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107452
  
dapmembers:earl.chow1/24/2011
7395
How long do we need to wait before modifying or adding on to the new facility?
A project was executed in 2010 for $738K with OMA dollars. The tennant now wants to add offices to the facility at an estimated cost of $100K.
If this is a true new unknown requirement there is not a time limit.  This new requirement should not have been known at the orginal time of construction.  The new need should be a new unit, new mission, etc. 

Looking at this it sounds like your are trying to increment this construction; that is illegal. You would have to wait at least 5 years before adding to the facility.  If you don't think this will pass an Inpsector General inspection, don't do it.  This should have been programed under the MILCON.
PostedContracting, Contracting_Architect-Engineer and Construction Contracting353592/21/2011 12:59 PM
35,359
System Account
107067
  
dapmembers:ry1nik12/1/2010
7396
If an organization does in fact meet the criteria and qualify as "commercial" under FAR definition 2.101 - what access to that contractor's books and records does DCAA or any other audit agency have?
If the contract type for the commercial item is time and materials, then Alternate I to the clause at FAR 252.212-4 (paragraph (i)(4)) provides the Government with access to records. Time and materials contracts are considered high risk for the Government, hence the access rights. I know of no other situations in which such access is granted for commercial item contracts.
PostedAuditing, Contracting, Contracting_Commercial353652/21/2011 12:59 PM
35,365
System Account
107355
  
dapmembers:drobinson1/14/2011
7397
In a small business set-aside acquisition what are the rules for sub-contracting with Universities where the Prime Contractor (small business) would perform less than 50% of the dollar value of the total award value? What is the exact classification of Universities in sub-contracting?
We would like to do a full and open competition small business set-aside for Program Management services in the chemical biological arena.  However, a large portion of the requirement is for work performed by several Universities and there are extensive material/equipment purchases included in the requirement.  Therefore, the actual Program Management is potentially less than 50% of the acquisition amount.

FAR clause 52.219-14 states at least 50% of the work must be done by a small business in a small business set-aside. In subcontracting as well as prime contracting Universities are other than small. Small business is defined in FAR 2.101 as follows:

"Small business concern" means a concern, including its affiliates, that is independently owned and operated, not dominant in the field of operation in which it is bidding on Government contracts, and qualified as a small business under the criteria and size standards in 13 CFR part 121 (see 19.102). Such a concern is "not dominant in its field of operation" when it does not exercise a controlling or major influence on a national basis in a kind of business activity in which a number of business concerns are primarily engaged. In determining whether dominance exists, consideration must be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity. (See 15 U.S.C. 632.)

"Small business subcontractor" means a concern, including affiliates, that for subcontracts valued at--

(1) $10,000 or less, does not have more than 500 employees; and

(2) More than $10,000, does not have employees or average annual receipts exceeding the size standard in 13 CFR part 121 (see 19.102) for the product or service it is providing on the subcontract.

It sounds as if you have several requirements for your Program Management services. You may be able to break out the different requirements and do small business set-asides for those that are applicable and regular contracting procedures for your other requirements. You should talk with your small business specialist and the SBA in planning your requirements.

PostedContracting, Contracting_Small Business353722/21/2011 12:59 PM
35,372
System Account
107701
  
dapmembers:drobinson11/24/2010
7398
Q1. Is it permissible for GS employees to execute software development tasks as part of their work?
Q2. If it is permissible, can these GS "developers" be paid with Operations & Maintenance (O&M) funds or are you required to pay them with Research, Development, Training & Evaluation (RDT&E) funds? Based on the answer to Q2, we may need to ask these follow-on questions:
Q2a. If the GS employees devote less than half of their time to "development" work, can they be paid with O&M funds.
Q2b. If the GS employees deveote more than half of their time to "development" work, must their entire salary be paid with RDT&E funds?
The following questions are being asked to ensure that we are correctly budgeting and executing funds for development work on an existing computer software program (GOTS product). We want to avoid any possible appropriation violations.

To ensure you do not violate any fiscal laws, please reference the DoDFMR 5000 guidance, in addition to your respective service regulations. Our service only responds from a DoD perspective and may be too generic for what you require. In addition, please ensure that you consult your local legal office to determine that the contract vehicle captures the intent of the software development effort. Our service typically answers questions that are major defense weapon systems or information system programs.

Generally speaking, government employments are hired for specific job descriptions. If the funds you are speaking about were appropriated for the intended purpose, time, amount (PTA) statutes than the funds can be used. If this is above their normal workload, this may require personnel specialists involvement.

In order to answer the other your next question, the type of GOTS product needs to be defined as to what is its purpose and how much does the total activity costs. If this is an investment (typically greater than $250K) or an expense will determine which appropriation should be used to support the effort.

Your last question is truly a civilian pay question in which is a proper question to your civilian pay office.

PostedBusiness, Business_Financial Management353942/21/2011 12:59 PM
35,394
System Account
106948
  
dapmembers:mmcurrier12/17/2010
7399
In preparing to negotiate the restart claim amount, should a new current davis bacon wage rate be incorporated, or would the original davis bacon wage rates still apply, since the rates are generally effective for the life of the contract.
construction contract has been delayed for 6 months and will be restarting soon.
I would continue to use the same rates, unless the contractor objects. If it does, I would listen to the reasons provided for the objection, including who is responsible for the 6 month delay. If the Government was responsible, I would consider updating the rates.

PostedContracting353672/21/2011 12:59 PM
35,367
System Account
107394
  
dapmembers:drobinson11/24/2010
7400
Can the funds be deobligated as long as the financial data sheet is completed (signed by the chief financial officer) even if the contract mod itself has not been signed by the contracting officer?
I apologize in advance if your office received this question earlier in the month, but I didn t receive any answer so maybe it did not go through. So, here goes:

<p>Our customer had expiring funds that were cancelling at the beginning of this new fiscal year. They had the financial data sheet (FDS) ready, but did not have the actual contract executed yet. 

Unfortunately, if the funds were never obligated and affiliated with a contract or contract mod, the funds our indeed cancelled and can no longer be used for new obligations. Your financial records will need to deobligate the funds on the finance side at this point.

Make sure you validate that the funds your are referencing are indeed cancelled. Please consult your local comptroller's office affiliated with this matter for further guidance.

PostedBusiness, Business_Financial Management353742/21/2011 12:59 PM
35,374
System Account
107775
  
dapmembers:drobinson1/14/2011
7401
Can the government activity (customer) that is shipping (and paying for) the contract required GFM to a contractor require the contractor to have a DODAAC to receive the GFM? Contract specific DODAAC is not contractually required. Isn't GFM shipped using the contractor cage code?

The DoD  Activity Address Code (DoDAAC) was established as the primary key to the  DODAAD.  It was originally intended to  identify activities and organizations that are authorized to order materiel  through the DoD supply system.  The  DoDAAC can be used by any group of individuals or government contracting site  authorized to procure and or accept materiel on behalf of a particular  organization.  Contractors are also  authorized to use it to obtain Government supplies.  The DoDAAC is required when requisitioning  items from Government supply sources per the DLMSO Support POC

According to  the Defense Logistics Agency Logistics Information Service a CAGE Code is a  five position code that identifies companies doing or wishing to do business  with the Federal Government.  It is used  to support a variety of mechanized systems throughout the government.  It provides for a standardized method of  identifying a given facility at a specific location and may be used for source  supply.  The Contractor CAGE code is used  to ship items.  Although several sources  that were contacted mentioned that CAGE Codes were optional the Defense  Logistics Agency states that the following fields are required for contractor  DODAACs: contract number, CAGE code, sponsor, and expiration date.

Since your  organization is the Navy it is highly recommended that you contact the Navy  DoDAAC Monitor for the latest information on your inquiry.  Please contact at 216-204-2661.

Please refer to  the following DLA web site for additional information.

www.dla.mil/j-6/dlmso/archives/dodaad/meetings/18mar10/DoDAAD-Update.ppt 2010-03-17

The Defense  Logistics Management System (DLMS) has a training site that has more  information on DoDAAD and DoDAAC (see below).

The DLMSO  Support POC, was very helpful in providing information on DoDAAC.  He is listed as a POC in Module 7-DoDAAD and  you may access it via the following web site: Web Site Address  https://www.dla.mil/j6/dlmso/eApplications/Training/training.asp</a>    Click on “Module 7 DoDAAD” for an overview of this process.

PostedIndustrial and Contract Property Management354092/21/2011 12:59 PM
35,409
System Account
107695
  
dapmembers:drobinson12/7/2010
7402
For this mod, the contractor is providing mostly supervision of the subcontractor. This main subcontractor is then providing only supervision of the smaller subs who are then performing all the work. The markups for the subcontractor who is only doing supervision are the following 5% Prime Overhead on Subs, 3% Prime Home Office Overhead, 8% Prime s Profit. Are these markups justified? Should we be paying for them in addition to the agreed on contractors markups, and the subs markups who are actually performing the work?
This is a FFP Construction contract to an 8(a) firm. The general contractor is using a subcontractor who is subcontracting all of the work. Several proposals have been received for modifications.  In them, the Contractor is asking for their markups (as agreed in the contract) and also for  additional ones for their subcontractor, and their subcontractor's subcontractors. 

These cost are allowed. Please look at this GAO case to help assist. 

http://www.gao.gov/new.items/d08269.pdf You may be able to negotiate the markups down. For a modification, everything is negotiable.
PostedContracting, Contracting_Architect-Engineer and Construction Contracting354022/21/2011 12:59 PM
35,402
System Account
107542
  
dapmembers:drobinson12/1/2010
7403
Under these circumstances, would the contractor prevail, under estoppel to prevent the Government from retroactively going back to the time of inception of the contract, to compute and recoup damages, as the result of overpayments made due to CAS non compliances. In sum, does the circumstance that a finding of CAS noncompliance occurred after the completion of a contract, make null and void the Government s rights to recoup overpayments do to CAS noncompliances. Or would the Government rights to recoup damages be limited to the time of issuance of the Notice of Potential CAS noncomliances?
A CAS covered IDIQ  cost reimbursement type of contract  was awarded on during January 2005 with an estimated cost of $200 million to a large business.  This was the first CAS covered the contractor had been awarded in over a decade. At the time of submission of its proposal the company did not designate any prior accepted CAS Disclosure Statement or submit the required CAS Disclosure Statement.  Subsequently a CAS Disclosure Statement was provided.  DCAA was requested to conduct  a CAS compliance audit.  During April 2006 DCAA  issued an audit report citing serious CAS compliances.  On July 2006, the Contracting Officer issued a Notice of Potential CAS  Noncompliance.  The contactor responded that no CAS noncompliances had occurred, and requested several months to have additional time in order develop a rebuttal case,  included raising various accounting, business, and  legal arguments.  This took additional time and effort, as a result the contract was fully completed during August 2007,  before the Government  responses were developed to address and rebut the Contractor s allegations.  On  January 2008  the Contracting Officer made the determination that CAS noncompliances had occurred, and the likely overpayment amount would be material, and  issued a Notice of CAS noncompliance, pursuant  to requirements of FAR Subpart 30.605 Processing Noncompliances.   The notice requested the Contactor to submit for approval a description of the accounting change necessary to correct the cited noncompliances. The accounting description is still under view at this time, but is it likely it may be found to be in noncompliance.
There is no evidence  that the Government had mislead the contactor in any manner, to conclude that  submitted CAS Disclosure Statement was or would be found to be compliant with CAS requirements, until the Contracting Officer made the final determination during January 2008. There is no basis to conclude that the Contractor had any valid basis, and in particular by any representations made by the Government, to believe that accounting rules previously applied and accepted under  FAR Subpart 31, would also be acceptable for purposes of accounting rules under FAR 30 Cost Accounting Standards.
As a preliminary defense, the contractor has raised the legal principle of estoppel .  Because the actual Notice of CAS noncompliance was not issued until January 2008, after completion  of the Contract  on August 2007.

Estoppel is a legal issue and should be discussed with legal counsel. Estoppel is an affirmative defense and based on the information provided, it does not appear that the contractor relied on Government actions to its detriment. The subject contract includes the CAS clause that requires the contractor to agree to an adjustment of the contract price or cost allowance, if the contractor fails to comply with CAS and such failure results in increased costs paid by the Government. The contract clause requires that such adjustment provide for recovery of increased costs paid by the Government, together with interest from the time the payment was made to the time the adjustment is effected. Accordingly, the fact that the Government’s finding of the contractor noncompliance after the completion of a contract would not negate the price adjustment requirement.

PostedAuditing, Auditing_Cost Accting Standards353822/21/2011 12:59 PM
35,382
System Account
107753
  
dapmembers:drobinson12/1/2010
7404
In USACE, what is the Contract cumulative dollar limit for IDIQ A-E contracts for Civil/HTRW (and Military if different)?
Researching the maximam capacity limit for AE IDIQ Contracts I have found that PIL Procurement Instruction Letter (PIL) 2007-07, Architect-Engineer (A-E) Contract Limits and Terms dated Aug 2007 indicates $12M per EFAR 36.601-3-90(b); however when I go to the current EFAR that specific site location (limit) has been deleted.

As you well know the FAR and DFARS prescribe no capacity limit for AE IDIQ contracts. We can only advise on FAR and DFARS policies, regulations, and procedures. I suggest you redirect this question to your Agency Head for further guidance.

PostedContracting, Contracting_Architect-Engineer and Construction Contracting354082/21/2011 12:59 PM
35,408
System Account
107715
  
dapmembers:mmcurrier1/13/2011
7405
When Government employees use GPC and make purchases above the micro-purchases treshold, do they need to report those actions to FPDS? What if the vendor does not have a DUNS Number? Is the vendor require to be registered into CCR? What if the vendor is not in CCR?
GPC
Yes, there should be a report to FPDS. Yes, the contractor must have a DUNS number. Yes, the contractor must be registered in CCR.

PostedContracting, Contracting_Government-wide Purchasing Card353972/21/2011 12:59 PM
35,397
System Account
107717
  
dapmembers:drobinson11/24/2010
7406
1. Can the OCO funds be reallocated and not designate them as WRA?

2. Can the obligation be split between FY12 and FY13?

PM is expecting to recieve FY12 OCO funding for a specific OCO effort.  Due to changes within the program the PM is rquesting to reallocate the funds; and then they would like to split the obligation between FY12 and FY13. 

The basic answer to your question is Other Contingency Operations (OCO) funding is whatever type appropriation account Congress said it is in the Appropriations Bill passed by Congress that the President signed into law will determine what the appropriation can be used for.

Other Contingency Operations is not an appropriation account in itself; it is a purpose for which the appropriation account can be used. The term previously used for this purpose was Global War on Terror - GWOT.

To determine which appropriation account (i.e., procurement or O&M) is proper to be used for a particular good or service, it is necessary to go into the actual Appropriations Act that provided the budget authority. There should also be some type Funding Authorization Document (FAD) by which budget authority was passed down to the activity involved that will tell you what type of appropriation it is. The FAD normally states the appropriation account and the purpose of the budget authority contained in the FAD. This will tell you what color of money the FY12 appropriation it is, and thus you can determine if the respective funding policy associate with the appropriation is appropriate to split between years at that point.

Unfortunately, I am not familiar with WRA and cannot address that portion of your question.

Once the budget authority is sub-allotted, please consult your local comptroller office for further guidance.

PostedBusiness, Business_Financial Management353962/21/2011 12:59 PM
35,396
System Account
107792
  
dapmembers:drobinson11/23/2010
7407
Is a Root Cause Corrective Action required on minor non-conformances where a LDV (Limited Design Variance)is authorized and approved?
FAR 46.407<br>
DFAR 52.246-2

References:

FAR 46.407 Nonconforming Supplies or Services

DFAR 52.246-2 Inspection of Supplies- Fixed – Price

FAR 46.407 (d) may allow the contract administration office (ACO), if the nonconformance is minor, to make the determination to accept or reject supplies. However, FAR 46.407 (e) states "the contracting officer must discourage the repeated tender of supplies or services, including those with only minor non-conformances, though it doesn’t specify how.

The FAR/DFAR clauses referenced require the contractor to submit to the government only those supplies that conform to contract requirements. The government may reject the nonconforming supplies. In certain instances, the contract administration office can make the determination to accept or reject a minor nonconformance.

So, given the information above, the ACO has the latitude to require the contractor to conduct root cause analysis and corrective action on minor non-conformances.

PostedProduction, Quality, and Manufacturing354172/21/2011 12:59 PM
35,417
System Account
107802
  
dapmembers:drobinson12/1/2010
7408
Can an A-E perform a technical analysis/evaluation on a construction proposal on a project that they completed a 100% design?
I currently have an A-E IDIQ contractor that has completed 100% designs on projects.  Civil Engineering would like to incorporate into their contract a requirement for the A-E to provide technical analysis of construction proposals on projects that they have completed based on the the assumption that "the A-E provided the cost estimate, who better to perform the analysis/evaluation".

As you probably have surmised, the question speaks directly to inherently governmental decisions.  I suggest you meet with CE and review the FAR concerning inherently governmental and also have your Agency legal weigh in.

 

Sometimes we are the best people for the job.

PostedContracting, Contracting_Architect-Engineer and Construction Contracting354112/21/2011 12:59 PM
35,411
System Account
107808
  
dapmembers:drobinson1/14/2011
7409
If this was originally awarded as an 8(a) contract, could this still be reported as 8(a) if an extension was given to help continuation of coverage until a new contract was awarded competitively?
There is currently a contract with an 8(a) firm awarded under the 8(a) program.  Our customer would like to issue a J&A to extend the current contract while a new contract is being put into place

The following response is based solely on the question and background information provided. As we do not have all the facts particular to your contract, program, and situation, we highly recommend you consult your leadership, contracting officer and Legal Office for guidance

For purposes of addressing your question, I will assume the extension will be executed by modification establishing an additional performance period to an otherwise expiring 8(a) contract.  This additional performance period is added scope to the contract (thus the requirement for a J&A) and essentially a new contract no longer subject to the 8(a) business development program given the incumbent's graduation from the program. 

FAR Subpart 19.8 states that Section 8(a) of the Small Business Act (15 U.S.C.  637(a)) established a program that authorizes the Small Business Administration (SBA) to enter into all types of contracts with other agencies and let subcontracts for performing those contracts to firms eligible for program participation. The SBA’s subcontractors are referred to as “8(a) contractors.”  DoD Contracting Officers are given a special dispensation to award 8(a) contracts directly to 8(a) program participants as opposed to contracting through the SBA (see DFARs Subpart 219.800 You'll note the referenced DFARs subpart states the SBA remains the prime contractor on all 8(a) contracts, continues to determine eligibility of concerns for contract award, and retains appeal rights under FAR 19.810.

Based on the above, the Contracting Officer should report the extension modification as a sole source non-8(a) award unless their Small Business Procurement Center Representative determines additional SBA policies/procedures relevant to their contractual situation dictate a different approach.

PostedContracting354152/21/2011 12:59 PM
35,415
System Account
107815
  
dapmembers:drobinson12/7/2010
7410
In a construction contract, can Government owned furniture be dissambeled, moved, stored and reassembled at the conclusion of a government building renovation?
We have an issue of moving/storing furniture as required to renovate a facility.  Our DOL is doing a good job sorting the good/bad furniture and inventorying the good.  Units are disposing of the bad.  The DPW suggested that we be allowed to include movement and storage of the good furniture as an incidental part of our construction contracts.

Yes, you can include this into a construction contract.  You may need to look to see if your color money allocated can be used.  You will need to check with you comptroller to ensure it can be used for this case.

PostedContracting, Contracting_Architect-Engineer and Construction Contracting354122/21/2011 12:59 PM
35,412
System Account
107804
  
dapmembers:drobinson12/27/2010
7411
Since both the DFARs clause and the contract mod will be on contract, which one should be followed? In other words, can a DFARs clause be superceeded by contract direction?
The current contract has DFARs clause 252.234-7002 Earned Value Management and the CPR CDRL/DID. These two sections require the contractor to report on the CPR the full contract value. The program office would like to release a contract modification which instructs the contractor to only report a fraction of the contract value. The fraction corrosponds to the likely total funded amount. The instructions in the contract modification would be in direct contradiction to the DFAR clause.

<p>FAR52.215-8 Order of Prcedence -- Uniform Contract Format is also on the contract. This clause would seem to indicate that "Representations and other insturctions" trumps "Contract Clauses."
You have raised a couple of issues in your question.  First, let me address the FAR 52.215-8 Order of Precedence clause.  That clause is placed in a solicitation or contract to deal with any unknown conflicts (ambiguities) contained within the solicitation or the contract document.  You should never deliberately create an ambiguity in the contract and then seek relief by invoking the Order of Precedence clause; do not create an ambiguity on purpose.
 
Your main issue is to only partially implement the DFAR 252.234-7002 Earned Value Management (EVM) clause to just the fractional portion of the contract that has been funded.  This action would skew the EVM report and would create a false report.  The EVM procedures and the Contractor Performance Report (CPR) formats allow for the situation of an incrementally funded contract while reporting against the total contract amount.  If you were to implement this fractional reporting then you would need to adjust each time additional incremental funding is added to the contract thereby creating many differing baselines for the CPR.  I assume that you would be adjusting the Performance Measurement Baseline (PMB) each time you add funding to the contract as well.  You did not describe your plans for adjusting the Integrated Master Schedule (IMS) and the Integrated Master Plan (IMP) so that each would correspond to the fraction CPR.
 
Lastly, this action may be costly to implement depending on the contractor’s EVM reporting system; can it accommodate easily to this fractional reporting methodology?  Additional detailed information can be found in the Defense Acquisition Guidebook (DAG) in Chapter 11 at paragraph 11.3.  You should consult with your organization’s EVM expert before undertaking this approach. 
 
The DAG can be found at:  https://acc.dau.mil/CommunityBrowser.aspx?id=325262&lang=en-US

PostedContracting354142/21/2011 12:59 PM
35,414
System Account
107819
  
dapmembers:drobinson11/24/2010
7412
Can the Prime contractor charge G&A for a sun-contracted work even if the Prime did not do any effort except letting the sub-contractor do all of the work?
Cost with Incentive Fee/Award Fee contract

There are several types of G&A allocation. One common method is Value-Add where the contractor will not include material and subcontracted work in their allocation base when calculating G&A. This type of allocation is typically seen where subcontract and material costs are very high. Another common type is total cost input, where material and subcontracted work is included in the base for calculation of G&A. These are accounting practices that are typically audited and disclosed by the contractor. The government may not force a contractor to use value add if their accounting system is set up on a total cost input accounting system.

However, in accordance with FAR 52.215-22 and 52.215-23, when proposing costs for contracts exceeding the TINA threshold, a contractor must demonstrate their value add when subcontracted work exceeds 70%. The contractor must identify the amount of indirect costs and profit/fee applicable to the work to be performed by the subcontractor(s). If the Contracting Officer determines that these charges are excessive (adding no or negligible value), the excessive pass-through charges are unallowable and the government shall be entitled to a price reduction for the amount of the excessive pass-through charges. Please review the previously mentioned clauses for firm fixed price contracts and DOD specific guidance.

PostedContracting354132/21/2011 12:59 PM
35,413
System Account
107832
  
dapmembers:drobinson12/1/2010
7413
If a CE customer would like to have additional work done to the runway your contractor is constructing; how do I proceed?

You have asked a very broad, general question.  To start, please review FAR

36 for Construction and 43 for Modifications.  There are so many particulars to any project modification, without knowing where you are in this project and all the corresponding facts, we cannot accurately advise you with only this short sentence provided.  Suggest you contact your Contracting Officer or Agency Head while you are reviewing the FAR sections.  Also suggest you sign up for CON 244, Construction Contracting.

 

If you provide more particulars, we can further surmise better your situation.

PostedContracting, Contracting_Architect-Engineer and Construction Contracting354182/21/2011 12:59 PM
35,418
System Account
107615
  
dapmembers:vaswanso1/19/2011
7414
Since Small Businesses are CAS exempt, how can an agency go into Cost-Reimbursement type contract when FAR 16.301-3 limits such contract to contractor with adequate accounting system?
We are soliciting 100% set-aside IDIQ contract with CPFF sample task order.  The contract value is set at above $50 million. 
The following response is based solely on the question and background information provided. As we do not have all of the facts particular to your contract, program, and situation, we recommend you consult your Contracting Officer and Legal Office for specific guidance.
 
Even if not subject to CAS, the contractor's accounting system must be deemed adequate to support cost-type contracts.
 
Reference FAR 16.104(h): Adequacy of the contractor’s  accounting system. Before agreeing on a contract type other than firm-fixed-price, the contracting officer shall ensure that the contractor’s  accounting system  will permit timely development of all necessary cost data in the form required by the proposed contract type. This factor may be critical when the contract type requires price revision while performance is in progress, or when a cost-reimbursement contract is being considered and all current or past experience with the contractor has been on a fixed-price basis.

PostedContracting, Contracting_Small Business353902/21/2011 12:59 PM
35,390
System Account
107678
  
dapmembers:drobinson11/23/2010
7415
Could you please provide clarification on how the Oct-1-10 revision to the FAR 15.403-1(c)(3)(iii) impacts a sole-sourced solicitation in excess of the simplified acquisition threshold for a purported "commercial" item (a commercial item requiring minor modifications for a military application) that is funded by the DOD? The Oct-1-10 revised FAR 15.403-1(c)(3)(iii)(C)states, "For acquisitions funded by DoD, NASA, or Coast Guard such modifications of a commercial item are not exempt from the requirement for submission of certified cost or pricing data on the basis of the exemption provided for at FAR 15.403-1(c)(3) if the total price of all such modifications under a particular contract action exceeds the greater of the threshold for obtaining certified cost or pricing data in 15.403-4 or 5 percent of the total price of the contract at the time of contract award." Does this revision to the FAR, allow for requiring a contractor to provide "certified cost or pricing data" in connection with sole-sourced solicitations in excess of the simplified acquisition threshold for a purported "commercial" item (a commercial item requiring minor modifications for a military application) that is funded by the DOD?
Clarification and interpretation to the Oct-1-10 Revision to the FAR; Definition of Cost or Pricing Data. Specifically the revision to FAR 15.403-1(c)(3)(iii)

Acquisitions funded by DoD, NASA or the Coast Guard have more stringent requirements than other agencies and such modifications of a commercial item are not exempt from the requirement for submission of certified cost or pricing data on the basis of the exemption provided for at FAR 15.403-1(c)(3) - Commercial items.

If the total price of all such modifications under a particular contract action exceed the "greater" of the $700,000 threshold for obtaining certified cost or pricing data in 15.403-4 or 5 percent of the total price of the contract at the time of contract award, then certified cost or pricing data is required. The FAR doesn't reference in excess of the simplified acquisition threshold of $150,000 to meet the certification requirement.

PostedContracting354012/21/2011 12:59 PM
35,401
System Account
107749
  
dapmembers:drobinson12/2/2010
7416
What is the process for NAF construction project over $1M.
NAF Pr for renovation of Golf Course Greens over $1M.  There is no guidance anywhere

By Googling NAF Contracting you will discover the Army and Air Force have regulatory guides for doing NAF contracting.  When I worked with MWR on their construction projects we either tailored a FAR approach or used a UCC vehicle.

Please investigate both the Army and AF's guides for further prescriptions.  Also remember to include your Agency Head in all approaches.

PostedContracting, Contracting_Architect-Engineer and Construction Contracting354032/21/2011 12:59 PM
35,403
System Account
107825
  
dapmembers:drobinson11/24/2010
7417
Can a contract be reinstated once it has been terminated? Also can a contract be reinstated if the period of performance has passed?
Due to budget cuts, the  customer let all but one of their contracts lapse.  Now they want to resurrect one of the contracts.  Since this was not terminated for convenience, would like to reinstate it.

Question 1:  Can a contract be reinstated once it has been terminated?

 

Response:    Yes, pursuant to FAR 49.102(d). 

 

(d) Reinstatement of terminated contracts. Upon written consent of the contractor, the contracting office may reinstate the terminated portion of a contract in whole or in part by amending the notice of termination if it has been determined in writing that –

 

      (1) Circumstances clearly indicate a requirement for the terminated items; and

      (2) Reinstatement is advantageous to the Government.

 

Pursuant to this FAR reference, the contracting officer should document the rationale for reinstating the contract, to establish a compelling case how the reinstatement is advantageous to the Government.  I recommend reviewing your agency's FAR Supplement, seeking local legal counsel before reinstating the contract.

 

Question 2:  Can a contract be reinstated if the period of performance has passed?

 

Response: Generally, no.  Once a contract has expired, there is no longer a contractual relationship.  Therefore, the authorities within the contract (such as the Changes Clause or Option to Extend the Term of the Contract Clause) typically used to extend the period of performance are no longer in effect.  Reinstating the contract would be beyond the scope or the original contract, and would essentially be a sole source award of a new contract.  Before pursuing this course of action, you must write a justification and obtain appropriate approvals (including legal counsel) in accordance with FAR Part 6. 

 

One course of action to consider in this situation: if you're facing immediate needs, quickly execute a sole-source contract pursuant to the authority of FAR 6.2 or 6.3 for the next 6 months.  In parallel, execute a competitive acquisition and award a contract for requirements beyond 6 months. 

PostedContracting354162/21/2011 12:59 PM
35,416
System Account
107834
  
dapmembers:drobinson12/7/2010
7418
Is this permissible or does he need to gain approval from both the Contracting Officer and the ACO which in this case is DCMA Should he be held to the terms of his original approved "Individual" Plan?
The contractor wants to switch from a submitted and approved "Individual" Subcontracting Plan to a newly approved commercial plan.  A large business was awarded a DoD contract and as a result submitted an "Individual" Subcontracting Plan.  That Plan was approved. I am now invoking the first option of that contract and the vendor wants to cancel his approved "Individual" Plan and substitute his "Commercial" Plan that was recently approved by the VA. 

There are three types of subcontracting plans individual, master and commercial under the Federal Acquisition Regulation (FAR) at FAR 19.701. The contractor has complied with the requirement for a subcontracting plan as you state that he has an individual plan that is approved. Under FAR 19.702, the contract only requires one subcontracting plan and the type of plan that is applicable is at the contracting officer’s discretion. I would conclude from the information you provided that the contractor needs the approval of the contracting officer as he is making the request as part of an option exercise, an action by the Contracting Officer not the ACO.

I would proceed with the exercise of the option as written citing the approved Individual Plan. If the Contracting Officer then wishes to move the contracted effort to the approved Commercial Plan, that should occur after the Option is exercised and once there has been an agreement on the appropriate amendment (if required) to the approved Commercial Subcontracting Plan. Since the Commercial Subcontracting Plan normally covers a fiscal year which may or may not coincide with the period of performance of the subject contract after the option is exercised.

I also recommend consulting your local Small Business Administration Administrator (SADBU) for assistance.

PostedContracting354192/21/2011 12:59 PM
35,419
System Account
107842
  
dapmembers:drobinson11/29/2010
7419
Once all the depreciation has been fully billed and paid by the Government does ownership of the asset transfer to the Government? Or does the Government own the assset as soon as the contractor purchases it and starts using it to perform the contract?
In performing a cost type contract, the contractor is purchasing a capital asset. A depreciation schedule is being created for this asset and on a monthly basis, the Contractor will be billing the Government for the depreciation expense/costs. 

1. The following FAR references quoted in pertinent part are applicable to this response.

 

FAR 45.107(a)(1)..., the Contracting Officer shall insert the clause at 52.245-1, Government Property, in— (i) All cost reimbursement, time-and-material, and labor-hour type solicitations and contracts.

 

FAR 52.245-1 -- Government Property

 

(a)  Definitions. As used in this clause—

(b)   

“Contractor-acquired property” means property acquired, fabricated, or otherwise provided by the Contractor for performing a contract, and to which the Government has title.

 

“Government property” means all property owned or leased by the Government. Government property includes both Government-furnished and Contractor-acquired property. Government property includes material, equipment, special tooling, special test equipment, and real property.

 

(e) Title to Government property.

 

    (3) Title under Cost-Reimbursement or Time-and-Material Contracts or Cost-Reimbursable contract line items under Fixed-Price contracts.

 

  (ii) Title to all other property, the cost of which is reimbursable to the Contractor, shall pass to and vest in the Government upon—

 

            (A) Issuance of the property for use in contract performance;

            (B) Commencement of processing of the property for use in contract performance; or

            (C) Reimbursement of the cost of the property by the Government, whichever occurs first.

 

  (iii) All Government-furnished property and all property acquired by the Contractor, title to which vests in the Government under this paragraph (e)(3)(iii) (collectively referred to as “Government property)”, are subject to the provisions of this clause.

 

2. Because this is a cost type contract, we assume that pursuant to FAR 45.107(a)(1)(i), the contract contains the clause at FAR 52.245-1, Government Property. Based on the information provided in the Background statement, we also assume that the “depreciation expense” is being charged directly to the contract, as opposed to being charged as an indirect cost that is being allocated to two or more cost objectives (i.e., contracts).

 

3. In accordance with the terms and conditions of the contract, namely clause FAR 52.245-1, paragraph (e)(3)(ii)(A), the property in question (i.e., the capital asset) becomes Government-owned property as soon as the contractor starts using this asset to perform the contract.

 

PostedContracting354212/21/2011 12:59 PM
35,421
System Account
107767
  
dapmembers:drobinson12/1/2010
7420
Is a Consolidation Memo required for justification for the acquisition of replacement USACE AE IDIQ Contract Replacements?
We are in the process of replacing several Architect-Engineering Services IDIQ contracts resulting from lack of capacity available on those contracts. 

Not sure about the Consolidation memo as you do not suggest combining any of these in your question, but you will need to do either a D&F and/or J&A depending on how you approach replacing the expended capacity issue.  Please check with your Agency Head and Legal Counsel for your best approach also.

PostedContracting, Contracting_Architect-Engineer and Construction Contracting354072/21/2011 12:59 PM
35,407
System Account
107845
  
dapmembers:drobinson11/23/2010
7421
What compels the use of weighted inflation indices to estimate then-year dollar amounts for one-year appropriations (such as OMA)? Are there statutory or regulatory mandates?
This question came from someone preparing a life-cycle cost estimate.  My answer to them was that outlays for a one-year appropriation take place over several years, so that use of raw indices means one is likely to underinflate the dollar figures, therefore underestimate the dollar amount that would have to be appropriated.  The questioner is looking for a directive over and above the common-sense response consistent with guidance. 

Your common sense answer was absolutely correct and should have sufficed to assuage the questioner. However, since it did not, I am including three (3) sections from the DoD Inflation Handbook (prepared for the Office of the Secretary of Defense, Program Analysis and Evaluation in February 2006) that step through where the requirements for using the weighted indices come from:

3.1.1 Inflation Statistics

The Budget Enforcement Act requires that baseline estimates for discretionary accounts for all Federal departments and agencies be adjusted for inflation in two parts. Personnel and pay-related costs are adjusted by a factor that is related to the projected year-over-year increase in the U.S. Department of Labor’s Bureau of Labor Statistics' (BLS) Employment Cost Index (ECI) for wages and salaries of private sector employees – with adjustment for the annualization of the previous year's pay raise, and adjustment for changes in retirement and health insurance costs. Pay raises take effect on the first pay period after January 1

The non-pay portion of each account is adjusted by the projected increase in the chain-weighted price index for the Gross Domestic Product (GDP). Estimates of outlays for entitlement programs, like military retirement, are generally driven by demographic assumptions and cost-of-living adjustments (COLAs) triggered by projected increases in the Consumer Price Index (CPI).

The law does not specify what the President must propose, in the budget's policy estimates, for any given account. At the time the budget is submitted to Congress, prospective pay increases have generally not yet been enacted, so the Budget includes a projection. There may also be a Presidential proposal for the

Federal pay increases, and that would be reflected in the policy budget.

st of each year, whereas the inflation rates are calculated for the fiscal year. Inflation rates for pay are further broken down into military and civilian pay.

3.2 Office of the Under Secretary of Defense (Comptroller)

OMB provides direct and specific guidance for the inflation assumptions that should be used in preparing the DoD budget. There are assumptions for pay and benefits and oil prices, as well as general inflation assumptions. The DoD budget office is familiar with the OMB assumptions, and how they should be used in preparing budget estimates.

In late January or early February, the Office of the Under Secretary of Defense (OUSD), Comptroller, issues inflation guidance to all the departments within DoD to be used in the preparation of the PB for the upcoming fiscal year, as well as the Program Objective Memoranda (POM) for the year after that. The inflation guidance replaces the assumptions issued the previous year, and contains projections for eight non-pay inflation rates and three pay-related inflation rates covering the eight fiscal years beginning with the most recently concluded year. The non-pay inflation rates are: Procurement, RDT&E (Research, Development, Test and Evaluation), Military Construction, Operations & Maintenance (O&M, excluding fuel and DHP), Fuel, Military Personnel (non-pay), Defense Health Program (DHP), and CPI-U Medical (Urban CPI, Medical). The pay inflation rates are: ECI, Military Pay, and Civilian Pay.

3.5 Army

The Army issues guidance based on the OSD inflation memo. Action officers should use the inflation indices published by SAFM-BUC-F to compute inflation and real growth/spending for the nonpay portion of an appropriation. The official indices published by the SAFM-BUC-F are based on OSD-provided rates, which are averages for use in budget preparation. Inflation calculated with these indices may vary from the actual inflation experienced in many programs. However, at the appropriation or title level, official OSD inflation rates must be used for computing inflation in the budget even though the resulting amounts expended may be different.

Certain Procurement, RDTE, and MILCON contracts have built-in escalation clauses with rates that differ from the standard rates. In these cases, the actual contract rates should be used.

Indices applying specifically to the Army include: Procurement Appropriations (PAs), including indices for procurement of Aircraft (APA), Missiles (MIPA), Weapons and Tracked Combat Vehicles (WTCV),

Ammunition (AMMO), and Other Procurement, Army (OPA) system requirements. Operation and Maintenance, Army (OMA): These indices are for that portion of the OMA appropriation not covered by special guidance on pay raises; Army or Defense Working Capital Fund rates; Petroleum, Oil and Lubricant prices; and utilities. Military Construction, Army (MCA): These indices are for use in conjunction with local adjustment factors and guidance.

Summary

Suggestion: Take a look at the Army Cost Analysis Manual, section 3.4 Estimates in constant, current, and discounted dollars. In addition, reference the memo from Stephen T. Bagby (DASA-CE) that is the first worksheet of the Army’s 2010 Indices spreadsheet. Finally, if you have additional questions, I suggest you contact the office of the Director for Acquisition Costing, Office of the Deputy Assistant Secretary of the Army for Cost and Economics at 703-601-4185.

: The Budget Enforcement Act requires updates to estimates based on inflation and outlays. OMB provides inflation and outlay guidance to the agencies. DoD passes the inflation and outlay guidance to the services (the most current which came as the OSD Inflation Guidance-FY2011 President’s Budget, published 12/11/09). And finally, the services pass inflation and outlay guidance to their subordinate commands.

PostedBusiness, Business_Financial Management354222/21/2011 12:59 PM
35,422
System Account
107846
  
dapmembers:drobinson12/13/2010
7422
From your experience, do you know how other agencies are setting up their advance payment schedules?
My customer constantly wants to set up an advance invoice schedule that allows the recipient to invoice 12 months ahead.  I have not wanted to go beyond an advance invoice schedule of 6 months ahead due to DoDGARS 22.810 ( c) (2) (111): the recipient will not have excess cash on hand, based on expenditure patterns and 32.22 (b)(2) The timing amount and of cash advances shall be as close as is administratively feasible to the actual disbursements by the recipient... 

My customer desires this as it helps them reach their expenditures goals. 

Based on my experience, I observed many agencies that included 12 months advance payment schedules in their grants. In making the decision to allow for advance payments federal personnel would ascertain that the timing and amount of cash advances would be as close as is administratively feasible to the actual disbursements by the recipient organization (see 33.22). Further, be reminded that recipients receiving advance payments for grants must adhere to the DoDGARs 32.22(K)(2) which governs interest on advance payments.

If additional information is need please contact me directly.

Respectfully,

Lee Washington, CFCM

Professor of Contract Management

Defense Acquisition University

33000 Nixie Way

San Diego, CA 92114-5117

(619) 524-4821

(619) 524-4827

lee.washington@dau.mil

PostedContracting354232/21/2011 12:59 PM
35,423
System Account
107847
  
dapmembers:drobinson12/9/2010
7423
My first question is are we in violation of Bona-Fide need? The way I understand it we are, and if so how does that impact this contract. Second question; is the SBA required to find us a replacement contractor if we terminate for default? (since technically we have a contract with the 8(a) contractor through the SBA) Third question: What happens to the ARRA funds if we do terminate this contract?
This project was awarded Sept 30,2009.  There were 5 work items on the award with two of the items being ARRA funded.  The first issue with the contract is there is no evidence in the file that anything was done until Mid January 2010. The other issue is that contractor has yet to finish the project and had barely begun work on the project until a couple of weeks before the completion date.  Right now they are getting hammerred with LD s but still say the can finish the work even though they have not began work on the 2 items that are ARRA funded.

I can't tell you if you have a bona fide need.  Is the project in question still needed?  Will the end product still be used?  Construction is not a supply or service that product can take over a year to finish and be in place.  If you still need the end product you still have a bona fide need.  This is a construction contract, so you should have a construction bonds on this.  If the contractor cannot execute you need to leverage the bonding company to finish out this project.

 

If you have questions on small business concerns, please to coordinate with you local Small Business rep for guidance, each office/agency have different goals and requirements.  ARRA funds expired on September 30, 2010.  This makes it last year's money, you will need to confirm with you comptroller on how you can still use this money.  You cannot use this money on new requirement.

