Navy_Contracting_4

Joel, It's important to note that the DoD Alternate Structured Approach is an optional technique that is available only for actions-- - at or below the cost or pricing data threshold, - for A-E or construction work, - that are primarily for delivery of material from subcontractors, or - for a termination settlement.

If neither mod has been signed by the CO, send them back either: - unsigned, reuqesting they (or at least one of them) be revised to remove the potential conflict, or - signed conditionally on Mod 02 being effective only after mod 01. Alternatively, just sign them and in your cover letter returning them, clearly state your understanding that the language in Mod 02 takes precedence over Mod 01. I highly recommend discussing your concerns with the contracting officer before taking any action.

Are Mods 01 and 02 bi-lateral mods or unilateral? If the former, then when the "Govt. issue[d] Modification 01 and 02 to prime at same time," were both Mods signed by the CO already, or were they issued to the prime to review and send back for CO signature? Are they in conflict with each other?

I wasn't aware CICA mentioned GSA. What does it say about GSA?

TAP- The mere fact that a modification may increase the maximum dollar value of the contract does not, in and of itself, make it "out of scope" and subject to FAR 6.302. There are other potential reasons for such a modification that could be within the scope of the contract. You need to consider the reason for the modification before you can tell whether it is wihtin the scope of the contract or not.

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What we used to do was to send a synopsis of the requirement to the Department of Commerce, who printed and published a daily tabloid, the "Commerce Business Daily." It was printed on newsprint, and mailed to subscribers each day. It used small print to save space. And as I recall, the "search" function didn't work very well, either. What a godsend the Internet was.

Vern, I agree with your answers, except for one small nitpick - you didn't take issue with contractor2589's alternative approach (in his question 3) of allocating his unallowable G&A expenses against other reimbursable contracts. Wouldn't such a practice be a violation of CAS (if CAS applied) or, at a minimum, in conflict with GAAP?

I disagree. What you're saying conflicts with paragraph (e) of FAR 52.232-7, which says: "(e) Ceiling price. The Government will not be obligated to pay the Contractor any amount in excess of the ceiling price in the Schedule, and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the Schedule, unless and until the Contracting Officer notifies the Contractor in writing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract." The contractor must perform consistent with the change, yes, but only to the extent the ceiling price is not exceeded. The contractor must perform consistent with all the terms of the contract, one of which limits the Government's obligation to pay and the contractor's obigation to perform.

"How does the Changes Clause operate under a T&M contract?" Read the clause at FAR 52.243-3. It pretty much answers your first and last questions. "Does the contractor have to work beyond the funding?" FAR 52.232-7 -- Payments Under Time-and-Materials and Labor-Hour Contracts addresses the contractor's obligation to work beyond the ceiling price. See particularly paragraph (e), which says the "Government will not be obligated to pay the Contractor any amount in excess of the ceiling price in the Schedule, and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price . . ." If the "funding" is less than the ceiling price, then it's likely your contract has a "Limitation of Funds" clause, and it probably has a similar limitation on the contractor's obligation to continue performance if to do so would exceed the amount of funding.

Are the task orders at issue physically complete? Haev you considered using quick closeout procedures, as described in FAR 42.708? If you can use quick closeout, you will save a lot of time and frustration identifying and obtaining new funds, replacing the expiring funds with the new funds, and then de-obligating some of the new funds you just got once the rates are finalized. Address it now, if you can, before the funds expire.

One law you should consider is the Miscellaneous Receipts Act (see 31 U.S.C. 3302), which states, in subsection (, "an official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim." One exception to this general rule is at 31 U.S.C. 3718(d) - "Notwithstanding section 3302( of this title, a contract under subsection (a) or ( of this section may provide that a fee a person charges to recover indebtedness owed, or to locate or recover assets of, the United States Government is payable from the amount recovered." Is your contract one that was awarded under subsection (a) or ( of 31 U.S.C. 3718?

Writing a clause is the simple part. I would think a clause substantially the same as 52.217-7 would work well. For example: +++++++++++++++++ OPTION FOR ADDITIONAL ITEMS--SEPARATELY PRICED LINE ITEMS The Government may require the delivery of the numbered line items, identified in the Schedule as option items, in the quantities and at the prices stated in the Schedule. The Contracting Officer may exercise the option by written notice to the Contractor within [insert in the clause the period of time in which the Contracting Officer has to exercise the option]. Delivery of added items shall be made as specified in the Schedule, unless the parties otherwise agree. +++++++++++++++++ Or you could tailor it more, based on your needs (might you want to have the right to partially exercise the option, or exercise partially more than once?) And, gjoru, when you go to exercise the options, the only "authority" you need to cite will be the option clause. The question I'm more interested in is why you wouldn't procure the option items separately, when you will have funds available. Are these items related in some way? Is there some reason they all must be procured from the same vendor? How will you determine the prices of the option items are fair and reasonable? How do you guard against unbalanced pricing?

