govt2310

Ok, I see where Vern and ji20874 might be coming from. Well, let me throw this out there: How about taking the position that both A and B were already given fair opportunity because, at time of the original Master IDIQ Contract Competition, it was already known to all offerors that there would be a price ceiling/maximum quantity on each contract awarded, so all offerors were on notice of the possibility of it turning out later down the road that one awardee's ceiling/maximum might be reached before the other awardee's?

If the agency were to give notice to A and B, knowing that A doesn't have a chance because its contract has hit the price ceiling/maximum quantity already, Contractor A could file a protest at GAO. GAO would find that Contractor A is an interested party. Why? See REEL COH, a GAO decision from January 2020. In REEL COH, the protester, who was ineligible for award (due to a technically unacceptable proposal), challenged the award to the awardee, and GAO found that, even though the agency properly found the protester to be technically unacceptable, protester was still an interested party because, if GAO sustained the protest, the agency would have to issue a new solicitation, so protester had an economic interest because it would be eligible to submit a new proposal to the new solicitation. So it looks like Contractor A could file a protest contending that the agency's doing a sham fair opportunity competition exceeded the scope of the Master IDIQ Contract. The remedy that Contractor A could seek is for GAO to make the agency do a totally new solicitation for the Master IDIQ Contract, not just a new solicitation at the task order level on the existing Master IDIQ Contract. Thoughts? REEL COH Inc.B-418095,B-418095.2: Jan 10, 2020

Yes, by "price ceiling," I mean the "maximum" quantity mentioned in FAR 52.216-22(b). For the total value of the future task order that I am asking about, assume the amount is > $10 million. Say it is $20 million.

There is no time to establish a new multiple award IDIQ. I believe GAO has stated in the past that, if the ceiling on a task order has been reached, if the agency were to go past that, even if the contractor agrees to waive the ceiling, that that is indeed out of scope of the original competition for the MAC. I don't have an answer for "what was the value of the original acquisition" and "what was the maximum on each contractor's contract." Sorry. Well, since Contractor A is out, this brings me back to my original question: Can the agency just make award to Contractor B for a new task order without doing any "fair opportunity" competition?

Say an agency awarded a multiple award IDIQ. There are two contractors who got award. Each contract has a price ceiling. What if contractor A's ceiling is maxed out, so it is ineligible to get award of any future task orders. Can the agency just issue task orders to contractor B without doing a "fair opportunity" competition?

Oh wait, I did some more digging and found this Federal Register entry from June 30, 2020 for a Proposed Rule. Is this it? I just want to be sure. Federal Acquisition Regulation: Inflation Adjustment of Acquisition-Related Thresholds 85 FR 39146 And the Final Rule was issued on October 2, 2020: Federal Acquisition Regulation: Inflation Adjustment of Acquisition-Related Thresholds 85 FR 62485

I noticed that FAR 16.505(b)(1)(iv) as shown on acquisition.gov now says "Orders exceeding $6 million." I thought the threshold was $5.5 million. Was the threshold raised? If so, can someone post the Federal Register link? I searched on govinfo.gov but couldn't find any such amendment to the FAR. Is this a typo in the FAR? Here is what I see when I look at FAR 16.505((b)(1)(iv):

Thanks everyone! To answer joel hoffman's question, let's say this is a small business set-aside, and the JV was a mentor-protege JV. So you raise a good point: is the work being done by the remaining JV member that qualifies as small? Good point. Regarding C Culham's comment, thanks, I will check those links out.

The contract is not over. The contractor -- the JV -- is still supposed to be performing the services on the contract. Let's say that one of the JV members is continuing to perform these services by taking over the duties of the other JV member. What damages has the government suffered? Well, we now have uncertainty on whether the contract will continue to be performed in the future, as the Period of Performance expiration date still has a long time to go.

Let's say the contract did NOT require the JV to notify the government if the JV dissolved. My concern is, who is legally responsible to continue performing the contract? If the JV is dissolved, then the contractor no longer exists, and there is no party called "contractor" that is legally required to continue doing the work. I know that, if a contract is awarded to a JV, and it turns out the JV never existed, that contract is void ab initio. But what happens if the JV did exist at the time of contract award, but during contract performance, it ceases to exist?

What happens if a JV is awarded a contract, then during performance of the contract, the JV members have a dispute and then dissolve their JV, but don't tell the agency but just keep performing the contract? Then later, the agency finds out from other news sources about the JV no longer existing.

Thanks! It would be nice if the FAR Council would look into clarifying all of this.

Thanks!

Are FAR 52.212-1 to -5 required to be included in a FAR Part 8.405 GSA Schedule RFQ? The CGI Federal court decision from 2014 held that FAR 12 does apply to FAR 8, however, FAR 12.102 only requires FAR 12 to be used in conjunction with FAR 13/14/15, not FAR 8 and not FAR 16.505, concerning the solicitation/evaluation/award stages.

@Jacques Thanks for all this information and answering my question.

Jacques, what statute prohibits the Government requiring as a condition for award the use of mandatory arbitration?

@Ibn Battuta Ok, I see your point. Well yes, I have read the entirety of FAR Part 45 and FAR clause 52.245-1, and reading all of this as a whole, I still interpret "Government Property" to mean that file boxes held at a contractor's facility are Government Property. That is the only explanation that I have for you. Thanks everyone. I would be fine with ending this discussion thread at this point. ----------------------------------------------------------- govt2310 excused himself at this point. Don't direct any further responses to him. If he chooses to reenter the discussion, then you may. 11:54 am

@Ibn Battuta If the Government owns something and puts it in a contractor facility, the Government still owns it. FAR 52.245-1 says: “Government property” means all property owned or leased by the Government. Government property includes both Government- furnished and Contractor-acquired property. Government property includes material, equipment, special tooling, special test equipment, and real property. Government property does not include intellectual property and software.

The definition at FAR 52.245-1 says "including" which implies it is not a complete list. So government file boxes may indeed be within the definition.

Thanks everyone. FAR 52.245-1, when used with Alternative 1, says the contractor assumes the risk of loss/damage of Government Property. Hmm.

Say there is a contract requiring the contractor to provide storage space for an agency's government file boxes, like in a warehouse. It is a fixed-price contract task order off of the GSA Schedule. With only a few weeks to go until the contract expires, it comes to light that the contractor has lost a bunch of the file boxes. The contractor admits it cannot locate them and has given up. The contractor has submitted invoices for full payment. What is the appropriate way for the agency to handle such a situation? Obviously, the agency shouldn't pay the invoices where the contractor didn't perform, but how would one calculate that here?

Oh wow, this is fascinating. But for GAO protests, they only allow submission of the Agency Record by uploading electronic files to "EPDS," and that system only takes PDF and Excel. Will the rules be changed to have the EPDS system take audio/video file formats? Hmm.

I mean oral discussions, not oral proposal presentations.

Does anyone know of any agency that has a regulation/guidance requiring that Oral Discussions be recorded by audio, video, and transcript?

Thanks everyone! This is helpful.