Prezmil2020

Jeddy, FAR 15.101-2(b)(1) states, in part: I would make completion of the pricing table an evaluation factor and state award will not be considered if the pricing table is not completely filled out, unless you are willing to entertain discussions. Curiously, I presume you are making a single award. If so, I would also include in Section M that only the lowest priced proposal will be evaluated and if determined acceptable will be awarded the contract and no further proposals will be evaluated. If you plan on awarding multiple contracts based on some range of lowest priced proposals, I would state the same.

Sorry for the delayed response. I was prepping for the Marine Corps Marathon. Here's what I initially sent apsofacto: "I don't think anything is wrong with the sentence as written. The word 'which' is used as a pronoun, indicating a relationship between the red tag and the engines. Therefore, logic would dictate that only engines with a red tag are to be removed and rebuilt. Perhaps to be more clear, I would suggest the following revision: The Contractor shall only remove and rebuild engines marked with a red tag." After reading Vern's comments, I concur that the sentence is in fact misleading and one could interpret the instructions as indicating all engines have a red tag. The bottom line from this exercise, be careful when drafting a document as contra proferentem will dictate in most cases.

Rye, Did your employer or did the Government provide you with the Performance Improvement Plan? If the Government did, is this a personal or non-personal services contract?

Culham, Where does it state in FAR Paragraph 8.404(a) that the use of LPTA is strictly prohibited?

The passage you quoted states "Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order." I agree that if the base period or option period is issued during the effective period of the contract then the contractor can continue performing until said period ends, even after the contract period of performance expires. However, if the contract's period of performance expired no new options can be exercised.

It is my understanding that when an IDIQ is awarded the government does not know the exact amount of goods or services it requires nor when it will need them. When a specific bona fide need arises, the government will issue an order under the IDIQ's scope, terms and conditions. If the order itself is indefinite in quantity or delivery, what then was ordered? The FAR defines a delivery order as "an order for supplies placed against an established contract or with Government sources" and a task order as "an order for services placed against an established contract or with Government sources." If the order itself is open-ended, did the government really order something?

Vern/Fizzy, Yes, the award is acting like a BPA (I understand that you cannot award an IDIQ against an IDIQ). I do not know the dollar amount, but if it did exceed $103 million I can see where this is an issue because it could run afoul of 8.405-3(a)(3)(ii). Assuming it is less than $103 million, there is no legal issue in having a task order act like a "mini-IDIQ" when the intent of a task order is to have the contractor perform a specific task(s)?

Good Morning, I overheard a KO state that he awarded a competitively procured T&M task order under a GSA FSS contract. Each POP has an estimated NTE and the government sends the contractor specific projects and tasks that it needs to submit a FFP for before proceeding. If the government accepts the FFP it fully funds the project while at the same time technically incrementally funding the overall total estimated NTE of the task order. I am assuming that there is a minimum guarantee in the task order to make it legally binding but I am not sure. Nonetheless, I was curious what others think of this practice. In theory it reduces the government's risk by requiring the contractor to perform work under FFP once specific projects/information is known. It also reduces the overall PALT by not having to procure the service using FAR Part 15 procedures (assuming that the work fits under the scope of the FSS contract). When the task order was procured, I am assuming that the government could not provide enough specifics for contractors to provide FFP across the board. I plan on following up with the KO but wanted to start a discussion on this and see what issues/ideas come from it. Prezmil2020

From the VA Handbook 6500.6: "d. Custom software development and outsourced operations must be located in the U.S. to the maximum extent practical. If such services are proposed to be performed abroad and are not disallowed by other VA policy or mandates, the contractor/subcontractor must state where all non-U.S. services are provided and detail a security plan, deemed to be acceptable by VA, specifically to address mitigation of the resulting problems of communication, control, data protection, and so forth. Location within the U.S. may be an evaluation factor." Does anyone know of any federal policies or VA policy/mandates that would prohibit software development OCONUS? Thanks, Prezmil2020

RJH46, I would explain to the KO that he/she still has the ability to invoke -9 via a bilateral modification. Since the government failed to provide you of its intent to extend at least sixty days the government can no longer unilaterally exercise the option. However, this does not mean that the two parties cannot agree via a bilateral modification to exercise the option.

