napolik

Here is an extract from a 2001 decision of the United States Court of Appeals for the Federal Circuit. http://ftp.resource.org/courts.gov/c/F3/23...26.00-1054.html B. Entitlement and Damages Both requirements contracts and IDIQ contracts provide the government purchasing flexibility for requirements that it cannot accurately anticipate. See Stratos Mobile Networks U.S.A. v. United States, 213 F.3d 1375, 1380 (Fed. Cir. 2000). A requirements contract requires the contracting government entity to fill all of its actual requirements for supplies or services that are specified in the contract, during the contract period, by purchases from the contract awardee. 48 C.F.R. ? 16.503(a) (2000). See also Medart, Inc. v. Austin, 967 F.2d 579, 581 (Fed. Cir. 1992). Conversely, while an IDIQ contract provides that the government will purchase an indefinite quantity of supplies or services from a contractor during a fixed period of time, it requires the government to order only a stated minimum quantity of supplies or services. 48 C.F.R.? 16.504(a) (2000). See also Dot Sys., Inc. v. United States, 231 Ct. Cl. 765 (1982). That is, under an IDIQ contract, the government is required to purchase the minimum quantity stated in the contract, but when the government makes that purchase its legal obligation under the contract is satisfied. See, e.g., Mason v. United States, 615 F.2d 1343, 1346 (Ct. Cl. 1980). Moreover, once the government has purchased the minimum quantity stated in an IDIQ contract from the contractor, it is free to purchase additional supplies or services from any other source it chooses. An IDIQ contract does not provide any exclusivity to the contractor. The government may, at its discretion and for its benefit, make its purchases for similar supplies and/or services from other sources. Travel Centre entered into a contract with GSA that explicitly stated, within its four corners, that it was an IDIQ contract and that Travel Centre was guaranteed no more than $100 of revenue. Travel Centre admitted, in response to an interrogatory question, that it understood prior to being awarded the contract that federal agencies identified in the solicitation were not required to use its services under the contract. Further, the contract unambiguously stated that Travel Centre was "a preferred source" of travel agency services in Maine and New Hampshire. The language "a preferred source" is not equivalent to "the exclusive source" or even to "the preferred source." Rather, the language "a preferred source" indicates that governmental agencies could, but are not required to, use Travel Centre for its travel management services needs. That is, the federal agencies in the areas covered by the IDIQ contract were free to purchase travel management services from sources other than Travel Centre. Regardless of the accuracy of the estimates delineated in the solicitation, based on the language of the solicitation for the IDIQ contract, Travel Centre could not have had a reasonable expectation that any of the government's needs beyond the minimum contract price would necessarily be satisfied under this contract.1 In sum, when an IDIQ contract between a contracting party and the government clearly indicates that the contracting party is guaranteed no more than a non-nominal minimum amount of sales, purchases exceeding that minimum amount satisfy the government's legal obligation under the contract. Accordingly, under the terms of the IDIQ contract at issue, GSA was only required to purchase the minimum quantity stated in the contract - sales that would lead to $100 in revenue. Prior to the termination of the contract, Travel Centre realized over $500,000 of gross sales under the contract. Sales of more than $500,000 netted Travel Centre over $100 of revenue.2 Therefore, GSA satisfied its obligation under the contract. Because GSA met the legal requirements of the contract at issue, its less than ideal contracting tactics fail to constitute a breach. Therefore, Travel Centre is not entitled to any legal relief, including damages. http://ftp.resource.org/courts.gov/c/F3/23...26.00-1054.html

Thanks. In Sterile Foods, the government argued that ASPR 1-700 meant that the provisions of the Part "are not to be applied to contracts which are awarded and are to be performed in foreign countries." When I arrived at my first overseas job in 1981, we were unable to award contracts anyplace but in a foreign country. There was little or no technology to allow us to award contracts outside the office in a foreign country. When I returned in the 90s, I began to carry a laptop with me. When I traveled, I would correspond with contractors located in foreign countries via e-mail. Sometimes, I was sitting in the US. Given the government?s argument in Sterlie, if I had awarded a contract while sitting in the US, FAR 19.5 would have applied. Fortunately, I think a reading of FAR.19.308 (a) (1) removes that possibility. Reading the FAR is always a challenge and, frequently, frustrating. The same topic can be addressed in multiple parts, subparts, sections and subsections. Even when one locates all relevant passages, the vocabulary is poor, the text formatting misleading and the syntax confusing. It is not uncommon to infer meaning rather than to take it directly from the FAR text.

That makes sense. Thank you.

