govt2310

In early April 2026, the folks working on the RFO posted on FAI.gov in the FAR Forward Alliance Community section that the RFO still allows you to do a competitive range of one. They believe the current language/phrasing in the RFO is sufficient to communicate that, but because they received inquiries on this issue, they have taken out the word "group" in their proposed rule.

On 1/20/2026 at 3:20 PM, C Culham said:

Just thoughts as I already voiced my agreement with Vern's approach.

I understand using the FAR as guidance but then I wonder highlighting something that Vern already did in previous post. That is FAR clause (same language in current FAR and RFO) 52.214-4 at (l) which states in part - "...Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination....."

In applying Joel's concerns about duplicate consideration being given for a cost that the contractor is requesting is it not "the terms of the contract" and the "standard record keeping" of the contractor are what is to be considered and not FAR Part 31 or even FAR Part 49 for that matter? Maybe my view is too simple but to me it is all that is needed to reach a negotiated agreement for the termination for convenience.

Edited - It would then be the contract and the recordkeeping of the contractor that would help sort out if there are duplicative costs that should be addressed in negotiation.

C Culham, that is a good point. Also, FAR 49.303-5 at paragraph (d) says:

(d) If an overall settlement of costs is agreed upon, agreement on each element of cost is not necessary. If appropriate, differences may be compromised and doubtful questions settled by agreement. An overall settlement shall not include costs that are clearly not allowable under the terms of the contract.

18 hours ago, joel hoffman said:

@govt2310 ,  When was the contract terminated for convenience? Before starting performance or sometime during performance? 

Another good point by Joel. Well, let's say the T4C happened during contract performance. This is making me think that, probably the only Start Up Costs that a contractor could get are costs that happened AFTER the contractor won the contract award, but before the contractor had to begin contract performance. Thoughts?

18 hours ago, joel hoffman said:

So, think about this. How does the contractor account for such costs when they don’t win a contract? Where would they charge these type costs to?

I’d think that it would be in some overhead account spread over its contracts… assuming that this wasn’t a specific effort only performed for this contract competition in hopes of winning it. Even if it was, where did they charge these type costs to?

Thank you, Joel, yes, I see your point. It does seem likely that a contractor would have to categorize these costs as overhead, as they don't know for sure if they will win the contract award or not.

3 hours ago, Vern Edwards said:

Here is what FAR 52.212-4(l) says:

Emphasis added.

@govt2310 I don't think start-up costs result from a T for C. Do you?

But is start-up part of the "work performed" after contract award? If you think so, consider it in the settlement.

According to the Ben Holtz CBCA decision in November 2023, yes, Start-Up Costs can be costs that "result from the termination."

Here is an article about the Ben Holtz CBCA decision, https://www.millerchevalier.com/publication/cbca-adopts-common-sense-interpretation-far-52212-4l-contractors-should-not-put-all.

Here is the Ben Holtz CBCA decision posted on the CBCA.gov website, https://www.cbca.gov/files/decisions/2023/KANG_11-17-23_7637__BEN_HOLTZ_CONSULTING_INC_DBA_CALIFORNIA_AVOCADOS_DIRECT%20(DECISION).pdf.

In the Ben Holtz CBCA decision, the CBCA said that "costs resulting from the termination" can include "such things as start-up costs; unrecovered running expense." The CBCA said that "costs resulting from the termination" can include "preparatory or startup activities that are not separately priced under the contract." The CBCA cited as persuasive some decisions by ASBCA and COFC. In particular, the CBCA cited the Value Recovery Holding, LLC COFC decision, where COFC said that FAR 52.212-4(l), under the "costs resulting from the termination" phrase, covers costs incurred "prior to performance" to satisfy "necessary" contract requirements, e.g., obtaining required licenses and permits, etc.

