govt2310

Can you issue an IDIQ off of an IDIQ? There has got to be an existing thread on this question somewhere on WIFCON. Can someone post the link to it, please?

Thanks Jacques, FAR 42.12 was helpful. I am asking how to achieve it. Is there any way to draft the contract at formation to "direct" or require the prime KTR to transfer all assets to the sub KTR etc, so that the sub KTR assumes the role of the prime KTR in the K with the Govt? My view is no, that would be the Govt interfering with a private contractual relationship, but I wonder if anyone has already encountered this dilemma and can shed more light on it.

Can the Govt "assume" a prime ktr's lease subcontract? Meaning take the place of the prime ktr in the contract with the subcontractor? My initial rxn is no, because that could be viewed as an unjustified sole source to the subcontractor. Can anyone point me in the right direction for some source of authority on this issue?

What if it is a software license + software mntc services? And the services price is not separable from the license fee? Then the govt is paying for mntc services for say 12 months,, but if a T/C happens, the agency still has to pay the KTR for remaining perf period (the mntc services do have a period of performance in my view)?

A Multiyear Contract is a type of Requirements Contract. Yes, Multiyear Contracts can have a Cancellation Ceiling/Cancellation Charge. However, the situations I have presented do not involve a Multiyear Contract. But even if our agency were to agree to a cancellation charge clause, we do not have sufficient current year funding to fund such a cancellation charge, which I think is the common case for a lot of agencies in this type of situation.

FAR 2.101 states that a ?Statement of Objectives (SOO)? means a Government-prepared document incorporated into the solicitation, etc. But FAR 37.602© states that "Offerors use the SOO to develop the PWS; however, the SOO does not become part of the contract." How can a SOO be incorp. into the solicitation, but not the contract? Doesn't whatever is in the solicitation, such as the clauses, all automatically get into the contract?

FAR 52.249-2(f), regarding Termination for Convenience, states: (f) Subject to paragraph (e) of this clause, the Contractor and the Contracting Officer may agree upon the whole or any part of the amount to be paid or remaining to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. However, the agreed amount, whether under this paragraph (f) or paragraph (g) of this clause, exclusive of costs shown in paragraph (g)(3) of this clause, may not exceed the total contract price as reduced by (1) the amount of payments previously made and (2) the contract price of work not terminated. The contract shall be modified, and the Contractor paid the agreed amount. Paragraph (g) of this clause shall not limit, restrict, or affect the amount that may be agreed upon to be paid under this paragraph. We may have bought the license, but the license is has a timelife built in to it, it is not like a tangible item that we buy and own forever like a piece of hardware. It is almost like leasing, and leasing is a service. THerefore, if we T/C, the Govt has not received a benefit, no work was "done," for the remainder of the Period of Performance, and according to FAR 52.249-2(f), the contractor is not to be compensated beyond the contract price of work not terminated. So it looks to me like the Contractor's proposed clause is unacceptable because it conflicts with the FAR.

I have seen this in proposed, draft hotel contracts and also in proposed, draft software license agreements: the contractor's boilerplate agreement includes a clause that says something like "early termination of agreement shall not result in a refund to the Government, and if the Government has not yet paid for the remainder of the period of performance, the Government is still liable to the Contractor for the remainder of the period of performance." My agency once took over the administration of a contract for another agency, and that contract had this clause. Because the original agency had incrementally funded the contract, and it had a period of performance that included options, we were able to successfully defend the government's termination of the contract and the unenforceability of this clause, as this clause violated the Anti Deficiency Act (the clause obligated the govt to pay the remainder of the contract if the govt terminated, yet, with incremental funding, we had no guarantee that the agency would get sufficient funding for this contract for the option years/future fiscal years). I have seen this clause in hotel conference leasing contracts and have always been able to negotiate them out. Now I am seeing this clause again, this time in a software license agreement, and I have the feeling the contractor will not just back down and delete the clause. I need to have a solid justification. If this is a one year period of performance, fully funded from the beginning, would you say this clause still violates the ADA? Is there any other justification that supports the agency's position that this clause is unlawful/unenforceable?

Thanks for the Vern Edwards article. I passed it on to my colleague. If he has more questions, I will post them here.

A colleague of mine has this dilemma: One of his contracts is being audited by DOD. They say he messed up by issuing a task order with a period of performance starting after the expiration of the MAC IDIQ. For example, the MAC IDIQ contract expired on April 14, but say my colleague took action on April 10 to issue a task order with a period of performance starting April 15. Does anyone have any insight into this issue?