"Yes" to 1. "Yes" to services for 2. "Maybe" to supplies for 2. I am uncertain about supplies produced in the US for delivery overseas. Certainly it would be nice and easy if one could conclude that the final delivery destination set out in the contract is determinative. In his motion to dismiss, the DoDEA attorney argues FAR Subpart 19.5 does not apply because the final destination for supplies is Okinawa, Japan. (It is worth noting that both of the protested solicitations were issued by a contracting activity located in Guam, one of the territories identified as an "outlying area".) The FAR uses the term "performed" (e.g. see the prescriptions for 52.219- 1 and - 2). Does "performance" encompass the manufacture or production in the US and delivery overseas? If so, is "performance" outside the United States and its outlying areas if supplies produced in the US are delivered outside the United States and its outlying areas? It probably is. Chances are, the word "performed" means the destination where the supplies are delivered or the services rendered. What do you think? Why?

I have searched to obtain a definitive interpretation of the words at 19.000( ''in the United States or its outlying areas''. I have been unable to locate any GAO or court decision on the meaning of the words. However, I infer that the term ''in the United States or its outlying areas'' means where the contract will be performed, not the location of the contracting office and that FAR 19.5 does not apply to contracts performed outside the US or its outlying areas. I base my inference on my reading of FAR and DFARS passages containing the term, on FAR the direction contained in FAR 19.601(e) and on a 2007 Motion to Dismiss filed by a DoD agency to the GAO against a protest citing FAR 19.000(. The term ''in the United States or its outlying areas'' appears nearly 30 times in the FAR and the DFARS. The more pertinent passages prescribe usage of provisions and clauses that apply FAR 19. FAR 52.219-1, Small Business Program Representations, is to be used in solicitations exceeding the micro-purchase threshold when the contract will be performed in the United States or its outlying areas. FAR 52.219-2, Equal Low Bids, is to be used in solicitations when the contract will be performed in the United States or its outlying areas. FAR 52.219-8, Utilization of Small Business Concerns is to be used in solicitations and contracts when the contract amount is expected to exceed the simplified acquisition threshold unless (1) a personal services contract is contemplated (see 37.104); or (2) the contract, together with all of its subcontracts, will be performed entirely outside of the United States and its outlying areas. FAR 19.1202-2 requires evaluation of the extent of participation of SDB concerns in contract performance except for contract actions that will be performed entirely outside of the United States and its outlying areas. The inclusions and exclusions of SB program requirements I cite above are based upon the location of contract performance. The provisions and the rule apply to contracts performed in the US. FAR 19.601(e) requires contracting officers, including those located overseas, to comply with Subpart 19.6 for U.S. small business concerns. Why would this direction be included if there was not an assumption that worked performed overseas was not covered by the FAR 19 programs? In addition to looking in the FAR, I searched for any GAO decisions or court cases defining the term ''in the United States or its outlying areas''. I located only a motion to dismiss filed with GAO by the DoD Educational Activity (DoDEA) in November 2007 against two protests of the FitNet Purchasing Alliance. See it here: <a href="http://"http://www.fpaportal.org/FPA/PressDocs/Request_for_dismissal_DOD.pdf."" target="_blank">http://www.fpaportal.org/FPA/PressDocs/Request_for_dismissal_DOD.pdf. ://http://www.fpaportal.org/FPA/PressD...="3"]</a>The DoDEA sought proposals for gym lockers and for clothing lockers to be delivered to Japan. FitNet argued that the GAO must address the legality of the "foreign exemption" at FAR 19.000(. One of the two arguments presented by the DoDEA attorney stems from the "plain meaning" of the regulation at 19.000(. The attorney argues that FAR 19, except for FAR 19.6, does not apply to the DoDEA procurement as Japan is not in the US or its outlying areas. The prescriptions and requirement cited above seem to be consistent with the plain meaning of 19.000(. I cannot locate any GAO decision on the protests, so I assume they were dismissed. Nor can I find a GAO dismissal notice. As may be seen above, the FAR prescribes provisions and requires an evaluation of SDB performance based upon the location of contract performance. Why would you not include the provisions at FAR 52.219-1 or -2 in procurements performed outside the US and outlying areas if they could be set aside? In addition FAR 19.601(e) requires contracting officers, including those located overseas, to comply with Subpart 19.6 for U.S. small business concerns. Given the facts that the prescriptions and the requirement exclude overseas performance, and that FAR 19.601(e) specifically applies overseas, I conclude that contracts performed overseas are not covered by FAR 19.5. Then, there is the issue of the meaning of the term "performance". In my view, services are "performed". Thus, services performed overseas are not covered by FAR 19.5. But, supplies are produced or manufactured. If DLA contracts for MREs to be delivered in the US and to be transshipped overseas, I believe FAR 19.5 would apply since there are US producers of MREs who manufacture them in the US. After reading his motion to dismiss the FitNet protests, I believe the DoDEA attorney would not agree with me. You may see more information pertinent to the FitNet protest at these sites: http://www.fpaportal.org/FPA/PressDocs/Espinosa_GAO_Protest_Against_FAR_Exemptions.pdf http://www.fpaportal.org/FPA/PressDocs/FitNet_Objection_to_Dismiss_B-310699_and_B-310-730.pdf http://www.fpaportal.org/FPA/PressDocs/Ltr_to_Cong_Towns-GAO_Request.pdf