I've always had a problem with the FSS contracts in so far that when the solicitation is amended, the contracts are mass modified to reflect the deleted, added and changed clauses. However, the solicitation and resultant mass modification happens every so often; therefore, the contracts tend to lag behind the current FAR. With that said, wouldn't it behoove the OCO to review the current solicitation and contract and add the current FAR clauses into it even if that means adding the current 52.212-4 in the task order solicitation? Also, there are times when the FSS contract does not contain every clause that is applicable to the OCO's procurement (data rights, options, DFARs, etc.).

Vern, I appreciate the responses!

Let's assume that 52.217-8 does flow down to individual task orders. Since the task order solicitation was absent on how each offeror was to price the possible 6 months but did require offerors to propose on the two one-year option periods, could one conclude that the offerors received equitable treatment in the evaluation of their offers as each offeror should have considered the possibility of 52.217-8 being invoked some time in the future as it is in their respective FSS contracts?

Vern, That's a good point. Even though 52.217-8 flows down to the task order, it is the OCO's responsibility to consider it during evaluations and ultimate award, exercising it appropriately in the future. In this particular case, just because 52.217-8 flowed down the OCO didn't take it into consideration at time of evaluations because there was no language in the task order solicitation requesting offerors to submit pricing for those six months and that offers would be evaluated inclusive of that clause. The only language in the task order solicitation was that the offers were evaluated inclusive of the base period and two one-year option periods.

Although the clause was incorporated into the task order, it was done so after offers were evaluated and an award made. Executing the clause doesn't take away the fact that this, in my opinion, constitutes a sole source modification because none of the other offerors were given an opportunity to provide pricing and be considered at time of evaluation and award. I am referencing the task order solicitation, not the parent FSS contract solicitation. However, you raise a good point with regards to 52.217-8 being included in the FSS contract, which it is. The FSS contract contains 52.216-18 ORDERING (OCT 1995) (DEVIATION II -- FEB 2007), which states "( All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control." Therefore, the task order would be subject to 52.217-8 as it is included in the FSS contract. I would presume that one could argue that since 52.217-8 is included in the FSS contract all contractors understand that this clause flows down to their respective task orders and may be unilaterally exercised by the task order Contracting Officers (OCO). Since task orders are viewed as contracts, 52.217-8 could be exercised for this task order independently from the FSS contract even if the FSS contract was extended using 52.217-8. That being said, the OCO didn't need to bilaterally modify the task order including 52.217-8 as it was already included in the task order due to it flowing down from the FSS contract. Have I correctly interpreted your post?

Good Afternoon, We are five months away from the end of the final period of performance of a task order issued under FAR Subpart 8.4 and the requesting activity requested that we extend the services for an additional six months while the new procurement is completed (solicitation should be posted in a few weeks). The solicitation this task order was awarded against did not contain clause 52.217-8, however, it was bilaterally added to the task order during the first period of performance. I have argued that extending the services for an additional six months constitutes a sole source procurement and requires a J&A in accordance with FAR Section 8.405-6 and FAR Subpart 6.3 (for open market items) as the clause was not included in the solicitation and considered as a part of the offers or resultant award. I am getting push back from management that a J&A is not necessary and we have the right to extend the services without synopsizing because the clause was bilaterally included in the task order, but I disagree. I would appreciate any feedback. Thanks.

Like I said in an earlier post, the training program is weak and resources are limited. Trying to learn from past mistakes and not continue bad practices shown me when I first started. Trying to make this a good place.

I understand the copyright issue. I am in the process of getting the report for our office as we speak. The reason why I referenced those reports is because I found them in the definition of Progress Payment in the Government Contracts Reference Book, 3rd Edition. Thought they were relevant as the Contractor is stating that it cannot pay its subcontractors. The delivery schedule was extended and the Contractor has agreed to the new terms and conditions so the Contractor is no longer in default. Thanks.

Good Morning, A Contractor was awarded a firm-fixed price delivery order to deliver thousands of commercial radios by 4/30/11. The delivery schedule broke out how many radios would be delivered per month over the course of the delivery order. The COR and Program Office met with the Contractor a few months ago and informed it that a newer version of the radio may be required so the Contractor stopped production of the remaining radios, anticipating a modification to the delivery order. The KO was unaware of the conversations until recently and did not know that the Contractor had stopped production and delivery of the radios. After speaking with the COR and Program Office the KO did not modify the delivery order for the newer radios due to funding restrictions and informed the Contractor that it was to deliver the current radios as scheduled. The Contractor informed the KO that it was impossible to deliver by 4/30/11. Taking into consideration that the COR and Program Office did not have explicit, apparent or implied authority to require the Contractor to stop producing the radios the KO extended the delivery schedule by a few months. The Contractor was also at fault in this situation for not coming to the KO for direction to stop production and was informed so. The Contractor is now asking for a progress payment for all of the long lead parts that were purchased to produce the remaining radios. The justification made by the Contractor is that it cannot pay its subcontractors and they will accrue interest from their suppliers. The delivery order did not contain the progress payment clause. The KO has received resistance from management that it would be inappropriate to do so. I did some research and couldn't find anything prohibiting the KO from doing so. I also found a reference to the Cibinic and Nash Reports: Postscript: Timely Payment of Subcontractors (Nov. 1993) and Timely Payment of Subcontractors: Is the Government Responsible (June 1993). Thanks for any feedback. Prezmil2020

