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19744
  
DAU1325600055112/2/2021
Contracting
How can a CO invoke Retainage( FAR 52.232-5) at her discretion for unsatisfactory work at the end of construction?
Construction for schools in Malawi began  o March 25,2020 after a Notice to proceed effective March 03,2020. Construction was for 10 months and a warranty Period for an additional 12 Months. Construction was completed but some of the floors began cracking and Contractor requested to replace the damaged floor  that he has not yet completed. The warranty period ends Dec2, 2021 and CO is requested to consider release of the retainage sum to the contractor at the expiry of the warranty period.

It is unclear if final acceptance of the whole project was completed. FAR clause 52.232-5 is intended to be used prior to full acceptance of the whole project. If the U.S. Government gave acceptance of the whole construction project, then paragraph h of this clause would apply where final payment should have been made. Paragraph i of clause 52.246-12 states that acceptance is final except for latent defects and the Government's rights under the warranty, so if the whole project was accepted, then hopefully the contract does include this clause as well as clause 52.246-21. Note paragraph d of clause 52.246-21 does state that if the contractor has to restore any work damaged, that the warranty period specific to the work of the restoration will run for one year from the date of repair or replacement. 

Posted5084812/3/2021 12:12 PM
EMMETT SIMMONSContracting
19742
  
DAU1325600055112/1/2021
Contracting
How does a Name Change only differ from a Novation Agreement? Additionally, The CAR choices are Rerepresentations, Novation or Other Administrative Agreements. I am thinking it is a simple action for name change only versus Novation Agreement.
The contractor changed the name and did change anything else.  The contractor only removed the LLC and changed to a Corp.  The Cage Code and Duns remained the same and no transfer of assets.

In simple terms, a Change-of-Name Agreement is needed to recognize when a contractor has a legal change of their business name. A Novation Agreement applies in a number of situations (e.g. contractor sells all or a part of the company and the contract is still ongoing). A Novation Agreement is needed to recognize a third party as the successor in interest to the Government contract and recognize the transfer of any related assets.

Before we go further with our answer; we are going to assume that your contract is of a kind listed at DFARS 242.202(a)(i) and therefore that contract administration has been retained by the contract office that awarded the contract. If not, then the Change-of-Name agreement should be executed by the cognizant DCMA CAO ESPECIALLY if this contractor has contracts with multiple contracting organizations. Rationale: If you look at FAR 42.302(a)(28) you will see that the contracting officer normally delegates the following contract administration functions to a CAO and (28) is to process novation and change of name agreements. If the contractor does have contracts with other government organizations, ask DCMA to accomplish this action. See the link at FAR 42.203 to find your cognizant CAO (contract administration office).

Okay, so if this is a contract that wasn’t delegated and this contractor only has this government contract or if multiple contracts they are ONLY with your office, proceed as follows:

In your instance, you only need to execute a Change-of-Name agreement which is typically a much quicker and less intensive process. You will need to consult the FAR and DFARS; your agency FAR supplement (AFARS) does not have any additional implemental or supplemental language on chang-of-name agreements but you may have policy letters that you have to follow, so you should look into that.

See FAR 42.1203 Processing agreements. This will give you the initial guidance and overview of what you will have to do. Notice at FAR 42.1203(h) it discusses the contract modification process for this, I’ll talk about the modification more at the end of the answer. Then see FAR 42.1205 Agreement to recognize contractor’s change of name. This will give you a suggested format for the agreement. Then you must go to DFARS 242.1203, this will send you to DFARS PGI 242.1203, follow the 10 steps in the PGI to process the agreement (it includes guidance on the distribution of the modification). DFARS PGI 242.1203(9) will send you to DFARS PGI 204.201 which gives you guidance on how you will fill out and submit the CAR (contract action report). Note: you will select the “Novation or Other Administrative Agreements” choice because this is an “other administrative agreement”.

Therefore the modification will be an administrative modification (use block 13 B on the SF 30). Rationale is that the change of name agreement itself accomplished and documented all of the legal requirements (same would be true with the novation agreement) and all the modification is doing is changing the name on the cover page of the contract from the old name to the new name.

Posted5085612/2/2021 10:41 AM
EMMETT SIMMONSContracting
19743
  
DAU1325600055112/1/2021
Contracting
Can this contract continue and OY 1 exercised if both parties agree under a bi-lateral? Can a J&A under FAR 6.302-2 Unusual and compelling urgency or FAR 6.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements be used to make this happen?
Have a Base + 4yr OY contract that the OY period was missed, POP ended 31 Sep.  This was a sole source contract and is for fire alarm systems for the hospital.

1) Yes, bilateral exercise of the option is a typical course of action for the scenario you described *** AND *** it is necessary to obtain an approved Justification and Approval (J&A) for Other than Full and Open Competition (criteria in FAR Subpart 6.3) because modifications to the contract in question are now out-of-scope (option was not exercised in timely fashion per clause FAR 52.217-8 and the performance period lapsed). Your HCA may allow the practice of a J&A Amendment instead of issuance of a separate, new J&A.

2) Obtain legal review from your procurement counsel to ensure your HCA doesn't have specific policies prohibiting this approach.

3) It's a best-practice for the requiring activity and contracting activity to maintain a "reminder" of approaching contract option periods to avoid lapsed contracts, so please consider following this best-practice.

Posted5084012/2/2021 10:43 AM
EMMETT SIMMONSContracting
19741
  
DAU1325600055111/30/2021
Program Management
Is it appropriate to use RDT&E funds for a formal AoA?
New program effort initally funded with RDT&E.

The answer to this question revolves entirely around the fact that this is a new program funded with RDT&E.  When determining the correct type of appropriation to use for any task, the reason for the effort will directly lead to the answer.  The Background of this question clearly indicates that the AoA is for a new program funded with RDT&E.

 

FMR, Volume 2A, Chapter 1, paragraph 010213, section B.1.a states, “RDT&E will finance research, development, test and evaluation efforts performed by contractors and government installations, including procurement of end items, weapons, equipment, components, materials and services required for development of equipment, material, or computer application software; its Development Test and Evaluation (DT&E) and its Operational Test and Evaluation (OT&E) as provided for in paragraph C.5.”  Traditionally, other than for purely theoretical and scientific research projects, the use of RDT&E funding begins following the Materiel Development Decision as defined in the DoD Instruction (DoDI) 5000.02.

 

 DoDI 5000.02 section 5.d.(1)(a) says, “The Materiel Development Decision is based on a validated initial requirements document (an ICD or equivalent requirements document) and the completion of the Analysis of Alternative (AoA) Study Guidance and the AoA Study Plan.  This decision directs execution of the AoA, and authorizes the DoD Component to conduct the Materiel Solution Analysis Phase.”  Therefore, if the studies referenced in this question are being used to assess operational threats versus capabilities gaps or inform requirements formulation, O&M would be the correct appropriation.  However, if the studies referenced in this question are in support of an AoA within the Materiel Solution Analysis Phase of the Defense Acquisition System (DAS), they would be most appropriately funded with RDT&E.

 

Conclusion:  The most appropriate funding to be used for this new program's AoA would be RDT&E.  However, I strongly suggest you look at the Budget Exhibits to understand which Appropriation the AoA funds were requested.  The Budget Exhibits should show if the AoA was requested in the RDT&E Appropriation.

 

Note: FMR, Volume 2A, Chapter 1, paragraph 010213, section B states, “When after consideration of the following criteria, there is doubt as to the proper assignment of costs between appropriations, the issue should be resolved in favor of using RDT&E funding.”

 

Suggestions:  Read DoD Financial Management Regulation 7000.14-R, Volume 2A, Chapter 1, paying particular attention to paragraph 010213.   In addition, it is most strongly recommended that you contact your local comptroller organization, and legal counsel for more information and their policy interpretation of this issue.

Posted5085412/1/2021 11:43 AM
EMMETT SIMMONSProgram Management
19738
  
DAU1325600055111/29/2021
Contracting
My program manager wants to have a CLIN structure in such that there is 1 CLIN for effort X and 1 CLIN effort Y, can we mix 0100 (AFSOC) and 3400 (ACC) funding onto 1 CLIN..if the year funding is the same. Do you know where in the FMR is states this? I can not find it.
CLIN structure - two sources of funding for 1 CLIN.  Can we do this?

DFARS 204.7103-1 establishes the requirements for separate CLINs, so it is important to follow this for CLINs on DoD contracts. DFARS 204.7103-1(a)(4) explains when it is acceptable to have multiple accounting classification citations on a CLIN.   

Taken for Edit5085012/2/2021 11:15 AM
EMMETT SIMMONSContracting
19739
  
DAU1325600055111/29/2021
Contracting
What statute/regulation can we site to the oversight agency to advise the inappropriateness of this request (CAS, Guarantee/Warranty, etc). We have sited various impacts, but they still are requiring a statute/regulation.
Concerns related to schedule are developing and the Govt oversight agency wanted to provide military personnel to support the contractor in the performance of their contracted work.

This is a complex question and requires a review of the contract's terms and conditions to answer it. In a general sense, there would have to be a modification to the existing contract to modify the scope of work, and the contracting officer would have to determine if this reduction in service would be within scope. If it is a commercial contract, then the change would have to be agreed upon by the contractor since all changes on commercial contracts must be bilateral. If it is a noncommercial contract, then the applicable changes clause would apply. Only contracting officers can modify the contract, that is clear in FAR 43.102. Any reduction of scope would have to be negotiated, to include the change in price to the contract.

Additionally, the payment terms and how the CLINs were established will dictate how the contractor will need to be paid. If there is a wage determination or a collective bargaining agreement incorporated into the contract, then there could be legal ramifications, refer to FAR part 22. The Government cannot have Government personnel start performing tasks on a contract unless the contract allows for it, such as contractors providing services designated as essential contractor services IAW DFARS clause 252.237-7023. 

Posted5084511/30/2021 7:44 AM
EMMETT SIMMONSContracting
19740
  
DAU1325600055111/29/2021
Contracting
Far 16.202-1 says that you can have a FFP contract with a delivery incentive per FAR 16.402-3 and that it will remain a FFP contract. I can't find any contract clauses to put in our contract for the delivery incentive. All the incentive clauses seem to be prescribed for incentive, rather than FFP, contracts. Do you know of one that I missed? Thank you!
FAR 16.202-1 states " The contracting officer may use a firm-fixed-price contract in conjunction with an award-fee incentive (see 16.404) and performance or delivery incentives (see 16.402-2 and 16.402-3) when the award fee or incentive is based solely on factors other than cost. The contract type remains firm-fixed-price when used with these incentives."

In FAR 16.406 there is is no clause listed that has a prescription linked to a FFP contract.  There is no "Contract Clauses" section under FAR 16.202.

I don't see any magnifying guidance in DFARS, DFARS PGI, or NMCARS.

This is a good question.

Award Fee

Let’s tackle the FPAF contract type first. In this case you missed the clause prescribed at DFARS 216.406(e).

216.406 Contract clauses.

(e)  Use the clause at 252.216-7004, Award Fee Reduction or Denial for Jeopardizing the Health or Safety of Government Personnel, in all solicitations and contracts containing award-fee provisions.

The bold italics is added for emphasis.

Your solicitation and resulting contract will also have an Award Fee Plan, follow the guidance at FAR 16.401(e) and more specifically at FAR 16.401(e)(3) for establishing your Award Fee Plan. The DFARS also has implemental language you must follow at DFARS 216.401(e) and supplemental language you must follow at DFARS 216.401-70. Both of these will take you to DFARS PGI 216.401; specifically, DFARS PGI 216.401(c), DFARS PGI 216.401(e), and DFARS PGI 216.470.

In addition to the Award Fee Plan, your solicitation and resulting contract will normally have a dedicated Award Fee CLIN(s). That is how you obligate any award fee earned IAW the Award Fee Plan on the contract.

Incentive without an Award Fee.

Correct, FAR 16.201-1 states “… The contracting officer may use a firm-fixed-price contract in conjunction with an award-fee incentive (see 16.404) and performance or delivery incentives (see 16.402-2 and 16.402-3) when the award fee or incentive is based solely on factors other than cost. The contract type remains firm-fixed-price when used with these incentives.” Again, bold italics added for emphasis.

In this situation, there is not a FAR or DFARS clause required. Because you are not using an award fee, you have wide latitude on how you build this incentive into your solicitation. This is normally done via language in your PWS, SOW, A local clause, etc. If it is a service contract, the incentive (or disincentive if that is the case) will be in the PWS and the PRS (and good idea to build it into the QASP how the incentive is determined). Again, you could have a stand alone CLIN for the incentive or you could modify the primary CLIN the work is covered on that has the incentive associated with it.

Taken for Edit5085211/30/2021 12:23 PM
EMMETT SIMMONSContracting
19737
  
DAU1325600055111/28/2021
Business
I have been having trouble finding definitive guidance on the purpose and usage of PPSS funding. What regulation or pamphlet guides this financial execution? Is it permissible to use PPSS funding to support new software capabilities and hardware obsolescence required to keep a system viable?
Looking for clarification for the purpose of PPSS funding and what it can be used for.

Sustaining a system's software is accomplished through post-production software support (PPSS). PPSS encompasses all software activities required to ensure that systems that are fielded and no longer in production continue to support their operational mission. Although simple in concept, PPSS encompasses a breadth of activities such as maintaining operational capabilities by correcting defects discovered in the field; ensuring compliance with information assurance requirements; adjusting software because of changes in commercial off-the-shelf (COTS) releases; assisting users in the field; ensuring compliance with Department of Defense (DoD) and Department of the Army directives and policies (such as software blocking); and improving software maintainability and reliability.

Financial Management Regulation Volume 2A Chapter 1 010212 addresses budgeted for IT and software efforts.  Software releases categorized as iterations on the basic release and not involving significant performance improvements or extensive testing are considered a maintenance effort. Minor improvements in software functionality which are accomplished during routine maintenance may also be O&M funded,  New software capability could be considered PPSS depending on the circumstances but without that specifics of the program being provided by the submitter it is impossible to provide a yes/no answer.  However the general guidelines for funding software:

RDT&E:
- Software development (writing code)
- Software upgrades that increase performance envelope
- Software required for RDT&E test purposes
- Software that requires DT or IOT&E

Procurement:
- R&D developed software approved for production item
- COTS Software approved for use “as is” in production item
- Software packages included with purchase of ADP equipment to be used without modification 

O&M:
- Software that replaces operational software
- Software upgrades with no significant change to performance
- Software that is an iteration on the basic release and not
involving significant performance improvements or extensive testing          

Recommend that you talk to your Comptroller to get their guidance on local PPSS policy.

Posted5080911/29/2021 8:09 AM
EMMETT SIMMONSBusiness
19736
  
DAU1325600055111/23/2021
Contracting
We have a FFP contract that will require an additional 8 months of work. The KTR will be using OT. We do not have a OT CLIN but we do have a Surge CLIN. Could we possibly use the Surge CLIN for this work.
Overtime  for 8 months of work.

Interesting question. Background, assumptions, and references:

We are going to assume that the inclusion of the Surge CLIN means your contract contains the clause DFARS 252.217-7001 and that all determinations and findings to include this option were accomplished in accordance with agency procedures.

Depending on when your contract was awarded; the clause did change as a result of DFARS Case 2018-D025 in 2018. Again, we will assume this is the version of the clause you have in your contract. This clause is incorporated into contracts that support industrial planning for selected essential military items in the event of a national emergency.

See: FAR 17.207, DFARS 217.208-70(b), DFARS PGI 217.202(3), and DFARS 252.217-7001.

If the additional work meets the intent of the references above, then “yes” we see no reason why this CLIN could/should not be used. Follow the procedures at FAR 17.207 and the other references above, especially DFARS 252.217-7001(c).

Based on the nature of the question (e.g., using (OT) overtime), our final assumption is that the Surge CLIN price was not previously agreed upon. DFARS 252.217-7001(d) provides the guidance on how long the contractor has to submit a price proposal for this effort. Additionally, be sure to follow any labor law requirements prior to exercising the option (e.g., Service Contract Labor Standards, see FAR subpart 22.10) if applicable.

Posted5084411/24/2021 7:12 AM
EMMETT SIMMONSContracting
19735
  
DAU1325600055111/22/2021
Contracting; Test and Evaluation
Should these documents be attached to the solicitation?
First Article purchase solicitation has CDRLS and DD Form 260. 

CDRLs are contract deliverables.  If you intend the winning contractor to deliver something, you must make it aware of what is to be delivered and in what format.  A contractor cannot perform to a CDRL item it is not aware of and is not required to perform to a CDRL that is not on contract.  We are not aware of a DD Form 260.  But if that form is something that needs to be filled out or contains material/information offerors need to properly create a competitive, reasonable and realistic offer, it must be attached to the solicitation.

Posted5084211/23/2021 7:46 AM
EMMETT SIMMONSContracting; Test and Evaluation
19733
  
DAU1325600055111/21/2021
Contracting
Hello, in FAR 15.403-4(a)(1) is says "The threshold for obtaining certified cost or pricing data is [...] $2 million for prime contracts awarded on or after July 1, 2018." For the purposes of the certified cost and pricing data, would a NTE $4.5M single source IDIQ with a $300K seed task order be considered over the $2M threshold based on the $4.5M NTE value, or under the $2M threshold, because the only amount actually being obligated is the $300K task order? There is a task order limit of $1M per task order, so no individual task order would ever exceed the threshold. Thank you!
We're awarding a NTE $4.5M single source IDIQ with a $300K seed task order.  Task order limit is $1M per task order.

  Certified cost or pricing data is required above $2M, but there are exceptions that does not make it mandatory for many acquisitions. The exceptions are when there is adequate competition, if the requirement is commercial, if the prices are set by law or regulation, or if a waiver has been granted.. The below link has a short video that explains this concept. FAR convention 1.108(c) applies to the dollar value question: Dollar thresholds. Unless otherwise specified, a specific dollar threshold for the purpose of applicability is the final anticipated dollar value of the action, including the dollar value of all options. If the action establishes a maximum quantity of supplies or services to be acquired or establishes a ceiling price or establishes the final price to be based on future events, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options.

https://media.dau.edu/media/t/1_g0tm8iv9

Posted5082811/22/2021 9:18 AM
EMMETT SIMMONSContracting
19734
  
DAU1325600055111/21/2021
Contracting
Is the proposed modification within the scope of the contract and does it violate CICA since it is a substantial portion of the total contract?
Both the contractor and installation have requested a modification to extend the POP of an optional CLIN out of convenience for both parties. The task order was awarded to remediate the existing TCE plume.  The POP start date in the task order was set at 10-Sep-2022 as it was uncertain if funding for the award optional CLIN could be obtained in FY 21 or FY22 as the proposed cost of the CLINs was unknown during the preparation of the PWS.  When the contractors price proposal was received, the installation had sufficient funding to award the Optional CLIN and it was awarded with the base CLINs. All CLINs were awarded using FY 21 funds from the same MIPR. The Performance Work Statement and schedule issued with Task Order did not take into account that the option CLIN would be exercised at the time of award. The contractor and installation have requested the POP start date to be changed from 10-Sep-2022 to 01-Jan- 2022. This would add an 8 month extension to the option.

The optional CLIN constitutes over 10% of the total contract amount.

Our first concern is using FY 21 money for an FY 22 requirement.  You haven't identified the type of funding (OMA, MILCON, or some other).  If the work was a proper requirement of FY 22, FY 22 funds should be used.  If we do have a legitimate requirement for work in a given period, but create an option because we do not have sufficient funds, we are to exercise the option at the same time if the funds are available and the work is a requirement of that period.

We are unclear about the eight month period.  Did the COE not expect work to be performed from 1 JAN 22 to 10 SEP 22?  Was industry put on notice that there could be changes to performance/performance periods based on availability of funds?

On its face, this would not necessarily be a CICA violation based on dollar value.  Nor is it automatically an issue to adjust performance, as change is routinely anticipated by the nature of USACE work.

There is nothing inherently wrong with the approach.  If the PWS requirements were affected by this approach, it needs to be amended to reflect the updated understanding of the parties along with any other terms and conditions of the contract.

Posted5082511/22/2021 3:13 PM
EMMETT SIMMONSContracting
19732
  
DAU1325600055111/18/2021
Contracting
Under FAR 31.205-26(e) are interorganizational transfers technically considered a "subcontract" and subject to FAR rules governing subcontracts, e.g. Consent to Subcontracts (FAR 44.2)? Definition of subcontract is not found in FAR 2.101.
FAR 2.101 - Contract Definition.
FAR 31.205-26(e) transfer or selling material from a division or subsidiary of a prime contractor to the prime contractor in the performance of a USG contract.

FAR convention 1.108(a) words and terms states "Words or terms defined in a specific part, subpart, section, provision, or clause have that meaning when used in that part, subpart, section, provision, or clause." While subcontract and subcontractor are not defined in FAR part 2, they are defined in FAR 44.101. Refer to these definitions in FAR part 44 that are used for consent to subcontracts to see how they apply to the nuances of your acquisition. 

FAR 44.201-1(a) states that if the contractor has an approved purchasing system, consent is required for subcontracts specifically identified by the contracting officer in the subcontracts clause of the contract. If the contractor does not have an approved purchasing system, then consent to subcontract is required in those instances detailed in FAR 44.201-1(b). 

Posted5083311/19/2021 3:01 PM
EMMETT SIMMONSContracting
19731
  
DAU1325600055111/17/2021
Program Management
Can RDT&E 6.4 funds be used without requirements?
Can RDT&E 6.4 funds be used without requirements?

This response is based on the information provided.  We strongly suggest you discuss with your BFM, Comptroller, funds certifier, contracting team, program manager and/or legal department as appropriate. 

 

Due the limited amount of background information provided, I have provided a reference in regards to the question.  In the Financial Management Regulation (FMR) 7000.14-R, Volume 2B Chapter 5 which states:  Budget Activity 4, Advanced Component Development and Prototypes (ACD&P).

Efforts necessary to evaluate integrated technologies, representative modes, or prototype systems in a high fidelity and realistic operating environment are funded in this budget activity. The ACD&P phase includes system specific efforts that help expedite technology transition from the laboratory to operational use. Emphasis is on proving component and subsystem maturity prior to integration in major and complex systems and may involve risk reduction initiatives. Program elements in this category involve efforts prior to Milestone B and are referred to as advanced component development activities and include technology demonstrations. Completion of Technology Readiness Levels 6 and 7 should be achieved for major programs. Program control is exercised at the program and project level. A logical progression of program phases and development and/or production funding must be evident in the FYDP.

Based on the FMR guidance specifically " The ACD&P phase includes system specific efforts that help expedite technology transition from the laboratory to operational use. Emphasis is on proving component and subsystem maturity prior to integration in major and complex systems and may involve risk reduction initiatives", which would show an intent for requirements within 6.4 funding.  The first place to check are the budget exhibits for that particular effort to ascertain the purposes and the tasks that were shown in the budget exhibits.  Congress appropriated dollars based on the budget exhibits and we must ensure we are using funding as per those budget exhibits.

Posted5083611/18/2021 9:42 AM
EMMETT SIMMONSProgram Management
19729
  
DAU1325600055111/16/2021
Contracting
What are the types of source selection methodology outlined in FAR 15? Do you have to use the FAR source selection methodology in FAR 13 acquisitions?
..

The various source selection methodologies are covered in great detail in FAR subpart 15.1. It is too much to explain here so I recommend reviewing subpart 15.1. The applicability of FAR Part 13 procedures is best understood by reviewing FAR 13.003. You will find that selecting sources for simplified acquisitions is "simplified" when compared to FAR part 15 acquisitions. Again, reading the FAR is necessary to understand the procedures and implications.

Posted5083411/17/2021 11:19 AM
EMMETT SIMMONSContracting
19730
  
DAU1325600055111/16/2021
Contracting
Can we make award to this company in Baghdad, Iraq? I checked FAR 25-701 and it does not prohibit transactions with company in Iraq. Only transactions involving Cuba, Iran, and Sudan are prohibited. Thank you!
- Establish BPA for Reagent Requirement, NAICS 325413, In-Vitro Diagnostic Substance Manufacturing
- Published in GSA e-Buy; zero responses received
- Published in FBO and received one quote and company is physical in address is in Baghdad, Iraq

We also checked FAR 25-701 as well as DFARS Subpart 225.7, which also addresses prohibitions re: foreign sources located in countries considered State Sponsors of Terrorism (currently Iran, North Korea and Syria per DFARS Subpart 252.225-7000).

While there are no apparent FAR or DFARS prohibitions with respect to acquiring Reagants from a foreign source in Iraq, it's important to remember that no DoD classified military info (CMI) or controlled unclassified information (CUI) may be disclosed to the Iraqi company (or Iraqi government officials, including customs officers, etc.) throughout the contracting process without DoD foreign disclosure approval from the DoD Component foreign disclosure authority/ies. 

Accordingly, if the contracting process with the Iraqi source can be conducted wholly and solely using only USG or DoD UNCLASSIFIED information, then the questionner's organization should be able to move forward with the contracting process.  However, if release of USG or DoD CMI or CUI is required to implement the contracting process with the Iraqi source, then appropriate DoD foreign disclosure approval(s) must be obtained prior to initiating the contracting process.

The questioners' e-mail address has an Air Force suffix.  The top level foreign disclosure authority in the Air Force is SecAF/International Affairs.  There may also be a local AF foreign disclosure organization that is available for consulation on this matter, if needed.

Finally, we also recommend the contracting organization research potential export and import licensing requirements by the Gov't of Iraq or the USG that may apply to the procurement and shipment of the Reagents via BPA from the Iraqi source.  The Iraqi source (not DoD) will be responsible for obtaining any applicable Iraqi or USG export and import approvals.  Best practice in this area is to question the Iraqi source to assess their level of understanding regarding whether any such requirements exist.  The USEMB Country Team Commmercial Attache in Iraq should be able to assist in explaining the potential impact of any Iraqi Gov't export approvals on the transaction.  If any USG import approval requirements exist (unlikely but possible), we recommend the AF consult the appropriate office in the U.S. Commerce Department to comfirm that the Iraqi source will be able to obtain any such approvals.

Posted5082911/17/2021 11:19 AM
EMMETT SIMMONSContracting
19727
  
DAU1325600055111/15/2021
Contracting
My customer wants a base plus 2 option years on a commercial software purchase. Since software is a supply/each ( per my boss) is it possible to use 52.217-6. What would the delivery date be? The final date of the 12 year license or the start date?
Purchasing commercial software for a 1 year license.

Software can be either an item of supply, or a service (if the acquisition is for cloud computing services). Assuming it's an item of supply, the options clause at 52.217-6 is appropriate. The delivery date is the date that the user receives the software package for installation. And assuming the software is commercial software, you should also review FAR 12.212 and 27.405-3 for guidance on licensing.

Posted5083011/16/2021 8:54 AM
EMMETT SIMMONSContracting
19728
  
DAU1325600055111/15/2021
Contracting
Is there a FAR/DFAR reference that support the SOW is required in a government task order
A contractor do not want the statement of work or other clauses in a new task order.  The Contractor only want the original GSA clauses and exhibit A for the new task order.

FAR 16.505 covers placing orders under indefinite-delivery contracts.  Per Paragraph (a)(2), Individual orders shall clearly describe all services to be performed or supplies to be delivered so the full cost or price for the performance of the work can be established when the order is placed. Orders shall be within the scope, issued within the period of performance, and be within the maximum value of the contract.

That being said, if the orders are within scope, there is no need to need to attach the SOW to the Task Order.

Additionally, per Paragraph (a)(7) of the same citation, Orders placed under indefinite-delivery contracts must contain the following information:

                (i)  Date of order.

                (ii)  Contract number and order number.

                (iii)  For supplies and services, line item number, subline item number (if applicable), description, quantity, and unit price or estimated cost and fee (as applicable). The corresponding line item number and subline item number from the base contract shall also be included.

                (iv)  Delivery or performance schedule.

                (v)  Place of delivery or performance (including consignee).

                (vi)  Any packaging, packing, and shipping instructions.

                (vii)  Accounting and appropriation data.

                (viii)  Method of payment and payment office, if not specified in the contract (see 32.1110(e)).

                (ix)  North American Industry Classification System code (see 19.102(b)(3)).

Even though the Statement of Work for the basic contract applies for all Task/Delivery orders under indefinite-delivery contracts, there is nothing in the FAR that states you can't attach the SOW to the Task Order.

It is usually safe to assume that you are allowed to perform an action unless the FAR specifically states that you cannot.

Posted5082411/16/2021 2:59 PM
EMMETT SIMMONSContracting
19723
  
DAU1325600055111/9/2021
Business
What document defines the threshold as $1.5 million and duration greater than six months? Is it possibly FAR 4.1004 (Subline items may be used to facilitate tracking of performance, deliverables, payment, and contract funds accounting or for other management purposes. Subline items may be either deliverable or informational.) is the source? Although that would not apply to Other Transactions (OTs), since they are not governed by the FAR (FAR 4.601 Contract action does not include grants, cooperative agreements, other transactions, real property leases, requisitions from Federal stock, training authorizations, or other non-FAR based transactions.). Is there some U.S. Code or regulation that is the source of this requirement? Can a form (DD Form 1586) and a DID (DI-MGMT-81468) really be the source for a requirement? The statement on the same web page, "The CFSR requirement will not be applied to firm fixed price contracts (as defined in FAR 16.202) unless unusual circumstances require specific funding visibility." FAR 16.202 does reference a regulation, as indicated in the following statement in 16.202-1, "It provides maximum incentive for the contractor to control costs and perform effectively and imposes a minimum administrative burden upon the contracting parties." Again it might not be applicable to OT
The question pertains to DAU website page:  https://www.dau.edu/acquipedia/pages/ArticleContent.aspx?itemid=33.

We are trying to cite the source document for the requirement:  Contracts over 6 months in duration and $1.5 million dollars are required to have a CFSR.

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

We found your answer in the CPRG Volume 4 Chapter 4.1 which states:  "The program manager should obtain a CFSR (DD Form 1586) on contracts over 6 months in duration. The CFSR has no specific application thresholds; however, the program manager should carefully evaluate application to contracts valued at less than $1.5 million (in then-year dollars)."

We believe each program determines a dollar threshold based on the complexity and duration of the program and a need to have greater insight to expenditures.  Your service/agency (Space Force in your case) may have additional threshold guidance.  The CPRG also has the FFP info from the FAR.  The CPRG is accessible on line.

Posted5042711/10/2021 8:48 AM
EMMETT SIMMONSBusiness
19724
  
DAU1325600055111/9/2021
Contracting
In FAR 5.203 Publicizing and response time, Do I have to leave an RFI open for 15 days or more? Also, can I ask for a site visit in an FRI?
Can I shorten my vendor response time?

RFIs should fall under FAR 5.205(c), Special notices: Contracting officers may transmit to the GPE special notices of procurement matters such as business fairs, long-range procurement estimates, prebid or preproposal conferences, meetings, and the availability of draft solicitations or draft specifications for review. This category of special notices does not have a required response time. The required response times in FAR part 5 are applicable to contract actions such as presolicitation notices, how long solicitations have to be posted and applicable modifications. 

When possible, site visits help industry better understand government requirements and are considered a way to promote early exchanges of information. Normally, the government doesn't ask for a site visit in RFIs. The RFI can provide information on a planned site visit. 

Posted5082111/10/2021 11:25 AM
EMMETT SIMMONSContracting
19725
  
DAU1325600055111/9/2021
Contracting
My question is - can I do this modification using prior year funds? if so, what authority can I use to do so?
I have a situation or commercial supplies (toner cartridges) that was awarded in the final hours of FY 21. The award was made with FY '21 funds, but we didn't have enough funds to complete the entire order based on the contractor's proposal. Now, we are in FY '22 and the finance office is requesting that we use FY'21, 1 year O&M funds, to do a modification to order the remaining items. 

The argument being made for not violating the bona fide need rule is that the procurement office received the funds in June/July of FY 21 and even though the requirement isn't expected to be delivered, it's for the replacement of cartridges that were utilized in FY '21, so there is a bona fide need for that FY.  I'm not sure I agree with this logic, but I keep being told that "this is how it's been done for years." Which is frustrating to say the least. Particularly when they didn't require delivery until November in the following Fiscal Year.

For various reasons, not to mention this being dropped on my plate at 4 PM on the last day of the FY, this was not awarded until the final hours of the FY. 

This is a great question. Normally we get bona fide need questions of using one FY funds for supplies that will not be delivered and/or used until the next fiscal year.

References:

Applying the Bona Fide Needs rule and the associated "lead time" and "stock level" exceptions is not always cut and dry. It often requires the specifics to be examined more closely.  Here,your organization seems to be using the language at 31 USC 1502(a) for justification that the expense was "incurred" in the previous fiscal year; therefore using prior FY funds in the new FY is appropriate and authorized. It's an interesting approach I don't think I've seen before. You may be justified as long as your organization is consistent with these procedures annually and your Fiscal Law attorney agrees.

If that's the case; as long as you have a proper long line of accounting with funds available, and the funds have not expired and the bona fide need is still valid, you can push forward with the modification using the prior year's funds.

If using the commercial contract format (SF 1449), the authority you would reference in block 13.C of the SF30 will be FAR 52.212-4(c). If not using the commercial contract format, you will still use block 13.C of the SF30 (supplemental agreement) and cite 'mutual agreement of the parties'.

**NOTE:  Whenever you are dealing with areas of accounting/money, to include prior year funds, please validate/verify the funds availability by consulting your finance team within your office to ensure funds are available, correctly coded, and most importantly, not expired.

Posted5082311/10/2021 11:25 AM
EMMETT SIMMONSContracting
19726
  
DAU1325600055111/9/2021
If a program runs out of 3010 funds, that were originally used to start fielding a new aircraft weapon system, could the CAF Program Office supplement the 3010 shortfall by using NGREA funds to finish procuring kits and pay for installation labor? If not, is there a reference in any reg or FMR section that states that it cannot? FYI, my FM team is telling me "no" but I can't get a referenced regulation from them backing up their direction. If it helps too, the F-16 fleet does have a mixture of CAF, ANG, and AFRC jets. Thank you for your time.
Currently fielding a new weapon system on F-16s and 3010 BP11 funding will run out before program completion.

Based on the background information you supplied:  Currently fielding a new weapon system on F-16s and 3010 BP11 funding will run out before program completion.

 

The question you asked:

If a program runs out of 3010 funds, that were originally used to start fielding a new aircraft weapon system, could the CAF Program Office supplement the 3010 shortfall by using NGREA funds to finish procuring kits and pay for installation labor? If not, is there a reference in any regulation or FMR section that states that it cannot? FYI, my FM team is telling me "no" but I can't get a referenced regulation from them backing up their direction. If it helps too, the F-16 fleet does have a mixture of CAF, ANG, and AFRC jets. Thank you for your time.

 

The violation would fall under the Purpose Statute (Title 31, US Code Section 1301) which requires appropriated funds to be used only for the purposes and programs for which the appropriation was made.  In essence, unless the NGREA funds were specifically requested for the purpose of fielding this new weapon system, you cannot just take the NGREA funds and apply them to the purpose of the fielding of the new weapon system.  You should talk to your Financial Management folks to find out if you can request a Reprogramming of funds which is asking permission to change the purposes for the originally requested purpose to the new purpose.  I would start with the Budget Exhibits to ensure that the NGREA budget exhibits did not request funding for this specific effort. If the fielding of this new weapon system was not included for the NGREA funds, then I would ask about reprogramming.  If you cannot reprogram from the NGREA, possibly you could ask for reprogramming from another 3010 program, you would have to speak with the Comptroller.  If reprogramming isn't available, then possibly you can add in the additional funding in the POM/BES for an upcoming year.

