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  1. I ask everyone's patience with this first post on WIFCON. The situation involves an RFP for an IDIQ for a civilian federal agency. The O has included in the RFP a requirement that bidders with a GSA Schedule use their GSA Schedule rates. However, a number of bloggers have indicated that the GSA views such use of rates as essentially awarding a contract under their GSA schedule and that the IFF must be paid. This puts the small business prime between a rock and a hard place, if there is a contractual obligation not to use GSA rates for non-GSA contracts, The RFP in question was posted on FBO, not e-Buy. Is there such a contractual obligation to not use the GSA rates, and if so, in what clause might it be found? Can the CO for the RFP require submission of GSA Schedule rates? Should the bidder remit the IFF on a non-GSA contract to avoid being penalized? Thank you for any experience you can share.
  2. I am working on a follow on IDIQ for general support services ( not Advisory and Assistance Service or IT) and historically like the current generation the Base IDIQ had a 5 year base and no options with TO's awarded with a one year base and 4 one year options. My thought process right now is why don't we do a 5 year base+ one 5 year option and to be compliant with the FAR when it comes to the TO's to then re-compete the TO's as needed for the option period and perhaps not exercise the option for underperforming contractors and have an open season to bring on new contractors as needed to compete. I don't think for the TO's we could have a similar structure and that they would need to be rec-competed? Currently and in the past, planning would commence towards the end of year 3 and I think it would be save immense resources if we could save a lot time with the scenario I outlined above. The value for 5 years is about 700 MM, so with the option period I outlined it would have a value of over a billion and thus require more oversight and sign offs ( which some people would rather avoid). Thoughts? Any examples of similar IDIQ's with such a structure? Thanks!
  3. I am working on a enterprise service contract follow on effort for a DoD 4th Estate agency, and looking for any enterprise service RFP's that you can share the RFP link from beta.sam.gov. The RFP can be for a multiple award IDIQ ,single awardee, or anything in between. It can be from a non DoD agency as well. The purpose of casting this wide net is to get ideas, see any innovative source selection methods etc. If your RFP/program requires fully burdened labor rates, even better! If a link isn't available from beta.sam.gov and you'd need to email me the RFP, send me a message and I will provide you with my work email. Thanks in advance!
  4. Hi all, when awarding an IDIQ for a civilian agency should we be citing funds for the minimum guarantee on the base IDIQ or immediately be issuing a task order that has the funds? To be clear, I mean getting a purchase request that has a line of accounting then commit and record an obligation for the minimum guarantee (I saw a few threads where nomenclature seemed important on this topic). Seems our office does both with some COs vehemently opposed to putting money on the base IDIQ and others who don't care, just wondering if there's advantages/disadvantages to either method. The COs that are vehemently opposed to it say that since work isn't being performed under the IDIQ but rather the TOs, then money shouldn't be put on the IDIQ itself and only the TOs. The COs that don't care point to FPDS allowing us to show an obligation when we create the CAR for the IDIQ.