FAR 19.000 ( says this: "This part, except for Subpart 19.6, applies only in the United States or its outlying areas. Subpart 19.6 applies worldwide." The definition of "outlying areas" set out in FAR Part 2 encompasses specific territories, commonwealths and minor outlying islands. If the overseas performance is outside the "outlying areas", I believe 19.5 does not apply. Regarding competition for supplies, it seems to me that if the supplies are manufactured in the US or "outlying areas", then the competition is subject to the set aside rule. BTW, when I worked overseas, my contracting activity's mission excluded contracting in the US. I cannot remember if the words "outlying areas" appeared in the exclusions contained in our mission description. If the supply was to be obtained from a stateside source, a stateside contracting office handled it. That office complied with FAR 19.5.

A few thoughts. First, you must consider all US firms - large or small - responding to your solicitations. The fact that a US firm responds to a solicitation does not mean that it is entitled to award. There could be responsibility issues such as licenses to do work in the foreign country. However, COC procedures do apply for small businesses. Second, you do not have a blanket "overseas" exception from the publicizing requirements of FAR Subpart 5.2. Third, you could have supplies furnished from the US for delivery overseas. In this case, the SB advisor could set the actions aside. I would let the SB advisor see the actions. If the work is for services or supplies that can be performed or produced only overseas, I would object to any effort to set these procurements aside.

Take a look at this decision B-297825, Allied Protection Services, Inc., March 23, 2006. You can see it here: http://www.gao.gov/decisions/bidpro/297825.htm Here is an extract: Quote The Competition in Contracting Act of 1984 requires that agencies specify their needs and solicit offers in a manner designed to achieve full and open competition, so that all responsible sources are permitted to compete. 10 U.S.C. sect. 2305(a)(1)(A)(i) (2000). The determination of a contracting agency's needs and the best method for accommodating them is a matter primarily within the agency's discretion. Tucson Mobilephone, Inc., B- 250389, Jan. 29, 1993, 93-1 CPD para. 79 at 2, recon. denied, B-250389.2, June 21, 1993, 93-1 CPD para. 472. Where a requirement relates to national defense or human safety, as here, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest level of reliability and effectiveness. Caswell Int'l Corp., B-278103, Dec. 29, 1997, 98-1 CPD para. 6 at 2; Industrial Maint. Servs., Inc., B-261671 et al., Oct. 3, 1995, 95-2 CPD para. 157 at 2. Generally, the fact that a requirement may be burdensome or even impossible for a particular firm to meet does not make it objectionable if the requirement properly reflects the agency's needs. Computer Maint. Operations Servs., B-255530, Feb. 23, 1994, 94-1 CPD para. 170 at 2. Unquote Notice the last sentence. If you have a rational basis for requiring that the contractor possess a clearance at the time it submits its proposal, you will be OK. The Allied Protection decision sets out the agency's rationale for requiring the contractor to possess a clearance at the time of proposal submission.

See here: http://www.wifcon.com/anal/RecommendedReading.pdf

I would ask the contracting officer what he or she expects. In my opinion, you should use the maximum "contract" amount. The minimum or maximum "order" amounts appear in the FAR clause 52.216-19, Order Limitations (Oct 1995). That clause deals with individual orders, not with the maximum contract amount. Oftentimes, the maximum contract amount is derived by 1) multiplying the line item unit price or cost by the line item estimated quantity to arrive at a line item subtotal, then 2) summing the line item subtotals. If there are option periods, do this for the base period and option periods, then sum the subtotals for each period.