If a contractor has to get licenses and permits in the Start-Up Phase, how is that different than the contractor's duty to get employees in place to work on the contract? And if the hiring and interviewing work is considered part of Overhead, how can the Contracting Officer discern for sure whether this task was covered or not covered by Overhead, other than by taking the Contractor's pinky swear promise that wasn't?

For a Termination for Convenience Settlement Proposal, can the Contractor get compensated for Start-Up Costs?

Let's say this is a FAR Part 12 commercial services contract. The Contract contains FAR 52.212-4. FAR Part 12 says that FAR Part 49 does not apply, but it can be taken as guidance. FAR Part 49 says to look to FAR Part 31 to figure out allowability of costs. FAR 31.205-32 says Pre-Contract Costs are allowable, but only when they are necessary to comply with the proposed contract delivery schedule (Precontract costs means costs incurred before the effective date of the contract directly pursuant to the negotiation and in anticipation of the contract award when such incurrence is necessary to comply with the proposed contract delivery schedule. These costs are allowable to the extent that they would have been allowable if incurred after the date of the contract). FAR 31.205-42 says Termination Costs includes Initial Costs, which includes Preparatory Costs for things like "management and personnel organization." However, if these are direct charges in the Settlement Proposal, "such costs shall not also be included in overhead." FAR 31.205-34 Recruitment Costs says that the costs of help-wanted advertising, costs of maintaining the HR office, travel costs for recruiting, etc, are allowable. FAR 31.205-13 Employee Morale Costs says that costs incurred on activities "designed to improve working conditions, employer-employee relations, employee morale" are allowable.

Let's say the Contractor wants to get compensated for the following: interviewing and hiring employees during the Bid Proposal Preparation Stage to work on the Contract if they win the Contract Award. Are these costs allowable?

This is wonderful news!  Thank you, Vern!

Thank you, Vern!  I'm so happy that Wifcon will continue!

My condolences to Bob's family.  Thank you to Bob for starting Wifcon.com and sharing so much government contracting wisdom and knowledge.  I have learned so much from this site. 

Thank you to everyone who responded to my original post.  This is helpful.

Hypothetical: An agency establishes a BPA with 10 BPA Holders for software development services.  Agency issues a Call Order to BPA Holder #1, where that Call Order is characterized as "an IDIQ."  Agency issues a Task Order #1 off of the Call Order for BPA Holder #1 to develop software #1.  Then Agency issues Task Order #2 off of the Call Order for BPA Holder #1 to develop software #2.  BPA Holders #2 to #10 file a protest asserting that the Agency has violated competition rules.  Thoughts on how this would play out?

I think the answer is no.  But I can't find any authority that directly addresses this question.  Does anyone know?

The DHS HSAM used to have a Debriefing Guide at Appendix AA.  DHS revised the HSAM in 2023, and now it is gone.  But it is still mentioned within the HSAM.  Does anyone have the link to the current DHS Debriefing Guide?  Link to HSAM https://www.dhs.gov/homeland-security-acquisition-manual

Thanks, Vern!  Link to EPAAR 1532.003

EPAAR 1532.003 Simplified acquisition procedures financing.

Thanks, C Culham!  Well, I looked at your two links.  The VA policy mentions, as examples, prosthetics, subscriptions, and training.  Advance Payment for subscriptions and training is authorized by their own statutes, and they are not limited to Micro-Purchases.  I don't know if there is a statute that authorizes advance payment for prosthetics.  The Army AFARS also talks about subscriptions and training.  What I'm interested in is an example of where an agency promulgated regulations/policy saying it is ok to do advance payment for a Micro-Purchase regardless of what product/service is being purchased.  For example, something that allows a Cardholder to pay in advance for a Hotel Agreement (conference space). 

FAR 32.003 states, "Unless agency regulations otherwise permit, contract financing shall not be provided for purchases made under the authority of part 13."  Well, if an agency simply promulgates regulations permitting advance payment for FAR 13 Micro-Purchase, then the agency can pay in advance for a Micro-Purchase, right?  Does anyone read FAR 32.003 differently?  Does anyone know of an agency that has promulgated such regulations?