Because it has been mandated by top management here, my agency's contracting shop is taking over administration of a delivery/leasing order from another agency's contracting shop. That other agency refuses to cooperate with the procedures in FAR 42.202 (we asked them to respond in writing about what their reasons/concerns are and are still awaiting their answer). They want us to just issue a new order to cover the remaining period of performance (about 18 months) from the original task order off of the GSA schedule. They contend we don't have to compete it, that the award can go to the incumbent for these commercial supplies, IAW FAR 8.405-1©. We pointed out that, as a contracting shop under DoD, we are subject to the competition requiremrents of DFARS 208.405-1 (if it is over $100K, which this is, then we are required to compete it or in the alternative do a J&A to justify why we cannot compete it). I have looked at all the spelled out justifications available (brand name requirement, logical follow-on, etc.), and I don't think our situation fits any of these justifications. Why does it seem so important to sole source this to the incumbent? The story I was told was, at the old agency, documents were lost and there was confusion, and so a "reformed task order" was executed last fall to "formally rescind, reform, and replace all prior task orders . . .to grant relief to the contractor in the form of a reformed task order under which to invoice for supplies and services." In the reformed order, the contract signed a statement that included a release of claims, which states, in part, "BY counter signing below [incumbent] agrees to the establishment of a reformed order to include a minimum monthly fee for the equipment in the table below, on each serial number, PLUS OVERAGE CHARGES FOR THE BALANCE OF THE TERMS OF THE LEASE . . . the purpose of this reformed order is to settle by mutual agreement a contractual issue/controversy by defining the terms of the order to authorize and fund continued contractor lease fees [the contractor is providing/leasing to the Govt commercial equipment]. The agreed upon residual value of this order, in teh amount of NTE $1,405,618.54, includes lease fees for hte balance of the lease terms and potential overage fees. Acceptance of this reformed order will constitute agreement to hte terms of settlement and relases the government from future claims for periods prior ot October 1, 2008 for equipment in place at this time." I really don't see clear language here conveying that, if the Govt terminates for convenience, the Government owes the incumbent the balance of the $1.4M total value of the order, but everyone (the folks at the old agency, folks here at my agency) all believe that that's what it says. Even if it does say that, I have never heard of the Government agreeing to pay a penalty fee in the event of doing a T4C, and it seems stupid. But apparently, that's happened here. So my question is, is there any way to get out of it? If my agency takes over the administration of the order, or rather, just competes a new order off of the GSA Schedule, and say another company wins, not the incumbent, we are pretty sure the incumbent will litigate, probably filing both a protest and an appeal at the BCA, who knows. In such an event, can my agency and the old agency argue that the "pay-the-balance-of the-order-in-the-event-of-T4C" provision is null and void because it potentially violates the Anti Deficiency Act? Any other ideas? Or do you think it would be best for my agency to do a J&A justifying a sole source to the incumbent on the grounds that they had a previous order with the old agency that included a penalty fee for early termination, and then just issue a new order under the GSA schedule to them? If we got protested in that situation, would we prevail?

I have a situation along the same lines and need guidance/advice. Dept of Treasury's FEDSOURCE has a current order off of a GSA BPA it is administering for a customer agency. Unfortunately, the FEDSOURCE is going away - it will not exist in a few months. So the customer agency, who is also a customer of the DoD contracting shop I am in, wants us, DoD, to take over administering this order for commercial supplies and services. It sounds to me like a Government-side version of a "novation" and/or "assignment of claims" is called for, but I can find no guidance in the FAR (FAR 42 addresses novations by contractors, etc). So how is this supposed to be done? Some specific questions we are running into here are: FEDSOURCE contracting staff broached the idea of a termination for convenience, and then whoever the new contracting shop is could compete the requirement to form a new contract or order. The contractor threatened to litigate if this happened. The contractor, of course, wants a sole-source to itself for at least the remainder of the period of performance. Is it possible to do a Justification and Approval for Limited Sources by stating that DoD is simply taking over from a soon to be defunct contracting shop, FEDSOURCE, so even though we would administratively do this by creating a new order off of the GSA BPA, it is actually just a continuation of the old order, and that is why we think it is "OK" to "sole source" it to the incumbent contractor? And in that old order, could we just put all the DFARS, AFARS clauses that are appropriate? Do we still need to execute an MOU between FEDSOURCE and DOD if FEDSOURCE isn't going to be around much longer anyways? Does anyone have any real life, previous examples of having done this before?

OMB overrides GAO on small business contracting - OMB issued memo on Friday, July 10, 2009, see here: http://www.federaltimes.com/index.php?S=4184560 http://federaltimes.com/content/static/memoranda071309.pdf The article says, "Agencies are not bound by two GAO rulings (Mission Critical Solutions and International Program Group, Inc.) that contradict federal regulatiosn regarding how to award work to small businesses."

All I have found so far on my own is a West Group Briefing Papers article from 2000, "Foreign Nationals in U.S. Technology Programs: Complying with Immigration, Export Control, Industrial Security & Other Requirements," and of course the press articles on the new e-Verify system that went into effect earlier this year. So I'm still looking for more information.

I am looking for general background re: when the Govt can or cannot require contractor employees to be U.S. citizens. Citations to the FAR/DFARS etc would be most helpful.

