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Everything posted by metteec

  1. Vern, the whole point of this thread is not whether FFUP contract is an allowable contract; I know that topic is important to you. However, the question presented in this thread was whether a FFUP contract is an IDIQ. The contract type that I described is a FFUP contract In the exact same structure to the contracts you described with a SOW, unit of service, estimated quantity of services, and a fixed unit price with a variation in quantity clause; the only difference was that my contract was for advisory and assistance services, had a specific duration and value. FAR 16.5 contains limitations on single award advisory and assistance contracts over 3 years and $12.5 million. The point of my question in the previous post was that if it is true that a FFUP contract is NOT an IDIQ, then the CO need not worry about the requirement for multiple awards and a FFUP contract may be a way to avoid the multiple award requirements for advisory and assistance services.
  2. In response to Joel's question, here is an example (derivative of a real life example): SneakCorp provides independent verification and validation (IV&V) advisory and assistance services for XYZ agency. The Contractor reviews XYZ's major information systems for compliance with the Federal Information Security Management Act (FISMA) FIPS 140-2 information security standards. XYZ has 47 major information systems. For each major information system, SneakCorp will establish rules of engagement and conduct penetration tests to identify security vulnerabilities. Afterwards, SneakCorp will prepare a report detailing its findings and recommendations for remediation. The major information systems for review are static, but the quantity for review change each year, but the agency has estimated 25 reviews per year. While services are not routine, the level of effort for performing these penetration tests is relatively the same for each major information system. XYZ established a FFUP contract over 5 years valued at $20 million, with a FFUP per security assessment on a major information system. Each security assessment includes a penetration test and a final report identifying recommended security remediation efforts. XYZ included its own version of the Variation of Quantity clause. Is the agency required to comply with FAR 16.504(c )(2) regarding the multiple award preference for IDIQ contracts for advisory and assistance contracts?
  3. Don, I disagree with your first statement. A FFUP contract, as described by the numerous examples indicated throughout this thread, is both a pricing and a quantity arrangement. The arrangement is closest to “using a combination of the two methods [lump-sum basis and unit-price basis]” per FAR 36.207(a) that provides for a variable quantity at a fixed-unit price. The numerous contract examples have an unstated quantity for performance over an unstated period of time, and at a FFUP. I agree with your analogy, and did enjoy your blog post. However, I thought that the board would infer that when I described an IDIQ contract (which I reduced to IQ for brevity, and shamefully, I also text “2” instead of “to”), it was using FP line items. I think both Ji and Vern were able to make that inference, but I could have been clearer in my post. Vern, I do not need additional examples; I understand the concept. I made a distinction that in a construction contract, you could have a FFUP contract as both a pricing and quantity arrangement, but outside of construction, you could create IQ contract with FFUPs, which is an allowable contract type, contrary to Carl’s statement. FFUPIQ contract sounds good to me. I cannot provide a decent defense against your argument concerning FAR 16.102(b ) and the wording of “regulation” versus “part”; I went back to the 1984 version of the FAR (no change) and I cannot determine the writers’ intent. Though, keep in mind that I did not say that a FFUP contract could not be used outside of FAR 36.307. What I said was “FFUP process described at FAR 36.207 applies to construction contracts.” I think that you can use a lump-sum contract to buy services, but I would not use FAR 36.207 as my guidance. I would look at what is customary in the marketplace. I think your argument is stronger by saying that you can use FFUP and lump-sum contracts because they are deeply rooted in our history for all types of acquisitions, rather than because it is specified in FAR 36. A few problems I see with using a FFUP contract for services without IQ clauses are: • What is the minimum obligation on a FFUP contract? • Are you in violation of law if you award a FFUP contract for advisory and assistance services that will continue over 3-years and $12.5 million to a single contractor?
