Don Mansfield

Not if the fixed fee was 6% of estimated costs. However, if the contract were written to say that the contractor would be paid 6% of incurred costs, then you would have an illegal CPPC arrangement.

Good idea.

So you didn't tell offerors how you were going to evaluate foreign offers in the solicitation (which would be done by including the appropriate Part 25 clause and provision) and now you are wondering how to evaluate a foreign offer that you have received. Do you see a problem with that? Don't you think you should amend your solicitation to include the appropriate Part 25 clause and provision?

Ok. Read FAR 19.702: No exception for "foreign businesses" (whatever that means). Want more proof?

Phillygal, Why should you award at the offeror's estimated cost? Wouldn't it make more sense to award at the most probable cost? Did you read the citation that I provided?

Prove it.

I don't think so. I think you can, and probably should, award a cost-reimbursement contract at the most probable cost. Here's an excerpt from Formation of Government Contracts, Third Edition, by Cibinic & Nash (p. 1107-8):

Bailers, What Part 25 clauses/provisions did you include in your solicitation?

For what purpose are you counting? If you are reporting on an SF 294 or 295 (or using eSRS), the full value of the subcontract would be reported in both the WOSB category and the SDB category (it would also be reported in the "small business" category).

First, I'd like to thank everyone that contributed to my thread seeking myth-information in federal contracting. I culled another 20 pieces to add to the seven that I was able to come up with. If you come across any or are able to think of any more, please add to the thread or send me a message. Second, I'd like to comment on something that Retreadfed wrote in the aforementioned thread: While I hadn't thought about it, I like the distinction that Retreadfed made. Myth-information exists due to ignorance of the rules. If you want to read about stupidity, there's an excellent compilation of it in DoD's Encyclopedia of Ethical Failures (don't miss the 2008 update). Now, back to the point of this entry. Vern Edwards contributed the following nugget to the misinformation thread: No doubt this belief is the result of overlawyering and/or taking the "better safe than sorry" approach to source selection. Let's take a look at what the FAR says concerning this subject. FAR 15.201(f) states: [bold added]. As you can see, the scope of the information that must be shared with all offerors when it is shared with one offeror prior to receipt of proposals is much narrower than "anything that you say." However, it is common practice at some contracting activities to record every question received and answer provided regarding an RFP (no matter how mundane) in an amendment and issue to all prospective offerors (the better safe than sorry approach). While such an approach is compliant, it is not required and makes for long amendments and the excessive provision of information. Regarding what can be said during discussions, FAR 15.306(d)(1) states: [italics added]. Tailored. This necessarily means that you are not required to discuss the same areas with each offeror. In Trident Sys., Inc., Comp. Gen. Dec. B-243101, the rule was stated as follows: Exchanging information with offerors involves thoughtful judgement and discretion. Unlike some other areas of contracting, it is not a mechanical exercise governed by a simple mandatory rule. Those who shy away from using their judgment and discretion (probably to avoid criticism) are always in search of mandatory rules (even if none exist) such as "During a source selection, anything that you say to one offeror you must say to all other offerors." This contributes to the persistence of myth-information. Don't be one of those people.

pmh, Does this help? 45.000 Scope of part. This part prescribes policies and procedures for providing Government property to contractors, contractors? management and use of Government property, and reporting, redistributing, and disposing of contractor inventory. It does not apply to property under any statutory leasing authority, (except as to non-Government use of property under 45.301(f)); to property to which the Government has acquired a lien or title solely because of partial, advance, progress, or performance-based payments; to disposal of real property; or to software and intellectual property. [italics added].