 

I strongly suggest you bring together an IPT of Financial Management, Contracting, and possibly the Legal Office to understand options to remedy the situation. 

 

Posted5082611/10/2021 1:12 PM
EMMETT SIMMONS
19720
  
DAU1325600055111/8/2021
Contracting
My CO put the new contractor on the same contract using a SF30. OGC has told us not to terminate the contract b/c the contractor is still in litigation. I have never heard of having two contractors on one contract. Would we just suspend the first contract and create a new contract with the new contractor?
We have a construction contractor that has defaulted regarding installing some coils in an Air Handling Until (AHU).  The company is under litigation with DOJ.  While they are under litigation OGC has requested the contract not be terminated.   We went to the surety to see if they wanted to do a surety takeover.  The Surety found a contractor that agreed to do a tender agreement.  Our CO did a mod to the existing contract but it has the new contractor's name.  I would think we would need to create a new contract and attach the old contract to the new contractor. 

 

According to FAR 49.404, the normal process for a takeover agreement is that the government, the surety and the existing contractor sign an three part agreement that makes it clear that the contract will be completed by the surety and the new general contractor.  So there is no need to write a new contract. All you are doing is terminating the existing contractor's right to proceed that was given under a Notice to Proceed earlier in the process and transferring that right to the surety. 

The alternative to this three party agreement would be to issue a Suspension of Work under FAR 52.252-14.  If OGC wants the original prime on an open contract, then you could issue the suspension until litigation is concluded, then at that point go forward under the FAR 49.404 process.

 

Posted5081711/9/2021 7:23 AM
EMMETT SIMMONSContracting
19721
  
DAU1325600055111/8/2021
Contracting
Is there a threshold for when a job need a mob/demob CLIN? If so, do you have a reference for it?
I am reviewing a big construction job at 65% and they have estimated no mob/demob,

No IAW the FAR and DFARS. A search of FAR part 36 has no results of mobilization or demobilization. A search of DFARS part 236 resulted in finding a supplement for contract clauses in subpart 236.5. There is DFARS clause 252.236-7004  required for payment for mobilization and demobilization and it has terms for thresholds of payments, but as with all clauses, we need to read the full context of the prescription. DFARS 236.570(b) states DFARS clause 252.236-7004 is required for fixed-price construction solicitations and contracts, and when there will be major expense for mobilization or plant equipment and material other than what is previously stated in this section but only when the HCA has approved use of a separate bid item for mobilization and preparatory work and the DFARS does not state a threshold for this approval. Ensure to check if there are any service-specific requirements for contruction contracts. 

Posted5081411/9/2021 7:24 AM
EMMETT SIMMONSContracting
19722
  
DAU1325600055111/8/2021
Program Management
What are the VE requirements? Is CPI project required to meet all of them to be VE project? What are BBP requirements?
There are many arguments if the project qualifies to be a Value Engineering project. The project teams and signature authorities do not have a tool to help them determine the Continuous Process Improvement (CPI) project type with confidence. Therefore, I am looking to find or create a checklist with requirements for the VE project.

Value Engineering (VE) requirements are derived from a known problem, a cost driver study, or anything indicating that a product or a process should be improved.  One overarching checklist of VE requirements does not exist, but there are several guides to help analyze and determine if your project should implement VE.  While your project teams and signature authorities are determining the Continuous Process Improvement (CPI) project type, it’s important to note that VE is a management tool that can used alone or with other management techniques and methodologies to improve operations and reduce costs.  The current iteration of Better Buying Power (BBP) 3.0 was announced on April 9, 2015 and included 34 principal actions organized into the following eight major areas: 1) Achieve Affordable Programs, 2) Achieve Dominant Capabilities While Controlling Lifecycle Costs, 3) Incentivize Productivity in Industry and Government, 4) Incentivize Innovation in Industry and Government, 5) Eliminate Unproductive Processes and Bureaucracy, 6) Promote Effective Competition, 7) Improve Tradecraft in Acquisition of Services, and 8) Improve Professionalism of the Total Acquisition Workforce.  VE can assist with implementation of BBP 3.0 across a few of the eight major areas.  See the following for BBP 3.0:  (https://www.acq.osd.mil/fo/docs/betterBuyingPower3.0(9Apr15).pdf)

For more information of VE, see the following guide:  “Value Engineering: A Guidebook of Best Practices and Tools”, dated 13 June 2011.  Can be found at https://www.acqnotes.com/Attachments/Value%20Engineering%20A%20Guidebook%20of%20Best%20Practices%20and%20Tools.pdf, or https://ac.cto.mil/wp-content/uploads/2020/07/value-engineering-guidebook-of-best-practices-and-tools-SD-24.pdf

From “Value Engineering: A Guidebook of Best Practices and Tools”:

While almost any activity is a possible VE opportunity, selecting VE projects should be based on the potential yield from the time, talent, and cost that will be invested.  In the early stages of VE application within an organization, sophisticated project-selection criteria are not usually needed. VE can frequently offer substantial benefits, particularly when one or more of the following applies:

• High cost;

• Deficiencies in performance, reliability, or producibility;

• Multiple product applications; or

• Executive management interest.

Once the organization’s use of VE is more fully established, additional criteria may be applied to select subsequent tasks. Worthwhile candidates usually involve one or more of the following:

• An excessively complex product;

• An accelerated development program;

• An item that field use indicates is deficient in some way, such as high failure rate, low reliability, or low availability;

• An item that uses older technologies for which modernization appears promising;

• A process with long cycle time; or

• A sole-source procurement.

The VE methodology should be applied in the following manner:

1. Form a multidisciplinary team.

2. Identify process functions.

3. Identify potential failure modes.

4. Calculate a risk priority number as a function of the probability the potential failure will occur, the seriousness of the failure, and the probability of detecting a defect.

5. Identify controls to detect or eliminate the failure cause.

6. Develop actions to reduce risk.

7. Reassess the risk priority number with the corrective actions in place.

8. Assign actions and track them.

The value methodology (or job plan) is used to develop recommendations and implement solutions for an identified problem. The VE job plan breaks out the VE project being studied into functions. It provides time for the essential creative work and its necessary analysis so that the best choices can be made for further development. The job plan leads to the establishment of an effective program to select the best value alternative. It concludes with specific recommendations, the necessary data supporting them, a list of implementing actions, a proposed implementation schedule, and a required follow-up procedure.

The job plan is normally organized by a value team leader. It is typically conducted in eight sequential phases (which may overlap in practice):

1. Orientation Phase

2. Information Phase

3. Function Analysis Phase

4. Creative Phase

5. Evaluation Phase

6. Development Phase

7. Presentation Phase

8. Implementation Phase

Posted5081111/9/2021 7:25 AM
EMMETT SIMMONSProgram Management
19718
  
DAU1325600055111/4/2021
Contracting
What procurements require a Request for Information (RFI) or Sources Sought Synopsis?
What procurements require a Request for Information (RFI) or Sources Sought Synopsis?

This is actually a great question.

Sources Sought Synopsis: there is only one scenario that requires you to post/publish a sources sought synopsis on the SAM.gov GPE (Government Point of Entry). See FAR 5.205(a) for research and development contract actions when market research does not produce a sufficient number of concerns to obtain adequate competition. That said, many organizations often require (and it is considered a best practice) the contracting officer to publish one prior to using FAR 6.302-1 Only one responsible source... as a justifcation for Other than Full and Open Competition.

Request for Information (RFI): there are no mandatory scenarios that require an RFI be published, it is strictly the contracting officer's discretion on when to use an RFI. Note: there is no "RFI notice" on the GPE, this is done using either a special notice or presolicitation notice. Typically the RFI is used to augment market research when time permits and the acquisition team is interested in learning more about what or how industry can satisfy a requirement. Editorial note: we believe an RFI should only be used when market research is unsuccessful at identifying trends, capabilities, techniques, etc. of industry. Too often we see the government use an RFI instead of conducting adequate market research. Responding to an RFI can be time consuming and costly for industry so it should be used judiciously.

 

Posted5081611/5/2021 10:15 AM
EMMETT SIMMONSContracting
19719
  
DAU1325600055111/4/2021
Contracting
Would you still be able to exercise the option prior to the expiration of the current performance period? If so, what type of modification would you issue, and would the contractor be obligated to agree to the modification?
You are the C.O. on a contract for Janitorial Services which is in the first year of the contract.  The customer has asked you to exercise the first option period, but you neglected to notify the contractor of the government’s intent to exercise the option within the time limits identified in the Options clause. The current performance period expires in 10 days.

Once the time by which the contracting officer must notify the contractor of the intent to exercise an option has passed, the Government loses its right to unilaterally exercise the option. At that point, a bilateral modification (supplemental agreement) would be required.

 

Posted5081511/5/2021 10:18 AM
EMMETT SIMMONSContracting
19714
  
DAU1325600055111/3/2021
Contracting
Can an agency create a MACC by awarding the base contracts using the 8(a) sole source process to select the contractors on the MACC, if the value of the MACC is less than the 8(a) competition threshold of $4.5 million?
I want to know if it would be possible to award MACC base contracts sole-source to two 8(a) contractors if the MACC value is NTE the 8(a) competition threshold of $4.5 million.

No. The  nature of a multiple-award contract is involving multiple contractors and fair opportunity IAW FAR 16.505(b) comes into play with the orders under the MAAC after award of the base contract. Awarding an 8(a) sole source would make an IDIQ a single award IDIQ, and therefore not multiple award. 

 

Posted5081311/4/2021 7:03 AM
EMMETT SIMMONSContracting
19715
  
DAU1325600055111/3/2021
Test and Evaluation
DAU, I am a CAPDEV at Fort Eustis and would like to know if there is a formal method for user representatives to accept systems delivered by MATDEVs? There is the Government Acceptance Test of course, but how is the formal acceptance of the system documented?
I am a CAPDEV/User Rep for a system that was developed by a PEO.  The problem is that the system doesn't meet the capability requirements (especially power) and the MATDEV accepted the system and started fielding anyway.   Shouldn't the MATDEV have asked the CAPDEV if we were satisfied with the end product prior to fielding?

Formal acceptance of a product by the US Government is done via a DD Form250.  It is an "exchange of title or ownership" and is accomplished between the Contractor and the Procuring Agency.  This could be the Primary Contracting Officer or Administrative Contracting Officer, but typically is a Contracting Officer's Representative (COR) who quite often is an employee of the Project Manager's Office who procured the item.

 

However, Army Regulation 770-2, "Material Fielding", describes the roles, responsibilities, relationships, and process for passing that equipment from the MATDEV to the CAPDEV (and field units).  Its purpose is:

"This regulation assigns responsibilities and prescribes policies for the Army’s equipment fielding, distribution, allocation, transfer and transparency responsibilities. This regulation is designed to be used in conjunction with DA Pam 770 – 2. The procedures in DA Pam 770 – 2 are mandatory to execute the policies set forth in this regulation (see AR 25 – 30)."

 

AR700-142 has been superseded by AR770-2

 

Posted5081211/4/2021 7:04 AM
EMMETT SIMMONSTest and Evaluation
19716
  
DAU1325600055111/3/2021
Contracting
Is there a requirement for the Government to cancel a solicitation that was used to award a contract which was subsequently terminated?
A competitive solicitation was issued which resulted in the award of a SATOC IDIQ contract along with issuance of the initial task order to satisfy the minimum guarantee. Several months into the performance of the initial task order the task order along with the base IDIQ were both  terminated for cause.

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

You do not need to cancel, we would argue you cannot cancel, the solicitation.  It was put on the street generating a source selection process leading to contract award.  The fact that you are terminating for default has no effect on the original solicitation.

Posted5080811/4/2021 8:32 AM
EMMETT SIMMONSContracting
19717
  
DAU1325600055111/3/2021
Contracting
I need to divest 4 aircraft (Blk 20) from the contract requirements. Can I send a PCOL telling contractor to stop work on 4 aircraft and be done? Do I have to do a contract Mod to remove the requirement for the 4 aircraft or is a stop work sufficient?
CLS Contract - divestment of partial fleet in the middle of the contract PoP. I am in the last 3 months of my base year PoP with an Option Year to be turned on in January 2022.

One approach to affecting a de-scope via deductive modification is to negotiate a bilateral modification that decreases value of the contract (by impacted option period) relative to the priced cost per aircraft bureau number (that which leads to the "one each" quantity pricing reflected in CLIN/SLIN structure). If appropriate, revise the PWS, CDRL(s) and relevant portions of basic contract terms & conditions (Uniform Contract Format sections) corresponding to changes made in CLIN/SLIN structure.

Your question mentioned a stop-work. Logically, there is no work to stop at current because the option period starts in Jan 2022. Keep in mind that when a Contracting Officer issues a stop-work order (for example using 52.242-15 Stop-Work Order), it's likely the contractor will pursue (partial termination for convenience) "reasonable costs resulting from the stop-work order in arriving at the termination settlement." 

It is recommended you discuss this matter with Contracting Officers in your activity to consider how similar situations were resolved and to ensure compliance with internal approvals for this type of contract action.

Posted5077211/4/2021 9:13 AM
EMMETT SIMMONSContracting
19711
  
DAU1325600055111/1/2021
Program Management; Engineering and Technical Management
What is the distinction of what is a System vs. what is not, in Research and Development per FAR 35 and FMR RDT&E Budget Activities?
FAR 35.016 states "use of the broad agency announcement (BAA) with Peer or Scientific Review (see 6.102(d)(2)) for the acquisition of basic and applied research and that part of development not related to the development of a specific system or hardware procurement" and DFAR 235.016, I have been following the documentation. DFAR 235.016 refers to Budget Activities 1-4 as allowable under a BAA. DoD 7000.14-R Financial Management Regulation Volume 2B, Chapter 5 spells out what falls in the budget activities. The Visio diagram plus the FMR its self outlines the TRL in the budget activities to be up to TRL 6 or 7 for BA4.  But TRL 7 is "System prototype" which is in conflict with "not related to the development of a specific system" in FAR 35.016. To bring more gray to this space the FMR and TRLs contain terms like a system, subsystem,  components, system models. Add that to the OSD "Systems Engineering Guide for Systems of Systems" which brings in yet another dimension of "system".

In order to be classified as a system, an entity must meet the following criteria:

 

  1. A system must have a purpose or function.
  2. In order to accomplish this purpose or function, it must have at least two components or subsystems, each contributing a unique input or function required for the system to accomplish its purpose or function.
  3. The loss of any one of the components or subsystems will prevent the system from accomplishing its purpose or function.
  4. The system may provide output to or receive input from a source external to the system. This implies that the system has a definable boundary.
  5. A subsystem is a set of elements, which is a system in and of itself, and is a member of a larger system.

 

If an entity does not meet the requirements listed above, it cannot be classified as a system.

 

A system may function as a sub-system in a larger system. If the larger system is made up of more than one system, it may be referred to as a “System of Systems.”

 

The word "system" appears only 5 times in FAR Part 35.  Once it appears as "major system" which implies an ACAT 1 program. In the other instances, it is used generically.

 

Technology Readiness Level (TRL) is a subjective model that assists in characterizing the readiness of a specific technology to enable a design to accomplish certain objectives. The concept of maturity implies that if certain steps are taken to progressively demonstrate the readiness of that technology to accomplish design objectives, the less risk there is in proceeding with the development and acquisition of the system relying on that technology.

 

 

Budget Activity 4, Advanced Component Development and Prototypes (ACD&P), funds the efforts necessary to evaluate integrated technologies. In order to evaluate and further mature a technology, representative modes or prototype systems in a high fidelity and realistic operating environment are required, and therefore are funded in this budget activity. This step is necessary to expedite technology transition from the laboratory to operational use. Emphasis is on proving technology maturity using hardware and software components, subsystems, and prototype systems prior to integration in major and complex systems and may involve risk reduction initiatives. Program elements in this category involve efforts prior to Milestone B and are referred to as advanced component development activities and include technology demonstrations. Achievement of Technology Readiness Levels 6 and 7 require the development of system prototypes. It is all about the technology, not the hardware or software.

 

Definitions of TRL 6 and TRL 7 follow:


TRL 6: Technology demonstrated in a system/subsystem, model, or prototype in a relevant environment

 

TRL 7: Technology demonstrated in a system prototype in an operational environment

 

 

Posted5080611/2/2021 9:44 AM
EMMETT SIMMONSProgram Management; Engineering and Technical Management
19712
  
DAU1325600055111/1/2021
Contracting
I have several questions. What is considered acceptance when issuing an FOPR? NASA SEWP uses the term "RFQ" when requesting quotes on their site. However, for SEWP we are not following FAR Part 13 but rather FAR Subpart 16.5. Secondly, is an FOPR considered a solicitation for the sake of including agency solicitation provisions? Or, are only agency contract clauses appropriate to include in an FOPR notice? I have seen both included by contracting officers in my agency. Lastly, I want to abide by the spirit of the MOA established between NASA and the DoD and issue task and delivery orders in an efficient manner without bloat; however, I feel I must also include DFARS and AFFARS clauses that are not incorporated into the parent contract. Am I correct when I presume that I should treat these orders like any other agency contract document that is under SAT, is commercial, brand name, etc.? Going back to the point of consistency, others in my agency only include payment clauses and relevant info. Some even use GSA eBuy forms and not standard forms. I appreciate any guidance you may offer.
I am a warranted GPC cardholder who is utilizing expanded use procedures. I do not have experience in GWAC's, BPAs against FSS's, etc. Additionally, I do not have sufficient examples of my Agency issuing FOPR's, so my agency guidelines are lacking. One of the GWAC's I will be using frequently is NASA SEWP, so it contains only FAR clauses, no DFARS or AFFARS. Clause at FAR 52.216-18 is incorporated into the parent contract.

Great question(s). A phone call with the question submitter revealed some other details.

Bottomline is “yes”. If you have mandatory clauses that need to be included in the NASA SEWP Order because of your Agency’s policy; they should be included in the RFQ or FOPR. The FAQ page on NASA SEWP does specify Agencies ordering off them need to follow Agency rules and the Vendors of the GWACs do understand that.

From the NASA SEWP site (Ordering):

The internal ordering process of each agency varies. The process and accompanying forms for PR's and DO's that are issued against a SEWP contract is defined by the issuing agency and not the NASA SEWP Program Management Office (PMO). The typical process, however, is for an end-user to determine a requirement and generate a purchase request (PR). The PR along with any necessary funding information is sent to that Agency's procurement office which results in the issuance of a delivery order (DO). Any valid Federal Agency DO form and the associated delivery order number may be used. The NASA SEWP Program Management Office (PMO) does not issue DO's - these must be issued through the issuing Agency's procurement office. The SEWP Program Management Office (PMO) reviews, processes and tracks issued DOs and forwards them to the Contract Holder(s)

Some agencies have special requirements for issuing IT Delivery Orders. It is the Issuing Agency's Contracting Officers' (COs/KOs) responsibility to be aware of any agency-specific policies regarding issuing orders via an existing contract vehicle and Government Wide Acquisition Contracts. There are no requirements under the SEWP Contracts for issuing agencies to use other intermediary procurement offices, except as directed through their own internal policies. Some agencies have special requirements for issuing IT Delivery Orders. It is the Issuing Agency's Contracting Officers' (COs/KOs) responsibility to be aware of any agency-specific policies regarding issuing orders via an existing contract vehicle and Government Wide Acquisition Contracts.

Posted5045011/2/2021 2:18 PM
EMMETT SIMMONSContracting
19713
  
DAU1325600055111/1/2021
Contracting
If the provision 52.204-7 is in a solicitation, whether or not FAR provision 52.204-8 is used, would you exclude any of the applicable 34 reps and certs? Asked differently, do you separately list the 34 reps and certs, when applicable, if 52.204-8 is not included in the solicitation?
FAR 4.1202(a) has three separate sentences.  The first sentence states when the provision at 52.204-8, Annual Representations and Certifications, is required.  The second sentence states when to use the alternate.  The third sentence states exactly, "When the provision at 52.204-7, System for Award Management, is included in the solicitation, do not separately include the following representations and certifications:"
There is confusion as to whether or not the third sentence at 4.1202(a) is contingent on the previous two sentences.
I read the third sentence as applying regardless of 52.204-8 being applicable.  I do not read a conditional statement on when the use or lack of use of 52.204-8 applies.
Others interpret the "do not separately include..." being applicable when 52.204-8 is applicable only.
Thank you very much.

Thank you for your question.  I agree with the position you are taking.  The prescription for FAR 52.204-7 is found at FAR 4.1105(a)(1) which is what you need to read to determine if the provision goes into your solicitation or not.  As a result, like you, I don't think it is based on whether or not FAR 52.204-8 is in the solicitation or not.  Therefore, as you alluded to in your background information, "when the provision at 52.204-7, System for Award Management, is included in the solicitation, [you] do not separately include the [34] representations and certifications [in the solicitation]."

 

Posted5080311/2/2021 2:19 PM
EMMETT SIMMONSContracting
19710
  
DAU1325600055110/31/2021
Contracting
The requirements owner (RO) is questioning contracting on whether or not to add/remove a statement in their PWS on whether a Catholic Priest should be a US citizen. Previous requirement indicated that there was a lack of interest in this requirement and it was difficult to find somebody to fill in while the permanent military Priest did several deployments and then R&R when he returned.
Catholic Priest requirement at Dover AFB.

It is our opinion that you should not require U.S. Citizenship, this would be an unnecessary and overly restrictive term and condition for a religious services contract on an installation. There is not DoD Instruction or regulation (including the DFARS) which mandates religious service personnel be U.S. Citizens.

Rationale: There is little chance any information the priest would receive or have access to would be subject to Export Control (see DFARS subpart 225.79).

As long as the Priest is legally authorized to reside in and work in the U.S. you should be fine, that would be determined by making sure you follow the requirements of FAR subpart 22.18 when building your solicitation and evaluating offers. This is complying with the DHS E-verify requirements. Note there is no DFARS implemental or supplemental language. They will also have to pass your installations access requirement and background checks.

That said, do not forget to review DFARS 237.77 Religious Services prior to doing market research or developing your solicitation.

Posted5080011/1/2021 10:51 AM
EMMETT SIMMONSContracting
19709
  
DAU1325600055110/28/2021
Contracting
Is it legal to extend an expired contract when all contractual services have been provided and accepted, and the extension is due to delays or oversight of the government to award a new contract? Are there exceptions?
General question.

Not without doing a Justification and Approval for other than full and open competition (J&A), probably citing FAR 6.302-2 Unusual and compelling urgency or FAR 6.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements.  Here’s why:

First, the contract has expired and you stated that "all contractual services have been provided and accepted". Now, if you had the clause FAR 52.217-8 Option to Extend Services and you were still within the number days to notify the contractor you would be ok. That clause has a “fill in” that identifies how many days before the period of performance expires you have to notify the contractor of the governments intent to exercise this option. But we’ll assume that option has expired.

Second, as a result, what you want to do is increase the scope of the contract to add an additional period of performance and this requires a modification to the contract. To do this you would need to have either 1) authority inside the contract itself to make the change, or 2) do a scope determination to see if you may. Because of what I wrote above, I will assume there is no other clause or language in the contract allowing for this extension. By default you would have to do the scope test.

See FAR 6.001(c) Contract modifications, that are within the scope of the contract, including the exercise of priced options that were evaluated as part of the original competition (see 17.207(f)). What this means is that your modification would have to be within the scope of your contract to execute it.

While it may be obviously clear for your scenario the answer is “no it is not”; the way to definitively determine that is through the scope test. You will not find this in the FAR or DFARS, it is a two part litmus test that Courts and Boards have used since CICA and the FAR were codified, enacted and published in 1984. It is a two part test that goes like this:

1) Was the change reasonably anticipated at the time of award? In other words, did contractors who submitted an offer know there was a good chance the period of performance would be modified to go longer? In my opinion the answer is “NO” especially since FAR 52.217-8 was not included and even more so if it is there but the government forgot/neglected to exercise it.

If you can answer “yes, it was reasonable…” to the first part, you can then move on to the second part.

2) If it was known the contract could be longer, would it have altered the field of original competition? Like step one, this is very subjective and really requires a full knowledge of all the facts and circumstances that existed at the time of award. It doesn’t just mean would some contractors chosen not to submit an offer and/or would some have chosen to submit an offer if they knew the period of performance would be longer. You also have to ask yourself “would offerors have altered their cost or pricing strategy, or their technical approach?”.

If you can answer “Yes” to step 1 and “No” to step 2, your modification would be “in scope” and as a result you could do a bilateral modification and extend the term of the contract.

Bottomline: Ask your contract legal official. But my guess is you can not answer yes to step one and therefore your modification is out-of-scope and would be a cardinal change to the contract. That would violate the Competition in Contracting Act as defined in 10 U.S.C. 2304 and implemented in FAR part 6. Therefore, the only way you could do it legally is with a J&A as I mentioned in the opening paragraph above.

Posted5080410/29/2021 7:51 AM
EMMETT SIMMONSContracting
19708
  
DAU1325600055110/27/2021
Contracting
How can you use FY20 funds for a FY21 requirement if your RAD package references the Bona Fide Need Rule? Wouldn't the funding need to be FY21 or FY22 funding?
Good day,
We have a TO that was awarded FY21 using FY21 funding (O&M funding).  In Q4 FY21 we received a requirements package for a Mod, which will be awarded and performed in FY22. The initial RAD package referenced the Bona Fine Need Rule, and the Form 9 for the Mod has FY20 funding.

After follow-up with the question submitter, it was confirmed that the use of FY20 funds for the upcoming modification would in fact have violated of the bona fide needs rule. A modification within the general scope of the contract that does not increase the contract price can properly be charged as an obligation of the year in which the contract was executed. However, if the modification exceeds the general scope of the original contract (e.g., increasing the quantity of items to be delivered), then the modification creates a new obligation and is chargeable to funds current at the time the modification is made.

Posted5080210/28/2021 7:45 AM
EMMETT SIMMONSContracting
19707
  
DAU1325600055110/26/2021
Contracting
1. Can the GPC be used to pay for repair of equipment that includes travel cost? 2. If repair is to be provided by the manufacturer/seller of the equipment i.e. x-ray machine for cargo, does this fall under exception to the Service Contract Labor Standards; cost of Labor exceeds $2.5, travel at $3K. Total amount $5K+
Travel cost for Corrective and preventive services for the cargo x-ray machine;
Service Contract Labor Standards Exception

Applicable references for question 1: See the Department of Defense Government Charge Card Guidebook for Establishing and Managing Purchase, Travel, and Fuel Card Programs (referred to as the Guidebook from here-on-out) (https://www.acq.osd.mil/dpap/pdi/pc/policy_documents.html),  Appendix I Definitions and Abbreviations:

Micro-Purchase Threshold means $10,000 (10 U.S.C. 2338), except it means—

(1) For acquisitions of construction subject to 40 U.S.C. chapter 31, subchapter IV, Wage Rate Requirements (Construction), $2,000;

(2) For acquisitions of services subject to 41 U.S.C. chapter 67, Service

Contract Labor Standards, $2,500; and

Applicable references for question 2: Your situation appears to fit the Secretary of Labor exemption at FAR 22.1003-4 (d)(1)(iv) which states, "Maintenance, calibration, repair, and/or installation (where the installation is not subject to the Construction Wage Rate Requirements statute, as provided in 29 CFR 4.116(c)(2)) services for all types of equipment where the services are obtained from the manufacturer or supplier of the equipment under a contract awarded on a sole source basis."  Also, you should review FAR 22.1003-4(d)(2) to ensure your requirement meets the conditions listed there.

Bottom line: Based on your background information, I think the $10,000 MPT probably applies to your repair service; that's assuming it meets the exemption at FAR 22.1003-4 (d)(1)(iv), which would mean your purchase would not be subject to 41 U.S.C. chapter 67.  I didn't find guidance that specifically spells out whether paying for travel associated with the repair is allowable and how to handle such travel.  However, travel (that's incidental to performing a service) was not listed in Section A.1.2.4 PROHIBITED PURCHASES of the Guidebook.  Take caution though because it's not an all-inclusive list, and I strongly recommend paying heed to the guidance provided in Section A.1.2.4 of the Guidebook which reads: "CHs should contact local authorities (e.g., the A/OPC, local Judge Advocate General, and Financial/Resource Manager) prior to purchasing any items that seem questionable or may have the appearance of being inappropriate. All exceptions must be on a per-transaction basis after consultation with legal counsel, the HCA, and the Financial Manager."  So, please talk to these folks before making the purchase.  I do not know where, how long or any other details about the travel, but the cost sounds a little high so check to make ensure the travel amount is fair and reasonable.  If you find out after contacting your local authorities, you are not permitted to make the purchase on GPC, I would seek guidance from your local contracting office on other possible alternatives.  

Posted5037410/27/2021 3:19 PM
EMMETT SIMMONSContracting
19702
  
DAU1325600055110/25/2021
Contracting
- Is it possible to purchase IT Software Maintenance & Licenses Agreements that are under the micro-purchase (10k) as a product with the GCPC credit card?
We are trying to understand the differences between the licensing and maintenance agreement vs. a service contract. There is one side believe you must solicit for quotes even if the total purchase is under the micro purchase threshold (10k). The other side believe the licensing and maintenance agreement is consider a product and can be purchase with the credit card since it under the micro purchase threshold. Could please shed some light on this subject?
We contacted DOD ESI, but our command is not accepting the a “White Paper”:
Thank you for contacting DoD ESI.

Licensing and maintenance agreement are part of the Software Agreements so most of the time, they are considered as a product/supply. You would review and negotiate the T&Cs of the renewal/maintenance products such as not automatic renewal, the time/term of the renewal, ...as part of for the software you acquire. Because of that, they can be purchased with the credit card if they are under the micro purchase threshold.

Please refer DoD ESI Article "Software Maintenance Negotiation Best Practice" at http://www.esi.mil/contentview.aspx?id=550 and the DoD ESI White Paper "Is Commercial Off-the-Shelf Software Maintenance a Supply or Service?" at http://www.esi.mil/contentview.aspx?id=721 for more details.

We also found this on the GSA website:
132 - Term software Software as a Product and 132 -33 Perpetual Software License as a Product, & 132 34 --- Software Maintenance Services

Being able to purchase IT software maintenance licenses with the GPC is possible, but it depends on your agency/commands guidance on whether you are allowed to do so. For example, the Army's GPC regulations state, "Cardholders must obtain approval from the installation’s Information Management Office (IMO) before purchasing information technology services, computer equipment, and software.  This requirement for prior approval includes network equipment, printers, data storage devices, other computer peripherals and related software, and information technology services.  In addition, the Cardholder must check with the Army Small Computer Program (ASCP) point of contact to determine whether the purchase must be made from one of the ASCP’s blanket purchase agreements or contracts."  Does software maintenance fall under the heading of IT services?  It depends. The  Navy GPC regulations do not mention any such requirement for IT purchases. 

 

      FAR 12.212 allows the purchase of software and software documentation, which could include licensing and maintenance agreements.  The GPC is used as a method of payment for similar services such as cell phones and cable television.  If there is some question about software licensing or maintenance agreements, I would first check to determine if there is a current BPA  for the service in effect. If not, check agency guidance, including a chat with your Approving Official or Level III Agency Program Coordinator (APC). Let them know if you have been previously using the GPC for these buys under the micro-purchase threshold, and if it has not been deemed a discrepancy during your GPC audits.  If they concur, proceed.    

Posted5079710/26/2021 7:18 AM
EMMETT SIMMONSContracting
19703
  
DAU1325600055110/25/2021
Contracting
Can the physicals be paid on the Government purchase card?
Security forces are required to have physicals.

If they are active duty members then you should be able to send them to the local clinic on base for free.  If they are contractors, they should have physicals in hand when they show up to work as part of the contract requirement. It's like a contractor providing us a vehicle. We wouldn't  have to buy tires in order to use the vehicle. Same principle applies.  

Now if there is no access to US. government medical services, then you can pay for active duty member physicals with the permission of the Level 3 APC (Agency Program Coordinator).   If the contractor cannot provide physicals then I would ask for some consideration (cost reduction) if we have to pay for physicals for their employees. 

So can you use the GPC for physicals? The short answer is yes, with GPC or local contracting authority approval.  Please refer to your agencys credit card guidance that identifies use of the card and specific items that are prohibited.

Posted5079210/26/2021 7:19 AM
EMMETT SIMMONSContracting
19704
  
DAU1325600055110/25/2021
Engineering and Technical Management
How does battle damage / system survivability calculate into Ao, Am and Rl? Meaning, if a system, like Iron Horse (as described in the class ENG0860) receives battle damage, how is that accounted for as part of Ao, Am and Rl? David Meshel
Calculating Ao, Am, Rl

The short answer is “It does not.” Battle damage not accounted for as part of Ao, Am or RI. Ao and Am are a function of system reliability, system maintainability, and the efficiency of the logistics support. These are the factors that are included in the formula to calculate these metrics. These are all terms that are Technical Performance Measures or Critical Technical Parameters that are part of the technical requirements, usually found in the Specifications. They are design objectives provided to the designer. They are stochastically measured using a significant amount of data of test data taken during the development. Therefore, you never really know for certain if you meet them.

 

Battle Damage is not factored into the calculation of these design parameters of the system. It is not a part of the calculation of Ao, Am or RI, nor is it a part of the test data used to determine if the design meets those requirements. Battle damage is more a function of the threat, intensity of the contact, etc., than a part of the system design, maintenance, and support. While you can determine the effects of Battle Damage of a specific threat through the use of Modeling and Simulation or Live Fire, these are usually one off test events and do not provide data for the calculation of Ao, Am or Ri. The inherent reliability of a system or device is determined by its configuration and component selection.

 

 

 

Posted5076410/26/2021 7:20 AM
EMMETT SIMMONSEngineering and Technical Management
19705
  
DAU1325600055110/25/2021
Contracting
The information on Bona Fide Need / Color of Money is limited when it comes to this type of action. Side note add a DUA class for this stuff. *See the funding types and years below. I believe that these funds may not be able to be moved to fund the new action under CLIN 10 due to this CLIN would be for a new purpose. Those funds are beyond the period of availability. They were obligated appropriately on CLIN 3, but this would be a new purpose for them on CLIN 10. Please confirm or deny my interpretation. *Type of Fund(s) on CLIN 3: 2018 2019 2040 RDT&E (2 Yr) 2019 2021 2035 OPA (3 Yr)
We're interested in moving funds between CLINs on a DO.  The funding on CLIN 3 was obligated during the period of availability, but never used/invoiced. It's a FFP CLIN for a specific item. We would like to move the un-used funds to CLIN 10 for a software upgrade.  This is a Cost CLIN for technology integration and insertion. The software upgrade is within scope of the IDIQ Contract SOW. CLIN 10 is on the base IDIQ Contract, but has never been used on any DOs to date.

Your question revolves around moving funds between CLINs on an IDIQ.  I am going to make an assumption that the funds on CLIN 3 are now expired, if the Appropriation is in the Expired phase it is not available to be obligated for a new effort.  Since IDIQ contracts are normally obligated at the DO level, then I believe this would be a purpose statue violation as well as a Bona Fide Need violation.  From the limited information and description you provided, not only is the money on different CLINs, but the intent is to use for a different, unrelated task which would be the Purpose Statute violation.

I strongly suggest that you contact your local Comptroller/funds certifier and/or Legal Office to discuss this situation and receive additional guidance.

 

Posted5079810/26/2021 12:46 PM
EMMETT SIMMONSContracting
19706
  
DAU1325600055110/25/2021
Engineering and Technical Management
For a software only program, will section 13.2 "Influencing Design and Sustainment" of a typical SAMP really only contain regulations governing government software development in general? What typically goes in this section for a program that is only software? Thank you.
working on Simplified Acquisition Management Plan (SAMP) for a software only program. In particular, I have a question on section 13.2 "Influencing Design and Sustainment."