  5. Is Setting up an IDIQ Right for Your Agency? In U.S. Federal government contracting, IDIQ is an abbreviation of the term indefinite delivery/indefinite quantity. This is a type of contract that provides for an indefinite quantity of supplies or services during a fixed period. IDIQs are also sometimes called "Task" or "Delivery Order” contracts. There are a few instances when establishing a unique agency IDIQ contract may be an appropriate business decision, especially in cases when recurring needs are anticipated. However, in most cases, an existing vehicle can fulfill an agencies’ needs. Before establishing a new agency-specific single or multiple award IDIQ vehicle, agencies should research existing vehicles and take into consideration the following: IDIQ Contracts Require a Time Investment Setting up an individual IDIQ contract can be both labor and time intensive. Using a Government-Wide Acquisition Contract (GWAC), like NITAAC, gives agencies the flexibility of having their own contract without the hassle of setting it up. Leveraging an existing vehicle does not mean you lose ownership Many agencies set up IDIQs because they are concerned about losing ownership. With NITAAC, that is not the case. Agencies have control of their award from start to finish. Agencies write their own requirements, determine their own timeframe and, ultimately, select their own awardees, from our pool of our pre-qualified contract holders. NITAAC simply leverages our contracting expertise to help facilitate the process on the federal government’s behalf. Realize Cost Savings When an agency uses NITAAC, they benefit from improved pricing because our rates are pre-negotiated at the master contract level, which means they are already the lowest available rates. And, because our contracts are pre-competed, additional competition could further drive down costs at the task/delivery order level. Put simply, NITAAC allows for economies of scale in order to reduce per unit costs, which may not be possible on an individual agency contract. Reduce timeframes and no protests under $10 million ($25 million for the DoD) And since time is money, agencies can reduce their timeframes by using our GWACs. On average, task orders can be awarded in 45 days or less, and delivery orders in 1-3 days. And, there are no protests under $10 million ($25 million for the DoD) if the scope, dollar value and period of performance are within the bounds of the GWAC. Furthermore, agencies can also use GWACs to meet their small business goals under an exception to fair opportunity. And, NITAAC GWACs all carry the Best in Class designation. IDIQs are a powerful tool in the contracting officers’ toolbox IDIQs do have a role in federal procurement but for agencies looking to have a more streamlined procurement, or those that don’t have the time to invest in setting up their own IDIQ, NITAAC GWACs are an ideal option.
  6. Hello All: I have an Contractor under an AE IDIQ that is asking if they could add two subcontractors to the list of agreed upon subs. FAR 52.244-2 Subcontractors and Outside Associates and Consultants states that the Contractor shall obtain CO consent before making any substitution for the subcontractors, associates, or consultants that were agreed to during negotiations. However, I feel this doesn't cover adding additional subs. Can anyone point me in the direction of more information regarding this matter? Thanks!
  7. We have an effort for Research and Development. The period of performance is one (1) three year period. CLIN 0001 (1 Lot) is for NRE. CLIN 0002 (8 Each) is for EDMs. The minimum quantity on the IDIQ is CLIN 0001 (1 lot) and CLIN 0002 (8 ea). The rest of the CLINs on the IDIQ have no minimum guarantee and will be issued if/when needed. My question is this...We have R&D funding for this effort so the plan is to incrementally fund CLINs 0001 & 0002. However, if the minimum quantity is the 1 lot and 8 each and delivery of these are at the end of the 3 year PoP can we run into a problem if we don't get funding on out years and can't fund the remainder of this effort despite having issued a delivery order for the minimum quantity (CLIN 0001 and CLIN 0002). What I'm basically saying is are we doing something or in violation of anything if we issue a delivery order for the minimum quantity (0001 & 0002) with the intention of incrementally funding it with R&D funds assuming we get marks or don't get the funding anticipated?
  8. I am exploring the possibility on changing the ceiling capacity of our single award IDIQ 8A sole source contract. The current contractor is actually an approved NAC 8A and we awarded with the SBA under the $4m threshold even with their designation. Now two years in, the programs estimate for capacity has been significantly increased. Can an agency, with SBA approval increase the single award IDIQ sole source 8A contract capacity without an J&A based upon the sole source and 8A NAC designation to say $5m? Looking for any thoughts on this.