 

PostedContracting, Contracting_Architect-Engineer and Construction Contracting354242/21/2011 12:59 PM
35,424
System Account
107848
  
dapmembers:drobinson11/30/2010
7424
Are KOs suppose to be negotiating NTE prices preaward?
I do FMS repair and was CCd in an email today from the country manager that caught me off guard.  "Please go back to contracting and ask them why the huge increase.  I assume they went to the DOP and asked for a NTE prcie without negotiating a reasonable repair price.  I understand they are tasked to do that.  I am asking that they negotiate a reasonable repair price".  This caught me off guard because I normally don't negotiate NTE unless it is during definitization.

Yes, contracting officers are supposed to negotiate NTE prices pre-award.  This is part of the contracting officer’s requirement to purchase supplies and services from responsible sources at fair and reasonable prices, FAR 15.402(a).

While much less certain than a Firm Fixed Price, a Not to Exceed (NTE) price is still a price.  It is the maximum price the contracting officer has determined to be fair and reasonable for the contract or contract line item. 

All estimates notwithstanding, the NTE price could be the price the government ends up paying on a given contract.  As such, the contracting officer’s signature on the contract is certifying the NTE price has been evaluated and a positive determination as to its fairness and reasonableness is made.  Please refer to FAR 15.402Pricing Policy, for a list of suggested techniques for making this determination.

PostedContracting354252/21/2011 12:59 PM
35,425
System Account
107854
  
dapmembers:drobinson11/22/2010
7425
What are the requirements for record retention for contract records and accounting records for these contracts?
We are moving and want to dispose of documents that we are not required to keep. 

The Government has specific rules and timeframes for records retention. The rules are found in the Federal Acquisition Regulation (FAR) under FAR 4.805 -- Storage, Handling, and Disposal of Contract Files. In addition, these rules are further modified under the Defense Federal Acquisition Regulation Supplement (DFARS) 204.805 -- Disposal of Contract Files.

These rules apply to the federal Government. You should check your internal company policies for the rules and timeframes for your records retention as they may differ. Your company counsel or tax reporting department may be the best source of this information.

PostedContracting354272/21/2011 12:59 PM
35,427
System Account
107865
  
dapmembers:drobinson12/7/2010
7426
Is my thinking on the right track? Or is the only true modification for construction a bona fide differing site condition?
For instance; I understand if I ordered 30 computers at $1,000 each and the supplier called me a week later and informed me of a unit price reduction to $800 each, I could not write a modification to increase the quantity of the original order even though the dollar amount would stay the same.  In accordance with the FAR that is out of scope.  However, with a construction contract where we are have a new restroom built and nobody thought to ask for or propose a hot water heater, we could consider that an in scope MOD and add the hot water heater because it is required for the restroom that also has three shower stalls.  Another example is a room in a building that we are making into a SCIF.  During the design phase neither the government nor the contractor thought to design a monitoring system or a door bell into the SCIF.  Only after having a SCIF expert inspect the project half way through were these items identified.  It could be considered in scope because without those items the room would not pass SCIF certification.  Whereas, if any changes to a construction project would be for an area outside of the immediate project, like add the same carpet in another room with no clear connection, would be considered out of scope. 

You are correct in your thinking.  A modification can happen at any time as long as it is within scope of the original scope of the project.

PostedContracting, Contracting_Architect-Engineer and Construction Contracting354262/21/2011 12:59 PM
35,426
System Account
107857
  
dapmembers:drobinson12/7/2010
7427
Can these two sections be read independently like that? Or 1) Does 52.249-6(d) apply to ALL inventory under the Termination; and 2) under 52.249-6(c)(6) Does the Contractor still have 120 days to prepare the inventory list and transfer that property?
I'm on a contract that was partially terminated for the convenience of the Government...As part of that Termination, the Government provided a list of Property that was to be transfered under 52.249-6(c)(6). They also indicated that 52-249-6(d) did NOT apply to the list of Property to be transferred under 52.249-6(c)(6), i.e., that listed property was to be transferred as of the day of Termination, and the remaining property fell under the 120 day provision.

I appreciate the question -- and surprisingly enough, your question has a very simple answer.

Within the Termination clause at FAR 52.249-6 -- Paragraphs (c)(6) and Paragraphs (d) MAY BE read as two separate requirements.

Under (c)(6) the Contracting Officer (CO) may already know that there is another Government requirement that can and may use certain items from within the Termination Inventory -- even BEFORE a Termination Inventory Schedule, the SF 1428, is submitted. This property may be Government Furnished Property (GFP) accountable under the terminated contract -- and as such the CO might have the original listing of the GFP that was provided.

While under (d) -- well, that would be all of the OTHER property -- technically TERMINATION INVENTORY, which includes GFP as well as Contractor acquired Property as defined in FAR 45.101 or the GP clause at FAR 52.245-1. And therefore, the clause allows you the 120 days to prepare and submit the SF 1428s.

Bottom line -- you must comply with the directions of the Contracting Officer regarding the Govenrment property. Second, for the OTHER property, NOT listed by the CO, you have 120 days to prepare and submit the Termination Inventory Schedules.

PostedIndustrial and Contract Property Management354282/21/2011 12:59 PM
35,428
System Account
107644
  
dapmembers:drobinson1/21/2011
7428
Do AE Task Orders require a Quality Assurance Surveillance Plan?
The point was brought up that AE Task Orders require a QASP.
Per FAR 36.101 - Applicability - it states the following:
(a) Construction and architect-engineer contracts are subject to the requirements in other parts of this regulation, which shall be followed when applicable.
(b) When a requirement in this part is inconsistent with a requirement in another part of this regulation, this Part 36 shall take precedence if the acquisition of construction or architect-engineer services is involved.
 
Additionally there is a clause in FAR Part 52 referencing Work Oversight in Architect-Engineer Contracts , FAR 52-236-24The extent and character of the work to be done by the Contractor shall be subject to the general oversight, supervision, direction, control, and approval of the Contracting Officer.
 
You find information on Quality Assurance in FAR Part 46.  There is nothing there that conflicts with FAR Part 36. While it may not be the norm to have a QASP for an A/E contract or task order, there is nothing that prevents the contracting officer or the agency from requiring one to be established.

PostedContracting, Production, Quality, and Manufacturing, Production, Quality, and Manufacturing_Quality Assurance353932/21/2011 12:59 PM
35,393
System Account
107496
  
dapmembers:drobinson12/7/2010
7429
Can you use expiring funds to forward fund a yearly contract? For example if funds are expiring at the end of the year, can you use those expiring dollars to fund a contract with a PoP of the next fiscal year? Will this violate appropriation law?
This is an internal service order agreement between two departments of the FAA that renews yearly.

Indeed, forward funding is a violation of the time statute in which you are obligating in advance of need.  The Bona Fide need rule comes into question.

 

In addition, expired funds cannot be used for any new work or obligations efforts; but are acceptable to use to modify existing contract vehicles.

 

Please keep in mind that this response is from a Department of Defense point of view, and may be different than your agency.  Please contact your local comptroller and fiscal law attorney for further guidance.

PostedBusiness, Business_Financial Management353632/21/2011 12:59 PM
35,363
System Account
107866
  
dapmembers:drobinson11/29/2010
7430
Can this servicememnber be signing the DD Forms 836 or 2890 for ammunition cargo movements?
I have an Army SFC Reserve service member that recently changed his MOS to 89B and attended the A-NOC and B-NOC training at Redstone.  He states that the Army (or DAC) rendered training either thru AMMO-37 or other refresher trng method/course that meets 4500.9R and 49CFR requirements to certify HAZMAT cargo for shipments (sign the Form 836 or 2890).  No completion certificate was issued.  His previous AMMO-62 Certification has expired over two years ago. I am unaware of any such trng that can be accomplished for AMMO-62 certification, especially an on-line course. 

HAZMAT certification training sessions (initial cert or refresher) are not given during ANOC or BNOC.  The only HAZMAT certification recognized by DOD is that which is offered from DAC, the Air Force's 345th Training Group or the Navy's Supply Corp School.  The schools and actual courses are listed in DOD Regulation 4500.9-R, Chapter 204, Para D. 

 

DACs courses are:

AMMO-62 for initial certification and AMMO-37-DL is the refresher training.  AMMO-37-DL is now an online course that can be taken on the web.

PostedOther, Other_Ammunition354292/21/2011 12:59 PM
35,429
System Account
107867
  
dapmembers:drobinson11/30/2010
7431
Are these same services available to the Prime s subcontractors if they have these services established within their personal living quarters?
The PWS allows the contractor certain government furnished servies i.e. lunch at the dinning facilities, access to PX/BX, etc.  Please note that I am in a contingency environment.

Generally, because there is no privity of contract between the Government and the subcontractors, the Government does not extend those types of services to the subcontractors.

If there is a legitimate reason why the Government should provide those services (middle of a war zone?), the subcontractors may want to request (through the prime) that the services be provided, and offer some sort of consideration for the Government to do so.

PostedContracting354302/21/2011 12:59 PM
35,430
System Account
107868
  
dapmembers:drobinson11/23/2010
7432
We request your assistance to make sure we are correct.
I need some clarification/validation regarding what fiscal year we should use to pay termination fees on a contract.  The contract was originally obligated using FY09 funds.  The contract was terminated in FY10 & the final fees have finally been negotiated.  We believe we would be wrong to use the FY09 funds because the termination was not identified until February 2010.  As far as we can determine, the termination does not meet the "Bona Fide Need" rules to use the FY09 funds.  We believe because of the final termination date we need to use the FY10 funds. 

Unfortunately, your Background does not give all of the information that I would like in order to answer your question with extreme granularity. What type of contract was it?  What was being procured?  Was it a product or a service?  Why was termination required?  Was the termination for cause or for the convenience of the government?  Were FY09 funds the only year of funds obligated?  What appropriation were the FY09 funds?  Given that we do not have all of the details, let’s see if we can use some general ideas to draw any conclusions!

First, we can look at FAR Part 49 and DFARS Part 249 for clues, since these sections deal with terminations. Unfortunately, they do not specifically address either the funding requirement or if the termination can be considered as its own “Bona Fide Need.”

Next, we can see if there are any financial management resources that can add clarity.  I found that BCF 103 (Fundamentals of Business Financial Management), a DAU on-line course, has the following regarding how to handle potential termination liabilities and three (3) contract clauses that can be used based on the situation and contract type:

Termination liability is the amount for which the government has a legal responsibility (i.e., liable) to pay the contractor in the event the government terminates the contract for convenience prior to contract completion. In preparing program budgets, DoD Components may elect to either fund or manage their termination liabilities.

Funding Termination Liability

Funding termination liability requires the program to budget an amount sufficient to permit the contractor to perform work through the end of the budget year and to cover termination costs that would be incurred if the contract were to be terminated at the end of the budget year.

Managing Termination Liability

In many cases, Components cannot afford to tie up funds in anticipation of a termination, which may never occur. Therefore, programs usually budget only for the contractor's work through the end of the fiscal year. This is the amount obligated on the contract. The program manages the termination liability by making any termination decision early enough to permit termination costs to be covered by the existing contract funds. One method to better manage termination liability is achieved by including specific clauses in the contract requiring the contractor to notify the government when costs incurred on the contract have reached a specified percentage of funds that have been obligated.

The Limitation of Cost (LOC) clause applies to cost type contracts where the total price or last increment of funding is obligated on upon signing. This typically applies when total or remaining contract performance is 12 months or less duration. Basically, this clause requires the contractor to provide notice to the government 60 days before the contractor expects to have incurred costs equal to 75% of the estimated cost specified in the contract.

Under the LOC clause, the government is not required to reimburse the contractor for costs incurred that exceed the estimated cost specified in the contract. Similarly, the contractor is not required to continue performance when it would exceed the amount obligated in the contract unless informed in writing that the estimated cost has been increased.

The Limitation of Funds (LOF) clause applies to cost type contracts where the entire contract amount is not obligated upon contract signing, but where funds are obligated in increments according to milestones or an allotment schedule in the contract

This clause requires the contractor to provide notice to the government 60 days before the contractor expects to have incurred costs equal to 75% of the estimated cost specified in the contract. With this notice, the government can decide whether to continue obligating funds on the allotment schedule, obligate additional funds, or terminate the contract and cover termination costs with the funds remaining. The government is not obligated to reimburse the contractor for costs incurred that exceed the estimated cost specified in the contract. Similarly, the contractor is not required to continue performance when it would exceed the estimated cost specified in the contract.

The Limitation of Government's Obligation (LOGO) clause applies to fixed price contracts where the entire contract amount is not obligated upon contract signing, but where funds are obligated in increments according to milestones or an allotment schedule in the contract.

Basically, this clause requires the contractor to provide notice to the government 90 days before the contractor expects to reach a point where the total amount payable by the government, including any termination costs, will approximate 85% of the funds allotted to date on the contract.

The contractor must also provide the government with an estimate of any additional funding needed to continue performance up to the next scheduled allotment date. The contractor agrees to perform up to the point where the total amount payable by the government, including any costs for termination, approximates the total amount currently allotted to the contract. The government is not obligated to reimburse the contractor in excess of the allotted amount.

Finally, we can explore the “Bona Fide Need” Rule for any help. Section 1502(a) of Title 31, U.S. Code requires that appropriated funds be used only to obtain:

  • Goods for which a bona fide need arises during the period of the appropriation’s availability for obligation.
  • Services which are performed during the period of the appropriation’s availability for obligation.  In other words, activities may only use funds available for obligation at the time that the need arises.

The definition of when a bona fide need arises depends on the government’s requirements and the nature of the product or service to be acquired.  Appropriations which are available for more than one year (such as RDT&E, Procurement and MILCON) may be used to finance goods and services for which a bona fide need exists during any year of the appropriation’s availability. For example, FY09 Procurement funds are available during FY09, FY10 and FY11 and may therefore be used for bona fide needs arising in FY10. However, while this is legal, individual DoD Component Comptrollers may be more restrictive, only allowing multiple-year appropriations to be used to finance those bona fide needs that arise during the first year of the appropriation’s availability.

The drawback is that none of these references specifically address your question.  Therefore, we are forced to use a reasoned approach to get an answer.  I would argue that it would be most appropriate to use a “but for” methodology to determine if the contract termination in question is, or is not, a bona fide need of FY09.  That approach would go something like this: But for the FY09 funded requirement, there would have been no contract and thus no need for a contract termination. Given the “but for” method, it would not matter when the termination was identified or when the final termination fees were negotiated.

Summary:  Not knowing as many of the details as I would like, I would posit that using the FY09 funds would be the correct way to go to pay for the termination fees.  It seems that there is a pretty clear ability to tie the need for the termination to the FY09 bona fide need that was originally put on contract.  

Suggestion:  Each DoD Component has a slightly different policy regarding implementation of the Bona Fide Need Rule.  Since your email address indicates that you are assigned to an Army organization, I most strongly recommend that you contact your local Army comptroller organization for more information and their policy interpretation of this issue.  In addition, I equally strongly recommend that you seek the advice of legal counsel for their determination on this issue.

 
PostedContracting354312/21/2011 12:59 PM
35,431
System Account
107896
  
dapmembers:drobinson11/30/2010
7433
Would we open up to protest putting that much on option rather than recompeting it as its own work? Any rules say we cant do this?
We want to award a contract with mostly 3080, rouhgly totally $8m. we want to put options on the contract that would total about $20m.

No, there are no rules against it. Several cautions however:

1. Since the options are 60% of the contract value, you will need to evaluate the option price as part of the award decision.

2. You cannot include this large option unless there is some reasonable degree of confidence it will be exercised.

I recommend you review the FAR coverage on options in FAR Part 17.

PostedContracting354332/21/2011 12:59 PM
35,433
System Account
107881
  
dapmembers:drobinson11/30/2010
7434
What is required since this Georgia facility is not an approved facility?
I have a requirements contract (1 year basic & 4 options) that has clause 52.209-1 qualification requirements. The contractor has stated they are closing their Dallas facility which was approved for this contract & moving to a Georgia facility.

As stated in the mentioned clause paragraph (f), any change in location of the plant where a previously qualified product or service was manufactured, manufacturer or source, requires reevaluation of the qualification. You should immediately contact the cognizant qualification organization to request a reevaluation so as to not impact performance under any existing or future orders under the requirements contract. This organization should be identified in the contract clause paragraph (b).

PostedContracting354322/21/2011 12:59 PM
35,432
System Account
107871
  
dapmembers:drobinson11/29/2010
7435
Without having to write a determination for each effort and submit for a waiver to SBA, what doctrine does the CONUS contracting office have to bypass the requirement for a SB set-aside and filing a 2579 for each OCONUS requirements?
The Small Business Specialist for the command has directed down policy for the use of small business (SB) set-asides for OCONUS requirements executed from a CONUS contracting office.  Although the CONUS shop is executing the contract stateside for the OCONUS work, the availability of a certified SB OCONUS is limited, if not scarce for the particuar countries.  FAR Part 19 excludes contracting offices OCONUS for service and/or supplies furnished, exempt of a 2579 and SB set-aside.  The Central Contractor Registry is a self certifying database and to have a foreign vendor list themselves as a SB and the contracting office to validate, would involve detailed research which entails a large amount of time, which is limited in some procurements.
If the work is to be performed OCONUS all of part 19, except 19.6, does not apply per 19.000(b).  The DD Form 2579 is not required for work performed OCONUS. Thus, if the work is to be performed in CONUS and if the Contracting Officer determined that IAW 19.502-2, total small business set-asides applies, then he/she shall set the work aside for small business and complete the DD Form 2579.  I do not know of any waivers to date issued by SBA regarding FAR 19.502-2.  DD Form 2579 shall not be prepared when the proposed contract:

  a. Will be awarded by Contracting Offices outside the United States, its possessions, and Puerto Rico;


  b. Is for:


  (1) The personal services of experts or consultants;


  (2) Electric power or energy, gas (natural or manufactured, water, or other utilities;


  (3) Perishable subsistence;


  (4) Items for resale in commissary stores;


  (5) Supplies developed and financed by Canadian sources under the US/Canadian Defense Development Sharing Program; or


  (6) Architect-Engineer services.


  (7) Procurement actions for the Small Business Innovative Research (SBIR) Program.


c. Will be a contract modification made pursuant to the terms of the existing contract;


  d. Includes data of a classified nature;


  e. Will be placed as an order:


  (1) Under an existing contract;


  (2) Under a mandatory Federal Supply Schedule Contract, or


  (3) Under a contract of another Military Department or Government Agency which is designated as a mandatory source of supply (e.g., Brand name Contracts, prison-made, and blind-made supplies); or


  f. Is for a DARPA requirement already reviewed by DARPA OSBP Office.

Other than what is stated above, the Contracting Officer does not have any right to bypass the requirement for a SB set-aside and filing a 2579.

I am not aware of a self-certifying foreign database like the Central Contractor Registry.
PostedContracting354342/21/2011 12:59 PM
35,434
System Account
107882
  
dapmembers:drobinson12/13/2010
7436
Is there a new link to the above forms?
Since the transference of AFMC FARS to IGs and MPs I have some new links but cannot find the link to the current UCI checklist nor 5301-90 Clearance reveiw forms.
PostedOther, Other_Acquisition Policy354352/21/2011 12:59 PM
35,435
System Account
107095
  
dapmembers:drobinson11/24/2010
7437
Can I formally use or take possesion of a contractors system prior to the Government accepting the system?
I have a IDIQ Task Order that is CPIF. We are about to go into testing of the system prior to acceptance, however we would like to use the system prior to acceptance while testing is in progress.
Looking at the definition of "Acceptance";  at FAR 46.101 http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/46.htm   tells us that "ownership" is contingent upon "acceptance.  Being that the Government does not yet own the system, it has no legal right to  use it. In addition, once the Government uses it, it has accepted it and would  have very limited rights to reject it. That being said, you may be able to  obtain contractor approval to use it via a signed agreement or contract  modification. If you decide to pursue that course, you would need to involve  your cognizant contracts attorney.
PostedContracting, Test and Evaluation353752/21/2011 12:59 PM
35,375
System Account
107908
  
dapmembers:ry1nik1/18/2011
7438
Please advise if there is any explanatory comments relating to these subsection blocks. Thank you.
Please advise the details behind PERFORMANCE RATINGS Block 9, Subsection a, b, c, d, e and f on USFK Form 173-R (SERVICE CONTRACTS). 
The sample Certificate of Service at this link provides explanatory comments for the five functions to be evaluated; see A) through E) on pages 1-2. Explanations for the ratings themselves (E, VG, S, etc.) are on the back side of the USFK Form 173-R itself.


PostedContracting354372/21/2011 12:59 PM
35,437
System Account
107910
  
dapmembers:drobinson11/23/2010
7439
They are telling us that when we MIPR them funds (any color) it becomes green with no time limits, etc. Who or what authories that to take place?
Being told by Hill AFB Logistics Group they can use any color of money to perform work.  Specifically, we are attempting to use FY10 & FY11 3080 and 3400 funds to get Software Upgrades through Hill AFB. 

There are two ways for a receiving organization to accept a MIPR, Cat I (Reimbursable) and Cat II (Direct). The Cat II (Direct) version means they directly use the originators (your) fund cite to pay for their efforts on your behalf. What appears to be happening in this case is they are accepting your original fund cites as Cat I (Reimbursable) and 'up-fronting' the money with their no-year/revolving WCF and then reimbursing their appropriation(s) with your original funds. This is the way Cat I works and in and of itself is no problem.

The big caution here is that the onus is on the originating organization sending that 3400 and 3080 money to make sure they are meeting all the legal requirements on the execution of that money (time, purpose, amount, bona fide need, etc...) In particular FY10 O&M (3400) monies are currently expired and NOT available for obligation.

PostedBusiness, Business_Financial Management354362/21/2011 12:59 PM
35,436
System Account
107920
  
dapmembers:drobinson12/17/2010
7440
The question is twofold. 1) What should the classification of a repairable item be? The items received in are not all up systems so it doesn t seem like they meet the equipment definition. If the repairable items received in were in a production environment they would be classified as material because they would be in process of going into a next higher assembly but since they are not in a production environment, would that alter their classification?
2) The second question pertains to classification being part of the record elements. Since classification is not listed as a required data element in 52.245-1, are contractors required to have it as a data element in their records? If not, what is the requirement for providing data by classification.
During a PMSA our PA requested a snapshot of all of our government property and wanted it broken down by classification. At some of our offsite facilities they use a single database to track their government property and provided the listing as requested. The listing however contained both material and reparables. When asked to separate their material and reparables into separate categories they stated that it would be a time consuming effort. Their material is furnished to them as well. Less then 1% is acquired.

After conversing with Repairables management subject matter experts, a contracts professor, the author of this Ask-A-Professor question and the Federal Acquisition Regulation (FAR) Part 52.245-1 regarding management of government property, the following response is submitted: 

 

1) The FAR does not specify the classification criteria of a repairable item -- in this case components/materials used to repair/assemble a Target Acquisition and Designation Sight/Pilot Night Vision Sensor (TADS/PNVS). FAR Part 52.245-1 provides a definition for material in that it "...means property that may be consumed or expended during the performance of a contract, including component parts of a higher assembly, or items that lose their individual identity through incorporation into an end-item..."

 

With regard to whether the material and/or Repairables having to be listed as a data element in your records, recommend consulting the contract, applicable Administrative Contracts Officer, Defense Contract Management Agency Rep, etc. for it is a matter that is beyond the purview of the AAP program.

 

PostedLife Cycle Logistics354402/21/2011 12:59 PM
35,440
System Account
107919
  
dapmembers:drobinson11/30/2010
7441
Does a new IDIQ minimum guarantee have to be established, and stated on the modification, for a one month extension under FAR 52.217-8? Or does the extension of services fall under the minimum guarantee and maximum ordering limit stated under the option period being extended? For example if the minimum guarantee for the second option period is $200,000, and that sum has been surpassed, is a minimum guarantee required for the one month period of the extension?
Due to an anticipated delay in a re-procurement, I am working on extending an IDIQ contract for one month under FAR52.217-8, Extension of Services.  The contract has two options; the contract is currently in the second option period. The second option period has a minimum guarantee and maximum ordering limit.

<p>FAR 52.217-8 states that the Government may require continued performance of any services within the limits and rates specified in the contract. I interpreted limits as including the minimum and maximum value already established for the second option period that is being extended. So a new IDIQ minimum guarantee would not need to be established for the one month extension. So if the minimum guarantee for the second option period is $200,000, and that sum has been met, a new guarantee is not required for the extension.

<p>FAR 16.504 (a)(1) The contract must require the Government to order and the contractor to furnish at least a stated minimum quantity of supplies or services. In addition, if ordered, the contract must furnish any additional quantities, not to exceed the stated maximum.

<p>FAR 52.217-8: The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months.

You are merely extending the current second option, so no new min/max need be established, nor is there any new minimum guaranteed order. All you are really doing is extending the terms of the current contract for up to six more months- in your case 1 month. So your period of performance changes- but nothing else.

PostedContracting354382/21/2011 12:59 PM
35,438
System Account
107922
  
dapmembers:gary.hagan1/18/2011
7442
Does the revised APB need to be completed prior to the ASARC? What is the process of completing the revised APB? What kind of coordination does the PM office need to do with your office? If that process hasn't started yet I want to get it jump started as quickly as possible.
My question revolves around the revised APB. 
AAP can only comment in general since the crux of the question appears directed at an Army staff element.  In general, if an APB must be revised, for whatever reason, the revised APB normally would be available, at least in final draft form, for a service level review like an ASARC.  The questioner must coordinate with his oversight chain to determine whether a final draft or an approved revised APB will be required for the review he mentions in the question.  We do not know why the APB needs to be revised. 

Was it a managment decision or a baseline breach? Assuming it was a baseline breach involving a Key Performance Parameter (KPP) or Key System Attribute (KSA) taken from the CDD or CPD, the program office may lead the effort, or not, but the Army user/user rep (Requirements Manager) must approve the proposed change to the KPP and the user/user rep must also change the CDD/CPD.  If it was a breach affecting cost or schedule items contained in the APB, the program office will also take the lead and coordinate the action with the user and Army oversight elements on the staff. 

Coordination of an APB usually requires at least one, and perhaps, several meetings with all affected parties (program office, user/user reps, e.g. TRADOC, oversight representatives (PEO and service staff) and test community) to agree on the changes and/or their affects on the program. 
PostedOther, Other_Acquisition Policy354392/21/2011 12:59 PM
35,439
System Account
107931
  
dapmembers:drobinson11/24/2010
7443
How much do they have to outsource?
The program is ACAT II and all funding is being sent from the Program office to a government research lab.

After speaking with the requestor and determining that the Government Lab identified in the question is not a Federally Funded Research and Development Center (FFRDC), a review of the applicable regulations (FAR, DFAR, DODI 5000.1, 5000.2 and OMB Circular A-76) and collaboration with Professors in the Contract Management and Program Management Departments leads to a conclusion that there is no Federal or DOD regulatory or policy requirement for a Government Laboratory (in this case, the Naval Research Laboratory) to outsource any of the required work/funding.

However, we recommend that the Contracting Officer give due diligence and consideration for competitive opportunities in support of the program. We also recommend a review of agency policy.

PostedContracting354422/21/2011 12:59 PM
35,442
System Account
107293
  
dapmembers:drobinson1/14/2011
7444
What type of funds should be used for this Trade Study - I am told to use Air Force 3010 Modification Program funds - but my understanding of full funding for 3010 and need to receive a useable asset - makes me think 3010 is not the type of funding to use for a Trade Study resulting in a White Paper
To fund a Trade Study To accomplish a trade study which assesses the contractor s potential for installing HH-60G production kits and producing associated HH-60G technical data for WR-ALC/GRUBB, Pave Hawk Section, Robins Air Force Base, Georgia.  Results shall be documented in a White Paper. 
We may not have enough information to provide a definitive answer, but in general a study of this type would be an expense.  Expenses are funded from operating funds or typically O&M. We do have a waiver from the OSD(C) investment/expense policy for limited circumstances, but nothing here would indicate the waiver would apply therefore this would be an O&M bill.  If there is still a question of whether 3010 funds can be use, recommend the issue be elevated to WR-ALC/FMA for resolution.
PostedProgram Management353602/21/2011 12:59 PM
35,360
System Account
107924
  
dapmembers:drobinson11/29/2010
7445
Can a EPA clause be incorporated into an BPA?
Inquiry from a field activity to utilize an EPA clause within a BPA.

Agencies can incorporate "local clauses" into Blanket Purchase Agreements (BPAs).  I assume you are referring to the Environmental Protection Agency when you say EPA.  You will want to tailor a "local EPA clause", if that clause is relevant to your procurement, before incorporating it into any BPA.

PostedContracting354462/21/2011 12:59 PM
35,446
System Account
107923
  
dapmembers:drobinson12/2/2010
7446
What are the environmental standard(s) that must be met when the Government (US) contracts for supplies purchased and used outside the United States?
FAR 23-25: Environmental Standards

1. The following FAR and DFARS references quoted in pertinent part are applicable to this response.

 

FAR 2.101 -- Definitions

 

“Outlying areas” means—

 

(1) Commonwealths: (i) Puerto Rico, (ii) The Northern Mariana Islands;

(2) Territories: (i) American Samoa, (ii) Guam, (iii) U.S. Virgin Islands; and

(3) Minor outlying islands: (i) Baker Island, (ii) Howland Island, (iii) Jarvis Island, (iv) Johnston Atoll, (v) Kingman Reef, (vi) Midway Islands, (vii) Navassa Island, (viii) Palmyra Atoll, (ix) Wake Atoll.

 

“United States” when used in a geographic sense, means the 50 States and the District of Columbia, except as follows: (1) For use in Subpart 3.10, se the definition at 3.1001, (2) For use in Subpart 22.8, see the definition at 22.801, (3) For use in Subpart 22.10, see the definition at 22.1001, (4) For use in Subpart 22.13, see the definition at 22.1301, (5) For use in Subpart 22.18, see the definition at 2.1801, (6) For use in Part 25, see the definition at 25.003, (7) For use in Part 27, see the definition at 27.001, [and] (8) For use in Subpart 47.4, see the definition at 47.401.

 

FAR Subpart 23.2 -- Energy and Water Efficiency and Renewable Energy FAR  23.200 – Scope. 

(b) This subpart applies to acquisitions in the United States and its outlying areas. Agencies conducting acquisitions outside of these areas must use their best efforts to comply with this subpart.

 

FAR 23.202Policy. The Government’s policy is to acquire supplies and services that promote energy and water efficiency, advance the use of renewable energy products, and help foster markets for emerging technologies. This policy extends to all acquisitions, including those below the simplified acquisition threshold.

 

FAR Subpart 23.3 -- Hazardous Material Identification and Material Safety Data FAR 23.301 – Definition. “Hazardous material” is defined in the latest version of Federal Standard No. 313.

 

FAR 23.303 -- Contract Clause

 

(a) The contracting officer shall insert the clause at 52.223-3, Hazardous Material Identification and Material Safety Data, in solicitations and contracts if the contract will require the delivery of hazardous materials as defined in 23.301.

 

DFARS 223.370 Safety Precautions for Ammunition and Explosives DFARS 223.370-1 Scope. (a) This section applies to all acquisitions involving the use of ammunition and explosives

 

DFARS 223.370-5 Contract clauses.  Use the clauses at 252.223-7002, Safety Precautions for Ammunition and Explosives, and 252.223-7003, Change in Place of Performance--Ammunition and Explosives, in all solicitations and contracts for acquisition to which this section applies.

 

FAR Subpart 23.4 -- Use of Recovered Materials FAR 23.400 -- Scope of Subpart

 

(a) The procedures in this subpart apply to all agency acquisitions of an Environmental Protection Agency (EPA) or United States Department of Agriculture (USDA)-designated item, if— (1) The price of the designated item exceeds $10,000; or (2) The aggregate amount paid for designated items, or for functionally equivalent designated items, in the preceding fiscal year was $10,000 or more.

 

FAR 23.401Definition. As used in this subpart—

 

(a) “EPA designated product” means a product that is or can be made with recovered material— (1) That is listed by EPA in a procurement guideline (40 CFR Part 247); and (2) For which EPA has provided purchasing recommendations in a related Recovered Materials Advisory Notice (RMAN).

(b) “USDA-designated item” means a generic grouping of products that are or can be made with biobased materials— (1) That is listed by USDA in a procurement guideline (7 CFR part 2902, subpart B); and (2) For which USDA has provided purchasing recommendations

 

FAR 23.404 – Agency Affirmative Procurement Programs

 

(a) An agency must establish an affirmative procurement program for EPA and USDA-designated items if the agency’s purchases of designated items exceed the threshold set forth in 23.400.

(b) Exemptions. [NOTE: the exemptions specified in FAR 23.404(b) do not exclude supplies that are purchased and used outside the United States]

 

FAR Subpart 23.6 -- Notice of Radioactive Material FAR 23.602 -- Contract Clause.

 

The contracting officer shall insert the clause at 52.223-7, Notice of Radioactive Materials, in solicitations and contracts for supplies which are, or which contain --

(a) radioactive material requiring specific licensing under regulations issued pursuant to the Atomic Energy Act of 1954; or

(b) radioactive material not requiring specific licensing in which the specific activity is greater than 0.002 microcuries per gram or the activity per item equals or exceeds 0.01 microcuries. Such supplies include, but are not limited to, aircraft, ammunition, missiles, vehicles, electronic tubes, instrument panel gauges, compasses and identification markers.

 

DFARS Subpart 223.8--Ozone-Depleting Substances DFARS 223.803 Policy.  No DoD contract may include a specification or standard that requires the use of a class I ozone-depleting substance or that can be met only through the use of such a substance unless the inclusion of the specification or standard is specifically authorized at a level no lower than a general or flag officer or a member of the Senior Executive Service of the requiring activity in accordance with Section 326, Pub. L. 102-484 (10 U.S.C. 2301 (repealed) note). This restriction is in addition to any imposed by the Clean Air Act and applies after June 1, 1993, to all DoD contracts, regardless of place of performance.

 

DFARS Subpart 223.72--Safeguarding Sensitive Conventional Arms, Ammunition, and Explosives DFARS 223.7201 Policy. (a) The requirements of DoD 5100.76-M, Physical Security of Sensitive Conventional Arms, Ammunition, and Explosives, shall be applied to contracts when-- (2) The principal development, production, manufacture, or purchase of AA&E [Arms, ammunition, and explosives] is for DoD use.

 

DFARS 223.7203 Contract clause. Use the clause at 252.223-7007, Safeguarding Sensitive Conventional Arms, Ammunition, and Explosives, in all solicitations and contracts to which DoD 5100.76-M applies, in accordance with the policy at 223.7201.

 

2. FAR Part 25, Foreign Acquisition, does not deal with “environmental standards” subject matter. Depending upon the nature of the particular supplies to be purchased, one or more of the environmental requirements and associated standards specified in FAR Part 23 and DFARS Part 223 as described above could be applicable to the acquisition of supplies purchased and used outside the United States.

 

PostedContracting354412/21/2011 12:59 PM
35,441
System Account
107939
  
dapmembers:drobinson11/22/2010
7447
What is the criteria to determine if an effort can be accomplished as a PIP?
We are planning to make changes to a rocket launcher - only changing two parts - from analog parts to digital.  It will be the same form, fit, and function, except that it is digial vice analog.  It effort is planned to increase launcher reliability and safety.  It will be an ECP to the existing launcher.  We want to make sure that our effort fits within the PIP criteria.  I was unable to locate any guidance regarding PIPs.  Any assistance you can provide would be greatly appreciated. 

Product Improvement Programs are varied and there is no standard definition as this term has been coined in the past as Pre-planned Product Improvement and more recently as Evolutionary Acquisition (increments and/or spirals for software).  A specific Navy reference that I discovered is found in OPNAVINST 8000.16C, Volume 3.  That instruction can be accessed on-line at:

http://doni.daps.dla.mil/_layouts/1033/searchresults.aspx

The specific reference is: OPNAVINST 8000.16C, Volume 3 Chapter 3.5, Product Improvement Program where the specifics on the contents of a PIP are outlined.  PIPs are also mentioned in other Volumes of OPNAVINST 8000.16C.  A full search of the complete instruction will reveal those references. 

Product Improvement Programs are tied into the DOD Financial Management Regulation (FMR) 7000.14R with specific discussion in Volume 15, Chapter 7 at Paragraph 070305.F.5:

“5.  Product Improvement is subdivided into six distinct types of effort:

 

(a) safety;

(b) cost reduction;

 (c) reliability, availability, and maintainability;

 (d) deficiency corrections;

 (e) compatibility standardization, and simplification; and (f) new or improved  operational capability.

 

Categories (a) through (e) are to be included in the end item nonrecurring production cost pool, even though a participating product improvement program has been established that pro rates annual cost of the program based upon worldwide asset position (both U.S. and foreign-owned end items). The DoD cost of category (f) shall be recovered as part of the selling price of a modification kit, if the kit is an MDE. Product improvement programs may be accomplished by contractors as an engineering change proposal (ECP), modification work order (MWO), or an in-house project.”

 

Please note that use of ECPs is specifically referenced in the DOD FMR above (bolding, underlining added for emphasis).

 

PostedOther, Other_Acquisition Policy354472/21/2011 12:59 PM
35,447
System Account
107935
  
dapmembers:drobinson11/29/2010
7448
What allows us to realign funding on contracts that are incrementally funded and/or ones that are fully funded?
I work with IDIQ contracts. When we award task orders off of them, they are oftentimes incrementaly funded.

The ability to realign funds on a contract is based on the requirement of the customer, and the availability of funds, not on a contract clause.  How contracts are funded, incremental or fully funded is based on funding policy and how funds are received from OPM.

 

Availability of Funds:

 

Congress establishes the time frame during which appropriations are current in the appropriation legislation.  This is usually 1 to 5 years, depending on the appropriation category. While an appropriation is current, it is available for new obligations. It may also be expended to liquidate obligations made against it.  Obligations against a current appropriation may be adjusted upward (as long as unobligated amounts are still available in the appropriation account) or downward. When an appropriation reaches the end of its legal time limit for new obligations, all unexpended balances in the appropriation are transferred to "expired" accounts where they remain for five years or until liquidated by expenditure.  An expired appropriation remains available for payments to liquidate obligations made while the appropriation was current and can be realigned on contract.

 

An expired appropriation cannot be used for new obligations, but remains available within-scope changes to work that was originally funded with the expired appropriation. Within-scope adjustments include charges for such items as contingent liabilities (for example, award fees and price inflation), claims, economic price adjustments, and settlements. Out-of-scope adjustments, that is, additions of work resulting in further billable costs (for example, quantity increases and increased levels of service) should be funded with an appropriation that is current at the time of the modification that incorporates the out-of-scope change.

 

Once an appropriation's five-year expired period ends, it loses its accounting identity and all remaining unexpended balances in the appropriation are cancelled (or closed) and cannot be realigned on a contract.

 

Funding Policy:

 

The rule governing the O&M appropriation is the annual funding policy.  Simply stated, the policy requires that you request only the dollars that you need to operate, maintain, or pay the forces in a given fiscal year.  The major exception to this policy is the statutory provision governing DoD financing of service contracts whose period of performance crosses fiscal years.  As long as these service contracts are 12 months or less in duration, DoD may fund the entire period of performance with funds available for obligation at the time of the contract award.  Since O&M funds are apportioned in increments, programs often funds their O&M contracts incrementally.

 

Full funding policy pertains to procurement and provides funding each fiscal year to procure a complete, usable end item. In other words, an end item budgeted in a fiscal year cannot depend upon a future year's funding to complete the procurement.  The full funding policy prevents the use of incremental funding, under which the cost of a weapon is divided into two or more annual portions. The policy means that DoD cannot contract for the

construction of a new piece of equipment until the entire cost of the item has

been approved by Congress. Sufficient funding must be available for a

complete, usable end item before a contract can be let for the production of

the item.  There are two exceptions to the full funding policy, but they will

not be addressed in this response since they are beyond the scope of the

question.

 

PostedContracting354432/21/2011 12:59 PM
35,443
System Account
107936
  
dapmembers:drobinson11/29/2010
7449
What criteria do we use to audit the contractor in the area of subcontract control?
Since there does not appear to be any ILPs or VCS for subcontractor control, are the GPAs expected to use the contractor s procedures and the limited information in 52.245-1 to perform the review.  It appears we are requiring the contractors to use standards that do not exist.  

In many ways this is an INTERESTING question!!!  In other ways, I am slightly disappointed – as I would expect that the Property folks out there understand the original constructs of the VCS/ILP requirement – but more importantly the underpinning requirements of SUBCONTRACTOR CONTROL.

 

You are correct – there is no specific VCS (To my knowledge) that addresses the Prime contractor management of its subcontractors while the sub is in possession of Government Property (GP) under its subcontracts.

 

Therefore, the contractor CANNOT apply a VCS to this process.

 

But, that DOES NOT alleviate them of their responsibility to manage the PROCESS.

So what CRITERIA should the contractor discuss in its Property Management System (And written procedures) and you use as your evaluative basis when performing a Property Management System Analysis/Audit?

 

Well, there is STILL a LOT of information embedded within the GP clause to serve as a basis for the CONTRACTOR’S APPLICATION and for YOUR AUDIT!

Let’s look at some of the requirements of FAR 52.245-1 and see their application to this audit process.

 

 

FAR 52.245-1 (b) Property management, states:

 

(1) The Contractor shall have a system to manage (control, use, preserve, protect, repair and maintain) Government property in its possession…. 