You need to thank Sig. Antonio for the link. He stores it.

http://www.wifcon.com/arc/forum607.htm

Note that standard FAR terms and conditions for commercial items relieves the contractor of liability. See paragraph (p) from 52.212-4, Contract Terms and Conditions -- Commercial Items (Jun 2010): Quote (p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items. Unquote

Let's look at the clause: Quote Availability of Funds (Apr 1984) Funds are not presently available for this contract. The Government's obligation under this contract is contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment may arise until funds are made available to the Contracting Officer for this contract and until the Contractor receives notice of such availability, to be confirmed in writing by the Contracting Officer. Unquote The last sentence obligates the contracting officer to notify the contractor in writing when the funds are made available. It does not say that the contracting officer must provide written notice and remove the clause from the contract. As the contract consists of the basic contract and all modifcations, a mod providing the funds anticipated by the clause provides the money and notifies DFAS that the monies are obligated. I have never encountered that problem with DFAS when using the availability of funds clause. Perhaps you should speak to a supervisor at DFAS.

I am not sure why your contracting officer believes that preaward testing precludes use of FAR Part 12 / 13.5. Paragraph (d) of 52.212-1 anticipates the testing: Quote (d) Product samples. When required by the solicitation, product samples shall be submitted at or prior to the time specified for receipt of offers. Unless otherwise specified in this solicitation, these samples shall be submitted at no expense to the Government, and returned at the sender's request and expense, unless they are destroyed during preaward testing. Unquote See also FAR 12.602(. It refers to use of product samples in evaluation of offers: Quote A technical evaluation would normally include examination of such things as product literature, product samples (if requested), technical features and warranty provisions. Unquote.

What's next - reversing the Delex decision? k

All I can say is "I report, you decide"!

You may be able to make an award subject to the availability of funds. See FAR 32.703-2 -- Contracts Conditioned Upon Availability of Funds, to determine if it fits your circumstances.

No. See the GSA Ordering Procedures for Services Requiring a Statement of Work (SOW): http://www.gsa.gov/portal/content/100005. "A firm-fixed price order shall be requested, unless the ordering activity makes a determination that it is not possible at the time of placing the order to estimate accurately the extent or duration of the work, or to anticipate cost with any reasonable degree of confidence. When such a determination is made, a labor-hour or time-and-materials quotation may be requested. The firm-fixed price of the order should also include any travel costs or other direct charges related to performance of the services ordered, unless the order provides for reimbursement of travel costs at the rates provided in the Federal Travel or Joint Travel Regulations. A ceiling price must be established for labor-hour and time-and-materials orders." While the link also contains a discussion of issuing BPAs, there is no discussion of issuing IDIQs.

By FFP, I assume you mean FFP LOE or labor hour / time and material. Otherwise, the contracting officer may have lost his or her mind. While there is a big push in government - particularly in DoD - to convert FFP LOE and labor hour / time and material contracts and orders to firm fixed price or cost reimbursement, I do not understand why your customer wishes to change contract type for 6 months. Talk to the contracting officer and suggest that he or she change contract type in the next competition, not in the last six months of your contract. If the contracting officer refuses to budge, you have a decision to make. Since the change in task order type will be accomplished bilaterally, you must agree to it. You must decide if your pain of converting to cost reimbursement is greater or less than the pain your customer will feel and will remember in a subsequent source selection involving your firm.

DoD is lookng for the substance of competition, not merely the process of competiton. See this from a press release just issued by Ashton Carter Quote Last year, the Pentagon awarded $55 billion in contracts that were supposed to be competitive but for which only one bid was received, usually from an incumbent contractor. Yet simple changes in how we structure evaluations and work with industry have been shown to reduce by 50% the incidence of single bids by incumbents. Competition is not always available, but the evidence is clear that the government is not availing itself of all possible competitive situations. Unquote Posting on e-Buy will improve the likelihood of receiving competition. That's the thought.

In another thread, I asked this question: Quote I am attempting to convert contract types from T&M and FFP LOE to FFP or cost reimbursement. My client offers the opinion that a change of contract type is within the scope of the original competition. Thus, the shift in contract type can be accomplished without a new competition. After re-reading this post -http://www.wifcon.com/discussion/index.php?showtopic=65 - and the GAO decisions in DOR Biodefense Inc. and Emergent BioSolutions - B-296358.3 and B-296358.4, I believe that the shift in contract type is outside the scope of the competition, but I am not certain. Does anyone have any case law to support or refute my belief? Unquote Two weeks later, after "consulting" with GAO, I posted this: Quote The GAO "informal" opinion is that a shift in contract type is outside the scope of the competition. Since GAO no longer issues "advance opinions" on protest issues, only appropriations issues, we will not receive a definitive opinion until GAO receives and decides a protest on this point. Unquote Pleaase see this thread: http://www.wifcon.com/discussion/index.php?showtopic=477.