  9. I tried searching for this in the forum but couldn't find any relevant information, my apologies if I missed something. I am new to the community. We were recently deemed unnacpetable based on points verification within our Technical Narrative writeup on a IDIQ. The Contracting Officer (KO) send an email with the notice stating that the agency was unable to verify 1,650 of of the 5,350 points within our Technical Narrative. Which put us below the 4,200 points required to continue in the process. What I was mainly concered about was the fact that the KO referenced FAR 2.101 and FAR 3.104 in the Subject body saying see this specific clauses. FAR 3.104 is about Procurement Integrity. Now we are new to govnerment contracting and I'm not sure if the are intimating that we violated some kind of procurement activity either potentially or accidentally. But I'm assuming that would have been stated specifically in the denial letter they sent. Or would I be incorrect in that assumption? At one point we did speak with one of the agencies Engineering Director's and discussed some potential solutions we had in mind for problems they expressed in a conference. He asked us to send a white paper on that. In the white paper we mentioned we were bidders on IDIQ, but our thought process was that we would have a potential contract vehicle in the future upon which we could take advantage of the white paper's proposed solutions. Maybe that was incorrect to do on our part, I'm not sure. Can anyone shed any light as to why they would reference that in the subject body, is that a fairly standard clause to reference? Thank you
  10. What are your thoughts on GSA's announcement to consolidate all 24 GSA Schedules into a single GSA Schedule? How will this affect industry contractors? How will this affect contracting officers and the contracting process? https://www.gsa.gov/about-us/newsroom/news-releases/gsa-announces-transformation-of-multiple-awards-schedules https://federalnewsnetwork.com/acquisition/2018/11/long-overdue-reforms-coming-to-gsas-schedule-program/ https://www.federaltimes.com/acquisition/2018/11/27/gsa-to-consolidate-24-multiple-award-schedules-into-one/ https://fcw.com/articles/2018/11/27/gsa-consolidates-award-schedules.aspx
  11. When awarding a multiple-award IDIQ, does the Contracting Officer's warrant/signing authority need to be at the ceiling level of the contract or at the "minimum" level?
  12. Hello, Here is my situation that I was hoping wifcon could help me with. I have a multiple award IDIQ that was solicited as a total small business set aside. Award was made to three small businesses to make up the multiple award “pool”. One of the vendors was bought out by a large business making them now other than small. I have seen similar wifcon discussions but none seem to answer my issue. Can the now large business still compete on IDIQ requirements? FAR 16.505(b) states fair opportunity must be given, FAR 19.301-2 states that it does not change the terms and conditions of the contract, but does not FAR 19.502-2(b)(1) apply that I have two other small business vendors must I not set aside? Thank you! Similar Discussions:
  13. Can two large business Prime IDIQ holders form a joint venture for a task order under that IDIQ?
  14. Hello all, I am looking to re-compete a FAR 16 IDIQ, most likely a "requirements contract." It is for supplies, Firm-Fixed Price, and after competing, will be a single-award IDIQ. I have a question for input regarding the Period of Performance (POP) limitations. Is there any reason why the IDIQ cannot have a five-year straight period of performance with an overall ceiling? The FAR references that task/delivery orders are generally five-years with options but I found no reference regarding direction when setting up the POP for the over-arching IDIQ. Has anyone had experience with these? I'd prefer a straight POP avoiding the need to exercise options when we know we will be using this particular supply.
  15. Three multiple award IDIQs were awarded a few years ago to procure systems for testing and possible deployment if it passed testing requirements. The agency intended to compete among the multiple awardees to determine which systems to deploy. It turns out only one awardee passed testing, so the agency closed out the contracts with the awardees who had products that did not pass testing. Given there is only one contract to order supplies and services, is this contract still considered a multiple award contract? I'm trying to determine if I need to execute a justification to procure using exception to fair opportunity or not when placing an order under the IDIQ with the awardee who did pass testing. It's been recommended I complete one just in case, but I'm not convinced it's necessary since there are no other awardees to give fair opportunity to. Appreciate your thoughts and insight in advance.