I am not the creative genius that came up with this language. You make a good point. I'm not sure what would happen. Hmm.

I have a question along these lines. Contractor, Vendor, Offeror - these are often used interchangeably. But specifically, for Simplified Acquisitions, FAR 13.004 says that a quote is not an offer. Therefore, doesn't that mean that the company submitting a quote is not an offeror? In Simplified Acquisitions, the Government makes the offer and the Awardee/Contractor accepts by performing. Most of the time, Simplified Acquisition Procedures/RFQs (FAR 13) are used to obtain Commercial Items (FAR 12). So what ends up happening is that an RFQ is issued, it has the clauses required by FAR 12.301 (FAR 52.212-1 to FAR 52.212-5), and those clauses repeatedly refer to the contractors who may submit a quote as "Offerors." But they are not offerors, they are . . . well . . . what is the most appropriate term? Just say "contractors"? Or vendors"? They are certainly not offerors. Has anybody else noticed this problem?

I am asking for feedback on the proposed language below. This is draft boilerplate language for when Socio-Economic Status will be used as an Evaluation Factor/Criteria in a Solicitation. What do you think of this language, any suggestions for improvement. It is intended to be used under FAR 8, FAR 13, FAR 15, and FAR 16. If anyone has better language/examples, please post here. Here is the proposed language: Instructions: Socioeconomic Status It is the policy of the Government to place a fair portion of its acquisitions with small business concerns. The agency desires to meet socio-economic goals through this procurement. Your quote shall identify the business size of the prime contractor and any subcontractors, if applicable, based on the NAICS code provided. Offerors must clearly identify the percentage of work, based on the cost of contract performance incurred for personnel, to be performed by each. Evaluation: Socioeconomic Status An offer received from a small business prime contractor in which at least 50% of the cost of contract performance incurred for personnel will be performed by the small business concern will be evaluated more favorably. An offer received from a large business prime contractor or a small business prime contractor in which less than 50% of the cost of contract performance incurred for personnel will be performed by the small business concern will be evaluated least favorably. Source Selection Plan: Socioeconomic Status Excellent (Blue) rating ? Prime contractor is a small business concern in which at least 50% of the cost of contract performance incurred for personnel will be performed by the small business concern. Acceptable (Yellow) rating ? Prime contractor is a large business or a small business concern in which less than 50% of the cost of contract performance incurred for personnel will be performed by the small business concern.

So if FAR 16.301-1 does not require a ceiling price but only "estimated cost" then, for a solicitation for a CPFF contract type, are we only to ask the offerors to provide the estimated cost and the proposed fixed fee? Going back to the JAG Book material, why does the example exercise in there for CPFF show a ceiling price if one is not required? Is it optional?

FAR 16.301-1 requires all cost-reimbursement contracts to establis ha ceiling price. In a cost-plus-fixed-fee or CPFF contract type, does that mean the solicitation must instruct the offerors to craft their price proposals to include all of three of the following: a ceiling price, an estimated cost, and a fixed fee? I tried to find an example of such instructions on a fedbizopps but to no avail. I have never had to do a CPFF contract before, and I can't find anyone in my agency who has either. So this is flying blind. I got access to the Army JAG Book Contract 101 Course Material, and the example math exercise in there shows a fact pattern with an estimated cost and a cost ceiling, which are different from each other. But I discussed this with a colleague here, and he thinks the math exercise looks strange, that in his view, the estimated cost and the ceiling price should be the same number. In all his years in acquisition, he has never seen a solicitation instructing the offerors to provide more than 1 price -- just the ceiling price. With CPFF, it looks like that we will have to ask for the offerors to provide 3 prices: (ceiling, estimated cost, and fixed fee). Can anyone out there provide guidance to clear this up for us?

This is actually not my question. A DOD colleague of mine wants to know: 1__In putting together a solicitation for what will be a CPIF contract type, does the agency ask the vendors to provide optimistic and pessimistic costs? (I believe my colleague is referring to minimum, target, and maximum costs, which FAR 16.405-1 requires be in the CPIF contract). Or does the agency establish the optimistic and pessimistic costs and let the offerors decide their target costs? 2__How would the agency determine that the optimistic and pessimistic prices are reasonable? 3__How would the agency actually compare the prices offered? For example, would it be OK to state in the solicitation's evaluation criteria that the agency intends to take the maximum cost proposed by each offeror and compare these costs? If we are supposed to take into consideration for this comparison the offerors' minimum, target, and maximum costs together, is there a formula for doing this? How do we do this? If anyone has experience evaluating prices for a CPIF contract type, it would be great to see your solicitation as an example. 3__Because we need to develop a probable cost, what does the agency do when the probable cost is different from the proposed cost? 4__We are thinking about asking the vendor to identify the labor rates (and categories) and the cost elements that make up the labor rates. However, I think our biggest concern is with labor estimates, so I don?t know how material, indirect costs, etc. will help in a cost realism analysis. Thoughts?