While including regulations governing government software development in your SAMP makes complete sense, recommend not limiting contents to just standards & references.  If you have not already done a review of the the software acquisition pathway, recommend doing so.  In particular, the Program Management Metrics section will be helpful, https://aaf.dau.edu/aaf/software/metrics-and-reporting/.  Even if your program is not being managed thru the SW pathway, the section on metrics contains some helpful information on how to measure success for SW intensive systems in development or sustainment.  One of focus areas for the new policy on SW is to help redefine how the DoD approaches sustainment given that software is never really done.  The functional policy on software acquisition also contains some excellent guidance that should be tailored to your program's situation. https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/500087p.PDF.  You will find the topics in section 3.2 & 3.3 are applicable to the topics you referenced in your question about the 'Influencing Design & Sustainment' section of your SAMP.

Posted5078710/26/2021 3:23 PM
EMMETT SIMMONSEngineering and Technical Management
19700
  
DAU1325600055110/24/2021
Program Management
Is there a DOD software package for building Acquisition Roadmaps that is currently available? We had been using an MS Project add-on and that is no longer an option, so I was wondering if there are suggestions (AAR/LL) regarding if there is something out there that has functionality and elegance (beyond Jira) that works well for elaborate planning and presentation.
Is there a DOD software package for building Acquisition Roadmaps that is currently available? 

Hello.  Our preferred tool was MicroSoft Project just like you.  Surprised to read it is no longer an option.  We have several project managers that swear by a tool called Concierto - similar to MS Project in generating Gandt Chart results of complex sequence plans.

Posted5072910/25/2021 7:44 AM
EMMETT SIMMONSProgram Management
19701
  
DAU1325600055110/24/2021
Business
How does applying exceptions to using RDT&E funds across multiple fiscal years for a Defense Business System affect the annual Defense Business Certification
Trying to determine if RDT&E from prior certification years can be used for an IT contract.

As a Financial Management SME, I can only answer the issue on the RDT&E funding that crosses fiscal years.  As per the Financial Management Regulation (FMR) 7000.14-R Volume 2A Chapter 1 Paragraph 010214, you can ask for permission from the Comptroller to fund in the first year a contracted effort that is greater than 12 months but less than 18 months if one of the following is true:  a) the effort is not logically divisible; b) it is infeasible to shorten the contract length; or c) you do not expect bids if the contracted effort is not fully funded. 

I would also expect to look at the Budget Exhibits to determine what you included for this particular effort.  The RDT&E funds have to be in the Current phase, so available for new obligations (if this is a new effort).

I strongly suggest you seek guidance from your Comptroller, and/or Legal office for this particular issue. 

 

Posted5048210/25/2021 10:36 AM
EMMETT SIMMONSBusiness
19698
  
DAU1325600055110/21/2021
Contracting
For the purposes of the certified cost and pricing sections of the FAR/DFARS, do we have to put those clauses in the IDIQ base since the IDIQ NTE is over $2M, or do we just look at the value of the actual obligation, in this case the $300K seed task order? Thank you!
8(a) sole source IDIQ will have a NTE of $4.5M,  Seed task order around $300K, 

DFARS 219.806, Pricing the 8(a) contract.  For requirements processed under the PA cited in 219.800-

(1)  The contracting officer shall obtain certified cost or pricing data from the 8(a) contractor, if required by FAR subpart 15.4; and

(2)  SBA concurrence in the negotiated price is not required.  However, except for purchase orders not exceeding the simplified acquisition threshold, the contracting officer shall notify the SBA prior to withdrawing a requirement from the 8(a) Program due to failure to agree on price or other terms and conditions.

If certified cost and pricing data are required, then put the clauses in the IDIQ contract.  

 

Posted5079510/22/2021 10:22 AM
EMMETT SIMMONSContracting
19699
  
DAU1325600055110/21/2021
Contracting
Can I create a CLIN 4003 on the Task Order for Labor without modifying the based IDIQ contract?
I have a IDIQ contract that has CLINs for labor under CLIN 4001 - De-population and Re-population . CLIN 4001AA - Labor , CLIN 4002 - Travel for Repop & Depop... CLIN 4002AA - Travel.  From my understanding the new task order that needs to be create considered was not included in the IDIQ contract.  So because it was not included , the  Team wants to add the labor for repopulation on a new CLIN 4003, however only add it to the task order and not modify the base IDIQ contract.  The team leader states that the task order is a stand alone.  The team lead states that because the PWS for the task order is the same type of work for CLIN 4001AA - Depopulation and Repopulation.  CLIN 4003 can just be added to the task order without have to modify the base IDIQ contract.  Currently the base IDIQ contract does not have CLIN 4003.

The FAR doesn't prohibit creating a new CLIN at the task order level without including it in the base IDIQ contract.  But, I think it's fair to say that doing so is not the norm.  I think one reason is the challenge it would create with tracking CLINS and funding at the total contract level.  For example a stand-alone CLIN on this task order and a stand-alone CLIN on that task order (which are not tracked at the base contract level) will most likely cause some continuity issues in terms of keeping track of the CLINS and funding on your contract.  But, even more concerning is the question it raises about scope.  Adding a new CLIN usually implies new work is being added and would not be in scope of the contract.  In these types of situations, the contracting officer has a duty and responsibility to complete a scope determination and determine if a Justification and Approval (J&A) needs to be completed in accordance with FAR Part 6. 

 

You also mentioned that your team had a discussion about whether a task order is "stand alone" from the base IDIQ contract.  That's a question that generates a great deal of debate in many program office circles, and the FAR doesn't provide very much help in answering that question.  However, I think many people would agree that the task order should be issued under the terms and conditions that are contained in the mother contract (See FAR 4.1005-1 and FAR Clause 52.216-22(d)).  Also, the work to be performed in the task order is normally tied to a "corresponding" line or subline item from the base contract (See FAR 16.505(7)(iii)).  Therefore, someone can try to say that the task order "stands on its own" from the base contract (and there's room for interpretation about what that really means), you still can't get around these two realities: the T&Cs in the base contract are what govern at task order level, and the task order must include the corresponding CLIN from the base contract (unless the work is out of scope). 

 

Bottom line:  Adding a new CLIN to a task order but not the base contract is not prohibited by the FAR but can cause problems as outlined above.  Whether or not someone wants to make a case that a task order (or a new CLIN) is "stand alone" kind of misses the point in my mind.  The more important question to ask is if it's in scope of the contract.  I think adding a CLIN to a task order, which is not in the base contact, raises some legitimate concerns about whether or not the new CLIN is "in scope".  Finally, any decision regarding the CLINs on the contract need to also take into consideration your Service policy, agency policy letters, and ultimately your Contracting Officer, and we recommend consulting with your legal office to ensure any legal/regulatory implications are fully understood prior to taking action.

 

Posted5079010/22/2021 1:36 PM
EMMETT SIMMONSContracting
19695
  
DAU1325600055110/20/2021
Contracting
Is there anything similar for FP-A&E such as the Default Clause for Construction. Would the CO use 52.243-1 Alt III to do a PoP extension? I noted, there is a time extension clause for construction 52.211-13. But, this wouldn't be applicable to AE. Right?
Received an inquiry from a co-worker regarding time extensions for an AE contract. For FP Construction, we can extend a contract that is not at the fault of a contractor (SubKt Delay, Act of GOD, etc.) using 52.249-10 Default.

The clause at 52.243-1 Alt III cannot be used to extend the period of performance because that is not listed as one of the "in-scope" items. The clause at 52.211-13 is not applicable to A-E contracts. If the contractor is not at fault, a bilateral modification (supplemental agreement) per FAR 43.103(a) using the SF 30 can be used to extend the period of performance. You would insert "mutual agreement of the parties" in block 13C.

Posted5079110/21/2021 7:57 AM
EMMETT SIMMONSContracting
19696
  
DAU1325600055110/20/2021
Contracting
Regarding the excerpt from the AFFARS below, it seems the guidance it provides is gray, for the use of the streamlined PNM for actions over the TINA threshold, but with exemptions. I have I have a $5M proposal of which $4.5M is commercial. Because of these parameters, I believe I can use a streamlined PNM. Is there documentation somewhere that spells out when I can and cannot use the Streamlined PNM process? AFMC PGI 5315.406-3 Documenting the Negotiation (a) For contract actions valued below the TINA threshold, the AF Streamlined PNM Format for supplies or services, or any other format which adequately addresses the basis of the proposed, objective, and negotiated amounts is available for use. If the value of the contract action exceeds the TINA threshold and no exception to TINA applies, it is expected that the pricing documentation will address the cost element composition of the proposed, objective, and negotiated positions at an appropriate level of detail based on the value and complexity of the pricing action.
AFMC PGI 5315.406-3 Documenting the Negotiation
(a) For contract actions valued below the TINA threshold, the AF Streamlined PNM Format for supplies or services, or any other format which adequately addresses the basis of the proposed, objective, and negotiated amounts is available for use. If the value of the contract action exceeds the TINA threshold and no exception to TINA applies, it is expected that the pricing documentation will address the cost element composition of the proposed, objective, and negotiated positions at an appropriate level of detail based on the value and complexity of the pricing action.

This was a great question! We reached out to the real experts for your situation. Below is the response we received from the policy experts at SAF/AQCP.

“A PCO needs to use discretion when documenting their negotiation based on the dollar value and complexity of the effort and there is no specific guidance to my knowledge that spells out when they can/cannot use the templates that are available since they are not mandatory use.  Since they have an exception to TINA the language pertaining to expectations in documentation after the TINA threshold would not apply to this situation, however, I personally feel the Streamlined PNM templates don’t have enough guidance in them to properly document a deal over the TINA threshold that has a TINA exception. Ultimately a PCO need to make sure they have fully documented the effort and provided sufficient information to demonstrate the price is fair and reasonable.  The PNM also assists those that have follow-on efforts and is a resource for things such as defective pricing situations, GAO/IG audits or internal inspections so preservation of relevant data/information is important.”

As an aside, there is an on-going Air Force the "PGI to TTP" initiative which might result in realignment or delete current Air Force PGI content. As they work towards the final dispositions on the PGI they might consider removing the links to the streamlining template until a chance to revise it or create another.  “It is an older template that is in need of a refresh and there is some concern if the field would want to apply it on TINA exempt efforts over $2M.”

Posted5078910/21/2021 2:27 PM
EMMETT SIMMONSContracting
19697
  
DAU1325600055110/20/2021
Program Management
I am looking for guidance on what level is required to do that? What DOD or DODI documents can help me? Also, for KPPs, KSAs, and APAs, who approves that? Thank You
In an approved CPD, the PM want to waive part the requirements in the additional system requirements, section 6 (transportability).

Generally, the PM must achieve the threshold (T) requirements of all the KPPs exactly as written in the CDD unless relief of those KPPs is provided by the JCIDS process (see discussion below on AROC or JROC memorandums), or as a result of a Configuration Steering Board (CSB.)  CPDs are still valid and have the same rules as CDDs. The PM must next work to meet KSA Thresholds and then APA Threshold requirements as the cost and schedule support meeting those threshold requirements.

To your specific question, if the transportability attribute is not a KPP, then the PM may make it part of the program strategy to not meet the full requirement because of a number of valid reasons.  The PM should work with the Requirements Manager/Sponsor to determine the ramifications of waiving these requirements.

CJCSI 5123.01 covers JCIDS along with the JCIDS Manual (August 2018 is current as of today.)  DODI 5000.02 covers the Adaptive Acquisition Framework along with a series of DODIs 5000.XX for each of 6 acquisition pathways.

You will find guidance on changing CDD requirements within each CDD's Army Requirements Oversight Council (AROC) Memorandum that validates the CDD or if joint, the Joint Requirements Oversight Council (JROC) Memorandum.  In the CDD's validation memo (whether AROCM or JROCM) the validation authority normally issues guidance on changing requirements.  Normally, they defer to the sponsor, i.e. the senior commander or executive of the document's sponsor, to approve all other changes that are not specifically withheld by the validation authority.  And those that are withheld are normally limited to the KPPs.

The sponsor, therefore, may adjust all other requirements not withheld by the validation authority.  A memorandum should be written and signed by the commander or senior executive of the sponsoring warfighting function documenting the change.  The memorandum is then attached to the original CDD in CAMS and KM/DS by the Army Gatekeeper.

Posted5078610/21/2021 4:05 PM
EMMETT SIMMONSProgram Management
19693
  
DAU1325600055110/18/2021
Contracting
An order request has been submitted for the rental Bus Service cost is over $2500. If pricing information for the rental is over 50% of total cost is this contract considered a suppy?
Rental of Bus

The question of "service or supply" is a common one, and vehicle rental a prime example. On the one hand, the bus itself is an item of supply. The definition of "service contract" at FAR 37.101 is "...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 (italics added)." In your case, the bus is "furnished" to the Government. However, if the contract is for the rental of a vehicle with the contractor providing an employee to drive the bus, it could change the calculus. You stated the "rental" portion is over 50% of the total, which means the cost for a contractor employee to drive the bus is less than 50%. However, it's not clear if the driver portion is above the $2,500 threshold for application of the Service Contract Labor Standards statute. FAR 22.1002-1 states: "Service contracts (italics added) over $2,500 shall contain mandatory provisions regarding minimum wages and fringe benefits, safe and sanitary working conditions, notification to employees of the minimum allowable compensation, and equivalent Federal employee classifications and wage rates." So the question becomes— is this contract covered by the requirements of the Service Contract Labor Standards statute? It appears so. Chapter 14 of the Dept. of Labor's Field Operations Handbook states: “In general, contracts under which the contractor agrees to provide the government with vehicles or equipment on a rental basis with drivers or operators for the purpose of furnishing services are covered by the SCA” (section 14d12(b)(3)). Smart contracting professionals can come down on both sides of this argument, so the contracting officer should use his/her business judgment and document the file with the determination.

Posted5075810/19/2021 9:34 AM
EMMETT SIMMONSContracting
19694
  
DAU1325600055110/18/2021
Contracting
An order request has been submitted for the rental Bus Service cost is over $2500. If pricing information for the rental is over 50% of total cost is this contract considered a supply?
Rental of Bus

The question of "service or supply" is a common one, and vehicle rental a prime example. On the one hand, the bus itself is an item of supply. The definition of "service contract" at FAR 37.101 is "...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 (italics added)." In your case, the bus is "furnished" to the Government. However, if the contract is for the rental of a vehicle with the contractor providing an employee to drive the bus, it could change the calculus. You stated the "rental" portion is over 50% of the total, which means the cost for a contractor employee to drive the bus is less than 50%. However, it's not clear if the driver portion is above the $2,500 threshold for application of the Service Contract Labor Standards statute. FAR 22.1002-1 states: "Service contracts (italics added) over $2,500 shall contain mandatory provisions regarding minimum wages and fringe benefits, safe and sanitary working conditions, notification to employees of the minimum allowable compensation, and equivalent Federal employee classifications and wage rates." So the question becomes— is this contract covered by the requirements of the Service Contract Labor Standards statute? It appears so. Chapter 14 of the Dept. of Labor's Field Operations Handbook states: “In general, contracts under which the contractor agrees to provide the government with vehicles or equipment on a rental basis with drivers or operators for the purpose of furnishing services are covered by the SCA” (section 14d12(b)(3)). Smart contracting professionals can come down on both sides of this argument, so the contracting officer should use his/her business judgment and document the file with the determination.

Posted5075810/19/2021 2:25 PM
EMMETT SIMMONSContracting
19690
  
DAU1325600055110/13/2021
Contracting
For an Other Transaction type contract that doesn't stipulate specific guidance in this scenario, can CAP be gifted to a subcontractor? The contractor and PM are on board, but we are trying to determine 1) if this is possible and 2) if possible, what needs to be done to transfer ownership to the subcontractor in this situation. Thanks!
Had a PM bring up the potential for wanting to leave CAP or GFP with the subcontractor.

Per Section II of the Other Transactions Guide (Nov 2018), the Government isn’t required to, and generally should not take title to physical property acquired or produced by a private party signatory to an Other Transaction (OT), except property that is identified in the agreement as a deliverable. The inclusion of “Unless otherwise stated in the Award, title to personal property acquired with agreement funds shall vest in the recipient upon acquisition...” in the agreement is consistent with the excerpt from the OT Guide. Based on the information that you provided, it appears the Government does not have title to what you referred to as Contractor-acquired property (CAP). Contractor-acquired property means property acquired, fabricated, or otherwise provided by the contractor for performing a contract and to which the Government has title. By definition CAP is property that the Government has title to. It is suggested that a determination be made as to whether the property in question is really CAP.

The OT Guide does address property for which the Government has title. It states that property that the Government takes title to (e.g. CAP) or furnishes (i.e., GFP) is subject to the Federal Property and Administrative Services Act (Codified in various sections of 40 U.S.C and 41 U.S.C.). Property titled to the Government cannot be gifted without being screened for reutilization within the Federal Government. It must first be screened by the owning agency (e.g., the Department of Defense) for reutilization. In most cases property must be screened by the General Services Administration (GSA) to all Federal agencies for reutilization prior to being donated or sold. One exception is the donation of educationally useful equipment to an educational institution or nonprofit organization (see Executive Order 12999). However, even educationally useful equipment must be screened by the owning agency first. The Federal Property and Administrative Services Act, Subchapter II Section 483, Property Utilization, requires executive agencies to transfer or dispose of excess property in accordance with authority delegated and regulations prescribed by the Administrator (GSA). GSA maintains the Federal Management Regulation (FMR). For specific information about the disposition of personal property see FMR Part 102-36. See FMR Part 102-75 for real property disposal.

The supplemental information provided revealed that the agreement also states supplies shall be managed in accordance with § 200.314, title to real property shall vest in the recipient subject to conditions contained in 2 CFR § 200.311, and the recipient shall dispose of real property in accordance with Agreement Officer instructions pursuant to 2 CFR § 200.311. 2 CFR § 200.312 should also be reviewed for relevance.

§ 200.312 Federally-owned and exempt property.

(a) Title to federally-owned property remains vested in the Federal Government. The non-Federal entity must submit annually an inventory listing of federally-owned property in its custody to the Federal awarding agency. Upon completion of the Federal award or when the property is no longer needed, the non-Federal entity must report the property to the Federal awarding agency for further Federal agency utilization.

(b) If the Federal awarding agency has no further need for the property, it must declare the property excess and report it for disposal to the appropriate Federal disposal authority, unless the Federal awarding agency has statutory authority to dispose of the property by alternative methods (e.g., the authority provided by the Federal Technology Transfer Act (15 U.S.C. 3710 (i)) to donate research equipment to educational and nonprofit organizations in accordance with Executive Order 12999, “Educational Technology: Ensuring Opportunity for All Children in the Next Century.”). The Federal awarding agency must issue appropriate instructions to the non-Federal entity.

(c) Exempt property means property acquired under a Federal award where the Federal awarding agency has chosen to vest title to the property to the non-Federal entity without further responsibility to the Federal Government, based upon the explicit terms and conditions of the Federal award. The Federal awarding agency may exercise this option when statutory authority exists. Absent statutory authority and specific terms and conditions of the Federal award, title to exempt property acquired under the Federal award remains with the Federal Government.

Lastly, when trying to determine whether it is permissible to “gift” property to a private entity it is strongly suggested that you contact your local counsel to ensure that you are not in violation of any laws or policies.

Posted5075210/14/2021 7:09 AM
EMMETT SIMMONSContracting
19691
  
DAU1325600055110/13/2021
Contracting
Is there a matrix tool to assist in determining the best solution for contract/agreement type to be used?
General Discussion between teams

I did a quick review of the contracting tools at https://www.dau.edu/tools and didn't have much luck finding an all-encompassing, comprehensive tool like you described that would help someone weigh let's say a BPA against an IDIQ or a T&M against a CPFF but I did find a couple of different tools when you put them together might help you weigh the pros and cons of using one vs. the other (see below).  Hope these are helpful to you, and you can do some of your own research on DAU.edu.   

Comparison of Major Contract Types Chart: https://www.dau.edu/tools/t/Comparison-of-Major-Contract-Types-Chart

Summary: The Comparison of Major Contract Types Chart is based on the information in the Contract Pricing Reference Guides (Volume 4 – Advanced Issues in Contract Pricing, Chapter 1 - Establishing And Monitoring Contract Type), and updated for statutory/regulatory/policy changes and court decisions that have not been included in the Guides.

On the reverse side of the Chart is additional information on contract types, pricing arrangements, and incentives used in Defense Systems Management College (DSMC) courses at the Defense Acquisition University (DAU). The current version of the chart has been updated to include changes to the Defense Federal Acquisition Regulation Supplement (DFARS) resulting from Section 807 of the National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-92) issuance of Department of Defense Instruction (DoDI) 5000.02T, Operation of the Defense Acquisition System (Incorporating Change 6, January 23, 2020), updates to the Defense Acquisition Guidebook (DAG), and a Department of Defense deviation to the Federal Acquisition Regulation (FAR) ― Class Deviation 2020-O0003 - Use of Fixed-Price Contracts for Foreign Military Sales (08 January 2020).

The chart was formatted duplex, two-sided, printing on 11 x 17 paper.

Contract Strategy Fact Sheets:  https://www.dau.edu/tools/t/Contract-Strategy-Fact-Sheets

Summary: The Contract Strategy Fact Sheets are a quick guide to the various Federal Acquisition Regulation (FAR) contract strategies available for use from Agreements, Schedules and Negotiated Contracts to lesser known strategies like Broad Agency Announcements and Defense Commercial Solutions Opening.   Each of the twelve fact sheets provides the regulatory references, definitions, the applicability and considerations associated with the contract strategy, along with other resources like active links to templates, training or useful websites.

Guidance on Using Incentive and Other Contract Types: https://www.dau.edu/tools/t/Guidance-on-Using-Incentive-and-Other-Contract-Types

Summary: This guidance addresses, in a comprehensive way, the considerations contacting and acquisition professionals should take into account when selecting and negotiating the most appropriate contract type for a given requirement.

Posted5036010/14/2021 7:10 AM
EMMETT SIMMONSContracting
19692
  
DAU1325600055110/13/2021
Program Management
Can the program brief entry into MS-C?
EMD, Developmental Flight test and their reports have not been completed yet.

For clarification, programs can enter phases based on milestone decisions.  Milestone C is the decision point for entry into the Production and Deployment (P&D) Phase.  The crux of the question is whether or not a program can start P&D activities while still conducting engineering and manufacturing development (EMD) efforts.  There are no specific restrictions against entering P&D while still in the EMD.  The decision to transition to the next phase in the acquisition development process is based on completion of the established criteria for the current phase as set by the Milestone Decision Authority (MDA). 

For your specific question concerning entering P&D while in the EMD phase.  The Defense Acquisition Guidebook (https://www.dau.edu/tools/dag) notes that the EMD phase ends when the design is stable; the system meets validated capability requirements demonstrated by developmental, live fire (as appropriate), and early operational testing; manufacturing processes have been effectively demonstrated and are under control; software sustainment processes are in place and functioning; industrial production capabilities are reasonably available; program security remains uncompromised; and the program has met or exceeds all directed EMD phase exit criteria and Milestone C entrance criteria per the MDA’s direction.  An ICE and an ITRA will be conducted for MDAPs before beginning LRIP.

During the EMD phase, the program manages the remaining risk, builds and tests production representative prototypes or first articles to verify compliance with requirements, and prepares for production and fielding. It includes the establishment of the product baseline for all configuration items.  The program should conduct a Critical Design Review (CDR), a System Verification Review (SVR), a Functional Configuration Audit (FCA), and a Production Readiness Review (PRR) as part of its ongoing systems engineering and risk management efforts to assess and manage risk. These SETRs are technical milestones to assess the product and processes to ensure the system can perform as desired and proceed into the next phase within cost and schedule constraints at an acceptable level of risk.  The PM should focus the risk management activities on the transition from development to production. The program should consider conducting a manufacturing readiness assessment before Low-Rate Initial Production (LRIP) and again before Full-Rate Production (FRP) to identify risks related to critical manufacturing processes and product characteristics. Examples of specific risk areas include requirements/design stability, integration and inter-dependency risks, and manufacturing/supply chain quality.

Suggested Activities in the EMD Phase to Reduce Risk

•             Continue knowledge point reviews, CSB meetings, and assessment of framing assumptions as in the TMRR phase. When not making a change to KPPs could jeopardize a program’s utility or affordability, coordinate with the Joint Requirements Oversight Council.

•             Update requirements trace and risk assessment for the draft Capability Production Document (CPD).

•             Conduct early risk-focused developmental testing with adequate time for necessary regression tests.

•             Work with the operational test and evaluation community for early participation, requirements trace, and assessment.

•             Require contractor testing with predefined success criteria to facilitate resolving integration activities and failure modes before the start of government testing.

•             Establish and manage size, weight, power, and cooling (SWAP-C) performance and R&M allocations for all subsystems.

•             Align logistics analysis, training, and support systems with system development.

•             Plan technology refresh cycles to be implemented in the P&D and O&S phases to address technology obsolescence risks.

Once again, the intent of EMD is to stabilize the design and manufacturing process ahead of going into production.  If the program office is comfortable with the design and has a compelling argument to start P&D activities, the MDA has the ability to approve the program to enter into P&D through MS C with liens in the Acquisition Decision Memorandum (ADM).  Reference our AAFDID (https://www.dau.edu/aafdid/Pages/Milestone-and-Phase-Information-Requirements.aspx)  to see what MS-C statutory and regulatory requirements the MDA will need to consider. 

Posted5077310/14/2021 3:59 PM
EMMETT SIMMONSProgram Management
19687
  
DAU1325600055110/12/2021
Contracting
Once the base year of supplies were delivered, is the contract still valid for exercising option years? Not sure how to determine the time limit for the contract.
We issued a FFP contract that was for delivery of supplies for a base year and 4 Option years with the same supplies. The delivery date was established on the contract, for base and  each option year.

The first option would need to be exercised within the number of days expressed in the applicable fill-in clause prior to the delivery date of the base year CLIN. That clause would likely be 52.217-6 Option for Increased Quantity or 52.217-7 Option for Increased Quantity-Separately Priced Line Item. The applicable clause would have had to been filled in prior to award of the contract when it was initially added to the solicitation and then incorporated into the resulting contract. 

If no more supplies are required, then proceed with contract closeout procedures. 

Posted5077610/13/2021 7:33 AM
EMMETT SIMMONSContracting
19688
  
DAU1325600055110/12/2021
Contracting
Do you have a guide or handbook that covers Government -Contractor relations that I can provide to our military supervisors so they know how to work with contractors? I've found some on line but they are dated.
I have  Military supervisor that wants to know how to manage his contractors, determine hours worked,  can they eat lunch at their desk, continue to work and count that as labor, etc.  This could become an issue.  I can explain it but a handbook or guide would be good for him to see in writing.

It seems the issue is that an on-site supervisor of the requiring activity is not clear on the proper way to interact (or more actually, avoid interacting) with a non-personal services contractor. You would like to provide basic written guidance that prescribes proper roles and relationships. Here are a few that may help:

FAR 1.602-2: Describes how the contracting officer and COR are the only Government employees authorized to interact with the Contractor on matters pertaining to the terms and conditions of the contract.

FAR 37.104(d)(6): Explains how Government direction or interaction with Contractor employees is appropriate for personal services contracts. By clear implication, direction/interaction is not appropriate for any other type of contract. 

COR Handbook: Section 1.3 states "The COR is the eyes and ears of the Contracting Officer." In other words, nobody else is. Section 6.10 discusses unauthorized commitments with the intent to prevent anyone other than the contracting officer from doing or saying anything that could be construed as providing inappropriate direction to the contractor. That section goes on to state: "CORs are reminded that they, or any unwarranted government official [italics added], may be financially obligated for any costs or damages incurred as a result of their directing contractor performance beyond the scope of their authority." Perhaps that caveat will be sufficiently convincing. Seemingly innocuous directions to a contractor could create an out-of-scope result.

Posted5078310/13/2021 9:59 AM
EMMETT SIMMONSContracting
19689
  
DAU1325600055110/12/2021
Business
Can we use FY21 funds for the LRIP 2 delta amount? Assuming those quantities can be delivered in a 12 month period, perhaps it's viable? Any FMR references to tie back to.
PMO making their initial LRIP 1 contract award (pending negotiations, FY21, WPN), LRIP 2 will be a planned option (award expected Sept 2022, FY22 WPN), but the cost is slightly higher than budget authority.  Program office coordinating with sponsor, but question was asked, could we use the left over funds in FY21 for the planned LRIP 2 option.  Essentially some quantities would be bought with FY21/FY22 (LRIP 2 option).   

There is no restriction in the DoD Financial Management Regulation (FMR) that limits obligations of Weapons Procurement, Navy (WPN) to the first year of availability. FMR Volume 2A, Chapter 1 Paragraph 010213 addresses Low Rate Initial Production (LRIP) units and the proper appropriation to fund them based on how the item will be used but there are no specific limitations given on the year of funding that must be used.  The Bona Fide Need rule will be the presiding law.

The Bona Fide Need rule (U.S. Code Title 31, Section 1502(a) allows that funding be used for goods and services for which needs arise during the period that appropriation is available for obligation (three years for WPN).  Government agencies may not purchase goods or services they do not require. However, they may use appropriated funds to fill actual requirements as specified by the purpose of an appropriation, or for purposes necessary and incident to that appropriation. Because appropriations are generally only available for limited periods of time, it becomes important to understand when an agency actually requires a good or service (31 U.S.C. § 1552). Until that requirement (need) arises, no authorization exists to obligate appropriated funds. Once the need arises, an agency may only obligate appropriated funds that are current at that time 31 U.S.C. § 1502(a).  The three-year availability of funds authorized for Procurement appropriation provides the necessary flexibility for program execution in those circumstances.  Your organization might  place a limitation on the use of the appropriation beyond the first fiscal year.  This is considered more conservative than intended by Congress, however it is within their prerogative to be more restrictive than what is allowed by the U.S. Code. 

A second issue that you raised was the 12-month delivery period as part of the full funding policy.  There is no law stating that procurement items must be delivered within a 12 month delivery period.  This 12 month delivery period requirement is part of the full funding budgeting policy that applies to all procurement and military construction appropriations within the Department of Defense (DoD).  The full funding policy is required to be followed, however exceptions can be granted by your chain-of-command. Recommend that you check with your Comptroller and Legal Department on local policy.

 

 

 

 

 

 

 

Posted5076010/13/2021 12:58 PM
EMMETT SIMMONSBusiness
19684
  
DAU1325600055110/11/2021
Contracting
Should we be adjusting docs that we solicited w/o making it clear to the contractor what we changed? Isn't it implied that these docs are not meant to be changed, as they are auto-added (through most writing systems) to the award? Shouldn't any changes in the solicitation and contract for the contract phase be documented in alteration in contract clause? Where in the regulations is this required?
We have someone in our office that believes it is a legal issue if we do not put headers on our documents, along with solicitation/attachment #, and date (if not on the document). Also, that once the document is solicited it is okay to alter these documents w/ out annotating the changes in the contract or solicitation. So when the RFP/RFQ# changes to the contract # you would have to adjust the headers on each document for each page for every acquisition. Having to do this for requirements with 4 to 10+ documents every time would likely add to the admin burden.

APPLICABLE REFERENCES:

15.206 Amending the solicitation.

      (a) When, either before or after receipt of proposals, the Government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation.

      (b) Amendments issued before the established time and date for receipt of proposals shall be issued to all parties receiving the solicitation.

      (c) Amendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from the competition.

      (d) If a proposal of interest to the Government involves a departure from the stated requirements, the contracting officer shall amend the solicitation, provided this can be done without revealing to the other offerors the alternate solution proposed or any other information that is entitled to protection (see 15.207(b) and 15.306(e)).

      (e) If, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.

      (f) Oral notices may be used when time is of the essence. The contracting officer shall document the contract file and formalize the notice with an amendment (see subpart  4.5, Electronic Commerce in Contracting).

      (g) At a minimum, the following information should be included in each amendment:

           (1) Name and address of issuing activity.

           (2) Solicitation number and date.

           (3) Amendment number and date.

           (4) Number of pages.

           (5) Description of the change being made.

           (6) Government point of contact and phone number (and electronic or facsimile address, if appropriate).

           (7) Revision to solicitation closing date, if applicable.

 

52.215-1 Instructions to Offerors-Competitive Acquisition. (b) Amendments to solicitations. If this solicitation is amended, all terms and conditions that are not amended remain unchanged. Offerors shall acknowledge receipt of any amendment to this solicitation by the date and time specified in the amendment(s).

 

15.504 Award to successful offeror.

The contracting officer shall award a contract to the successful offeror by furnishing the executed contract or other notice of the award to that offeror.

      (a) If the award document includes information that is different than the latest signed proposal, as amended by the offeror’s written correspondence, both the offeror and the contracting officer shall sign the contract award.

      (b) When an award is made to an offeror for less than all of the items that may be awarded and additional items are being withheld for subsequent award, each notice shall state that the Government may make subsequent awards on those additional items within the proposal acceptance period.

      (c) If the Optional Form (OF) 307, Contract Award, Standard Form (SF) 26, Award/Contract, or SF 33, Solicitation, Offer and Award, is not used to award the contract, the first page of the award document shall contain the Government’s acceptance statement from Block 15 of that form, exclusive of the Item 3 reference language, and shall contain the contracting officer’s name, signature, and date. In addition, if the award document includes information that is different than the signed proposal, as amended by the offeror’s written correspondence, the first page shall include the contractor’s agreement statement from Block14 of the OF 307 and the signature of the contractor’s authorized representative.

 

52.102 Incorporating provisions and clauses.

      (a) Provisions and clauses should be incorporated by reference to the maximum practical extent, rather than being incorporated in full text, even if they-

           (1) Are used with one or more alternates or on an optional basis;

           (2) Are prescribed on a "substantially as follows" or "substantially the same as" basis, provided they are used verbatim;

           (3) Require modification or the insertion by the Government of fill-in material (see 52.104); or

           (4) Require completion by the offeror or prospective contractor. This instruction also applies to provisions completed as annual representations and certifications.

      (b) Except for provisions and clauses prescribed in 52.107, any provision or clause that can be accessed electronically by the offeror or prospective contractor may be incorporated by reference in solicitations and/or contracts. However, the contracting officer, upon request, shall provide the full text of any provision or clause incorporated by reference.

      (c) Agency approved provisions and clauses prescribed in agency acquisition regulations, and provisions and clauses not authorized by subpart  52.3 to be incorporated by reference, need not be incorporated in full text, provided the contracting officer includes in the solicitation and contract a statement that-

           (1) Identifies all provisions and clauses that require completion by the offeror or prospective contractor;

           (2) Specifies that the provisions and clauses must be completed by the offeror or prospective contractor and must be submitted with the quotation or offer; and

           (3) Identifies to the offeror or prospective contractor at least one electronic address where the full text may be accessed.

      (d) An agency may develop a group listing of provisions and clauses that apply to a specific category of contracts. An agency group listing may be incorporated by reference in solicitations and/or contracts in lieu of citing the provisions and clauses individually, provided the group listing is made available electronically to offerors and prospective contractors.

      (e) A provision or clause that is not available electronically to offerors and prospective contractors shall be incorporated in solicitations and/or contracts in full text if it is-

           (1) A FAR provision or clause that otherwise is not authorized to be incorporated by reference (see sub part 52.3); or

           (2) A provision or clause prescribed for use in an agency acquisition regulation.

      (f) Provisions or clauses may not be incorporated by reference by being listed in the-

           (1) Provision at 52.252-3, Alterations in Solicitations; or

           (2) Clause at 52.252-4, Alterations in Contract.