  16. Good morning and happy holidays WIFCON! I’ve been reading these forums/blogs since I started in Federal contracting as a Copper Cap (just over two years now) and have gained a ton of valuable knowledge and viewpoints, this really is an amazing resource for contracting knowledge. Over the past year I’ve started working large dollar service contracts and have found myself in a position where I’ve had to develop IDIQ pricing tables for RFPs twice now. I’ve gone through the CPRG and found it useful but not in the way I’m looking for, it's more what to do what the numbers once you have them than what to do before you get them. I very much enjoy this type of work and it seems like there’s a lack of know-how around me in this area. I’d like to think I’m pretty good with excel, I can use tables/pivot tables/named ranges/advanced formulas and code in VBA to an extent. It was simple when all I had to do was make a spreadsheet for supplies, but with all the variables from services and IDIQ type contracts it’s getting more challenging (and fun). Bottom line: I’d like to know what techniques/courses/resources/templates/books etc anyone would recommend for learning more about things such as developing pricing tables and proposal modeling. I'd also like to know what your opinion is on using MS Access for this type of work. Thank you all for your contributions to this site and all the knowledge you’ve already passed on to me!
  17. How would you recommend working with government to hold the prime accountable on a full and open/unrestricted IDIQ contract, that has a goal, but not a requirement for the prime to include small business/sub-contractors in work share? Do you know of any previous contracts where this situation occurred? Without the government requiring the prime to include work share for sub-contractors, and only goals, it is going to be very difficult to find any prime that is willing to split their work share. Any advice, or examples of previous contracts that held prime's accountable for small business/sub-contractor participation goals would be highly appreciated!
  18. I am currently working on a sole-source IDIQ. I have solicited multiple fixed price supply items (non-commercial). My RFP includes range pricing and a Best Estimated Quantity (BEQ) /Annual Demand Value (ADV). The BEQ/ADV is based upon forecast data provided by the customer tempered with common sense and buy history. For Instance: A CLIN on my RFP may look something like this 0001AA Antenna Widget Quantity Range 100-190 (BEQ/ADV – 150) 191-200 201-270 I expect discreet pricing for all ranges, for all years of the contract (5 in this instance). My solicitation/RFP requires a FAR 15.408 table 15-2 compliant proposal. I state specifically that cost analysis must be performed by the offeror for subcontracts identified in the CBOM as having total proposed pricing that exceeds the regulatory threshold indicated in FAR Part 15.403-4 AND that Fair and reasonable subcontractor analysis in accordance with FAR 15.404-3(b) shall be provided. My Question: What is the basis of the threshold for subcontract Cost Analysis (CAPA) for an IDIQ contract? Is it based on the max quantity you anticipate buying or the estimated quantity you believe you will buy…The BEQ/ADV or the Max? In the example above, would you base the threshold on unit price x qty of 270 OR unit price x qty of 270…obviously very simplistic because on some of these RFP’s there are hundreds of items. I ask this because I interpret the subcontractor CAPA threshold as being the anticipated maximum value of the contract (max value for all solicited items IDIQ). The problem is that we are asking for ranges above what we historically buy, because our customer anticipates that there could be a need for those higher quantities. Contractors raise concerns on ROI and provide long lead time for proposal development when they interpret the RFP in that manner. I believe there truly is a case to be made for limiting the CAPA threshold to what we plan to buy (ADV/BEQ), but do have concerns that high dollar value subcontracts will go unchallenged. Regardless of the CAPA threshold, contractors would still be required to provide subcontractor pricing for all ranges and typically provide a high % of firm quotes with their bid. I would also like to add some additional context. I make a thorough evaluation of the ADV/BEQ we use and remove ranges (especially high ranges) when I have no reason to believe the Government will have a need to buy at that high a quantity. Interested in your thoughts on the topic.
  19. I issued a request for pricing for a sole source single award IDIQ contract for services with a five year ordering period. In Section B the contract required fully burdened labor rates for each year of the contract to be used for T&M type orders and FFP type orders. The contractor refuses to provide fully burdened rates for FFP orders stating labor rates are not relevant to the FFP contract value and this approach places significant risk to the contractor. They also argue this approach is not aligned with FAR since they cannot provide a certificate of current cost and pricing data for applicable orders when using out year rates that may be different from actual current labor rates at the time of placing an order. I don't understand what the difference is between establishing labor rates for any contract type and establishing rates in a FPRA. Their position that the labor rates are not relevant to the total value is not totally sound to me as the established rates would be used against the contractor's proposed level of effort that would build to the total FFP value. All GSA Schedules have burdened rates used when developing FFP orders and I've also seen this done on BPAs. I offered to negotiate separate T&M rates from the FFP rates because to me the only difference is profit but this was still unsatisfactory. I don't understand why this is a hard pressed issue for the contractor. I think this is a standard practice to negotiate labor rates for up to five years as is done with GSA and DCMA. Is there any reason why it's not appropriate to negotiate fully burdened rates for FFP orders? Is the contractor's claim about certified cost and pricing data true?