Vern- I should have known better than to think you wouldn't get hung up on semantics. Of course, you're right - "evaluate" was a poor choice for me to use in making the point I was trying to make, and, obviously, appeared inconsistent. A better term would have been "analyze." Point taken.

Georgeml, Don't get hung up on semantics. Everyone who responded to you pointed out that the purpose of evaluation factors, as they understood them, was to discriminate between competing offerors, i.e. to guide the source selection decision. In your situation, the source selection decision has been made, so I, and others, don't understand the purpose of using "evaluation factors." When you get beyond all of Vern's sarcastic put-downs, though, you'll find he has some good advice -- if there's something you want the contractor to know about how you will review and evaluate his T.O. proposal, by all means, tell him. I think that most readers here would agree with that, but would not consider such advice/guidance to be "evaluation factors," as that term is understood in the Federal contracting environment.

formerfed explained what it is, and gave an example. It is exempt from UCA requirements/restrictions because it is never inteded to be definitized on its own, but only as a part of the full production contract for which the long-lead items are being procured. This full production contract will subsume the long-lead contract into a single definitized vehicle. Congress does not act as the contracting officer, but it provides authority for the contracting officer to order and fund less than a fully defined product.

"...can a contractor respond to the Contracting Officer ..." What kind of communication from the Contracting Officer are you responding to? When you communicate to the Contracting Officer, you may certainly cite any section or clause in the FAR that you choose, but if the clause is not in your contract, it may not be relevant to the discussion, and the Contracting Officer may choose to ignore it. The purpose of your citing it, and its relevance to the issue, will likely govern whether the Contracting Officer gives any weight to the citation.

I recommend you read FAR Subpart 22.10, and particularly 22.1002-3, Wage determinations based on collective bargaining agreements, and 22.1008-2, Section 4(c ) successorship with incumbent contractor collective bargaining agreement.

Even though you may conclude that ratification seems appropriate, there's nothing that requires you to pay the entire amount requested. The price must be fair and reasonable, and there are other limitations in FAR 1.602-3(c ) that should help prevent payment of unauthorized/improper amounts.

The government does not normally ask vendors to provide optimistic and pessimistic costs, or minimum and maximum costs. Generally, in a CPIF contract, offerors are asked to propose "a target cost, a target fee, minimum and maximum fees, and a fee adjustment formula." [FAR 16.405-1(a)]

You may want to try the Interagency Contract Directory (ICD), as described at FAR 5.601. The ICD, as it exists today, is currently a pilot/test as the government reviews its functionality, elements, and help screens before final production, but you may find something useful.

You may want to try the Interagency Contract Directory (ICD). FAR 5.601 cites this as a resource, but the ICD, as it's currently available, is currently a pilot/test as the government reviews its functionality, elements, and help screens before final production. Still you may find something useful.

I also think it's interesting that, for those who deal with, or are in, DoD, the Defense Finance and Accounting Service (DFAS) has their Accounts Payable operation broken down into two parts - "Contract Pay" and "Vendor Pay." Here's their description: "Contract Pay: "The contract pay function within Accounts Payable operates solely out of DFAS Columbus, and includes paying contractors through formal, long-term contract instruments, requiring contract administration, that provide products and services to the DoD components (the military Services and defense agencies). Those contracts are typically administered by the Defense Contract Management Agency (DCMA) and tend to be complex, multi-year purchases with high dollar values, such as the purchase of major weapon systems. The contract pay function makes payments to more than 17,100 contractors on some 317,000-plus contracts. "In addition to the operations functions of entitlement and payment, contract pay encompasses all the ancillary functions in support of operations, such as policy and procedures; contract reconciliation; electronic commerce initiatives; debt collection, reporting and analysis and customer service. "Vendor Pay: "The vendor pay function within Accounts Payable, as of February 2007, operates from 16 DFAS sites, two of them overseas (one in Germany, one in Japan). Nine stateside vendor pay locations will be closed by FY 2009, with that workload moved to the enduring DFAS sites in CONUS. "Vendor pay includes entitlement determination and payment for day-to-day goods and services on contracts not administered by DCMA, plus miscellaneous non-contractual payments to businesses and individuals (e.g., utilities). Vendor pay uses 16 different systems to make payments in support of the Army, Navy, Air Force, Marine Corps and Defense Agencies. Some systems support only a single commodity type (e.g., fuels; subsistence; Commissary items), while others are used at multiple sites for a variety of goods and services."

When the contract was awarded, didn't it include some limitation of liability, stipulating what the contractor's obligation would be in the event no further funds were provided, e.g. contractor is not obligated to continue performance beyond the point at which the total of the funds payable plus an amount for termination expenses equals the funds obligated? What has changed?

What type of contract do you have? Does it include a "Limitation of Funds" clause?