 

52.103 Identification of provisions and clauses.

      (a) Whenever any FAR provision or clause is used without deviation in a solicitation or contract, whether it is incorporated by reference or in full text, it shall be identified by number, title, and date. This identification shall also be used if the FAR provision or clause is used with an authorized deviation, except that the contracting officer shall then insert "(DEVIATION)" after the date. Solicited firms and contractors will be advised of the meaning of this insertion through the use of the (1) provision at 52.252-5, Authorized Deviations in Provisions, or (2) clause at 52.252-6, Authorized Deviations in Clauses. The above mentioned provision and clause are prescribed in 52.107(e) and (f).

      (b) Any provision or clause that supplements the FAR whether it is incorporated by reference or in full text shall be clearly identified by number, title, date, and name of the regulation. When a supplemental provision or clause is used with an authorized deviation, insert "(DEVIATION)" after the name of the regulation.

      (c) A provision or clause of the type described in 52.101(b)(2)(i)(C) shall be identified by the title, date, and the name of the agency or suborganization within the agency that developed it.

      (d) Except for provisions or clauses covered by 52.103(c), the following hypothetical examples illustrate how a provision or clause that supplements the FAR shall be identified when it is incorporated in solicitations and/or contracts by reference or in full text:

           (1) If part  14 (Sealed Bidding) of the X Agency Acquisition Regulation, published in the Federal Register and codified as Chapter 99 in 48 CFR, prescribes the use of a provision entitled "Bid Envelopes," dated October 1983, and that provision is sequentially the first provision or clause appearing in Section 52.214 of the X Agency Acquisition Regulation, then the identification of that provision shall be "9952.214-70-Bid Envelopes (Oct 1983)."

           (2) Assume that Y, a major organizational element of the X Agency, is authorized to issue the Y Acquisition Regulation, which is not published in the Federal Register and codified in 48 CFR. If part  36 (Construction and Architect-Engineer Contracts) of the Y Acquisition Regulation prescribes the use of a clause entitled "Refrigerated Display Cases," dated March 1983, pertaining to a specialized type of construction work, and that clause is sequentially the second provision or clause appearing in Section 52.236 of the Y Acquisition Regulation, then the identification of that clause shall be "52.236-71-Refrigerated Display Cases (Mar 1983)-Y Acquisition Regulation."

 

52.104 Procedures for modifying and completing provisions and clauses.

      (a) The contracting officer must not modify provisions and clauses unless the FAR authorizes their modification. For example-

           (1) "The contracting officer may use a period shorter than 60 days (but not less than 30 days) in paragraph (x) of the clause"; or

           (2) "The contracting officer may substitute the words ‘task order’ for the word ‘Schedule’ wherever that word appears in the clause."

      (b) When modifying provisions or clauses incorporated by reference, insert the changed wording directly below the title of the provision or clause identifying to the lowest level necessary (e.g., paragraph, sentence, word), to clearly indicate what is being modified.

      (c) When modifying provisions or clauses incorporated in full text, modify the language directly by substituting the changed wording as permitted.

      (d) When completing blanks in provisions or clauses incorporated by reference, insert the fill-in information directly below the title of the provision or clause identifying to the lowest level necessary to clearly indicate the blanks being filled in.

      (e) When completing blanks in provisions or clauses incorporated in full text, insert the fill-in information in the blanks of the provision or clause.

 

15.204-2 Part I-The Schedule.  (h) Section H, Special contract requirements. Include a clear statement of any special contract requirements that are not included in Section I, Contract clauses, or in other sections of the uniform contract format.

15.204-3 Part II-Contract Clauses.  Section I, Contract clauses. The contracting officer shall include in this section the clauses required by law or by this regulation and any additional clauses expected to be included in any resulting contract, if these clauses are not required in any other section of the uniform contract format. An index may be inserted if this section’s format is particularly complex.

15.204-4 Part III-List of Documents, Exhibits, and Other Attachments.  Section J, List of attachments. The contracting officer shall list the title, date, and number of pages for each attached document, exhibit, and other attachment. Cross-references to material in other sections may be inserted, as appropriate.

 

52.252-3 Alterations in Solicitation.

As prescribed in 52.107(c), insert the following provision in solicitations in order to revise or supplement, as necessary, other parts of the solicitation that apply to the solicitation phase only, except for any provision authorized for use with a deviation. Include clear identification of what is being- altered.

Alterations in Solicitation (Apr 1984)

Portions of this solicitation are altered as follows:

_____________________________________________ _____________________________________________ _____________________________________________

(End of clause)

 

52.252-4 Alterations in Contract.

As prescribed in 52.107(d), insert the following clause in solicitations and contracts in order to revise or supplement, as necessary, other parts of the contract, or parts of the solicitation that apply after contract award, except for any clause authorized for use with a deviation. Include clear identification of what is being altered.

Alterations in Contract (Apr 1984)

Portions of this contract are altered as follows:

_____________________________________________ _____________________________________________ _____________________________________________

(End of clause)

ANSWER: The FAR excerpts included above I think address most of your questions.  Please read FAR 15.206 which addresses how to handle changes to the solicitation that are made pre-proposal and FAR 15.504 for changes made to the award document that are different than the signed proposal.  Please also see FAR 52.102 – 52.104 as well as FAR Subpart 52.3 (FAR Matrix) for guidance on incorporating, identifying and modifying provisions and clauses in the model and/or awarded contract.  For instructions on the uniform contract format (UCF) to include special clauses (Section H), clauses required by law or regulation (Section I) and exhibits and attachments (Section J), take a look at FAR 15.204-2 – 52.204-4.  Finally, you’ll want to take a look at FAR 52.252-3 and 52.252-4 for how to identify alterations to the solicitation and/or contract.      

Posted5075610/12/2021 11:40 AM
EMMETT SIMMONSContracting
19685
  
DAU1325600055110/11/2021
Contracting
I am researching what the requirement is to purchase a software license that is expiring on the system that is part of an accredited program. Basically we have a system that has an ATO and one of the products in use providing database servers is a licensed product and that license requires annual payment to keep it from expiring. The cost is under $5K so I understand the Govt credit card can be used, but my question is if there is a requirement to do an AoA to find other possible solutions? I'm hoping not as the only place to get the license for the product is from the software vendor we have implemented in our system. To consider other solutions would be to look for a total replacement of the software.
I support a DoD Program and a system requires annual payment of a software license so it doesn't expire. Trying to understand if an AoA is required prior to purchasing.

The Analysis of Alternatives is the process DoD organizations use to evaluate and prioritize possible materiel solutions for a validated military capability requirement. Buying a software license for one year does not fall within the scope of the AoA.

Posted5034410/12/2021 2:04 PM
EMMETT SIMMONSContracting
19686
  
DAU1325600055110/11/2021
Contracting
My question is in several parts: 1) if the contractor and the Government negotiated the costs of four employees on a Firm Fixed Priced CLIN, but when the work began the contractor only provided two employees - is the Government entitled to consideration in the amount of the total labor for two employees? 2) what if the performance is ok. Not great, but ok - is the Government still entitled to consideration? 3) what if the performance is not ok - is the Government entitled to additional consideration or just the use of CPARS? 4) - (the contractor could not hire / find the other two employees) - Are they not responsible for failing to perform as they did not do what they negotiated they would do - which is provide four people? 5) I understand this is performance based - but the contractor negotiated the costs of four people. If your answer is - it is performance based and if the contractor performed then the Government should not have anything to say about it. - What then, prevents a contractor from proposing ten employees (where the Government believes they are receiving superior oversight) but then only receive two employees? Is the Government entitled to consideration? 6) Saying the Government should have used a COST CLIN is unacceptable as there is no way we would have known. trust me, if I would have known - I would have negotiated using a CPFF type CLIN. - based on all of this - is there a FAR or DFARS clause, regulation or law that speaks on this? Thank you
A contractor proposed four employees to perform the requirements of a performance work statement.

Let’s start with your last question; you want to look at what inspection clause you have in your contract. It’s most likely FAR 52.212-4(a) if you are using the commercial contract format or 52.246-4 if you are using the UCF. Additional references follow below. It’s your inspection clause that explains the rights and remedies the parties have when performance does not conform to contract requirements.

1) It depends on all of the facts. Possibly. This seems like a unique situation (“negotiated the costs of four people”) and that the government and the contractor came to an agreement it would take four people to accomplish the tasks. Hopefully your contract file and documentation of the negotiations has captured that fact. If yes, it should not be difficult to prove the contractor is at fault when they fail to staff or maintain the positions. We assume they submitted a proposal with four people, that could be enough to bring them back to the negotiation table.

2) If you can document and prove what services rendered are not meeting contract quality requirements, your inspection clause provides the rights and remedies (as mentioned above) and certainly authorizes consideration and a whole range of remedies.

3) Yes, of course. See answer above.

4) Yes, if it is documented the contractor is required to provide four people. Hopefully you included this in the contract PWS or somewhere.

5) Normally competition prevents this type of occurrence. Also a good technical evaluation and a better, more informed negotiation position.

6) Additional guidance can be found at FAR 46.1 General [quality assurance] and FAR 46.407 Nonconforming supplies or services [government contract quality assurance]. 

As a contracting officer/specialist, you must investigate complaints that the contractor is not performing, document your findings and act quickly, usually with a cure notice/show cause letter. Do not unilaterally short pay or reduce the contract or invoice. (Horror stories of contractor submitting catch-up invoice).  Do not ignore the problem or accept nonconforming services.  Obtain evidence of any reported failure to perform or other breaches of contract.   And collect all related facts, including the contractor's reactions to government complaints. Reports on contractor failure to perform typically relate to Anticipated or actual late delivery, failure to control costs or unsatisfactory performance.  To determine if the contractor failed to comply with contract requirements. Consider the contract language, especially the PWS, and other evidence (e.g., contractor representations regarding the deliverable). If at issue, determine whether contractor representations regarding the quality, condition, description, or performance potential of the deliverable were: part of the basis of the bargain, as documented in the price negotiation memorandum (i.e., what transpired during contract negotiations); the contractor's proposal; and the contract itself.   Pay particular attention to the RFP/Request for quote instructions.  Did a given formula calculate the monthly FFP CLIN price? (e.g., multiplying the labor rate by the number of person-hours and dividing by twelve).  Also, examine what determined the fair and reasonable price.  Specifically, the proposed, evaluated, and negotiated monthly CLIN price for four staffers would not equal the price of two staffers.  On a candid note, it is entirely possible the firm underestimated the difficulty of the requirement or underbid the price.  Not your problem. Do you think they would lower the price or provide more labor if the situation was reversed?  Some may advise that the contract be modified to reduce the requirement to two staffers, give more time to find and recruit folks, or even raise the price to allow easier recruiting.  But honestly, this only rewards destructive behaviors damages your agency's reputation, and some other dispute always arises.  Better to understand that the world of government contracting is reasonably Darwinian, and these irresponsible contractors should be driven from the field--allowed to leave quietly or terminated."

Posted5077810/12/2021 3:13 PM
EMMETT SIMMONSContracting
19680
  
DAU1325600055110/7/2021
Program Management
I understand that breach of a threshold must be reported; however, is the background information as written in the MAG true, where breaching of an objective must also be reported? For example, in terms of schedule (objective would be the threshold plus 6 months), and the objective will end up stretching another 6 months. Is there any higher authority that states that we are to submit deviations based on foreseeing breaching an objective?
Currently written in the Marine Corps Systems Command Acquisition Guidebook (MAG):  “DEVIATIONS (ALSO CALLED “BREACHES”).  A program deviation occurs as soon as the PM has reason to believe that the current estimate of an approved APB C/S/P parameter will breach the threshold value. Deviations are specified default thresholds for schedule and cost of: (1) Objective schedule value plus 6 months; (2) Objective cost value plus ten percent; and (3) a current estimate of performance parameters that breaches the threshold value in the APB.”

To understand the Marine Corps Systems Command Acquisition Guidebook (MAG) paragraph, one must first recognize that cost objectives and schedule objectives are values that are less than the threshold values. For example, a program with a schedule threshold of 12 months would have an objective schedule value that is less than 12 months. The paragraph as written does not require reporting for deviations of an objective value. The paragraph is defining the threshold values using the default definition for Threshold for each parameter. For example, the Objective for schedule is date x, the default threshold for the schedule is date x plus 6 months. If one choses to define the schedule threshold date first, then the threshold is date x and the default Objective would be date x minus 6 months.

With that understood, yes – there is a higher authority to which to immediately report a breach after it has occurred. In defense acquisition, there are statutory and regulatory requirements defense acquisition professionals must follow. Regulatory authorities are Department and/or Service-specific requirements. Statutory authorities are required congressionally by law, such as the Nunn-McCurdy Act, which was an amendment to Title 10 introduced by Senator Sam Nunn and Congressman Dave McCurdy in the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1982. This amendment requires that Acquisition Category I (ACAT I) program managers maintain current estimates of Program Acquisition Unit Cost (PAUC) and Average Procurement Unit Cost (APUC). If the PAUC or APUC increases by 25 percent or more over the current Acquisition Program Baseline (APB) objective, or 50 percent or more over the original APB objective, the program must be terminated unless the Secretary of Defense (SECDEF) certifies to Congress that the program is essential to national security. This is stated in the DAU glossary here: DAU Glossary Nunn McCurdy

There are three statutory program breach definitions program managers must know and follow. They are listed in the DAU Adaptive Acquisition Framework Document Identification (AAFDID) here: Statutory Program Breach Definitions. The approved Acquisition Program Baseline (ABP) represents the formal commitment to the Milestone Decision Authority (MDA) and any deviations will be immediately reported if the deviations are 6 months or more beyond the Objective schedule or an Objective cost that has grown by 10 percent or more.  

Posted5074710/8/2021 9:03 AM
EMMETT SIMMONSProgram Management
19681
  
DAU1325600055110/7/2021
Contracting
Is an RTM mandated by DoD or IAW DAU Principles? Right now we’re operating without one.
Is an RTM mandated by DoD or IAW DAU Principles? Right now we’re operating without one.

One of the tools in the Technical Management Processes is Requirements Management. A Requirements Traceability Matrix (RTM) ties all the program requirements to the items you are delivering and is especially beneficial if the requirements are not previously documented. The Chief Engineer will use the RTM as an approval mechanism during technical reviews or Configuration Control Boards.

The DoD Guidance found in 5000.88 (Engineering of Defense Systems) says requirements traceability is a requirement for all System Engineering Plans (SEPs), but it does not call out the RTM as the required format. Requirements Traceability will be part of the SEP unless waived by the MDA (I don't know if you have a SEP for the purchases you make at DLA). There is most likely documentation in your program's history when it was part of a MDAP which previously documented the requirements.

Below is a link to the RTM tool from DAU which will give you a template/guide for creating a RTM.

https://www.dau.edu/tools/Documents/SAM/resources/RTM_Risk_Register.html

The tool below can will help you identify what documents will be required, or can be waived in any of the acquisition pathways. Under each pathway, click on the 'requirements' link and you will see the matrix of required documentation. If you are working in a Software Acquisition pathway it will clearly be different than a Major Capability pathway.

https://www.dau.edu/tools/t/Adaptive-Acquisition-Framework-Document-Identification-(AAFDID)-Tool

Finally, here is the link to DOD 5000.88. The journey of looking for the RTM starts with following the Systems Engineering Process. 5000.88 also references the Defense Acquisition Guidebook (second link) and chapter 3 gives details about how the Chief Engineer will use the RTM to support the SEP.

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/500088p.PDF?ver=O8LFc8NzlyJX-SgM2Haalw%3d%3d

https://www.dau.edu/tools/dag

Posted5077910/8/2021 11:57 AM
EMMETT SIMMONSContracting
19682
  
DAU1325600055110/7/2021
Contracting
Are there any study guides/training for helping someone become better prepared for a CORB? I appreciate the help.
I am trying to locate study guides for a possible CORB. I have searched online and can find very little information on the most effective way to be better prepared for a CORB.

There are a multitude of contracting aptitude test materials on the Internet.  Always check with your supervisor to determine if the ones you are using will cover topics that the board wil focus on.  You can also ask for recommendations from your local NCMA chapter.

Here are some flash cards: https://quizlet.com/11882073/contracting-officer-warrant-board-questions-flash-cards/.  It is about 100 questions and DAU can't vouch for the effiectiveness of the website, but the ones that were sampled were plausible scenarios with reasonable responses.  Many employees use quizlet to study for the CFCM and CPCM exams. 

Also over on WIFCON.com there is a thread that debates the use and purpose of the board.  Those involved in the debate might be worth reaching out to to see if they know of a guide.

Another flash card site is studystack.com.  They have over 42,000 flash cards on the FAR.  That might be a good refresher in the event your board focuses on asking FAR based questions. Again, these are not official DoD sites, but the questions appear logical and genuine.  

Two of the best sources  are the books "Contract Administration" and "Contract Formation"  by Cibinic and Nash.  They are excellent books written by lawyers that would be a great resource to augment the flash cards. 

 

 

Posted5076110/8/2021 12:59 PM
EMMETT SIMMONSContracting
19683
  
DAU1325600055110/7/2021
Can I accept a reimbursable funding document as a project order for the government tasking and a direct cite economy order funding document for the contracted tasking without violating the 49/51 rule for a project order since the contractor funding was provided separately as a direct cite economy order funding document?
I work for a WCF organization and we have an upcoming project to design, procure and install a system. The government will develop the system requirements based on the customers requirements, develop the initial system design, contracts package, perform government oversight, approval all design products developed by the contractor, perform the system configuration and system operational verification tests. The final system design, material and equipment procurement and system installation will be contracted out. This task will cross fiscal years and the funding will expire this FY.

This response is based on the information provided.  We suggest you discuss with your BFM, Comptroller, contracting team, program manager and/or legal department as appropriate. 

 

We understand the project you describe as two separate yet related actions.  The first action is one agency funding another (yours) on a reimbursable basis for work done by your agency.  See FAR 17.500(c)(1) below.  The second action appears to be an interagency transfer or Military Interdepartmental Purchase Request (MIPR) for another unit to have your unit execute an action on your existing contract.  You will need to follow the requirements of the Economy Act. This second action is separate and appears to be contingent upon executing the first action successfully.  From a contractual/FAR perspective, we see no 51/49 workshare issue.

 

For the first action, the work appears to be done by the government team.  If the government and contractor(s) will be working together on the first action.  The Financial Management Regulation (FMR) notes if there is a government contractor mix, the government team needs to be doing 51% or more of the work.  See the FMR excerpt below the FAR reference.

 

"FAR 17. Subpart 17.5 - Interagency Acquisitions

17.500 Scope of subpart.

      (a) This subpart prescribes policies and procedures applicable to all interagency acquisitions under any authority, except as provided for in paragraph (c) of this section....

      (c) This subpart does not apply to-

               (1) Interagency reimbursable work performed by Federal employees (other than acquisition assistance), or interagency activities where contracting is incidental to the purpose of the transaction..."

 

"The reference to the 49/51 rule is in Volume 11A Chapter 2 Section 020515 which states:  Ability to Perform. Project orders shall be issued only to those DoD owned establishments that are capable of substantially performing the work ordered. “Substantially,” as used in this paragraph, means that the project order recipient should incur costs of not less than 51 percent of the total costs attributable to rendering the work or services ordered. Total costs to render the work or services ordered include the costs of goods or services obtained from/provided by contractors.

 

FMR Volume 11A Chapter 2 Section 0205, Conditions Governing Issuance and Acceptance of Project Orders, paragraphs 020501-020509 may also provide supporting information.

 

Posted5041110/8/2021 1:00 PM
EMMETT SIMMONS
19676
  
DAU1325600055110/6/2021
Test and Evaluation; Life Cycle Logistics
While I understand what an Analysis of Alternatives is, is there a DoD mandate that says that an AoA must be performed? Must an AoA be retained as an official artifact for a set period of time? Is an AoA open-source or FOUO?
My organization is currently transitioning from a GOTS to COTS system. Our GOTS system has been around for a long time and as such, was created before a majority of today's "best practices" and mandates came to exist so effectively we have been grandfathered. Now, as we move to a new system, all of these new things apply to us. I am looking to help orient myself to some of the fundamental concepts that we may not be appropriately interpreting.

QUESTION: While I understand what an Analysis of Alternatives is, is there a DoD mandate that says that an AoA must be performed? Must an AoA be retained as an official artifact for a set period of time? Is an AoA open-source or FOUO?

ANSWER: When a Major Capability Acquisition program is going through the Material Solution Analysis phase the AoA is a required document do enter Milestone A, but there are no requirements for AoA’s in other acquisition pathways, or later in the lifecycle. An AoA may be part of market research as you prepare for a contract release, or as you make a business case analysis for upgrades/modifications. In the Defense Business System pathway there is a Solution Analysis phase which focuses on Business Process Reengineering (BPR) but the new 5000.75 does not have a requirement for an AoA. The BPR process can be documented in any format beneficial to the program; the focus is on creating a Business Need for the program and thus providing value.

Posted5071610/7/2021 7:29 AM
EMMETT SIMMONSTest and Evaluation; Life Cycle Logistics
19677
  
DAU1325600055110/6/2021
Program Management; Business
Given the language of the Congressional decrement, can a BTR be approved and completed without prejudice for the specific risk reduction initiative? Is there specific language in the FMR supporting this?
An Army RDTE Budget Activity 4 Project was decremented in the amount of $1.000M in the FY21 Appropriation, citing "Improving funds management." The same Project currently has an unfunded requirement for a risk reduction initiative. A source has been identified, and the PM would like to complete a Below Threshold Reprogramming (BTR) action to resource.

The question centers around reprogramming an amount that was previously cut.  A question that has to be answered did Congress cut the program or not fund the specific item?  The answer lies in 10 U.S. Code Section 2214 - Transfer of funds: procedure and limitations.  This law states:

 

(a) Procedure for Transfer of Funds.— Whenever authority is provided in an appropriation Act to transfer amounts in working capital funds or to transfer amounts provided in appropriation Acts for military functions of the Department of Defense (other than military construction) between such funds or appropriations (or any subdivision thereof), amounts transferred under such authority shall be merged with and be available for the same purposes and for the same time period as the fund or appropriations to which transferred.

 

(b )Limitations on Programs for Which Authority May Be Used.—Such authority to transfer amounts—

               (1)may not be used except to provide funds for a higher priority item, based on unforeseen military requirements, than the items for which the funds were originally appropriated; and

               (2)may not be used if the item to which the funds would be transferred is an item for which Congress has denied funds.

 

(c)Notice to Congress.— The Secretary of Defense shall promptly notify the Congress of each transfer made under such authority to transfer amounts.

 

(d)Limitations on Requests to Congress for Reprogrammings.—Neither the Secretary of Defense nor the Secretary of a military department may prepare or present to the Congress, or to any committee of either House of the Congress, a request with respect to a reprogramming of funds—

               (1)unless the funds to be transferred are to be used for a higher priority item, based on unforeseen military requirements, than the item for which the funds were originally appropriated; or

               (2)if the request would be for authority to reprogram amounts to an item for which the Congress has denied funds.

 

If Congress directed the cut then in bullet (b) (2) may not be used if the item to which the funds would be transferred is an item for which Congress has denied funds, answers the question. Was the specific item the Risk Reduction? You will need to do some research to determine if this is a new requirement or the requirement that was decremented. If the cut was at the HQ level or a lower level than Congress you may be allowed to reprogram the funds.

 

I strongly suggest you contact the Comptroller and Legal Office for an opinion on this situation.

Posted5034510/7/2021 7:30 AM
EMMETT SIMMONSProgram Management; Business
19678
  
DAU1325600055110/6/2021
Contracting
Are there any exceptions to the FPI subCLIN breakdown? Is there another way to determine potential underruns or overruns (without the ETC) pertaining to FPI CLINs when reviewing the QLOP Report? NOTE: Our contracts contain PBPs, and are mixed with cost CLINs, FPI CLINs and FP CLINs. The contractor has stated in an email that all costs are incurred under a single work directive which restricts the reporting at subCLIN level. The contractor further states that ETCs are done at a top level, not at individual CLIN/SubCLIN. Therefore, I don't know how I can adequately review QLOP Reports without subCLIN breakdown or the ETC breakdown for each SubCLIN. Any suggestions??
Within the FPI Clause 52.216-16 it requires the contractor to submit Quarterly Limitation on Payment Reports (QLOPs). DCMA has conducted training to indicate that if the contract is a mixed typed contract (to which our contracts are) and contains one or more CLINS that are FPI contract type, QLOP are to be submitted at the FPI CLIN Level.  The training also indicates that the contractor should provide ETC used to prepare QLOP payments in order to determine potential under-runs or overruns.  However, the contractor has responded stating that they are not going to break down the subCLINS nor have they provided the ETC for these subCLINS.

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

The contractor is required to perform within the terms of the contract, i.e., FAR 52.216-16 for this issue.  Per FAR 16.403-2(c)(1),  "The contractor’s accounting system is adequate for providing data for negotiating firm targets and a realistic profit adjustment formula, as well as later negotiation of final costs."  If the accounting system is adequate, the contractor should be able to segregate costs by CLIN/subCLIN.  We would think that work falling under FPI vs. cost plus fixed-fee, vs. firm fixed-price CLINs would be different work packages.  The contractor is going to have to show costs related to FPI and cost plus fixed-fee discretely (with FFP separated out) to reach final price settlement.  It should be doing that now.

If FFP and FPI work is being lumped together and you cannot get the contractor to segregate, you can look at the total value of the CLINS and subtract the FFP CLIN values to see where the contractors costs are.  You can also look at spend patterns from previous reports to project future progress.  If the contractor disagrees, it has to support its beliefs with numbers, data.

As for DCMA training, we agree it would be nice if the contractor provides ETC data.  However the contractor is again is bound by the terms of the contract.

 

Posted5075710/7/2021 9:08 AM
EMMETT SIMMONSContracting
19679
  
DAU1325600055110/6/2021
Program Management; Life Cycle Logistics
Is a Materiel Fielding Plan (MFP) required for this action? Does the PM Office and PSM have the authority to agree on not having a MFP for a conditional software material release that will not change the form, fit or function of the end item (M299 HELLFIRE Missile Launcher) of more than 25%? Thanks in advance for your help.
Reviewing AR 770-2, I am having trouble identifying if a material fielding plan is needed for a software conditional material release. The software (FA0B) that’s being reviewed for the conditional software release is not being delivered as a MWO and is considered a “patch” that will allow the end item (M299 HELLFIRE Missile Launcher) to function with the latest release of missile variants and still function with legacy missile variants. This software upgrade will not change any of the test functions and overall functionality of the M299 Missile Launcher.
Along with the M299 software upgrade, another software conditional material release paired with this effort. The software that works with the HELLFIRE test sets is also being upgraded. The Test Set Guided Missile System (TSGMS) is getting a software upgrade to work with the new M299 HELLFIRE Missile Launcher software. The TSGMS software will require differences training due to the change from a Disk Operating System (DOS) to a Windows Menu “feel”. This differences training will take approximately 30-40 minutes per Battalion/Squadron. 

Thank you for your question on changing M299 software and the link to Materiel Fielding Plan (MFP) policy.  Our feedback will address both policy and best practices in this area.

 

               Policy.  Based upon our instructor experiences and your description of changes, we would not expect that a formal MFP that would require external review and approval is required.  Routine software updates are common in every program.  Formal MFPs are usually required when fielding new systems or major system modifications within the Total Package Fielding (TPF) construct.  We recommend you specifically ask this same policy question if a formal MFP is required to your Logistics Lead at your PEO level for their opinion.

 

               Best Practice.  We still recommend that an informal MFP is developed and shared with all the impacted organizations for every hardware and software change.  The spirit of AR 720-2 is that Materiel Fielding Plans require the Materiel Developer to think through, document, and coordinate the many details of how the change will be implemented in a disciplined manner.  Although the software "patch" may be very simple, the information within a MFP, similar to MWO execution, will make sure the PM office has a detailed plan for a successful execution. This plan needs to be developed with and finalized with stakeholders.  Once finalized, the plan is used to manage the execution of the modifications until all systems have been upgraded to maintain configuration management.  We recommend that any updates to the plan and status against the plan is shared between the PM office and stakeholders on a weekly basis until completed.

 

               The informal plan needs to cover the basic planning steps that personnel inside the PM Office and organizational units need to know.  The plan needs to include:  Describe the changes of the software and why the change is required (Systems Engineers should already have this canned).  Differences that operators and maintainers will see with the new version, if any.  Is there an operator/maintainer training delta.  Who will do the modification.  Where will the modifications be done (unit site or central facility). Equipment and procedures to apply the modification (needs to be defined and trained before they arrive).  Does the unit need to provide anything to support the modification.  Are there any other changes to any of the Integrated Product Support Elements - specifically support equipment, operator and maintainer technical manuals and will this software also be required in the spares pool.  Finally, a complete plan or matrix of where every single system is located, unit POCs, and when the modification is planned to be executed.  Based upon the information provided, this plan may only be a few pages long with the heart of the document focus on the execution matrix.

 

               We hope this information is helpful in your planning.

Posted5077410/7/2021 1:32 PM
EMMETT SIMMONSProgram Management; Life Cycle Logistics
19670
  
DAU1325600055110/5/2021
Test and Evaluation; Life Cycle Logistics
Are there any quick references in terms of the overall applicability of DAU principles or DoD mandates? Currently a number of my peers, such as myself, are IT Level II certified. As such, we have attempted to apply the knowledge we have learned to our daily activities. Often times we have difficulty determining if things apply to us or if we interpreted a particular lesson correctly. Often times it seems our decisions are weighted based off convenience rather than a factual standing. For example, until recently our agency did not acknowledge "PDR" and "CDR" as legitimate milestones. In the interest of avoiding our program being deemed illegitimately founded, what would the best method be for validating facts vs opinions when it comes to the Acquisition Life Cycle and its applicability?
Question Background: My organization is currently transitioning from a GOTS to COTS system. Our GOTS system has been around for a long time and as such, was created before a majority of today's "best practices" and mandates came to exist so effectively we have been grandfathered. Now, as we move to a new system, all of these new things apply to us. I am looking to help orient myself to some of the fundamental concepts that we may not be appropriately interpreting.

QUESTION: Are there any quick references in terms of the overall applicability of DAU principles or DoD mandates? Currently a number of my peers, such as myself, are IT Level II certified. As such, we have attempted to apply the knowledge we have learned to our daily activities. Often times we have difficulty determining if things apply to us or if we interpreted a particular lesson correctly. Often times it seems our decisions are weighted based off convenience rather than a factual standing. For example, until recently our agency did not acknowledge "PDR" and "CDR" as legitimate milestones.  In the interest of avoiding our program being deemed illegitimately founded, what would the best method be for validating facts vs opinions when it comes to the Acquisition Life Cycle and its applicability?

ANSWER: Good news, bad news, and recommendations on this topic.

First the good: your program is under the control of a PEO, or at least a Program Manager who has been through Level III certification and should identify major gaps in your documentation or procedures. They will not sign off on program milestones without checking for the required inputs. Of course, you want to bring a complete product to your boss, and they expect you to bring that complete product as well. Therefore a policy branch is available in most Divisions or PEOs which is probably part of routing before products go to leadership.

Now, the bad news: in 2019 the Adaptive Acquisition Framework Adaptive Acquisition Framework | Adaptive Acquisition Framework (dau.edu) was incrementally released and if you received your level II certification before 2019 there are significant changes. DAU is still working on products to explain some of these pathways and bring information to you as a customer.

Recommendation: Keep on using your DAU resources (to include Ask a Professor) and look for more info coming out on a regular basis. Additionally, the Acquisition Center of Excellence (ACE) office is has additional courses and experts in acquisition policy.

 

Below is a list of DAU courses which may be of interest to you or people in your office:

DAU Training and Continuous Learning Modules (CLMs)

Posted5076910/6/2021 7:18 AM
EMMETT SIMMONSTest and Evaluation; Life Cycle Logistics
19671
  
DAU1325600055110/5/2021
Test and Evaluation; Life Cycle Logistics
In terms of auditability, is there a DoD suggested format for a Requirements Traceability Matrix? Similarly, are there any mandated artifacts, or formats that must be adhered to for things such as requirements, design, or the RTM itself? Our agency has some guidelines that we modeled after, but there seems to be some gaps or areas of uncertainty.
Question Background: My organization is currently transitioning from a GOTS to COTS system. Our GOTS system has been around for a long time and as such, was created before a majority of today's "best practices" and mandates came to exist so effectively we have been grandfathered. Now, as we move to a new system, all of these new things apply to us. I am looking to help orient myself to some of the fundamental concepts that we may not be appropriately interpreting.

QUESTION: In terms of auditability, is there a DoD suggested format for a Requirements Traceability Matrix? Similarly, are there any mandated artifacts, or formats that must be adhered to for things such as requirements, design, or the RTM itself? Our agency has some guidelines that we modeled after, but there seems to be some gaps or areas of uncertainty.

ANSWER: There is not a mandated RTM format for the DoD. I have personally seen how RTMs hampered future competition for support of a system because the RTM was not maintained. If the contractor is using a repository such as GitLab, JIRA, or Azure the RTM is a derived product from the backlog (requirements, or software modifications). Below are a couple of resources for creating RTMs and samples from GSA.

When to do it…  3.11 Finalize Requirements | Governmentwide Business Standards and Capabilities - Federal Integrated Business Framework (gsa.gov)

how to do it… How to Create Requirements Traceability Matrix (RTM) Example Sample Template (softwaretestinghelp.com)

Sample: Requirements Traceability Matrix (dau.edu)

Again with a side note: when I provide resources from organizations outside the government it is not an endorsement of the company, or an endorsement to follow their procedures when they contradict government policy.

Posted5076810/6/2021 7:20 AM
EMMETT SIMMONSTest and Evaluation; Life Cycle Logistics
19672
  
DAU1325600055110/5/2021
Test and Evaluation; Life Cycle Logistics
Is there a list of DoD mandated testing types? Our original plan had us executing very stringent "System Test" and "Interoperability Test" and "User Acceptance" etc. Anymore however, the lines of blurred together and our testing is becoming less effective as it is losing targeted objectives in favor of simply executing scripts. As such, I fear we are not efficiently bettering our software for production release.
Question Background: My organization is currently transitioning from a GOTS to COTS system. Our GOTS system has been around for a long time and as such, was created before a majority of today's "best practices" and mandates came to exist so effectively we have been grandfathered. Now, as we move to a new system, all of these new things apply to us. I am looking to help orient myself to some of the fundamental concepts that we may not be appropriately interpreting.

QUESTION:  Is there a list of DoD mandated testing types? Our original plan had us executing very stringent "System Test" and "Interoperability Test" and "User Acceptance" etc.  Anymore however, the lines of blurred together and our testing is becoming less effective as it is losing targeted objectives in favor of simply executing scripts. As such, I fear we are not efficiently bettering our software for production release.

ANSWER: DODI 5000.89, effective nov 19, 2020, "Purpose: In accordance with the authority in DoD Directive (DoDD) 5137.02 and DoDD 5141.02, this issuance establishes policy, assigns responsibilities, and provides procedures for test and evaluation

(T&E) programs across five of the six pathways of the adaptive acquisition framework: urgent capability acquisition, middle tier of acquisition (MTA), major capability acquisition, software acquisition, and defense business systems (DBS). The sixth pathway, defense acquisition of services, does not require T&E policy and procedures." All the system tests are in this document, and the applicability of each test will be tailored into your program. Your system type and the functionality will determine if safety certs, cyber certification (most likely unless this is a standalone system), etc are required. You will notice that in the Software Acquisition Pathway the testing is in smaller batches and more continuous than a major program acquisition which focuses on large-scale DT or OT events. Automated testing is the preferred solution to become efficient and effective, and automated testing is fully in-line with DoD procedures found in the 5000.89 guide. However, there is significant investment required which is the only downfall. An the agile development principal is to prioritize working software over comprehensive documentation; instead of running the test scripts as a matter of internal policy, focus on ensuring every test is for the purpose of demonstrating working software.  As a side note, with a GOTS system there might be a set of tests required by the original developer and I would never recommend straying from their list.