  20. Newish CO here. I am pre-award with an IDIQ that will have a BOM for a bunch of contractor-provisioned IT COTS hardware (maybe 100 different items, up to $80K unit price). These IT materials are from a dynamic market. Prices, models, features all change quickly. I am being asked by management to get 5-year pricing at the unit level for everything, and incorporate that pricing into the IDIQ. To me, this is a bad idea and a waste of time. My question to you all is - am I right in my assessment? Am I missing something? I see nothing in FAR 16.5 requiring any pricing of any type at the IDIQ level. Pricing and price analysis occurs at the order level. I understand that ceiling unit prices can be established by the IDIQ and found fair and reasonable, so that orders with unit prices at or below those levels are also fair and reasonable automatically, and this greatly speeds up the procurement process. However, this is predicated upon the assumption that the unit prices and things being priced will be stable over time. For example, carpenters and database administrators exist now and are reasonably likely to exist five years from now, and their hourly rates aren't going to change very much between now and then. This is not the case with IT hardware. Basically everything on the IDIQ's BOM has a lifecycle of less than 5 years and prices will change quickly, and by a lot. Also, new stuff comes onto market all the time. So why bother with IDIQ level pricing, you are going to have to do the price analysis per order anyways? If you know now, before award, that the IDIQ unit pricing will be obsolete and therefore can't be used for price analysis in the future, why bother having it? I know I will not win this battle with management, so this is for my personnel edification.
  21. I have an Non-Appropriated Purchasing Agreement (NPA) for Title II Services with the following Period of Performance: Option Year 2: 20 July 2015 through 19 July 2016 Option Year 3: 20 July 2016 through 19 July 2017 There will be a delivery order awarded against the NPA within the next few weeks, so we will be using the option year 2 pricing. The contractor is trying to incorporated "escalation pricing" in his proposal so when the option is exercised on the NPA (next month), the pricing for the order will "automatically" go into affect the same day. The period of performance on the order for Title II Services will be 365 days. The NAFI has already informed the contractor that the order will only incorporate Option Year 2 pricing for the entire duration of the 356 days and will not be changed unless there is a change to the current period of performance (ie. an extension to the order extending it past the 365 days). The contractor is arguing that other delivery orders were issued using this escalated pricing method with other agencies. Is there a statue stating an order placed against an NPA or IDIQ will need to maintain the current base or option year pricing throughout the life of the order?