(2) The Contractor's responsibility extends from the initial acquisition and receipt of property, through stewardship, custody, and use until formally relieved of responsibility by authorized means, including delivery, consumption, expending, sale (as surplus property), or other disposition, or via a completed investigation, evaluation, and final determination for lost, stolen, damaged, or destroyed property. This requirement applies to all Government property under the Contractor's accountability, stewardship,

possession or control, including its vendors or subcontractors (see paragraph (f)(1)(v) of this clause).

(3) The Contractor shall include the requirements of this clause

in all subcontracts under which Government property is

acquired or furnished for subcontract performance.

 

 

So, within these first three paragraphs we see that the contractor is required to have a Property Management System (including WRITTEN PROCEDURES as well as a system to APPLY these procedures).   The second paragraph says that the “PRIME” contractor’s responsibility – includes applying a life cycle management approach, i.e., managing the GP from its acquisition through its disposition – INCLUDING that GP that the Prime has provided to the subcontractor.  Lastly in the third paragraph we see a REQUIREMENT that the PRIME contractor, “include the requirements of this clause

in all subcontracts under which Government property is acquired or furnished….”

 

So, what would I be looking for in performing an Audit of a Contractor’s Property Management System?

 

  1. Within the contractor’s Property Management System (PMS) is there a discussion of “Subcontractor Control or Management?”
  2. Within the contractor’s Property Management System (PMS) is there discussion of the WHO, WHAT, WHERE, WHEN, AND HOW the Prime contractor will accomplish these requirements?
  3. Within the contractor’s Property Management System (PMS) is there discussion of the “flow down” or the inclusion of the requirements of the GP clause – as applicable?  (More on this one later!)

 

So, right now I have three evaluative criteria – really three COLUMNS in an audit worksheet that can be evaluated and answered with references BACK to the Contractor’s PMS.  Keeping in mind that we haven’t even started looking at the Subcontract documents yet to verify that the PROCESS is actually working!  J

 

O.k., are there OTHER requirements for Subcontractor Management in the GP Clause?

Yes, there are!

 

In the GP, FAR 52.245-1 at paragraph (f) entitled

Contractor plans and systems we see a reiteration of the PMS requirement – but further expanded to call out the PROCESSES that the Government expects to see addressed  Under Paragraph (f)(1)(v) we see the requirement for,

 

(v) Subcontractor control.

(A) The Contractor shall award subcontracts that

clearly identify assets to be provided and shall ensure appropriate flow down of contract terms and conditions (e.g., extent of liability for loss, theft, damage or destruction of Government property).

 (B) The Contractor shall assure its subcontracts are properly administered and reviews are periodically performed to determine the adequacy of the subcontractor's property management system.

 

 

So in these two paragraphs we must again look at the contractor’s procedures to see how they have TOLD US they are going to accomplish this process.  So now I can look at the ACTUAL Purchase Orders or Subcontracts that included Government Property (My audit population – though not fully defined) with the intent of reviewing IF the contractor has ACTUALLY DONE what they said they were going to do!  For Example:

 

1.   Are the items of Government Furnished Property (GFP) provided to the subcontractor LISTED in the PO or Subcontract?

2.   Are the items that the Subcontractor authorized to acquire as CAP LISTED in the PO or Subcontract?  [Note – in this situation there may be a Cost Reimbursable line item – which would suffice, such that we know that WE, the Government, take title to those items under that CR CLIN.  Yes, I know there is a lot more detail that goes into this action – but that would take me five more pages to explain.]

3.   Are the Property Management System requirements flowed down in the PO or Subcontract – including the Process requirements of paragraph (f)?

4.   Is the APPROPRIATE LIABILITY provision, i.e., either Full or Limited risk of loss, flowed down within the PO or Subcontract?  [Note – this action is probably one of the most difficult actions to accomplish properly.]

5.   Are there disposition requirements flowed down in the PO or Subcontract – as the GP Clause requires Subs to report excess GP in accordance with very specific timeframes?  See FAR 52.245-1(j)(10).

 

So, it is at this stage that you are reviewing the ACTUAL PURCHASE ORDERS or SUBCONTRACTS to ensure that these ACTIONS/REQUIREMENTS have been accomplished in accordance with the GP CLAUSE as well as the Prime Contractor’s PMS.

 

Ahhhh, but there’s more!  How frequently is the Prime required to review or audit the Subcontractor? The clause requires “periodic” reviews to ensure that the SUBCONTRACTOR is managing the GP in its possession in accordance with the flowed down requirements of the GP clause.  So in my audit I should also be asking:

 

1.    Does the Prime Contractor’s Procedures specify the process of reviewing its Subcontractors?

2.    How frequently does the Prime review its subs?

a.    Is a Risk Management approach used?

b.    What are the variables contained within that risk management approach?

3.    Did the Prime contractor perform the review(s) as scheduled?

a.    Were these physical on-site visits?

b.    Were other methods used?  Letter, reports, listings.

4.    What evidence does the prime have to substantiate this review?  Worksheets, letters, reports, etc.

5.    Were there any corrective actions required for deficiencies?

6.    Was a corrective action plan generated and the corrective actions taken?

7.    What evidence substantiates that the corrective actions were taken?   Physical on-site visits, worksheets, letters, reports, etc.

 

Bottom line – what I have tried to help you as a Property Professional is to think through the PROCESS, i.e., Subcontractor Control.  Look at the Contractual Requirements – and then extrapolate WHAT is required in the way of PERFORMANCE/ACTION to actually ACCOMPLISH the task(s) on the part of the Prime Contractor that YOU would need to review and audit.  I could probably go on for a few more pages – engaging in this deep analysis – but I am sure that you now get the picture, and can go about expanding to provide COMPLETE COVERAGE in performing the task of auditing the Prime Contractor in the area of Subcontractor Control!

 

PostedIndustrial and Contract Property Management354452/21/2011 12:59 PM
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dapmembers:drobinson11/29/2010
7450
If under the $1.5M threshold who can/has to approve - "correct a deficiency that is life-threatening, health-threatening, or safety-threatening" can this simply be an assumption made in the contract? does the money have to be called out for this purpose before hand? does it help to be oco money?
We have never used 3300 before, and are really trying to get our security installation done with OM money. It is a AFI31-101 compliant security system for PL2.

From AFI 65-601 Vol 1:

 

"9.10. O&M Minor Construction. Use O&M to cover projects whose funded cost is $750,000 or less. O&M funds may be used to fund a minor construction project costing between $750,000 and $1,500,000 if the project is justified to correct a deficiency that is life, health or safety threatening (10 U.S.C. 2805). If the project will cost more than $750,000, submit it to HQ USAF for further processing as either an unspecified minor construction or MILCON project. You must use MILCON major or unspecified minor construction to reimburse the O&M type construction funds for expenses incurred to that date. Reference AFI 32-1032, Planning and Programming Appropriated Funded Maintenance, Repair, and Minor Construction Projects."

PostedOther, Other_Acquisition Policy354502/21/2011 12:59 PM
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dapmembers:drobinson11/22/2010
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My supervisor wants to know if OPA money can be used in this effort. I have not been able to find any clear guidance on this subject.
I have a SBIR Phase III effort that I am working on, They want to have  CPFF  IDIQ contract, the amount of the 5 year contract is about $19,000,000.00.  The Agency is having to do An Acqusition Plan, they have listed that OPA money would be used along with R&D and O&M.
There is no requirement that a cost reimbursement type contract be funded with a particular appropriation account. The appropriation account (or accounts) used to fund a contract is driven by the type of effort being performed under the contract, not the contract type. Normally, a cost reimbursement contract type is used for efforts that involve a relatively high level of risk. Thus, these type contracts are normally used for development of a weapon system or end item or other research and development type efforts. Accordingly, these contracts are typically funded with Research, Development, Test and Evaluation (RDT&E) appropriations.
You indicate that your contract will be funded with a combination of RDT&E, procurement and Operations and Maintenance (O&M) appropriations. This could very well be the appropriate way to fund different portions of the contracted effort. I recommend you consider the following to determine if the funding used and/or the proposed contract type is appropriate in your situation.
1) Are the different tasks under the contract appropriately funded with RDT&E, procurement and O&M? Particularly for the RDT&E and procurement portions, were funds requested in the President's Budget (i.e., specifically called out in the budget justification materials...P-forms and R-forms) and were funds subsequently appropriated for those purposes?
2) The general DoD policy for selecting contract types would lead you to use cost-reimbursement contracts sparingly, that is, only when there is a relatively high level of risk involved in the work being contracted. You should perhaps reconsider whether or not a cost reimbursement contract type is appropriate for all or portions of your effort. You may find, particularly for the procurement and O&M funded portions, that some type of fixed-price arrangement is more appropriate. Typically, efforts that are properly funded with O&M and procurement are inherently less risky (i.e., procuring or sustaining already developed or off-the-shelf type items).

PostedContracting353642/21/2011 12:59 PM
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dapmembers:drobinson11/23/2010
7452
Does FAR 19.1406 apply to a contractor that is making purchases on behalf of a Federal agency, in performance of a Federal contract?
FAR 19.1406 allows sole source procurements to Small Disadvantaged Veteran Owned Small Businesses (SDVOSB).  Certain critia called out in FAR 19.1406 has to be met for the sole source.  FAR 19.402 states that this subpart applies to Federal agencies that employ one or more contracting officers.

The set aside procedures in FAR Part 19 in general, and FAR 19.1406 <

http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/19.htm> in particular, are applicable to Government contracting officers only. I know of no statutory or other requirement for contractors to apply those procedures to subcontracts or when making any other purchases during performance a Government contract. Prime contractors are incentivized to make awards to small businesses by the statutory requirements of FAR 19.702 <http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/19.htm> , but those requirements do not require contractors to use "sole source" procedures to meet those requirements. For example, the clause at FAR 52.244-5 <http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/52_237.htm> directs contractors to employ competitive procedures when selecting subcontractors and suppliers— quite the opposite of sole source awards.
PostedContracting354532/21/2011 12:59 PM
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System Account
107942
  
dapmembers:drobinson12/1/2010
7453
Do we the Government pay the Architect Engineer Firm for their labor when they travel to the work site? Isn t it part of their overhead? Where in the regulations where we can/can not pay the contractor?
A-E negotiations (Travel).   A-E proposed (i.e.) 8 hours traveling from the US to Japan. (to/from)  This is not actually working.  The per diem while in Japan looks reasonable.

Please see the DPAP site (http://www.acq.osd.mil/dpap/cpf/index.html) and go to the Cost, Pricing & Finance section.  Select the Contract Pricing Reference Guide, then go to section 8.2.3 Analyzing Professional And Consultant Service Costs.

 

Normally, if the traveler's wages during travel are charged to an indirect labor account, the traveler's travel expenses are also charged as an indirect cost. If the traveler's wages during travel are charged direct to a contract, then the traveler's expenses for travel in connection with the contract are generally charged as a direct cost.

 

Please refer to DPAP, Contract Pricing Reference Guide, since depending on the Contractor's accounting system this will make the determine on how the travel labor hours get charged.

 

There are a couple of things to mention first in responding to your question.  Please note there are restrictions when it comes to performing A&E services in

Japan.  I'm assuming the contractor you are negotiating with is an American company.  Please be sure of this fact as the DFARS prevents contracting with foreign firms in Japan as a heads up.  See the two citations below from the

DFARS:

           

225.7015 Restriction on overseas architect-engineer services.  For restriction on award of architect-engineer contracts to be performed in Japan, in any North Atlantic Treaty Organization member country, or in countries bordering the Arabian Gulf, see 236.602-70.

 

236.602-70 Restriction on award of overseas architect-engineer contracts to foreign firms.

           

In accordance with Section 111 of Pub. L. 104-32 and similar sections in subsequent military construction appropriations acts, A-E contracts funded by military construction appropriations that are estimated to exceed $500,000 and are to be performed in Japan, in any North Atlantic Treaty Organization member country, or in countries bordering the Arabian Gulf, shall be awarded only to United States firms or to joint ventures of United States and host nation firms.

 

Yes, travel expenses from the U.S. to Japan are allowable. Here is the FAR reference DPAP cites in the Contract Pricing Guide as follows:

 

31.205-46 -- Travel Costs

31.205-46(a)(1) Costs for transportation, lodging, meals, and incidental expenses.

 

(1) Costs incurred by contractor personnel on official company business are allowable, subject to the limitations contained in this subsection. Costs for transportation may be based on mileage rates, actual costs incurred, or on a combination thereof, provided the method used results in a reasonable charge. Costs for lodging, meals, and incidental expenses may be based on per diem, actual expenses, or a combination thereof, provided the method used results in a reasonable charge.

(2) Except as provided in subparagraph (a)(3) of this subsection, costs incurred for lodging, meals, and incidental expenses (as defined in the regulations cited in (a)(2)(i) through (iii) of this subparagraph) shall be considered to be reasonable and allowable only to the extent that they do not exceed on a daily basis the maximum per diem rates in effect at the time of travel  as set forth in the

--

(iii)  Standardized Regulations (Government Civilians, Foreign Areas), Section 925, "Maximum Travel Per Diem Allowances for Foreign Areas," prescribed by the

Department of State, for travel in areas not covered in (a)(2)(i) and (ii)

of this subparagraph, available on a subscription basis from the --

     

Superintendent of Documents

U.S. Government Printing Office

Washington, DC 20402

Stock No.744-008-00000-0.

 

Additionally, the DFARS has a limitation on travel expenses in that those costs cannot exceed whatever expenses would be reasonably paid to a Government employee.  That DFARS citation is as follows:

                 

237.104(f)(i) Payment to each expert or consultant for personal services under 5 U.S.C. 3109 shall not exceed the highest rate fixed by the Classification Act Schedules for grade GS-15 (see 5 CFR 304.105(a)). 

 

(ii) The contract may provide for the same per diem and travel expenses authorized for a Government employee, including actual transportation and per diem in lieu of subsistence for travel between home or place of business and official duty station.

                                               

(iii) Coordinate with the civilian personnel office on benefits, taxes, personnel ceilings, and maintenance of records.

 

PostedContracting354482/21/2011 12:59 PM
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dapmembers:drobinson12/1/2010
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EP 415-1-260/6-4 b. states that the day following acknowledgement of the NTP by the KTR is considered the first day of the contract. FAR 52.211-10 was incorporated stating.."The Contractor shall be required to (a) Commence work under this contract within the number of days indicated on each Task Order after the date the Contractor receives the notice to proceed..." Since NTP affects CCD and LD s do we begin time with the Partial NTP acknowledgement or the final NTP acknowledgement?
A USACE construction contract (MATOC Task Order) for Design/Build and OMA funded was issued a Partial NTP to allow for administrative submissions - i.e., Plans, Schedule, etc. - the KO states that NTP to begin the actual contract time will be based on the final NTP when issued.

We have never experienced a Phased NTP.  Not sure why your project needs it.  Our NTPs always included the time needed for all project activities, with performance adjustments for various constraints calculated in the total.  The administration burden and possible legal ramifications for calculating when the NTP starts becomes precarious at best.  Suggest you check with your Agency Head and Legal Counsel for their guidance.

PostedContracting, Contracting_Architect-Engineer and Construction Contracting354492/21/2011 12:59 PM
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dapmembers:drobinson1/18/2011
7455
It is frustrating togettold a warning is this and then someone comes in and states no a warning is something different so Iam looking for guidance or standards.
I am on an ACAT 1a program and We are developing new Tech Manuals and training. I am trying to find direction on standardizing Warning's notes and cautions.

The following definitions of "WARNINGS, CAUTIONS, and NOTES" are listed in OPNAVINST 3710.7U of 23 Nov 09, Subject:  NAVAL AIR TRAINING AND OPERATING PROCEDURES STANDARDIZATION GENERAL FLIGHT AND OPERATING INSTRUCTIONS, Section 1.4 (visual excerpt attached):

 

      1.4 WARNINGS, CAUTIONS, AND NOTES

 

      The following definitions apply to WARNINGS, CAUTIONS, and Notes found throughout this instruction.

 

                               WARNING

 

                  Explanatory information about an operating

                  Procedure, practice, or condition, etc., that may

                  result in injury or death if not carefully

                  observed or followed.

 

                               CAUTION

 

                  Explanatory information about an operating

                  procedure, practice, or condition, etc., that may

                  result in damage to equipment if not carefully

                  observed or followed.

 

                                 Note

 

                  Explanatory information about an operating

                  procedure, practice, or condition, etc., that

                  must be emphasized.

PostedOther, Other_Acquisition Policy353682/21/2011 12:59 PM
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dapmembers:drobinson11/30/2010
7456
Once the unit appovse funding how is it processed? It is an option on our contract.
The program I work on provides instructor led training for a software solution at one facility.  On occasion we need to provide Mobile training teams. The requesting unit must provide funding.

The funds are sent on a funding document either directly to the contracting officer or to the contracting officer's supporting Resource Management (RM) office. If it goes to the RM office, they send a funding document to the contracting officer. Either way, once the contracting officer receives the funding document, she/he then has a contract modification created and issued which funds the effort.

PostedContracting354512/21/2011 12:59 PM
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dapmembers:drobinson11/30/2010
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My understanding of the law is that the contractor must comply with a new wage determination incorporated into the exercise of the option period effective with the date of the new option period. The contractor will not pay the updated wages until the contracting office finishes the wage adjustment modification. Is it not a violation of law if they don t start paying the new wages with the modification to exercise option which lists the new wage determination that is applicable to the option period? Some of the contractor employees have called the DOL and have been refered back to the contracting office??
Current wage determination incorporated into exercise of option modification. 

First wage determinations relate to both construction and services contracts.  I'm assuming you are talking about a wage determination on a service contract and you are ready to (or already have) exercised an option with a contract valued over the Simplified Acquisition Threshold.  The answer to your question is in the contract clause, 52.222-43, Fair Labor Standards Act and Service Contract Act- Price Adjustment.  This clause should be in your contract.  See paragraph (c) of 52.222-43.  It says that the wage determination " current on the anniversary date of a multiple year contract or the beginning of each renewal option period, shall apply to this contract."  So, I'm agreeing with you.  The new wage rate applies on the date of the option exercise.  Since the wage rates are on-line, I'm not sure why you do a separate wage-rate modification; you should just reference the DOL web-site when you do the option exercise. But since it wasn't done this way, you need to make it completely clear in your wage rate modification that the new wage rate is effective on the date of the option exercise.  Although I would check with your lawyer, I would agree that the contractor is in violation of the Service Contract Act (41 USC 351) if it does not pay it's employees the wage rate applicable at the option exercise.

 

 

As prescribed in 22.1006(c)(1), insert the following clause:

FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT—PRICE ADJUSTMENT (MULTIPLE YEAR AND OPTION CONTRACTS) (MAY 1989)

 

(a) This clause applies to both contracts subject to area prevailing wage determinations and contracts subject to collective bargaining agreements.

(b) The Contractor warrants that the prices in this contract do not include any allowance for any contingency to cover increased costs for which adjustment is provided under this clause.

(c) The wage determination, issued under the Service Contract Act of 1965, as amended, (41 U.S.C. 351, et seq.), by the Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, current on the anniversary date of a multiple year contract or the beginning of each renewal option period, shall apply to this contract.

 

If no such determination has been made applicable to this contract, then the Federal minimum wage as established by section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended, (29 U.S.C. 206) current on the anniversary date of a multiple year contract or the beginning of each renewal option period, shall apply to this contract.

 

(d) The contract price or contract unit price labor rates will be adjusted to reflect the Contractor’s actual increase or decrease in applicable wages and fringe benefits to the extent that the increase is made to comply with or the decrease is voluntarily made by the Contractor as a result of:

 

(1) The Department of Labor wage determination applicable on the anniversary date of the multiple year contract, or at the beginning of the renewal option period. For example, the prior year wage determination required a minimum wage rate of $4.00 per hour. The Contractor chose to pay $4.10. The new wage determination increases the minimum rate to $4.50 per hour. Even if the Contractor voluntarily increases the rate to $4.75 per hour, the allowable price adjustment is $.40 per hour;

(2) An increased or decreased wage determination otherwise applied to the contract by operation of law; or

(3) An amendment to the Fair Labor Standards Act of 1938 that is enacted after award of this contract, affects the minimum wage, and becomes applicable to this contract under law.

 

(e) Any adjustment will be limited to increases or decreases in wages and fringe benefits as described in paragraph (c) of this clause, and the accompanying increases or decreases in social security and unemployment taxes and workers’ compensation insurance, but shall not otherwise include any amount for general and administrative costs, overhead, or profit.

(f) The Contractor shall notify the Contracting Officer of any increase claimed under this clause within 30 days after receiving a new wage determination unless this notification period is extended in writing by the Contracting Officer. The

 

 

52.222-43 Fair Labor Standards Act and Service Contract Act—Price Adjustment (Multiple Year and Option Contracts).

As prescribed in 22.1006(c)(1), insert the following clause:

FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT—PRICE ADJUSTMENT (MULTIPLE YEAR AND OPTION CONTRACTS) (MAY 1989)

 

(a) This clause applies to both contracts subject to area prevailing wage determinations and contracts subject to collective bargaining agreements.

(b) The Contractor warrants that the prices in this contract do not include any allowance for any contingency to cover increased costs for which adjustment is provided under this clause.

(c) The wage determination, issued under the Service Contract Act of 1965, as amended, (41 U.S.C. 351, et seq.), by the Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, current on the anniversary date of a multiple year contract or the beginning of each renewal option period, shall apply to this contract.

 

If no such determination has been made applicable to this contract, then the Federal minimum wage as established by section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended, (29 U.S.C. 206) current on the anniversary date of a multiple year contract or the beginning of each renewal option period, shall apply to this contract.

 

(d) The contract price or contract unit price labor rates will be adjusted to reflect the Contractor’s actual increase or decrease in applicable wages and fringe benefits to the extent that the increase is made to comply with or the decrease is voluntarily made by the Contractor as a result of:

 

(1) The Department of Labor wage determination applicable on the anniversary date of the multiple year contract, or at the beginning of the renewal option period. For example, the prior year wage determination required a minimum wage rate of $4.00 per hour. The Contractor chose to pay $4.10. The new wage determination increases the minimum rate to $4.50 per hour. Even if the Contractor voluntarily increases the rate to $4.75 per hour, the allowable price adjustment is $.40 per hour;

(2) An increased or decreased wage determination otherwise applied to the contract by operation of law; or

(3) An amendment to the Fair Labor Standards Act of 1938 that is enacted after award of this contract, affects the minimum wage, and becomes applicable to this contract under law.

 

(e) Any adjustment will be limited to increases or decreases in wages and fringe benefits as described in paragraph (c) of this clause, and the accompanying increases or decreases in social security and unemployment taxes and workers’ compensation insurance, but shall not otherwise include any amount for general and administrative costs, overhead, or profit.

(f) The Contractor shall notify the Contracting Officer of any increase claimed under this clause within 30 days after receiving a new wage determination unless this notification period is extended in writing by the Contracting Officer. TheContractor shall promptly notify the Contracting Officer of any decrease under this clause, but nothing in the clause shall preclude the Government from asserting a claim within the period permitted by law. The notice shall contain a statement of the amount claimed and any relevant supporting data, including payroll records, that the Contracting Officer may reasonably require. Upon agreement of the parties, the contract price or contract unit price labor rates shall be modified in writing. The Contractor shall continue performance pending agreement on or determination of any such adjustment and its effective date.

(g) The Contracting Officer or an authorized representative shall have access to and the right to examine any directly pertinent books, documents, papers and records of the Contractor until the expiration of 3 years after final payment under

 

PostedContracting354522/21/2011 12:59 PM
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dapmembers:drobinson11/24/2010
7458
Can you please provide some insight as to how this would be accomplished in an effective manner?
My office is currently strategizing to move from a CPAF to a cost sharing type arrangement within a EMD acquisition program. 

Without any specific information, we can only provide you with general advice.  You will need to address any contractual issues with the current contract.  Is the contract ready to expire?  Are you terminating it?  Are you modifying a sole source contract?  I suggest you reference FAR 16.303 Cost-sharing contracts which states that a cost-sharing contract may be used when the contractor agrees to absorb a portion of the costs, in the expectation of substantial compensating benefits. 

 

Also the corresponding Limitations in FAR 16.301-3 need to be addressed: 

 

(a) A cost-reimbursement contract may be used only when

 

(1) The contractor’s accounting system is adequate for determining costs applicable to the contract; and

(2) Appropriate Government surveillance during performance will provide reasonable assurance that efficient methods and effective cost controls are used;

 

(b) The use of cost-reimbursement contracts is prohibited for the acquisition of commercial items (see Parts 2 and 12).

 

PostedContracting354542/21/2011 12:59 PM
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dapmembers:drobinson12/6/2010
7459
Does this case require a synopsis IAW FAR Part 5.201? It is my understanding this should be fall under the exceptions, IAW 5.202(3). Sincerely, KK
It is a FMS contract requirement.  The requirement contains signed LOA identifying a particular source to be the prime. 

Yes, that is the correct reference for not requiring a synopsis if the LOA has the source specified and we are going to use the FAR 6.303-4, International Agreement to exempt the competition requirement.

PostedContracting354572/21/2011 12:59 PM
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dapmembers:drobinson11/30/2010
7460
1. Please define what is considered "undue delay" when it comes to terminating a contract as it relates to the use of FY 09 funds. 2. Where can a legal definition of "undue delay" be found? 2. Can a Contracting Officer still use FY 09 funds if the contract was not "intentionally" terminated without undue delay? If yes, under what authority?
Contract awarded in July of 2009 (FY 09) for equipment.  Contractor filed a bid protest in Dec of 2010 (FY 10)and subsequently the Court of Federal Claims (CFC) dismissed the protest based on lack of subject matter jurisdiction, RCFC 12 (b)(1); mootness; corrective action. The contracting officers corrective action was to terminate the existing contract and reprocure a replacement contract, as an improper contract had been awarded.  The bid protest was dismissed by CFC in Jun 2010 (FY 10).  Prior to the dismissal of the bid protest the Contracting Officer requested and received approval to conduct market research only.  Upon approval of the dismissal the Contracting Officer commenced with the acquisition process of the replacement contract with the intent of using FY 09 funds.  The termination notice was not issue to the contractor until Nov 2010.  

Please see the end of the file at https://acc.dau.mil/CommunityBrowser.aspx?id=410042 for the GAO decision that authorizes use of expired funds in a terminated contract. Yes, you can still use the funds.

There is no universally recognized definition of "undue delay". This is a subjective call of the contracting officer, much like "adequate consideration" or "reasonable price.

PostedContracting354552/21/2011 12:59 PM
35,455
System Account
107966
  
dapmembers:dmcdonald1/21/2011
7461
Is there a history or use of this clause ("(h) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract") that would a contractor not want to accept it?
A contractor refuses to accept the following clause in negotiations: (h) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.
While not mandatory (and depending on the individual requirement), pursuant to FAR 46.703, warranties have been a common part of government contracts and private contracts, for that matter, throughout the history of contracting. The Uniform Commercial Code (UCC) (which has been adopted by all 50 states) generally applies to private (nongovernment) contracts.  Article 2 addresses warranties and states that the warranty applies to a merchant (a person who makes an occupation of selling things) who regularly deals in the type of merchandise sold. Under the UCC, two of the attributes of 'merchantable' are:
  1. The goods must conform to the standards of the trade as applicable to the contract for sale.
  2. They must fit for the purposes such goods are ordinarily used
Thus, if a private contract does not include a specific warranty, certain warranties including the warranty of merchantability will be "implied" to be a part of the contract.

The government, on the other hand, uses specific clauses in its contracts to impose and enforce warranties. When contracting under commercial procedures, the government inserts FAR clause 52.212-4.  The FAR explains that this clause includes terms and conditions which are, to the maximum extent practicable, consistent with customary commercial practices.  The clause states at (o) that "The Contractor warrantes and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract."

As you can see, this is a standard and universally accepted warranty in private contracts and "commercial" government contracts. Thus, the contrator shouldn't have a problem with this clause, since after all, it would apply in a private contract whether included or not (unless it was specificlly excluded with language such as "sold as is").  Recommend discussing this with your legal office for further analysis and recommendation.


PostedContracting, Contracting_Contract Law354582/21/2011 12:59 PM
35,458
System Account
107972
  
dapmembers:drobinson12/6/2010
7462
I am having a disagreement with a co-worker on the reason code in FPDS-NG "Exercise an Option". It is my understanding that what is meant is not just exercising an option period but also exercising pre priced option. So- therefore it should be used anytime you "exercise an option". My co-worker believes that the FPDS-NG code should be "Supplemental Agreement for work within scope" to match our eContracs and FIS code which would be SCPE-Scope, because our code OPTP-option period is used only to extend the contract period. Can you please shed some light on this?
As Far as I am aware these are the reason codes in FDPS-NG for Modifications and there are no further clarifications on the definitions of each code:
A Additional Work (new agreement, FAR part 6 applies)
B Supplemental Agreement for work within scope
C Funding Only Action
D Change Order
E Terminate for Default (complete or partial)
F Terminate for Convenience (complete or partial)
G Exercise an Option
H Definitize Letter Contract
J Novation Agreement
K Close Out
L Definitize Change Order
M Other Administrative Action
N Cancellation

I am unable to locate a definition of what is mean by Exercise an Option

The above link is from the Defense Procurement and Acquisition Policy (DPAP) website for the Federal Procurement Data System-Next Generation (FPDS-NG). This website has extensive information under the FAQ about what is appropriate to report under FPDS-NG.

You are required to report to FPDS-NG all contracts whose estimated value is $3,000 or more or that may be $3,000 or more. Additionally, every modification to that contract, regardless of dollar value must be reported to FPDS-NG. A modification to the contract is required when you exercise an option.

https://www.fpds.gov/wiki/index2.php/FPDS-NG_FAQ#What.E2.80.99s_reported_to_FPDS-NG.3F
PostedContracting354602/21/2011 12:59 PM
35,460
System Account
107967
  
dapmembers:drobinson12/1/2010
7463
1. Am I misinterpreting the FAR? 2. Is a QASP required for AE contract Task Orders, and if so would it only be over the SAT? 3. Is this going to be an agency policy?
Recently we have been told to complete Quality Assurance Surveillance Plans for AE Task Orders.  But the way I read FAR Part 37.102(a)(1)(i) we are not supposed to use performance based acquisition methods for AE services, which the QASP fall unders in FAR Part 37.6

You are correct, under 37.6 and A-E procedures under 36.6 there are no QASP requirements.  Whether your Agency will require them now will be up to your Agency head.  Please check with them and your Service's contracting supplement for further guidance.

PostedContracting, Contracting_Architect-Engineer and Construction Contracting354592/21/2011 12:59 PM
35,459
System Account
107973
  
dapmembers:kevin.linden1/19/2011
7464
Can those funds be used for total project execution to include the labor, parts procurement and training courses to include after the project crosses the fiscal year boundary? I am aware that if modification is required and it changes the project after the fiscal year changes that current for obligation funds must be used. But if nothing changes during execution and the project runs for the entire period in the original scope and order are the original funds good for total execution?
We have an LCSM on order that cares for unmanned aerial systems.  The order was place for 12 months of service and the period of service crosses the fiscal year boundary.  The service consists labor, procurement of parts to sustain or repair the fleet and occasional training to the user to account for upgrades in the systems.  The RFP includes the labor hours required, training courses for the user which correspond to known upgrades, modifications or new system fielding.  The estimate also includes potential parts procurement for repair of damaged aircraft during the entire 12 month service period.  The project is then deemed appropriate and placed on order with current for obligation O&M funds.

Service contracts can cross fiscal years if the period of performance is not greater than 12 months if you are using O&M funding.  See FAR 32.703-3 and 37.106.  If the order is FFP, T&M, or CPFF there is no issue as you have funded everything up front.  If you are issuing separate orders to repair, upgrade, or buy parts (an IDIQ contract), then you must use current year funding for when the order is placed.



32.703-3 -- Contracts Crossing Fiscal Years.

(a) A contract that is funded by annual appropriations may not cross fiscal years, except in accordance with statutory authorization (e.g., 41 U.S.C. 11a, 31 U.S.C. 1308, 42 U.S.C. 2459a, 42 U.S.C. 3515,and paragraph (b) of this subsection), or when the contract calls for an end product that cannot feasibly be subdivided for separate performance in each fiscal year (e.g., contracts for expert or consultant services).
(b) The head of an executive agency except NASA, may enter into a contract, exercise an option, or place an order under a contract for severable services for a period that begins in one fiscal year and ends in the next fiscal year if the period of the contract awarded, option exercised, or order placed does not exceed one year (10 U.S.C. 2410a and 41 U.S.C. 2531). Funds made available for a fiscal year may be obligated for the total amount of an action entered into under this authority.

37.106 -- Funding and Term of Service Contracts.

(a) When contracts for services are funded by annual appropriations, the term of contracts so funded shall not extend beyond the end of the fiscal year of the appropriation except when authorized by law (see paragraph (b) of this section for certain service contracts, 32.703-2 for contracts conditioned upon availability of funds, and 32.703-3 for contracts crossing fiscal years).
(b) The head of an executive agency, except NASA, may enter into a contract, exercise an option, or place an order under a contract for severable services for a period that begins in one fiscal year and ends in the next fiscal year if the period of the contract awarded, option exercised, or order placed does not exceed one year (10 U.S.C. 2410a and 41 U.S.C. 2531).. Funds made available for a fiscal year may be obligated for the total amount of an action entered into under this authority.
(c) Agencies with statutory multiyear authority shall consider the use of this authority to encourage and promote economical business operations when acquiring services.

PostedContracting354612/21/2011 12:59 PM
35,461
System Account
107766
  
dapmembers:drobinson11/29/2010
7465
Can we use a government contractor to transfer army owned equipment during fielding to organizations on behalf of the government?
We conduct New Equipment Training on many systems within the organization and we have hired contractors to assist with the training.  The issue is that we send both the government contractor and a government civilian to the training becuase we believe that only the government civilian can conduct the actual transfer of the property to the gaining command

I am truly sorry but in a rare instance I really do not understand your question. 

 

When addressing the issue of transferring of the property to the gaining command – are you referring to the inspection and acceptance process via a DD Form 250 and where the Government is taking delivery? 

 

Or are you asking about the transferring of Government property from one accountable Government contract with one contractor to another accountable Government contract with a different contractor?

 

Your question -- Can we use a government contractor to transfer army owned equipment during fielding to organizations on behalf of the government – lacks sufficient clarity for me to accurately understand what you are asking.

 

With that said – well, let me present a couple of thoughts:

 

  1. If this item of Government property is accountable under a contract as Government Property (GP) – then direction can be issued by the Contracting Officer to the accountable Contract/Contractor requiring the transfer/shipment of GP to the gaining contractor.  So in this case, yes – a contractor can accomplish the transfer at the direction of the government.

 

  1. If this item was a DELIVERABLE under a contract – then inspection and acceptance would need to be specified in Section E of the Contract (See SF 26) as well as the Delivery requirements under Section F of the contract (Again see the SF 26) with the appropriate detailing of these actions and requirement in the contract.  As such a Government representative, normally a Quality Assurance Representative (QAR) has the authority to inspect and accept the item.  So, in this case this action must be done by an authorized qualified Government Representative.

 

These are two alternatives – though again without further information I can provide greater specificity.

 

PostedIndustrial and Contract Property Management354062/21/2011 12:59 PM
35,406
System Account
107984
  
dapmembers:drobinson11/24/2010
7466
What percent of an Acquisition Category (ACAT) III program budget is spent or supposed to be spent on Test & Evaluation?

There is no official Department of Defense policy concerning what percent of program budget is spent or supposed to be spent on Test and Evaluation.  However, some historical data was found, which gives an approximate breakout of RDT&E costs for various types of acquisition programs.  This data is for all ACAT categories (data was unavailable for ACAT III only).

 

The following data comes from a January 15, 2009 presentation by Dr. Charles McQueary, Director, Operational Test and Evaluation.  The data came from the Office of the Secretary of Defense (OSD) Cost Analysis Improvement Group (CAIG).

 

 - For Ground Combat Systems: approximately 4% of the Life Cycle Cost (LCC) is Research, Development, Test and Evaluation (RDT&E), 28% of the LCC is Procurement Cost, and 68% of the LCC is Operations and Support (O&S).

 - For Rotary Wing Aircraft: approximately 3% of the LCC is RDT&E, 24% of the LCC is Procurement Cost, and 73% of the LCC is O&S.

 - For Fighter Aircraft: approximately 4% of the LCC is RDT&E, 25% of the LCC is Procurement Cost, and 71% of the LCC is O&S.

 - For Surface Ships: approximately 1% of the LCC is RDT&E, 39% of the LCC is Procurement Cost, and 60% of the LCC is O&S.

 

The RDT&E cost category includes more than just Test and Evaluation costs (RDT&E includes research and development costs, as well as test and evaluation costs).  No data was found concerning the cost breakout (the percentage of T&E costs within RDT&E).  This web link gives additional information concerning RDT&E costs.  https://acc.dau.mil/CommunityBrowser.aspx?id=314767#3.1.2 

 

PostedTest and Evaluation354692/21/2011 12:59 PM
35,469
System Account
107985
  
dapmembers:drobinson12/15/2010
7467
Is the rental of an item a supply or service...(specific area in question is for short term vehicle rentals but has applicability for other areas as well such as tool rentals)?

The overall general answer is it depends; a rental can be either a service contract or a supply contract.  Based upon how this question is phrased and the assumption that the requirement is a FFP contract for short term vehicle rental, FAR Part 8.1103 and 8.1104(e) treats the requirement as a supply contract to include provisions and clauses for supplies when a fixed price contract is contemplated.

PostedContracting354632/21/2011 12:59 PM
35,463
System Account
107987
  
dapmembers:paul e. brierley11/24/2010
7468
Is it necessary that the Canadian supplier that stores Government material to have Government Property System? If so how do they go about getting approved?
Kollmorgen has a PO with a commericial customer that has a shipping directive in it to ship in place all the material on the PO to a supplier in Canada marked for a government contract.  
Can a Canadian company acquire a Government Property Control System and if so how do they go about it?
The information presented in this Ask-A-Professor Question is extremely limited and that makes it very difficult to comprehend what is actually happening.  For example, “Government Property” and “government contract” could possibly mean the Government of Canada.
Here are the fundamental requirements for establishing a Property Management System.  Contractors are required to establish a system to manage Government Property in accordance with the terms and conditions of the contract and the appropriate Government Property Clause (FAR 52.245-1).  The requirements for establishing this system are found in paragraph (b) of this clause:
(b) Property management.
(1) The Contractor shall have a system to manage (control, use, preserve, protect, repair and maintain) Government property in its possession. The system shall be adequate to satisfy the requirements of this clause. In doing so, the Contractor shall initiate and maintain the processes, systems, procedures, records, and methodologies necessary for effective control of Government property, consistent with voluntary consensus standards and/or industry-leading practices and standards for Government property management except where inconsistent with law or regulation. During the period of performance, the Contractor shall disclose any significant changes to their property management system to the Property Administrator prior to implementation.
(2) The Contractor’s responsibility extends from the initial acquisition and receipt of property, through stewardship, custody, and use until formally relieved of responsibility by authorized means, including delivery, consumption, expending, disposition, or via a completed investigation, evaluation, and final determination for lost, damaged, destroyed, or stolen property. This requirement applies to all Government property under the Contractor’s accountability, stewardship, possession or control, including its vendors or subcontractors (see paragraph (f)(1)(v) of this clause).
(3) The Contractor shall include the requirements of this clause in all subcontracts under which Government property is acquired or furnished for subcontract performance.
 
The Contractor who has the prime contract with the Government (United States) is responsible for establishing a system to manage Government Property.  I am not aware of a Contractor acquiring a Government Property Control System but there are some vendors who suggest that their products and services will help manage property and assets.
From the information provided in this Ask-A-Professor Question it appears that a subcontractor may be involved because it mentions that a Contractor is operating under a Purchase Order (PO).  If that is the situation then the prime contractor is responsible for flowing down the appropriate contract terms and conditions.  The Government Property Clause at FAR 52.245-1 describes the outcome (process) for subcontract control.
(v) Subcontractor control.
(A) The Contractor shall award subcontracts that clearly identify assets to be provided and shall ensure appropriate flow down of contract terms and conditions (e.g., extent of liability for loss, damage, destruction or theft of Government property).
(B) The Contractor shall assure its subcontracts are properly administered and reviews are periodically performed to determine the adequacy of the subcontractor’s property management system.
 
If the situation described above involves a subcontractor then the prime contractor must specify the requirements that the subcontractor must comply with and that includes the flow down of any requirements from the prime contract.
The current Government Property Clause at FAR 52.245-1 (June 2007) does not require approval of a Contractor’s Property Management System.  Approval was required under the old regulations prior to that date.  However, the Government expects the Contractor to be fully compliant with all the Government Property requirements on the day the contract is signed.
Shipping “in place” is not a good idea because it makes the Contractor fully liable for the Government Property that is subject to loss, damage, destruction, or theft.  This is applicable to Government Property subject to the requirements of the contract.


PostedIndustrial and Contract Property Management354642/21/2011 12:59 PM
35,464
System Account
107988
  
dapmembers:drobinson11/22/2010
7469
Are Program Management Agreements required prior to MS B?
The AF recently elminiated Expectation Managements Agreements and replaced them with PMAs.  There was no further guidance other than follow 5000.02, enclosure 10.  Enclosure 10 seems to imply PMAs are not required until after MS B--I am looking to confirm that interpretation.