Posted5076710/6/2021 7:20 AM
EMMETT SIMMONSTest and Evaluation; Life Cycle Logistics
19673
  
DAU1325600055110/5/2021
Test and Evaluation; Life Cycle Logistics
Our agency has taken the liberty to define our own Software Development Lifecycle. We are currently operating through the following phases "(1) Plan, (2) Analyze, (3) Design, (4) Build, (5) Test and Evaluation, (6) Release and Deployment, (7) Sustainment." Unfortunately, we are a little lax with our internal controls. Is there a list of DoD mandated ICs or at least a strongly encouraged list of "best practices" or non-negotiables to help keep us better regimented?
Question Background: My organization is currently transitioning from a GOTS to COTS system. Our GOTS system has been around for a long time and as such, was created before a majority of today's "best practices" and mandates came to exist so effectively we have been grandfathered. Now, as we move to a new system, all of these new things apply to us. I am looking to help orient myself to some of the fundamental concepts that we may not be appropriately interpreting.

QUESTION: Our agency has taken the liberty to define our own Software Development Lifecycle. We are currently operating through the following phases "(1) Plan, (2) Analyze, (3) Design, (4) Build, (5) Test and Evaluation, (6) Release and Deployment, (7) Sustainment."  Unfortunately, we are a little lax with our internal controls. Is there a list of DoD mandated ICs or at least a strongly encouraged list of "best practices"  or non-negotiables to help keep us better regimented?

ANSWER: I won’t belabor this topic, but the Software Acquisition Pathway (https://aaf.dau.edu/aaf/software/) has two simple phases: planning and execution. The phases you describe are in line with waterfall development, and all DoD is supposed to use modern development styles (agile, DevOps, SAFe, DevSecOps). All the steps you created are still important, but can be streamlined through the modern processes.

Posted5076610/6/2021 7:21 AM
EMMETT SIMMONSTest and Evaluation; Life Cycle Logistics
19674
  
DAU1325600055110/5/2021
Test and Evaluation; Life Cycle Logistics
I need some assistance understanding the difference between a "tech refresh", a modernization, and a replacement. From what I read, "tech refresh" seems to be more related to hardware upgrades and not so much software. Regardless, as it pertains to software can someone please tell me the difference between an upgrade and a replacement? As we transition from GOTS to COTS, I view this as a complete replacement or transition from our current system. Is this synonymous with a modernization? What are the implications of a misnomer? It is my understanding one of the largest factors is the color of money. Is it possible for an initiative to change from one type of effort to another mid-process?
Question Background: My organization is currently transitioning from a GOTS to COTS system. Our GOTS system has been around for a long time and as such, was created before a majority of today's "best practices" and mandates came to exist so effectively we have been grandfathered. Now, as we move to a new system, all of these new things apply to us. I am looking to help orient myself to some of the fundamental concepts that we may not be appropriately interpreting.

Question: I need some assistance understanding the difference between a "tech refresh", a modernization, and a replacement. From what I read, "tech refresh" seems to be more related to hardware upgrades and not so much software. Regardless, as it pertains to software can someone please tell me the difference between an upgrade and a replacement? As we transition from GOTS to COTS, I view this as a complete replacement or transition from our current system. Is this synonymous with a modernization? What are the implications of a misnomer? It is my understanding one of the largest factors is the color of money. Is it possible for an initiative to change from one type of effort to another mid-process?

ANSWER:

PowerPoint Prehttps://www.dau.edu/about/Documents/Software%20Acquisition%20Pathway%20DAU%20West%206%20Jan%202021%20-%20v2a.pdfsentation (dau.edu)

The above link is a briefing from The DoD Sr lead for SW Acquisition discussing many of the topics you mention above. You are right to assume tech refresh is normally a hardware term where physical servers, laptops, etc are upgraded with no change to the software. All software has patches, and version upgrades which will be implemented on a regular basis to include items such as bug fixes, security upgrades, or new features in general. A Database Administrator (DBA) is responsible for running the patches in softare programs after the patch is approved.

The term Modernization does not have a concrete meaning within the DoD and software community. “Modern Software” could refer to items developed in the past 2 years, 10 years, or 20 years; some definitions are based on HOW software was developed (modern software development styles such as Agile have been around since 2001, and scrums have been around since 1996). Therefore, don’t get hung up on “Modernization”.

Switching from COTS to GOTS will be a complete system replacement because the software base will be different (equivalent of using Defense Travel System and switching to Travelocity). Starting the GOTS program utilizes Procurement funding, and modifying the system usually utilizes O&M, but some programs have continued using Procurement for their modifications.

Posted5076510/6/2021 7:23 AM
EMMETT SIMMONSTest and Evaluation; Life Cycle Logistics
19675
  
DAU1325600055110/5/2021
Contracting
Where can I get information pertaining to Tripartite Escrow Agreements? I have found that they may be acceptable in lieu of Bonds, as a Payment Protection, but have not been able to find much more than that. FAR 28.102 addresses Tripartite Escrow Agreements as a form of Payment Protection. And, FAR Clause 52.228-13 will tell the Contractor if the Contracting Officer will consider a Tripartite Escrow Agreement. I cannot find any information on them, ie: what they look like, etc. Is there any information to assist in obtaining some knowledge on this type of Payment Protection?
We awarded a Purchase Order that requires a Payment Bond.  Our Solicitation and Purchase Order has FAR 52.228-13 in it and allows Tripartite Escrow Agreements.  The Contractor as indicated that they are planning on providing a Tripartite Escrow Agreement. We have no reason not to accept an alternate form of Payment Protection.

Good question. Yes FAR 28.102-1(b)(1)(iii) specifically authorizes the use of Tripartite Escrow Agreements. DFARS 228.102-1(1) implements different dollar values and authorizes any of the alternatives listed at FAR 28.102-1(b)(1).

Basically, a tripartite escrow agreement is when the prime contractor establishes an escrow account in a federally insured financial institution and enters into a tripartite escrow agreement with the financial institution, as escrow agent, and all of the suppliers of labor and material. The escrow agreement shall establish the terms of payment under the contract and of resolution of disputes among the parties. The Government makes payments to the contractor’s escrow account, and the escrow agent distributes the payments in accordance with the agreement; or triggers the disputes resolution procedures if required.

Not surprisingly (due to company names, signatures, etc.) we do not have a real sample.  There are many resources available to learn more about these and to see a template. Some of these are provided here:

https://tripartiteescrowagreements.com

http://tripartiteescrow.com/faq/#5

https://www.ipds.gov.in/Model_Documents/Escrow_Agreement_Template.pdf

Posted5077010/6/2021 11:36 AM
EMMETT SIMMONSContracting
19669
  
DAU1325600055110/4/2021
Contracting; Engineering and Technical Management
Is there any regulation prohibiting including purchase/installation of a commercial item, in this case the modular system furniture walls, as part of a construction contract (1442) to alter the real property pieces?
I have a requirement in which the user prefers to have modular system furniture walls installed floor to ceiling to change the open space to accommodate three new offices. Installing walls whether they are permanent or modular requires that the construction scope of work be performed to adjust the lighting, fire suppression, electric, etc, to modify  the space to a functioning work space and meet code requirements.

Commercial item acquisition can co-exist with construction. In your case, the modular walls (commercial items) will be added to divide the existing open space without altering the building structure itself. This does not seem to meet the FAR definition for "construction." The work needed to accommodate the new office configuration may qualify as construction. Two categories of acquisition (commercial and construction) can apply to the same overall Government requirement.

Posted5075910/5/2021 8:38 AM
EMMETT SIMMONSContracting; Engineering and Technical Management
19667
  
DAU132560005519/30/2021
Contracting
Contractor is recommending a design change to the whole subsystem that would mitigate the DMS issue, bring improvement to capability, and cost about the same. Is there a way to execute this with the 3010 funding and the DMS requirement? The alternative is to redesign the single part for the same cost, and when there's a new requirement for a more capable sub-system, initiate a development program to acquire it.
My program is a commodity program that receive 3010 funding to procure the system based on aircraft program office modification requirement.  In order to continue production to support the program, a subsystem requires a redesign to replace a part that is going obsolete.

My answer is based on researching AFMAN 65-605v1 Chapter 8, Section 8b and the DoDFMR7000.14-R, Volume 2B, Chapter 5, paragraph 050201.

Without knowing all of the specifics, it appears that 3010 funding is appropriate for this effort. But because there is a slight chance that a nuance with your paricular redesign effort may make it more appropriate to fund with RDT&E funds; I strongly suggest you consult with your Program Office, Financial Management, and Fiscal Law subject matter experts. Together you should be able to confirm the correct funding source and avoid violating the Missapropriations Act (Title 31 U.S.C. Sec 1301). 

Posted5075410/1/2021 12:50 PM
EMMETT SIMMONSContracting
19668
  
DAU132560005519/30/2021
Life Cycle Logistics
What's the official definition of displaced equipment as it pertains to Displaced Equipment Training (DET)?
AR 350-1 (dated 10 Dec 2017) and PAM 770-2 (dated 16 Jul 2021) explains the need for training of new and displaced equipment but does not give a formal definition or example of displaced equipment.

Army pamphlet 700-142 defines displaced equipment as:  "Army equipment redistributed within a command or between AC/ASCC/DRUs, as a result of the Army modernization process."

 

It further states that "Most of this equipment is identified by DAMO-FDR (G-3) on the Force Development (FD) managed LIN List".

 

Example:  Army modernization is replacing old HMM-V assets with Joint Light Tactical Vehicles (JLTV).  There may be test and support assets used to support HMMV that the units may have continued use for (fluid servicing units, hand tools, shop tools, etc.)  These assets would normally be removed as part of the legacy system sundown. Classification of these assets as "displaced (cascaded) equipment allows them to remain at the activity - their purpose now transferred off of the legacy system.  DET ensures Soldiers can still be trained on these assets.

Posted5069510/1/2021 1:15 PM
EMMETT SIMMONSLife Cycle Logistics
19665
  
DAU132560005519/29/2021
Contracting
Does anyone have a contract physical completion checklist? I know 50 CONS has one, but I cannot access it. Not a DD1597, but a simple checklist to verify physical completion of a contract.
Contract physical completion

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

DAU does not keep a repository of checklists.  Many units create local checklists.  We suggest you contact 50 CONS an ask them to send you an editable version.

Posted507539/30/2021 7:44 AM
EMMETT SIMMONSContracting
19666
  
DAU132560005519/29/2021
Contracting
Is it possible to use FAR part 13 to award IDIQs?
The contracting office I work at has a tendency to award BPAs for repetitive purchases rather than writing multiple purchase orders since most items/services fall under FAR part 13. After studying some case law and the FAR, I do believe that, in cases where the requirement is appropriate, that an IDIQ may be used instead and that we may use FAR part 13 to award such IDIQs.

Starting off, we have a line in Part 13:

FAR 13.106-1(a)(2)(iv) - In accordance with 10 U.S.C. 2305(a)(3), for DoD, NASA, and the Coast Guard—

   (A) The contracting officer may choose not to include price or cost as an evaluation factor for award when a solicitation—

           (1) Has an estimated value above the simplified acquisition threshold;

           (2) Will result in multiple-award contracts (see subpart 16.5) that are for the same or similar services; and

           (3) States that the Government intends to make an award to each and all qualifying offerors (see 2.101).

(B) If the contracting officer chooses not to include price or cost as an evaluation factor for the contract award, in accordance with paragraph (a)(2)(iv)(A) of this section, the contracting officer shall consider price or cost as one of the factors in the selection decision for each order placed under the contract.

This excerpt implies that awarding multiple-award contracts with the intent of placing orders under the contracts later on. Furthermore, FAR 2.101 defines Multiple-award contracts as so:

 Multiple-award contract means a contract that is—

           (1) A Multiple Award Schedule contract issued by GSA (e.g., GSA Schedule Contract) or agencies granted Multiple Award Schedule contract authority by GSA (e.g., Department of Veterans Affairs) as described in FAR part  38;

           (2) A multiple-award task-order or delivery-order contract issued in accordance with FAR subpart 16.5, including Governmentwide acquisition contracts; or

           (3) Any other indefinite-delivery, indefinite-quantity contract entered into with two or more sources pursuant to the same solicitation.

FAR Subpart 16.5 does not make any mention of a Task/Delivery order contract needs to be competed under a specific acquisition strategy (Part 13, 14, or 16), it's simply a type of contract.

There have also been documented cases in the GAO docket that have used SAP under FAR Subpart 13.5 to award IDIQs:

B-410098, B-419754, and B-414429

The GAO made no mention of the use of IDIQs with FAR Part 13 being improper.

As far as challenges to whether awarding IDIQs are permissible under FAR Part 13 or not, the two most compelling cases I've seen are:

FAR 13.004 Legal effect of quotations and

FAR Subpart 13.3 Simplified Acquisition Methods

In the legal effect, the FAR states that issuance of an order does not constitute a contract and that a contractor must accept the offer either by writing or by furnishing supplies/services under the terms of the order. This argument is two-pronged, with the acceptance being one part and the term 'order' being the other.

If an IDIQ was offered to a contractor under FAR Part 13, I would argue that written acceptance would establish the contract by both parties. This is counter-intuitive to some as issuance of an IDIQ using FAR Part 15 is usually done unilaterally, but I argue that how things are done under other parts is irrelevant.

The second, more interestingly, is the use of the word 'order'. Order, as used in FAR Part 13, is not defined by either Part 13 nor Part 2. It is inferred that 'Purchase Order' is what this part of the FAR is talking about. This ties in to the second argument, FAR Subpart 13.3, which is that an IDIQ is inherently not a purchase order. FAR 4.1603 makes it clear that Purchase orders are P type contracts and IDIQs are D type contracts, so a compelling argument can be made that the two are separate.

FAR 2.101 defines a purchase order as:

Purchase order, when issued by the Government, means an offer by the Government to buy supplies or services, including construction and research and development, upon specified terms and conditions, using simplified acquisition procedures.

Offer is defined as so:

Offer means a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract. Responses to invitations for bids (sealed bidding) are offers called "bids" or "sealed bids"; responses to requests for proposals (negotiation) are offers called "proposals"; however, responses to requests for quotations (simplified acquisition) are "quotations," not offers. For unsolicited proposals, see subpart 15.6.

This distinction means that what an offeror (for lack of better terms) submits to the Government is not an Offer, and what the Government sends back to the offeror in response is an Offer. Nowhere do these definitions state that a purchase order itself is a contract, but that a contract is established once a purchase order is accepted. I'd argue that this distinction allows us to award an IDIQ as the 'contract' that results from the Purchase Order.

The last line of concern that I have witnessed is FAR 13.302-1, which states that:

 (b) Purchase orders shall-

           (1) Specify the quantity of supplies or scope of services ordered;

           (2) Contain a determinable date by which delivery of the supplies or performance of the services is required;

           (3) Provide for inspection as prescribed in part  46. Generally, inspection and acceptance should be at destination. Source inspection should be specified only if required by part  46. When inspection and acceptance will be performed at destination, advance copies of the purchase order or equivalent notice shall be furnished to the consignee(s) for material receipt purposes. Receiving reports shall be accomplished immediately upon receipt and acceptance of supplies;

           (4) Specify f.o.b. destination for supplies to be delivered within the United States, except Alaska or Hawaii, unless there are valid reasons to the contrary; and

           (5) Include any trade and prompt payment discounts that are offered, consistent with the applicable principles at 14.408-3.

Paragraphs (1) and (2) are the issues here, as an IDIQ by nature does not have definitive quantities nor definitive delivery dates. However, FAR 16.504(a)(1) says this:

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 contractor must furnish any additional quantities, not to exceed the stated maximum. The contracting officer should establish a reasonable maximum quantity based on market research, trends on recent contracts for similar supplies or services, survey of potential users, or any other rational basis.

FAR 16.501-2(b)(3) also says:

Indefinite-quantity contracts limit the Government’s obligation to the minimum quantity specified in the contract.

I would argue that the minimum quantity and its delivery date satisfy paragraphs (1) and (2) above since the Government's obligation at the time of award is limited. Specifying a maximum obligation and an ordering period date including any options does not violate paragraphs (1) and (2). This also ties back to the beginning with FAR 13.106, which makes it clear that Multiple-Award contracts are permissible under FAR Part 13.

I know this is a lot of information, but I like to be prepared. I do believe that all of the information above indicates that awarding IDIQs using FAR Part 13  are permissible and have even been done in the past.

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

First, we want to commend you on your thorough and well done research.

To the specific question, " Is it possible to use FAR part 13 to award IDIQs?"  The answer is yes.  The more important question is, "Is it practical or useful?"

If following the rules of engagement outlined in FAR 13.106-1(a)(2)(iv), one anticipates multiple awards and is required to award to all of them.  With the IDIQs in place the rules of FAR subpart 16.5, i.e., Fair Opportunities come into play.  The selection process requires more administration.  Each  DO/TO would be under the SAT.  In the BPA arrangement your can have a single contractor and even with multiple contractors getting to award and performance/delivery will routinely be quicker.

We suspect that most units do not do it not because they believe they can't but because they believe it is not as efficient.

 

Posted507319/30/2021 7:45 AM
EMMETT SIMMONSContracting
19664
  
DAU132560005519/28/2021
Program Management
Need a good exec intro to acq course
I have a non-Acq friend who works for several  multi-star officers/SESs at  US Army Special Operations Command (USASOC) and she realized that they do not have a good grasp of basic acquisition principles.  Is there a good 1-2 hour executive intro to acquisition course that we can off LTC Baraga and his subordinates down to the O6 level?

The answer is yes.  We have contacted the customer directly to setup a training session on MS Teams.  We are now in the process of coordinating a session date and time. 

Posted507409/29/2021 7:10 AM
EMMETT SIMMONSProgram Management
19661
  
DAU132560005519/27/2021
Contracting
Why can't you use SAP when awarding an IDIQ? We use SAP when awarding Buildings and Grounds Requirements contracts and we used SAP to award a COVID-19 Decontamination Services IDIQ last year. Or is the intent to state you do not use FAR Part 13 when awarding a Task Order on a Requirements or IDIQ contract? When drafting Determination of Fair and Reasonable on de-obligations (something I will never understand), we site the FAR reference from the award of the IDIQ/Requirements contract... which is often a FAR 13.106 reference. "The unit price of the line items were previously found fair and reasonable based on receipt of competitive quotes IAW FAR 13.106-3(a)(1)", for example. Is this incorrect?
In an answer regarding Determination of Fair and Reasonable, the DAU respondent states "FAR 13.106-3 would be applicable if you were using simplified acquisition procedures, which you would not be with an IDIQ."

FAR Part 13 applies for IDIQ contracts valued within the applicable dollar thresholds (typically $250K, or $7.5 million for commercial items). We know this because there is no exception for indefinite-delivery contracts in FAR 13.002 (Purpose) or 13.003 (Policy). What may be causing some confusion is FAR 13.003(a)(2), which states: 

Agencies shall use simplified acquisition procedures to the maximum extent practicable for all purchases of supplies or services not exceeding the simplified acquisition threshold (including purchases at or below the micro-purchase threshold). This policy does not apply if an agency can meet its requirement using-

           (2) Existing indefinite delivery/indefinite quantity contracts

The fair and reasonable determination policy in FAR Part 13 applies to basic IDIQ awards within the applicable dollar thresholds in FAR Part 13. For DOD, it also applies to individual orders placed against Federal Supply Schedule contracts (see Class Deviation 214-O0011) within the thresholds. The only times FAR Part 13 would not apply is for the basic IDIQ contract, or for task orders placed against FSS contracts, that are above the applicable FAR Part 13 dollar thresholds. In those cases, FAR Part 15 pricing policy applies.

Posted507489/28/2021 10:36 AM
EMMETT SIMMONSContracting
19662
  
DAU132560005519/27/2021
Contracting
Can an FY21 construction solicitation be awarded in FY22 utilizing FY22 funds without having to resolicit the requirement in FY22?
I was informed today 27 Sep that the requiring activity will not get the funds for a project that was solicited this FY(21).  It was solicited as a UFR and subject to the availability of funds.  Competition was not full and open and was solicited to limited sources under 6.302-1.  The activity requested that since the lowest priced ktr's quote is good until March of FY22 that I award the contract, without resoliciting, upon receipt of the FY22 funds.  I am trying to research this as quickly as possible as EOY is upon us but I am not finding anything that speaks directly to the issue.  I keep getting routed back to crossing fiscal years.  Which does not apply a) because this is a construction project not a severable service and b) because I am not obligating anything in FY21.  My gut tells me that this is not proper at all.  But I could be wrong and CO decisions should be based on regulation and precedence.  I am looking for either that can provide some guidance.

Yes, as long as the contract includes FAR clause 52.232-18 Availability of Funds whose prescription states "if the contract will be chargeable to funds of the new fiscal year and the contract action will be initiated before the funds are available". You can see the language from that clause copied below protects the Government since funds are not available in your situation. If the contract is going to be incrementally funded, ensure to incorporate DFARS clause 252.232-7007 Limitation of Government’s Obligation. 

FAR clause 52.232-18: Funds are not presently available for this contract. The Government’s obligation under this contract is contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment may arise until funds are made available to the Contracting Officer for this contract and until the Contractor receives notice of such availability, to be confirmed in writing by the Contracting Officer.

Air Force Mandatory Procedure 5332.7 Contract Funding has the procedure when issuing solicitations that do not include FAR clause 52.232-18. As such, ensure to understand the applicability of FAR clause 52.232-18. 

Posted507499/28/2021 4:04 PM
EMMETT SIMMONSContracting
19663
  
DAU132560005519/27/2021
Contracting
However, it is not clear to me if exercising a -8 requires creating a new set of CLINs or whether the PoP for the option period preceding the -8 can just be extended. Given that a -8 might not be exercised at the end of the final option period, I am not sure how you would add CLINs for the -8 prior to exercising them... or what quantities to include since the PoP cannot be anticipated in advance. Because the pricing of the preceding option period is applies to the -8, which is why I included all that information at the start, and the clause talks about "extending", it seems to me the PoP of the existing CLINs can be extended. Would the answer depend on the length of the PoP of the preceding option period; e.g. not all PoP's are 12 months? Someone pointed out that there could be fiscal law concerns should a PoP exceed 12 months. In practice: 1) I have extended only IDIQ/Requirements contracts. Funding is at the task order level... so the color of money is not a concern. Also, USACE funds are civil works and does not expire. If a new PR&C were required, perhaps a new set of CLINs would also be required. Or could funds merely be added to the existing PR&C? 2) When a CLIN price has been adjusted due to the incorporation of new wage determination... we have retroactively modified the contract to add a CLIN for the lump sum difference after the PoP is complete and we know exactly how many services were performed and what we owe. If we had to calculate this in advance, I guess new CLINs would have to be added at the new price? In summary: extend current CLINs PoP or add a new set of CLINs; is there a fiscal issue with extending the PoP on certain types of contracts; are there nuances to civil works monies that offer flexibility that OMA and other funds do not?
When soliciting a new requirement, a best practice in our office is to include "FAR 52.217-8, Option to Extend Services is included in this solicitation and any resultant contract. The rates (as evaluated during the contract award process) to be used during the continued performance of any services will be the rates in effect at the time of the extension" in our Instructions to Offerors section of the solicitation.  We also state in the Award Recommendation document that "In accordance with FAR 13.106-3(a)(1) and per the “Additional Information” included in the Solicitation, XXXX's low quote (Base + Option Period and any FAR 52.217-8 extensions) is determined to be fair and reasonable after review and comparison with other responsive competitive quotes received. "  The thesis is that this will avoid a J&A should the -8 need to be exercised.  (For context, my DCC lost a protest on a -8 earlier in his career.)

Read FAR 37.111 Extension of Services to understand the purpose and basis for using FAR Clause 52-217-8, Option to Extend Services.  It states the following:

              Award of contracts for recurring and continuing service requirements are often                   delayed due to circumstances beyond the control of contracting offices. Examples               of circumstances causing such delays are bid protests and alleged mistakes in                   bid.  In order to avoid negotiation of short extensions to existing contracts, the                     contracting officer may include an option clause (see 17.208(f)) in solicitations                     and contracts which will enable the Government to require continued performance               of any services within the limits and at the rates specified in the contract.                             However, 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 thereunder shall               not exceed 6 months.

Based on your background information, sounds like you've taken appropriate steps such as including the dash 8 clause and associated verbiage for evaluating the option in the solicitation.  I, also, agree with you that the rates to be used for the "continued performance" under the dash 8 clause should be the current rates in effect at the time of the extension. With regard to whether or not a new CLIN needs to be established for exercising the dash 8, I have not seen it done that way.  Normally, as you've already stated, the current rates that are in effect are used for the dash 8 extension, so the existing CLIN is just extended. 

However, the GAO decision in Major Contracting Services, B-401472 (2009), created quite a bit of controversy about this very topic ( (namely, should a separate dash 8 CLIN be created for pricing purposes).  In fact, this GAO case was the reason that many agencies, such as yours, started including verbiage in the solicitation concerning the evaluation of the dash 8 option.  The GAO stated that agencies must either evaluate the Dash 8 clause at time of award or do a J&A and evaluate price at the time the agency exercises the option.  Despite the GAO case, DoD has not come out with any overarching policy to clarify proper usage of the dash 8 or the mechanics of how it should work contractually (such as the CLIN structure). 

In terms of the funding part of your question, “No year” funds remain available until expended (or rescinded and taken back by Congress). So clearly, no year funds offer greater flexibility.

Funds have to be in the Current Phase of their Appropriation Life-Cycle in order to be obligated for new work.  In addition, OMA funds are only Current for one year, although for service contracts that year could be 12-months that cross fiscal years (ref: 10 USC 2410a). RDT&E is incrementally funded for efforts that will occur for either of the two years of its Current Phase. For both RDT&E and Procurement funded service contracts, the PoP cannot extend past the last day of the appropriation's Current Phase.

If the only thing that is being done is extending the PoP to allow the contractor more time to complete the current work (i.e. no new work), then simply adding USACE funds, which are for civil works and do not expire, to an existing CLIN makes sense.  However, if the reason for the PoP extension, is to allow time for unanticipated, additional work (i.e. new) to be completed, creating a new CLIN that defines that new work with its associated PoP is appropriate in order to be able to track the work against the funds for audit purposes.

Bottom line: I think whatever you decide to do will be fine as long as it's reasonable and consistent with the solicitation and the contract.  One question I think is just as important to ask is what's the reason driving your agency to extend the services with the dash 8 clause under the existing contract.  The FAR verbiage is pretty clear that it's supposed to be used for circumstances beyond the control of the buying office.  If the circumstances are for reasons not beyond your office's control, then such an extension might be construed as out of scope in which case a J&A would also be needed.  Finally, any decision regarding the CLINs on the contract need to also take into consideration your Service policy, agency policy letters, and ultimately your Contracting Officer.

 

 

Posted507469/28/2021 4:04 PM
EMMETT SIMMONSContracting
19657
  
DAU132560005519/26/2021
Contracting
The KO and I are trying to gain clarity on TAA. The responses we received are all non-TAA compliant. The customer did not specify if these products had to TAA complaint. When looking at FAR 25.402(b) WPO GPA for supply contract is $180K. Does this amount apply to the countries listed in the table?
Hello,  we are buying 50 monitor mounting arms that are under the SAT.  We are gaining clarity on TAA.

According to 25.003 Definitions, Designated country means any of the following countries:

           (1) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Armenia, Aruba, Australia, Austria,, Belgium, Bulgaria, Canada, Croatia, 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, Moldova, Montenegro, Netherlands, New Zealand, 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)"), Ukraine, or United Kingdom)

Also, in the definitions, it states that a designated country end product means a WTO GPA country end product, an FTA country end product, a least developed country end product, or a Caribbean Basin country end product.

Also, keep in mind the following exceptions: FAR 25.401 Exceptions.

      (a) This subpart does not apply to-

           (1) Acquisitions set aside for small businesses;

           (2) Acquisitions of arms, ammunition, or war materials, or purchases indispensable for national security or for national defense purposes;

           (3) Acquisitions of end products for resale;

           (4) Acquisitions from Federal Prison Industries, Inc., under subpart  8.6, and acquisitions under subpart  8.7, Acquisition from Nonprofit Agencies Employing People Who Are Blind or Severely Disabled; and

           (5) Other acquisitions not using full and open competition, if authorized by subpart  6.2 or 6.3, when the limitation of competition would preclude use of the procedures of this subpart; or sole source acquisitions justified in accordance with 13.501(a).

Bottom line: the $182K amount applies to the WTO GPA countries.  These countries are listed in the WTO GPA definition.  The other thresholds provided in the table at FAR 25.402 are for other trade agreements such as FTA.  You did not provide the dollar value of your acquisition, but to determine whether your acquisition is covered by the WTO GPA or FTA, you need to compare the value of your acquisition (following the guidance in FAR 25.403(b) for calculating the total value of your acquisition) against the thresholds in the table.  This is assuming that your acquisition includes a designated country end product as defined by the FAR and assuming none of the exceptions at FAR 25.401 apply.  Due to the complexity involved with trade agreements, we strongly recommend consulting with your legal office to ensure any legal implications of trade agreements on your acquisition are fully understood.

Posted507399/27/2021 8:02 AM
EMMETT SIMMONSContracting
19658
  
DAU132560005519/26/2021
Contracting
To allow a contractor to use an agency-owned vehicle, what must the contract include? What authorizes the contractor to operate the GOV, and what in the contract protects the government?
4th estate agency has several contracts that require contractors to operate GOV/GSA-Leased vehicles in the performance of their duties. I have seen the requirements listed in the PWS or SOW, but no clauses referenced in the FAR related to the insurance or requirements for use of a government NTV.

This answer is based upon the question background and supplemental information provided. 41 CFR 102-34, Motor Vehicle Management, §102-34.215 states that Government contractors may use Government motor vehicles when authorized in accordance with the Federal Acquisition Regulation (FAR), GSA Fleet procedures, and under the following conditions:

  • Government motor vehicles are used for official purposes only and solely in the performance of the contract;
  • Government motor vehicles cannot be used for transportation between residence and place of employment, unless authorized in accordance with 31 U.S.C. 1344 and part  102-5 of this chapter; and
  • Contractors must:
    • Establish and enforce suitable penalties against employees who use, or authorize the use of, Government motor vehicles for unofficial purposes or for other than in the performance of the contract; and
    • Pay any expenses or cost, without Government reimbursement, for using Government motor vehicles other than in the performance of the contract.

The contract is used to convey authorization for the Contractor to operate Government motor vehicles (agency-owned and GSA Fleet leased), restrictions, and requirements when the Contracting Officer has determined that contractor operation of Government vehicles is in the Government’s best interest.   

Your inquiry is based on a fixed-priced contract that exceeds the simplified acquisition threshold and performed on a Government installation. FAR 52.228-5, Insurance-Work on a Government Installation, should be inserted in the contract per FAR 28.310. However, the Contracting Officer should verify this.

FAR 28.310 Contract clause for work on a Government installation.

      (a) Insert the clause at 52.228-5, Insurance-Work on a Government Installation, in solicitations and contracts if a fixed-price contract is contemplated, the contract amount is expected to exceed the simplified acquisition threshold, and the contract will require work on a Government installation, unless-

           (1) Only a small amount of work is required on the Government installation (e.g.,a few brief visits per month); or

           (2) All work on the Government installation will be performed outside the United States and its outlying areas.

      (b) The contracting officer may insert the clause at 52.228-5 in solicitations and contracts described in paragraphs (a)(1) and (2) of this section if it is in the Government’s interest to do so.

FAR 52.228-5 requires the Contractor, at its own expense, to provide and maintain, at a minimum, the amounts of insurance required in the Schedule or elsewhere in the contract. To see how the Government is protected specifically when contractors are authorized to operate Government vehicles we need to refer to FAR 28.306, which requires the Contracting Officer to ensure the requirements of FAR 28.307 are in the contract. Compliance with FAR 28.306 results in the Contracting Officer having to ensure that the Contractor has automobile liability insurance in special circumstances.

FAR 28.306, Insurance under fixed-price contracts, points out that the Government ordinarily isn’t concerned with the contractor’s insurance if the contract is fixed-price. However, it further states that in special circumstances agencies may specify insurance requirements under fixed-price contracts. Two of the examples provided are: (1) Government property is involved and (2) The work is to be performed on a Government installation. FAR 28.306(b)(1) states:

“When the clause at 52.228-5, Insurance-Work on a Government Installation, is required to be included in a fixed-price contract by 28.310, the coverage specified in 28.307 is the minimum insurance required and shall be included in the contract Schedule or elsewhere in the contract. The contracting officer may require additional coverage and higher limits.”  

FAR 28.307-2 Liability.

      (c) Automobile liability. The contracting officer shall require automobile liability insurance written on the comprehensive form of policy. The policy shall provide for bodily injury and property damage liability covering the operation of all automobiles used in connection with performing the contract. Policies covering automobiles operated in the United States shall provide coverage of at least $200,000 per person and $500,000 per occurrence for bodily injury and $20,000 per occurrence for property damage. The amount of liability coverage on other policies shall be commensurate with any legal requirements of the locality and sufficient to meet normal and customary claims.

There is a document on GSA’s website titled “Contractor-Use of GSA Fleet Vehicles” that is available at https://www.gsa.gov/cdnstatic/Contractor_Eligibility.docx. It provides information about contractor use of GSA Fleet vehicles under cost-reimbursement and fixed-price contracts. It is recommended that you read this document, paying particular attention to Section 4, “Other Issues and Information.” It addresses cost-study requirements for fixed-price contracts. For all firm-fixed price contractor use requests, regardless of quantity, send requests and all required supporting documentation to ContractorUseRequests@gsa.gov.

A similar Ask-A-Professor question and answer can be found at https://www.dau.edu/aap/pages/home.aspx#!details%7C17909.

Posted507239/27/2021 8:02 AM
EMMETT SIMMONSContracting
19659
  
DAU132560005519/26/2021
Contracting
I've been told that the Government has the authority to provide vendors with a "target price range" in solicitation materials. The DHS PIL discusses this in one of their publications. Do you know which authority(ies) allow the Government to use this approach? And do you have references to any discussions on where using this approach might be valuable? Thanks for your guidance.
Question on the allowability of the Government giving vendors a target price range in solicitation materials.

For the DoD conducting acquisitions subject to the FAR, there is no prohibition against including a target price range in solicitations. While a solicitation including a target price range is possible, it is not common because it can limit competition and potentially complicate subsequent source selection. Just because something is allowable does not mean it is a good practice to do it.

An overview perspective of FAR direction regarding competition and transparency helps understanding why target price ranges are not common in solicitations. One can summarize the guiding principles for the Federal Acquisition System presented at FAR 1.102 as, 'always seek transparency and competition.'

DoD must publicize contract actions in order to increase competition, broaden industry participation, and assist small business concerns of all types in obtaining contracts and subcontracts (FAR 5.002). FAR part 11 - Describing Agency Needs focuses on objective description of the qualities, traits, and functions sought in the supplies or services required. FAR part 11 is silent on price ranges. These directions serve to increase transparency and thus potentially increase competition.

FAR part 10 - Market Research directs DoD to study available markets to understand what is available in the market to meet agency needs (FAR 10.001). FAR 10.002(b)(1)(vii) mentions conducting market research in relation to discovering if small business can potentially meet the agency requirement at a "fair market price." Concern with ultimately establishing the fairness and reasonableness of award prices builds from this point and continues into the instructions to agencies in FAR part 15 - Contracting by Negotiation. Contracting officers must purchase supplies and services from responsible sources at fair and reasonable prices (FAR 15.402(a)). Market research helps the contracting officer recognize when a price is fair and reasonable. Market research does not dictate to industry discrete prices as fair and reasonable.