  4. I think Carl and Vern are both wrong. Carl is wrong because FAR 16.102 does specify a contract mechanism to acquire services on a unit price basis. Vern is wrong because FFUP process described at FAR 36.207 applies to construction contracts (note the title of FAR 36.207, "Pricing fixed-price construction contracts."). What both parties are describing is an indefinite quantity (IQ) contract line item. Carl's argument was "[t]he FAR 16.102 at (a) seems to support [a FFUP contract being unallowable] when it says “….contract types not described in this regulation shall not be used.." However, FAR does prescribe a FFUP process for non-construction procurements. Sorry to get back on topic, but I consider a FFUP contract as described by members of this board as an indefinite delivery contract. Per FAR 16.504(a): "An indefinite-quantity contract provides for an indefinite quantity, within stated limits, of supplies or services during a fixed period. The Government places orders for individual requirements. Quantity limits may be stated as number of units or as dollar values." Please do not make the argument that the difference between a FFUP and IQ contract is the ordering process in a IQ contract. In placing orders for FFUP services, that order does not necessarily have to be issued on an OF-347. Orders may be issued orally (16.504(a)(4)(vii)), or "using any medium specified in the contract" (FAR 16.505 (a)(6). An oral ordering have equivalent flexibility as afforded in a FFUP contract, and there is no requirement for that order to specify a definite quantity. For example, in Vern's search and rescue example from the previous thread, your oral order could be to take as many flight hours as needed to find the missing person, but not exceeding the maximum. I think that if you want a FFUP contract for a non-construction contract, slap on that ordering limitation, indefinite quantity, and ordering clauses to create an IQ contract and develop an oral ordering process that explains how to the parties handle variation in quantity. Otherwise, if you disagree, please explain the material difference between an IQ contract and a FFUP contract.
  5. Carl, I looked at the reference you cited and I could not see where that subpart stated you could not use the variation in quantity principles for non-commercial item services. Could you please provide the exact reference? This reminds me of a similar argument that you cannot have an option for increased quantities of services per FAR Subpart 17.2.
  6. Don, I think that you could potentially consider that requirement as a FFUP contract but that does not mean that it makes business sense. It is almost if you are buying a FFUP with each unit representing a LOE. However, it would make more sense to have a fixed unit price per file or folder so that you can remove the incentive to work slower to get paid more money.
  7. I define extent as the understanding of the work's size and complexity, particularly as it relates to cost. For example, I see the extent of a flight hour in your example as all related costs associated with that one hour of flying (maintenance, logistics, equipment costs, etc.) and not just a single hour of an individual's labor. Duration or quantity (for services) is for an amount of time that work is required over the course of the contract. In the first example, you identified costs associated with multiple personnel, equipment, and other costs incidental to search and rescue services. As a result, the extent of work is definable but the duration of work is not, making it a candidate for a FFUP contract. In the second example, I do not know if there is enough information provided to make a determination. If you are simply reimbursing the pilot for hours worked then it is a labor hours contract. One way to convert that contract to a FFUP contract would be to a fixed unit price per drop which would resolve any ambiguity. P.S. The Variation in Estimated Quantity clause may not be the correct choice for search and rescue services. See the prescription for FAR Clause 52.211-16, Variation in Quantity. Edit: Now that I read both clauses closer, neither may be appropriate in a search and rescue contract. Instead, you could write your own variation language as long as they are consistent with commercial practices.
  8. If by "hour" you are referring to simply to one-hour worked by an individual than you have labor-hour contract. If an hour is defined as some sort of deliverable beyond a measurement of time, then I think a FFUP contract is a possibility. As in Vern's example, a "flight hour" includes all costs associated with a certain objective (i.e. flying a plane for an hour) lending to a FFUP contract. Again, my rationale is that in a FFUP contract you know the extent of work, just not the quantity of duration.
