart 2.1, including actions for additional supplies or services outside the existing contract scope, but not including actions that are within the scope and under the terms of the existing contract, such as contract modifications issued pursuant to the Changes clause, or funding and other administrative changes." Given that definition, a task order within the scope and under the terms of an existing contract would not be a "contract action." Alternatively, if such a task order were a "contract action", it would be excepted from the synopsis requirement pursuant to FAR 5.202(a)(11).

Retreadfed, I read the "under 41 U.S.C., Chapter 15..." as modifying "Cost Accounting Standards." You seem to be reading the "under" to mean "by operation of." I don't think your interpretation is unreasonable. Interesting. Have you successfully used your interpretation to fend off a DCMA business systems review?