The short answer to your question is "yes" since Program Management Agreements (PMA) are initiated/signed before milestone reviews are conducted. PMA are part of the documentation establishing a program and assigning the program manager.

Program Management Agreements (PMA) are required IAW DoDI 5000.02, Enclosure 10 and are prepared for ACAT I and II programs after the Air Force makes the investment decision to pursue a new program and the PM has been assigned. This administrative action will occur before milestone reviews. The PM, the CAE, and the requirements and, where applicable, resource authorities sign the agreement. PMAs shall be updated annually or more frequently if the conditions that formed the basis for the agreement (e.g., requirements, funding, or execution plans) have changed. DoDI 5000.02 encourages PMAs for ACAT III programs.

PostedProgram Management354652/21/2011 12:59 PM
35,465
System Account
107998
  
dapmembers:drobinson11/29/2010
7470
If an approved standard repair exists, can it be used at any time with Government concurrence? Or must the Government concur with the use for each non-conformance? What is the governing requirement for the use of standard repairs, who approves them, and what is the frequency of review?
I under based on FAR 46-407 the Government must concur with repair and use as is decisions for MRB.  But what governs the use of standard repairs?  I was under the impression we still approved the use on each non-conformance even though the repair procedure itself was approved.  Is this true?  Absent the only Mil-Std-1520, what governs?
You are correct that MIL-STD-1520 has been cancelled without replacement. Previous Ask-A-Professor (AAP) discussions have principally referred to FAR section 46.407, which also was mentioned in your question. I am not aware of any other overarching DOD policy documents covering corrective action for non-conforming material, and do not believe there is a standard for 'standard repairs'.
 
This FAR section is generally interpreted as requiring government approval of standard repairs for non-conforming material.  Beyond that general guidance, specific Material Review Board (MRB) processes and policy may be a function of the individual contract circumstances in play. For example, Maintenance Depots typically publish policy requiring their authorization for each standard repair done by subordinate maintenance organizations or partner/subcontractor maintenance organizations. 
 
Inventory Control Points and Depots/OEMs may have MOAs/MOUs in place for specific systems that govern the processing of non-conforming material, but the overall policy guidance would be the FAR 46.407.

PostedLife Cycle Logistics, Life Cycle Logistics_Sustainment354662/21/2011 12:59 PM
35,466
System Account
107990
  
dapmembers:drobinson11/30/2010
7471
With the "New Laws" which has priority in the contracting preference?
The VA is purchasing under Prive Vendor and Standardized long term contracts for disposable medical products from an Abilities For The Blind Company.  A new SDVOSB company enters the arena. 

A recent court case has clarified this issue and has said that for the VA, the Veterans Benefit Act takes precedence over the JWOD Act, and that contracting officers in the VA must first look for SDVOSBs and VOSBs to satisfy their requirements, before looking to AbilityOne, The VA has apparently created new procedures to follow that rule, which were ignored in this case.

 

Here's some information on it:

 

The Veterans Benefits Act is a specific mandate to the specific agency to grant first priority to SDVOSB and VOSB concerns in the awarding of contracts. The Javits-Wagner O'Day Act, on the other hand, is a more general procurement statute; were there a direct conflict between the two, the more specific Veterans Benefits Act would control. The court found that the agency was reasonable in concluding in its new guidelines that the Veterans Benefits Act should have priority. It therefore found that the contracting officer's actions in contravention of the new guidelines lacked a rational basis; there was no reasonable explanation for why she failed to consider them.

 

The COFC case is: Angelica Textiles v. The United States (10/26/2010).

PostedContracting354682/21/2011 12:59 PM
35,468
System Account
108002
  
dapmembers:paul e. brierley12/2/2010
7472
Requirement for 1 overhead bin (used/salvaged) for a Bombardier CRJ 200 airplane(manfu. Bombardier). The item itself is approx $28k based on quotes from various SB (NOT OEM) that work in the salvage industry for aircrafts. This item is to be acquired for testing pruposes. As this requirement is over $25k, can this item still go out to SB rather than to the manufacturer as the part is not a new part and is for a used/salvaged part?
There is a requirement for 1 overhead bin (used/salvaged) for a CRJ 200 plane (manfu. Bombardier).  The item itself is approx $28k based on quotes from various SB (NOT OEM) that work in the salvage industry for aircrafts.  This item is to be acquired for testing pruposes.
Your approximate $28k requirement is not an applicable threshold that would prevent you from going to a small business in lieu of an original equipment manufacturer.  In fact, small business concerns shall be afforded an equitable opportunity to compete for all contracts that they can perform to the extent consistent with the Government’s interest (FAR 19.202-1).
 
FAR 19.201(a) also states, "It is the policy of the Government to provide maximum practicable opportunities in its acquisitions to small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns. Such concerns must also have the maximum practicable opportunity to participate as subcontractors in the contracts awarded by any executive agency, consistent with efficient contract performance. The Small Business Administration (SBA) counsels and assists small business concerns and assists contracting personnel to ensure that a fair proportion of contracts for supplies and services is placed with small business."
 
Further references can be found in FAR 19.5 - Set-Asides for Small Business, although nothing in this subpart prohibits your item from going to a small business.

PostedContracting, Contracting_Small Business, Life Cycle Logistics354702/21/2011 12:59 PM
35,470
System Account
108005
  
dapmembers:ry1nik11/23/2010
7473
In a VOSB set-aside, is there a requirement for the VOSB partner in a Joint Venture with a non-veteran owned small business to perform a specific percentage of the work (15-50%, depending on what is being acquired) - in addition to the requirement that the VOSB JV, itself, perform a particular percentage of work?
I have researched the CFR (13 CFR 124.510, 125.15(b)(3), and 125.6; the VAAR Subchapter D, Part 810, subpart 819.7003; and SBA case law and have been unable to find an explicit requirement that the VOSB partner in a JV with a non-veteran owned small business actually perform a certain percentage of the work when the solicitation is a VOSB set-aside.  I understand there is a requirement for the VOSB JV, itself, to perform a certain percentage (15-50% depending on what is being acquired), but cannot find a requirement for the veteran-owned partner to actually perform any of the work.
If the solicitation will include the clause at FAR 52.219-14, Limitations on Subcontracting, then the percentage apply to the overall cooperative effort of the joint venture, and not to its individual members. Please see paragraph 7 of the Veterans Administration Information Letter at https://acc.dau.mil/CommunityBrowser.aspx?id=409469.

PostedContracting, Contracting_Small Business354722/21/2011 12:59 PM
35,472
System Account
108004
  
dapmembers:paul e. brierley11/30/2010
7474
Two part question. 1. Can you provide FAR or DFAR references and explain the difference between GFE and Government property under the control of contractors? 2 Is there a difference on the investigation process for property lost or damaged between the two categories?
We have two contracts where Army units turn in equipment to a contractor before they deploy.  The contract is a service contract to assist the Army Sustainment Command (ASC) accountable officer in receiving and transferring property from the unit property records to the ASC property records.  The contractor is required to receive, store, and maintain all the property for ASC.  We are considering this property government property under the control of contractors.  I did a search of the FAR and 52.245 does not explain this difference.  Discussions with a contractingofficer were unable to clarify the difference. We researched DOD 7000.14R, VOLUME 12, CH 7 FINANCIAL LIABILITY FOR GOVERNMENT PROPERTY, FAR and AR 735-5 without success.
O.k., now it appears that you are in a rather unique – though not unheard of situation.  But before I can discuss some solutions – I really need to clarify the EXACT items we are discussing.
 
So, my understanding of the problem:
 
1.  A Government entity, i.e., an Army unit turns in its equipment.
a.  Normally, this “turn in” process would be to an internal, ARMY activity, for example an accountable property book officer (PBO), but in your example a specific Command is involved.
b.  To continue, the PBO or in your case the Command then maintains the accountable records. 
c.  This property would NOT be considered Government Property (GP) in the possession of or accountable to a CONTRACTOR.
d.  This is the normal process that occurs the majority of times.
2.  But, YOUR scenario has a CONTRACTOR assisting the Command – and you state that the “…contractor is required to receive, store, and maintain all the property for ASC.”
a.  It is at this point that we have to determine, “What does the CONTRACT say?”
  i.  If the Contract calls out ALL of this property as Government Furnished Property (GFP) ACCOUNTABLE to the contract and stipulated the Government Property (GP) Clause, FAR 52.245-1, and the other clauses that must accompany this clause – then the CONTRACTOR is responsible and accountable for this property.  The Contractor must also establish a Property Management System, with all of the processes and records required of that PMS under the GP Clause.
  ii.  If this GP is accountable under the contract, and the contractor or its employees lose, damage or destroy or if the GP is stolen -- then the Liability Provisions of the Government Property clause apply. 
  iii.  I commend you for your research of the DOD 7000.14R – the DOD DoD Financial Management Regulation in an effort to understand the issues surrounding liability for loss, theft, damage or destruction (LTD&D) of Government property. 
1.  And though Government Property in the possession of Contractors is briefly addressed, generally DOD 7000.14R does NOT apply to this property – rather another DOD Manual does, i.e., DOD 4161.2-M.  Therefore, the DD Form 200 – A Financial Liability Investigation of Property Loss – affectionately referred to as a FLIPL – also would NOT GENERALLY apply! 
2.  Rather, the Contractor, in accordance with the GP clause in the contract, will report any LTD&D to the cognizant Property Administrator (PA), usually a Defense Contract Management Agency (DCMA) employee – though other DoD activities have PAs as well!
  iv.  Now, if a Government employee, military or Government civilian employee were to lose or damage  Government property – then a FLIPL would be appropriate.
 
3.  But, I do have to address one other issue from my experience.  I have seen in a number of situations where a Contractor is employed to provide a service to the Government – such as in this case where the Contractor is contracted to “assist the accountable officer in receiving and transferring property from the unit property records to the ASC property records.”  Please note that I emphasized this last part.  It appears that the contractor is NEVER made ACCOUNTABLE for the Government property.  Rather, they are just serving in an administrative capacity – processing the paper work.  But, then you say that they are to “receive, store, and maintain all the property for ASC.”  So there is an intermediary step in the process.  So I really see TWO different situations
 
 

 
SITUATION # 1
 
ARMY ---------------------------------------------→   ARMY
UNIT  transfer  ASC
PROPERTY    to  PROPERTY
RECORD  RECORD
  Contractor
  Provides
  Administrative
  Support
 
 
 
SITUATION # 2
 
ARMY    ARMY
UNIT  ASC
PROPERTY  PROPERTY
RECORD  RECORD
  └----------→  Government Property -------------------┘
Is Transferred to Contractor
  Who establishes RECORDS
  Of GP ACCOUNTABLE under
their contract and then
Stores and Maintains the GP –
At some point the Contractor then
UPDATES ASC PROPERTY RECORDS
 
 
Bottom line –
 
1.  You need to clarify in your contract whether or not the Contractor becomes ACCOUNTABLE for the Government Property under the Contract.  From your question – there appears to be some confusion.  My personal opinion – this contract really required two separate requirements:
a.  One service requirement to receive, store and maintain that property, received from the Army Units, as Government Furnished Property ACCOUNTABLE under that contract, with all the requirements of a Property Management System.  And then, upon physical transfer of the GP from the contractor back to the Army– apply the second requirement.
b.  The second service requirement -- upon physical transfer of the GP to the Army ASC – update ASC’s Property Record.
This would also then clarify WHO is responsible for any loss, theft damage or destruction of GP as you establish an instant in time when the contractor becomes ACCOUNTABLE for the GP and follows the Contract Property Liability requirements versus the Army following the DOD Financial Management Regulations when an Army or Government Civilian
PostedIndustrial and Contract Property Management354712/21/2011 12:59 PM
35,471
System Account
108011
  
dapmembers:paul e. brierley11/23/2010
7475
At what point do you move from 3600 to 3010? The reg states 3600 is used to integrate COTS equipment but we integrate everything and seems to be a very broad and interpretable term.
I manage a two aircraft fleets thats currently been in sustainment for 20 years.  We've historically used 3010 for all aspects of new modifications but have recently been challenged to use 3600 for the engineering piece of an upcoming mod.  We're installing commercially available COTS LRUs but require engineering to integrate into flight deck.  We're not changing the performance envelope of the aircraft.....simply integrating digital LRU into an analog backbone.  We'll also be coming in post milestone C for the first aircraft. 

The correct color of money to use on modification efforts is shown in the pdf at https://acc.dau.mil/CommunityBrowser.aspx?id=409485.  As you can see the first discriminator is whether the mod increases performance or not, which clearly in your case you are not.  Next the question is developmental or operational test required?  If testing is required then RDT&E (3600) money is appropriate, if not then since your system has been operational for some time then the appropriate funds would be Procurement (3010).  Note fabrication and installation are funded with Procurement funds regardless. 

PostedLife Cycle Logistics, Life Cycle Logistics_Sustainment, Program Management354772/21/2011 12:59 PM
35,477
System Account
108009
  
dapmembers:jhuang11/21/2010
7476
John Huang Last Test in Sunday
John Huang Last Test in Sunday
answer is here
Taken for EditAuditing, Test and Evaluation354744/11/2019 7:26 AM
35,474
System Account
108007
  
dapmembers:kobren12/6/2010
7477
what are the benefits of the item IUID effort for stakeholders
working on my certification and I dont really understand the IUID as it pertains to products, and todays society.
Item Unique Identification, or IUID, is a DoD strategic imperative. The requirement is based on the value proposition that unique identification of items provides a joint data capability that enables item tracking in DoD business systems and provides reliable and accurate data for management, financial accountability and asset management purposes.  According to the May 2010 version of the DoD’s “IUID: Then Basics” (available at https://acc.dau.mil/CommunityBrowser.aspx?id=395552&lang=en-US), DoD, “Item Unique Identification is a system of marking items delivered to DoD with unique item identifiers that have machine-readable data elements to distinguish an item from all other like and unlike items.” Put another way, simply put, item unique identification is the ability to physically distinguish one item from another.

The benefits of IUID are clear, and extensive: Item Unique Identification (UID) policy is foundational to enabling DoD to reach established goals and objectives through enhanced item visibility, improved lifecycle item management and accountability, and enabling clean financial audits. There are extensive IUID resources, references, and information available on the IUID Special Interest Area at https://acc.dau.mil/uid, including a program overview briefing at https://acc.dau.mil/CommunityBrowser.aspx?id=30725

PostedLife Cycle Logistics354762/21/2011 12:59 PM
35,476
System Account
108013
  
dapmembers:paul e. brierley11/29/2010
7478
Is there any prohibition against contracting with a state agency to perform services for the Government? Is there any basis for treating the state agency other than as another contracting entity?
The government needs to conduct a bird survey to determine the types of birds in an area where it will construct a complex of buildings.  There is a state agency that is qualified to perform the survey which will identify the types of birds in construction zone, and whether any of the birds are endangered, emerging species, or being  proposed as an endangered species. 
While research resulted in no specific prohibitions against contracting with a state agency, I cannot cite any instances where this has been done in my (or fellow instructors’) experience.  The Economy Act addresses Federal agencies satisfying their requirements through other Federal agencies contracts (not contracting directly with them), but it doesn’t address Federal to state agencies.
 
I would recommend that you contact the state agency directly and ask them if they have provided the service to other Federal agencies in the past and by what authority and what means.  Then you should coordinate the action you take with your legal counsel.

PostedContracting354782/21/2011 12:59 PM
35,478
System Account
108014
  
dapmembers:drobinson11/29/2010
7479
Does a successful Joint Capability Technology Demonstration (JCTD) or Operational Utility Assessment (OUA) represent equivalency for a CDD in the Acquisition Cycle? I thought I read somewhere in CJCSM 3170 maybe that a succesffull ACTD/JCTD is equivalent to a CDD, can you help clarify this, want to know if writing an ONS and CDD is a waste of time.
Sucessfully completed a JCTD, that was given positive utility by user and sponsor.  Looking to move forward into a POR (sponsor supports this and users). 

The CJCSM 3170.01C, May 2007 states " Joint Capability Technology Demonstration (JCTD), Advanced Concept Technology Demonstration (ACTD) Transition. The military utility assessment (MUA), which is completed at the end of the JCTD/ACTD, may be a suitable replacement for the required analysis used as the basis for ICD preparation. MUAs that do not contain the critical elements of information presented in the ICD (description of the capability gap(s); associated tasks, conditions and operational performance standards/metrics; and how the materiel and non-materiel approaches and analyses from the JCTD/ACTD addressed these factors) will be augmented with a final demonstration report to qualify the results as equivalent to an ICD. The MUA/final demonstration report will be used to support the development and subsequent JROC approval of the CDD or CPD. A CDD or CPD, as appropriate, will be developed for the JCTD/ACTD to transition into a program of record."

 

As such, the resultant MUA will only suffice as the preparation for an ICD,

(Initial Capability Document), which is the beginning of a Materiel Solution, documenting the need to proceed with a materiel vice non-materiel (DOTMLPF) based solution.  The CDD is a separate acquisition document which will contain the Conops, KPPs, and basic requirements for the system to be developed.  Both documents (and the resultant CPD - Capability Production Document), will be validated through the JCIDS process.

PostedProgram Management354792/21/2011 12:59 PM
35,479
System Account
108016
  
dapmembers:gary.hagan12/17/2010
7480
Is the MDA the service specific approval authority for terminating an ACAT III program?
Programs are normally terminated by the Service in the Programming phase of the Planning, Programming, Budgeting, and Execution (PPBE) system, not at a milestone review, which only provides an MDA decision as to whether or not a program will proceed into the next acquisition phase.  During the programming phase, however, the Service (or agency) will "rack and stack," that is, prioritize support for programs given needs and budget authority expected to be available during the Program Objectives Memorandum (POM) period of 5 years.  The actual decision authorities that "cancel" programs during the PPBE phase typically include high ranking civilian and military leaders.  Their position titles vary by service.
PostedProgram Management354802/21/2011 12:59 PM
35,480
System Account
108015
  
dapmembers:vaswanso11/29/2010
7481
Is there an alternative to 52.227-14 Rights in Data General where the government would actualy own the Data Rights not the contractor? I have serched and only find alternate V where the government has rights but doesn't own the data it paid to have created. Thank you
52.227-14  Rights in Data General.
The following response is based solely on the question and background information provided. As we do not have all of the facts particular to your contract, program, and situation, we highly recommend you consult your Contracting Officer and Legal Office for guidance.
 
If the contract includes FAR 52.227-14 and the contractor has specifically and clearly stated in writing that the Government has unlimited rights to the data, the Government may do the following pursuant to the clause:  Unlimited rights means the Government has the right "to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so." If the contractor has NOT specifically and clearly stated in writing that the Government has unlimited rights to data even if 52.227-14 is included in the contract, the contracting officer MUST obtain, in writing, unlimited rights to the data from the contractor. 
 

PostedContracting354812/21/2011 12:59 PM
35,481
System Account
107544
  
dapmembers:drobinson1/14/2011
7482
What board or court decisions are there concerning FAR clause 52.236-8 or advice do you have for this particular situation?
We have a campground construction contract that is dependent upon a timber sale contractor to remove trees in order for the construction contractor to proceed. The timber sale contractor does not want to take down trees until the timber prices go up - maybe for 1-2 years. The construction contract has FAR clause 52.236-8 Other Contracts that puts the responsibility on the construction contractor to work with the timber sale contractor. The problem is the timber sale contractor does not have any such clause. The construction contractor is claiming $208,000 for delay.
We can discover no court cases which are similar.  Our only suggestions are to cancel the instant contract for convenience and reissue later with a different scope, or look into your timber contract for performance dates and hold to those, or keep the instant contract and pay the delay costs.  Unless the timber contract has an enforceable delivery date, not sure what other options you have.
PostedContracting, Contracting_Architect-Engineer and Construction Contracting353862/21/2011 12:59 PM
35,386
System Account
108024
  
dapmembers:drobinson11/29/2010
7483
Is there a standard or formal process for transferring Title 10 authority from one program manager to another?
I support the Acquisition Officer in PEO IWS -- I have been asked how a program would accomplish a transfer of Title 10 Acquisition authority from one program manager to another.  The case at hand concerns moving a program under  one of PEO IWS' Directorates from the Submarine community.
The situation described sounds like a portfolio realignment for the SYSCOM Commander (NAVSEA), VADM McCoy. He can accomplish this with an executive memorandum.
Additionally, refer to the DoD Financial Management re3gulation (FMR), specifically, DOD 7000.14-R, VOLUME 3, CHAPTER 3, "APPROPRIATION TRANSFER AUTHORITIES", for any implications to the funding. The FMR also is a good source of general information related to programmatic execution and alignment.

PostedProgram Management354872/21/2011 12:59 PM
35,487
System Account
108039
  
dapmembers:klindsay12/17/2010
7484
do we have to re-synopsis? and do we have to do an amended RFP? Counld not fine in FAR. Do we need to amend the J&A?
We are ready for award but found out that there may be an qty increase  -- This contractor have been only source for the last contract 4years or more also -- but we rec'd two congressional letters of interest, that we need to answer from two contractors that really want in on this product. 
The key issue here is whether the item or service should be sole source. The key question is whether the other interested contractors can meet the Government's need. I am assuming you have complied with FAR 5.2 Synopsis of proposed action and specifically FAR 5.201-5.203. If not, the question becomes whether your acquisition fell under under one of the seven FAR 6.3 exceptions to other than Full and Open Competition as evidenced by a signed J&A which you are ready to place on the Government Point of Entry for all to see within 14 days after contract award per FAR 6.305.

If you feel the other two interested contractors can really meet the Government's need, I would resynopsize with the new quantities and allow all to compete. If you don't feel the two Contractors can meet the Government's need, amend the solicitation with the new quantity and move forward with the sole source award.

If you have truly met the quality requirements of a J&A in accordance with FAR 6.303, I see no reason to amend the J&A but nothing precludes you from doing so and obtaining appropraite signatures. Please have some discussions with your Legal Department.
PostedContracting354942/21/2011 12:59 PM
35,494
System Account
108040
  
dapmembers:mmcurrier12/17/2010
7485
Why was the Purchasing Career Field originated? What are the benefits of certification?
I have been a GPC card holder since 2007. 
The purchasing career field started in earnest after the Civil War when it became clear that the quartermasters in charge of supply for the War Dept were routinely taking bribes and also accepting substandard goods. Congress decided to separate the supply and purchasing functions and set up a system of checks and balances. The requiring activity had needs and money, but was no longer authorized to spend it. Procurement folks could spend money, but they had none and they could not specify requirements either. So both parties needed each other to get a contract issued.
 
Certifications are good credentials to have, and are necessary at certain levels.  Certifications insure that standard performance is executed across the contracting agencies.
PostedPurchasing354952/21/2011 12:59 PM
35,495
System Account
108041
  
dapmembers:jmacdon12/8/2010
7486
Are the test articles still paid for with RDT&E funds or, since they will be fielded, could/should they be paid for with procurement funds?
Total buy for item to be delevoped is10. The first 2 will be used in the field after non- discructive OT&E.
The subject of test assets is discussed in the Financial Management Regulation (FMR) Volume 2A, Chapter 1 010213 “RDT&E Definitions and Criteria” and the paragraph on “Test Articles and Test Support” (Section 010213 Paragraph C 5).

The general rule is that all research and development-related tests and activities preceding and leading to acceptance of the system for operational use (i.e., actions prior to the Full Rate Decision Review Point) should be funded with a RDT&E appropriation. Generally, RDT&E is the default appropriation for development and pre-production prototypes that will be used for Developmental Test and Evaluation (DT&E); for development and pre-production prototypes that will be used for Operational Test and Evaluation (OT&E); or for LRIP assets that will be used for operational test purposes. However, OSD and Congress recognize the need for some flexibility at this critical point as the program transitions from development to production (and, therefore, transitions from using RDT&E to using procurement funds for its contracts).

While LRIP assets intended for operational testing purposes are normally funded with a RDT&E appropriation, there may be circumstances when procurement funding is more appropriate. For example, if the acquisition strategy states the LRIP assets will be used for operational test purposes and then placed into the operational inventory, procurement funding could be requested. On the other hand, if the acquisition strategy states the LRIP assets will be used for operational test purposes but does not address their disposition after testing, RDT&E funding should be requested. In the second example, if a later decision is made to place those test articles into the operational inventory, the cost to modify or refurbish the articles for operational configuration would be borne by either procurement or O&M, consistent with the expense and investment criteria as stated above.

Whichever appropriation is considered appropriate under given circumstances, the program office must provide specific justification in the budget request documentation (R-Forms or P-Forms) prepared for the POM/BES submission to OSD and the follow-on President’s Budget submission to Congress.

I recommend that you consult with your local Comptroller and/or Legal for further guidance.

PostedBusiness, Business_Financial Management, Program Management354962/21/2011 12:59 PM
35,496
System Account
108026
  
dapmembers:vaswanso11/29/2010
7487
I was informed that an ACO cannot sign a DD250 under any circumstances. Is that True? I was also informed that the modification was not valid because it was not a bilateral.. My understanding is that if a contractor requests payment within ceiling and the PCO authrozes it, it does not have to be Bilateral as long as you have the backup documentation.
We recieved a request to process a payment for services, actually a storage fee, for govenrnment property. in WAWF. There was DD250 attached to support the request.
The DD250 was signed by an ACO. There was also a modification attached that authorized payment for storage.

The following response is based solely on the question and background information provided. As we do not have all of the facts particular to your contract, program, and situation, we highly recommend you consult your Contracting Officer and Legal Office for guidance.

In answering your first question, there is nothing in the regulation or any guidance that says the ACO cannot sign the DD form 250.  However, signing the DD form 250 by the ACO is very rare (almost unheard of) because the ACO would sign the invoice and having him/her also sign the DD form 250 would appear to be a conflict.  The ACO should not sign the DD form 250.  This guidance is based on DFARS Appendix F dated December 27 2006.  The form may be found on our web page under the customer section.  Also, DFARS Appendix F has a copy of DD Form 250 filled out. The DD Form 250 is usually filled out by the contractor and this guidance is to allow the responsible individual, usually the Contracting Officers Representative (COR), to understand what the form is used for and what each block means.  This will help ensure the Government is getting what is required.  The COR is normally required to sign the DD Form 250 as proof of acceptance that the supplies or services were received.  This is important because it is one mechanism that will allow the contractor to get paid.
 
In answering your second question on the storage fee modification, just because the mod was unilateral, does not make the mod invalid. The contractor would request a fee and the Contracting Officer would negotiate the fee and hopefully come to some agreement.  Once agreement on fee has been reached, the Contracting Officer would issue a bilateral modification.  However, please note that if the contractor refuses to sign the mod, the Contracting Officer can issue the mod unilaterally in which the fee can be disputed by the contractor.

PostedContracting354892/21/2011 12:59 PM
35,489
System Account
108035
  
dapmembers:gwspohn12/9/2010
7488
Is there a standard in theFAR/ DoD on the documents or authorization(s) an Army organization should receive from the contracting office to put in our files that substantiates we are authorized/required to dispatch government vehicles to the contractors (at no reimbursement) and there is a substantial cost savings? I also provided the chapter 8 from DoD 4500.36-R and FAR references to the contracting officer.
I received an email from the contracting officer that I must dispatch our government owned vehicles to contractors working in my area.  All I received was a PDF file with the Prime Contractor Insurance for drivers.  I asked for some signed document from the contracting officer but he told me that the email and insurance document is all I am required to receive.
1.  References quoted below in pertinent part are applicable to this response.

FAR 1.102 -- Statement of Guiding Principles for the Federal Acquisition System
(a) … Participants in the acquisition process should work together as a team … .
(c) The Acquisition Team consists of all participants in Government acquisition including not only representatives of the technical, supply, and procurement communities but also the customers they serve … .

FAR 4.803 -- Contents of Contract Files
The following are examples of the records normally contained, if applicable, in contract files:
(a) Contracting office contract file.  (40) Any additional documents on which action was taken or that reflect actions by the contracting office pertinent to the contract.

FAR 51.202 -- Authorization
(a) The contracting officer may authorize a cost-reimbursement contractor to obtain interagency fleet management system (IFMS) vehicles and related services, if the Contracting Officer has --
  (1)  Determined that the authorization will accomplish the agency’s contractual objectives and effect demonstrable economies;
  (2)  Received evidence that the contractor has obtained motor vehicle liability insurance covering bodily injury and property damage, with limits of liability as required or approved by the agency, protecting the contractor and the Government against third-party claims arising from the ownership, maintenance, or use of an interagency fleet management system vehicle (IFMS);

(b) The authorization [i.e., to the contractor] shall --
  (1)  Be in writing;
  (3)  Specify any limitations on the authority, including its duration, and any other pertinent information;

(d) Contracting officers authorizing contractor use of interagency fleet management system (IFMS) vehicles and related services subject their agencies to the responsibilities and liabilities provided in 41 CFR 101-39.4 regarding accidents and claims.


Army Regulation (AR) 58–1, Management, Acquisition, and Use of Motor Vehicles, Chapter 8 – Use of Non-tactical Vehicles by Contractor Personnel
8–1. General
  a. Army NTVs may be provided to DOD contractors in accordance with contract stipulations and the FAR. When NTVs are provided to contractors or subcontractors, contracts and agreements shall require that such vehicles be used for official use only and operated and maintained in accordance with the provisions of the contract, DOD 4500.36–R, and this regulation.

  b. NTVs furnished to contractors may be Army-owned or may be leased when furnished under terms of a contract. Determination shall be based on economy and in the best interest of the Government.

8–2. Policy  The policy and procedures [i.e., Section 8–3 Procedures] in this regulation applies to all Army–owned or –leased motor vehicles furnished to DA contractors.

8–3. Procedures
  c. Motor vehicles required for use by contractors in their work shall be included as Government furnished, contractor operated vehicles to be provided in accordance with Government acquisition regulations.
  d. All Army-furnished, contractor-operated motor vehicles shall count as part of the Army vehicle inventory and must be authorized and accounted for, in accordance with AR 71–32, AR 310–49 and AR 710–2.
  e. Procedures for managing the allocation, use, operation, maintenance, and recordkeeping of all Army–owned or controlled motor vehicles are applicable to vehicles furnished to contractors.

2. This response assumes that the “Government Non-Tactical Vehicles” (NTVs) in question are either IFMS or Army-owned vehicles. Based on the information provided in this inquiry, we also assume that the requester’s organization would be responsible for the management and oversight of contractor use of these NTVs in accordance with AR 58-1 and with the requirements referenced in
FAR 51.202(d) regarding accidents and claims.

3. Pursuant to FAR 51.202(a)(1), the Contracting Officer must formally determine in writing that the authorization to provide IFMS vehicles to contractors will accomplish the agency’s contractual objectives and effect demonstrable economies. Furthermore, pursuant to FAR 51.202(b), the Contracting Officer must provide this authorization to the contractor in writing (normally in a contract modification). Based on the policy and procedures set forth in section 8–2 and in paragraph 8-3c of AR 58-1, these requirements also apply to Army-owned NTVs as well.  Therefore, both the Contracting Officer’s formal “Determination” and the written “Authorization” to the contractor to lease IFMS vehicles or to use Army NTVs are records of “required contracting office actions” that must be retained in the contract file in accordance with FAR 4.803(a)(20).  Consequently, we believe that these records should be made available to the cognizant members of the Acquisition Team in the spirit of cooperation as contemplated by FAR 1.102(a).

4. As set forth in the regulations described above, the requester’s organization has a number of critical responsibilities pertaining to the management and oversight of NTV’s provided to contractors.  As the designated member of the “Acquisition Team” (reference FAR 1.102(c)) charged with properly executing these requirements, this organization clearly has a valid need to obtain this contractual documentation (i.e., the “Determination” and the “Authorization” documents) for its files to ensure compliance with these responsibilities. For example given that, pursuant to FAR 51.202(b)(3), the contractor Authorization document must specify the duration and other limitations on the authority and contain other pertinent information, it would be very difficult for the requester’s organization to provide adequate contractor oversight and properly perform the other tasks required by AR 58-1 without this contractual documentation.

5. Therefore, in response to this inquiry, we believe that the regulations described above represent the standards governing the contractual documentation pertaining to contractor use of NTVs that the requester’s organization should receive from the contracting office for its files. Accordingly, we believe that the Contracting Officer should provide the formal “Determination” and “Contractor Authorization” documents required by these regulations to the requester’s office in addition to the contractor insurance documentation that has already been provided. Should the Contracting Officer still decline in light of the above rationale, then we suggest that the requester’s management discuss the matter further with the contracting activity’s Principal Assistant Responsible for Contracting (PARC) for resolution.



PostedContracting354912/21/2011 12:59 PM
35,491
System Account
108042
  
dapmembers:kevin.linden11/29/2010
7489
Specifically, the vendor is refusing to product receipts for lodging and any individual cost in excess of $75. I need to know where I can find references stating that just because the FTR is not fully incorporated in the FAR, that doesn't excuse the vendor from meeting the remaining requirements of the FTR.
A vendor believes that only the provisions of the FTR specifically incorporated in the FAR are applicable to their travel in support of the White House Telecommunications contract.  Specifically, the contract states that all travel will be in accordance with the FAR Part 31 and the Federal Travel Regulation.
I would discuss this matter with your counsel.  If you have incorporated FAR 31 and the FTR in your contract, then the contractor must follow them in submitting documentation for any travel. Since you referenced the FTR in full in your contract, then the contractor must follow all of it.  If the vendor is refusing to produce receipts then they will not be paid. 
PostedContracting354972/21/2011 12:59 PM
35,497
System Account
108032
  
dapmembers:drobinson11/23/2010
7490
Have there been any new decisions or cases regarding whether the Berry Amendment applies to rental of commercial linens (smocks, aprons, vests)?
Our Agency rents linens from commercial contractors.  The Legal decision has always been that the Berry Amendment does not apply since the Government does not take possession of the garments (we acquire the service of using the items and having them cleaned).  However, that decision is now being questioned. 

Similar question was posted here on 12/16/2009 and part of the answer was "Some say leasing is a service; therefore, leasing is acquired under a services contract, not a supply contract, and the Berry Amendment does not apply to services."

Yes.  The Berry Amendment applies to funds appropriated or otherwise available to the Department of Defense for the procurement of covered items.  Clothing and the materials and components normally associated with clothing are covered items.  The Federal Acquisition Regulation (FAR) Defines Procurement as the same as Acquisition. 

 

Acquisition defined in the FAR:  “Acquisition” means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated.  See document at https://acc.dau.mil/CommunityBrowser.aspx?id=409465.

 

PostedOther, Other_Acquisition Policy354902/21/2011 12:59 PM
35,490
System Account
108048
  
dapmembers:drobinson11/23/2010
7491
What are services?
I have a program submitting a contract that labels shipping and travel as a service.

Intangible products that are not goods (tangible products), such as accounting, banking, cleaning, consultancy, education, insurance, know how, medical treatment, transportation. Sometimes services are difficult to identify because they are closely associated with a good; such as the combination of a diagnosis with the administration of a medicine. No transfer of possession or ownership takes place when services are sold, and they (1) cannot be stored or transported, (2) are instantly perishable, and (3) come into existence at the time they are bought and consumed. See also service.




Read more: http://www.businessdictionary.com/definition/services.html#ixzz169uT0usL
PostedContracting355002/21/2011 12:59 PM
35,500
System Account
108031
  
dapmembers:paul e. brierley12/9/2010
7492
Is there any written guidance on how Acquisition Program Offices should account for property items in their possession? Items provided to vendors will be GFE per the contract but what are the vendor's GFE items reconciled against? What do Program Managers use to account for their property items during development/integration and how should these items be transferred to the vendor and then owning unit upon completion/acceptance of project/program?
Acquistion Program Managers acquiring Class VII equipment items, COTs, etc. for platform integration projects, such as radios, electronic components, etc..  Equipment items are government property but not accounted for on a unit-type property book.  PMs are not authorized a formal property book or Accountable Property Officer/Property Book Officer.
For an answer to your question it is recommended that you contact Amber Barber who is responsible for Government Property and Equipment Policy, OUSD, Acquisition Technology and Logistics (AT&L).  Contact information is provided below.
 
Amber Barber
OUSD, AT&L(ARA)
Property & Equipment Policy
(703) 699-0164
Barber, Amber L Ms OSD ATL [Amber.Barber@osd.mil]



PostedIndustrial and Contract Property Management354882/21/2011 12:59 PM
35,488
System Account
108038
  
dapmembers:drobinson11/23/2010
7493
FAC 012 video portion does not work and I cannot get credit for the course completion.

Your question is outside the scope of this forum.  You will find contact information for DAWIA  and coursework matters at https://dap.dau.mil/training/Pages/Default.aspx.  You may also contact the DoD (AGENCY) DACM at http://www.dau.mil/doddacm/ .

PostedOther, Other_Acquisition Policy354932/21/2011 12:59 PM
35,493
System Account
108001
  
dapmembers:mmcurrier1/13/2011
7494
Is there anywhere I can look to find a template for a competitive range determination?
Need to do a Competitive Range Determination
There is no FAR template for a competitive range determination- each procurement stands on its own merits.
 
Here's the coverage from FAR part 15.3 :
  
(c) Competitive range.
 
(1) Agencies shall evaluate all proposals in accordance with 15.305 <https://www.acquisition.gov/comp/far/current/html/Subpart 15_3.html#wp1088903> (a), and, if discussions are to be conducted, establish the competitive range. Based on the ratings of each proposal against all evaluation criteria, the contracting officer shall establish a competitive range comprised of all of the most highly rated proposals, unless the range is further reduced for purposes of efficiency pursuant to paragraph (c)(2) of this section.
 
(2) After evaluating all proposals in accordance with 15.305 <https://www.acquisition.gov/comp/far/current/html/Subpart 15_3.html#wp1088903> (a) and paragraph (c)(1) of this section, the contracting officer may determine that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted. Provided the solicitation notifies offerors that the competitive range can be limited for purposes of efficiency (see 52.215-1 <https://www.acquisition.gov/comp/far/current/html/52_215.html#wp1144408> (f)(4)), the contracting officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals (10 U.S.C. 2305(b)(4) <http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc uscview t09t12 37 408 (10) %2>  and 41 U.S.C. 253b(d) <http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc%20uscview%20t41t42%202%2013%20%2841%29%20%20AND%20%28%2841%29%20ADJ%20USC%29%3ACITE%20%20%20%20%20%20%20%20%20> ).
 
(3) If the contracting officer, after complying with paragraph (d)(3) of this section, decides that an offeror’s proposal should no longer be included in the competitive range, the proposal shall be eliminated from consideration for award. Written notice of this decision shall be provided to unsuccessful offerors in accordance with 15.503 <https://www.acquisition.gov/comp/far/current/html/Subpart 15_5.html#wp1095197> .
 
(4) Offerors excluded or otherwise eliminated from the competitive range may request a debriefing (see 15.505 <https://www.acquisition.gov/comp/far/current/html/Subpart 15_5.html#wp1095225>  and 15.506 <https://www.acquisition.gov/comp/far/current/html/Subpart 15_5.html#wp1095245> ).
You may wish to post a comment on WIFCON to see if someone has best practice samples they are willing to share.
 
 

PostedContracting, Life Cycle Logistics354862/21/2011 12:59 PM
35,486
System Account
108047
  
dapmembers:drobinson12/7/2010
7495
If the recipient did meet the criteria for allowable interest on the debt, would losses incurred monthly on an interest rate swap be allowed as part of the incurred cost submission for indirect rates?
A grant recipient included the monthly losses incurred as part of an interest rate swap agreement in the incurred cost submission for reimbursement from the government.  The recipient stated that the interest on the bonds issued were allowable because they met the criteria in 2 CFR 230, Appendix B, 23(6)(c).  Therefore, they claimed that the interest rate swap losses would be allowable.
In my research, I find that the allowable costs issue is covered under DOD 3210.6-R, "Department of Defense Grant and Agreement Regulations", dated April 13, 1998 (updated through Change 5, Effective 8/27/2007).  The regulation under Section 32.27 states:
 
“32.27 Allowable costs.
 
(a) General. For each kind of recipient or subrecipient of a cost-type assistance award, or each contractor receiving a cost-type contract under an assistance award, there is a set of Federal principles for determining allowable costs. Allowability of costs shall be determined in accordance with the cost principles applicable to the entity incurring the costs.
 
(b) Governmental organizations. Allowability of costs incurred by State, local or federally-recognized Indian tribal governments that may be subrecipients or contractors under awards subject to this part is determined in accordance with the provisions of OMB Circular A-87,8 "Cost Principles for State and Local Governments."
 
(c) Non-profit organizations. The allowability of costs incurred by non-profit organizations that may be recipients or subrecipients of awards subject to this part, or contractors under such awards, is determined in accordance with the provisions of OMB Circular A-122, "Cost Principles for Non-Profit Organizations."”
 
(Source: http://www.dtic.mil/whs/directives/corres/html/321006r.htm )
 
In addition, Section 32.21 subparagraphs (c), (d) and (e) cover the subject of bonds.
 
If your Grant recipient is to a contractor, then the agency rules for cost allowability apply which, in your case, would be the Department of Education rules.
 