  9. I used a FFUP contract for several types of services outside of construction. The largest was for commercial information technology maintenance services (i.e. repair/replacement of laptops, servers, tape libraries, etc.). A few years ago, my agency had several maintenance contracts for information technology equipment; the agency paid a set-amount every month to guarantee that a technician would arrive onsite to repair damaged equipment. However, we analyzed the number of service calls that we made each year and found that because there were so few calls, we were paying an exorbitant amount per service call. We established a FFUP contract where the Contractor received a fixed amount per each service call resolved by drawing down from a Not to Exceed amount. As a result, we were able to reduce our maintenance spending by around 60-percent. In response to your questions, the difference between a T&M contract and FFUP relates to the cost risk to perform a specific service. Under a T&M contract, the extent and duration of labor and material costs is unknown until the completion of work. However, under a FFUP contract, both the Contractor and the Government know the cost to perform the work at the onset; the duration of work required is known, just not the extent. A FFUP contract still carries cost risk, though, as the actual quantity required is unknown until contract completion. Both contract types include a ceiling price that the Contractor exceeds at its own risk. The criteria for using a T&M contract is "when it is not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence," FAR Subpart 16.601©. The FAR does not provide any criteria for when to use a FFUP contract, though some agency procedural regulations may provide guidance. If I were to establish a criteria for when to use a FFUP contract, it would be for requirements where services are clearly defined but the extent or quantity of work required is unknown, and there is a need to obligate the Contractor to perform work on-call. In terms of pros and cons, a FFUP contract is coded as a FFP contract in FPDS. Agencies are required to reduce their high-risk contracts (sole source and non-FFP) as part of their Service Contract Inventory analysis, and a FFUP contract would further those goals. Moreover, the FFUP contract does not require any special determination and findings that no other contract type is suitable, FAR Section 16.601(d)(1). Also, the FFUP contract will incentivize the Contractor to perform as quickly and efficiently as possible, as it bears the risk of overruns. On the other hand, for requirements involving significant cost risks, a FFUP contract could be extremely expensive because the Contractor will account for those risks in its FFUP. For broadly-defined work, the agency may end up spending more than had it used a T&M contract. A FFUP contract is also less flexible in terms of changes. Changes on a FFUP contract may lead to a claim and administrative expense in modifying the contract. With T&M contracts, work is typically broadly specified and changes do not incur significant administrative expense. Lastly, because of the price risks associated with a T&M contract, there is a potential that work will require significantly less effort than anticipated, and the agency would benefit from those cost underruns. However, in a FFUP contract, while the agency is insulated from cost overruns, it has no mechanism to take advantage of cost underruns.
  10. If you are adamant about having a particular university contribute to your project, but don't have a sufficient justification to limit competition for a sole source, you may want to consider an 8(a) small business to partner with the university using the authority at FAR Subpart 19.8. There are dollar limitations ($6 million for manufacturing and $4 million for all other services) and the small business must perform the majority of the work, but it can be a good option if you are looking to make an award quickly and ensure you have a certain set of expertise. There are some great 8(a) small businesses out there with research backgrounds that routinely provide an added value to a resource-limited university's research department. You could even contact the university to see if they have a particular 8(a) partner.
  11. There could be some unintended consequences with this program. I can just see it where an unsuccessful vendor bemoans their loss and take it out on the agency's CO. Or the contractor failed to perform and the CO forced the contractor to provide costly consideration; how dare that CO protect the agency's interest. It will be a sad day when a CO makes a determination to get a high quality review on their A360 profile then make the tough decisions in support of the taxpayer.
  12. Along the lines of Joel's thinking, Multiple Award Contracts/Agreements are an example of contract duplication that is generally acceptable. One of the statutory exceptions for limiting competition in FAR 6.302-3 is to limit competition to "maintain properly balanced sources of supply for meeting the requirements of acquisition programs in the interest of industrial mobilization." Further, it is an interesting omission that FAR 8.002 through 8.003 (Required Sources of Supply) make no mention of existing agency contracts. I believe that some level of contract duplication is an acceptable business practice, but depending on the circumstances of the contract and operational necessity. Therefore, duplication of a contract is not expressly prohibited, but should be used only when it makes business sense.