Review of FAR subpart 15.2 illustrates that contracting officers must solicit proposals from potential contractors by transparently stating the government's needs and intentions for how it will go about meeting those needs.  FAR 15.303(b)(4) directs the contracting officer to evaluate proposals solely on the factors and sub-factors published in the solicitation.  These highlighted directions from the FAR illustrate the principle: Tell the market what the government intends to do, and then do precisely that.

Prices are set by the market unless established by law or regulation, for example, utility prices. The potential contractor is at liberty to propose prices they deem appropriate. If a contracting officer publishes a solicitation stating award will be selected from offers falling in a particular price range, and no offers meet that evaluation factor, the contracting officer has no path to award. The contracting officer must either amend the solicitation or cancel and resolicit in order to award. Both options are detrimental to acquisition schedule and could risk expiration of funds according to fiscal law.

Posted507179/27/2021 8:03 AM
EMMETT SIMMONSContracting
19660
  
DAU132560005519/26/2021
Contracting
Is there somewhere in the FAR that tells me if I am missing the award date and it is signed, what date I use? AND is there somewhere that describes what makes this contract enforceable or unenforceable when there is a missing award date but is signed by all parties?
I am currently reviewing contracts and trying to calculate the ARO. The Contract is signed by the CO and KTR but there is no "Date of Order/Call" in box 3 for DD Form 1155.  There are several more contracts I am finding are all missing this award date and have a KTR signature and CO Signature. I am wanting to create a checklist and guidance to others about why this is important to have and the FAR regulations that support the enforceability and need for an award date along with the signatures.

DFARS PGI 253.213-70 (Completion of DD Form 1155, Order for Supplies or Services), para. (a) states "the following instructions are mandatory..." One of those instructions applies to block 3 — "Enter the four-position numeric year, three-position alpha month, and two-position numeric day." That establishes, at the most basic level, the need to fill in the date of the order. However, an order does not become a contract until the contractor signs at block 16 (or alternatively, begins performance), so that is the more important date. The date in block 3 can be useful for tracking purposes, such as for determining how long an offeror is taking to return the signed form. Nevertheless, the date the offeror actually accepts the order in block 16 matters the most. If an order is returned from the contractor without a date in block 16, it’s best to request that the offeror sign again, with the date included. The parties’ responsibilities under a contract are best understood and fulfilled when the time sequence of ordering and acceptance is clear. This can also help if there is a subsequent dispute about the order.

Posted507369/27/2021 2:56 PM
EMMETT SIMMONSContracting
19653
  
DAU132560005519/21/2021
Contracting
Can a modification be issue to an expired Delivery Order/Task Order to change the delivery date due to supply lines having issues with the delivery period due to the pandemic?
Due to pandemic and problems with the supply chain during the past year, a CHESS order was placed to electronic items, as of today, the contractor has not completed the delivery of the items and they are requesting an extension. The Task  Order was again a base contract which has not expired. We still have the need for this items and the customer is requesting the extension as well.

In a word, yes. You may modify the order to extend the period of performance and accept delivery.

In this instance we will assume you have evaluated all of the facts and agree that the reason for the delay was in fact pandemic related. This is known as an excusable delay. You would have to do a scope determination document for your file and based on the facts conclude that the modification is within the general scope of the contract/order. It was reasonably contemplated at the time of award and it would not have altered the field of original competition. See your legal counsel for support.

How you do it depends on what clause you have on the base contract (or the order, either one). If the base contract and/or order used the commercial contract format (SF 1449) then you have FAR 52.212-4. FAR 52.212-4(f) Excusable Delays identifies “epidemics” and “quarantine restrictions” as excusable delays. The modification authority you would use in block 13.C of the SF 30 would be FAR 52.212-4(c). This would have to be a supplemental agreement (bilateral modification) because of FAR 52.212-4(c).

If you did not use the commercial contract format, look to see if you have FAR 52.249-8. FAR 52.249-8(c) also identifies “epidemics” and “quarantine restrictions” as excusable delays. This clause would not be your modification authority however. You would use “mutual agreement of the parties” in block 13.C of the SF 30 and again utilize a supplemental agreement (bilateral modification). You contract file documentation should cite FAR 43.103(a)(3) as there is no other clause that specifically gives the contracting officer the right to change the period of performance for this situation.

Posted507389/22/2021 11:31 AM
EMMETT SIMMONSContracting
19654
  
DAU132560005519/21/2021
Contracting
Can I purchase the VTC equipment with FY21 funds, then purchase the installation of the new VTC equipment with FY22 funds?
Lack of adequate funding for End of Fiscal Year Purchase for VTC Upgrade.

I don't see your proposed action as "splitting requirements" in the traditional, prohibited sense. The FAR doesn't specifically define “splitting requirements” but it's generally considered to be breaking a requirement into two or more purchases to avoid regulatory and/or approval mandates associated with a higher dollar threshold. FAR 13.003(c)(2) states: "Do not break down requirements aggregating more than the simplified acquisition threshold (or for commercial items, the threshold in Subpart 13.5) or the micro-purchase threshold into several purchases that are less than the applicable threshold merely to— (i) Permit use of simplified acquisition procedures; or (ii) Avoid any requirement that applies to purchases exceeding the micro-purchase threshold."  Splitting requirements usually occurs to keep actions under the micropurchase or simplified acquisition thresholds. However, that is not the intent in your case.

Posted507379/22/2021 11:36 AM
EMMETT SIMMONSContracting
19655
  
DAU132560005519/21/2021
Contracting
Should the -8 be evaluated when determining award? We have no idea if, when, or how long we would need this extension currently and the -8 is not priced. Should the worse case scenario be used for evaluation based on using the option after the 4th option for the full 6 months available under the -8 clause?
Completing evaluations of proposals this contract will be Base +4 Option Years but also includes 52.217-8. 

In determining award, about the only way you have a protest sustained is if you deviate from your stated evaluation criteria.  Here is the FAR cite 

52.217-5 Evaluation of Options.

As prescribed in 17.208(c), insert a provision substantially the same as the following:

Evaluation of Options (July 1990)

Except when it is determined in accordance with FAR 17.206(b) not to be in the Government’s best interests, the Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. Evaluation of options will not obligate the Government to exercise the option(s).

The way i would address this in the evalaution criteria is to explicitely say the contract price will be evaluated on the basis of the base year and the four prepriced option years.  That specifically excludes the up to 6 month bridge option that is causing concern.

I have never included this up to six month extension as part of an evaluation criteria and do not know of any cases where a contractor protested based on not including this.  bottom line, you are are pretty solid ground to not include it unless for some reason it was explicitly included in the evaluation criteria.

Posted505689/22/2021 11:37 AM
EMMETT SIMMONSContracting
19656
  
DAU132560005519/21/2021
Contracting
If there is an FFP IDIQ in place and making task orders from it is a Determination of Fair & Reasonable Price needed?
Is FAR 13.106-3 necessary for IDIQ FFP contracts

This is a good, interesting question. The short answer is no, you do not have to follow the procedures at FAR 13.106-3 However...

If you have an Indefinite-Delivery Contract you must follow the procedures at FAR 16.505 Ordering. For your scenario, the requirement at FAR 16.505(b)(3) Pricing Orders.

If the base contract (the IDIQ you reference) already established the prices for the supplies or services over the period of the contract; the fair and reasonable price determination documentation would have been accomplished at the time of award and does not need to be re-accomplished if issuing orders with the prices in the base contract.

Per FAR 16.505(b)(3), if the basic contract did NOT established the prices for the supplies or services, the contracting officer must establish prices for each order using FAR subpart 15.4. Yes, you would have to determine the price(s) are fair and reasonable prior to placing each order. See FAR 15.402(a).

FAR 13.106-3 would be applicable if you were using simplified acquisition procedures, which you would not be with an IDIQ.

 

Posted507269/22/2021 3:51 PM
EMMETT SIMMONSContracting
19652
  
DAU132560005519/20/2021
Contracting
I've been told that the Government has the authority to provide vendors with a "target price range" in solicitation materials. The DHS PIL discusses this in one of their publications. Do you know which authority(ies) allow the Government to use this approach? And do you have references to any discussions on where using this approach might be valuable? Thanks for your guidance.
Question on the allowability of the Government giving vendors a target price range in solicitation materials.

For the Department of Defense (DoD) conducting acquisitions subject to the Federal Acquisition Regulation (FAR) there is no prohibition against including a target price range in solicitations. While solicitation including a target price range is possible, it is not common because it can limit competition and potentially complicate subsequent source selection. Just because something is allowable does not mean it is a good practice to do it.

An overview perspective of FAR direction regarding competition and transparency helps understanding why target price ranges are not common in solicitations. One can summarize the guiding principles for the Federal Acquisition System presented at FAR 1.102 as, 'always seek transparency and competition.'

DoD must publicize contract actions in order to increase competition, broaden industry participation, and assist small business concerns of all types in obtaining contracts and subcontracts (FAR 5.002). FAR part 11 - Describing Agency Needs focuses on objective description of the qualities, traits, and functions sought in the supplies or services required. FAR part 11 is silent on price ranges. These directions serve to increase transparency and thus potentially increase competition.

FAR part 10 - Market Research directs DoD to study available markets to understand what is available in the market to meet agency needs (FAR 10.001). FAR 10.002(b)(1)(vii) mentions conducting market research in relation to discovering if small business can potentially meet the agency requirement at a "fair market price." Concern with ultimately establishing the fairness and reasonableness of award prices builds from this point and continues into the instructions to agencies in FAR part 15 - Contracting by Negotiation. Contracting officers must purchase supplies and services from responsible sources at fair and reasonable prices (FAR 15.402(a)). Market research helps the contracting officer recognize when a price is fair and reasonable. Market research does not dictate to industry discrete prices as fair and reasonable.

Review of FAR subpart 15.2 illustrates that contracting officers must solicit proposals from potential contractors by transparently stating the government's needs and intentions for how it will go about meeting those needs.  FAR 15.303(b)(4) directs the contracting officer to evaluate proposals solely on the factors and sub-factors published in the solicitation.  These highlighted directions from the FAR illustrate the principle: Tell the market what the government intends to do, and then do precisely that.

Prices are set by the market unless established by law or regulation, for example, utility prices. The potential contractor is at liberty to propose prices they deem appropriate. If a contracting officer publishes a solicitation stating award will be selected from offers falling in a particular price range, and no offers meet that evaluation factor, the contracting officer has no path to award. The contracting officer must either amend the solicitation or cancel and resolicit in order to award. Both options are detrimental to acquisition schedule and could risk expiration of funds according to fiscal law.

Posted507179/21/2021 3:07 PM
EMMETT SIMMONSContracting
19649
  
DAU132560005519/19/2021
Contracting
Wat standard form is used for building a contract under a BAA?
Building a contract for research and analysis under an established Broad Agency Agreement.

There is wide latitude on the types of instruments awarded as a result of a Broad Agency Announcement (e.g. Grants, Cooperative Agreements, OTAs, etc.) for purposes of this question I will assume you are awarding a FAR based contract.

The guidance can be found at FAR 15.509 and DFARS 253.213 depending on your scenario. In many instances the SF 26 Award/Contract is used because many BAAs do not use a form (SF-33) as the solicitation method, see FAR 15.210. 

Posted507339/20/2021 8:06 AM
EMMETT SIMMONSContracting
19650
  
DAU132560005519/19/2021
Contracting
Can a CLIN be funded with two different years of 3080 funds. The funds are both available for obligation.
Received feedback that two fund years cannot be used on one CLIN with procurement funds.

Yes. DFARS 204.7103-1(a)(4)(ii) allows use of multiple accounting classification citations for a contract line item in the following situations (i.e., we can have multiple fund citations for a CLIN under i, ii, and iii)

i. A single, nonseverable deliverable to be paid for with R&D or other funds properly incrementally obligated over several fiscal years in accordance with DoD policy; 

ii. A single, nonseverable deliverable to be paid for with different authorizations or appropriations, such as in the acquisition of a satellite or the modification of production tooling used to produce items being acquired by several activities; or 

iii. A modification to an existing contract line item for a nonseverable deliverable that results in the delivery of a modified item(s) where the item(s) and modification are to be paid for with different accounting classification citations.

The CLIN will show the different long lines of accounting and dollar amounts for each of the years of funding.  3080 is procurement appropriation which means full funding policy.  Normally if the funds are for a new delivery lot, we would put it on a separate CLIN because that way the program office can effectively track and the contractor can bill for end items.  Contractors deliver and bill for end items at the CLIN level.

The real determining factor here is what the new funds are being used for and how a financial manager can track and monitor execution. Your decision to set up the proper CLIN is dependent on your Service policy, agency policy letters, and ultimately your Contracting Officer. Recommend that your contracting officer and program office sit down and address all of the issues and possible solutions.

Posted507229/20/2021 9:18 AM
EMMETT SIMMONSContracting
19651
  
DAU132560005519/19/2021
Contracting
Per FAR 36.602-1(c) discussions are to be held with at least three (3) of the most highly qualified firms. What if when the solicitation is posted, there are less than 3 qualified firms who respond? What if there is only one response to the solicitation?
The Brooks Act (Qualifications Based Selection) Implementation.

As background, Qualifications-Based Selection (QBS) is a procurement process established by the United States Congress as a part of the Brooks Act (Public Law 92-582; this is codified in 40 USC §1101 et seq. and further developed as a process for public agencies to use for the selection of architectural and engineering services for public construction projects). It is a competitive contract procurement process whereby consulting firms submit qualifications to a procuring Government activity who evaluates and selects the most qualified firm, and then negotiates the project scope of work, schedule, budget, and consultant fee.

You did not provide much background information in your question, but not withstanding that, here you go. The first question you must inform when less interest in an architectural and engineering services solicitation is received should be, “what happened, why did we not receive several adequate proposals?” The answer for that should be found in your market research.  There may be valid reasons for the lack of interest, the engineering requirement may be unique and require expertise only found in a very limited number of firms, or the geographic location of the site may be such that it is undesirable to most if not all qualified firms. You also must consider whether the requirement was well defined as presented in the advertisement. The bottom line is, can you change the solicitation to gain additional offers?  If the answer is more engagement with industry or better information will generate more interest, you need to cancel the existing solicitation and advertise under a new solicitation. As soon as possible.

Under a QBS procurement, the cost of the work (price) is not considered when making the selection of the best or most appropriate provider of the professional services required. Fees for services will be negotiated and may not exceed 6% of the estimated cost of the building being designed, per FAR 15.404-4 (b). A procurement of architectural and engineering services shall be considered in compliance with FAR direction provided in 6.102(d) (1) even when the Request for Qualification does not generate three responses as long as a good faith effort to publicly advertise and directly solicit participation was in fact made.  The source selection authority shall determine whether a good faith effort was made using his or her best professional judgement. This determination must be documented and maintained in the contract file. 

            All this said, the contracting officer must negotiate a fair and reasonable cost for the effort and fully document this rationale in the post negotiation memorandum. This may be made more difficult if only a very few or only one offers are received.

Posted507309/20/2021 10:01 AM
EMMETT SIMMONSContracting
19648
  
DAU132560005519/16/2021
Contracting
Can Yamaha Motorcycles that are are manufactured in Indonesia be legally procured by the DoD utilizing Small Business Set Asides? I understand Small Business Set Asides are largely exempt from TAA however I cannot fully piece together a solid answer.
Procurement of Yamaha Motorcycles manufactured in Indonesia - Small Business Set Aside - US Business

This appears to be a nonmanufacturer rule question. See 19.505(c) nonmanufacturer rule and 19.505(c)(4) Waiver of nonmanufacturer rule. Part 19 - Small Business Programs | Acquisition.GOV and Nonmanufacturer rule (sba.gov)

(i)The SBA may grant an individual or a class waiver to the nonmanufacturer rule to allow a nonmanufacturer to provide an end item of an other than small business without regard to the place of manufacture, processing, or production.

Typically, a small business must manufacture the product or use a small business manufacturer to be able to do a set-aside.  A number of questions come up, such as dollar value, is this a brand name sole source for Yamaha motorcycles?

Please consult with your small business professional and SBA procurement center representative.

Posted507289/17/2021 7:09 AM
EMMETT SIMMONSContracting
19646
  
DAU132560005519/15/2021
Program Management; Life Cycle Logistics
What is the doctrinal definition of Early Operational Capability? I see several articles on line referring to this. One is titled "MQ-4C Triton UAV Deploys, Reaching Early Operational Capability" Thanks V/R
I have seen articles that mention Early Operational Capability, but do not see the term defined anywhere.

To truly understand EOC it is first important to understand the term Initial Operational Capability (IOC).  IOC is very important to both the operator and acquisition communities as each has responsibilities in achieving IOC. In short, IOC is an agreement between operators and acquirers that certain actions will be accomplished by a certain date.  Operators, for example, are required to conduct initial weapons system and logistical training to crews and accomplish all actions associated with bringing a weapon system on-board.  The acquisition community is responsible for delivering a certain number of assets to the user by the agreed to IOC date.  These assets must meet all Key Performance Parameters, most key system attributes, and have an established logistical chain.  So, in short, IOC requires operator preparation training, a certain number of delivered assets,  and a viable logistics support chain.  EOC, therefore is some capability short of the required IOC capability.  In the MQ-4C Triton UAV case, EOC was reached when a number of UAV's were delivered to help develop operational procedures.  Unlike IOC, the user solely determines and plans for what capabilities are needed for EOC.  So in short, EOC means IOC requirements have not been fully met but the user is deriving some benefits from EOC.

Posted507219/16/2021 1:44 PM
EMMETT SIMMONSProgram Management; Life Cycle Logistics
19647
  
DAU132560005519/15/2021
Contracting
What is the difference between a programmatic impact statement and an operational impact statement?
I received a tasker asking for programmatic and operational impact statements with my unfunded requirement request.

Programmatic impact statements focus on changes to cost, schedule, and performance based on a particular event (normally a budget cut).  Operational impacts focus on how that particular event might affect operational or user concerns.  Both are necessary for the decision makers to readily assess the overall impact to the program of proposed changes.  For example, the T-6A trainer experienced a 3-month production delay to remanufacture certain parts.  The programmatic impacts were (1) Cost-an additional $2 million for some production workers who were idle; Schedule-an additional 3 months for a total of 6 months when one includes the 3 month production delay. Additional time was needed to reschedule test ranges and facilities that were not used on time; Performance--increased--new parts allowed system to make KPPs.  The operational impacts were (1) a loss of $500 million in fuel savings because the T-6A would be delayed and it was much more fuel efficient than its predecessor (2) Delay to IOC.  (3) AETC would be unable to reach the Air Force's goal of producing 1000 pilots a year.  In all, understanding both the programmatic  and operational impacts of changes in your program are critical in helping decision makers understand the consequences of budget and requirement decisions.

 

Posted507079/16/2021 1:44 PM
EMMETT SIMMONSContracting
19644
  
DAU132560005519/13/2021
Contracting
Is Depot Activation Planning funded with BP10 or BP19 dollars?
Budget staff has had some discussion whether Contractor depot stand up should be funding with 3010 BP 10 or BP 19 dollars.
The SOW states, 'The Contractor shall support, participate, and provide data for the Government Depot Source of Repair updates IAW AFI 63-101/20-101 for the APT System. The Contractor shall provide ROMs and LORA to support the DMAWG planning process. The Contractor shall determine projected failure rates for D-level repairs.'

This question is USAF specific; however, the AFMAN65-604 has information concerning Depot Activation.  I strongly suggest you review this AF manual, and then have a conversation with the Comptroller or SAF/FMB to be certain that you have requested funds in the correct BP.

Posted507209/14/2021 10:34 AM
EMMETT SIMMONSContracting
19645
  
DAU132560005519/13/2021
Contracting
For the upcoming recompete, we are exploring the use of a longer term contract (~8-10 years), and allowing the carriers to propose rates/annual escalation for years 1-5; and during year 5 we are looking at the possibility of having the carriers essentially re-propose rates and new annual escalation to go into effect during years 6 through 8 or 10. We would also like to have on-ramp/off-ramp language to allow new contractors to compete on NGDS and/or "opt-out". We recently completed a SAW whereby the instructor recommended we reach out to "DAU's Ask A Professor" for any insights you may have on setting up a contract with these conditions and period of performance. (e.g. Clauses, Language, or any other special considerations). Thank you!
Our office is the procuring office for the Next Generation Delivery Service (NGDS) Contract, which is a Best-in-Class, Mandatory-Use contract for the domestic/international shipment of small parcels weighing less than 300lbs. NGDS is a multiple-award IDIQ, and currently has a 5-year base period, with no options  and allows for carriers to take a predetermined rate escalation on an annual basis.

Service acquisitions with longer periods of performance, particularly multiple award contracts, should have requirements written in such a way as to provide for maximum competition for orders throughout the life of the contract. One way to encourage competition is to provide for decision points (on and off ramps) to ensure that the Government has a qualified pool of contractors that will provide continuous service throughout the life of the contract. The determination regarding how to apply and use “on-ramp/off-ramp” provisions are at the discretion of the contracting agency.

Since every requirement is unique to the contracting agency and its customer, “one size” does not fit all. To get a sense of the variety of “on-ramp/off-ramp” perspectives, solicitation provisions, and contract clauses, you should conduct a number of searches at https://sam.gov/search

Using a variety of keywords (e.g., “on-ramp”) and controlling for “federal organization” and “status” will return several solicitations and contracts that you can mold into a template. As you develop the template solicit feedback from your customer, policy office and general counsel.

For overviews of complex service contracts featuring on-ramps/off-ramps the following may be useful:

Navy SeaPort: https://www.seaport.navy.mil/

GSA OASIS: https://www.gsa.gov/buying-selling/products-services/professional-services/buy-services/oasis-and-oasis-small-business

GSA OASIS presentation: https://interact.gsa.gov/sites/default/files/OASIS%20Year%20of%20the%20Onramp%208%28a%29%20focus%201.14.2019.pdf

The guidane for contract length (period of performance) for DoD can be found at DFARS 217.204, we encourage you to review that with your contracting support team.

 

Posted507189/14/2021 11:22 AM
EMMETT SIMMONSContracting
19641
  
DAU132560005519/12/2021
Contracting
Is there any training or tools to better explain FPIS contracts and their application?
Working on a new acquisition to use FPIS contract type

FAR 16.403-2 addresses the FPIS contract type, and provides the initial elements needed to negotiate the firm target cost and firm target profit, similar to FPIF. The following resources will enhance understanding of FPI contract types. 

Guidance on Using Incentive and Other Contract Types

FPIF Contracts with Leslie Overturf

FPIF/CPIF Calculator

Posted507149/13/2021 7:11 AM
EMMETT SIMMONSContracting
19642
  
DAU132560005519/12/2021
Contracting
i have different LOA's on the same Modification, both for travel. One travel CLIN is depleted, can the KTR bill against the second travel CLIN with req. owners approval even though they have two different ESP Codes?
i have different LOA's on the same Modification, both for travel.  One travel CLIN is depleted, can the KTR bill against the second travel CLIN with req. owners approval even though they have two different ESP Codes?

The period of performance (PoP) for each travel CLIN should be looked at to ensure it is not past the end of the PoP. Are the PoPs the same for the two travel CLINs, why two different travel CLINs? The answer to that question may drive the answer of contractor billing. The contractor should bill for travel respective to the scope of work, which in turn will be associated with the respective CLINs, and the funding with its LOA for that scope of the CLIN. So for example, if the LOAs reflect different scope of work in the contract such as different requiring activities who have their own LOA, then the contractor should bill accordingly to the scope of work that the travel was associated with. 

On a side note, if you have more than one LOA for travel, you can create a parent CLIN that is priced and subCLINs that are informational, one subCLIN for one LOA. This is to be compliant with DFARS PGI 204.7107(c) that addresses how to identify funding respective to legacy systems and more recent systems that enable traceabililty to contract actions and reflect the Agency Accounting Identifier (AAI). If you are using a more recent system that reflects AAIs and ever have a CLIN with more than one LOA, then DFARS PGI 204.7107(c)(2)(i)(B)(2) applies that says to use info subCLINs to identify ACRNs and the amount of the associated funding. 

Posted507139/13/2021 7:13 AM
EMMETT SIMMONSContracting
19643
  
DAU132560005519/12/2021
Engineering and Technical Management
Is an ITRA required for the RFP Release Decision Event or is a TRA acceptable (as long as an ITRA is conducted prior to Milestone B)?
I am supporting a program and we are preparing the documentation plan for two upcoming events (the RFP Release Decision Event followed by the Milestone B about a year later). The prior iteration of the MDID Tool suggested that an ITRA is not required for the RFP Release Decision Event, but is required for the Milestone B. The new version of the tool says the ITRA is now required for both the RFP Release Decision Event and the Milestone B. Our original plan was to conduct a TRA for the RFP Release Decision Event and then an ITRA for the Milestone B. We are no longer sure if this is correct.

Independent Technical Risk Assessments (ITRAs) are required by law for Major Defense Acquisition Programs (MDAP) and are conducted by the Under Secretary of Defense for Research and Engineering (USD(R&E)).  As the name implies, the purpose of ITRAs is to give the Milestone Decision Authority an independent risk assessment at major decisions points like the  Development Request For Proposals Release Decision (DRFPRD).  The release of the RFP at the release decision point establishes the contractual basis for the entire Engineering, Manufacturing, and Development phase.  So, providing the ITRA at the Milestone B Review is too late.  Public Law and USD(R&E) Policy Memorandum for Independent Technical Risk Assessments (Jun 2018) indicate that the correct point for the ITRA is at the DRFPRD point and not Milestone B.  Previous memos or directives suggesting that the ITRA by conducted for MS B were in error.  

Posted507159/13/2021 10:50 AM
EMMETT SIMMONSEngineering and Technical Management
19640
  
DAU132560005519/9/2021
Contracting
Does the issuance of DCMA unilateral modifications and the use of systemic ARZ modification numbers (as prescribed by the DFARS) violate regulatory requirements? In this scenario, a delegation authority letter signed by the appropriate procurement contracting authority including a list of contracts and all station changes would be provided to the DCMA Director of Contracting. A DCMA appointed contracting officer would be issuing the unilateral modification on their behalf as in the DCMA Manual 2501-02. We have been using the process for over two decades; however, a customer we are attempting to assist is calling this practice into question.
The DCMA has assisted many MOCAS System contracting commands for workload realignments involving accounting station changes; primarily for ERP migration initiatives where a systemic modification number is assigned in association with the changes.  The following is reference in the DCMA Manual 2501-02 regarding the use of the ARZ modification number assignment: “ (d) A mass modification or blanket no-cost change order is issued to modify a large number of contracts involving multiple companies. The approach is used in cases where it is more efficient or practical than having individual assigned Contracting Officers across the Agency issue substantially identical modifications. This approach is employed when delegation of contracting authority is received by DCMA Headquarters from the affected Defense Departments or Agencies, the modification does not change the contract value, the modification is unilateral, or when use of a mass modification has been approved by the DCMA Director or Senior Procurement Executive.”

No. A scan of regulatory sources finds no prohibition against unilateral mass modifications. DFARS 204.70 (5) describes the contract administration office’s (in your case DCMA) implied authority to generate ARZ modifications. DCMA is not unique in issuing mass modifications; GSA uses a mass modification process to change contracts under multiple award contracts (however the process reviewed was for bilateral modifications.) The procuring contracting officer could rescind delegation of functions under FAR 42.202 (d) however the mass modification process is designed to lower the administrative burden for all parties in contracting. With an established process in place, executing administrative changes, and with delegated authority to effect such changes; the mass modification process comports with the intent and within the authority of the FAR and DFARS.

Posted506359/10/2021 8:46 AM
EMMETT SIMMONSContracting
19639
  
DAU132560005519/8/2021
Test and Evaluation
What is the definition of the "material developer item manager"? In any given Army manufacturing program, who or what role/position is responsible for originating the QDR from a TIR?
As a Government manufacturer of products sometimes requiring test firing at Aberdeen, it is possible for us to receive Test Incident Reports from that facility. DA PAM 73-1 states that "The material developer item manager will prepare a Quality Deficiency Report (QDR) based on the TIR input (see AR 702-7 and AR 702-7-1)". I can't find the definition of the "material developer item manager" in any documentation including those referenced.

In the context of your question involving Aberdeen Proving Ground (APG), APG would not usually be classified as either a material developer or item manager.  Instead, APG the test service provider.

               The material developer is the organization that is responsible for research and development (R&D), production, and fielding of a new materiel system and is usually the Program Office.

               An item manager is normally designated through the Program Office to manage the end-to-end support of a system, subsystem, or component of the system such as an engine, transmission, cable, etc. and can include various organizations to include Defense Logistics Agency (DLA), depots, within the PM shop, or related support command such as TACOM supports most of the repairable parts of the ground vehicles in Warren, MI.

               If APG is conducting live fire testing of your product, it is standard a process that the requesting organization defines and funds their efforts to conduct the testing, capture data, and enter Test Incident Reports (TIR) in the database designated by the requesting organization.  As most test organizations are fee-for-service, your organization should be able to define, fund, and obtain the TIR information from APG as part of their test service.

               Once the TIR data is received from APG, normally the Production and Quality Management (PQM) personnel within the Program Office develop the Quality Deficiency Report (QDR) that is then used to work corrective actions on the design or production of the item under test with the prime contractor.

Posted507009/9/2021 7:08 AM
EMMETT SIMMONSTest and Evaluation
19636
  
DAU132560005519/7/2021
Contracting
How long do I give an Ability One Contractor time with a solicitation? I was trying to find if there is a specific time like a full 30 days, less than that, or more. I just could not find a specific time the solicitation has to be out to the contractor.
Issuing a solicitation to Ability One for janitorial and grounds keeping services. I have been reading in the FAR and I cannot find the answer I am looking for about the timeframe the contractor has with a solicitation. 

I see no timeline specified in the procedures section at FAR 8.705. The only time period specified is for an order is delayed when the purchase is made using the direct allocation process (8.705-3), but that doesn't apply to you. In the absence of specific guidance, the solicitation guidance at FAR 5.203 would apply.

Posted507049/8/2021 9:11 AM
EMMETT SIMMONSContracting
19637
  
DAU132560005519/7/2021
Contracting
In a service contract for grounds maintenance, can you set a specific number of times during the year, not to exceed a certain number and the contractor invoices for the specific number of lawn mowing occurrences and at the end of the firm fixed priced contract, any number of lawn mowing not used would be deobligated or contract modification to add more? Or any service really? Number of occurrences billed as used? Would this still be a firm fixed priced contract?
Currently writing a PWS for Grounds Maintenance and a discussion regarding description of service where the grass should not exceed a specific height to determine when the next mowing should occur or once a week between certain months and if not needed due to grass height the COR would notify the contractor not to mow.  My argument is in a Firm Fixed Price environment you state not to exceed height and thus is the risk with FFP if the contractor quotes too little (also looked at during evaluations and/or negotiations) vs the Government accepting the service with too many.  Opposing argument  set a not to exceed line item number and if mowing occurrences are not used the contract line item would be deobligated or modified if more are needed.

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

What your scenario describes is essentially an Indefinite Delivery, Indefinite Quantity contract; yes you could structure it that way.  A contractor may be willing to accept that contractual arrangement for grounds maintenance, but the structure introduces a level of price uncertainty.  Contractors will not be willing to invoice at the end of the period of performance.  The contractor will still want monthly payment or payment after each cut.  After signing, rather than knowing what cash flow I (the contractor) have over the period of performance, I now see the possibility of not doing/not being paid for the projected amount of work anticipated.  Competition may keep me from pricing that in.  If the offerors price that in, the overall price goes up to capture potential lost revenue.  If the offerors do not price it in because of competition, we could see the need (from the contractor's perspective) to spend less to recoup lost profit.

 

You now have more administrative tasks, the main addition is that now the government (COR) decides when the mowing needs to be done.  The CO/COR needs to transmit a letter of direction.

We believe your unit probably has good history of how many cuts are used on average over the course of a year to have a very good idea of an appropriate numbers of cuts such that the +/- is reasonably distributed between government and contractor.

 

Posted507069/8/2021 12:15 PM
EMMETT SIMMONSContracting
19638
  
DAU132560005519/7/2021
Contracting
Where is it in writing that the contractor has 30 days to provide the Contracting Officer their CAP and that the Contracting Officer has 15 days to approve or decline the CAP and once the CAP is approved the contractor has 45 day to implement their new procedures?
After an PMSA is completed and the Contracting Officer has found the the contractors systems inadequate the contractor has X amount of time to provide the Contracting Officer their plan.

The relevant references for the DoD are DFARS 245.105; DFARS 252.245-7003; and DFARS PGI 245.105. Specifically,

The contractor has 45 days of receipt of the final determination to either correct the significant deficiencies or submit an acceptable corrective action plan showing milestones and actions to eliminate the significant deficiencies (DFARS 252.245-7003(e)).

The contracting officer, with the assistance of the auditor, shall monitor the contractor's progress in correcting deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the deficiencies (DFARS PGI 245.105(d)(3)(ii)(A)). There is no specified timeframe for these activities, but it is in the Government’s best interest to promptly notify the contractor that its CAP would not make adequate progress to correct the deficiencies and take appropriate actions.

DFARS 242.7000 and DFARS 252.242-7005, Contractor Business Systems contains additional guidance if the contract is CAS covered with respect to withholdings as they relate to the contractor submitting an acceptable corrective action plan and maintaining milestones.

Posted507029/8/2021 3:41 PM
EMMETT SIMMONSContracting
19635
  
DAU132560005519/6/2021
Program Management
the question i have is do i have to do a full MS-B to MS-C for the next gen system if the requirements from the CDD have not changed? essentially by pulling technology to the left we are meeting some of the requirements that we could not meet in the CDD previously
the program i'm working on is going to MS-C in FY23.  the system we will field will be produced and fielded from 2023-2028.  then a new open system sensor will be required from 2028-2037. from 2022-2027 there will be a S&T work done and product maturation done.

In general, "no", if CDD requirements have not changed and if the changes to the fielded system are not radical (as in this case of a new open system sensor), most Milestone Decision Authorities/Decision Authorities will not require a repeat of the entire MS-B/MS-C process. However, the final decision will be made by the MDA/DA. But the MDA/DA will most likely depend strongly on the recommendation of the Program Manager who should recommend skipping the Engineering and Manufacturing Development (E&MD) phase (between MS-B and MS-C) for this change. 