I would also direct you to the Office of Chief Financial Officer as that office is responsible for “…business processes including financial management and financial reporting, internal controls, accounting, auditing and acquisition management.” 
(Source:  http://www2.ed.gov/about/offices/list/ocfo/index.html )

PostedAuditing, Auditing_Cost Accting Standards354992/21/2011 12:59 PM
35,499
System Account
108044
  
dapmembers:paul e. brierley12/2/2010
7496
Do I have to, using the justification found in FAR Subpart 8.405-6 entitled "Limited Sources Justification and Approval", publish the intent to sole source onto E-Buy a contract for a base and 4 option years totalling approximately $300,000.00 to a GSA schedule holder?
I am a Contract Specialist for the Erie VA Medical Center, and the VISN 4 Network is looking to Sole Source a contract to the holder of a National Contract for Joint Commission Readiness. The additional contract is for hours and mock survey above and beyond what is contained in the National Contract. The National Contract cannot be "piggybacked" onto for these hours, so this is a seperate requirement not tied directly to the National Contract. My question involves publishing the intent to sole source htis need.
When procuring under the Federal Supply Schedule you are exempt from the requirements in FAR Part 6.  However, FAR 8.405-6(1) requires that when you use fewer than the required number of contractors in accordance with 8.405-2(2)(ii), which is “at least three scheduled contractors,” you must justify restricting your competition to fewer than this number.   FAR 8.405-6(d) only requires a posting to e-Buy when your requirement is for a brand name item/specification. Since your requirement appears to be for hours, it does not fall under the requirement to post to e-buy. 
 
Additionally, based on the value of the base and all options being $300,000, FAR 8.405-6(h) states that orders not exceeding $650,000, the ordering activity contracting officer's certification that the justification is accurate and complete to the best of the ordering activity contracting officer's knowledge and belief will serve as approval, unless a higher approval level is established in accordance with agency procedures.
PostedContracting354982/21/2011 12:59 PM
35,498
System Account
108053
  
dapmembers:drobinson12/7/2010
7497
What are the priorities for use of Government supply sources when acquiring supplies?When acquiring services?
The priorities are listed in the Federal Acquisition regulation (FAR) under FAR 8.002 Priorities for Use of Government Supply Sources.  There are different priorities for supplies and services contained in the subparagraphs.  Please be sure to consult the DFARS and any agency supplements for any additional guidance.
PostedContracting355032/21/2011 12:59 PM
35,503
System Account
108051
  
dapmembers:ry1nik11/30/2010
7498
Do you know of any contracts dealing with human behavior and organizational performance metrics?
Upon further inquiry, you are asking about research contracts that deals with the topics of human behavior and organizational performance metrics. You were considering contacting government agencies that have awarded such contracts. However, it would be more productive to review the large amount of published literature available on those topics. Textbooks, professional psychology journals, and Google searches (Google Scholar in particular) should turn up much for you on those subjects.

PostedContracting355012/21/2011 12:59 PM
35,501
System Account
108054
  
dapmembers:gwspohn12/10/2010
7499
Given that all four NSNs are being used for a 100% change out and the work will be done at the same time, does the fact that these came in on two different PRs constitute splitting of requirements to avoid proper approval thresholds, i.e. Acq Plan, etc.? Separately they are under the threshold for a formal Acq Plan but together they are over.
I have two separate PRs: 1 PR for approximately $8 million has one NSN and 1 PR for approximately $45 million has three NSNs - both are requesting a three year effort.  All four NSNs will be part of a 100% change out on the B-52 aircraft fleet.  All are sole source to one company but QRs do apply.  The separate NSN has been bought before but the three have not and that is why our requirements department said they split the NSNs onto two different PRs. 
1. The references quoted below in pertinent part are applicable to this response.

DFARS 207.103 Agency-head responsibilities
(d)(i) Prepare written acquisition plans for— (B) Acquisitions for production or services when the total cost of all contracts for the acquisition program is estimated at $50 million or more for all years or $25 million or more for any fiscal year; and

(e) Prepare written acquisition plans for acquisition programs meeting the thresholds of paragraphs (d)(i)(B) of this section on a program basis.

DoD Directive 5000.01, “The Defense Acquisition System,” dated May 12, 2003
(Certified Current as of November 20, 2007)
3.2. An Acquisition Program is a directed, funded effort that provides a new, improved, or continuing materiel, weapon or information system, or service capability in response to an approved need.

2. As indicated in the Background information, the contemplated acquisition represented by two PRs for the four NSNs are for the “100% change out on the B-52 aircraft fleet”, and “the work will be done at the same time.”  Based on this description, we believe that the procurement of the effort required by these two PRs actually constitutes a single Acquisition Program as defined in DoD Directive 5000.01.

3. Therefore, notwithstanding the fact that this acquisition is divided into two PRs, pursuant to the requirements specified in DFARS 207.103(d)(i)(B) and DFARS 207.103(e), we believe that a written acquisition plan must be prepared in this case because this combined procurement appears to constitute a single Acquisition Program with a value exceeding $50 million. Similar rationale would apply to other approval thresholds that involve Acquisition Programs as defined in DoD Directive 5000.01.


PostedContracting355042/21/2011 12:59 PM
35,504
System Account
108061
  
dapmembers:mglambert11/24/2010
7500
I work for NAVFAC ROICC Iwakuni, Japan. I am the supervisor for the construction and services. What classes do I need to take to get my Level III certification? What classes do you recommend with me working in Japan. Thank you so much for your time and efforts. Marianne
I am truly sorry for the question however I have searched the database to get an answer to my question regarding DAU courses to qualify for Level III Acquisition Cerification.
You can find the DAWIA Level III Contracting career field certification requirements posted at https://dap.dau.mil/career/cont/Pages/Certification3.aspx. Whether working in the U.S. or abroad, you would need to register for DAU courses through your certifying agency, in your case, the Navy DACM's office, whose web site can be found at https://www.atrrs.army.mil/channels/navyedacm/Login/Login.aspx. You can also find links to a variety of additional training and knowledge sharing resources posted at the Defense Acquisition Portal's Contracting career gateway at https://dap.dau.mil/career/cont/Pages/Default.aspx.
PostedContracting355062/21/2011 12:59 PM
35,506
System Account
108062
  
dapmembers:drobinson12/13/2010
7501
How do we interpret "the same size"? The scope of our project is the same however it's unclear what is meant by the same size. The new procurement meets the 1391 scope. Can we change the layout of the project?
We awarded a contract, it was protested and we had to t4c in Sep 2010. The project funds expired on 30 Sep 10 and we are now in the process of resoliciting the contract. The user would like to change the layout of the project however according to DOD financial Mgmt Regulation FMR 03_10, section 100206 Reprocurements, paragraph D. 1. the replacement contract must be the same size and scope as the original contract.
1.  There is no doctrinal definition of scope.  The GAO and courts have held that “within scope” is considered to be what would reasonably have been in the original contemplation of the parties at the time of contract award.
 
2.  Below is an excerpt from a previous Ask-A-Professor question that deals with the question of scope.  The case law cited may be helpful to your query.  In addition, there are several more postings on the DAU Ask-A-Professor website that deal with generic and more nuanced questions with respect to scope.
 
3.  Here is a previous Ask-A-Professor response regarding scope:
 
 
The following legal analysis concerning contract scope determinations, taken from the Government Contract Law, The Deskbook for Procurement Professionals, Third Edition, 2007 (pages 358 and 359), is applicable to this response. This publication is issued by the American Bar Association’s Section of Public Contract Law, but the text was written by Federal Government employees and is therefore in the public domain.
 
a.  The tests used by the GAO, the Boards of Contract Appeals and the courts is (1) whether the change so materially alters the contract that the field of competition for the contract as modified would be significantly different from that obtained for the original contract (scope of competition) [AT&T Communications, Inc. v Wiltel, Inc., 1 F.3d 1201, 1205 (Fed. Cir. 1993)] and (2) whether the contract as modified, “should be regarded as having been fairly and reasonably within the contemplation of the parties when the contract was entered into” [Freund v. United States, 260 U.S. 60 (1922)]. 
 
b.  In Hughes Space and Communications Co. B-276040, 97-1 CPD ¶ 158, the following factors were considered in determining whether the modification was in-scope: (1) the extent of any changes in the type of work or the performance period, or difference in costs between the contract as awarded and as modified, (2) whether the agency had historically procured the services under a separate contract, and (3) whether potential offerors would have anticipated the modification.
 
c.  In determining the materiality of a change, the most important factor to consider is the extent to which a product or service, as changed, differs from the requirements of the original contract [E.L. Hamm & Associates, Inc., ASBCA No. 43792, 94-2 BCA ¶ 26724]. Additionally, an agency’s pre-award statements that certain work was outside the scope of the contract can bind the agency if it later attempts to modify the contract to include the work [Octel Communications Corp. v. Gen. Servs. Admin., GSBCA No. 12975-P, 95-1 BCA ¶ 27,315].
d.  Changes in Quantity. Increases and decreases in the quantity of major items or portions of the work are not “within the scope” of the contract [Valley Forge Flag Co., Inc., VABCA Nos. 4667, 5103, 97-2 BCA ¶ 29,256; Liebert Corp., B-232234.5, Apr 29, 1991, 91-1 CPD ¶ 413]. Generally, increases are new procurements, and decreases are partial terminations [Cf. Lucas Aul, Inc., ASBCA No. 37803, 91-1 BCA ¶ 23,609].
 
See full response at https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=28&cgiQuestionID=103245.
 
 

PostedContracting355082/21/2011 12:59 PM
35,508
System Account
108049
  
dapmembers:drobinson1/21/2011
7502
What is the process and data required to request a nomenclature for a Standard Missile
I have worked the sustainment side of Logistics and now I'm working Acquisition Logistics. I have been tasked to research the process and procedures for requesting a Nomenclature.
This is what I have found out so far. To request a Nomenclature, you would submitt your request  threw AMCOM  Standardization Office for missiles, and  process DD Form 61s request for Nomenclature
The two references at https://acc.dau.mil/CommunityBrowser.aspx?id=421824 contain instructions on submitting request for nomenclature via DD Form 1664, August 1996: MIL-STD-196E, Department of Defense Standard Practice, Joint Electronics Type Designation System 17 February, 1998 and Data Item Description for a Request For Nomenclature DI-CMAN-81254A.  Also, recommend contacting your applicable material command (AMCOM) for additional guidance within the U.S. Army.

PostedLife Cycle Logistics355022/21/2011 12:59 PM
35,502
System Account
108059
  
dapmembers:mmcurrier1/12/2011
7503
Who is the requesting agency in this scenario?
The Defense Threat Reduction Agency, per the Joint Nuclear Weapons Publication System (JNWPS) Technical Publication 100-1, Chapter 4-2.1a. is required to serve as the single DoD procurement source for DOE items. DTRA, on a reimbursable basis, accepts Military Interdepartmental Purchase Requests (MIPRs) from the Services, as an intermediary, to obtain goods/services that only the DOE has the organic capability to provide.  As 17.503 of the Economy Act states, each order shall be supported by a Determination and Findings.
We are encountering confusion on everyone's (Military Service, DTRA, DOE) part as to who in this scenario is the 'requesting agency'.  All references we can find state that the 'requesting agency' is the one needing supplies or services, and is responsible for preparation of the Determination and Findings,
As it pertains to DOE, DTRA is the requesting agency and must write the D&F. As the single POC for DoD however, DTRA can in turn require other DoD agencies to submit a D&F with the funds. DTRA would then sign off on that D&F, or write an identical one of their own with the original D&F as backup.

PostedContracting355052/21/2011 12:59 PM
35,505
System Account
108077
  
dapmembers:drobinson12/7/2010
7504
I recall discussion in DAU courses that contractors must comply with their own quality plans. I thought it was a standard clause in contracting that said something like "In addition to the terms and specifications in this contract, the items must be produced in accordance with the contractor's own manufacturing/quality plan and must conform to all of the contractor's internal specifications, drawings, and requirements." However, I cannot find this in the FAR or DFAR, and it does not appear in any of the contracts for supplies I have in my hands. Is the contractor obligated to follow its own internal requirements or not?
 I have a situation where the contractor is advancing the position that it can ignore one of its own internal requirements because neither the military detail specification nor the contract says it is required to follow it. I didn't think that was true, but I can't find any regulation or law to support my case.
In simple terms, the contractor must follow his contract; the fact that FAR or other sources (DAU) may discuss additional quality requirements is not pertinent if they are not found in the contract document.  So, the best place to start is where you did and that is in the contract.  There are four types of contract quality requirements described in FAR Part 46.  They are Contracts for Commercial Items, Government Reliance on Inspection by Contractor, Standard Inspection Requirements, and Higher-Level Contract Quality Requirements.  The one that comes closest to your description is Government Reliance on Inspection by Contractor which is used on acquisitions below the simplified acquisition threshold and requires the clause at FAR 52.246-1.  However, that clause does not contain the language you cite in your background.  If your contract is above the SAT, it most likely has the clause at FAR 52.246-2.  Check your contract to see which clause is included.
 
If the contractor does not follow his own approved quality system (ISO 9000, et al) he risks losing his certification. 
 
If you feel that his omission risks that the Government will receive a non-conforming product, you may invoke you right to reject the item or have the contractor correct it (see FAR 52.246-2 paragraph (f)). 
 

PostedContracting355202/21/2011 12:59 PM
35,520
System Account
108069
  
dapmembers:drobinson12/7/2010
7505
What is the guidance for using the proper Fiscal Year number?
I have and acquistion plan for review. The solicitation number is SP0600-10-R-0341. The acquisition plan was coordinated from the Business Unite and sent to my office for coordination today (Nov. 26). I informed the CO that this solicitation number should be an FY 11 number.  The CO informed me that his office recieved the requirement in FY 10 ( Sept) so the contract specialists pulled the RFP numbers from the FY 10 Log.
The guidance is contained the Defense federal Acquisition regulation Supplement (DFARS) under SUBPART 204.70--UNIFORM PROCUREMENT INSTRUMENT IDENTIFICATION NUMBERS.  Specifically, the guidance for the Fiscal Year positions is as follows:

“204.7003 Basic PII number …

(2) Positions 7 through 8. The seventh and eighth positions are the last two digits of the fiscal year in which the procurement instrument is issued or awarded.”

Please note that the operative requirement is the year in which the procurement instrument is issued or awarded.  Your local procedures may dictate that the solicitation is “effectively issued” when the number is assigned from the log.


PostedContracting355072/21/2011 12:59 PM
35,507
System Account
108073
  
dapmembers:ry1nik12/2/2010
7506
So does the fact that a requirement requires the use of a Gov't WMS alone make it non-commercial when the other functional areas of the requirement meet the commercial criterion of FAR 2.101?
One of the main functions of my office is acquiring Warehouse and Distribution Support Services.  There always seems to be a great debate in our office wether or not our requirements requiring the use of a Government Furnished Warehouse Management System (WMS) can be obtained under the regulations of FAR part 12.  The rationale we use to support this as being non-commercial is as follows:

While necessary to ensure DoD security, information assurance, inter-operability and reliability, these unique systems and processes are not commonly known and understood by the general marketplace, resulting in a service that has different terms and conditions than those offered to the general public.

Other considerations are that this does require Gov't to the furnish special training and it also requires contractor personnel having access to the WMS to obtain the proper  IT securtiy clearance.
The application of the definition of "commercial item" to a particular requirement can be a challenging one, where two well-intentioned individuals come to completely different conclusions. The key to your question is paragraph (3)(ii) of the definition in FAR Part 2, which permits minor modifications to an item and still allow it to be considered commercial:
Minor modifications means modifications that do not significantly alter the nongovernmental function or essential physical characteristics of an item or component, or change the purpose of a process. Factors to be considered in determining whether a modification is minor include the value and size of the modification and the comparative value and size of the final product. Dollar values and percentages may be used as guideposts, but are not conclusive evidence that a modification is minor;

The guidance above provides latitude to use good business judgment in making a determination. Only the contracting officer, with input of course from program officials familiar with the requirement, can determine if requiring the use of a Government Warehouse Management System is a "minor modification" in the context of the overall requirement. I would err on the side of conservatism, however. While using FAR Part 15 instead of Part 12 procedures is more involved, it may be worth taking that route rather than try to defend a commercial item determination that cannot be fully supported.


PostedContracting, Contracting_Commercial355092/21/2011 12:59 PM
35,509
System Account
108082
  
dapmembers:vaswanso12/1/2010
7507
IF 6 BPA HAVE BEEN ESTABLISHED, DO WE HAVE TO USE ALL OF THEM, OR CAN WE DO COMPETITION ONLY AMONG 3 OF THEM? SINCE THE SOLDIERS ARE STAYING IN THREE OF THE HOLTELS, SHOULD WE MOVE THEM TO THE OTHER HOTELS?
WE ESTABLISHED 6 BPAs FOR HOTEL ROOMS FOR THE TROOPS'  RE-DEPLOYMENT. WE ISSUED 3 CALLS WITH 3 HOTELS FOR A PERIOD OF PERFORMANCE UNTIL 30 NOV. 2010. THE REQUESTING ACTIVITY (HOUSING DIV.) REQUESTED TO ISSUE NEW CALLS FOR A NEW PERIOD OF PERFORMANCE FROM 01 DEC. TO 31 JANUARY 2011 USING THE SAME 3 HOTELS, SINCE THE SOLDIERS ARE IN THOSE HOTELS ALREADY. MY KO WANTS TO ISSUE THE NEW CALLS USING THE OTHER 3 HOTELS, SO ROTATION IS MADE AMONGTHE  BPAs.
The following response is based solely on the question and background information provided.
In accordance with FAR 1.602-1(a) Authority, Contracting officers have authority to enter into, administer, or terminate contracts and make related determinations and findings. Additionally, FAR 1.602-2, Responsibilities, "Contracting officers should be allowed wide latitude to exercise business judgment."
 
In this case, it appears the contracting officer is exercising his/her authority after considering all available information. Since the contracting officer has that authority, it would not be appropriate for this office to question those decisions.
 

PostedContracting355132/21/2011 12:59 PM
35,513
System Account
108083
  
dapmembers:mmcurrier1/13/2011
7508
Can I modify the IDIQ contract to increase estimated amount from $60k to $95k (as long as it does not go over the SAP threshold)?
We awarded a SAP  IDIQ contract for $60K and would like to increase the estimated quantity on one of the ELIN. 
This is a judgement call by the contracting officer as this is a scope of work issue. Is increasing the scope of the contract by almost 50% within what was originally contemplated by the parties? If the answer is yes, there's no problem and you can do it. If the answe is no, you cannot do it. The person answering the question is the contracting officer, with legal support.
 

PostedContracting355142/21/2011 12:59 PM
35,514
System Account
108074
  
dapmembers:mmcurrier12/17/2010
7509
In order to reduce storage space for temporary staging of closed contracts and delivery orders, and those that are in the process of being closed, can the files be purged to remove documents? This may include copies of vouchers, duplicate modifications, memo for records, drawings provided during the solictation stage, etc. Does a list of required documents that must be retained in the contract file exist? If purging is not reasonable, may the file be scanned into electronic media and the disk be retained, staged, and destroyed as required by the closeout procedure?
The organization I am working with has a backlog of old contracts.  Many of the documents appear to be closed and once validated they are being stored until the established destruction date.  For the remainder of the documents, we are following the FAR/DFAR and DCMA contract closing procedures.  However, storage space is limited.
You can certainly dispose of duplicates. Yes, you can use electronic media to store the file. Yes, you can re-create the file onto a disc. Below is the FAR citation for what goes in (and stays in) the contract file; below that is the file retention rules.
 
 
 
4.803  Contents of contract files.
 
The following are examples of the records normally contained, if applicable, in contract files:
 
(a) Contracting office contract file.
 
(1) Purchase request, acquisition planning information, and other presolicitation documents.
 
(2) Justifications and approvals, determinations and findings, and associated documents.
 
(3) Evidence of availability of funds.
 
(4) Synopsis of proposed acquisition as required by Part 5 <https://www.acquisition.gov/far/html/FARTOCP05.html#wp290921>  or a reference to the synopsis.
 
(5) The list of sources solicited, and a list of any firms or persons whose requests for copies of the solicitation were denied, together with the reasons for denial.
 
(6) Set-aside decision.
 
(7) Government estimate of contract price.
 
(8) A copy of the solicitation and all amendments thereto.
 
(9) Security requirements and evidence of required clearances.
 
(10) A copy of each offer or quotation, the related abstract, and records of determinations concerning late offers or quotations. Unsuccessful offers or quotations may be maintained separately, if cross-referenced to the contract file. The only portions of the unsuccessful offer or quotation that need be retained are—
 
(i) Completed solicitation sections A, B, and K;
 
(ii) Technical and management proposals;
 
(iii) Cost/price proposals; and
 
(iv) Any other pages of the solicitation that the offeror or quoter has altered or annotated.
 
(11) Contractor’s representations and certifications (see 4.1201 <https://www.acquisition.gov/far/html/Subpart 4_12.html#wp1073667> (c)).
 
(12) Preaward survey reports or reference to previous preaward survey reports relied upon.
 
(13) Source selection documentation.
 
(14) Contracting officer’s determination of the contractor’s responsibility.
 
(15) Small Business Administration Certificate of Competency.
 
(16) Records of contractor’s compliance with labor policies including equal employment opportunity policies.
 
(17) Cost or pricing data and Certificates of Current Cost or Pricing Data or a required justification for waiver, or information other than cost or pricing data.
 
(18) Packaging and transportation data.
 
(19) Cost or price analysis.
 
(20) Audit reports or reasons for waiver.
 
(21) Record of negotiation.
 
(22) Justification for type of contract.
 
(23) Authority for deviations from this regulation, statutory requirements, or other restrictions.
 
(24) Required approvals of award and evidence of legal review.
 
(25) Notice of award.
 
(26) The original of—
 
(i) The signed contract or award;
 
(ii) All contract modifications; and
 
(iii) Documents supporting modifications executed by the contracting office.
 
(27) Synopsis of award or reference thereto.
 
(28) Notice to unsuccessful quoters or offerors and record of any debriefing.
 
(29) Acquisition management reports (see Subpart 4.6 <https://www.acquisition.gov/far/html/Subpart 4_6.html#wp1089036> ).
 
(30) Bid, performance, payment, or other bond documents, or a reference thereto, and notices to sureties.
 
(31) Report of postaward conference.
 
(32) Notice to proceed, stop orders, and any overtime premium approvals granted at the time of award.
 
(33) Documents requesting and authorizing modification in the normal assignment of contract administration functions and responsibility.
 
(34) Approvals or disapprovals of requests for waivers or deviations from contract requirements.
 
(35) Rejected engineering change proposals.
 
(36) Royalty, invention, and copyright reports (including invention disclosures) or reference thereto.
 
(37) Contract completion documents.
 
(38) Documentation regarding termination actions for which the contracting office is responsible.
 
(39) Cross-references to pertinent documents that are filed elsewhere.
 
(40) Any additional documents on which action was taken or that reflect actions by the contracting office pertinent to the contract.
 
(41) A current chronological list identifying the awarding and successor contracting officers, with inclusive dates of responsibility.
 
(b) Contract administration office contract file.
 
(1) Copy of the contract and all modifications, together with official record copies of supporting documents executed by the contract administration office.
 
(2) Any document modifying the normal assignment of contract administration functions and responsibility.
 
(3) Security requirements.
 
(4) Cost or pricing data, Certificates of Current Cost or Pricing Data, or information other than cost or pricing data; cost or price analysis; and other documentation supporting contractual actions executed by the contract administration office.
 
(5) Preaward survey information.
 
(6) Purchasing system information.
 
(7) Consent to subcontract or purchase.
 
(8) Performance and payment bonds and surety information.
 
(9) Postaward conference records.
 
(10) Orders issued under the contract.
 
(11) Notice to proceed and stop orders.
 
(12) Insurance policies or certificates of insurance or references to them.
 
(13) Documents supporting advance or progress payments.
 
(14) Progressing, expediting, and production surveillance records.
 
(15) Quality assurance records.
 
(16) Property administration records.
 
(17) Documentation regarding termination actions for which the contract administration office is responsible.
 
(18) Cross reference to other pertinent documents that are filed elsewhere.
 
(19) Any additional documents on which action was taken or that reflect actions by the contract administration office pertinent to the contract.
 
(20) Contract completion documents.
 
(c) Paying office contract file.
 
(1) Copy of the contract and any modifications.
 
(2) Bills, invoices, vouchers, and supporting documents.
 
(3) Record of payments or receipts.
 
(4) Other pertinent documents.
 
 
 
 
 
 
 Here's the retention periods for contracts as specified in FAR 4.805:
 
 
 
4.805  Storage, handling, and disposal of contract files.
 
(a) Agencies must prescribe procedures for the handling, storing, and disposing of contract files. These procedures must take into account documents held in all types of media, including microfilm and various electronic media. Agencies may change the original medium to facilitate storage as long as the requirements of Part 4 <https://www.acquisition.gov/far/html/FARTOCP04.html#wp273111> , law, and other regulations are satisfied. The process used to create and store records must record and reproduce the original document, including signatures and other written and graphic images completely, accurately, and clearly. Data transfer, storage, and retrieval procedures must protect the original data from alteration. Unless law or other regulations require signed originals to be kept, they may be destroyed after the responsible agency official verifies that record copies on alternate media and copies reproduced from the record copy are accurate, complete, and clear representations of the originals. Agency procedures for contract file disposal must include provisions that the documents specified in paragraph (b) of this section may not be destroyed before the times indicated, and may be retained longer if the responsible agency official determines that the files have future value to the Government. When original documents have been converted to alternate media for storage, the requirements in paragraph (b) of this section also apply to the record copies in the alternate media.
 
(b) If administrative records are mixed with program records and cannot be economically segregated, the entire file should be kept for the period of time approved for the program records. Similarly, if documents described in the following table are part of a subject or case file that documents activities that are not described in the table, they should be treated in the same manner as the files of which they are a part. The retention periods for acquisitions at or below the simplified acquisition threshold also apply to acquisitions conducted prior to July 3, 1995, that used small purchase procedures. The retention periods for acquisitions above the simplified acquisition threshold also apply to acquisitions conducted prior to July 3, 1995, that used other than small purchase procedures.
 
 
 
Document
 
Retention Period
 
(1) Records pertaining to Contract Disputes Act actions.
 
6 years and 3 months after final action or decision for files created prior to October 1, 1979. 1 year after final action or decision for files created on or after October 1, 1979.
 
(2) Contracts (and related records or documents, including successful proposals) exceeding the simplified acquisition threshold for other than construction.
 
6 years and 3 months after final payment.
 
(3) Contracts (and related records or documents, including successful proposals) at or below the simplified acquisition threshold for other than construction.
 
3 years after final payment.
 
(4) Construction contracts:
 
 
 
(i) Above $2,000.
 
6 years and 3 months after final payment.
 
(ii) $2,000 or less.
 
3 years after final payment.
 
(iii) Related records or documents, including successful proposals, except for contractor's payrolls (see (b)(4)(iv)).
 
Same as contract file.
 
(iv) Contractor's payrolls submitted in accordance with Department of Labor regulations, with related certifications, anti-kickback affidavits, and other related papers.
 
3 years after contract completion unless contract performance is the subject of an enforcement action on that date.
 
(5) Solicited and unsolicited unsuccessful offers, quotations, bids, and proposals:
 
.
 
(i) Relating to contracts above the simplified acquisition threshold.
 
If filed separately from contract file, until contract is completed. Otherwise, the same as related contract file.
 
(ii) Relating to contracts at or below the simplified acquisition threshold.
 
1 year after date of award or until final payment, whichever is later.
 
(6) Files for canceled solicitations.
 
5 years after cancellation.
 
(7) Other copies of procurement file records used by component elements of a contracting office for administrative purposes.
 
Upon termination or completion.
 
(8) Documents pertaining generally to the contractor as described at 4.801 <https://www.acquisition.gov/far/html/Subpart 4_8.html#wp1108950> (c)(3).
 
Until superseded or obsolete.
 
(9) Data submitted to the Federal Procurement Data System (FPDS). Electronic data file maintained by fiscal year, containing unclassified records of all procurements other than simplified acquisitions, and information required under 4.603 <https://www.acquisition.gov/far/html/Subpart 4_6.html#wp1090087> .
 
5 years after submittal to FPDS.
 
(10) Investigations, cases pending or in litigation (including protests), or similar matters.
 
Until final clearance or settlement, or, if related to a document identified in (b)(1) - (9), for the retention period specified for the related document, whichever is later.
 
________________________________
 

PostedContracting355102/21/2011 12:59 PM
35,510
System Account
108088
  
dapmembers:kobren12/6/2010
7510
AAO is the Army Acquisition Objective - what is it and why is it requirement? In other words what is it good for
Question on AAO
The acquisition objective is basically a measure of how many of a given weapons system or the quantity of a major component the Army requires, to accommodate a force structure that is a function of high level policy documents such as the Defense Planning Guidance. It is a necessary part of force structure planning, requirements determination and the Army's financial programming process.

Army Regulation 70–1, 'Army Acquisition Policy', defines Army Acquisition Objective (AAO) as the quantity of an item required to equip the U.S. Army approved force and to sustain that force, together with specified allies, in wartime... through the period prescribed... at the prescribed support level. It is essentially a measure of specific items required to support a given force and strategic plan.  Army Regulation 710–1, 'Centralized Inventory Management of the Army Supply System' talks about the AAO as a means to help determine appropriate budgetary needs (how many procurement dollars are needed), and a stepping stone to calculation of the related Army Procurement Objective, which is an intended procurement quantity. The 710-1 provides some detail as to how these quantities are to be calculated, and the AAO for a given weapons system takes into account operational requirements, training requirements, maintenance and pipeline requirements, and so on.

PostedLife Cycle Logistics355152/21/2011 12:59 PM
35,515
System Account
108084
  
dapmembers:mmcurrier12/17/2010
7511
I would like to know the grounds for legitimate withholding payment such as FAR, DFAR, or any reference materals i can referr to for justifying the government's determnation.
Hello, i would definitely need your expertise.   I am in a situation in whch the contractor is performing program relocation services under a cost reimbursement contract.  The contract was awarded on conditions that the contractor will make best efforts to have its cost accounting system approved by the government.  Since the contractor consists of four firms as a consortium, it struggled with establishing its own or combined accouting system for government's review and approval.  We have been closely working with DCAA, but in the meanwhile, some discrepancies as to duplicate charging of direct or other direct costs let alone the inflated indirect rate charges to the government for the past three years, the contracting officer decided on withholing the payment processing with a notification given to the contractor. 
There is authority for withholding payment in the funding clauses themselves, and in the different sections of FAR part 32. I don't know what type of payments clauses are in your contract- so you need to look there first. But here's an example:
 
 
Notice of Progress Payments (Apr 1984)
 
The need for customary progress payments conforming to the regulations in Subpart 32.5 <https://www.acquisition.gov/far/html/Subpart 32_5.html#wp1047463>  of the Federal Acquisition Regulation (FAR) will not be considered as a handicap or adverse factor in the award of the contract. The Progress Payments clause included in this solicitation will be included in any resulting contract, modified or altered if necessary in accordance with subsection 52.232-16 <https://www.acquisition.gov/far/html/52_232.html#wp1152807>  and its Alternate I of the FAR. Even though the clause is included in the contract, the clause shall be inoperative during any time the contractor’s accounting system and controls are determined by the Government to be inadequate for segregation and accumulation of contract costs.
 
Also take a look at FAR 32.503-6,Suspension or reduction of payments as another example.
 
 

PostedContracting355172/21/2011 12:59 PM
35,517
System Account
108093
  
dapmembers:pete_chase1/7/2011
7512
Is there a centralized list for Navy Approved Software?
Is there a centralized list for Navy Approved Software?
The Department of the Navy (DON) Application & Database Management System (DADMS) is a web-enabled repository that supports DON IT Portfolio Management. It:
 
  - is designated by SECNAV Instruction 5230.14, IT Portfolio Management, and SECNAV Instruction 5000.36A, IT Application and Data Management, as the authoritative data source for DON IT system, application, database, and network inventories.
  - provides Functional Area Managers and Echelon II Commands with a common database to support requirements, PPBE, and acquisition activities consistent with Goal 5 of the DON IM/IT Strategic Plan - ensure Naval IM/IT investments are selected, resourced and acquired to deliver affordable enhancements to warfighter effectiveness.
 
DADMS is the DON's repository for managing software applications and IT portfolios by functional areas.  Basically it contains a list of all applications (both COTS and GOTS) reported in use by the Navy and Marine Corps, who "owns" them, who uses them, etc.  Applications are managed by functional area and must be approved for use via the Functional Area Manager (FAM) process prior to being procured and allowed on Navy networks.
 
DADMS can be accessed via the Internet at: https://www.dadms.navy.mil/ by both government and contractor personnel (with a sponsor).

PostedInformation Technology, Other, Other_Acquisition Policy355192/21/2011 12:59 PM
35,519
System Account
108091
  
dapmembers:drobinson12/9/2010
7513
Should the GT-38A be entered into the IUID database? Are there no exceptions for equipment that already has a tracking system?
Our contract was recently changed to incorporate 252.211-7003.  The only GFP that fits the requirement for UII is a GT-38A ground instructional training aircraft (GITA) our contractor uses to conduct training on.  It's original acquisition cost is $756,000 dollars, so it certainly meets the $5,000 threshold, but since the aircraft has a permanently assigned mission, design, and series (GT-38A) AND a permanently assigned serial number (tail number), I don't see the need to do additional system registration for it.  It is a permanently grounded, non-flyable aircraft.  
Your contract includes the clause at DFARS 252.211-7003 Item Identification and Valuation.  This clause is prescribed in 211.274-6(a).

211.274-6 Contract clauses.


(a)(1) Use the clause at
252.211-7003, Item Identification and Valuation, in solicitations and contracts that—

(i) Require item identification or valuation, or both, in accordance with
211.274-2 and 211.274-3; or
(ii) Contain the clause at 252.211-7007.

DFARS 211.274-2 stipulates the DoD Policy for implementing the DoD unique item identification as well as the exceptions (read below).

211.274-2 Policy for unique item identification.


(a) It is DoD policy that DoD unique item identification, or a DoD recognized unique identification equivalent, is required for—


(1) All delivered items for which the Government’s unit acquisition cost is $5,000 or more; (Please Note: even though  the unit acquisition cost is more than $5,00 this does not apply to your contract since the GT-38A is not a delivered item.)

(2) Items for which the Government’s unit acquisition cost is less than $5,000, when identified by the requiring activity as serially managed, mission essential, or controlled inventory (Please Note: this is not applicable to your contract.);
(3) Items for which the Government’s unit acquisition cost is less than $5,000, when the requiring activity determines that permanent identification is required (Please Note: this is not applicable to your contract.); and
(4) Regardless of value—(Please Note: this could be applicable to your contract)

(i) Any DoD serially managed subassembly, component, or part embedded within a delivered item; and

(ii) The parent item (as defined in 252.211-7003(a)) that contains the embedded subassembly, component, or part.

(b) Exceptions. The Contractor will not be required to provide DoD unique item identification if—(Please Note: this could be applicable to the GT-38A provided in your contract.)


(1) The items, as determined by the head of the agency, are to be used to support a contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack.


(Please Note: 
Paragraph (b)(2) is not applicable to this situation.)

Based upon the information provided the contractor is required to provide a DoD unique item identification, or a DoD recognized unique identification equivalent unless they meet the policy exception under 211.274-2 paragraph (b).  If the GT-38A is used “to support a contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack” then the contractor may qualify for a policy exception.  It is possible that this could apply to this situation.  The GT-38 is being use for training purposes but the information provided does not contain enough information to determine whether or not it is in support of contingency operations or to facilitate defense against the type of attack mentioned in the Policy section.  Please submit your request for an exception to the Policy for unique item identification to the head of the agency responsible for this action.

PostedIndustrial and Contract Property Management, Life Cycle Logistics, Life Cycle Logistics_Sustainment355182/21/2011 12:59 PM
35,518
System Account
108095
  
dapmembers:vaswanso12/6/2010
7514
Does this apply to the IGE? Can I release the IGE when the solicitation was solicited under an RFP solicitation?
I have a request from a contractor to release the independent Government Estimate on a Source Selection Request for Proposal solicitation.  FAR 15.503 (b)(v) states - "In no event shall an offeror's cost breakdown, profit, overhead rates, trade secrets, manufacturing processes and techniques, or other confidential business information be disclosed to any other offeror."
There are too many unknowns with your question to be able to answer it
precisely. For example, is this a fixed price or cost reimbursement RFP; is
this a pre-award or post award decision; was the requirement a service,
commodity, or construction effort? Each of these is important to answering the
question since the government cost estimate for construction is used to
release the "magnitude" in construction RFPs. I have also seen the government
"budgetary estimate" included in cost reimbursement performance-based service
source selection RFPs since we did not want the contractors to propose
technical solutions that were significantly higher cost than the government
funds available.
 
The release of the independent government cost estimate is typically addressed
in "agency regulations" i.e., the agency FAR supplements. Typically, the
decision to release an independent government cost estimate (IGCE) is based on
whether it would have to be released under a "Freedom of Information Act"
request.
 
Your question also has two completely different parts. One asks about the
release of the IGCE and the other addresses the release of contractor proposal
information. The guidelines for release are different for each. The government
would not release details of a contractors cost proposal. However, IAW FAR
1.102-4(e) - ...If a policy or procedure, or particular strategy or practice
is in the best interest of the Government and is not specifically addressed in
the FAR...Government members of the team should not assume it is prohibited.
Depending of the acquisition situation the government may release some or all
of the IGCE.
 
Bottom line: Review agency regulations and Freedom of Information Act.

PostedContracting355212/21/2011 12:59 PM
35,521
System Account
108087
  
dapmembers:tomeka.williams1/6/2011
7515
It is my understanding that the C/SSR cost reporting rules/regs has been eliminated as of Nov 10. If this is correct, what are we uses for guidelines as to what level of cost reporting we should ask for in the award of new procurements. I'm particularly focused on awards of less then $2M. What makes sense. The contractor will give us anything we ask for but there will be an associated cost. When does the benefit warrant the cost? Thank you, Lawrence F. Franz
Trying to determine the proper level of cost reporting needed for upcoming efforts.
The Cost/Status Schedule Report (C/SSR) was replaced with the Contract Performance Report (CPR) Format since March 2005.  For contracts for less than $2M, EVMS is not required.

The current policy is found at http://dcarc.pae.osd.mil/Policy/csdr/csdrPolicy.aspx in which you would read the instructions for a Cost Performance Report that can have Formats 1-5 when you need this information. The DID-MGMT 81466A at http://www.acq.osd.mil/pm/currentpolicy/cpr_cfsr/CPR Final 3-30-05.pdf describes in detail about the CPR.

---
  EVM POLICY:  DoDI 5000.02, Encl 4. Table 5.  EVMS in accordance with ANSI/EIA-748 is required for cost or incentive contracts, subcontracts, intra-government work agreements, & other agreements valued > $20M (Then-Yr $). EVMS contracts > $50M (TY $) require that the EVM system be formally validated by the cognizant contracting officer. Additional Guidance in Defense Acquisition Guidebook and the Earned Value Management Implementation Guide (EVMIG). EVMS is discouraged on Firm-Fixed Price & Time & Material Contracts; & LOE activities regardless of cost.

EVM CONTRACTING REQUIREMENTS:


FAR EVM Clauses  (Not For DoD
)  – Solicitation – 52.234-2 (Pre-Award IBR) or 52.234-3 (Post Award IBR) 
      – Solicitation & Contract – 52.234-4
DoD ( ≥ $20M) DFAR Clauses   – 252.234-7001 for Solicitations; 252.234-7002 for Solicitations & Contracts
  Contract Performance Report  – DI-MGMT-81466A
*  5 Formats = WBS, Organization, Baseline, Staffing, & Explanation
  Integrated Master Schedule   – DI-MGMT-81650
* (Mandatory for DoD EVMS contracts)
  Integrated Baseline Review (IBR)  – Mandatory for all EVMS contracts
 
* See the EVMIG for CPR & IMS tailoring guidance.

PostedBusiness, Business_Financial Management355162/21/2011 12:59 PM
35,516
System Account
108108
  
dapmembers:mmcurrier1/13/2011
7516
On the same contract modification, can funds from the underrun CLIN be moved to fund the overrun CLIN if there have been within scope changes to the one or both CLINs? (Note: I reviewed all 1,000 questions and none answer my above question.)
-CFIP CLINs
-Underrun on one CLIN
-Overrun on second CLIN
-Both CLINs use the same funds citation , ie long kine account
-Funds cite is expired but not cancelled 
I have done exactly that as a contracting officer many times- sometimes the lawyers said I could not do it, and sometimes other lawyers said I could. A solution would be to execute an administrative mod, where you are just "correcting" the line item funding numbers.
 

PostedContracting355252/21/2011 12:59 PM
35,525
System Account
108096
  
dapmembers:drobinson12/9/2010
7517
Do all existing IDIQ contracts have to update the basic contract in order to update the thresholds for individual task orders or delivery orders?
Considering all the recent updated Thresholds including but not limited to FAR part 15-Certified Cost and Pricing Data thresholds how do updates effect existing IDIQ contracts?
Once a contract is written and executed (signed and awarded), it is then controlled by the clauses that are included within the document and the thresholds that are contained within those clauses.  If you wish to “update” your awarded contract for new FAR thresholds, you must execute a contract modification and potentially receive “consideration” for the modification.  The amount of “consideration” is left to the Contracting Officer’s discretion.  In the case of your IDIQ contract, I’d start with the contract itself and then ensure that each appropriate individual Task Order is also modified (as required).
 
Check your IDIQ contract for the specific clauses and/or provisions included therein.  For example, check for the provision at FAR 52.215-20 for submission of cost and pricing data on contractor proposals and/or the clause at FAR 52.215-21 Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data – Modifications.  That clause at paragraph (a)(1) has states (in part) “…the threshold set forth at FAR 15.403-4 on the date of the agreement on price or the date of the award, whichever is later, ...”