  13. Don, I'd hate to bring in an existing thread, but as a way to get around paragraph (h), what if you included a performance requirement in your statement of work pursuant to FAR 11 that discussed place of manufacture? Edit: Just realized Carl recommended something similar. Also, what I am confused about is the apparent conflict with the Buy American Act, particularly the evaluation requirements at FAR 25.5. Offerors typically include the place of manufacturer in their Representations and Certifications. Per FAR 4.1202, FAR Provision 52.225-2, Buy American Act Certification, is a required provision.
  14. Don, I don't mean to put words in your mouth, but I believe your argument was that including a clause about sexual harassment could potentially be considered a deviation per FAR Subpart 1.4. In that instance, any clause would have to be in accordance with law; based upon market research; or an approved deviation. Based upon that, the idea that by making your sexual harassment deviation language an attachment (as recommended in post 2) is not sufficient to avoid the requirements of FAR 1.4.
  15. I have seen Part C - Contract Clauses, included as an addenda to a commercial item solicitation. Just because you take the skunk out of the forest doesn't mean it will stop the stench. A clause is any term or condition that... Applies both before and after award. If an attachment contains a term or condition, then by that logic, it must be a clause.
  16. Vern, that definition was from the Oxford dictionary.
  17. I see where the confusion in my post came from; I was using submit and receipt interchangeably by habit. The definition of submit is to "present (a proposal, application, or other document) to a person or body for consideration of judgment." How do you present something with out the other entity's participation? Relating to Don's comment, I think the reason why the FAR does not make a distinction between receipt and submit in some areas because there have not been much contention on those issues on what submit means. Though, I was surprised I did not find any instances where the Court of Federal Claims ruled on the definition of "submit" related to claims. I could see an instance where a Contractor attempted to submit a claim the Contracting Officer on the last day of the sixth year (FAR 33.206), but the Contracting Officer never received it or it was received late.
  18. There are 148 instances of the word submit in the FAR. I am unaware of any definition or case law interpretations relating specifically to FAR 15.505(a)(1). However, Instructions to Offers (FAR Provision 52.212-1 and 52.215-1) require the offer to submit an offer to the Government location and before the date and time specified in the solicitation. There is vast amounts of case law revolving about when that submission occurs. GAO has consistently held that that Offerors bear the burden of proof to demonstrate that it timely submitted, and the agency received, its proposal (DJW Consulting, LLC, B-408846.3). As a result, I interpret that submit means that the Offeror can reasonably demonstrate that it sent, and the contracting office received, its request. Notwithstanding, it is not a good business practice to deny late or not received debriefing requests, especially if the time between the competitive range/award decision and the debriefing request is short. First, it forces the Offeror into using the legal system if it wishes to get details on the agency's decision, leading to potential delays in the procurement process and added expense to the taxpayer. Second, businesses go to great expense to submit proposals in response to agency solicitations. Those businesses are taxpayers. We have a responsibility to those taxpayers to create a fair and transparent procurement process to promote trust in the acquisition system and ensure maximum practical competition for the next acquisition. P.S. In instances where I have received a late debriefing request, I would remind the Offeror that the agency was not required to provide the debriefing but did so in the interest of assisting the Offeror in responding to future procurements.