  22. I support a program with contracts defined as firm-fixed price (FFP), labor hour (LH), time and material (TM), indefinite delivery indefinite quantity (IDIQ) with economic price adjustments from collective bargaining agreements (CBAs)/ wage determinations (WDs). The contracts were awarded under FAR 15 with adequate price competition. Due to some security aspects in the SOW the effort is considered non-commercial and agency described as design/detail. Historically, the program has considered these contracts exempt from Cost Accounting Standards (CAS) per the exempted category (15) below, as there was always adequate price competition and they have not collected cost or pricing data with the offers. Is this interpretation correct? (b) The following categories of contracts and subcontracts are exempt from all CAS requirements: (1) Sealed bid contracts (2) Negotiated contracts and subcontracts not in excess of $500,000. For purposes of this paragraph (b)2 an order issued by one segment to another segment shall be treated as a subcontract (3) Contracts and subcontracts with small businesses. (4) Contracts and subcontracts with foreign governments or their agents or instrumentalities or, insofar as the requirements of CAS other than 9904.401 and 9904.402 are concerned, any contract or subcontract awarded to a foreign concern. (5) Contracts and subcontracts in which the price is set by law or regulation. (6) Firm fixed priced and fixed price with economic price adjustment (provided that the price adjustment is not based on actual costs incurred) contracts and subcontracts for the acquisition of commercial items (7) Contracts or subcontracts of less than $7.5 million, provided that, at the time of award, the business unit of the contractor or subcontractor is not currently performing any CAS-covered contracts of subcontracts valued at $7.5 million or greater. (8-11) [Reserved] (12) Contracts and subcontracts awarded to the United Kingdom contractor for performance substantially in the United Kingdom, provided that the contractor has filed with the United Kingdom Ministry of Defence, for retention by the Ministry, a completed Disclosure Statement (Form No. CASB-DS-1) which shall adequately describe its cost accounting practices. Whenever that contractor is already required to follow U.K. Government Accounting Conventions, the disclosed practices shall be in accord with the requirements of those conventions. (See 9903.201-4(d).) (13) Subcontractors under the NATO PHM Ship program to be performed outside the United States by a foreign concern. (14) Contracts and subcontracts to be executed and performed entirely outside the United States, its territories, and possessions (15) Firm fixed price contracts or subcontracts awarded on the basis of adequate price competition without submission of cost or pricing data.
  23. I have a question regarding a recently posted RFP for a multiple award, ID/IQ. I believe my question is related to a WIFCON post from 2012, so I wanted to included it here: However, there are a few differences 1. This is a multiple award ID/IQ with a Full and Open suite and a Small Business set aside suite. (LPTA) 2. Instead of the Agency providing a sample task order or estimated quantities with the RFP as a baseline, the offeror is to provide labor rates (on/off site) for a set number of Labor Categories (provided by the Agency). Then, the Agency is going to apply estimated labors hours for each year of contract performance to each offeror's labor rate/category based on site location. The estimated labor hours used for evaluation purposes will not be provided to the offerors until after award. Question: Is this method of evaluation considered reasonable? The offeror doesn't know what it's total evaluated price will be until after award is made.
  24. In light of a recent protest (WIFCON link http://www.wifcon.com/cgen/4114813.pdf, docket B-411481.3 dated 6 January 2016) regarding a task order issued off a Federal Supply Schedule, I've heard chatter from legal advisors that the clause at FAR 52.216-22 doesn't set the effective date of the IDIQ. Consequently, they argue that clause cannot be a mechanism by which a task order featuring option years can be performed for years beyond the end of the ordering period. This interpretation seems entirely contradictory to the specific language featured in FAR 52.216-22. The clause in the IDIQ in question cuts paragraph (d) short, omitting the date fill-in. GSA's ordering guide places the following restriction on task orders which use options (emphasis supplied by the GAO) Interestingly, GSA has revised their ordering guides within the last two weeks to put an end to the issue this portion of the protest encountered: https://interact.gsa.gov/document/important-update-new-mas-refresh-mass-modification-changes-february-2016-streamline Researching WIFCon, I've found relevant discussions. Here: http://www.wifcon.com/discussion/index.php?/topic/1665-task-orders-that-extend-beyond-base-contract-pop/#comment-14003 Vern's invaluable blog post at http://www.wifcon.com/discussion/index.php?/blogs/entry/644-those-pesky-idiq-contracts-again/ provided some excellent reading, but nothing that corresponds with what I am hearing from legal counsel. Another discussion seems to predate the fateful action which triggered the protest in question: http://www.wifcon.com/discussion/index.php?/topic/1768-gsa-to-with-options-beyond-k-period/ Based on the buzzings, it seems as though legal counsel is applying the restrictions imposed by GSA onto DOD contracting officers. Legal counsel has argued that: 1. The effective period may end prior to the ordering period; 2. The date of FAR 52.216-22(d) is NOT relevant to the IDIQ's effective period; 3. The contract's effective date is the same as the IDIQ's ordering period 4. The date if FAR 52.216-22(d) is only relevant to the performance period for delivery under a Task Order and thus cannot be construed to include options under that performance; 5. Inclusion of the date in FAR 52.216-22(d) would not have changed GAO's analysis of the protest in question; and 6. Task orders are not stand alone contracts and once an IDIQ has expired (rendering the contract "no longer effective), the delivery under a Task Order is irrelevant. Summarily, legal counsel is strongly criticizing the idea of setting an IDIQ's "effective date" by way of the fill-in text in FAR 52.216-22. In fact, I am lead to expect this "ruling" by the various legal offices will impact DOD contracts significantly, requiring contracting officers to come up with a variety of complex "work-arounds". Is there something I never learned or never understood with regards how FAR 52.216-22 works? EDIT: Made a clarification.