PostedContracting355242/21/2011 12:59 PM
35,524
System Account
108111
  
dapmembers:vaswanso12/9/2010
7518
Where does it say what can be done? FAR, DFARS, CFR, PGI, or other? In other words, when is the certification considered valid - at time of proposal or award? Can a contract be awarded to a company that was small at time of proposal and then outgrows the small business standard for a particular NAICS code byy time fo award?
A contractor certifies itself as small for a particular NAICS code when answering an RFP
IAW the provision at FAR 52.219-1.  Between the time of proposal submittal and award, the small business is no longer a small business for that NAICS code.
The following response is based solely on the question and background information provided. As we do not have all of the facts particular to your contract, program, and situation, we highly recommend you consult your Contracting Officer and Legal Office for guidance.
 
13 CFR § 121.404: "When does SBA determine the size status of a business concern? (a) SBA determines the size status of a concern, including its affiliates, as of the date the concern submits a written self-certification that it is small to the procuring activity as part of its initial offer (or other formal response to a solicitation) which includes price. Where an agency modifies a solicitation so that initial offers are no longer responsive to the solicitation, a concern must recertify that it is a small business at the time it submits a responsive offer, which includes price, to the modified solicitation."
 
FAR 19.301-1(a): "To be eligible for award as a small business, an offeror must represent in good faith that it is a small business at the time of it written representation."
 
SBA's "Guide to SBA's Definitions of Small Business" located at http://www.sba.gov/contractingopportunities/officials/size/index.html:
"To bid on Federal contracts, the concern must self-certify in ORCA (and above) that it is a small business under the appropriate size standard set forth in the solicitation. The size of the concern at the time of self-certification prevails for that contract. A concern may grow above the size standard before or after award without loss of eligibility to perform on that contract."

PostedContracting355272/21/2011 12:59 PM
35,527
System Account
108109
  
dapmembers:drobinson12/1/2010
7519
Is there regulatory guidance for the preparation of the AF Form 9, as there is for the form 36, used in ACPS?
Our Contractnig Committee has written up buyers for not having an AF Form 9 that matches the contract.  They cited a reference to the AF Form 36, not the Form 9.

The AFMC form 36 and the AF form 9 are both Purchase Requests. They fulfill the same purpose but AFMC wanted to customize the Purchase Request for our Acquisition mission. In general AF and DFAS documentation will reference the AF form 9 and the AFMC guidance will reference the AFMC form 36. The DFAS INTERIM GUIDANCE ON ACCOUNTING FOR COMMITMENTS, references the AF form 9 (

https://dfasdod.dfas.mil/library/publication/dfasdepubs.htm ). From a financial perspective, they are identical forms and are treated the same.
PostedOther, Other_Acquisition Policy355262/21/2011 12:59 PM
35,526
System Account
108115
  
dapmembers:klindsay12/17/2010
7520
Do I have a qualifying proposal?
This was a UCA.  Prior to issuing the UCA, we believed we received a "qualifying proposal" form the contractor in that it provided sufficient detail (proposed labor, labor types, hours, all rates, other direct costs) to perform a meaningful analyses.  We therefore based our NTE on this proposal.  We are now in the midst of definitizing, including obtaining an audit of the contractor's rates from the DCAA (the contractor submitted a Forward Pricing Rate Proposal in July), and further defining the scope.  We are now being questioned whether or not we indeed received a "qualifying proposal" because DFARS 217-7401 (c)(2) talks about  "Any other information that the contracting officer has determined DoD needs to review in connection with the contract" - it is this statement and the fact that we are still waiting for an audit and still defining scope that is the basis of whether or not we indeed received a "qualifying proposal".

If you are still deciding scope, it would be impossible to deem the NTE proposal as a qualifying proposal that contains sufficient cost or price detail per DFARS 217.7401(c)  Definition of Qualifying Proposal as provided below:
 
(c) “Qualifying proposal” means a proposal containing sufficient information for the DoD to do complete and meaningful analyses and audits of the—
    (1) Information in the proposal; and
    (2) Any other information that the contracting officer has determined DoD needs to review in connection with the contract.

Waiting on an audit does not make the proposal non qualifying as long as an audit could be accomplished or the existence of a Forward Pricing Rate Agreement. The act of still defining scope is what drove my opinion as to whether the proposal is a qualifying proposal. Please note that NTE proposals are not normally all inclusive because of urgency etc. The definitization proposal is what's critical and it should meet the requirements of a qualifying proposal to a well defined scope of work. The Contracting Officer makes the determination of whether the proposal contains sufficient meaningful information to perform an analysis and audit of the proposal. In your scenario, the act of still determining scope was the tipping point.
PostedContracting355292/21/2011 12:59 PM
35,529
System Account
108117
  
dapmembers:vaswanso12/2/2010
7521
Can expired funds from previous fiscal years be used to pay the settlement? I am aware that Comptroler General Opinion B-255772 seems to say no, but the linked website below seems to suggest that expired funds can be used for some settlements. Does it make a difference if the funds from the time the incidents allegedly ocurred are now closed? Thank you. http://www.adr.af.mil/factsheets/factsheet.asp?id=7354.
An employee is allegedly subjected to a hostile workplace in violation of federal law.  She sues the government, and the case settles several years later for a sum of money. 
Both the Comptroller General Decision (http://archive.gao.gov/lglpapr2pdf19/155046.pdf) and the Air Force reference (http://www.adr.af.mil/factsheets/factsheet.asp?id=7354) are consistent in stating settlements are generally paid with appropriations currently available for obligation.  The references in the Air Force fact sheet suggesting legal use of expired funds apply in cases of clams against contracts which were funded with an appropriation that is now (at the time of settlement) expired.  If such a contract was funded with an appropriation that is (at time of settlement) canceled then current funds must be used to pay the claim.
 
The case cited in the Comptroller General Decision (CompGenDec) is not associated with a claim against a contract.  The case is associated with a "settlement agreement with several plaintiffs who alleged that National Endowment for the Arts (NEA) had violated their rights with regard to applications for grants."  The CompGenDec states that funds current at the time of the settlement agreement were to be used to pay the settlement and use of expired funds was prohibited.
 
The case with which you are dealing appears to be similar to the one considered in the CompGenDec.  So, the key determining factor is the fiscal year in which your case was settled (not the fiscal year in which the alleged incidents occurred).  Per the CompGenDec, "the date that the claim becomes a legal liability determines the fiscal year of the appropriation to be used to pay the claim."  Accordingly, an appropriation currently available for obligations at the time the settlement agreement was finalized is to be used.
 
This seems to be fairly clear cut but I recommend you consult your local legal office for their opinion.

PostedBusiness, Business_Financial Management, Other355302/21/2011 12:59 PM
35,530
System Account
108106
  
dapmembers:ry1nik12/2/2010
7522
Is it realistic to require cost realism of all proposals received or should this analysis be performed on only the firms reaching the comp range or the final firm recommended for award?
Most requirements within USAID are contracted for on a cost reimbursable basis vs. using firm fixed price contracts.  Since these are cost reimbursement contracts they are required to perform cost realism analysis.  Local Contract Review Boards have required that the contracting officer perform cost realism analysis of all firms that provide a proposal.  In some cases this could involve as many as 25 firms, some of which are not even in the competitive range because their proposal is felt to be technically unacceptable.
That's an interesting question. As you state, cost realism analysis is required for all cost reimbursement contracts to help ensure that the offeror: 1) understands the Government's requirement; 2) properly coordinated proposal preparation between the cost and technical teams; and 3) did not low-ball the bid in order to "buy in" to the award. Many times, "cost realism" is included as an evaluation factor in the solicitation. It is also mentioned in the clause at FAR 52.215-1 as a means to evaluate a proposal's technical and schedule risks.

In order to establish a competitive range, proposals are ranked based on evaluation of the factors for award stated in the solicitation. It is important to evaluate all factors for all offerors. To not do so can open the door to a protest. If cost realism is listed among the evaluation factors for award, then it should be performed to avoid a legal challenge. However, if the only mention of cost realism is in FAR clause 52.215-1 ("...cost realism may be considered by the source selection authority in evaluating performance or schedule risk.), then cost realism analysis could be delayed until the competitive range is established.

As this topic raises the issue of contract protest, I would also run your question by your agency's Legal Counsel.
PostedContracting355232/21/2011 12:59 PM
35,523
System Account
108114
  
dapmembers:drobinson12/9/2010
7523
Does Nonmanufacturer rule class waiver apply to the entire NAICS code or just requirements within a NAICS code that match the Product Description?
My solicitation is designated as a small business set-aside under NAICS Code 334516 and FSC Code 6625. I am trying to determine whether to utilize the clause "52.219-6" or the clause "52.219-6 Alt 1" in my solicitation.

Per the instructions at FAR 52.219-6 (f)(4), I checked the Small Business website to determine whether the requirement falls under a class of products for which the SBA has issued a class waiver to the manufacturing rule. The SBA website (http://www.sba.gov/idc/groups/public/documents/sba_program_office/class_waiver.pdf)indicates that there is a waiver in effect for NAICS code 334516. However, the product description in the chart does not match my requirement or the NAICS code title.
In the first place the NAICS Code must agree with the FSC Code.  Therefore, if the “product description in the chart does not match my requirement or the NAICS code title” you should go back to the Contracting Officer and agree on the most appropriate NAICS Code that matches the description.
 
You are correct that the NAICS Code 334516 falls under the non-manufacturer rule and the class waiver and use of the 52.219-6 Alt 1 apply.  Be sure that you are not stretching the NAICS Code to make your requirement fit so as to apply the non-manufacturer waiver.
 
The key starting point is to find the most appropriate NAICS Code the fits your product description.  This is most important if your procurement is above $25K.  Your local SBA Representative can provide assistance.
 
 

PostedContracting355282/21/2011 12:59 PM
35,528
System Account
108120
  
dapmembers:drobinson12/9/2010
7524
Are there any regulations which prohibit incrementally funding using an OPA Appropriation?
We are contracting for Software Improvements/Upgrades for a system which is Post MS C.   Our legal advisor tells us that we are not allowed to incrementally fund the delivery order because we are using OPA funds.
Answer: Without knowing more details, if the upgrade is OPA funded it must be "Fully Funded".  Because you've brought up incremental funding and software, you may have a development piece that may require RDT&E funds.  If you need additional guidance, we'll need to know more about the effort.
 

PostedBusiness, Business_Financial Management, Other355312/21/2011 12:59 PM
35,531
System Account
108127
  
dapmembers:jamesmcnulty12/9/2010
7525
Is there any DOD or Navy guidance on rules and procedures for a User Operational Evaluation System?
I want to field some prototype systems as a UOES.  I have found reference to UOES in an Army THAAD program and a Navy UUV program; but have not found a reference document.
I can find no DoD guidance on User Operational Evaluation Systems (UOES). So, my research probably yeilded no better results than yours. I did find a strong indication this is the exception rather than the rule based in part on the a GAO report of the THAAD use of UOES (which is probably the same report you read). The major issues seem to center around use of R&D funds and system fielding prior to testing. If this is the course of action you want to pursue, I would recommend contacting MDA for any lessons learned they may offer on the THAAD use of UOES. Bring along your legal and financial experts for functional insight (and to gain their support). Don't be deterred. The acquisition rules and regulations define the swim lane in which you can operate. If it is the right thing to do for your program, lay out a course of action and go for it. Hope this was of some assistance. Best of wishes.
PostedProgram Management355352/21/2011 12:59 PM
35,535
System Account
108126
  
dapmembers:kevin.linden12/9/2010
7526
Can I add the training charges to the total cost of the repair item, and call the cost "incidental training?"
I writing a Long Term Contract to purchase a runway repair item for the Taiwan Air Force.  I'm coordinating the purchase with the USAF Foreign Military Sales (FMS) in Taiwan.  The FMS personnel stated that the Taiwan personnel will need training on the utilization of the repair items.
Depending on how incidental the training is on the required repair item,  you could have training included in the cost of the item or have it as a separate line item under the contract.  If the training is very easy and commonplace on the item, similar to training on how to use copiers, then you may want to include it as part of the repair item line item.  If the training is more complex, you may want to separate it out. 

Other things to consider is if it is a one time only training or continual training over the life of the contract.  This can also effect how you set up the contract.
PostedContracting355342/21/2011 12:59 PM
35,534
System Account
108122
  
dapmembers:drobinson12/9/2010
7527
Should all possible manufacturing locations be listed, or is the Distributor who does not control the supplier/manufacturer, respond that it "does not intend to use one or more plants ..."?
In responding to a solicitation, we know that the COTS products, who are manufactured by an affiliated 3rd party and are distributed in the U.S. through us, might be manufactured in multiple locations.  The affiliated 3rd party owns the distributor.

 
The provision at FAR 52.215-6 is required for all negotiated procurements.  The intent is to identify where the prime contractor intends to perform the contract.  If the primary place of performance is the same address identified in the proposal, you check "does not intend".  If you anticipate that you (as the prime) intend to utilize additional facilities to perform your work, you'll identify those locations.  There is no need to identify the place of performance for lower tier sub-contractors. 
PostedProduction, Quality, and Manufacturing355322/21/2011 12:59 PM
35,532
System Account
108131
  
dapmembers:drobinson12/9/2010
7528
Which DFARS clause revision do we follow to request reimbursement for damage to government property due to contractor neligence? Do we have to modify existing contracts to update FAR and DRARS clause revisions?
DFARS clause 252.228-7001 (Sep 1996) was included in a contract awarded Sep 2009.  Paragraph (6)(e) stated the contractor assumes the risk and shall be responsible for the first $25,000.00 of loss or damage.  The clause was updated June 2010 and paragraph (6) (f) (1)( i) states the contractor is responsible for the first $100,000.00 of loss or damage.
The clause (FAR or DFARS) embedded in the contract on the date of award is the required clause unless a subsequent PCO or ACO contract modification changed it to a newer revision.  On rare occasion, DCMA issues a “block change” on contracts they administer to roll the revision of a clause to a newer version.  This is an uncommon occurrence.  In either case, the contract will contain a formal contact modification evidencing the change if one was made. 
 
In your case DFARS clause 252.228-7001 (SEP 1996) Ground and Flight Risk, prevails unless there is a contact change requiring compliance to the later (JUN 2010) revision.
 
Existing contracts are not routinely modified to include new revisions.  Why?  Contractors would be entitled to seek equitable adjustment to the contract resulting from such change(s). 
 
Ah, before I go there’s one other small point
 
You cited the Ground and Flight Risk clause when referring to “Government Property.”  Government Property is defined and generally covered under FAR clause 52.245-1, Government Property.  You might want to also consult that clause and in particular, paragraph (h), Contractor Liability for Government Property before you attempt to recoup money under this contract.
 
 
References:
FAR Clause 52.245-1, Government Property
DFARS clause 252.228-7001, Ground and Flight Risk
PostedContracting355372/21/2011 12:59 PM
35,537
System Account
108133
  
dapmembers:drobinson12/8/2010
7529
Dear Sir or Ma'am, I am currently seeking a Ammunition calculator that could provide me "shipping data" for all possible DODICs being currently used. For example, if I am shipping 875,000 rounds of DODIC: A059 (5.56mm) I would like to know how many "Wire Bond Boxes of 1640 rounds" I could fit on a Wood Pallet 40"x48"x50" and that would also give me total weight. This calculator would have to be able to tell me when I need additional Wood Pallets because I exceed Pallet parameter for round count. Calculator would be used to identify shipping requirements when using commercial carrier or Military transport. Any assistance would be welcomed Sincerely, Lynn L. Munoz SFC, USA
Schedule tranportation for ammunitions.
Included is a spreadsheet at https://acc.dau.mil/CommunityBrowser.aspx?id=411688 that calculates packaging information for you. If an item is not on the spreadsheet the official source for packaging is CAPULDI found at: https://acc.dau.mil/CommunityBrowser.aspx?id=350931&lang=en-US.

PostedOther, Other_Ammunition355392/21/2011 12:59 PM
35,539
System Account
108125
  
dapmembers:aconnery12/6/2010
7530
Can I write a sole source justification for the Taiwan Air Force? What is the FAR justification?
I am developing a long term contract for a Fiberglass Folding Mat (Runway Repair System).  The country of Taiwan (Taiwan Air Force) wants me to purchase mats for their contry.  I received the request from the USAF (Foreign Military Sales) in the region.  The FMS personnel have identified a potential US contractor who can make the material in the required time frame.
Sole source awards should not be the primary acquisition strategy until proper market research and subsequent justification and documentation is obtained.  One may find it just as timely, and potentially more affordable, to compete the requirement as full and open.  In the case of Foreign Military Sales (FMS), one can consider the Security Assistance Management Manual DoD 5108-38-M governs/permits sole source via inclusion in an FMS "Letter of Request," subject to certain rules.  See SAMM Sec 6.3.4.3 and DFARS 225.7304.  Utilization requires a justification from the foreign requestor but latitude is wide enough to make sole source decisions probable.
 
One should also consider if a set-aside (FAR Subparts 6.2 and FAR 19.5) or a required source (FAR 8.002) are mandated. These and potentially other stipulations should be considered before going sole source.

PostedContracting, Contracting_International, Foreign Military Sales355332/21/2011 12:59 PM
35,533
System Account
108139
  
dapmembers:vaswanso12/7/2010
7531
Are there factors or CERs related to the cost of purchasing the TDP from the OEM?
Often, PMs and other acquisition executives want to explore the idea of purchasing the TDP for their system. Cost is the deciding factor.
Generally, the TDP is much cheaper to negotiate up front in a contract, than later toward the end of a contract when most people decide they want to buy it.  This is because the government loses negotiating power once a contract has been awarded, and then they decide to buy the data.
 
Price for TDP is a negotiated price based on the type of data rights involved, not based on a specific CER (cost estimating relationship).  See DFARS 227.7103-5 and 252.227-7013 for definitions of the different types of DFARS data rights. There are three "pre-negotiated" licenses for technical data: unlimited rights, government purpose rights (GPR), and limited rights. Unlimited rights grants the Government the greatest rights and limited rights grants the least rights, with government purpose rights falling in-between. When none of these three pre-negotiated licenses fits the situation or meets the needs of the parties, "specifically negotiated license rights" can be negotiated, with terms tailored to fit the situation. In general, the greater the data rights purchased, the more expensive.  Also, the more actual data, drawings, hard copies, database information, etc. the more expensive.
 
Before purchasing data rights, a government office should first ask some key questions.
 
a) why do I need them? (contractor going out of business, future competition, or other reasons)
b) what type of rights should we buy? (see above)
c) can we afford to buy them? 
d) what's the impact if we do not buy data rights now?  Later?
e) what appropriation will be used to pay for them?
f) what format should the data be in? (database, hard copy, excel, cad/cam designs, etc.)
g) what will I do with the data once I get it?
h) Is this a commercial item (DFARS 252.227-7015), or a unique item? 
 
Also, keep in mind that DoD policy, per DFARS 227.103-1(a), is to purchase only the technical data, and the rights in that data, necessary to satisfy agency needs.
 
The price from the Contractor perspective is based on the present value of the future rights it is giving up by releasing the technical data. In the case of government purpose rights, the contractor is giving up all future sales of the rights in that technical data anywhere in the Federal government and for any government purpose. That is why the price is typically so high for GPR. If one follows the DoD policy of buying only those rights the agency actually needs, specifically negotiated license rights can be tailored to meet only those needs...at a much lower price than for GPR. 
 
Technical data, and associated data rights, are complicated. You should look to your contracting officer and legal office for additional guidance.
 

PostedBusiness355382/21/2011 12:59 PM
35,538
System Account
108145
  
dapmembers:drobinson12/9/2010
7532
What is the definition of an Obsolete Part?
Definition required for requirements manual.
The Defense Acquisition University (DAU) Glossary of Defense Acquisition Acronyms & Terms, 13th Edition, dated November 2009 contains the following definition:

Obsolescence


A lack of availability of an item or raw material resulting from statutory and process changes,

as well as new designs.  Obsolescence deals with the process or condition by which a piece of
equipment becomes no longer useful, or a form and function no longer current or available for
production or repair.  Implementation of new technology causes older technology to become less supportable because of the diminished availability of parts and suppliers.  Mitigation practices include reviewing proposed parts lists for obsolescence and being proactive in the engineering design process prior to production. (DoD 4140.1-R)
DoD 4140.1-R may be found at:  http://www.dla.mil/j-/dlmso/elibrary/manuals/regulations.asp
Therefore, a simple definition of an Obsolete Part is a piece of equipment that becomes no longer useful.

PostedProduction, Quality, and Manufacturing355432/21/2011 12:59 PM
35,543
System Account
108144
  
dapmembers:ry1nik12/3/2010
7533
Can a CO establish a competitive range and then remove significant portions of the scope?
We just recieved proposals for a project and realized that all of them are significantly higher than we anticipated. We are considering removing some of the scope of work so that we can afford to do at least some of the work.
Perhaps. Either the solicitation will have to be amended and the amendment issued to all offerors in the competitive range (FAR 15.206(c)), or a new solicitation altogether must be issued and the competition re-opened (FAR 15.206(e)). Which action to take depends on the contracting officer's assessment of magnitude of the scope change, as discussed at FAR 15.206(e)). 
PostedContracting355422/21/2011 12:59 PM
35,542
System Account
108159
  
dapmembers:dmcdonald12/20/2010
7534
When QAE retires can he or she work for one of the contractors that he/she was QAE for ? Would this b a conflict of interest. If this is possible is there a grace period he/she has to wait.
Gov't QAE is a SNCO in the Air Force for multiple contracts.
Determinaton of whether this is a conflict of interest and implicates any of the Government's ethics standards of statutes such as the Procurement Integrity Act or 18 USC 207 or 208 or other restrictions or statutes is fact specific.  Since questions of this nature should be cleared with the individual's ethics office, we recommend that the individual submits a written information request to that ethics office for clarification and response. If you do not know who your ethices counselor is or would like further information, you may contact the DoD Standards of Conduct Office:  (703) 695-3422.  Fax:  (703) 697-1640.  E-mail:  soco@osdgc.osd.mil. . 

PostedContracting, Contracting_Contract Law355472/21/2011 12:59 PM
35,547
System Account
108156
  
dapmembers:mmcurrier12/17/2010
7535
Can one person perform the duties of the Small Business Specialist and the Competition Advocate?
No background -- just a question
There is no regulatory prohibition against being both, but I do see a minor conflict of interest. As a small business advocate, your job is to push contracts towards small businesses; as the competition advocate your job is to foster competition, whether or not small businesses are involved. There may be a procurement when your jobs conflict.

PostedContracting, Contracting_Small Business, Other355462/21/2011 12:59 PM
35,546
System Account
108162
  
dapmembers:drobinson12/17/2010
7536
As we look at the timeline we have to achieve all the above during TD phase (24 months), I'm noticing that we might be releasing the EMD RFP around the same time that the CDD goes through the last KP Brief and up to AROC staffing. So my question is can this be done or do you need an AROC approved CDD or JROC approved CDD before we can release the FRP. Any support would be appreciated.
I work in PM Ground Combat Vehicle.  I'm working on setting up a group which will look at Requirements Management analysis during the TD phase which will support refinement of the CDD, refinement of the technical specifications, AoA report for MS B and RFP release for MS B.
The DoDI 5000.02 specifies the final RFP for TD phase cannot be released until the Milestone Decision Authority (MDA) has approved the Technology Development Strategy (TDS) - that could be either before, in conjunction with, or after the Milestone A decision. According to DoDI 5000.02, it would not be improper to release the RFP for the TD phase based on the TDS approval and a "draft CDD", but service cultural practice rules, that is, the program's service review authority may decide not to release the final RFP until the TDS has been approved a very good "draft" CDD is available.

For the EMD phase, the same general principle applies, that is, DoDI 5000.02 specifies that the final RFP for the EMD phase cannot be released until the MDA has approved the Acquisition Strategy.  Again, this could be accomplished prior to the actual milestone, but service cultural practice will again rule.  The final CDD should be approved prior to the release of the RFP from a logical point of view, but this is not a DoDI 5000.02 requirement - having a final, approved CDD for the Milestone B review IS a requirement.
PostedProgram Management355492/21/2011 12:59 PM
35,549
System Account
108147
  
dapmembers:klindsay12/16/2010
7537
Under a CRA, we will be limited to the amount of funding we can initially put on contract. What are the alternatives to FFP? Can we incrementally fund FFP? Or should we have a base award with FFP options?
We intend to award a FFP contract with RDT&E funds.  It is not a new start.
I passed this question out to our FM Professors for consideration and I'm told that each Command should refer to OMB Bulletin No. 10-03 entitled "Apportionment of the Continuing Resolutions(s) for Fiscal Year 2011" that related the OMB guidance on apportionment of funds during this CRA period.  Each person's command should have it.  Basically, it lays out specific instructions on how federal agencies are to consider their available obligational authority during CRA. 
 
Bottom line - Your organization or Service should have a guidance letter showing the limits to each appropriation that may be obligated no matter what type contract.

See a copy of OMB Bulletin No. 10-03 at http://www.whitehouse.gov/sites/default/files/omb/assets/bulletins/b10-03.pdf.
 
 

PostedContracting355452/21/2011 12:59 PM
35,545
System Account
108146
  
dapmembers:gwspohn12/15/2010
7538
Where can the Duty to Seek Clarification Rule be found?
Contractor now saying SOW was ambiguous but never requested clarification.
1. Based on the information provided in the Background statement, it appears that contractor is arguing that there is an ambiguity in the SOW, the interpretation of which should be construed against the Government pursuant to the rule of "contra proferentem". Both this rule and the "Duty to seek clarification" rule are found in case law that has been developed over time by the Courts and Boards of Contract Appeals through numerous litigated cases. The case law that defines the application of these rules is explained below based on references from Administration of Government Contracts, Fourth Edition, by John Cibinic, Ralph C. Nash, James F. Nagle, 2006, hereinafter referred to as "AGC".

2. An ambiguity exists when there are two reasonable interpretations of contract language. After exhausting the rules of contract interpretation dealing with the parties’ intent, the courts or boards will resolve any such contract ambiguity by using one of two risk allocation principles: (1) the rule of contra proferentem, which adopts the interpretation that favors the non-drafting party, or the "Duty to seek clarification" rule, which denies adoption of a contractor’s interpretation when it has failed to request clarification of an ambiguity of which it knew or should have known (i.e., a patent or obvious ambiguity). These rules are used for choosing among conflicting, reasonable, actual interpretations of contract language in order to fairly determine responsibility for ambiguous language. [Ref: AGC, p.227 & 228]

The rule of "Contra Proferentem"
3. Under contra proferentem, unless the non-drafting party knew or should have known of an ambiguity, the risk of ambiguities in contract language is generally allocated to the party responsible for drafting the contract document. As stated in Peter Kiewit Sons’ Co., v. United States, 109 CT. Cl. 390 (1947), at 418: "When one of the parties to a contract draws the document and uses therein language which is susceptible to more than one meaning, and the intention of the parties does not otherwise appear, that meaning will be given the document which is more favorable to the party who did not draw it. This rule is especially applicable to Government contracts where the contractor has nothing to say as to its provisions." [Ref: AGC, pgs. 228 & 229]

4. However, to show an ambiguity, it is not enough that the parties differ in their respective interpretations of a contract term, Community Heating Co. v. Kelso, 987 F.2d 1575, 1578 (Fed. Cir. 1993). Rather, both interpretations must fall within a "zone of reasonableness" before the contra proferentem rule will be applied against the drafter, WPC Enters., Inc. v United States, 163 Ct. Cl. 1, 323 F.2d 874 Ct. Cl. (1963). Furthermore, contra proferentem will generally be inapplicable where there have been extensive negotiations between the parties. In Cray Research, Inc. v. United States, 44 Fed. Cl. 327 (1999), the court held that the rule of contra proferentem was not applicable even though a Government employee drafted a modification because the terms of the modification were negotiated.
[Ref: AGC pgs. 227 & 229 - 230]

The "Duty to Seek Clarification" Rule
5. Even though a non-drafting party may otherwise be able to establish the reasonableness of its interpretation, contra proferentem will not be applied if the non-drafting party fails before bidding to seek clarification of a patent ambiguity of which it was or should have been aware. By failing to inquire, the contractor forfeits the opportunity to rely on its unilateral, uninformed interpretation and bears the risk of misinterpretation, Triax Pac., Inc. v. West, 130 F.3d 1469 (Fed. Cir. 1997); Nielsen-Dillingham Builders, J.V. v. United States, 43 Fed. Cl. 5 (1999). The Court of Claims explained this rule in S.O.G. of Ark. V. United States, 212 Ct. Cl. 125, 546 F.2d 367 (1976), at 131:

"The rule that a contractor, before bidding, should attempt to have the Government resolve a patent ambiguity in the contract’s terms … is designed to avoid … post-award disputes … by encouraging contractors to seek clarification before anyone is legally bound. … In addition to its role in obviating unnecessary disputes, the patent-ambiguity principle advances the goal of informed bidding and works toward putting all bidders on an equal plane of understanding so that the bids are more likely to be truly comparable. Conversely, the principle also tends to deter a bidder, who knows (or should know) of a serious problem of interpretation, from consciously taking the award with a lower bid (based on the less costly reading) with the expectation that he will then be able to cry "change" or "extra" if the procuring officials take the other view after the contract is made (emphasis added)."

In WPC Enters., Inc. v United States, 163 Ct. Cl. 1, 323 F.2d 874, Ct. Cl. (1963), the Court of Claims described the situations to which this rule applies as those where there is an obvious error in drafting, a gross discrepancy, or an inadvertent or glaring gap. [Ref: AGC pgs. 235 & 236]

6. The determination of whether an ambiguity is patent (or obvious) is made on a case-by-case basis because it is dependent on an analysis of the specific facts of each contractual situation, Interstate Gen. Gov’t Contractors v. Stone, 980 F.2d 1433 (Fed. Cir. 1992); H.B. Zachry Co. v. United States, 28 Fed. Cl. 77 (1993), aff’d without opinion, 17 F.3d, 1443 (Fed. Cir. 1994). Also, see Max Drill, Inc. v. United States, 192 Ct. Cl. 608, stating at 626: "What constitutes the type of omission sufficient to put [a contractor] under obligation to make inquiries cannot be defined generally, but on an ad hoc basis of looking to what a reasonable man would find to be patent and glaring." The board in Transco Construction Co., ASBCA 25315, 82-1 BCA ¶ 15,516, noted at 76,974 that the most critical factor in deciding cases regarding the duty to inquire is the degree of scrutiny reasonably required of a bidder in order to perceive the discrepancy between contract provisions or omissions in the solicitation documents. Also, if the ambiguity is actually known to the contractor at the time of bidding, it will be held to be patent no matter how small, Solar Turbines Int’l v. United States, 3 Cl. Ct. 489 (1983) (contractor’s trial brief admitted the contractor was actually aware of a significant ambiguity). [Ref: AGC pgs. 237 & 241]

7. Therefore, based on the case law as explained above, contra proferentem would not apply to this contractual situation if: (1) the contractor’s interpretation of the "ambiguous" language is not reasonable, (2) this language was part of a contractual instrument that was subject to discussion and negotiation, or (3) this language contains any patent ambiguity, no matter how small, that was known or should have been known by the contractor for which the contractor failed to seek clarification from the Government.


PostedContracting, Contracting_Contract Law355442/21/2011 12:59 PM
35,544
System Account
108141
  
dapmembers:drobinson12/10/2010
7539
I could not find an exact definition of what consititues a "knowledge based service. Can you clarify what a knowledge based service is? Thanks. Lena
DPAP memo dated Nov 3, 2010, subject: Implemenatation Directive for Better Buying Power- Obtaining Greater Efficiency and Prodcutivity in Defense Spending, page 5, under Improve Tradecraft in Services Acquisiton(subpart- Address causes of poor tradecraft in servides acquisition) states that agencies need to "Enhance competition by requiring more frequent re-compete of knowledge-based services".
Knowledge-based services are service contracts that provide subject matter experts or technical support personnel. The use of these types of contracts has increased greatly over the past 15 years as the Federal Government has outsourced many requirements. Some examples of knowledge-based services are: IT support, Advisory and Assistance Services (A&AS), logistics support, and other professional support services. As these types of requirements are often long-term, the Government often struggles with the desire to retain incumbent contractors that know the requirement. This often leads to the inappropriate use of sole-source J&A's and limits the competitive process.

Dr. Carter has directed us to take steps to promote more efficient acquisition and services acquisition is a large portion of the overall budget. So, steps to promote requirements definition, thorough market research, and increased competition on each "knowledge-based" acquisition will help obtain the services we need at a more efficient cost.


PostedContracting355412/21/2011 12:59 PM
35,541
System Account
108165
  
dapmembers:aconnery12/14/2010
7540
During the pre award phase of the top level IDIQ the contractor builds a team consisting of the Prime and multiple subcontractors. Now the IDIQ has been awarded to multiple Primes. When the Prime issues a subcontract to the subcontractors on the Prime's Team for the base IDIQ is a "Sole Source Justification" required to be issued for each of the subcontractors? Does the Government's request for proposal to all vendors on the contract, and the contractor's subsequent submittal with its team mate(s), establish competition? If so, is the prime contractor requried to compete the effort among its subcontractors, or does the competition that the Government has performed (and subsequent award) satisfy the competition requirements for subcontractors for the prime contractor?
The government (a federal agency) runs a large multiple award IDIQ procurement. Many contractor teams form and bid for the top level contract. The Prime contractors issue "Teaming Agreements" to their teammates. The Teams all submit bids and eventually nine Prime Contractors are chosen and awarded contracts. The Government now issues RFPs for competitive Task Orders.
1.  Competition should have occurred when establishing the IDIQ teaming arrangement among the prime contractors, unless it was excluded (FAR Subpart 6.2) or waived (FAR Subpart 6.3) with the appropriate J&A.  FAR 6.001 states that FAR Part 6 Competition Requirements do not apply in the cases stated below, meaning that other regulations need to be referred to:
 FAR 6.0001(e) Orders placed under indefinite-quantity contracts that were entered into pursuant to this part when --
(1) The contract was awarded under Subpart 6.1 or 6.2 and all responsible sources were realistically permitted to compete for the requirements contained in the order; or
(2) The contract was awarded under Subpart 6.3 and the required justification and approval adequately covers the requirements contained in the order; or
(f) Orders placed against task order and delivery order contracts entered into pursuant to Subpart 16.5
2.  IDIQs and their ordering are covered in FAR 16.504 and FAR 16.505.  Fair Opportunity competition applies at the order level, again unless there is authorization not to compete. 
3.  Under teaming arrangements, FAR 9.604(d) Limitations states that the Government still has the right "Pursue its policies on competitive contracting in such teaming arrangements."  The particulars agreed to upon in the teaming arrangement must therefore be consistent with the goal to maximize competition and obtain the best value.
4. As prescribed in FAR 44.204(c), the clause FAR 52.244-5 sates that the Contractor shall select subcontractors on a competitive basis to the "maximum extent practical." This can be interpreted that competition is obtained if the subs are allowed to openly compete among themselves for the orders subject to the thresholds in FAR 16.505.  In regards to "maximum extent practical", one may also argue that the award could be made on some form of competitive level pursuant as detailed in the teaming arrangement. DFARS 216.505-70 Orders under MACs implements more restrictions and thresholds that are likely to apply. In cases where competition is totally eliminated, like in a sole source, proper documentation and justification must be obtained.
 
Therefore, the prime contractor still has the responsibility to ensure that competition is met to the maximum extent practical among the established subs down to the order level in a MAC IDIQs teaming arrangement.

PostedContracting355482/21/2011 12:59 PM
35,548
System Account
108171
  
dapmembers:drobinson12/7/2010
7541
When supplying COTS product(s) manufactured IAW 52-225-3 or 52.225-5 is there an issue with non manufacturing related business operations being conducted outside of the United States?
I am currently in the evaluation of a proposal sent in by a contractor whom disclosed that their billing operations and call centers are out sourced to Belgium and Hungary.  This contractor is bidding on a solicitation of the $250K-$300K magnitude and is supplying COTS product manufactured in Ireland IAW FAR 52.225-5.
No.  I conclude from your description that these services are not deliverable on the contracted effort.  They are an internal business operation (billing operations and call centers) of the contractor in supplying the COTS product that is manufactured in Ireland. 

Under
FAR clause 52.225-5, Ireland is listed as a “Designated Country” under the clause which allows for “… (b) Delivery of end products. The Contracting Officer has determined that the WTO GPA and FTAs apply to this acquisition. Unless otherwise specified, these trade agreements apply to all items in the Schedule. The Contractor shall deliver under this contract only U.S.-made or designated country end products except to the extent that, in its offer, it specified delivery of other end products in the provision entitled ‘Trade Agreements Certificate.’”
These trade agreements are difficult to interpret and may require the advice and counsel of your legal department to ensure a proper reading of the applicable law.  Extreme caution is recommended.

PostedProduction, Quality, and Manufacturing355522/21/2011 12:59 PM
35,552
System Account
108179
  
dapmembers:drobinson12/15/2010
7542
Where can I find information on the Lindsay Law and how does it apply to construction i.e., dollar amount, years, etc. Thanks
Where does it say you have to wait one year after a remodel to remodel again.

AFI 32-1032 says:

"3.4.2. Work on New Facilities. As a matter of policy, do not modify newly constructed facilities within 12 months of the beneficial occupancy date (BOD) unless the modification is necessitated by a mission or equipment change which was unforeseen prior to BOD. Do not use O&M funds to correct deficiencies in MCA-funded projects."

PostedContracting355572/21/2011 12:59 PM
35,557
System Account
108172
  
dapmembers:vaswanso12/7/2010
7543
Do you still have to purchase the item from AbilityOne or can you move onto the next mandatory source (Wholesale supply sources) Thank you Phil Wendzillo 185Air Refueling Wing
I am on temporary TDY and do not have access to my military email (phillip.wendzillo@ang.af.mil) so, if possible, please respond to hotmail.

FAR 8.706(b) (2) says: The quantity required cannot be produced or provided economically by the AbilityOne participating nonprofit agencies. Does that mean if you can get an item from Ability one but, it is substantially more expensive than a similar item that can be purchased from Wholesale supply sources.
The answer is no.
The FAR does read as stated in the background.  The key is to understand how
 
"economically" is used.  Economically is in reference to an AbilityOne
participating nonprofit agency's capability to produce the item.  It is not
referring to the offered price being the most economical price in the
market.
So, unless an exception has been granted, an organization is to obtain the
item(s) from the AbilityOne participating nonprofit agency.
 
The above answer is based solely on the background and question provided as
we do not have all of the facts pertaining to your particular situation.  We
always recommend you consult your contracting officer and or legal for
guidance.

PostedContracting355542/21/2011 12:59 PM
35,554
System Account
108168
  
dapmembers:vaswanso12/6/2010
7544
Can these funds be used for modification (not development) to COTs products? When is the last date these funds can be obligated?
I have 3600 (or research and development) funding appropriated in FY10 and want to use now for a COTS modification project. 
Since you state the COTS modification is NOT development, 3600 (Research & Development) is likely not appropriate funding.  Depending on the exact nature of the effort Operations & Maintenance and/or procurement appropriations may be appropriate.  In any event, you can use the FY10 3600 (Research & Development) funding only for efforts described in the budget exhibits (R-2, R-2a, R-3, etc) used to justify the President's Budget request that led to those funds being appropriated by Congress.  From the wording of your question it sounds like the COTS modification is "new" and therefore not contemplated when those budget exhibits were completed (and therefore likely not mentioned in the budget exhibits).  If this is the case then then COTS modification would be a "new start" and you would have to submit either a Congressional Notification or Congressional Prior Approval reprogramming request (depending on the dollar amount involved).  If you are an organization funded through a working capital fund you may have received these 3600 funds from a "customer" requiring your services.  If this is the case, you would have to refer back to the budget exhibits they submitted in the budget request to determine if the COTS modificiation effort was addressed.
 
The last day the FY10 3600 funds can be obligated is 30 Sep 2011 (RDT&E appropriations are "current" for two fiscal years).  However, obligations in the second fiscal year are normally scrutinized as the intent is to budget only for requirements of the first year of the appropriation.  Obligations in the second year should normally be related to efforts that were obligated in the first year but need a obligation increase due to schedule slip and/or cost overrun, for example.
PostedBusiness, Business_Financial Management355502/21/2011 12:59 PM
35,550
System Account
108181
  
dapmembers:drobinson12/7/2010
7545
If there is no new scope i.e. the scope of the Contract remains as originaly agreed, can the Prime Contractor bring in another sub contractor to share the work of the original SF330 sub contractor? If the answer is no, how can a permission to bring in another sub contractor for the same original scope be obtained?
A Prime Contractor submitted under an AE IQC the qualifications and forms of his team including SF 330 for his subcontractor.  Under FAR Flowdown clause 52.244-4, he can substitute the subcotractor only. He can also add a subcontractor if there is work out of the scope of the original contract. The Prime Contract is signed and works did not start yet.
My research and reading of the clause at FAR 52.244-4 indicates that it is the Contracting Officer’s prerogative to allow such an adjustment.  The clause reads (in part) “The Contractor shall obtain the Contracting Officer’s written consent before making any substitution for these subcontractors, associates, or consultants.”  In my view changing from one subcontractor to two subcontractors to perform a portion of the original contract scope is, in fact, a “…substitution for these subcontractors…” under the meaning of the clause.
 
