Don Mansfield

1) Not necessarily. As long as you comply with DFARS 208.405-70( c ) for orders exceeding $100,000, you will not be in violation of anything. 2) No. Any attorney who reads DFARS 208.405-70( c ) and interprets it to mean "that all GSA requirements must be provided to the largest number of Schedule holders capable of submitting an offer" is a dumbass. No competent CO would follow that advice.

Marine_1, Here is the rule: Where does it say "that all GSA requirements must be provided to the largest number of Schedule holders capable of submitting an offer"?

What makes you think that you have to use e-Buy?

Vern, FAR 17.2 doesn't apply to contracts for R&D. See FAR 17.200:

The end of the fiscal year is always a good time to start brush up on fiscal law?particularly the bona fide needs rule. Contracting offices may soon face questions of fiscal law that have already been answered in Volume I, Chapter 5, of Principles of Federal Appropriations Law (GAO Red Book). One interesting case of fiscal law, which you won't find in the Red Book, deals with funding undefinitized contract actions (UCAs) that cross fiscal years. Consider the following scenario: A DoD activity issues a UCA in late fiscal year 2009 with a not-to-exceed price of $1,000,000. In accordance with DFARS 217.7404-4(a), the agency obligates $500,000 of the not-to-exceed price (the DFARS limit is currently 50% of the price ceiling, or 75% if the agency is in receipt of a "qualifying proposal"). The agency does not get around to definitizing the UCA until early FY 2010. When they do, the contracting officer and the contractor agree to a final contract price of $950,000. The unfunded balance is $450,000 (assuming actual costs prior to definitization were $500,000). Assuming the contract is funded with annual appropriations, which fiscal year's appropriation must be charged to fund the additional $450,000? Believe it or not, fiscal year 2010 funds must be used. A number of people that I have spoken to are befuddled by this, because they believe that the definitizing contract modification would be fulfilling a bona fide need of FY 2009, which would thus require the use of FY 2009 funds. However, this is incorrect. The Comptroller General answered this question in Obligating Letter Contracts, B-197274, September 23, 1983. In that case, a procurement official from the Department of Justice requested guidance on how to fund letter contracts that crossed fiscal years. Agency practice had been to record an obligation for the amount of the price ceiling and include a clause that limited the liability of the Government to 50% of the price ceiling. In other words, they would overrecord their obligation. The procurement official described his dilemma as follows: The Comptroller General responded as follows: Following the initial example, the $450,000 to be added to the contract when the definitizing contract modification is executed covers a bona fide need of fiscal year 2010. This need was originally a bona fide need of FY 2009, but it went unsatisfied within the time period available for new obligations. As such, the bona fide need was carried forward to FY 2010. UCAs have become a hot topic in contracting, particularly in DoD. In response to a GAO report that found a significant number of UCAs still undefinitized beyond the 180-day window imposed at DFARS 217.74, the DFARS was recently revised to include more rules pertaining to UCAs. However, I never saw any discussion about how to fund UCAs that cross fiscal years (maybe everybody already knows the rule ). Based on the GAO report, I'm willing to speculate that a good number of UCAs are left undefinitized until the fiscal year following their issuance. For UCAs funded by annual appropriations, I wonder what fiscal year's funds are being obligated when the UCAs are definitized. My guess is, in most cases, the same fiscal year's funds that were obligated for the UCA.

I don't know of anything that would prohibit such an approach. Why do you think you would need to include criteria in the RFP/contract for selection of who gets awarded Options 1 and 2?

Let's see. If a schedule contractor requests an RFQ and you don't send it, then you are violating an express mandate in the FAR. However, if you do send the RFQ, you are going against your HCAs internal policy. Seems like an easy choice to me.

Vern, If everyone who issues an RFQ on a SF 1449 is incorporating an unsuitable solicitation provision, then I would say that is interesting.

Actually, Navy_Contracting_4 gets credit for the correction.

I know, that's why I'd be surprised to find an RFQ issued on a SF 1449 that did not incorporate FAR 52.212-1.

Can anybody find an RFQ for a commercial item issued on a SF 1449 that does not incorporate FAR 52.212-1 (either by reference or in full text)?

I'm not sure what they're asking for, but the DAU catalog contains the following: http://icatalog.dau.mil/onlinecatalog/AllPredecessor.aspx Note that there is no predecessor course for CON 218.

Correct.

Vern, Wouldn't jtolli's contract be a FFP level of effort term contract? She's indicated that once the contractor has delivered 1,920 hours of support, they have met their commitment.

Does it have FAR 52.212-4, Alternate I?

jtolli, You said that the contract doesn't include any payment clauses, but then you said that it does include FAR 52.212-4. Did you look at the title of paragraph (i) of 52.212-4? According to the contract, after the contractor has worked 1,920 hours are they still required to do something (e.g., complete a project) or have they fulfilled their commitment?

Hi, NavyKGuy, Thanks for commenting. Your argument fails to address two key questions: If the FAR required price analysis always, then 1) why would it qualify the price analysis requirement at FAR 15.404-1(a)(2) with "when cost or pricing data are not required" and 2) why the use of "should" at FAR 15.404-1(a)(3)? In order to perform a price analysis, you need some basis of comparison. However, there can be situations where such information is not available because the supply or service being purchased is so unique. In such situations, the contracting officer would have to rely on cost analysis alone to determine a fair and reasonable price. My point is simply that, despite what many people think, the FAR does not require price analysis for all acquisitions. If this blog entry caused some people to open up the FAR and rethink what they had been told or taught about the FAR, then perhaps they will be less likely to take what they are told or taught at face value. In general, I don't think that we (members of the Federal contracting community) do a good job at scrutinizing information--we tend to believe what we hear if it sounds reasonable or if it is spoken or written by someone of "experience." This is why our field is so rich with misinformation. While this is fun to write about, it's also somewhat disheartening. I'd prefer having less material.

"ADP Software" is classified under Federal Supply Class 7030. However, if you're classifying for your own internal purposes, classify however you want.

License fees for what? For what purpose are you trying to classify them?

K-Law Atty, I don't understand the point you are trying to make. You don't think that FAR 52.212-1 should be incorporated in RFQs for commercial items?

leo1102, Yes. That's why I added the warning at the top of the blog entry. I wouldn't use the table for now.

brian, What do you mean by "the overpayment inherent in any noncompetitive situation"?

joel, When using the DD Form 1547 to develop a prenegotiation profit objective, FCCOM is not included in the total cost objective (Block 20)--as required by FAR 15.404-4( c )(3).

wiscco, The question was whether the prime is required to analyze the subcontractor's price. The rule that you are quoting deals with whether a Government ordering activity has to analyze a GSA schedule price. Two different things.

No. See FAR 15.403-4(a)(1)(ii). No. Read it again. It does not require the prime contractor to perform cost analysis on all subcontracts.