  19. Not going back to GEC regarding their past performance is part of the "because I don't have to" mentality of Federal contracting. Our contract specialists are encouraged to make awards without discussions because it is faster, risk adverse, and good enough. Yet, I am hard pressed to think of an industry where accepting the first offer is considered a good business practice. I would like to point out that abatement and demolition services are routinely procured as commercial items by DOD. FBO is rife with these types of acquisitions. It is faster and reduces the amount of information needed from the prospective contractor. It is essentially the same circumstances as determining the C-130J a commercial item. The Air Force did not just consider buying the C-130J as a commercial item... the Air Force bought them from Lockheed Martin as a commercial item. The DOD IG released a scathing report about it (here: http://www.dodig.mil/audit/reports/fy04/04-102.pdf): "The Air Force used a commercial item acquisition strategy that was unjustified. The Air Force bought the C-130J as a commercial item needing minor modification. The contracting officer did not support the basis for his decision. Even if the commercial derivative is substantially the same aircraft as the C-130J, the fact that Lockheed Martin has been unable to design, develop, or deliver the contracted C-130J aircraft for 8 years casts serious doubt on the commercial nature of the purchase. The increase in costs [more than double] to acquire the C-130J aircraft shows that the Government, not Lockheed Martin, bears the risk for the development of the C-130J aircraft. Even though Lockheed Martin has sold previous C-130 models commercially and currently offers the commercial derivative of the C-130J for commercial sales, there have been no sales of the C-130J commercial derivative aircraft (the L-100J)."
  20. Have you determined whether this is a commercial item? Recommend taking a look at FAR Subparts 32.1 and 32.2. Then, choose the payment structure that makes the most sense.
  21. Non-responsive is not the same as technically unacceptable. Non-responsive implies that the Offeror did not respond to a material element of the solicitation. Technically unacceptable is where the Offeror failed to meet a minimum technical requirement. Taking exception to a requirement may result in your proposal being technically unacceptable, but non non-responsive. The key word there is may because it depends on the evaluation criteria in the solicitation. Not all solicitations require that the offeror comply with all technical requirements. For example, some include a subjective evaluation of how well the proposal meets or exceeds the technical requirements. My first recommendation would be to read the evaluation criteria. Second, it makes sense to ask the contracting officer about the requirement well before the solicitation closing date. In the example of data rights, you could try to make a case for why the data rights clause is incorrect. It would not be unheard of where the CO included the incorrect data rights clause. If the CO refuses to change the clause, you need to access whether it is worth the risk accepting the governments terms and submitting a proposal. Debarment is a completely different scenario. If you are debarred or suspended, the agency would likely determine your firm as not responsible. The agency would need to justify why it was in the agency's interest to award to a debarred or suspended firm.
  22. Maybe this is the long way of doing things, but from the LOC website, I saved the PDF files of the previous year's version of the CFR from 1983 to 1993 and used Adobe Acrobat 9 Professional's OCR reader to make the text searchable.
  23. Thanks for the great tips! I followed Bob's advice and checked with my OGC. They provided me with a great resource that I thought I would share: http://www.loc.gov/law/help/guide/federal/usexec.php If you click on Code of Federal Regulations (HeinOnline), you can access the FAR going back to 1983.
  24. I see on WIFCON and on acquisition.gov that the previous FAR versions go back to 1999. I am interested in doing research on versions that go back further than that, particularly on changes to FAR Part 15. Does anyone know of an online resource that would be best suited for this?
  25. Regarding the question is this truly strategic sourcing, the FSSI contracts are unique. First, they are tailored to a very specific industries, whereas other purchasing vehicles are generally broad. This greatly reduces choice, and simplifies the acquisition process. Second, they include discount tiers that decrease the price the more you purchase with them. The NDAA codification that makes these contracts mandatory sources will strengthen the FSSI program and save the taxpayers money. I do not agree that "most" contract specialists are really glorified purchasing agents; though some probably take on that role. Further, not all "ordering" is 1105 work. The 1105 purchasing agent typically does not possess the skill set to successfully conduct negotiation of price or technical terms. The 1105 knows how to prepare forms; conduct basic price comparisons, and document/organize the contract file. Complex price/technical analysis and negotiations are too advanced for many purchasing agents. When my office consolidated its requirements on one of the FSSI contracts, we were able to negotiate the quoted prices down even further, and achieved better technical terms, using a combination of negotiating tactics. We used a tradeoff process to select the successful vendor. I have never met an 1105 that would be able to handle that independently.
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