As with any Contracting Officer interpretation of FAR clause language, it is prudent to consult with local JAG counsel to receive their opinion as there may be case law that provides the needed clarification.

PostedContracting, Other355582/21/2011 12:59 PM
35,558
System Account
108188
  
dapmembers:drobinson12/20/2010
7546
What is an Independent Government Estimate and when is it required?
I have a requirement to purchase a item that cost less than $10,000.00 and I have only one (1) source.   I have a quote from vender.  Is a Independent Government Estimate required?
The FAR and DFARS guidance related to an Independent Government Estimate (IGE) is specific to Construction Contracts.  The wording in AFARS Appendix BB-201 only implies that an IGE is not always required.  In short, the answer to your non-construction question will come from local policy. 
 
FAR 36.203(a) An independent Government estimate of construction costs shall be prepared and furnished to the contracting officer at the earliest practicable time for each proposed contract and for each contract modification anticipated to exceed the simplified acquisition threshold. The contracting officer may require an estimate when the cost of required work is not anticipated to exceed the simplified acquisition threshold. The estimate shall be prepared in as much detail as though the Government were competing for award.
 
I did find Guides, SOP’s, and Handbooks within various Army Commands to be consistent with the FAR guidance for construction.  An IGE is required with all Purchase Requests above the Simplified Acquisition Threshold (SAT).  Estimates required for acquisitions below the SAT should not be mistaken for an IGE when they do not require an independent estimate from the Government.  As addressed in the MEDCOMM HCAA –Customer Handbook, the information requirement could even be tailored by a Contract Specialist to include vendor quotes or catalog prices.  And in their Guide, the Army Contracting Agency even included previous pricing from vendors as another option.
 
Definition:
Independent Government Estimate (IGE) or an Independent Government Cost Estimate (IGCE).  Government’s estimates of the resources and the costs of those resources a prudent Contractor will incur to provide the goods and/or services.
MICC Directorate of Contracting (Ft. Jackson) – Desktop SOP’s

PostedBusiness, Business_Cost Estimating, Contracting, Program Management355612/21/2011 12:59 PM
35,561
System Account
108197
  
dapmembers:mmcurrier1/13/2011
7547
If we add a local clause mandating the vendor to submit invoices through WAWF, should we check block 18b on the SF 1449, acknowledging that the vendor should not submit invoices to the address in 18a (Pay office)?
Commercial award on a SF 149 with local clause mandating the use of WAWF.
Yes, check blocks as you have indicated. The contractor shall invoice according to the payment clause included in the contract.  WAWF is mandated for all contracts DoD and Civilian agencies.
PostedContracting355642/21/2011 12:59 PM
35,564
System Account
108180
  
dapmembers:mmcurrier12/17/2010
7548
Do I do a deob mod in PD2 to account for the LD assessment?
Closing out a contract that has $16k in LD's.  How do I account for them?
Yes, given that you've done all the paperwork properly for the legal puishment of liquidated damages, you would issue an administrative mod de-obligating the LD amount and adjusting the total price downward by the same amount.

PostedContracting355552/21/2011 12:59 PM
35,555
System Account
108196
  
dapmembers:drobinson12/7/2010
7549
I have searched DOD websites and even Google trying to find information on what the software is and what companies make compatable software. Do you know what the software is or where I might find such information? Thank you for your help.
A DOD solicitation requires a winning vendor to use an inventory management system compatable with "PARUS-8 software."
My research revealed one reference to PARUS software (see below).  However, as with any Solicitation, questions should be directed to the organization that posted the solicitation.  Usually there is a mechanism to pose questions and receive answers.  The answers are then posted along with the solicitation under the premise that if you have a question others may have the same question.  Below is what I can offer as a possible answer – PARUS-8 refers to one of six digital ionosonde designs.  Again, ask the office that posted the solicitation – good luck.
“What is a Digital Ionosonde?

Most of the hardware components of an ionosonde, and all of the data processing applicable to its measurements, benefit from digital technology. At present there are six digital ionosonde designs known to us. They have in common the integration with a Personal Computer for programmable scheduling, observing-mode parameter settings, system control and data management. They differ considerably in ideology, ranging from analog-ionosonde emulation to highly specialized or highly generalized data acquisition concepts. The following WebSites provide source information for these six, listed in approximate order of design and performance sophistication:

 
CADI
 
IPS-71
 
BIZON
 
PARUS
 
Digisonde
 
Dynasonde
(Source:  https://www.ngdc.noaa.gov/stp/IONO/Dynasonde/whatis.htm )

PostedIndustrial and Contract Property Management355632/21/2011 12:59 PM
35,563
System Account
108187
  
dapmembers:drobinson12/9/2010
7550
Are the excess capacity costs required to keep the contractor's production line up and running allowable as a direct cost on the contract requiring the surge capacity?
A contract requires a contractor to maintain the capability to manufacture a certain quantity of items every year (surge requirement).  This results in excess capacity at the contractor's plant which is normally an unallowable cost.  This also results in increased overhead costs which impacts the contractor being able to compete for other government and commercial work.
You are correct, excess capacity comes at a cost that is typically unallowable.  When a contractor has idle capacity or idle facilities, the associated costs can be deemed allowable if the capacity was necessary when originally acquired or there have been changes in requirements that resulted in the excess capacity.  However, steps need to be taken to eliminate that excess capacity; FAR 31.205-17(b)(2) states the allowable timeframe is ordinarily limited to 1 year. 
 
However, it appears that your question involves excess capacity demanded by a contract.  If a contractor maintains excess capacity in support of a defense mobilization agreement, those costs should be segregated from the firms overhead and charged direct to that agreement.

PostedBusiness, Business_Financial Management355602/21/2011 12:59 PM
35,560
System Account
108211
  
dapmembers:mmcurrier1/13/2011
7551
Does this mean that we can no longer condsider the SLA when contracting for food servies? Does it mean that we can not directly negotiate with the SLA?
AFI 34-206, dated 24 Nov 08, refeences DoD Directive 1125.3, however Para 1d of the directive now states, DoD 1125.3 now states " Does NOT apply to full food servies, mess attendant servies, or servcies supporting the operation of a military dining facility."

The  previous A DoD Directive dated 7 April 1978 stated  " E2.1.3.2.  Direct negotiations may be undertaken with State licensing agencies whenever the on-site official, with concurrence of the Head of the DoD Component, has determined that the State licensing agency, through its blind licensee, can provide the cafeteria services required at a reasonable cost, with food of a high quality comparable to that available from other providers of cafeteria services. In the event direct negotiations fail to result in a contract with the State licensing agency, the procedures prescribed in E2.1.3.1., above, will be followed.
Please contact your local SB Specialistn and legal counsel for specific direction relative to SLA.  I have alerted Becky Carpenter at becky.carpenter@langley.af.mil of your question.  She may be reached at 757-764-1621.
PostedContracting355652/21/2011 12:59 PM
35,565
System Account
108215
  
dapmembers:aconnery12/14/2010
7552
Is there a sample CN that you can provide me and/or an SOP to follow in writing up one?
I work for the Narcotics Affairs Section at the US Embassy in Mexico City under the State Department and I have been assigend as a progrma manager for the Mexico Canine Unit and need to built an academy utilizing fund under the Merida Initiative that was signed and approved back in 2006.  the original amount was $750k and now it's over 1 mill USD and was notified that a CN needs to be submitted.
Your agency legislative liaison or government affairs office should be familiar with the process and can provide previous notifications for you to utilize as a sample.  There is no prescribed template that applies to every contract action requiring congressional notification.  Please be aware that the thresholds for congressional notification vary depending on the public law requiring the notification.  For example, some departments/programs have notification thresholds at $1M, $3M, and $5.5M.  Please check your agency guidance.
PostedContracting355672/21/2011 12:59 PM
35,567
System Account
108212
  
dapmembers:drobinson1/6/2011
7553
If during a RECAP program we modify/Improved a vehicle system like the HMMWV and plan on changing the vehicle configuration by running it through a recap process where they strip down the vehicle and rebuild it using a monocoque hull and the associated enhanced subsystems, bigger engine, transmission, axles, tires, rotors, etc are we required to treat the system like a new start. The thought process being because of all the major changes being implemented. I am trying to understand how much of a vehicle design has to change to be deemed a new start program or acquistion. Is it left up to the MDA?
Vehicle platform being modified as during RECAP.
New Start - Definition
 
For Procurement and Research, Development, Test and Evaluation (RDT&E) appropriations, a New Start is any program, subprogram, modification, project, or subproject not previously justified by the Department of Defense and funded by the Congress through the normal budget process.
 
New starts require either prior approval from the congressional defense committees or prior notification to the committees before funds can be obligated.  See the latest USD (Comptroller) memo regarding Below Threshold Reprogramming (BTR) authority for specifics.

PostedProgram Management355662/21/2011 12:59 PM
35,566
System Account
108217
  
dapmembers:vaswanso12/15/2010
7554
Is there a standard format or description of content for a Bill of Material Proposal? If so, please provide a link to this material.
I am new to the DAU world and have been asked to review a Bill of Material Proposal.
I have polled several departments here at DAU South, namely Logistics, Contracts, and Business, Cost Estimating, Financial Management. All were unanimous in that they knew of no specific format that could be imposed on the contractor. If you want to get proposal data in a specific format, you must specify that format in the RFP.

In general, the BOM should mirror the drawing tree structure. As a matter of fact, the BOM is usually included on the Level 3 drawings. Your review should look for the completeness of the BOM, i.e., does it match the drawing tree structure and the reasonableness of the prices shown in the BOM. You may need some help from someone with experience in material acquisition to assess the reasonableness of the costs. Another assessment may look at the percent of the BOM that is priced via actual quotes from vendors versus engineering estimates. Your DCMA
  rep should be able to help you in this task.
 
Please let me know if I can be of further assistance to you.

PostedSystems Engineering355712/21/2011 12:59 PM
35,571
System Account
108218
  
dapmembers:drobinson12/23/2010
7555
A previous answer under Ask a Professor dated 12 Aug 2008 was: Under FAR 52.244-4, a Prime Contractor can replace or add a Subcontractor not listed on the firm's original SF 330 after obtaining written consent from the Contracting Officer. This section is not intended to be used to add a ne A&E Sub to an existing IDIQ contract. If a new design requirement arises that is out of scope of the original contract, it should be solicited and awarded in accordance with the Brooks Act and applicable regulations. Another answer under Ask a Professor dated 7 Dec 2010 was: The clause reads (in part) (The Contractor shall obtain the Contracting Officer's written consent before making any substitution for these subcontractors, associates, or consultants). In my view changing from one subcontractor to two subcontractors to perform a portion of the original scope is, in fact, a ( ... substitution for these subcontractors ... ) under the meaning of the clause. First answer implies that No New Sub can be added for the same scope. The second answer suggests that introducing a New Sub for the same scope means partial substitution. The two answers are interesting but contradicting. The first answer is more convincing as the second answer seems to be a way to go around the FAR clause. For the second answer case: Is the Prime Contractor liable to the Original subcontractor for this partial substitution (which in the case of my client is over 50% of the Original Sub work)? The Contract is signed and no work has started yet.
A Prime Contractor submitted under an A&E IQC the qualifications and forms of his team including SF 330 for his subcontractor. Under FAR Flowdown clause 52.244-4, he can substitute the subcotractor only. He can also add a subcontractor if there is work out of the scope of the original contract. The Prime Contract is signed and works did not start yet.


Your reference to your “client” indicates that you are seeking a legal interpretation which is outside the scope and intent of the Ask-A-Professor program.  The two answers are NOT contradictory as they both conclude that a substitution is allowable with the Contracting Officer’s approval.

PostedContracting355702/21/2011 12:59 PM
35,570
System Account
108216
  
dapmembers:mmcurrier1/12/2011
7556
Could you assist?
I've been tasked with inquiring how to get access to the Wide Area Work Flow (WAWF) tool,  but I can't seem to find anyone that even knows what it is!
Wide Area Work Flow (WAWF) is used for submittal, review and approval of vouchers on services contracts - so your contracting shop should have knowledge of the tool.  Your best bet is to talk with your contract specialist or officer to get some training and information.  Also, see the following link for details: 
 

https://wawf.eb.mil/  


PostedContracting355692/21/2011 12:59 PM
35,569
System Account
108219
  
dapmembers:drobinson12/10/2010
7557
When a project allows the contractor to procure material from WTO, are we able to buy a product from any WTO as listed on the WTO website, or can we only use the designated countries listed in FAR Reg 52.225-11? For example, Thailand has been a member of the WTO since 1995, but Thailand is not listed as a designated country in the said FAR reg.
Not sure, if this would be acontracting issue or a procurment issue:
A project that is subjected to the "Buy American Act", but allows World Trade Organizations (WTO) for supply of material due to the size of the contract.
See FAR Subpart 25.4 and DFARS  Subpart 225.4—Trade Agreements.  Under the Trade Agreements Act (19 U.S.C. 2512), in acquisitions covered by the WTO GPA, acquire only U.S.-made or designated country end products or U.S. or designated country services, unless offers for such end products or services are either not received or are insufficient to fulfill the requirements. This purchase restriction does not apply below the WTO GPA threshold for supplies and services, even if the acquisition is covered by an FTA.  This restriction does not apply to purchases of supplies by the Department of Defense from a qualified country with which it has entered into a reciprocal agreement, as provided in departmental regulations. 

The following is a list of Designated Countries (includes all):  A World Trade Organization Government Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as "the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu" (Chinese Taipei)) or United Kingdom); A Free Trade Agreement country (Australia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore); A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, Tanzania, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British Virgin Islands, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Netherlands Antilles, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, or Trinidad and Tobago). 

The following is a list of Qualified Countries: Australia, Austria, Belgium, Canada, Denmark, Egypt, Finland, France, Germany, Greece, Israel, Italy, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom of Great Britain and Northern
Ireland.
 
Thailand, though a member of the WTO, has not signed the Government Procurement Agreement (GPA), thus not considered a Designated Country. For the purposes of meeting the restrictions of the Trade Agreements Act, offers from Thailand are restricted. 


PostedOther, Other_Acquisition Policy355722/21/2011 12:59 PM
35,572
System Account
108223
  
dapmembers:dmcdonald12/17/2010
7558
Frankly, what should we do? We attempted a novation agreement but the contractor was only able (maybe willing) to provide a bill of sale. They have submitted 4 invoices for services rendered but OFM has been unable to pay them because of the whole CCR issue and my concern is whether there is a way to resolve this or should we have to terminate the existing task order. Any guidance would be greatly appreciated.
We currently have a GSA task order with a contractor who is performing all of the requirements defined in the award; however, the contractor was recently bought by a larger business, the GSA contract is no longer recognized by GSA, the CCR data has changed, the new business does not have a GSA contract nor are they currently registered in CCR.
Novation procedures are discussed at FAR 42.12 which provides prodcedures for processing the agreements and the required information that is to be included. The contractor will have to comply. In this case, where the contractor fails to provide the required information, I recommend the Contracting Officer drafts a letter to the contractors and lay out the information needed and the consequences of not providing the information. 

Discuss the letter with your Legal/Counsel before it is released to get their input. 
PostedContracting, Contracting_Contract Law355742/21/2011 12:59 PM
35,574
System Account
108232
  
dapmembers:drobinson12/21/2010
7559
Is installation of carpet considered service or construction?
-
Yes, contracting for just the labor to perform the installation of carpeting is a service under the Federal Acquisition Regulation (FAR) definition found under FAR 37.101 Definitions as “Service contract” means a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply.

PostedContracting, Contracting_Architect-Engineer and Construction Contracting355782/21/2011 12:59 PM
35,578
System Account
108233
  
dapmembers:mmcurrier1/13/2011
7560
What does CLCS stand for?
I have a document with the following statements.
The major cost drivers:
CLCS for the component
Power Generation (Fuel & CLCS)
Chemical looping combustion (CLC) is a flameless combustion technology where there is no direct contact between air and fuel. The CLC process utilizes oxygen from metal oxide oxygen carrier for fuel combustion. The products of CLC are CO2 and H2O. Thus, once the steam is condensed, a relatively pure steam of CO2 is produced ready for sequestration. The many benefits of this combustion process are that it does not produce NOx , its production of a sequestration ready CO2 stream does not require additional separation units, and there is no energy penalty or reduc-tion in power plant efficiency.

Accomplishments

The combustion and re-oxidation properties of direct coal chemical-looping com-bustion (CLC) over CuO, Fe
2O3, Co3O4, NiO, and Mn2O3 were investigated by using thermogravimetric analysis (TGA) and bench-scale fixed-bed flow reactor studies. When coal/metal oxide was heated either in nitrogen or carbon dioxide (CO2), weight losses were observed due to partial pyrolysis and coal combustion by metal oxides. Among various metal oxides evaluated, CuO showed the best reaction properties: CuO can initiate the reduction reaction as low as 500 oC and complete the full com-bustion at 700 oC. In addition, the reduced copper can be fully re-oxidized by air at 700 oC. The combustion products formed during the CLC reaction of coal/metal oxide mixture are CO2 and water, while no carbon monoxide was observed. Multi-cycle TGA tests and bench-scale fixed-bed flow reactor tests strongly supported the feasibility of chemical-looping combustion of coal by using CuO as an oxygen carrier. The interactions of flyash with metal oxides were investigated by X-ray diffraction and thermodynamic analysis. Overall, the results indicated that it is feasible to develop chemical-looping combustion with coal by metal oxides as oxygen carriers. Reaction mechanism studies and measurement of rate parameters necessary for reactor design work have also been completed. Benefits
Chemical looping combustion can lead to increased power efficiency. CLC produces

The majority of the work performed to date on CLC has been performed using gaseous fuels. There are only limited studies with oxygen carriers used to combust solid fuels such as coal. Those few studies that have been performed using coal suggest that more experimental information is needed. Development of oxygen carriers that have stable performance during multiple cycles and understanding the reaction mechanism and other process parameters are critical for the success of the CLC process.

PostedLife Cycle Logistics355792/21/2011 12:59 PM
35,579
System Account
108222
  
dapmembers:drobinson12/23/2010
7561
In a solicitation, do you need to include the entire wage determination (ie: for service, state & county) or can you simply add only the occupations that apply such as in a janitorial contract, all of the 110000 occupation codes such as cleaner, gardener, housekeeper, window cleaner, etc.
I am doing an RFQ solicitation, and I would like to keep the size of the document as small as possible.

In order for the contractor to properly respond to the solicitation the wage determinations are necessary.  For example, the FAR Clause at FAR 52.222-41 -- Service Contract Act of 1965 requires (in part):

“c) Compensation.
(1) Each service employee employed in the performance of this contract by the Contractor or any subcontractor shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor, or authorized representative, as specified in any wage determination attached to this contract.

In addition, the contractor must respond to the FAR 52.212-3 -- Offeror Representations and Certifications -- Commercial Items, subparagraph (k) as follows:

“(3) If paragraph (k)(1) or (k)(2) of this clause applies—
(i) If the offeror does not certify to the conditions in paragraph (k)(1) or (k)(2) and the Contracting Officer did not attach a Service Contract Act wage determination to the solicitation, the offeror shall notify the Contracting Officer as soon as possible; and…”

Department of Labor Wage determinations may be accessed on-line at: http://www.wdol.gov/  and, as such, may be incorporated by reference to your solicitation instead of being attached as long as you clearly specify which ones apply.  In addition, be sure to provide instructions on how they may be obtained on-line in lieu of attaching them.

For example, for Ohio, Adams County, the 11000 occupation code, 11090 – Gardener at a Rate of $14.66, can be found at:http://www.wdol.gov/sca.aspx#8


PostedContracting355732/21/2011 12:59 PM
35,573
System Account
108231
  
dapmembers:jacqueline l. garcia12/9/2010
7562
Has HQDA updated or authorized use of digital signatures on DA 1687 and more specifically for use of digital signatures on DA Form 1687 for ammuntion and explosives.
A memo from NGB SUBJECT: Delegation of Authority Cards for Ammunition and Explosives dated  DEC 29, 2008. It states in para 3.a the HQDA has not granted authority to use digitial signature on DA Fom 1687 The signatures and initials will be in ink.
In the instructions for filling the DA Form 1687 for Class V items, as found in the note on page 147 of DA PAM 710-2-1, it states that the signature and initials will be written in ink.  It does not say that a digital signature is authorized.

PostedOther, Other_Ammunition355772/21/2011 12:59 PM
35,577
System Account
108235
  
dapmembers:mlacroix12/9/2010
7563
Is there another clause I should include in Construction solicitations/contracts that states that we will award without discussion, or is that necessary? Why would that clause not also apply to Construction solicitations/contracts? Thanks!
I'm pulling clauses for an IFB Construction contract and  52.214-10 does not apply to IFB Construction contracts.

Yes there are other (more appropriate) clauses; you should use Federal Acquisition Regulation (FAR) clause 52.214-18 -- Preparation of Bids – Construction in your Invitation for Bids (IFB).  Also, use the FAR clause 52.214-19 -- Contract Award -- Sealed Bidding – Construction, which states (in part) “… (a) The Government will evaluate bids in response to this solicitation without discussions and will award a contract …”

PostedContracting, Contracting_Architect-Engineer and Construction Contracting355812/21/2011 12:59 PM
35,581
System Account
108234
  
dapmembers:kevin.linden1/10/2011
7564
I currently have a contract that expires 30DEC2010. Subject contract was sole-source in accordance with a license agreement and had an approved J&A. Currently a new effort is underway but will not be in place until end of current FY. The contract that expires on 30DEC2010 has quantities and dollars that have not been expended. In order to service the needs of customers, can I bi-laterally modify the contract to extend the period of performance to utilize the remaining quantities authorized under the original J&A another year without a new J&A? I looked in the FAR and it does not state that a J&A is required for period of performance extension. I look forward to your response.
Period of Performance J&A
You would have to have a new J&A in order to extend your contract prior to modifying the contract.  Your original J&A was for the specific contract's time period and in essence that period will be over and you will have to justify a sole source on the new period of performance.
PostedContracting355802/21/2011 12:59 PM
35,580
System Account
108227
  
dapmembers:drobinson12/14/2010
7565
Is transportation severable and the cost of the transportation should be applied against FY11 appropriation. Is it proper/legal to obligate the funding for the transportation portion to the FY10 fiscal year funding.
One year appropriation used on Foreign Military Sales case.  Funds were issued to MILDEP for execution of the case.  Funding on the FMS case included cost for transportation.
ex:  funding on fms case expired 30 Sep 10 but the transportation/shipping of the material/items occurred after 30 Sep 10. 
Your question raises several issues that require some clarification.  First, FMS funding is normally “no year” money because the funds are not appropriated funds but rather come from another country.  For example, USAF FMS cases that I’ve seen have fund citations that start with 97X3600 (RDT&E funds), where the “X” replaces the single digit for the fiscal year.

Second, the issue of severability of transportation services (each shipment is a severable event) invokes the bona fide need rule.  Was the transportation of the item required in that fiscal year?  The transportation may have begun in one fiscal year and the ultimate delivery to destination was made in the next fiscal year, then the year the GBL or CBL was issued would control.

Now to your question, if you are using appropriated funds from the US Government, US Government rules apply.  Namely, you must meet the bona fide need rule for non-severable transportation services.  So, if you begin your shipment in FY10, you may use FY10 funds; if begun in FY11 then you would use FY11 funds.  The only potential for crossing fiscal years for non-severable transportation services would be if you could make a case that due to some contractor delay (excusable or non-excusable) a shipment slated for FY10 was delayed into FY11.  However, I would consult my local funds manager for clarification and authorization in such a case.

PostedBusiness, Business_Financial Management355762/21/2011 12:59 PM
35,576
System Account
108243
  
dapmembers:mmcurrier12/17/2010
7566
Could we purchase Squadron Logo Shirts for our Mobil Training Team Instrucors using GPC or O&M Funds?
I work in Educational Activity Command and would like to know if we could use GPC to purchse Squadron Logo Shirts for our Mobil Training Team Instructors.
The GAO has repeatedly held that articles of clothing are personal in nature and may not be bought with appropriated funds, so your answer is a definitive "NO".
 
While there are some limited exceptions for safety clothing, and where the clothing is part of a rewards program for exceptional performance, neither applies here.

PostedContracting, Contracting_Government-wide Purchasing Card355852/21/2011 12:59 PM
35,585
System Account
108241
  
dapmembers:vaswanso12/13/2010
7567
Can this contract contain a CLIN for each CPFF and CPAF contract type.
Sole procurement -
Budget 165 million
Requirement:; developing  and prototyping technology to support the fabrication of radiation-hardened microelectronics and photonic devices and materials for agency system application.
The following response is based solely on the question and background information provided. As we do not have all of the facts particular to your contract, program, and situation, we highly recommend you consult your Contracting Officer and Legal Office for guidance.
 
Based on the information provided, this response assumes your contract has not yet been awarded and that it will be negotiated under FAR Part 15.  Yes, your contract can contain both CPFF and CPAF CLINs.  FAR 16.102(b) states, in part “Contracts negotiated under Part 15 may be of any type or combination of types that will promote the Government’s interest, except as restricted in this part (see 10 U.S.C. 2306(a) and 41 U.S.C. 254(a)).”  Additionally, FAR 4.1001 states " Contracts may identify the items or services to be acquired as separately identified line items. Contract line items should provide unit prices or lump sum prices for separately identifiable contract deliverables, and associated delivery schedules or performance periods. Line items may be further subdivided or stratified for administrative purposes (e.g., to provide for traceable accounting classification citations).  More specifically, DFARS 204.7103-1(c) states “For a contract that contains a combination of fixed-price line items, time-and-materials/labor-hour line items, and/or cost-reimbursement line items, identify the contract type for each contract line item in Section B, Supplies or Services and Prices/Costs, to facilitate appropriate payment.”  For DoD activities, proper numbering procedures of line items is found at PGI 204.7103 in the DFARS.

Additional information is found at
FAR 16.103(a), which states “Selecting the contract type is generally a matter for negotiation and requires the exercise of sound judgment. Negotiating the contract type and negotiating prices are closely related and should be considered together. The objective is to negotiate a contract type and price (or estimated cost and fee) that will result in reasonable contractor risk and provide the contractor with the greatest incentive for efficient and economical performance.”  Finally, FAR 16.103(d) states “Each contract file shall include documentation to show why the particular contract type was selected. Exceptions to this requirement are --(1) Fixed-price acquisitions made under simplified acquisition procedures; (2) Contracts on a firm fixed-price basis other than those for major systems or research and development; and (3) Awards on the set-aside portion of sealed bid partial set-asides for small business.”

Taken as a whole, the FAR and DFARS allow you to include both CPFF and CPAF CLINs in one contract.
  You then need to structure your CLINs according to the guidance found in DFARS PGI 204.7103.  I encourage you to also look at your agency’s FAR Supplement to see if there is further guidance in these areas.

PostedContracting355832/21/2011 12:59 PM
35,583
System Account
108236
  
dapmembers:rdaugherty12/14/2010
7568
I presented our division heads with a list of system attributes and asked them to select the ones they felt should be included in the analysis of alternatives for every major project. Our deputy director feels the list is too long and recommended that I ask for your opinion of which attributes should be included in assessments for IT projects. Here is the list that is in the template right now. Please let me know if you think some should be deleted - or if we have missed any that we should have added. We have some projects awaiting AoA, so I am requesting the 1 day response so that we can complete and use the template. Thanks very much for your help. Accessibility Accuracy Administrability Authentication Availability Compatibility Confidentiality Configurability Fault Tolerance Integrity Interoperability Maintainability Reliability Requirements Traceability Responsiveness Reusability Scalability Simplicity Standards Compliance Upgradability Usability
I work for NAWCAD 7.2 and have been tasked with developing a template for us to use when comparing technology options for major project development.  One slide on the template lists System Attributes for comparative scoring.  Each Attribute has a field for

Weight (Importance to the particular project) with values of
0 - Not Applicable
10 - Desirable
20 - Important
30 - Critical

Each option will receive an Attribute Rating with the values of
1 - Weak performance
2 - Average performance
3 - Strong performance

The biggest issue with devising a template for conducting an AoA that is supposed to be relevant for all IT projects, is that each acquisition is unique.  That said, the AoA is supposed to be a way to narrow the potential alternatives (way ahead) related to the requirements for that particular acquisition.  In that vein, a standardized template would be difficult to craft, unless it included a small set of common traits all projects must meet.

The exception would be an overarching effort that all It related projects had to fit within (a system in a system of systems).  in that light, a template of sotrs that took into account the attributes necessary for determiining fit within the system of systems could be devised.  But, under that construct, indivudual attributes and advantages would be diminished for a "one-size-fits-all" type of application.

The AoA stage in an acquisition is designed to look at the individual attributes of an approach and how well they can meet the requirements for that particular system under development.  The more one tries to design a template that does not allow for the individuality in the approaches, the more the benefit of the AoA is diminished.
PostedInformation Technology, Program Management, Systems Engineering355822/21/2011 12:59 PM
35,582
System Account
108256
  
dapmembers:klindsay12/16/2010
7569
Are FMS contract actions exempt from the requirements of FAR 19.702 in reference to the submission of an acceptable small business subcontracting plan
A contract activity affiliated with my organization is looking to award an FMS contract.
No. FMS contract actions are not exempt from submission of a small business subcontracting plan.

Per  HQ AFMC/PK Policy Clarification Memorandum dated 13 Nov 2009 and FAR 19.702 , Subcontracting Plans are required for all contracting actions individually expected to exceed $650,000 ($1,500,000 for construction) unless they meet the exceptions specifically identified in FAR 19.702(b):
(1) From small business concerns;
(2) For personal services contracts;
(3) For contracts or contract modifications that will be performed entirely outside of the United States and its outlying areas; or
(4) For modifications to contracts within the general scope of the contract that do not contain the clause at 52.219-8, Utilization of Small Business Concerns (or equivalent prior clauses, e.g., contracts awarded before the enactment of Public Law 95-507).
 
Lastly, the Small Business Administration currently does not include Foreign Military Sales (FMS) acquisition dollars in computations for Small Business Goal achievement for the Department of Defense.  Contracts with directed sources of supply such as the Committee for Purchase from the Blind and Severely Handicapped, contracts to the Federal Prison Industries, and contracts with an award performance outside the United States are also excluded from the Small Business goal determinations. However, these exclusions do not relieve the Contracting Officer from the requirement for ensuring a Subcontracting Plan is submitted per FAR 19.702 
PostedContracting355872/21/2011 12:59 PM
35,587
System Account
108253
  
dapmembers:ry1nik12/10/2010
7570
Can I go ahead and exercise the Option, making the ACRN for $0.00, based on the availability of funds. Then modify the contract to add funds to the contract.
I have an Option that needs to be exercised by today.  Finance has not cut the PR, but they are doing it right now.  So today I will not have money to put on the option.
Yes you can. This is done frequently under Continuing Resolution Authority conditions as we are currently experiencing in DoD. Finance had to wait for a funding authorization document (FAD) before it could process the purchase request. In the meantime, you can avoid losing the ability to exercise the option by proceeding as you are suggesting.
PostedContracting355842/21/2011 12:59 PM
35,584
System Account
108257
  
dapmembers:ldeneault12/20/2010
7571
Can we ask for and evaluate Change Order Mark-up Rates, or do they only apply to construction/A&E contracts?
We're getting ready to compete an Environmental Services solicitation (non-commercial, not FSC).  This will be a Multiple Award IDIQ Contract .
You should use scenerios, an example, or both in your Section L instructions for pricing the proposal so there is no confusion on
1. The meaning of "mark up rates" (OH, profit, G&S, labor rates etc)
 2. When the rates would be used (just for change orders or also used if the modification was negotiated) 
PostedContracting, Contracting_Services355862/21/2011 12:59 PM
35,586
System Account
108261
  
dapmembers:drobinson12/15/2010
7572
What options does the new entity have ? Should they approach the DCMC Deputy for Small Business or some other small business advocate and ask for assistance in obtaining ACO forbearance in their attempts to 'catch-up' with the indirect cost proposal submission ? And, would this trigger the (perceived) need by DCAA to come in and audit the accounting system ?
A DoD contractor has a DCAA approved accounting system for all contract types.  A wholly-owned subsidiary of the DoD contractor spins-off from its parent and becomes a stand-along entity.   The new entity maintains the cost accounting system (CostPoint) and does not deviate from any of the parents' practices regarding time collection, etc.

The new entity is a small business with about 100 employees.   The entire business base is various subcontracts to DoD prime contractors (no prime contracts with DoD).  Several of the subcontracts are flexibly-priced (i.e., CPFF).  The subcontracts were already negotiated (prior to the spin-off) and do not allow audit rights to the prime contractor.   The new entity wants to keep it this way. 

The subcontracts continue during the transition from wholly-owned subsidiary to new entity without change, audit or other action.  (Approval was given by the prime for the novation.)

The new entity is concerned that their 'ticket' for flexibly-priced contracts is on shaky ground given its new entity status, the length of time it has been separated from its parent (now about 3 years) and the lack of new and/or relevant audited DCAA data.

The new entity is concerned about the extremes of a DCAA audit given the pass / no-pass criteria.  Said another way, if DCAA determined their system not adequate, it would have serious consequences.

The new entity is planning to bid as a prime for CPFF work.   They have just realized that they have not submitted the required indirect cost proposal submission due 6 months after the close of the prior fiscal year.
DFARS Subpart 242.72 sets out the requirements for evaluation of contractor accounting systems.  With the given scenario for cost reimbursement contracts, and assuming the contracts are over the simplified acquisition threshold and not for commercial items, and also assuming the contractor is not a small business (see DFARS242.7200), then DoD policy is for its contractors to have material management and accounting systems that conform to standards specified in DFARS 252.242-7004(e).  In the given scenario, once the subsidiary has spun off and is an entirely separate entity, the requirements of Subpart 242.72 attach, irrespective of the status of the accounting system of the former parent company.
 
The late indirect cost proposal submission is problematic.  Requesting help, or at least an opinion, from the regional DCMA or the Small Business Administration is probably a good idea.  The contractor would be acknowledging the problem and seeking help to fix the problem from the people who are going to have to "approve" the solution."
 
Naturally, the contractor should seek counsel from their legal adviser on the specifics of their situation. 

PostedAuditing, Auditing_Cost Accting Standards355912/21/2011 12:59 PM
35,591
System Account
108258
  
dapmembers:rdaugherty12/10/2010
7573
Is CSTF testing for interoperabilty certification required prior to going to an IOTE? Is it required prior to Full Rate Production decision so it can be done in parallel w/ IOTE?
Trying to align a project schedule to make sure CTSF testing is in the correct place in the program schedule
The Central Technical Support Facility (CTSF) is an Army facility to test theater-level system-of-systems products in a net-centric environment. It is the U.S. Army’s strategic and central testing facility responsible for interoperability engineering, executing Army Interoperability Certification (AIC) testing, maintaining configuration control for all operational through tactical-level information technology/national security systems, and supporting deployed warfighters’ digital needs.

As such, it is primarily responsible for the developmental testing of Army assets that meet the definition.  This would normally be done during the developmental cycle (pre-Milestone C production decision).  IOT&E is the ONLY statutorily required testing for a program.  It is separate and distinct from CTSf testing, and is conducted by independent test agencies (OTAs) under the guidance of DOT&E, and responsible to Congress for its' report out.  As part of the IOT&E for Interoperability concerns, the JTIC (Joint Operability Test Command) headquartered at Ft Huachuca, AZ would be required to provide an Interoperability determination for the program.  The results of the IOT&E (and Interoperability determination) will feed the Full Rate Production Decision (FRPDR).

For scheduling purposes, the CTSF testing should be done prior to IOT&E in order for the service to determine the readiness of the program for the OTA conducted IOT&E.

PostedProgram Management, Test and Evaluation355882/21/2011 12:59 PM
35,588
System Account
108270
  
dapmembers:drobinson12/15/2010
7574
I have a question regarding contractor acquired property (CAP) which is purchased under a Dept. of State contract overseas which is not a fixed price contract and not real property. Is it possible to transfer or dispose of CAP purchased under a contract through a property grant to a NGO overseas (either US or foreign NGOs)? FAR 45.602 (1) (c ) (iii) states; The Government has authorized the contractor to use the property on another Government contract. Does this also apply if the Government has authorized a grantee to use the property on another Government grant as the property is no longer needed on the original contract? As a secondary question if the answer is yes, would the following steps allow the transfer to take place? 1. Contract Officer makes a modification to the original contract to remove all CAP from the contractor's inventory stating that the government will take ownership of said property. 2. Grants Officer creates a property grant to the NGO (Grantee) transferring the original CAP to the NGO for the purpose of the grant.
Department of  State Contractor.  Question regarding contractor acquired property overseas and disposition instructions when the contract is finishing up/ property no longer needed. 

We would like to give the property to another entity: typcially an NGO (foreign and US), occassionally a foreign govt. body.   Can we dispose of or transfer CAP through a property grant?
Contractor Acquired Property (CAP) is acquired, used, and disposed of in accordance with the terms and conditions of a contract.  It must also comply with all applicable regulatory and statutory requirements associated with these processes.  That includes CAP that is purchased under a Department of State contract overseas.  If the Government Property is located outside the United States then a Status of Forces Agreement (SOFA) may be applicable. 

If the intent is to transfer the CAP to a Non Government Office (NGO) then it is imperative to contact the appropriate official who has the authority to make the transfer or donation.  This process must be discussed with the Contracting Officer and Plant Clearance Officer who have the authority for contract issues like transfers and disposal actions under the contract where the CAP is accountable.  In this situation it is advisable to contact the Department of State to see what Status of Forces Agreement or other requirements that may be applicable.


PostedIndustrial and Contract Property Management355922/21/2011 12:59 PM
35,592
System Account
108260
  
dapmembers:drobinson12/14/2010
7575
Professor, I'm having a hard time generating an Independent Government Estimated Cost. The performance of this service contract requires the collection, storage, transportation and destruction of classified, confidential and unclassified material by incineration at a certified destruction firm. It also requires the operation of a strong room used as storage and staging area provided by the Government. The volume of material to be handled is approximately five tons per week which includes, magnetic media, magnetic tapes, audio, disk drives, diskettes, USB flash drives, etc., Using a closed motor vehicle provided by the contractor, they transport all burn bags to the destruction facility twice a month by traveling approximately 300 miles. The contractor is not required to maintain the same hours as Government employees but must do the work during the normal workweek hours. Contractor must pay a fee at the destruction facility and must pay for the fuel. A crew of three employees does all the work. Is there any guidance as to how to generate the IGEC or can you provide some guidance. Thank you very much,
Commercial Services Contract.
1 Base Year plus 4 Option Years
Small Business
Secret Clearance required
The services I am trying to procure are:

DESTRUCTION OF CLASSIFIED MATERIAL BY INCINERATION.

I must assume that you meant IGCE, Independent Government Cost Estimate and not IGEC.  If you do a Google search using “IGCE” and select the third hit, you will find a briefing that contains some basic guidance.  Please note that the SAT, Simplified Acquisition Threshold, is now set at $150,000 not $100,000.  That third hit is titled: Independent Government Cost Estimate (IGCE).  This document is dated 2006 but does a good job of presenting general guidance on IGCEs.  The search will also provide additional references.  Since you did not state the dollar value or the specific services you are planning to acquire, I recommend that you contact your local pricing office for your local policy specific to your subject procurement.

PostedBusiness, Business_Cost Estimating355892/21/2011 12:59 PM
35,589
System Account
108272
  
dapmembers:mmcurrier12/17/2010
7576
What causes the U.S. Government to shut-down, and what services or enities continue to function after the U.S. Government shut-down?
Why U.S. Government shut-down, and is left running after the shut-down.
The government can shut down when there are emergencies or life and safety are issues. The most frequent cause of government shutdowns is inclement weather- usually snow or ice storms. Government shutdowns can also be caused by volcanic eruptions, typhoons, floods or other natural disasters. Sometimes at a specific facility, a waterpipe bursts or the air conditioning shuts down in the middle of a heat wave, or there is a blackout and power is not expected to be restored for a long time. If there was a fire or other major problem in a Government building, the senior Government employee at the facility can order it closed until the situation is rectified.
 
Military bases and US Embassies can be closed if there is a substantial risk of a terrorist attack, or if an actual attack has occurred.
 
The Government can also be shut down if there are no appropriations to pay salaries- in that event non-essential personnel are placed on furlough and the base/facility closes.
 
When former US Presidents die,recent history indicates that the current President orders a national day of mourning and closes the Government as a sign of respect.
 
In the Washington DC area only, the Government shuts down for Inauguration Day once every four years
PostedContracting355942/21/2011 12:59 PM
35,594
System Account
108267
  
dapmembers:gwspohn12/27/2010
7577
1. Is there authority that restricts contracts with UARCs to the type let by the sponsoring agency or allows deviation from that type? If so what is it. 2.The UARC management plan states, " The term average is defined as over the length of their contract(s), but not more than 5 years." What authority would allow a contract to go beyond 5 years. Is there an authority that would allow a contract for more that 5 years? If so what is it and who can approve a contract for more than 5 years.
A new contract  for a research/development effort is being planned for a UARC.  This contract will not be an order from the sponsoring acgency contract.  The sponsoring agency has a CPFF with the UARC.   Multiple individuals have have said any contract let with the UARC must follow the sponsoring agency's contract type and the UARC's management plan. I have been unable to find this in writing.  This will be a multi part questions.
1. The following references quoted below in pertinent part are applicable to this response.