It seems so simple, so I am surprised that I cannot find an example of an agency that has promulgated such regulations.  That makes me think it cannot be done.  But then what do these words in FAR 32.003?  It says the agency can write into its regulations to "permit" otherwise.

Typically, a Micro-Purchase is for a commercial product/service.  FAR 32.201 provides that you can do advance payment if it is "appropriate or customary in the commercial marketplace."  And FAR 32.202-1 states that contract financing is allowed if it is in the best interest of the United States.  And FAR 12.210 states that "Customary market practice for some commercial products and commercial services may include buyer contract financing," and the CO "may offer Government financing in accordance with" FAR Part 32.  Note, FAR 32.202-2 still applies (the advance payment shall not exceed 15 percent of the contract price). 

Thanks, formerfed!

The DoD Source Selection Procedures at 2.3.2.1 prohibited numerical scoring of proposals.  This DAU article says that DoD changed that rule in August 2022, https://www.dau.edu/library/damag/july-aug2024/distinct-numeric-scoring-protocol.  However, when I look at the revised DoD Source Selection Procedures dated August 2022, https://www.acq.osd.mil/dpap/policy/policyvault/USA000740-22-DPC.pdf, it still prohibits numerical scoring of proposals.  It appears the DAU article author is wrong.  Am I missing something?

I am the OP.  I asked GSA.  This is GSA's reply: "Thank you for your inquiry.  Although there are several important considerations listed as it relates to no cost contracting, those considerations are GSA recommendations.  Therefore, the OCO is not required to address the bulleted items." 

I take this to mean that GSA is saying that the agency ordering contracting officer who is placing a Solicitation for a No-Cost Contract for Conference Planning Services (SIN 561920) is not required to include Past Performance as an evaluation factor, even though GSA's webpage for this SIN says, "Past performance is a required evaluation criterion." 

Thank you to everyone who weighed in on this.  Your contributions are always stimulating and make me see the issue from different angles than before.

This GSA webpage states that, for a No-Cost Contract for Conference Planning Services (SIN 561920), "Past performance is a required evaluation criterion."  Why is PP required?  Where in the FAR does it say this?

https://www.gsa.gov/buy-through-us/purchasing-programs/multiple-award-schedule/sinspecific-guidance-for-buyers/nocost-contracting-guidance-for-sin-561920

Let's say an agency awards a contract to Acme to provide training services.  Acme will provide virtual training to Agency employees.  Acme does the training by doing live video webinars, giving a link to the training class attendee to download the training class handouts/PDFs, and after the class, Acme emails a link to the training class attendee so they can watch the video recording of the training for up to 30 days.  Also, Acme emails a link to the training class attendee so they can download short video recordings that are high quality production generic explainer video summaries of the training material.  After the training is over, the contract has expired, can the Agency re-use Acme's training materials, or would that be a copyright violation?  Can the Agency employees email Acme's PDFs to other Agency employees?  Also the links to the videos? 

FAR 27.409 says not to use FAR 52.227-19 for GSA Schedule Orders.  What is the rationale for this? 

Assume that this is not Open Source Software (OSS).  Let's say it is definitely commercial software owned by a private company that sells it for profit to the public.  It cannot be a no cost contract because it is not like the vendor will be able to make money in any way.  An example of a NCC is conference space, where the hotel or event planner is able to make money by charging a registration fee to the conference attendees.  That is not the scenario here.  And isn't this "property" (software license), which means the ADA's voluntary services prohibition applies?

Can an agency accept a "free" software license?  Let's say the vendor approaches agency officials, offering to give the agency a trial period to use its software for X number of months.  How does this not violate competition rules?  Could it be done as a "gratuitous" service/product?

I am very grateful to Vern for sharing his wisdom with me and others on Wifcon all these years.  Thank you so much, Vern!  You are awesome!