Sure, let me give you an example. Let's say last year I had a competitive procurement for the purchase of 1000 widgets. Three responsible offerors, competing independently, submitted priced offers that satisfied the Government?s expressed requirement, award was made to the offeror whose proposal represented the best value, price was a substantial factor in source selection, and there was no finding that the price of the otherwise successful offeror was unreasonable. In other words, I had adequate price competition pursuant to FAR 15.403-1©(1)(i). The contract price was $700,000 ($700/widget). This year I have the same requirement for 1000 widgets. Instead of having a competition, I'm going to do a HUBZone sole source to Contractor A in order to help meet my agency's small business goals. I receive a price from contractor A and price analysis clearly demonstrates that the proposed price is reasonable in comparison with the contract price for last year's contract, adjusted to reflect changes in market conditions, economic conditions, quantities, and terms and conditions. In other words, I have adequate price competition pursuant to FAR 15.403-1©(1)(iii). Make sense?

I read something that I found remarkable in the recently published GAO decision Master Lock Company, LLC, B-309982.2, June 24, 2008. Bob posted the decision on the Wifcon home page. The protester argued that the agency's evaluation of the awardee's past performance should have taken into account the fact that they had declined a delivery order under a different IDIQ contract. In response, the agency argued that a delivery order was not binding and the GAO agreed. Here's an excerpt: "During the course of this protest, Master Lock also argued that the agency?s evaluation of Evergreen?s past performance was unreasonable. As discussed above, Evergreen declined to accept order No. 2745, which was issued under a different contract. DLA acknowledges that it did not consider these events in its evaluation of Evergreen?s past performance. AR at 8. The agency contends, however, that it was not required to do so because the submission of a quote by a vendor under an ID/IQ contract does not result in a binding obligation. Thus, the agency argues, because Evergreen did not accept the order, there was no contract performance for the agency to evaluate. The agency is correct that neither the submission of a quote by a vendor nor the issuance of an order by an agency results in a binding contractual obligation. Rather, the government?s order represents an offer that the vendor may accept either through performance or by a formal acceptance document. M. Braun, Inc., B-298935.2, May 21, 2007, 2007 CPD ? 96 at 3." [italics added]. However, the case that the GAO cited as support for their position did not deal with a task or delivery order under an IDIQ contract--it was a purchase order using simplified acquisition procedures. There's a big difference. FAR 16.506 requires the inclusion of the clauses at FAR 52.216-18, Ordering, 52.216-19, Order Limitations, and 52.216-22, Indefinite Quantity, in an IDIQ contract. Here's what the Indefinite Quantity clause says regarding the contractor's obligation to perform: "Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the 'maximum.' The Government shall order at least the quantity of supplies or services designated in the Schedule as the 'minimum.'" [bold added]. Now, what in this required FAR clause would give the contractor the right to decline an order, provided that the order complies with the Ordering and Order Limitations clauses? I don?t see it. The decision includes the following statements further on in an attempt to clarify: "Although the work required under any task or delivery order will only become a binding obligation on the parties if the vendor accepts the order, the underlying ID/IQ contract may itself have obligations. For example, a contract may require a vendor to accept orders placed by the agency within certain parameters.? This is conceptually incorrect. IDIQ contracts do require (not ?may?) the contractor to accept orders placed by the agency within certain parameters (stated in the Ordering and Order Limitations clauses). The only instance where a contractor?s acceptance of a task or delivery order would matter would be if the agency?s order was not within the stated parameters in the Ordering and Order Limitations clauses. Furthermore, an arrangement where the Government was required to order a minimum quantity and the contractor would not be required to perform would arguably lack consideration and, thus, not be an enforceable contract. The main problem with this decision is that it characterizes the exception to the rule (i.e., situations where the contractor may decline a task or delivery order under an IDIQ contract) as the rule itself. It also fails to recognize the distinction between purchase orders made in the open market and task and delivery orders under IDIQ contracts.

here_2_help, That's a good point. However, the Cherokee cases involved "contract authority" to obligate appropriations, not "budget authority." I don't know if the result would necessarily be the same when dealing with budget authority (which I assume is charles's case).