FY10 DoD University Affiliated Research Center (UARC) Management Plan dated July 2010 (as issued under the Director of Defense Research and Engineering Memorandum dated 08 Aug 2010)
B.  Applicability.
  2. College and University laboratories that receive sole source funds on average, exceeding $6 million annually under authority of 10 U.S.C. 2304(c)(3)(B), to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center, and are designated UARCs by the Director, Defense Research and Engineering (DDR&E), are subject to this plan.  The term average is defined as over the length of their contract(s), but not more than 5 years.
  3. There exist college and university laboratories that receive sole source funds, but are not considered UARCs.  These fall under two categories:
   a. College or university laboratories that receive on average less than $6 million annually under the authority of 10 U.S.C. 2304(c)(3)(B) are not considered UARCs.
   b. College and university laboratories that receive sole source funds in excess of $6 million annually, but under authorities other than 10 U.S.C. 2304(c)(3)(B) are not considered UARCs.  DoD does not fund these institutions to establish or maintain an essential capability.  Rather, DoD uses these organizations because of other considerations. 

C.  Definitions.
  1. UARC.  A UARC is an organization which has the following characteristics:
   a. It is a research organization within a university or college.
   c. It receives sole source (non-competitive) contract funding from DoD under the authority of 10 U.S.C. 2304(c)(3)(B) … .  It may also receive DoD funding under other authorities, or funding from other sources, which is therefore not subject to this plan.
   d. On average, it receives in excess of $6M annually from DoD of such sole source funds.
  2. Primary Sponsor.  One DoD Service or Agency formally designated as primary sponsor by the DDR&E for each UARC.  The primary sponsor works with Contracting Activities in implementing DoD’s UARC management  policies and procedures.
  3. Contracting Activity.  A Contracting Activity is a DoD component that awards a contract or contracts under the authority of 10 U.S.C. 2304(c)(3)(B) to a UARC. 
  4. Tasking Activity.  A Tasking Activity is the DoD entity that requires and funds the services of a UARC for performance of DoD specific work.

D.  Policy
  4. UARCs are not restricted to providing support only in early science and technology (6.1 basic and 6.2 applied research) programs.  UARC core competencies may also be available to support advanced technical development and advanced component development and prototype engineering programs (6.3 and 6.4) when resources are available.

E.  Responsibilities
  2. A UARC Primary Sponsor shall:  
  f. Review UARC contractual relationships for consistency with provisions of the Management Plan.
  h. Collaborate, as needed, with Tasking Activities and UARCs to define and prioritize UARC work in a manner that is responsive to overall DoD priorities.  A Primary Sponsor shall not reject work going to the UARC from other DoD organizations without sufficient cause.
  3. A Contracting Activity shall:
  a. Implement and ensure agency contracts are consistent with the UARC Management Plan.
  b. Ensure that all work performed under the authority of 10 U.S.C. 2304(c)(3)(B) is consistent with the UARC’s DoD mission and its core competencies.
  4. A Tasking Activity shall:
  d. Provide the Primary Sponsor and the Contracting Activity the rationale for selecting the UARC as the performer of choice for each task.
  e. Collaborate, as needed, with the UARC Primary Sponsor and the UARC to define and prioritize UARC work in a manner that is responsive to overall DoD priorities.
 
F.  Procedures
  1. Contracts.  The instrument(s) under which the UARC performs DoD work pursuant to 10 U.S.C 2304(c)(3)(B) shall be a contract or contracts between the UARC and Contracting Activities, and will be subject to the principles and guidelines of this Management Plan and consistent with the appropriate sections of the Federal Acquisition Regulation. 

FAR 16.405-1 -- Cost-Plus-Incentive-Fee [CPIF] Contracts
 (b) Application
   (1) A cost-plus-incentive-fee contract is appropriate for development and test programs when -- (i) A cost-reimbursement contract is necessary; and (ii) A target cost and a fee adjustment formula can be negotiated that are likely to motivate the contractor to manage effectively.
   (2) The contract may include technical performance incentives when it is highly probable that the required development of a major system is feasible and the Government has established its performance objectives, at least in general terms. This approach also may apply to other acquisitions, if the use of both cost and technical performance incentives is desirable and administratively practical.

FAR Subpart 16.5 -- Indefinite-Delivery Contracts
FAR 16.505 -- Ordering

(c)  Limitation on ordering period for task-order contracts for advisory and assistance services.
   (1) Except as provided for in paragraphs (c)(2) and (c)(3), the ordering period of a task-order contract for advisory and assistance services, including all options or modifications, normally may not exceed 5 years.
   (2) The 5-year limitation does not apply when--  (i) A longer ordering period is specifically authorized by a statute; or (ii) The contract is for an acquisition of supplies or services that includes the acquisition of advisory and assistance services and the Contracting Officer, or other official designated by the head of the agency, determines that the advisory and assistance services are incidental and not a significant component of the contract.

FAR Subpart 17.1 -- Multi-Year Contracting
FAR 17.104(a) – Multi-year contracting is a special contracting method to acquire known requirements in quantities and total cost not over planned requirements for up to 5 years unless otherwise authorized by statute.

FAR 17.106-3 -- Special Procedures Applicable to DoD, NASA, and the Coast Guard
(d) Contracts awarded under the multi-year procedure shall be firm-fixed-price, fixed-price with economic price adjustment, or fixed-price incentive.

FAR Subpart 22.10 -- Service Contract Act of 1965, as Amended
FAR 22.1002-1 -- General.  Under 41 U.S.C. 353(d), service contracts may not exceed 5 years.

DFARS Subpart 217.2--Options
DFARS 217.204 -- Contracts

(e)(i) Notwithstanding FAR 17.204(e), the ordering period of a task order or delivery order contract (including a contract for information technology) awarded by DoD pursuant to 10 U.S.C. 2304a— (C) Shall not exceed 10 years unless the head of the agency determines in writing that exceptional circumstances require a longer ordering period.

DFARS 207.103 Agency-head responsibilities
(d)(i) Prepare written acquisition plans for— (A) Acquisitions for development, as defined in FAR 35.001, when the total cost of all contracts for the acquisition program is estimated at $10 million or more

2. In response to the first part of this inquiry, we can find no express limitation in the FY10 DoD UARC Management Plan (hereinafter, “the Plan”) that restricts contracts with UARCs let by Contracting Activities to the contract type let by the sponsoring agency. In fact, DoD policy as stated in paragraph D.4 of the Plan states that UARCs are not restricted to providing support only for 6.1 basic and 6.2 applied research programs, which are usually awarded on a CPFF basis, but that UARC core competencies may also be used to support advanced technical development and advanced component development and prototype engineering programs (6.3 and 6.4). Typically, it is possible to devise predetermined objective incentive targets applicable to cost and technical performance for 6.3 and 6.4 type programs, which would lead to the use of CPIF type contracts as prescribed in FAR 16.405-1(b). Therefore, quite to the contrary, we believe that DoD Policy and Procedures as expressed in paragraphs D.4 and F.1, respectively, of the Plan would permit the use of different contract types with a given UARC depending upon the nature of the development work being that is being acquired by the Contracting Activity from that UARC.

3. The second part of this inquiry is concerned with a possible “5-year” limitation on the UARC contract period of performance.  In response, the statement in paragraph B.2 that: “The term average is defined as over the length of their contract(s), but not more than 5 years,” must be read in context with the rest of this paragraph, with paragraph B.3, and with the definition of a UARC in Section C.1 as described above. When read in context, this statement does not mean that the UARC Management Plan mandates a maximum 5-year performance period for any UARC contract.  Rather, it refers to the annual average amount of sole source funding under the authority of 10 U.S.C. 2304(c)(3)(B) that a research organization within a university or college must receive to establish or maintain an essential engineering, research, or development capability in order to be considered a UARC.  As specified in paragraph B.3.a of the Plan, college or university laboratories that receive on average less than $6 million annually under the authority of 10 U.S.C. 2304(c)(3)(B) are not considered to be UARCs.  Therefore, the term “average” means the time period over which the UARC must receive such annual sole source funding of at least $6 million, which time period may vary from the length of the UARC contract to “no more than 5 years”, in order to maintain its status as a UARC.

4. With regard to time limits on the length of DoD contracts in general, our review of the FAR and DFARS as described above indicates that contract performance period limitations are only applicable to the following categories of contracts. Each of these contract categories either have specified approval requirements, or would require a FAR deviation, to exceed these limitations.
  • Task-order contracts for advisory and assistance services (5 years)
  • Multi-year contracts (for DoD, restricted to fixed-price type contracts) (5 years)
  • Service contracts (5 years)
  • Task order or delivery order contracts with options (10 years)
Therefore, if the contract being awarded to the UARC does not fall within any of the contract categories listed above, then there is no limitation specified in the FAR governing the length of the contract performance period.

5. However, if the UARC acquisition is for a 6.3 or 6.4 development effort, then the probable dollar value of the acquisition would require the development and approval of a written Acquisition Plan that would state the proposed contract type and contract performance period.  Based on the responsibilities of Contracting Activities and Tasking Activities as set forth in the Plan as described above, this Acquisition Plan would require the approval of the DoD Primary Sponsor for the UARC so that the sponsoring agency can fulfill its obligations under the Plan to review UARC contractual relationships for consistency with provisions of the Plan and to collaborate with Tasking Activities and UARCs to define and prioritize UARC work in a manner that is responsive to overall DoD priorities. As stated in paragraph E.2.h of the Plan, a Primary Sponsor shall not reject work going to the UARC from other DoD organizations without sufficient cause.



PostedContracting355902/21/2011 12:59 PM
35,590
System Account
108271
  
dapmembers:mmcurrier12/17/2010
7578
What causes the U.S. Government to shut-down
previous U. S. Government shut-downs
The government can shut down when there are emergencies or life and safety are issues. The most frequent cause of government shutdowns is inclement weather- usually snow or ice storms. Government shutdowns can also be caused by volcanic eruptions, typhoons, floods or other natural disasters. Sometimes at a specific facility, a waterpipe bursts or the air conditioning shuts down in the middle of a heat wave, or there is a blackout and power is not expected to be restored for a long time. If there was a fire or other major problem in a Government building, the senior Government employee at the facility can order it closed until the situation is rectified.
 
Military bases and US Embassies can be closed if there is a substantial risk of a terrorist attack, or if an actual attack has occurred.
 
The Government can also be shut down if there are no appropriations to pay salaries- in that event non-essential personnel are placed on furlough and the base/facility closes.
 
When former US Presidents die, recent history indicates that the current President orders a national day of mourning and closes the Government as a sign of respect.
 
In the Washington DC area only, the Government shuts down for Inauguration Day once every four years.
 

PostedContracting355932/21/2011 12:59 PM
35,593
System Account
108273
  
dapmembers:vaswanso12/13/2010
7579
Can the new larger entity take over/ use the IDIQ of the Smaller entity and if the entity is changed is it a scope change now that we want to involve a larger arena of people? Would we violate the scope if we involve the larger arena of people? Can you expand an IDIQ contract?
The smaller entity is now taken over by a larger entity. We have an IDIQ contract established with the smaller entitiy.
The following response is based solely on the question and background information provided.
 
With the limited information provided, it appears that one company has gained ownership of the government's contractor who holds the IDIQ contract with your agency. As a general rule, there is a prohibition on the transfer of
Government contracts from one contractor to a third party. However, the Government may, when it is in its interest, recognize a successor in interests to Government's contract when the assets of the contract holder are transferred through a legal transaction. When that happens and it has been determined to be in the Government's best interest, the responsible contracting officer shall execute a novation agreement with the transferor
and the transferee. This is covered in some detail at FAR 42.1200.
 
The determination as to whether this is in the best interest of the Government depends on several factors and is the decision of the contracting officer.
 
If there is a change in ownership of a contractor as a result of a stock purchase, with no legal change in the contracting party, and when that contracting party remains in control of the assets and performance of the contract, a novation agreement is not required.
 
Before executing any novation agreement or change of name agreement, the contracting officer shall obtain a legal review of the agreements. Once the agreement has been reviewed for legal sufficiency, a modification to the contract is executed to consummate the change.
 
Reference: FAR 42.1200
 

PostedContracting355952/21/2011 12:59 PM
35,595
System Account
108275
  
dapmembers:drobinson12/14/2010
7580
Can you direct me to the documentation that was relied on in reaching the conclusion discussed above?
DAU posted a Question and Answer on this subject on August 17, 2009.  The answer states that the GAO and Surgeon General had concluded that electrolyte solutions offer no benefits beyond those offered by bottled water and that consequently, apporpriated funds could not be used to puchase such solutions.  I have search the Surgeon General's web site and the GAO's web site for the documentation that supports this conclusion but I have not been successful.
The original question came from a member of the Department of the Navy.  The reference discussing the Surgeon General conclusion came directly from a DoN Regional Contracting Office Policy Notice 04-02.  Further references to the actual Surgeon General conclusion are unknown at this time.  However, the overruling point is that personal items such as water, or other drinks, are not to be purchased using government funds.  The Principles of Appropriation Law is published by the U.S. General Accounting Office and explains decisions made by the Comptroller General of the United States. Vol. II, page 4-86 answers this question: "The well-settled rule is that the government may not furnish free food (the decisions sometimes get technical and use terms like "per diem" or "subsistence") to employees at their official duty station, even when they are working under unusual circumstances."  The only exception is that drinking water may be provided when potable water source is available.

PostedContracting355962/21/2011 12:59 PM
35,596
System Account
108280
  
dapmembers:aconnery12/14/2010
7581
Will the new Women-Owned Small Business Rule going into effect February of 2011 have the $3 and $5 million dollar thresholds be adjusted upward for inflation?
With the new Women-Owned Small Business Rule going into effect in February of 2011, will the thresholds be revised for inflation when it is implemented?  When the Federal Register published the final rule October 7, 2010, the $5million (construction contracts) and $3million (other contracts) dollar thresholds were identified.  Another document, FAC 2005-45 dated 1 October raised the thresholds for SDVOSB, HubZone and 8(a) small businesses to $6 million and $4 million. 
That is a great question! Currently, as stated in the FAC dated October 2010, the thresholds for the Women-Owned Small Business (WOSB) Program are $ 5 million in the case of manufacturing contracts and $ 3 million in the case of all other contracts.  There is no specific dollar threshold referenced for construction.  It is not known at this time if these thresholds will change once the law is promulgated into the Federal Acquisition Regulation and the change will be directed by the Small Business Administration when and if made.  You may find current information on the WOSB program at www.sellingtoarmy.info under "HIGHLIGHTS" and "Information on New WOSB Rules".

PostedContracting355982/21/2011 12:59 PM
35,598
System Account
108278
  
dapmembers:drobinson12/17/2010
7582
Can software be declared to be DMSMS? Can a manufacturer, such as Lockheed Martin, declare a subcomponent within a weapon system to be DMSMS due to a supplier declaring the subcomponent software to be obsolete/unavailable?
The C-130J aircraft is currently in production and has fielded 136 aircraft. The production line will continue for several years to come with 60 plus aircraft still to be produced. The C-130J is starting to encounter numerous systems being affected by DMSMS. The ARC-231 voice radio is used on the MC-130J and is manufactured by Raytheon. Rayteon has declared the current Mod 7 radio obsolete. Raytheon has stopped producing this version of the radio and now is offering the Mod 9 radio. The Mod 9 radio is identical to the Mod 7 radio as far as the hardware is concerned. The difference is in the software. Mod 9 software introduces selectable SATCOM capability as well as it continues to support the existing VHF and UHF capabilities. The selectable SATCOM capability essentially is the ability to use pre-set frequencies within the full range of SATCOM frequencies. A Mod 10 will be coming out next fall which will allow the user to use all frequencies for the SATCOM portion of the radio.
The C-130J SPO has two paths that can be followed to make this change. The DMSMS ECP path is the quickest but is restricted to DMSMS related actions and does not allow for upgrades unless they are part of the replacement solution. The other path is through a normal ECP. A normal ECP takes 6-12 months to get on contract whereas a DMS ECP may take two to three months. DMSMS is funded  through a difference pot of funds whereas a normal ECP, depending on its scope and cost, may require funding from the customer which may need to be POM'd for. Lockheed Martin, the manufacturer of the C-130J and all of its variants, has purchased all of the available Mod 7 radios they can which will support the production line until early 2013. So, the introduction of a replacement solution must be started ASAP or else the USG will be forced to field aircraft without radios.
Yes, any item can be discontinued and declared to be obsolete by a producer.  This is equally true for hardware or software. This is assuming there is no legal obligation to continue production, such as a contract.  For our defense industry to remain competitive, we need to allow them to continue to advance the state of the art.

The question background describes two ECP alternatives being considered.  Each alternative has advantages and disadvantages with respect to timing, funding and war fighter considerations.  These tradeoff considerations will likely vary over time.  SPO management is in the best position to navigate these issues.


PostedProduction, Quality, and Manufacturing355972/21/2011 12:59 PM
35,597
System Account
108282
  
dapmembers:pete_chase1/28/2011
7583
What mechanisms exist for afloat/operational commands to make suggestions to the acquisition community to evalute this type of equipment?
During the last few weeks USS Abraham Lincoln has been operating with FS Charles de Gaulle.  During these operations several personnel exchanges occurred.  In one of these visits my Strike Group commander observed an unmanned aircraft tractor on the French Navy uses to taxi aircraft onboard their aircraft carrier.  I was tasked with gathering information about this particular piece of aviation support equipement and having the acquasition community look at the feasiblity of procuring this system.
Suggestions for testing foreign equipment should follow guidelines for Foreign Comparative Testing (FCT) as described in the 2007 Comparative Testing Handbook that can be found at: <http://www.acq.osd.mil/cto/
 
  The Foreign Comparative Testing Naval Point of Contact is:
  Department of the Navy
  Office of Naval Research
  875 N. Randolph St, Suite 252, Code 03T
  Arlington, VA 22203
  Tel: 703-696-0340 Fax: 703-588-1013
 
The Foreign Comparative Testing (FCT) Program tests items and technologies of our foreign allies that have a high Technology Readiness Level (TRL) in order to satisfy valid defense requirements quickly and economically. FCT continues to be a uniquely successful acquisition tool from a U.S. Government-to-Foreign Industry standpoint. Since 1980, the FCT Program has helped to foster the two-way street in defense spending between the U.S. and its Allies through the procurement of more than $10 billion in foreign items. The program has reaped substantial savings by avoiding research and development costs, lowering procurement costs, reducing risk for major acquisition programs, and accelerating the fielding of equipment critical to the readiness and safety of U.S. operating forces.

The FCT Program has served as a catalyst for industry teaming arrangements, which have been productive for both U.S. and foreign industries in an increasingly competitive global market, helping to build a robust U.S. defense industrial base. Foreign items are nominated by a sponsoring organization within the DoD for testing in order to determine whether the items satisfy U.S. military requirements or address mission area shortcomings. The Office of the Secretary of Defense (OSD) Comparative Testing Office (CTO) funds testing and evaluation; the Services fund all procurements that result from a successful test. Additional information on the FCT program can be found at the OSD CTO BIDS website: 
https://cto.acqcenter.com/osd/portal.nsf.
 
Commands interested in submitting an FCT proposal should contact their appropriate SYSCOM FCT Coordinator for additional information and guidance:
 
  NAVSEASYSCOM FCT Program Manager
  (703)-599-5645
 
  NAVAIRSYSCOM FCT Program Manager
  (301)-757-6670
 
Draft FCT proposals for FY 2012 are due to the appropriate SYSCOM FCT Coordinator no later than March 19, 2011. 
 
Some initial FCT information from the Comparative Testing Handbook states:
 
"C2.6.2. FCT [Foreign Comparative Testing] is authorized under Title 10, U.S. Code Section 2350a(g), and is funded through Program Element 0605130D in the Defense-wide Research Development Test and Evaluation (RDT&E) 0400 Budget.  FCT was Congressionally authorized in 1989.
 
“C2.7. PROGRAM OBJECTIVES.  FCT Program objectives are to improve the U.S. warfighter's capabilities and reduce expenditures through:
 
1. Rapidly fielding quality military equipment
2. Eliminating unnecessary duplication of research, development, test, and evaluation
3. Reducing life cycle or procurement costs
4. Enhancing standardization and interoperability
5. Promoting competition by qualifying alternative sources
6. Improving the U.S. military industrial base"

PostedOther, Other_Acquisition Policy356002/21/2011 12:59 PM
35,600
System Account
108284
  
dapmembers:vaswanso12/14/2010
7584
Does this prohibit the Government from issuing a delivery order for the procurement of parts under this contract? If so does the procurement of parts under a task order prohibit the Government from requiring the parts to be separately priced?
This is a Sole Source IDIQ contract in which the contract states "contract...under which...task orders will be issued for .. upgrades, spare parts, engineering systems integration, configuration management...".  The solicitation identifies the procurement, if awarded, resulting in a task order under the IDIQ contract.

The Government is ordering initial spares for deployment under this contract.

The contractor contends creating a delivery order would be a cardinal change.
The following response is based solely on the question and background information provided. As we do not have all of the facts particular to your contract, program, and situation, we highly recommend you consult your Contracting Officer and Legal Office for guidance.
 
A contract may be deemed a “services contract” though it may include orders for supplies if its primary purpose is services.  
  FAR 37.000: This part applies to all contracts and orders for services regardless of the contract type or kind of service being acquired. 
  FAR 37.101: Service contract means a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply. 
 
As to disputes between the contractor and the Government, courts use the term “cardinal change” to describe changes that are beyond the scope of the contract. The test applied to determine whether work is within the scope is whether it would have been “fairly and reasonably within the contemplation of the parties when the contract was entered into.” (Freund v. United States, 260 U.S. 60 (1922) Here, it appears the parties contemplated orders for spare parts, since you cite spare parts as being identified in the contract scope itself.
 
If the contract specifically allows orders for spare parts in the Schedule, it appears the Contractor is obligated to furnish them, subject to any ordering quantity or other limitations in the contract.
  FAR 52.216-18: (a) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals designated in the Schedule…
  FAR 52.216-22: (b) The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule…”
 
However, you should consult with your contracting officer and legal office for guidance as the contract may contain other language not cited here that could change this result.

PostedContracting356012/21/2011 12:59 PM
35,601
System Account
108289
  
dapmembers:mmcurrier12/17/2010
7585
Is there any guidance on how much fee (percentage) a contractor should earn on a proposal if the proposal preparation effort is FFP or CPFF? Do you have to execute a contract mod adding the new DO and proposal preparation CLIN as part of the RFP for the new DO?
I am an A&AS contractor supporting ASC at WPAFB.  I am supporting a program that has a recently awarded sole source IDIQ contract.  A delivery order has already been awarded and we are currently planning to request a proposal to add additional RDT&E work on a new delivery order.  The contractor's disclosure statement specifies that proposal preparation costs will be a direct charge for this effort.  We are exploring the various ways to fund and pay for the proposal as well as looking for some guidance on how much fee a contractor should earn on proposal prep costs.  We anticipate a separate CLIN for proposal preparation.
There is no guidance on this- the contracting officer determines what a reasonable fee is; however, the contracting officer may consider minimal fee on this type of effort- there is no risk, the task is repetitive in nature and usually does not require new or innovative efforts.

A modification would ber executed to add additional work under the delivery order.


PostedContracting356022/21/2011 12:59 PM
35,602
System Account
108291
  
dapmembers:ry1nik12/13/2010
7586
Can the Unusual and Compelling Urgency justification be used if the root cause is lack of adequate planning?
My organization is using the Unusual and Compelling Urgency justification from FAR Part 6 to justify a sole source award. From what I understand, the reason they are in this situation is due to the requiring activity not adequately planning for the acquisition, which resulted in a rush to get the requirement on contract.
FAR 6.3 (c)(1) <http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/06.htm> states that contracting without providing for full and open competition cannot be justified based on the lack of advance planning by the requiring activity. This restriction applies to any of the exceptions to full and open competition, but especially to the Unusual and Compelling Urgency exception. This restriction is necessary because some organizations could take advantage of the exception by routinely neglecting to perform effective acquisition planning, and relying on the exception to fix the situation it finds itself in due to poor planning. 


PostedContracting, Contracting_Source Selection356042/21/2011 12:59 PM
35,604
System Account
108293
  
dapmembers:ry1nik12/27/2010
7587
What, if any, is the best practice for holding on to these bonds once the project is complete? Can they be sent back after payment has been made, and the contractor has signed a release for any future claims? Or is there a better time period that should be allowed in case a sub-contractor states they were not paid for work completed through the Government Contract? Thank you in advance!
In Construction Contracting, Over $30K, we are required to obtain Payment Bonding for the Full amount of the Contract, and same with Performance Bonding over $100K
Each performance and payment bond should specify on its face when the bond becomes void, e.g., after the contractor completes all work requirements, settles any claims against it (liquidated damages, other losses), pays subcontractors in full, etc. I've also seen bonds that remain in effect until a specified number of days after a fixed milestone, such as after acceptance of the completed work. Once the bond is voided according to the terms on the bond itself, the bonds have no value. However, they should be retained as part of the completed contract file. Perhaps more importantly, please note that the threshold for performance bonding is $150,000 as of October 1, 2010.
PostedContracting, Contracting_Architect-Engineer and Construction Contracting356052/21/2011 12:59 PM
35,605
System Account
108292
  
dapmembers:drobinson12/21/2010
7588
Can you advise source to view and research structure and contents guidance for this Acq Strategy.?
Civilian Agency / client has series of acqusitions in program office.  There is a need to develop an program level acqusition strategy for all of these contracts.
The best place to begin is with the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement (DFARS).  Specifically, FAR Part 7, Acquisition Planning and DFARS Sub-Part 207.1, Acquisition Plans, contain the specific policy and contents required for acquisition plans (strategy) for Government contracts. Program offices may write acquisition “…plans either on a systems basis, on an individual contract basis, or an individual order basis, depending upon the acquisition.” (FAR 7.103(e)). 
 
The Defense Acquisition (DAU) Glossary of Defense Acquisition Acronyms and Terms, 13th Edition, dated November 2009 defines acquisition strategy as:

Acquisition Strategy

A business and technical management approach designed to achieve program objectives within
the resource constraints imposed. It is the framework for planning, directing, contracting for, and
managing a program. It provides a master schedule for research, development, test, production,
fielding, modification, post-production management, and other activities essential for program
success. The acquisition strategy is the basis for formulating functional plans and strategies
(e.g., Test and Evaluation Master Plan (TEMP), Acquisition Plan (AP), competition, systems
engineering, etc.). See Acquisition Plan (AP).

Acquisition Plan (AP)

A formal written document reflecting the specific actions necessary to execute the approach
established in the approved acquisition strategy and guiding contractual implementation. Refer
to the Federal Acquisition Regulation (FAR) Subpart 7.1, the Defense Federal Acquisition
Regulation Supplement (DFARS) Subpart 207.1, and Acquisition Strategy in this Glossary.

PostedProgram Management356062/21/2011 12:59 PM
35,606
System Account
108287
  
dapmembers:drobinson12/20/2010
7589
How would I post notice of franchise agreement on Feb Biz Opps? Also since we will not be issuing a contract would we have to post a sole source notification stating Verizon will be the sole provider of FIOS (telephone/internet/TV) services for base housing.
We currently have Comcast providing internet and television services on base.  Verizon has been picked as provided for our base housing (privatized)..  I am working with Verizon on a franchise agreement.  Cannot find anywhere in the FAR that states requirements for posting/soliciting requirements.  I have viewed AFI 64-101 which lists franchise requirements.  We will not be issuing a contract for the services since agreements will be between Verizon and housing tenants.  Everything I have found in the FAR relates to issuing a contract.
A franchise agreement does not require posting of a solicitation, nor an award synopsis, through the GPE (Fed Biz Opps).  AFI 64-101 paragraph 4.3.3.1 states that franchise agreements are Basic Agreements under the FAR.  FAR 16.702 explains that Basic Agreements shall not cite appropriations nor obligate funds.  Since franchise agreements are not acquisition contracts and include no dollar value, the publication requirements of FAR Part 5 do not apply. 

Also, AFI 64-101 paragraph 4.3.3.5 indicates that offers may be solicited from potential operators.  Therefore, you are not required to post any notice of a franchise agreement on Fed Biz Opps.  Similarly, since you are not awarding a procurement contract to Verizon, and because AFI 64-101 paragraph 4.3.3.5 directs that franchise agreements must be non-exclusive, you are not in a true sole source environment and are not required to post a sole source notification.


PostedContracting356032/21/2011 12:59 PM
35,603
System Account
108297
  
dapmembers:jmchapma12/17/2010
7590
I was wondering if this is mandated by a policy or is just a best practice? Thank you for your help!
I always recommend that technical reveiws be chaired by someone independent of the program. And I have seen the same advice numerous places, including various places on the DAU website and in the Naval SE technical Review Handbook.
While no individual document at the DoD level ‘mandates’ an independent chairperson for technical reviews, the language in all relevant guidance is such that it is clear the intent is to use as much independent expertise as practicable.  Drilling down into the technical review requirements of each service shows that there is more decisive articulation of the independent mandate that is service specific.

The general guidance is that the technical review board chairperson should be selected (or at least nominated) by the Technical Authority (a program-independent entity) and the SEP Preparation Guide specifies that required subject matter experts on the board be independent.


It is my opinion that the intent expressed is clearly to use independent chairpersons as a ‘best practice’ and subject matter experts per directive.  This allows sufficient flexibility for tailoring board membership to meet the intent without unduly constraining the selection process by implementation of a rigid requirement.


PostedSystems Engineering356092/21/2011 12:59 PM
35,609
System Account
108301
  
dapmembers:jdclaxto12/14/2010
7591
What regulation, document, or authoritative source can I use to cite the information above?
OT Requirements for ACAT III systems will be driven by the Army Test and Evaluation Command (ATEC) whether for MS C/LRIP, deployment, or FRP
If your ACAT III program is on the OSD T&E oversight list 10 USC 2399 mandates an IOT&E for only ACAT I and II programs.  DODI 5000.02 and the Defense Acquisition Guide, chapter 9 should be your references. You would coordinate through your Service Operational Test Agency (ATEC/OTC) to work out test planning details for OSD DOT&E approval.
 
If your program is an Army only program, then DA Pam 73-1 would be the reference and you would be working directly with ATEC/OTC.  This charges ATEC to render an independent report (either an assessment or regulation) at each acquisition milestone. For a quick overview of Army OT&E go to www.hqda.army.mil/teo and select the TE Refresher/Operational Testing.
 
The system's TEMP is the final authoritative document on the type and amount of T&E planned for the ACAT III system.  Of course, if the system is on the OSD T&E Oversight List for OT-purposes, then DOT&E approves the system TEMP.



PostedTest and Evaluation356102/21/2011 12:59 PM
35,610
System Account
108307
  
dapmembers:gary.hagan12/14/2010
7592
Currently, how many fedral appropriations are there, and what are the names of the federal appropriations.
trying to identify the Federal Appropriations
There are currently 12 "standard" appropriations to fund the Federal government:
1-Agriculture, Rural Development, Food & Drug Administration & Related Agencies
2-Commerce, Justice, Science and Related Agencies
3-Energy and Water Development
4-Defense
5-Homeland Security
6-Labor, Health & Human Services, Education and Related Agencies
7-State, Foreign Operations & Related Agencies
8-Military Construction, Veteran's Affairs & Related Agencies
9-Interior, Environment & Related Agencies
10-Transportation, Housing & Urban Deveopment & Related Agencies
11-Financial Services and General Government
12-Legislative Branch

During the Bush Administration, Congress also used "Supplemental Appropriations" to fund the Global War on Terror (GWOT).  During the Obama administration, GWOT is now called "Overseas Contingency Operations (OCO)."  In FY 2010, OCO was funded both by inclusion in the Defense Appropriation Act and a separate OCO Appropriations Act.

You can confirm the above by Googling on "Senate Appropriates Committee - 2010" or House Appropriation Committee - 2010."  The congressional web pages will show you the subcommittees of the Committees on Appropriation, each of which "marks up" a particular appropriations bill, which eventually becomes a law.
PostedOther, Other_Acquisition Policy356122/21/2011 12:59 PM
35,612
System Account
108304
  
dapmembers:drobinson12/16/2010
7593
In the scenario, none of the contractors (Prime, sub1, or Sub2) will have their portion of the change exceed the $700K threshold for CP data. But Far 15 dictates that since the overall proposal is over $700K, then the prime must submit C&P data. What C&P data will the prime have to submit? Since each of the sub's portion is $400K then aren't they exempted from submitting C&P data? If so, then what exactly will the Prime be submitting certified C&P data for? Will the Prime only submit C&P data for their $200K portion of the proposal? What will the Prime be required to submit in relation to the subs? If the certification submitted by the Prime is intended to cover the entire proposal, then what exactly is the Prime certifying in relation to the subs since the subs were not required to submit C&P data and certification? How can the prime issue a blanket certification for portions of the proposal that are covered by subs that do not exceed the $700K threshold? In summary, in this scenario what is required from the Prime and subs as far as the Cost and Pricing Data required for the modification proposal since the overall proposal is greater than $700K?
Contract is a firm-fixed price Design-Build Construction Contract.  Original contract was competed full and open (therefore C&P data were not required since adequate competition existed to award prime contract).  All subcontracts are awarded by the prime after the Government awarded the prime contract (Government is not involved in the subcontract awards). A modification proposal is requested from the Prime by the Government for a change within scope.  Prime submits a proposal with a price of $1 million.  Prime's portion of the work is $200,000 with the remaining $800,000 divided among subcontractors according to construction divisions.  However, no individual subcontractor's portion of the proposal will exceed the $700K threshold for C&P data (example: $200K Prime, plus $400K Sub1, plus $400K Sub2). 

It does not matter that the Sub does not break the Threshold.  The entire modification is more than $700K.  The prime is responsible for certifying the data, how he gets that from the SUBS is his business.

 

According to FAR 15.403-4 (b)(1) The certified cost or pricing data and data other than certified cost or pricing data required by the contracting officer to determine that the price is fair and reasonable.  This is any all data that is pertinent to the modification in question and how they came up with those numbers.

 

This may also help you along.  You can try to get a waiver according to FAR 15.403 (c) (4) Waivers.  Your technical folks should have come up with an Independent Government Estimate, with this market research they should be able to determine a fair and reasonable price.  This should be enough for your HCA to grant a waiver.

 

PostedContracting, Contracting_Architect-Engineer and Construction Contracting356132/21/2011 12:59 PM
35,613
System Account
108311
  
dapmembers:drobinson12/20/2010
7594
Is there an excemption for IT service contracts for the applicability of the Service Contract Act of 1965?
RFP document construction
IT Subject Matter Expert (SME) service contract
1 yr base, 2 1 yr options
$13M over 3 years
FFP
There is no exception listed in the FAR or DFARS for IT service contracts.
Please see FAR references below.  If you are still unsure whether your
situation is exempt please contact your agency labor advisor for a ruling.
Here is the website that lists the agency labor advisors:
http://www.wdol.gov/ala.aspx
 
22.1003 Applicability.
22.1003-1 General.
This Subpart 22.10 applies to all Government contracts, the principal purpose
of which is to furnish services in the United States through the use of
service employees, except as exempted in 22.1003-3 and 22.1003-4 of this
section, or any subcontract at any tier thereunder. This subpart does not
apply to individual contract requirements for services in contracts not having
as their principal purpose the furnishing of services. The nomenclature, type,
or particular form of contract used by contracting agencies is not
determinative of coverage.
 
22.1003-2 Geographical coverage of the Act.
The Act applies to service contracts performed in the United States (see
22.1001). The Act does not apply to contracts performed outside the United
States.
 
22.1003-3 Statutory exemptions.
The Act does not apply to-
 
(a) Any contract for construction, alteration, or repair of public buildings
or public works, including painting and decorating;
(b) Any work required to be done in accordance with the provisions of the
Walsh-Healey Public Contracts Act (41 U.S.C. 35-45);
(c) Any contract for transporting freight or personnel by vessel, aircraft,
bus, truck, express, railroad, or oil or gas pipeline where published tariff
rates are in effect;
(d) Any contract for furnishing services by radio, telephone, telegraph, or
cable companies subject to the Communications Act of 1934;
(e) Any contract for public utility services;
(f) Any employment contract providing for direct services to a Federal agency
by an individual or individuals; or
(g) Any contract for operating postal contract stations for the U.S. Postal
Service.
 
22.1003-7 Questions concerning applicability of the Act.
If the contracting officer questions the applicability of the Act to an
acquisition, the contracting officer shall request the advice of the agency
labor advisor. Unresolved questions shall be submitted in a timely manner to
the Administrator, Wage and Hour Division, for determination.

PostedContracting356142/21/2011 12:59 PM
35,614
System Account
108313
  
dapmembers:mmcurrier12/17/2010
7595
What is the authority which covers allowance of Defense Contractor's dependents to travel and accompany them when on government contracts? Does the government pay the costs for Defense Contractor' employee's dependents?
I have a request to issue a Letter of Authorization which will allow the  Defense Contractor employee's dependent(s ) to accompany him to Japan.  I have nothing in writing to explain why this employee's dependent(s) needs accompany him.  
The first question is what is in the contract. If the contract is silent, then you look to what was negotiated, if anything (and if anything was in the contractor's proposal). If nothing is there, then you determine whether the contractor has a government  approved cost accounting plan and travel costs plan that spells out what the contractor employee is entitled to. If there is nothing there, you go by FAR Part 31 on allowable costs and why they are necessary for contractor performance.
 
If you still have no justification, and no documentation where the Government approved this, pre or post award, then "just say NO".
 

PostedContracting356152/21/2011 12:59 PM
35,615
System Account
108314
  
dapmembers:dmcdonald12/20/2010
7596
Are there any provisions in the FAR which would require the outgoing contractor to provide a listing of incumbent employees and a transition plan to assist in the transition of the contract. The J&A identified this contract as being critical to continued, uninterrupted service.
We have been awarded a service contract to provide instructors at a TRADOC school.  The incumbent contractor is refusing to provide any assistance in transition and will not permit names of incumbent instructors to be provided for first right of refusal.  The incumbent's contract does not have clause 52.237-3 included in the contract even though it was included in the J&A.
The FAR, alone, does not direct the contractor what to do, instead the contractor must follow what is in the contract.  So, unfortunately, if a certain clause is not in the contract, the contractor wouldn't have to comply with it.  However, there may be some other provision in the contract that requires this.  In any event, I encourage you to bring this to the Contracting Officer's attention who may be able to assist you in this matter.
PostedContracting356162/21/2011 12:59 PM
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dapmembers:klindsay12/16/2010
7597
Does the PCO have to issue the letter of contemplation or can the PCO just exercise the NTE option unit prices that were proposed as part of the initial proposal?
The 2008 TD acquisition was awarded as a full & open competition with the E&MD (phase 1 and 2)  options, and 3 years of production with fixed priced ceiling priced options.  The RFP did state that the PCO would issue a letter of contemplation requesting FFP proposal for the three option years no later than 2 months after successful completion of the Critical Design Review.  Two contracts were awarded and down selected to one at the completion of E&MD phase 1.  The CDR is scheduled for 3QFY11.  The NTE prices have not changed to date as a result of any modification changes.
Ms Harder, I attempted to telephone you several times for clarification of some of the terms in your question. However, I developed a "cover the waterfront" response and I hope this helps. If further clarification is needed, send  an email.

Section I of your contract at  FAR 52.217-7 “Option for Increased Quantity-Separately Priced Line Item” provides a notification period prior to exercising the option as identified in  FAR 17.207. If the option is not pre-priced, there should be a Section H “Special Contract Requirement” that delineate the provisions or methods to price the not-to-exceed option prices.
 
If the basic contract options are priced, then you must notify the contractor of your intent to exercise the option and exercise the option at the established base contract option price.
 
If the options are not priced or provide not to exceed prices,  I believe a proposal is required to enable you to  “definitize” or negotiate the  option price.
 
If schedule is critical for exercising the NTE prices you will need to fund a portion of the not-to-exceed price and establish a definitization schedule pursuant to FAR 16.603 “Letter Contracts”.  
 
If your contract is a Fixed Price Incentive contract and your basic contract option prices were fixed price incentive (FPI), you would exercise the option at the proposed FPI prices after proper FAR 52.217-7 notice of intent to exercise the option.


PostedContracting356072/21/2011 12:59 PM
35,607
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dapmembers:vaswanso12/21/2010
7598
Who is the approval authority if we want to deviate from 16.205-3(b)?
Our contractor does not have an approved accounting system and we would like to award a fixed-price contract.
The following answer is based solely on the background information provided and the brief phone-con with the submitter to clarify the question.  As we do not have access to the contract folder or program particulars that apply to this situation, we highly recommend you consult the Contracting Officer as well as the Legal Office.
 
FAR 16.104 provides for factors in selecting contract types. Paragraph (h) discusses the requirement for the contractor's accounting system. Under contracts except for firm-fixed price, the contracting officer shall ensure that a contractor's accounting system will permit timely development of all necessary cost data in the form required by the proposed contract type.  Basically an ordinary fixed-price contract would not require an accounting system.
 
On the other hand, if the referenced FAR 16.5205-3 (b) is for a fixed-price contract with prospective price redetermination, it would require the contractor to have an adequate accounting system. This is also spelled out
in the limitations for that section.
 
Therefore in order to deviate from the FAR requirement, see the references at FAR 1.402 through 1.405.

PostedContracting356172/21/2011 12:59 PM
35,617
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dapmembers:drobinson12/20/2010
7599
What are the assessment principles and metrics applications that apply to logistics performance management? Is there a DAU course that covers this subject?
I am a NAIP intern.  This question is about one of the competencies listed in my IDP.  The competency reads:  "knowledge of assessment principles and metrics applications for logistics performance management."