Posted506729/7/2021 7:11 AM
EMMETT SIMMONSProgram Management
19631
  
DAU132560005519/2/2021
Contracting
Situation: We have a multiple award task order under our own Basic IDIQ (not another agency’s), The FOPR was submitted to all Prime contractors under the IDIQ, however only one proposal was received. The FOPR included evaluation criteria based on the ordering procedures of the IDIQ (not specific criteria), it also did not include any deviations from the terms and conditions of the basic IDIQ. We are aware we have no APC and certified cost and pricing data will be required, however, would the task order still be considered “competitive” therefore not requiring business and/or contract clearance? Research: SUBPART 5301.90 – CLEARANCE - 5301.9000 Scope and Definitions: (b) Excluded from business or contract clearances are: (6) Competitive order solicitations and orders issued in accordance with FAR 8.4, 13, or 16.5 and against existing MAC ID/IQ, GWACs, and FSS contracts if they do not require either one or both of the following: 1)Establishment of specific criteria for the evaluation of proposals and selection of the awardee for the order; 2)Addition of any terms or conditions that are not included in the basic ID/IQ contract, and/or changes to the existing terms or conditions of the basic ID/IQ contract. Fair Opportunity Guide 16.505 states: Description: IAW AFFARS 5301.9000(b)(6), competitive order solicitations and orders issued in accordance with FAR 8.4, 13, or 16.5 and against existing MAC ID/IQ, GWACs, and FSS contracts in accordance with the terms and conditions and ordering procedures of the basic contract are excluded from business or contract clearance. If the TO/DO is not in accordance with the terms and conditions and ordering procedures of the basic contract, then business/contract clearance would be required. Our FOPR stated: (2) Awardee selection process for all subsequent Task Orders under the contract: (i) Task Orders will be awarded on a fair opportunity basis pursuant to Federal Acquisition Regulation (FAR) 16.505 ordering procedures, the terms and conditions of the basic contracts, and the specific requirements outlined in the Fair Opportunity Proposal Request (FOPR). Orders placed under FAR 16.505 Indefinite-Delivery Indefinite-Quantity (IDIQ) contracts are not source selections and are not subject to FAR 15.3 procedures. Unless a Task Order requirement meets one of the exemptions listed in FAR 16.505 (b)(2), it will be considered a competitive requirement.
Situation:
We have a multiple award task order under our own Basic IDIQ (not another agency’s), The FOPR was submitted to all Prime contractors under the IDIQ, however only one proposal was received.  The FOPR included evaluation criteria based on the ordering procedures of the IDIQ (not specific criteria), it also did not include any deviations from the terms and conditions of the basic IDIQ.  We are aware we have no APC and certified cost and pricing data will be required, however, would the task order still be considered “competitive” therefore not requiring business and/or contract clearance?

Research:

SUBPART 5301.90 – CLEARANCE  - 5301.9000 Scope and Definitions:
(b) Excluded from business or contract clearances are:
(6) Competitive order solicitations and orders issued in accordance with FAR 8.4, 13, or 16.5 and against existing MAC ID/IQ, GWACs, and FSS contracts if they do not require either one or both of the following:
1)Establishment of specific criteria for the evaluation of proposals and selection of the awardee for the order;
2)Addition of any terms or conditions that are not included in the basic ID/IQ contract, and/or changes to the existing terms or conditions of the basic ID/IQ contract.

Fair Opportunity Guide 16.505 states:
Description: IAW AFFARS 5301.9000(b)(6), competitive order solicitations and orders issued in accordance with FAR 8.4, 13, or 16.5 and against existing MAC ID/IQ, GWACs, and FSS contracts in accordance with the terms and conditions and ordering procedures of the basic contract are excluded from business or contract clearance.  If the TO/DO is not in accordance with the terms and conditions and ordering procedures of the basic contract, then business/contract clearance would be required.

Our FOPR stated:
(2) Awardee selection process for all subsequent Task Orders under the contract: (i) Task Orders will be awarded on a fair opportunity basis pursuant to Federal Acquisition Regulation (FAR) 16.505 ordering procedures, the terms and conditions of the basic contracts, and the specific requirements outlined in the Fair Opportunity Proposal Request (FOPR). Orders placed under FAR 16.505 Indefinite-Delivery Indefinite-Quantity (IDIQ) contracts are not source selections and are not subject to FAR 15.3 procedures. Unless a Task Order requirement meets one of the exemptions listed in FAR 16.505 (b)(2), it will be considered a competitive requirement.

This response is based on the information provided.  We suggest you discuss with your contracting policy unit and/or legal department as appropriate. 

 

You did some solid research.  We reviewed the FAR/DFARS/DFARS PGI/AFFARS for this reply. 

You solicited under competitive conditions.  Given you received only one proposal, you will need certified cost and pricing data as you noted.  Your question is, "Under this circumstance, do we need to go through a Business Clearance?"  You cite AFFARS 5301.9000(b)(6).  We believe that AFFARS 5301.9000(c) is also instructive.  If you will need to enter negotiations, we believe you may need a Business Clearance approval.  If you get the certified cost and pricing data and do not need to enter negotiations, the clearance may not be necessary.

The simplest way to resolve this issue is to contact the office of the Business Clearance Authority for its interpretation given your specific circumstances.

Posted506969/3/2021 7:38 AM
EMMETT SIMMONSContracting
19632
  
DAU132560005519/2/2021
Contracting
Can the ACO reduce a PBP payment request based on the contractor being delinquent on contractual deliveries.
Contractor is delinquent on contract deliveries.  The Contractor has not incurred enough costs to be up-to-date on milestone payment requests.  This is August and they have just incurred enough cost to request the March milestone.  In their PBP payment for August, they included the payment request for August, but immediately followed it with a negative amount of equal value (because they have not incurred enough costs to actually request it).  This is happening repeatedly with this contractor.  They were delinquent seven deliveries for the previous month (July) and the ACO wishes to reduce the PBP request for the value of the late deliveries (which exceed the amount being requested on the PBP).  Because the PBP request is for a milestone 5 months prior, can the ACO do this?

A final rule entitled, Performance-Based Payments (DFARS Case 2019-D002), published in the Federal Register on April 8, 2020, made changes to DoD’s policy as it relates to performance based payments (PBPs) which I think sheds some light on the answer to your question.  The National Defense Authorization Act for Fiscal Year 2017, Section 831 amended 10 U.S.C. 2307 by adding paragraph (b)(2), which provides that performance-based payments SHALL NOT be conditioned upon costs incurred in contract performance but only on the achievement of negotiated performance outcomes.  As a result of the final rule, the restrictions were removed at DFARS 232.1001(a) and paragraph (b)(i) of the clauses at DFARS 252.232-7012 and 252.232-7013 that limited PBPs to amounts not greater than costs incurred up to the time of payment.  Due to the statute and consequently the DFARS policy change, I think that withholding a performance based payment for cost incurred (or lack thereof) would violate the new policy.  The final rule makes clear that the PBPs should be tied to the achievement of specific, measurable events or accomplishments that are defined and valued in advance by the parties to the contract.  In other words, a PBP should only be withheld when (and only when) a milestone event is not successfully completed by the contractor (the payment, however, can be made as soon as the contractor successfully completes the event).  On the other hand, payments should not be withheld because the contractor is incurring costs at a faster(or slower) than expected rate.  The FAR limitation that that total PBPs cannot exceed 90 percent of the contract price does still apply though. 

Furthermore, I don’t advise making a reduction to a PBP because of a late delivery by the contractor.  Once again, PBP are supposed to be based solely on meeting or not meeting the completion criteria of a milestone event.  PBPs are NOT delivery payments (in fact, they are payments in advance of deliveries).  Performance-based events, therefore, should NOT be tied to deliveries on the contract.  Additionally, a contractor is normally paid the entire amount of the PBP or nothing at all.  For instance, if the contractor fails to meet the completion criteria for an event, the contractor does not get paid anything for that event until they do successfully complete it at which time they would get paid the entire PBP value in accordance the PBP schedule in the contract.  Making a partial (or reduced) performance-based payment, I think would require a restructure/re-negotiation of the payment schedule in the contract. 

In reading the final rule, I found one industry comment which I thought was interesting.  The comment and response read as follows:

Comment: One respondent recommended guidance to contracting officers that a slightly positive cash flow is acceptable and encouraged, since it further incentivizes performance. Another respondent when addressing training also noted that limiting reasonable cash flow to contractors may result in deferring expenditures, which could result in late delivery.

Response: FAR 32.1004(b)(2)(i) states that performance-based payments shall reflect prudent contract financing provided only to the extent needed for contract performance, and FAR 32.1004(b)(3)(ii) states that the contracting officer shall ensure that performance-based payment amounts are commensurate with the value of the performance event or performance criterion and are not expected to result in an unreasonably low or negative level of contractor investment in the contract. DoD is not trying to limit reasonable cash flow with this rule as it does not differ from FAR 32.1004 (b)(2)(ii) which limits contract financing to 90% of price. Any training provided will be done so in accordance with the rules in the FAR and DFARS.

As pointed out in the response, DoD does not want to limit reasonable cash flow to the extent it causes a contractor to defer expenditures which could result in late delivery.  

Bottom line: I would not advise reducing or deducting the contractor’s PBP based on cost incurred or because the contractor was late on one or more deliveries (assuming of course they earned the payment based on meeting the completion criteria for the event).  Taking such an action, in my opinion, would be inconsistent with  10 U.S.C. 2307 (b)(2) and DFARS 232.1001(a) and could expose the government to unintended risks.  Moreover, a decision to make a performance-based payment or not to the contractor is normally a binary action – it’s all or nothing.  Either they earned the entire PBP value, or they didn’t.  The most feasible remedy available to the Government is termination for default (FAR 49.402 ).  FAR 49.402-1 -- The Government’s Right, states the following: “Under contracts containing the Default clause at 52.249-8, the Government has the right … to terminate the contract completely or partially for default if the contractor fails to--

(a) Make delivery of the supplies or perform the services within the time specified in the contract.”

On the other hand, the Government could choose to accept the items that were delivered late, but, in doing so, should expect to get some type of consideration due to the contractor being late (e.g. a deduction to delivery payment(s) or additional quantities or services). 

For additional information on the subject, I recommend reviewing the DAU Continuing Learning Course (CLC 026), Performance Based Payment Overview, the DoD Performance Based Payment Guide, and Guide for Performance Based Service Acquisitions.  The PBP analysis tool is also on the DPC website in the Cost, Pricing & Finance section, Performance Based Payments—Guide Book & Analysis Tool tab, at http://www.acq.osd.mil/​dpap/​cpic/​cp/​Performance_​based_​payments.html.  I would also take a look at DFARS 232.1004 with regard to establishment of  performance-based finance payment amounts  Finally, we always recommend consulting with your local contracting chain of command and legal office before taking action.

 

 

 

 

Posted506999/3/2021 11:03 AM
EMMETT SIMMONSContracting
19633
  
DAU132560005519/2/2021
Contracting
What is a planned mod and how is it different from an option? Where are planned mods authorized? I don't see any reference to them in the FAR or DFARS. Thank you!
I've come across references to "planned modifications" in contacts, often for things like FFE.  I've never seen a "planned modification" before.

This is an interesting question. We can only surmise that must be some type of local vernacular or lexicon.  Because, as you stated, the term is not defined anywhere in the FAR, DFARS or any other acquisition of procurement regulation or guidebook. When the FAR or DFARS or other statutory or regulatory documents do not define a word or term we resort to the common dictionary definition. In this case I'll use Merriam-Webster, "planned" means: to have in mind, intend, to have a specified intention, to devise or project the realization or achievement of.

It's likely the term is used for situations when it is known that a modification will be required. Examples of such a scenario could include: exercising an option (again, as you stated), modifying a contract to add an award fee earned by the contractor, modifying a contract to incorporate an updated wage determination within the required time frame, etc., etc.

Posted507059/3/2021 12:29 PM
EMMETT SIMMONSContracting
19634
  
DAU132560005519/2/2021
Contracting
Can the ACO reduce a PBP payment request based on the contractor being delinquent on contractual deliveries.
Contractor is delinquent on contract deliveries.  The Contractor has not incurred enough costs to be up-to-date on milestone payment requests.  This is August and they have just incurred enough cost to request the March milestone.  In their PBP payment for August, they included the payment request for August, but immediately followed it with a negative amount of equal value (because they have not incurred enough costs to actually request it).  This is happening repeatedly with this contractor.  They were delinquent seven deliveries for the previous month (July) and the ACO wishes to reduce the PBP request for the value of the late deliveries (which exceed the amount being requested on the PBP).  Because the PBP request is for a milestone 5 months prior, can the ACO do this?

FAR 52.232-32 Performance-Based Payments, paragraph (e) permits reduction or suspension of performance-based payments as follows:

           (1) The Contractor failed to comply with any material requirement of this contract (which includes paragraphs (h) and (i) of this clause).

           (2) Performance of this contract is endangered by the Contractor’s-

                (i) Failure to make progress; or

                (ii) Unsatisfactory financial condition.

           (3) The Contractor is delinquent in payment of any subcontractor or supplier under this contract in the ordinary course of business.

However, in your situation based on the AAP background information, I’m not sure that a suspension or reduction of payment pursuant to FAR 52.232-32 is appropriate.  DFARS Case 2019-D002 Performance-Based Payments, April 8, 2020, drove a recent change to DFARS policy which helps shed light on the issue.  The National Defense Authorization Act for Fiscal Year 2017, Section 831 amended 10 U.S.C. 2307 by adding paragraph (b)(2), which provides that performance-based payments (PBPs) SHALL NOT be conditioned upon costs incurred in contract performance but only on the achievement of negotiated performance outcomes.  As a result of this change, the restrictions were removed at DFARS 232.1001(a) and paragraph (b)(i) of the clauses at DFARS 252.232-7012 and 252.232-7013 that limited PBPs to amounts not greater than costs incurred up to the time of payment.  Therefore, reduction or suspension of PBPs for cost incurred (or lack thereof) would violate the new policy in addition to not fitting any of the criteria in 52.232-32(e).  Additionally, the final rule reiterated the well-known precept that PBPs should be tied to the achievement of specific, measurable events or accomplishments that are defined and valued in advance by the parties to the contract.  In other words, payment or nonpayment of a PBP should be based on completion or non-completion of the milestone event.  Also, when the contractor finally completes the event, they should still get paid the full value of the event despite being late.  Unless endangering contract performance (or delinquent paying subs), the rate at which the contractor is incurring costs (regardless of whether it’s faster or slower than expected) should have no bearing on the payment for a PBP event.  The determining factor should be whether or not the contractor meets all of the completion criteria for the PBP event.  The FAR limitation that total PBPs cannot exceed 90 percent of the contract price still applies however. 

On the other hand, the contractor being late for one or more deliveries is considered grounds for termination for default, which means it should also be grounds for invoking FAR 52.232-32(e), in which case a reduction or suspension would be an appropriate action to take.  However, from the background information provided, I get the impression the Government is willing to accept or has already accepted late deliveries which makes it difficult to then tell the contractor they are endangering performance.  Therefore, I would be hesitant to make a reduction or suspension to a PBP on this basis (late deliveries).  Once again, PBP are supposed to be based solely on meeting or not meeting the completion criteria of a milestone event.  Also, PBPs are NOT delivery payments (in fact, they are payments in advance of deliveries) and  are NOT normally tied to deliveries on the contract.  Additionally, a contractor is normally paid the entire amount of the PBP or nothing at all.  And, finally, I think it would be a high bar to make the case for invoking FAR 52.232-32(e) if the Government has accepted late deliveries from the contractor unless perhaps a cure notice and/or  show cause notice has been issued at the same time.

In reading the final rule, I found one industry comment which I thought was interesting.  The comment and response read as follows:

Comment: One respondent recommended guidance to contracting officers that a slightly positive cash flow is acceptable and encouraged, since it further incentivizes performance. Another respondent when addressing training also noted that limiting reasonable cash flow to contractors may result in deferring expenditures, which could result in late delivery.

Response: FAR 32.1004(b)(2)(i) states that performance-based payments shall reflect prudent contract financing provided only to the extent needed for contract performance, and FAR 32.1004(b)(3)(ii) states that the contracting officer shall ensure that performance-based payment amounts are commensurate with the value of the performance event or performance criterion and are not expected to result in an unreasonably low or negative level of contractor investment in the contract. DoD is not trying to limit reasonable cash flow with this rule as it does not differ from FAR 32.1004 (b)(2)(ii) which limits contract financing to 90% of price. Any training provided will be done so in accordance with the rules in the FAR and DFARS.

As pointed out in the response, DoD wants to avoid limiting reasonable cash flow particularly to the extent it could cause a contractor to defer expenditures or could result in late delivery.  

Bottom line: I would not advise reducing or suspending the contractor’s PBP based on cost incurred or because the contractor was late on one or more deliveries unless the Government has already begun the termination process by issuing a cure notice and/or show cause notice.  Taking such an action, in my opinion, would be inconsistent with  10 U.S.C. 2307 (b)(2) and DFARS 232.1001(a) and could expose the government to unintended risks such as causing the contractor to defer expenditures making them even more late.  Moreover, a decision to make a performance-based payment or not to the contractor is normally a binary action – it’s all or nothing.  Either they earned the entire PBP value, or they didn’t.  The most feasible remedy available to the Government is termination for default (FAR 49.402 ).  FAR 49.402-1 -- The Government’s Right, states the following: “Under contracts containing the Default clause at 52.249-8, the Government has the right … to terminate the contract completely or partially for default if the contractor fails to--

(a) Make delivery of the supplies or perform the services within the time specified in the contract.”

Furthermore, if the Government decides to accept late deliveries, you should get consideration such as a reduction to delivery payment(s) or additional quantities or services or something else of value to the Government. 

For additional information on the subject, I recommend reviewing the DAU Continuing Learning Course (CLC 026), Performance Based Payment Overview, the DoD Performance Based Payment Guide, and Guide for Performance Based Service Acquisitions.  The PBP analysis tool is also on the DPC website in the Cost, Pricing & Finance section, Performance Based Payments—Guide Book & Analysis Tool tab, at http://www.acq.osd.mil/​dpap/​cpic/​cp/​Performance_​based_​payments.html.  I would also take a look at DFARS 232.1004 with regard to establishment of  performance-based finance payment amounts  Finally, we always recommend consulting with your local contracting chain of command and legal office before taking action.

 

Posted506999/3/2021 3:03 PM
EMMETT SIMMONSContracting
19629
  
DAU132560005519/1/2021
Contracting
Where is it in writing that the contractor has 30 days to provide the Contracting Officer their CAP and that the Contracting Officer has 15 days to approve or decline the CAP and once the CAP is approved the contractor has 45 day to implement their new procedures?
After an PMSA is completed and the Contracting Officer has found the the contractors systems inadequate the contractor has X amount of time to provide the Contracting Officer their plan.

The relevant timeframes are contained in para. (d) of the clause at DFARS 252.245-7003 (Contractor Property Management System Administration). Of course, if a different version of the clause is contained in the contract, the timeframes therein would apply instead.

Taken for Edit507029/8/2021 12:07 PM
EMMETT SIMMONSContracting
19630
  
DAU132560005519/1/2021
Contracting
What verbiage can be included to legally prevent 3rd Party vendors from participating in solicitations?
Historically, third party vendors generate a lot of customer complaints

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

First we want to define 3rd Party Vendor.  This question relates to creating solicitations for hotel/conference services.  A 3rd Party Vendor as used for this question refers to an offeror/bidder that is not the hotel/hotel chain itself but an independent contractor that after award contracts with a hotel to provide the required services. 

The language of a solicitation can require that the contractor have a physical presence at the function.  This is not an unreasonable expectation and not unduly restrictive.  We would suggest the language speak to the physical presence rather than a response time.  Any offeror can agree to a 30 minute response time (or whatever timeframe) and you will only be able to react after the fact (after award/missed performance).

 

Posted506899/2/2021 12:46 PM
EMMETT SIMMONSContracting
19627
  
DAU132560005518/31/2021
Contracting
Can the government purchase card be use to purchase color patches for drill and ceremony purposes?
Unit request Colored Patches

Thank you for the question. The answer to this question will be dependent on the policy contained in your service's or agency's GPC instruction or regulation. It is recommended to check with your Service or Agency/Organization Program Coordinator (A/OPC) who should be familiar with that policy. 

Posted506989/1/2021 3:19 PM
EMMETT SIMMONSContracting
19628
  
DAU132560005518/31/2021
Program Management; Engineering and Technical Management
Does the DODI 5000 ever clearly state or define FOC? Can the MDA declare a product is FOC? Can FOC be declared by the PM even though the CDD/ORD is not completing requirement? Require references that provide examples for who declares FOC, is it Material Developer, Capability Developer, both or is there an outside person that would do that?
Current program's MDA is directing PM to declare FOC based on program being in place for numerous years and APB extensions.

Reference is the JCIDS manual.  It discusses FOC in the description of Section 4 Program Summary as a definition coordinated between the Sponsor and the Acquisition Community [RM/PM.]  Section 13. Program Affordability shows FOC on the table built for that section.  The section on JROC tripwire reviews also provides for review when the IOC/FOC dates are more than 12 months from those documented in the JROCM.

 

Posted506879/1/2021 3:23 PM
EMMETT SIMMONSProgram Management; Engineering and Technical Management
19625
  
DAU132560005518/29/2021
Contracting
My questions are: 1. Do we need to demand a reimbursement from Contractor for the overpayment done considering it was the contracting office mistake when issuing the contract and paying the contractor? 2. does it matter if it is an old contract that was completed 4 to 5 years ago? 3. Do we have to request reimbursement for difference of bonds paid from estimated even though the contract was issued under one single CLIN? 4. If yes to number 3, can we request reimbursement from contractor without the Executed amount paid receipt? (applicable to some contracts, not all) 5. Is it worth the time to fight for a reimbursement of excess funds paid that clearly, the KO and CS failed to identify and it happened long time ago. 6. Can we type an MFR instead of fighting for funds? any questions please let me know. I been searching the FAR and I have not been able to find any concrete answers. I am desperate to solve these issues. Phone 785-806-7187. Fully teleworking right now.
I was designated to closeout several FIRM FIXED PRICE contracts from FY2017 & FY2018. After the audit, it was found:
1. Contract was awarded with the wrong amount. the amount awarded was higher than the final proposal amount accepted.
2. The contract did not have a cost breakdown of CLINs. The cost of project and estimated Bond was on the same CLIN.
3. Contractor invoiced more than the proposal amount. Invoices were fully paid
4. Executed amount paid to the surety was less than estimated amount. Difference was not deobligated.
5. contractor never told the KO of discrepancy when contract was issued.

Answer:

We spoke to the customer to get clarity on several issues (A - G) and provided answers to her questions (1-4):

A.          Contract was awarded for $73,000 when the lowest price technically acceptable offer was $72,892. There is no documentation on how or why this happened.

B.          The contractor never told the KO of discrepancy when contract was issued.

C.          The government estimate was $66,000. The government’s prenegotiation memorandum was for $73,000.

D.          The contract was completed in 2018 with no outstanding modifications or claims. However, the contractor did not execute a release of claims until April 21, 2021, after a discussion with the contract specialist assigned to close out the contract.

E.           The contract did not have a cost breakdown of CLINs. The cost of project and estimated bond was on the same CLIN. The contract specialist said that bonding is usually a separate CLIN for Air Force Reserve construction contracts.

F.           The total amount of the contractor’s invoices was $72,100. This was $900 less than the contract price. All invoices were fully paid.

G.          Executed amount paid to the surety was less than estimated amount. Difference was not deobligated.

1.           Do we need to demand a reimbursement from Contractor for the overpayment done considering it was the contracting office mistake when issuing the contract and paying the contractor?

The assertion that the contracting officer made a mistake when issuing the contract and paying the contract may not be correct. There is a clear difference between a proposal and a contract award.

The proposal is an offer (a.k.a. a bid) to do work within a period of time for a specified price. There are a number of different reasons why the proposal may be different from the actual contract price. Were there terms and conditions not known at the time and an estimate provided to add to the proposal in the event work was performed in a particular location for example? Were there negotiations that took place that resulted in a change in the terms and conditions, which resulted in an adjustment to a proposed amount?

Nevertheless, the contract contains the binding terms and conditions between the parties. The awarded contract price is based on a proposal but the proposal is not the contract. The contract is considered binding when it has been:

Attained by mutual assent and with a certainty of terms; with adequate consideration; executed by an official with proper authority (a.k.a. by a contracting officer having the proper warrant amount) and entered into for a legal purpose.

It is stated that the contractor invoice amounts were more than the proposal amount but it does not follow that the invoices paid were based on amounts greater than the contract amount. Payment of an invoice occurs after an acknowledgment that supplies, services or construction were received and accepted. It is likely that the invoices were accepted by someone other than the contracting officer (e.g. a COR). Therefore, it cannot be said that there was an “overpayment”. Particularly if the payment made on the invoice reflects the amounts authorized by the contract for services or supplies that were likewise authorized according to the contract.

Since this is a FFP contract, FAR 52.232-5 Payments Under Fixed-Price Construction Contracts would be included. See paragraph (a) Payment of price. The Government shall pay the Contractor the contract price as provided in this contract. Also see paragraph (g) Reimbursement for bond premiums. Note that nothing in this clause prohibits profit to be included on bond premiums; which could account for the difference in payment of the bond(s).

Since this is a construction contract, the applicable bond subsection is FAR 28.102-2 Amount Required. Again, paragraph (a) provides a definition for contract price, which is: “Original contract price means the award price of the contract; or, for requirements contracts, the price payable for the estimated total quantity; or, for indefinite-quantity contracts, the price payable for the specified minimum quantity. Original contract price does not include the price of any options, except those options exercised at the time of contract award.” Again, nothing in this clause limits reimbursement of bond premiums to their cost only.

2.           Does it matter if this contract was completed in 2018?

If, for some reason, there were a belief that the contractor was overpaid then you would reach out to the Contracting Officer and legal and determine whether there should be a claim made against the contractor. There is a statute of limitations for claims and this time period is six years from the date of the basis of the claim. 28 U.S.C. sec. 2501. When were these payments made? In other words, reach out to your legal and have them help you determine if there is a claim and if so for how much and whether the action brought would be timely.

3.           Do we have to request reimbursement for difference of bonds paid from estimated even though the contract was issued under one single CLIN?

An estimate is a guess. It is a rough calculation. This was a firm-fixed-price contract so the amount that would be paid is the FFP CLIN price. What went into the contract price should have been documented somewhere in the contract file. It sounds like what went into that FFP CLIN price is the actual bond payment amount and the price for the work performed.

Typically, with competitive FFP construction contracts bonds are their own separate CLIN and most offerors propose reimbursement of bond premiums at cost only in order to be more competitive. But nothing (any other provision or clause or other contract term and condition) limits offerors to only be reimbursed for bond premium costs.

4.           A determination of whether there were any excess amounts paid to the contractor would need to be made first before it can be determined if the amount is worth the hassle of pursuing reimbursement. This determination would involve your contracting officer and legal. Any decision would be followed up in writing and your file should be adequately documented.

Posted506858/30/2021 7:09 AM
EMMETT SIMMONSContracting
19626
  
DAU132560005518/29/2021
Contracting
Trying to see if there is a clause that covers the above. AFFARs MP5301.602-2(d) speaks about it but i cannot find a clause
Is there a clause for the following:  5.2.1.4 Contractor Manpower Reporting
In accordance with Section 8108 of Public Law 112-10 of the Department of Defense and Full-Year Continuing Appropriations Action, 2011. 

5.2.1.5.2    Reporting
The contractor shall report ALL labor hours required for performance of services provided under this contract via the secure Enterprise-wide Contractor Manpower Reporting Application (eCMRA) data collection site. The contractor is required to completely fill in all required data fields at: http://www.ecmra.mil. Reporting inputs shall be for the labor executed during the period of performance for each government fiscal year (FY), which runs 1 October through 30 September. While inputs may be reported anytime during the FY, all data shall be reported no later than 31 October of each calendar year. The contractor may direct questions to the CMRA help desk. The prime contractor is responsible to ensure all subcontractor data is reported.  Contracted services excluded from reporting are based on Product Service Codes (PSCs).  The excluded PSCs are:
(1) W, Lease/Rental of Equipment;
(2) X, Lease/Rental of Facilities;
(3) Y, Construction of Structures and Facilities;
(4) S, Utilities ONLY;
(5) V, Freight and Shipping ONLY

5.2.1.5.3 Uses and Safeguarding of Information
Information from the secure web site is considered proprietary in nature when the contractor number and the contractor identity are associated with the direct labor hours and direct labor dollars.  At no time will any data be released to the public with the contractor name and contract number associated with the data.

5.2.1.5.4 User Manual
Data for the AF services requirements must be input at the AF CMRA link.  However, user manuals for government personnel and contractors are available at the U.S. Army CMRA link at http://www.ecmra.mil.

5.2.1.5.5 Subcontractor Input in CMRA
Prime contractors are responsible to ensure all subcontractor data is reported.  Contact the AF CMRA helpdesk for further guidance and assistance. 

Excellent question. eCMRA was initially required in FY13 through a policy memo dated 28 Nov 2012, which required PWSs to be modified in service contracts by adding set language provided in the policy memo. This was rescinded in FY20 as of 16 Oct 2019 through another policy memo, which changed this requirement to have contractors report manpower data for service contracts in SAM. DFARS 204.1703 now states the reporting requirements for SAM and when applicable, the relevant clause is DFARS clause 252.204-7023 Reporting Requirements for Contracted Services. 

FY20 Revised DoD Contractor Manpower Reporting Initiative

From DFARS Case 2018-D063 in the Federal Register: DoD has elected to adopt the approach used by other Federal agencies to collect service contract data. The approach uses the Federal Procurement Data System (FPDS), an existing source of contract information for the Federal Government, to provide a majority of the information required by 10 U.S.C. 2330a. The data that is not available in FPDS is entered annually by the contractor in the System for Award Management (SAM). Adopting a Governmentwide approach to collecting service contract data reduces burden on both industry and DoD, improves data integrity and accuracy, and reforms DoD's business practices for greater performance and affordability.

Posted506948/30/2021 12:40 PM
EMMETT SIMMONSContracting
19624
  
DAU132560005518/24/2021
Contracting
Is a task order considered a contract? If a task order PoP expires, can the order be modified to extend the PoP?
A task order period of performance (PoP), issued in accordance with the scope of an IDIQ, expired before another task order could be placed. The IDIQ for this task order was awarded sole-source, and was within the first year of a five-year ordering period. A bilateral modification to extend the PoP was completed on the task order 2 months after the original PoP had passed.

Yes, a task order is a type of contract. Task orders are essentially "mini contracts" that are governed by the terms and conditions of the parent IDIQ. If the IDIQ had been competitively awarded, there could be an issue of prejudice to other offerors by restricting competition with the PoP extension. However, that's not the case here. If both parties agreed to extend the PoP, I don't see a problem. I recommend that you consult with your activity's legal counsel for concurrence.

Posted506808/25/2021 7:38 AM
EMMETT SIMMONSContracting
19623
  
DAU132560005518/22/2021
Program Management
Is there a recommended course for AUMs offered by DAU?
Considering that our organization intends to implement an MICP and I will be the program manager, how should I go about telling the designated assessable unit managers for the various directorates in our organization how to conduct a risk assessment and set up an internal control system? 

I'm unaware of any course targeted specifically to assessable unit managers. However, the blog Managers' Internal Control Program contains quite a bit of useful information on the MICP, which AUMs will find beneficial.

Posted504218/23/2021 12:51 PM
EMMETT SIMMONSProgram Management
19622
  
DAU132560005518/19/2021
Contracting
Can a task Order be put in place for rental months that are not attached to an actual container rental when the task order is being cut? With a POP start date that is not the actual start date because the task order would be for future rentals there for the rental start date would not start when the task order is saying it would start.
FFP IDIQ Contract with 4 Option Years Container Rentals and Rental Months are requested through out the year on different task orders.

If you can come up with reasonable estimates of min and max container rentals and rental months, the best way to go is with a Multiple Award Task Order Contract (MATOC).  The FAR description and application follow immediately below:

__________________________________

"FAR 16.504 Indefinite-quantity contracts.

      (a) Description. An indefinite-quantity contract provides for an indefinite quantity, within stated limits, of supplies or services during a fixed period. The Government places orders for individual requirements. Quantity limits may be stated as number of units or as dollar values.

 

           (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 contractor must furnish any additional quantities, not to exceed the stated maximum. The contracting officer should establish a reasonable maximum quantity based on market research, trends on recent contracts for similar supplies or services, survey of potential users, or any other rational basis.

           (2) To ensure that the contract is binding, the minimum quantity must be more than a nominal quantity, but it should not exceed the amount that the Government is fairly certain to order.

           (3) The contract may also specify maximum or minimum quantities that the Government may order under each task or delivery order and the maximum that it may order during a specific period of time.

           (4) A solicitation and contract for an indefinite quantity must-

                (i) Specify the period of the contract, including the number of options and the period for which the Government may extend the contract under each option;

                (ii) Specify the total minimum and maximum quantity of supplies or services the Government will acquire under the contract;

 

                (iii) Include a statement of work, specifications, or other description, that reasonably describes the general scope, nature, complexity, and purpose of the supplies or services the Government will acquire under the contract in a manner that will enable a prospective offeror to decide whether to submit an offer;

                (iv) State the procedures that the Government will use in issuing orders, including the ordering media, and, if multiple awards may be made, state the procedures and selection criteria that the Government will use to provide awardees a fair opportunity to be considered for each order (see 16.505(b)(1));

                (v) Include a description of the activities authorized to issue orders; and

                (vi) Include authorization for placing oral orders, if appropriate, provided that the Government has established procedures for obligating funds and that oral orders are confirmed in writing.

      (b) Application. Contracting officers may use an indefinite-quantity contract when the Government cannot predetermine, above a specified minimum, the precise quantities of supplies or services that the Government will require during the contract period, and it is inadvisable for the Government to commit itself for more than a minimum quantity. The contracting officer should use an indefinite-quantity contract only when a recurring need is anticipated...."

____________________________________

 

 

You would not necessarily have to award a Task Order immediately, so long as you order the minimum required amount during the ordering period.  If you do end up awarding MATOCs, be mindful of the Fair Opportunity requirements as described at FAR 16.504(c) and DFARS 216.504(c).

 

 

If you cannot estimate reasonable min and max amounts, you may want to try a Requirements contract.  The downside of this type of contract is that you are limited to one source - the awardee.

Immediately following is the FAR Description and Application for Requirements contracts.

_____________________________________________

"Far 16.503 Requirements contracts.

      (a) Description. A requirements contract provides for filling all actual purchase requirements of designated Government activities for supplies or services during a specified contract period (from one contractor), with deliveries or performance to be scheduled by placing orders with the contractor.

           (1) For the information of offerors and contractors, the contracting officer shall state a realistic estimated total quantity in the solicitation and resulting contract. This estimate is not a representation to an offeror or contractor that the estimated quantity will be required or ordered, or that conditions affecting requirements will be stable or normal. The contracting officer may obtain the estimate from records of previous requirements and consumption, or by other means, and should base the estimate on the most current information available.

           (2) The contract shall state, if feasible, the maximum limit of the contractor’s obligation to deliver and the Government’s obligation to order. The contract may also specify maximum or minimum quantities that the Government may order under each individual order and the maximum that it may order during a specified period of time.

      (b) Application. (1) A requirements contract may be appropriate for acquiring any supplies or services when the Government anticipates recurring requirements but cannot predetermine the precise quantities of supplies or services that designated Government activities will need during a definite period.

           (2) No requirements contract in an amount estimated to exceed $100 million (including all options) may be awarded to a single source unless a determination is executed in accordance with 16.504(c)(1)(ii)(D)..."

_______________________________________________

For a Requirements contract, you don't have to meet a minimum order.  The consideration to the contractor is that if a requirement comes up, they have exclusive rights to the award.  This probably doesn't offer much protection for your effort as it sounds like you will have requirements; you're just not exactly sure on amount and timing.

  If at all possible, try to come up with defendable minimums and maximums for the ordering periods.  The Government will only be on the hook for the minimum amounts.

As always, best to run an issue like this through your legal office.  Best of luck!

Posted506798/20/2021 10:32 AM
EMMETT SIMMONSContracting
19619
  
DAU132560005518/18/2021
Contracting
Is there a regulation for the requirement of an IGE in negotiated acquisitions, specifically modifications to a previously awarded contract?
Researching the requirement of an IGE. Most of the regulations imply IGE as a example of how to perform cost analysis.

FAR 15.404-1(b)(2) includes the IGCE as an example among proposal analysis techniques but does not specifically mandate it for price analysis. Likewise, FAR 15.404-1(c)(2)(iii) includes it as an example among cost analysis techniques but again, does not mandate it. Many (if not most) agencies require that purchase request submitters include an estimated unit price so contracting officers have the option to use it as a basis for price analysis. The same points here also apply to modification proposals.