I don't know the answer, but I would be inclined to choose Vern's possibility #3. My reasoning is as follows: The Government can only be bound by contracting officers acting within the scope of their authority. A CO who violates the law is acting outside the scope of his/her authority. As such, the Government cannot be bound by a contract that the CO entered into by violating the law. In this case, I believe that the CO has entered into an unauthorized commitment.

dgm, Prior to the FAR Rewrite in 1997, FAR 15.608(a)(2)(iii) contained the following statement: "Firms lacking relevant past performance history shall receive a neutral evaluation for past performance." The FAR Council decided to change this wording in the FAR Rewrite based on some confusion as to what a neutral evaluation actually meant. Here's an excerpt from the Federal Register (62 FR 51224-01): "(f) Neutral past performance evaluations. We considered alternatives relating to two aspects of neutral past performance ratings-- (1) Definition of neutral past performance evaluations. The proposed rules provided a definition of neutral past performance evaluations. Public comments recommended that we revise the definition and provide detailed instructions on how to apply neutral past performance ratings in any source selection. 41 U.S.C. 405(j)(2) requires offerors without a previous performance history, to be given a rating that neither rewards nor penalizes the offeror. We did not adopt the public comment recommendations, opting instead to revise the final rule to reflect the statutory language, so that the facts of the instant acquisition would be used in determining what rating scheme is appropriate. This alternative provides for flexible compliance to satisfy requirements of the statute."

contractor100, You asked: "Does a schedule holder that does not sell any fixed price services or supplies ever have to accept an order?" I would say yes, the schedule holder still has to accept orders. Theoretically, an agency could issue an unpriced order requiring the contractor to begin work and then definitize the order later.

Scjet, That's a distinction that DARPA makes, but that is not true as a general proposition. An agency can have a BAA and award nonprocurement instruments only.

whynot, Yes, it's possible (and likely) that adequate price competition could result from FAR 6.102(d)(3), but that is not necessarily so. There's nothing in the regulations that support the assertion that GSA prices resulted from adequate price competition, per se.

whynot, CICA --> "full and open competition" --> FAR Part 6 TINA --> "adequate price competition" --> FAR Part 15 Two different (unrelated) things. You can have "full and open competition" and not have "adequate price competition." You can have "adequate price competition" without any competition at all (i.e., in a sole source acquisition).

While you can assume that GSA has determined its schedule prices to be fair and reasonable, I don't know what basis there is in the regulations to assume that the prices necessarily resulted from adequate price competition.

Carl, formerfed took the words out of my mouth. Unlike a purchase order, a task or delivery order under a Federal Supply Schedule is not an offer by the Government that the contractor can decline. I honestly don't know the legal effect of a FSS contractor's response to an agency's task or delivery order solicitation. What happens if a FSS contractor responds with a price that is less than the schedule price, then changes his/her mind? We know that they are contractually bound by the schedule price, but are they bound by the price with which they responded to the task or delivery order solicitation? If the answer is yes, then I would say that the response was an offer. If not, then it was a quote.

formerfed, Yes, I know. The FAR talks about RFQs and the DFARS talks about solicitation of offers. I don't know what the right answer is.

Vern, I read stanretired's post as implying that a CO could not (as in the CO does not have the authority) extend a delivery date without obtaining new consideration. I was simply pointing out that a CO does have that authority. I agree with you as far as what a CO should do.

Stanretired, I think that you can extend the delivery date without obtaining consideration, too. Here's something I wrote in another thread: Lastly, a contracting officer is not necessarily required to obtain new consideration if he/she establishes a new delivery schedule. See Administration of Government Contracts, Fourth Edition, p. 965, quoting Free-Flow Packaging Corp., GSBCA 3992, 75-1 BCA P 11,332: "It is a well-established principle in Government contract law that while the Default clause gives the Government the absolute right to terminate the contract upon failure of the contractor to make timely delivery of the procurement item, the clause permits the Contracting Officer to exercise his right to use discretion in deciding whether to immediately terminate the contract, or any part thereof, or, among other things, to allow the contractor to continue performance under a new delivery schedule. No new consideration is necessary to support what the Default clause already permits the Contracting Officer to do." [italics added].