Don, You are correct that the scope of work was written broadly. Vern, Trust me, I agree that if we had to do it all over again the acquisition strategy would be completely different. Nonetheless, this is what we are working with so we are trying to do workarounds while remaining compliant with the rules/regulations/laws. As I am fairly new to procurement and have few resources at my disposal and colleagues that I trust, I am interested in learning from more experienced/educated boardmembers so future procurements are awarded/administered properly. I know you have written extensively on the lack of a proper training curriculum for 1102s and I am a product of such an insufficient program, ergo why I am reaching out to those who can offer better insight and advice. Prezmil2020

Good Morning, My acquisition center awarded in September 2009 a T&M commercial task order against a MAS contract for professional and non-professional services. The task order was awarded with a one-year base period and four one-year option periods. The requesting activity submits to our office work packages that contain the specific work that is to be performed by the contractor and the funding document(s), which we apply to the task order as a modification. Each work package is nonseverable, the government does not gain anything until the contractor has completed the project. However, each project is independent of each other. When the task order was awarded, it was determined that it was severable because each work package is independent of each other and because the requesting activity could not fully fund a nonseverable task order. The questions I have are: 1. Is the determination of severable or nonseverable based on the individual work that is to be performed (CLINs, work packages, etc.) or is it based on the task order as a whole? If it is based on the task order as a whole, was it correct to determine the task order as severable when each project individually is nonseverable? 2. If the work package is nonseverable and crosses fiscal years, is it correct to fund the work package via modification with current one year funds as long as the obligation is executed before the funds expire and allow work to continue beyond the POP as long as it doesn't exceed 12 months? For example, Task Order ABC was awarded on 9/1/09 with a one-year base period. The contractor begins work on 9/15/09 on a specific nonseverable project that is funded with FY10 two-year funds. On July 1, 2010 the requesting activity wants the contractor to perform another nonseverable project with an estimated POP of 6 months. The requesting activity fully funds this project based on the contractor's estimate with FY10 one-year funds. Do the one-year funds expire for obligation on 9/30/10 and can work no longer be performed against that MIPR beyond 9/30/10? Thanks for your input and comments. If further information is necessary, please let me know. Prezmil2020

FAR Subparagraph 4.804-5(a)(14) states: That way, the Contracting Officer can perform the completion statement containing the information in FAR Subparagraph 4.804-5( b ) and return excess funds, if any, to the Requesting Activity.

Don't know why so many faces appeared in the comment, not my doing. Sorry. ---------------------- Its not your fault. It is a flaw in the board's siftware program. Maybe it will go away when I update the board to the current version Bob A.

Good Morning, A toner cartridge manufactured in China is requested by a non-DoD agency. Market research found several U.S small and large busineses that sell this particular toner cartridge (none are the OEM). The KO wants to use FAR 25.401(a)(3) as his rationale for being compliant with TAA. Is the KO correct? I believe that the KO would be violating the Buy American Act. Here is my thought process: 1. FAR 25.401(a) states three instances when FAR Subpart 25.4 doesn't apply. If FAR Subpart 25.4 doesn't apply than the KO needs to follow FAR Subpart 25.1. 2. FAR 25.101 states: Therfore, as a foreign made supply this subpart applies. 3. The exception that the KO is using is FAR 25.103(e): I don't agree with his rationale as I don't consider a toner cartridge information technology. Am I correct in my logic? Thanks.

Good Afternoon, I am researching information on how to handle open market items when placing a delivery/task order against a FSS contract when the Contractor has an approved DCMA procurement system. FAR 8.402(f) states: My question is: 1. If a Contractor has an approved DCMA procurement system will that satisfy FAR 8.402(f)(1)-(4)? Additionally, can someone explain to me what a DCMA approved procurement system is and how it is used? Thanks, Prezmil2020