What other medium would you propose to reach "all" contractors?

First, do a little market research. Post something on FEDBIZOPPS. Use NAICS 711510. While you probably won't receive an expression of interest from a Fiorentine firm, you probably will get some from around the US. After your market research, issue a solicitation under FAR 13 or 13.5. Use price, experience and past performance as your evaluation factors. FYI, here is a notice from a 3 year old FEDBIZOPPS: Quote COMMISIONED OIL PORTRAIT OF DEPARTMENT HEAD - OFFICAL WALL PORTRAIT DOJ-FAS-7-01-0004 090707 09222007 John Schrecengost, Contracting officer, Phone 202-616-3908, Fax 202-307-1915, Email john.schrecengost@usdoj.gov This is a notice of intent to award a sole source purchase order to PORTRAIT S INC, d.b.a., PORTRAITS SOUTH, of Raleigh, North Carolina. It is customary and permissible for the Attorney General to select the artist; Mr. Dean L. Paules has beed selected as the offical portrait artist. The Department of Justice has a need for the services a professional artist to prepare a 3/4 length official government portrait of the Attorney General. The finished portrait shall be displayed within the Department of Justice for inclusion in the Department's Official Portrait Collection of Past Attorneys General. This action is set aside for small business. The North American Industrial Classification Code System (NAICS) code for this pending action is 711510. For this NAICS, the small business size standard is $6.5 million. Only responses received by 09/07/2007, as a result of this notice of intent, shall be considered solely for the purpose of determining whether to conduct a competitive procurement. Responses will not be considered as either proposals or bids. A determination by the Government not to open this requirement to competition, based upon the written responses to this notice, is solely within the discretion of the Government. Inquiries shall be faxed to the attention of John Schrecengost, DOJ/JMD/FASS/RPMS, on 202.307.1915. [Please refer to Numbered Note "22"] Unquote

The DOD FAR Supplement: 208.405-70 Additional ordering procedures. (a) This subsection-- (1) Implements Section 803 of the National Defense Authorization Act for Fiscal Year 2002 (Pub. L. 107-107) for the acquisition of services, and establishes similar policy for the acquisition of supplies; (2) Applies to orders for supplies or services under Federal Supply Schedules, including orders under blanket purchase agreements established under Federal Supply Schedules; and (3) Also applies to orders placed by non-DoD agencies on behalf of DoD. ( Each order exceeding $100,000 shall be placed on a competitive basis in accordance with paragraph © of this subsection, unless this requirement is waived on the basis of a justification that is prepared and approved in accordance with FAR 8.405-6 and includes a written determination that-- (1) A statute expressly authorizes or requires that the purchase be made from a specified source; or (2) One of the circumstances described at FAR 16.505((2)(i) through (iii) applies to the order. Follow the procedures at PGI 216.505-70 if FAR 16.505((2)(ii) or (iii) is deemed to apply. © An order exceeding $100,000 is placed on a competitive basis only if the contracting officer provides a fair notice of the intent to make the purchase, including a description of the supplies to be delivered or the services to be performed and the basis upon which the contracting officer will make the selection, to-- (1) As many schedule contractors as practicable, consistent with market research appropriate to the circumstances, to reasonably ensure that offers will be received from at least three contractors that can fulfill the requirements, and the contracting officer-- (i)(A) Receives offers from at least three contractors that can fulfill the requirements; or ( Determines in writing that no additional contractors that can fulfill the requirements could be identified despite reasonable efforts to do so (documentation should clearly explain efforts made to obtain offers from at least three contractors); and (ii) Ensures all offers received are fairly considered; or (2) All contractors offering the required supplies or services under the applicable multiple award schedule, and affords all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered. (d) See PGI 208.405-70 for additional information regarding fair notice to contractors and requirements relating to the establishment of blanket purchase agreements under Federal Supply Schedules. PGI 208.4--FEDERAL SUPPLY SCHEDULES PGI 208.405-70 Additional ordering procedures. (1) Posting of a request for quotations on the General Services Administration's electronic quote system, "e-Buy", (<A href=" http://www.gsaAdvantage.gov">www.gsaAdvantage.gov), is one medium for providing fair notice to all contractors as required by DFARS 208.405-70©(2). (2) Single and multiple blanket purchase agreements (BPAs) may be established under Federal Supply Schedules (see FAR 8.405-3) if the contracting officer-- (i) Follows the procedures in DFARS 208.405-70( and ©; and (ii)(A) For a single BPA, defines the individual tasks to be performed; or ( For multiple BPAs, forwards the statement of work and the selection criteria to all multiple BPA holders before placing orders.