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Found 7 results

  1. I have a requirement for a follow-on contract that I am confused about what category it falls under: Supply or Service. I've read the definition of supplies in FAR Part 2 as well as the definition of Service in FAR Part 37; However, these definitions still leave me without an answer. My requirement, as I understand it, is a monthly fee for use for access to a secure Network. This is a logical network that allows us to get into different applications to meet our needs. It's essentially connectivity from our contractor to us. We maintain the equipment that allows us to access the network, we just pay on a per month basis to access the network. My understanding of this requirement is that we are being provided a service which includes 24/7 monitoring and support. There is no cost breakdown on what portion of our fee goes towards that support element and which directly to the access available. I think of it as internet service; However, there's a question on whether it is technically a "subscription." The argument was made that it might be a supply since we are not directly engaging the services of a contractor. I think of a supply as a tangible end item like a magazine subscription- the end result is an item of supply being furnished. Can someone please help me understand if this is a supply or a service?
  2. We are a telecommunications provider to the US Government and provide terrestrial data circuits to remote, and sometimes hostile, regions in the world. Under a 12-month contract, the Government requested a proposal for 12 months of service. The circuit is not considered accepted and billable until the Government performs its testing IAW the acceptance criteria. Given the regions we deliver service to, it is normal for circuit activation and testing to take three or more months from execution of a subcontract agreement to the activation and testing of the circuit. The salient points are: 1. The Government contracted for a terrestrial data circuit with a certain number of Megabits per second (Mbps) at a certain location specified in the SOW. 2. The period of performance was 5/1/15 – 4/30/16. 3. In Section B, the Unit specified was “EA,” and the quantity is “From 0.0000” “By 1.0000” to “To 1.0000” 4. The contract type was fixed price incentive in accordance with FAR Part 16.202. 5. We provided the Mbps to the locations specified in the contract beginning in November 2015. There are opinions internally whether we can bill the full amount based on service being provided for twelve months, even though the service was only accepted at month six or not. Terrestrial carriers (e.g. Verizon, Level3, etc.) typically require a 12 month commitment, so even though this firm price, severable service, extends beyond the PoP we will be billed for the full twelve months. The stronger and most likely reading of the contract is that the full amount of the annual service should not be charged unless the service was provided for the full 12-month period. However, reading the FAR suggests we may be able to bill for 12 months of service. Nonetheless, based on my experience with post hoc reviews by stakeholders OTHER THAN the contracting officer (such as inspectors general), a pro rated invoicing approach rather than invoicing the full amount, may be the correct interpretation. The contract does not state if it contemplated “immediate” commencement of performance, it is notable that the documents clearly provide that the period of performance was to be 5/1/15-4/30/16, which is exactly one year. (clause 152.211-705). In addition, the Statement of Work provides that the period of performance was to be “12 months from contract award.” Whether or not it is of note, there is no feasible way for service to commence immediately after order, and we are not billed by our subcontractor until the circuit is tested and accepted by the Government. The question then becomes whether “performance” in this context means (a) to begin to build the required communications capacity, or (b) to actually provide the required communications capacity. If “performance” requires only working on the development of the promised capacity, as opposed to actually providing the promised capacity as a service, then it appears that the fixed fee would have been owed. The contract does not offer any indication as to what it intended. I would also note that nothing in the contract appears to require a pro rating of the price to reflect the timing of the in-service dates (or acceptance dates). Nonetheless, there does not appear to be any language in the contract indicating that the customer can be charged for anything other than an operable network service that meets all of the speed and other technical parameters, and that this service is subject to a fixed price for a full 12-month service period. The task order has ended, but there is some discussion if we are entitled to invoice and be paid the fixed price established in the contract. The incentive monies are secondary, and will be determined and paid in accordance with the terms of the contract. The task order has ended, but there is some discussion if we are entitled to invoice and be paid the fixed price established in the contract. The incentive monies are secondary, and will be determined and paid in accordance with the terms of the contract. As a follow-on question: The Government awarded a single source follow-on contract for this service to begin 1 May 2016 – 30 April 2017. If the guidance is that we can bill for the full twelve months, should there be concern about billing, effectively, twice for the same service (trailing six months after PoP end, and first six months of follow-on) even though the same service is being provided under a different contract?
  3. The FAR does not seem consistent when it comes to classifying construction as either a type of service, or its own separate "construction" category outside of a service. I think this is important to know so that clause prescriptions that say "include in contracts for services" are applied appropiately to construction contracts. Here is the evidence I found to support both determinations: Evidence that construction is NOT a service: Ask a Professor: Construction is a separate entity covered in FAR Part 36 and is not considered a supply or a service (https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=3&cgiQuestionID=114335) FAR 37.00 states that R&D Services are found in part 35, and Architect-Engineer Services are in Part 36, but it does not say that Construction is in Part 36. Omission must mean they are not services. Construction is not one of the examples under the definition of Services in 37.101 Far 37.3 discusses that dismantling, demolition, or removal of improvements falls under the Service Contract Labor Standards unless further work which will result in the construction, alteration, or repair of a public building or public work at that location is contemplated. If further work is contemplated, the work would fall under the Wage Rate Requirements (Construction) instead. FAR 36.101© says “A contract for both construction and supplies or services shall include..”, which clearly indicates construction is separate from services. Evidence that construction IS a service: Construction logically falls under the definition of services since it is a “contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task” FAR 37.110(a) says “The contracting officer shall insert the provision at 52.237-1, Site Visit, in solicitations for services to be performed on Government installations, unless the solicitation is for construction.” If Construction was not a service, there would be no need to put the qualifier at the end of the sentence. FAR 13.000 says “This part prescribes policies and procedures for the acquisition of supplies and services, including construction,…” Is there an official determination on whether construction is considered a service or not?