  25. I awarded a ID/IQ contract to three contractors in February '15. We have awarded task orders to two of the three contractors to satisfy the minimum, however, based on the forecast, it is possible that the third contractor might not have the minimum satisfied in the current fiscal year (15/16). To determine our next steps, there have been multiple discussions between contracting officers, legal and branch chiefs. I am a new contracting officer and this is the first task order contract I have administered. I suggested using the fair opportunity exception at FAR 16.505 (b ) (2)(i)(D) to sole source a TO in order to satisfy the minimum. My team leader reviewed my stance and responded as follows: "Seems to me your options are limited. Because the awards were made in FY 15 the Bonafide Need rule requires that the funds available at the time of award FY 15/16 being retained under each contract (whether on the contract or task order). The issue at hand is one of the Agency getting use out of its obligated funds and should be distinguished from a case of needing to satisfy our minimum commitment to the contractor (which does not arise until the ordering period expiries. 1. Satisfying our Appropriation Rule on Bonafide Need We need to maintain 15/16 funding under each contract, whether under the contract itself of under an issued TO that may extend beyond the funds availability for obligation, but will be supportive of the BN at the time of issuance. TO with performance periods stretching beyond the availability of FY 15/16 funds while this appropriation is available would preserve the BN supporting the underlying contract. If we issue a TO using 16/17 funds, we would meet our contractual obligation to the contract holder, but we would still have to keep the funds obligated at award (15/16 funds) on the contracts and to do so otherwise would result in a violation of the BNR, as we would have failed to support the BN for what the contract was procuring. " Legal went further to state: A sole source task order under the exception to FAR 16.505 (b )(2)(i)(D) cannot be issued. The contract POP is 5 years. Therefore, approximately 4 years remain of the POP, while approximately 7 months remain prior to the end of the fiscal year. Consequently, there is enough time for the contract holder in question to receive additional competitive task order awards sufficient to liquidate the balance of the minimum amount obligated to the contract at the time of the award. Neither the FAR guidance nor any of the clauses included in the contract provide for an exception to the "fair opportunity to compete" for task orders that would facilitate the reduction of the outstanding minimum balance and avoid the expiration of the FY funds placed on the contract at the time of award. Furthermore, failure to issue a task order to the contractor in question under which 15/16 funds can be used, does not mean the money is "lost" per se, What it does mean is that , if the Agency does not issue any task orders to the contract holder in question between now and the end of the ordering period, those FY 15/16 funds will still be available to liquidate whatever portion of the minimum is due and owing to the contract holder in question. As to how that amount is calculated, I direct your attention to the CAFC case White v. Delta Construction International, Inc., 285 F.3d 1040. What that means is: The contractor in question would only be due payment of an amount that reflected the delta between the costs it would have incurred had the minimum amount been satisfied in total, given indirect costs and profit. So. I have two questions: 1. How does White V. Delta overrule the Government from fulfilling its obligation under 52.216-22? 2. Why would the use of the fair opportunity exception at FAR 16.505( b ) (2) (i)(D) to sole source a TO in order to satisfy the minimum not apply? I would think the potential to violate the BNR would be even more of a reason to sole source.
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