  4. Hello fellow contracting seniors, I am building a FFP IDIQ logistics support services contract with the intention to issue multiple IDIQ awards. The IGCE for the base year is estimated to be $10Mil and I intend to write the MAC with 4 one year options. I understand that I can do without a minimum guarantee CLIN however with such high dollar value solicitation out at the streets expecting prospective contractors to bid on it; it does seems to be of a necessity. My question in my mind is how do I determine the amount of the minimum guarantee for this MAC? My case has 29 geographical locations around South-East Asia and the Federated States of Micronesia, which I need contracting support but not all locations have the same amount of logistics requirement that also relates to the same IGCE, for example Pohnpei Island is having an estimate of 1.2Mil per year whereas the other extreme Brunei is having only a mere estimate of $900 per year. A little background of myself; I'm a junior contract specialist (OCONUS) with only a mere 3 years of Government contracting whom is continuously learning. Hope to have some insight and advice from all contracting professionals out there and greatly appreciate it. Very Respectfully, Camp Henry
  5. Scenario: Lower-tier subcontractor performing on a DO issued under the restricted suite of an IDIQ MATOC for maintenance and services. The DO contained 2 types of CLINS: 1. FFP (for preventative maintenance) and 2. T&M (for corrective maintenance). Prime contractor (Company A) submitted hourly labor rates to Govt.; the resulting award contained the hourly rates but no details are given regarding whether the rates for each labor category are for the prime or its subs. NOTE: lower-tier sub was not involved with prime contract in any capacity until well after the award. As such, it was unable to participate in the hourly rate discussions/negotiations between the prime and first-tier sub. In addition, the lower-tier sub was not given any information about said discussions/negotiations. First-tier sub to Company A issued subcontract to lower-tier sub for both CLINs. Beforehand, lower-tier sub quoted its GSA FSS contract hourly rates to first-tier sub; the first-tier sub accepted said rates. Lower-tier sub hourly rates accepted by first-tier sub were was much as $14.00/hr higher than those in listed Company A's prime contract. To the best of this writer's knowledge, the rates in Company A's prime contract had not been disclosed to the lower-tier sub prior to it submitting its proposal to, or receiving its subcontract from, the first-tier sub. CAVEAT: the lower-tier sub is also a contract holder under the same MATOC (lower-tier sub's award was in the unrestricted suite) and most likely has the same KO administering its contract as Company A. The lower-tier sub's hourly rates negotiated with (and accepted by) the Govt. on its award are the same as above - its GSA FSS contract hourly rates. The Govt. is definitely aware the lower-tier sub is also performing under Company A's award as a lower-tier sub. Issue: Lower-tier sub performed multiple CLIN 2 corrective maintenance services over several months, during which time it invoiced its labor at the $14.00/hour higher rate. Govt. accepted all invoices and lower-tier sub was paid at the higher rate. During this time, the lower-tier sub is still unaware of Company A's negotiated rates. Out of the blue, the Govt. decides it no longer wants to pay the lower-tier sub's higher rates and directs Company A to pay the lower-tier subs at Company A's lower negotiated rate. Argument: Lower-tier sub is well aware of the regulations governing T&M work and concurs it must abide by the rates in Company A's contract. The lower-tier sub does, however, take issue with the Govt. changing its position "midstream" on the hourly rates. Does the lower-tier sub have any valid arguments to make? If so, what are they?
  6. My agency has a requirement solely for the demolition of existing structures, with no post-demolition construction. Pursuant to FAR 37.301, this will be a service contract versus a construction contract. As such, is there a potential ADA violation if the contract is funded with MILCON funds? The demolition is included on a DD Form 1391; however, the demolition work has since been segregated from the “true” construction work. We will now be issuing two contracts, one for the demolition and one for everything else that is on the DD Form 1391. The structures to be demolished and the land it occupies have never had a relationship to the other work on the DD Form 1391 other than the fact that they both ended up on the same DD Form 1391. There is no proposed immediate or future construction on the demo site in the base’s master plan. The program office, budget office, and counsel contend that MILCON funds are authorized/appropriate solely because the demolition is listed on a DD Form 1391. I am leery about using MILCON funds on a service contract, but seem to be the only one here that has reservations. Is the mere fact that something is listed on a DD Form 1391 all the logic/evidence needed to ascertain that MILCON funding is the proper funding source and would not violate fiscal law?
  7. I work in a Policy Office (Army). Someone on our Contract Review team told me that Contracting Officers do not document their files on the applicability of the Service Contract Act. I use to procure services from 2006-2009 and would document the file to explain why the service that I was procuring was exempt from the Act. I cannot find whether or not it is a requirement to document the file in this manner. Am I correct that it should be documented?
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