Posted506758/19/2021 12:07 PM
EMMETT SIMMONSContracting
19620
  
DAU132560005518/18/2021
Contracting
Looking for samples of PWSs that includes telework language.
Telework language in a PWS

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate.

 

DAU does house contractual artifacts, templates, etc.  (Although we do have some examples of some artifacts we use in various courses.)

 

The PWS language you are looking for would be specific to your acquisition, service and location.  From the e-mail and location, you are likely at Montgomery AFB. SAF/AQC and AETC, if that is your command, may have guidance as to how to delineate telework procedures, protocols, and contractual responsibilities.

 

"Performance Work Statement - Federal Aviation Administration https://www.faa.gov › foia › DTFAAC-11-D-00023"

At paragraph 1.2.5.c (page 10 of 56) has some language that might help you get started

Posted506788/19/2021 4:14 PM
EMMETT SIMMONSContracting
19621
  
DAU132560005518/18/2021
Contracting
Where does it state in the FAR that the KTR must bill costs at the CLIN/ACRN level?
The KTR billed incorrectly against the wrong CLINs, now DFAS wants them to pay it back. The KTR was trying to bill for $10K that was owed to them.  They wanted to recoup the $10k by billing against CLINs that have a ULO but weren't meant to pay for the costs the KTR is trying to recoup.

I think the answer to your question is located in FAR Clause 52.232-25.  Specifically, paragraph (a)(3) reads as follows:

(3) Contractor's invoice. The Contractor shall prepare and submit invoices to the designated billing office specified in the contract. A proper invoice must include the items listed in paragraphs (a)(3)(i) through (a)(3)(x) of this clause. If the invoice does not comply with these requirements, the designated billing office will return it within 7 days after receipt (3 days for meat, meat food products, or fish; 5 days for perishable agricultural commodities, dairy products, edible fats or oils, and food products prepared from edible fats or oils), with the reasons why it is not a proper invoice. The Government will take into account untimely notification when computing any interest penalty owed the Contractor.

                (i) Name and address of the Contractor.

                (ii) Invoice date and invoice number. (The Contractor should date invoices as close as possible to the date of the mailing or transmission.)

                (iii) Contract number or other authorization for supplies delivered or services performed (including order number and line item number).

                (iv) Description, quantity, unit of measure, unit price, and extended price of supplies delivered or services performed.

                (v) Shipping and payment terms (e.g., shipment number and date of shipment, discount for prompt payment terms). Bill of lading number and weight of shipment will be shown for shipments on Government bills of lading.

                (vi) Name and address of Contractor official to whom payment is to be sent (must be the same as that in the contract or in a proper notice of assignment).

                (vii) Name (where practicable), title, phone number, and mailing address of person to notify in the event of a defective invoice.

                (viii) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

                (ix) Electronic funds transfer (EFT) banking information.

                     (A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

                     (B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision (e.g., 52.232-38, Submission of Electronic Funds Transfer Information with Offer), contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer-System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer-Other Than System for Award Management), or applicable agency procedures.

                     (C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

                (x) Any other information or documentation required by the contract (e.g., evidence of shipment).

Bottom line: According to the Prompt Payment Act clause, a proper invoice must include the line item number.

Posted506778/19/2021 4:19 PM
EMMETT SIMMONSContracting
19615
  
DAU132560005518/17/2021
Contracting
What provision of the FAR prohibits the submission of price or cost information in proposal technical volumes.
I've routinely seen Section L provisions instructing bidders not to submit any price or cost information with technical volumes.

There is no such FAR provision but there doesn't need to be. The contracting officer has the authority to specify how he/she would like proposals to be formatted, and what they should include. The idea is that the technical evaluation team should evaluate technical proposals without being influenced by any cost/price information.

Posted506738/18/2021 10:27 AM
EMMETT SIMMONSContracting
19616
  
DAU132560005518/17/2021
Business
Can procurement fund Weapons Systems Specifications (WSS)?
Conducting a presentation on policy research for my team and I have listed the DAU 'ask a professor' as a resource. My Supervisor gave me the question below to include in my presentation. Then have the research and end result within the presentation. This is a demonstration on how to use the 'ask a professor' function.

This response is based on the information provided.  We suggest you discuss with your Comptroller, contracting team, program manager and/or legal department as appropriate.

 

Based on the information provided, you have asked if the Procurement Appropriation can fund Weapons Systems Specifications.  The Financial Management Regulation (FMR) 7000.14-R Volume 2A Chapter 1 Paragraph 010201 discusses the distinction between expenses and investments.  Procurement is used to fund investments.  The FMR states: 

 

010201. Criteria for Determining Expense and Investment Costs

                A. Appropriation accounts form the structure for the President’s budget request and are the basis for congressional action. The appropriations are further organized into

                                budget activities of appropriations with programs, projects or activities of similar purposes. To support management of the Department of Defense’s programs, projects or activities,                                     resource requirements should be organized and categorized consistently within the appropriation and budget activity structure. The following sections provide guidance for categorizing                           resource requirements into the various appropriations.

 

                B. Basic Distinctions Between Expense and Investment Costs. The criteria for cost definitions consider the intrinsic or innate qualities of the item such as durability in the

                                case of an investment cost or consumability in the case of an operating cost and the conditional circumstances under which an item is used or the way it is managed. In all cases where the

                                definitions appear to conflict, the conditional circumstances will prevail. The following guidance is provided to determine whether a cost is either an expense or an investment. All costs

                                are classified as either an expense or an investment.

 

                                1. Expenses are the costs incurred to operate and maintain the organization, such as personal services, supplies, and utilities.

                              

                                2. Investments are the costs that result in the acquisition of, or an addition to, end items. These costs benefit future periods and generally are of a long-term

                                character such as real property and personal property.

 

The FMR 7000-14-R Volume 2A Chapter 1 Paragraph 010213 states:

 

010213. Research, Development, Test and Evaluation (RDT&E) - Definitions and Criteria

 

                A. Definitions. The term "research and development (R&D)" is intended broadly to include the work performed by a government agency or by private individuals or

                                organizations under a contractual or grant arrangement with the government. It includes R&D in all fields, including the physical sciences, engineering, etc.

 

                1. Research is systematic study directed toward fuller scientific knowledge or understanding of the subject studied.

 

                2. Development is systematic use of the knowledge and understanding gained from research, for the production of useful materials, devices, systems, or methods, including the design and development of                                   prototypes and processes.

 

                B. General Criteria. When, after consideration of the following criteria, there is doubt as to the proper assignment of costs between appropriations, the issue should be

                                resolved in favor of using RDT&E funding. In general, the types of costs to be financed by

 

                RDT&E and related appropriations are: 

              

                1. RDT&E Appropriations

              

                                a. RDT&E will finance research, development, test and evaluation efforts performed by contractors and government installations, including procurement

                                of end items, weapons, equipment, components, materials and services required for development of equipment, material, or computer application software; its Development Test and Evaluation

                                (DT&E); and its Operational Test and Evaluation (OT&E) as provided for in paragraph C.5. (Test Articles and Test Support) below.

 

                                b. The operation of R&D installations and activities engaged in the conduct of R&D programs, including direct and indirect efforts, expense and investment costs.

 

                                c. The acquisition or construction of industrial facilities costing less than $750,000 at government owned, government operated (GOGO) facilities under

                                the criteria of DoD Directive 4275.5 as provided for under 10 U.S.C. 2805 (unspecified minor construction). Use of RDT&E funds for acquisition and construction at contractor owned or

                                contractor operated government facilities is authorized under 10 U.S.C. 2353, Contracts; Acquisition, Construction, or Furnishings of Test Facilities and Equipment.

 

RDT&E Appropriation has both expense and investment items that can be purchased.  With this information, I then went to the OUSD Comptroller Website under the Budget Materials tab and located the USAF Budget Materials for FY 2022.  I looked through both the RDT&E Docs and the Procurement Docs to ascertain which appropriation normally funds the Weapons Systems Specifications.  My review revealed that the USAF normally uses RDT&E to fund Weapons Systems Specifications.  For the program office, this situation presents a great opportunity for all of the functional areas to discuss the different meanings and definitions to ensure the program requests the correct Appropriation to fund the efforts.

 

Posted506718/18/2021 10:34 AM
EMMETT SIMMONSBusiness
19617
  
DAU132560005518/17/2021
Test and Evaluation
Good Afternoon: I am a contractor supporting the Deputy Under Secretary of the Army for Test and Evaluation (DUSA-TE). Is there a definition for Modernization? I found a definition on DAU for Modification (below). I haven't been able to find a definition for Modernization. I see a lot about Modernization Strategy, but not a modernization definition similar to the one for modification. Thanks for any help with this question. Walter Diveley Modification: A configuration change to the form, fit, function, or interface (F3I) of an in-service, configuration-managed or produced Configuration Item (CI). Modifications are defined by their purpose. A capability modification alters the F3I in a manner that requires a change to the existing system, performance, or technical specification of the asset. Such modifications are accomplished to add a new capability or function to a system or component, or to enhance existing technical performance or operational effectiveness. A sustainment modification alters the F3I of an asset in a manner that does not change the existing system, performance, or technical specification of the asset. Such modifications correct product quality deficiencies, or to bring the asset in compliance with established technical or performance specification(s) associated with the asset. Sustainment modifications may improve the reliability, availability, maintainability, or supportability reduce its ownership costs.
This question involves the difference between T&E Infrastructure Modernization and T&E Infrastructure Modification. 

Attached and below are answers I received from SET professors.

https://comptroller.defense.gov/Portals/45/documents/fmr/Combined_Volume1-16.pdf

Page 8-5 Paragraph 080105. Definition of Sustainment and Restoration/Modernization sub paragraph C states:

 

C. Modernization means the alteration or replacement of facilities solely to implement new or higher standards, to accommodate new functions, or to replace building components that typically last more than 50 years (such as the framework or foundation)

Posted506748/18/2021 3:15 PM
EMMETT SIMMONSTest and Evaluation
19618
  
DAU132560005518/17/2021
Contracting
Can the GPC be used to purchase Insignias? If not, are there any other avenues to make the purchase?
The Aide-de-Camp is asking for a set of “Army Aide to Brigadier General Insignias” this a uniform item tied specifically to this position.

The DOD Government Charge Card guide book cites a list at DFARS PGI 208.7006 of items that can be purchased from DoD components responsible for providing the commodity.  As you scroll down the list, you can use a MIPR to purchase "badges and Insignias" from DLA.  If they are locally available, you can  purchase the Generals aide inignias with the GPC.  

However, be aware some services (i.e. USMC) make a distinction between identification badges available through the supply system (like a Master-At- Arms badge, military police, or command senior enlisted badges)  and Presdential service,  Joint Chiefs of Staff (JCS) or OSD badges, which are personal uniform items. The former can be purchased with the GPC, the latter cannot.  Check your services uniform regs for further clarification if needed.      

 

 

Posted506668/18/2021 3:17 PM
EMMETT SIMMONSContracting
19612
  
DAU132560005518/16/2021
Contracting
Question 1: When creating this CLIN through a modification, does this modification needs to be bilateral or (unilateral within the time limitations in the clause). My understanding is that it would be unilateral since this would be an extension of Services. Question 2: Its appropriate to create the CLIN for extension of services (if unilateral) and exercise that option to extend services in the same modification. Or would it be better to create an additional modification to exercise that option to extend services, afterwards? . Please advice. I highly appreciate your time and attention.
This is a Requirement Services Contract with 5 year Ordering Periods, with an included 52.217-8 Extension of Services Clause up to 6 months.  This contract will be expiring soon but due to incontrollable circumstances the new contract would not be in place until 3 months later.

We would need to extend the Services for 3 months; therefore, I need to create an additional CLIN to be able to execute the extension of services.

Question 1) your understanding is correct, FAR 52.217-8 gives the contracting officer the unilateral right to exercise the option as long as you are still within the notification period identified in the last sentence. See the clause below (with bold, italics, and underline added by me for emphasis):

52.217-8 Option to Extend Services.

As prescribed in 17.208(f), insert a clause substantially the same as the following:

Option to Extend Services (Nov 1999)

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. The Contracting Officer may exercise the option by written notice to the Contractor within _____ [insert the period of time within which the Contracting Officer may exercise the option]. (End of clause)

See also FAR 43.103(b)(3).

Question 2) if a new CLIN is needed to provide the funding for the additional performance that the clause authorizes; then it can also be part of unilateral modification which exercises the option. It does not have to be a separate and distinct modification.

Reminder: Make sure to follow all of the requirements at FAR 17.207, DFARS 217.207, and your Agency’s (USAF) supplement prior to exercising the option.

Posted506698/17/2021 7:10 AM
EMMETT SIMMONSContracting
19613
  
DAU132560005518/16/2021
Contracting
I need to write a work directive this week to put in writing what i want the contractor to do. Can you please tell me where on your website i can find some information on writing work directives .
I have an awarded contract.  I have CDRLs. 

The Statement of Work (SOW) should capture the tasks that the contractor has to perform under the contract. For service contracts, the Performance Work Statement (PWS) serves as the SOW and the scope of work should be performance-based to the maximum extent possible where the tasks are written by describing the scope in terms of the required results instead of telling the contractor how to perform. There is an optional handbook MIL-HDBK-245 that has served DoD well over the years with writing SOWs that may help you in this endeavor. The below website has the link for this optional handbook. 

https://www.dau.edu/cop/dm/dau%20sponsored%20documents/forms/reference.aspx

Posted506708/17/2021 1:53 PM
EMMETT SIMMONSContracting
19614
  
DAU132560005518/16/2021
Contracting
I am contemplating issuing a multiple award requirements contract for supplies (repair parts). Reading the FAR 16.503(a) above, does the one contractor in parenthesis mean that a Requirement Contract can only be issued to one contractor?
16.503 Requirements contracts.
      (a) Description. A requirements contract provides for filling all actual purchase requirements of designated Government activities for supplies or services during a specified contract period (from one contractor), with deliveries or performance to be scheduled by placing orders with the contractor.

The answer is yes and no.  The FAR does not specifically prohibit multiple-award requirements contracts, but there are some significant concerns with it.  The idea behind a requirements contract is to give the Government the flexibility to order specific supplies or services when we need them for the quantity needed without having to provide the contractor a minimum order guarantee.  In return, the contractor is guaranteed to get ALL of the Government's orders for these supplies or services (if and when a government need arises).  Therefore, in lieu of a minimum order guarantee, the Government promises to buy all of what it needs only from them.  Without this promise, the contract would lack “consideration” and, as a result, would not be a legally binding contract. 

The statutory multiple award preference establishes a preference for making multiple awards of indefinite-quantity contracts (See FAR 16.500).  An indefinite-quantity contract is not a requirements contract.  I think one important reason the multiple-award preference does not apply to requirements contracts is the “Fair Opportunity” procedures which must be followed when placing an order against multiple-award, indefinite-quantity contracts.  "Fair Opportunity" is intended to give each multiple award IDIQ contract holder a fair opportunity to compete for each and every order placed under the multiple-award contracts unless an exception applies (See FAR 16.505(b)).  Therefore, multiple-award requirements contracts based on “fair opportunity” would nullify the Governments promise to order whatever it needs from a particular contractor (which thus nullifies the “consideration”, a necessary element for contract formation).  

The one circumstance where the FAR does provide for the award of more than one requirements contract is if the acquisition involves a partial small business set-aside (See FAR 16.506(d)(4)).  In that case, the Contracting Officer would need to include FAR 52.216-21 Alternate III in the contract.  Alternate III reads as follows: " The Government’s requirements for each item or subitem of supplies or services described in the Schedule are being purchased through one non-set-aside contract and one set-aside contract. Therefore, the Government shall order from each Contractor approximately one-half of the total supplies or services specified in the Schedule that are required to be purchased by the specified Government activity or activities. The Government may choose between the set-aside Contractor and the non-set-aside Contractor in placing any particular order. However, the Government shall allocate successive orders, in accordance with its delivery requirements, to maintain as close a ratio as is reasonably practicable between the total quantities ordered from the two Contractors.”

However, I think it’s important to point out that FAR 52.216-21, Alt. III does not follow the “fair opportunity” procedures as described in FAR 16.505.  Under Alt III, each awardee is promised approximately half of the requirement. That's something different than each contractor getting a fair opportunity to compete for each order.  Therefore, in the case of a partial set-aside, each contractor getting roughly half of the requirement is considered adequate consideration.

Furthermore, the FAR makes it clear that a partial set aside of multiple-award contracts would not be appropriate unless “the requirement can be divided into distinct portions” where the set aside contractor(s) is guaranteed a portion of the work to perform (See FAR 19.502-4(a)).   This limitation I think would also apply if awarding more than one requirements contract via a "partial set-aside"; there would need to be “distinct portions” for each contract awarded.  To do otherwise in my mind would be inconsistent with the procedures stated in FAR 19.502-4 for partial set-asides. 

Another option might be to award contracts by geographic region (that’s assuming there’s a  need to deliver quantities to more than one region).

Bottom line: While the FAR does not specifically prohibit a multiple-award requirements contract, I think you can see there are some important implications for using this approach.  And finally, we always recommend consulting with your local contracting chain of command and legal office before taking action.

Posted506628/17/2021 2:52 PM
EMMETT SIMMONSContracting
19609
  
DAU132560005518/15/2021
Contracting
Can a firm fixed price construction contract be structured around performance-based payments rather than the usual progress payments? If not, what other options, if any, would be at my disposal outside of FFP contracts for construction?
Looking to incentive the contractor for more efficient close-out processes through performance based payments rather than progress payments. Contractors seem to be dragging their feet when it comes to the final 10% of the project.

For your scenario, FAR 32.1001(e)(2) prohibits the use of performance-based payments on construction contracts.

Additionally, IAW FAR 36.207(a) "Generally, firm-fixed-price contracts shall be used to acquire construction." FAR 36.207(c) describes when fixed-price with economic price adjustment may be used for construction contracts. FAR 36.215 and DFARS 236.215 states the limited circumstances where a cost reimbursement construction contract could be used.

But you are in luck. If you read the description of a fixed-price contract at FAR 16.202-1, it states "

The contracting officer may use a firm-fixed-price contract in conjunction with an award-fee incentive (see 16.404) and performance or delivery incentives (see 16.402-2 and 16.402-3) when the award fee or incentive is based solely on factors other than cost. The contract type remains firm-fixed-price when used with these incentives." (note: Bold and italics added for emphasis)

Another incentive would be to document accurately when, how, what the impact of "dragging their feet" in the performance assessment report (see FAR 42.1502(e) and CD 2013-O0018). Past performance evaluations can often be a significant motivator.

 

 

 

Posted506648/16/2021 7:10 AM
EMMETT SIMMONSContracting
19610
  
DAU132560005518/15/2021
Contracting
Can we pay for the material against the previous option CPFF CLIN? Or should we pay for it when accepted by the Government on the current option CPFF CLIN? The contractor claims that they issued a FFP purchase with the vendor and should be able to charge it to the previous CPFF CLIN that has expired.
We issued a CPFF - Term LOE contract with a contractor for R&D services and material.  The contract has a base plus four option years that was funded with the appropriate current fiscal year RDT&E,N funding.  The contractor placed an order for material needed for execution during performance of the option period 1 CLIN.  That option period ended and we are now under option period 2 with the same scope of work.  The contractor will receive the material during the period of performance under option period 2 CLIN.

The question concerns appropriations law.  RDT&E funds are available for incurring new obligations for a period of 2 years.  After that 2 year period, they are available for adjustment to, or payment of, existing obligations for a period of 5 years.  (see DoD Financial Management Regulation (FMR) Vol 2A, paragraph 010107B.25.).

If materials were ordered by the contractor one lead time away from need, even if they deliver during the PoP of Option 2, this would be a legitimate action.  The materials were a Bona Fide need of Option 1.  As such the materials not only can, but should, be paid for with the previous year RDT&E, N funds.  This is a CPFF contract.  There is no problem with the funds for obligation or payment under the Time Rule of the Antideficiency Act.  You may pay the contractor when they submit the bill under a Cost Voucher using the previous year's RDT&E funds.

As always, you might want to consider running your question by your local legal representative for sufficiency.

Posted505228/16/2021 7:12 AM
EMMETT SIMMONSContracting
19611
  
DAU132560005518/15/2021
Contracting
Given the above, is a consolidation D&F required? If it is not, should we still say we're consolidating efforts since we will be making them their own task orders on the one MAC IDIQ contract? Since each requirement will be its own task order I do not believe a consolidation D&F is required, but since they'll be task orders on one MAC IDIQ I wanted to reach out to DAU for a second opinion - which is greatly appreciated. Thank you.
I am the CO for a requirement currently in the early stages of a source selection. The effort is estimated to be slightly under $500M. The current contract that supports the effort is a C type contract/FFP. With its expeditious growth it is being competed earlier than originally planned. For the new contract/source selection the customer wants to bring in a couple other similar requirements because it is our intention to do a MAC IDIQ; however, each similar requirement will be its own task order once the MAC IDIQ is awarded. No two requirements will be on one task order, each individual task orders.  

Consolidation occurs when: 1) soliciting a single contract (including MACs) to satisfy two or more requirements for supplies or services valued in excess of $2M; and 2) those requirements have been provided to or performed for the Federal Agency under two or more separate contracts which were lower in cost than the current requirement. Based on this definition, it appears that your scenario involves consolidation of requirements. While the requirements will be met using separate task orders, they come under one contract. If this is indeed the case, then the written determination required by FAR 7.107-2(a) would apply.

Posted506008/16/2021 10:20 AM
EMMETT SIMMONSContracting
19607
  
DAU132560005518/12/2021
Contracting
We have a 2016 contract and there is a $900 balance remaining. We finally got a hold of the contractor and they said the company was sold and they will not renew their registration in SAM (since it's not the same CAGE/DUNS anymore). How can we get them paid for the remaining balance if they won't renew SAM and submit their invoice in WAWF? Is it possible to deobligate the contract and forfeit the remaining balance? Can we do a mod with the new company's CAGE?
Contractor sold company and will not renew in SAM. Remaining balance on contract. Can we get the contractor paid?
Taken for Edit506688/22/2021 1:19 PM
EMMETT SIMMONSContracting
19608
  
DAU132560005518/12/2021
Contracting
Is AT/OPSEC form required to be completed by DoD procuring on behalf of non-DoD organization and non-DoD funds? Army Corps of Engineer acquiring construction requirement for non-DoD agency using non-DoD funds? Can USACE get away with doing just a a cover sheet similar to Service Contract Approval coversheet, instead of filling out all whole form?
Is AT/OPSEC form required to be completed by DoD procuring on behalf of non-DoD  organization and non-DoD funds?

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate.

 

You did not indicate the circumstances of the acquisition, but we will respond from the perspective of a Foreign Military Sales or an Assisted Direct Commercial Sales action.  When a DoD agency acts as agent on behalf of a foreign or other non DoD customer we are generally to follow the acquisition process as if we were acquiring of behalf of the DoD.  Exceptions to the process should be addressed as appropriate in the Letter of Offer and Acceptance.

There may be some parts of the form you refer to that are not applicable and can be identified as such.  We strongly suggest you speak with your OPSEC specialist.

 

Posted506528/13/2021 10:00 AM
EMMETT SIMMONSContracting
19605
  
DAU132560005518/11/2021
Contracting
When is it appropriate to use a Price Analysis Report versus a Price Negotiation Memorandum?
Trying to determine the most appropriate document for a sole source 8(a) follow-on contract.

Good question. Terminology has fluctuated over the years and in some instances is still not standard across all agencies. The bottom line is that we are documenting that we have completed the proposal(s) analysis that ensures that the final agreed-to price is fair and reasonable. See FAR 15.404-1(a). It depends on your acquisition (what the contract is for), the nature of competition, and procurement method to determine what type(s) of proposal analysis you will need to conduct in order to determine if the price is fair and reasonable. See FAR subpart 15.4 and DFARS Subpart 215.4.

Typically for DoD the term Price Analysis Report is usually used in three instances:

1) In the determination that a supply or service is commercial. See the Department of Defense Guidebook for Acquiring Commercial Items, PART B: PRICING COMMERCIAL ITEMS.

2) Another instance this term is used is when analyzing a large proposal and focusing on specific components, materials, or subcontracts because they are a major cost/price driver. See the Contract Pricing Reference Guides.

3) When prime contractors are required to submit cost/price analysis reports of their subcontractors. See AFMC PGI 5315.404-3-90.

So, in your instance, you should use Price Negotiation Memorandum to document the negotiations you have had with the 8(a) firm.

References: FAR 15.406-3, DFARS 215.406-3 (and associated PGI), and for your Agency see AFFARS 5315.406-3.

Posted506638/12/2021 3:51 PM
EMMETT SIMMONSContracting
19606
  
DAU132560005518/11/2021
Contracting; Business
Can a CLIN period of performance be extended if the CLIN period of performance is over. Example. Task Order 001 and CLIN 2000 period of performances are from 1July 2020 to 30 June 2021-can the period of performance be extended 6 months? Can the period of performance be extended on 10 August 2021?
Contracting

This is a question that has been asked many times here at AAP (and at Wifcon.com). It is not impossible to do this, but the authority depends on many factors such as:

1) Are the services under the task order severable or non-severable

2) What appropriations are being used to fund the CLIN, are they annual appropriations, what would be used to fund the extension (assuming this is not a no cost extension), are their bona-fide need issues.

3) What is the reason for the extension, etc.

If the services are severable and the rationale for the extension is not based on delays or failure to perform all of the task that the Task Order required; you are much better off issuing a new task order.

Posted506568/12/2021 4:01 PM
EMMETT SIMMONSContracting; Business
19602
  
DAU132560005518/9/2021
Normally we use FFRDCs with research and development. However, DoD does O&M for FFRDC as an exception. Is there any DoD documentation or USD policy that indicates FFRDCs using O&M appropriation?
Approving the use of FFRDC work with O&M appropriation

The answer appears to be yes.  While researching the Financial Management Regulation (FMR), DoDI 7000.14, I did not find anything prohibiting the use of O&M, I did stumble upon the following document:

[Note that the aforementioned form could not be attached and was e-mailed directly to the AAP POC]

DEPARTMENT OF DEFENSE ,DD 1414, BASE FOR REPROGRAMMING ACTIONS

DIVISION C OF PUBLIC LAW 115-141, DEPARTMENT OF DEFENSE

APPROPRIATIONS ACT, 2018

APPROVED: MARCH 23, 2018

EFFECTIVE: OCTOBER 1, 2017

 

Note that the Appropriation Account Title is Operation and Maintenance, Army (OMA) and one of the reductions is FFRDC.  The unclassified document showed a reduction of $1.8M in FFRDC funding. The obvious implication is that OMA can be used to fund FFRDCs.

We always recommend consulting with your local comptroller chain of command and legal office before taking action.

 

Posted506548/10/2021 10:31 AM
EMMETT SIMMONS
19603
  
DAU132560005518/9/2021
Program Management
Hi, looking for any good DoD references links on Agile in general for s/w development projects and Agile Product Owner role specifically. thanks
Hi, looking for any good DoD references links on Agile in general and Agile Product Owner role specifically.  thanks

Contracting Considerations Page 57

Software Pathway Policy Pages 16,22

https://media.dau.edu/media/t/1_k4z9d6ml (By no means official DoD Policy or Guidance)

https://www.dau.edu/cop/it/DAU%20Sponsored%20Documents/Agile%20101%20v1.0.pdf 

Posted503228/10/2021 10:33 AM
EMMETT SIMMONSProgram Management
19604
  
DAU132560005518/9/2021
Contracting
Are there any construction clauses that need to be considered with developing a FFP service Base Ops contract that cover or incorporate DBA rates?
Developing Solicitation/RFP for Base Operations contract that has minor construction involved with Davis Bacon Act (DBA) rates being applicable. The frequency of this is probably once or twice per year, at best. This would apply on Individual Job Orders (IJO) that start out as a minor repair but develop into a minor construction project after work began due to unforeseen damage or necessary alteration to site.

FAR 22.402(b), "Nonconstruction contracts involving some construction work," provides the answer. The contracting officer needs to review paras. (1) and (2) under that section to determine which situation applies to your Base Operations contract. If (1) applies, then Wage Rate Requirements (Construction) apply. If (2) applies, then the clause does not apply. 

P.S. Please note that the term "Davis-Bacon Act "is no longer applicable.

Posted506168/10/2021 2:58 PM
EMMETT SIMMONSContracting
19600
  
DAU132560005518/8/2021
Program Management
What is the impact to the program if the PMB is never approved? Is there an impact to milestones, etc?
Conducting the IBR revealed enough high risk that the PM determined he did not want to approve the PMB - a follow on PMB will be conducting following the award of additional CLINs/scope.

By definition, an Integrated Baseline Review (IBR) is not a government "approval" event.  Instead, the intent and purpose of an IBR, as defined in multiple guidance and policy documents (such as the Air Force Integrated Baseline Review (IBR) Process Guide, Program Manager’s Guide to the IBR Process, and National Defense Industrial Association’s (NDIA) Guide to the IBR), is for the government and contractor PM to come to a mutual understanding of the Performance Measurement Baseline (PMB) and for the government PM to evaluate the risk of the PMB.  More specifically, the Air Force Integrated Baseline Review (IBR) Process Guide states that:

The IBR’s purpose is to develop a common understanding between the Air Force Program Management Office (PMO) and the contractor PMO regarding the project’s baseline and the project’s technical, schedule, cost, resources, and management process risks and impacts. The PMO cannot reduce risks unless it first identifies them. The IBR helps to identify risks and opportunities and provides a means for assessing their severity in a standardized and transparent fashion. The PMO and other stakeholders then use the IBR’s results to make management decisions that consider cost, schedule, and technical tradeoffs. These decisions include re-defining the program requirements or objectives, developing risk handling plans, prioritizing where and when to apply resources, and other means to achieve an executable and realistic program baseline.

As such, there is no approval or disapproval of the PMB for the government PM to provide.  Instead, if there are concerns about the contractor’s PMB, the government should document all of their concerns in the end-of-IBR risk evaluation, share that risk evaluation and their concerns with the contractor, and actively work with the contractor to address them.  In addition, the government could request that additional/follow-on IBR(s) be held to further review a modified PMB and again document the risks that the government feels exist with the contractor’s revised PMB.  However, the government should not be in a position where they are approving or disapproving a contractor’s PMB, as doing such is contrary to the intent of an IBR – it is the “contractor’s” PMB to meet the requirements as set forth in the contract.

Posted506278/9/2021 7:54 AM
EMMETT SIMMONSProgram Management
19601
  
DAU132560005518/8/2021
Program Management; Life Cycle Logistics; Engineering and Technical Management
Do you anticipate terms like 'Digital Sustainment' and 'Digital Acquisition' to be defined in DoD or service policy anytime soon?
The term "Digital Sustainment" is starting to appear in a variety of presentations, duty titles, and articles.  Even Army publication TC 6-0.1 lists the following as an additional duty, "Develop unit digital sustainment training."  Although the term "Digital Sustainment" is used, it appears to be undefined and likely a pseudonym.

BLUF: The statement is  correct, there are no authoritative definitions for "digital acquisition" or "digital sustainment."  Establishing (and in some case updating) definitions will be a collaborative and likely iterative effort as the DoD Digital Engineering Strategy and Service digital initiatives move forward.  At DAU, the engineering and technical management (E/TM) and life cycle logistics (LCL) communities are engaged in an ongoing dialog regarding strategies to develop and deliver training and related resources, such as definitions, for the acquisition work force.

 

Army Publication TC 6-0.1.  The Army publication referenced has no direct relationship to digital acquisition, digital sustainment/product support, model-based engineering (or its various pseudonyms - digital engineering, model-based systems engineering, etc.).  The publication describes training for how "The digital crew facilitates the display of information to the Commander in the Command Post (CP)" in a virtual/constructive setting.  The single, unexplained reference to "digital sustainment" also appears  unrelated.

 

DAU Glossary.  The DAU Glossary needs to be updated/expanded for digital terminology.  There is an existing set of digital definitions, including "digital engineering" at https://www.dau.edu/glossary.  This is a task the E/TM Center-led "DAU Digital Engineering (DE) Training Strategy Meeting" (working group) has taken on and will include (1) "digital engineering"; (2) digital product support;  and likely others.  The group developed a modified digital engineering definition from several authoritative sources (INCOSE, SERC, etc.) and intends to post soon.  There is no authoritative source for "digital product support" (or digital sustainment), so that work will need to wait for an authoritative source.  However, in the interim, an Acquipedia article is planned to be published that includes two non-authoritative "alternate definitions."

 

DoDI 5000.91, Product Support for the Adaptive Acquisition Framework (AAF).  This new instruction (with a publishing ECD of Oct 2021), includes a single reference to "digital engineering and model-based product support" under para 4.4, Product Support Analysis.  This will require further fleshing out in the planned new DoD Guidebook (to replace DAG Chapter 4).  In addition, DoDI 5000.88, Engineering of Defense Systems, has significant content on digital and models, but does not include definitions; a future iteration could provide more authoritative definitional guidance.

 

DAU Resources.  In addition to CLE 084 and CENG 001 which are available now, DAU has in work two new engineering (ETM) courses for digital fundamentals and digital practitioners, and plans to develop a new LOG course in FY22 on Digital Product Support Fundamentals.  See also blog post https://www.dau.edu/training/career-development/logistics/blog/Handy-Digital-Engineering-References.

 

If you haven't run across this resource already, I'd recommend visiting the Digital Twin Consortium (https://www.digitaltwinconsortium.org) and checking out their glossary.  The Digital Twin Consortium is part of the Object Management Group (OMG), an international, open membership, not-for-profit technology standards consortium, and the owners of the SysML (and UML, and other) specs.

 

In addition, there is a lot going on in the area of Digital fill-in-the-blank, and identifying the focus, process, and tools that enable these digital approaches is evolving.  PEO Weapons (at Eglin AFB) has stood up a Digital Acquisition and Sustainment Office (DASO).  Here's a working definition of Digital Acquisition that they are using:

 

Digital acquisition emphasizes a commitment to open architecture and agile software, as well as digital engineering and management. Simply expressed, this ‘digital trinity’ is meant to foster a virtual acquisition process where hundreds of programs and systems can be [proposed], designed, assembled, tested, and even sustained before the first parts are purchased or used in reality.  According to Dr. Roper, it is this ‘Matrix-like simulation realism’ with the newer slogan of ‘eCreate Before You Aviate’ that is so exciting for both the Department and industry. Central to this form of acquisition is creating ‘tech stacks’ that integrate various layers within it and are accessible enterprise-wide as a Service (aaS) to every program, platform, team, and operator. These layers include Cloud aaS (#cloudOne), Artificial Intelligence aaS (#smartOne Platform), aaS (#platformOne), Model-Based Systems Engineering aaS (#mbseOne), Data aaS (#dataOne), Data Analytics aaS (#analyzeOne), and hopefully Edge aas (#deviceOne).  Ultimately, the goal is to transfer these tech stacks to the ‘edge’ in order to enable the warfighter access to continuously improving software and capabilities. This requires a digital acquisition process to achieve.  (Source: https://www.ndia.org/policy/recent-posts/2020/9/21/the-new-digital-acquisition-reality-what-this-means-for-industry-and-the-dod <https://www.ndia.org/policy/recent-posts/2020/9/21/the-new-digital-acquisition-reality-what-this-means-for-industry-and-the-dod> ; “The New Digital Acquisition Reality: What This Means for Industry and DoD”, 9/21/2020)

 

 

Posted506538/9/2021 1:31 PM
EMMETT SIMMONSProgram Management; Life Cycle Logistics; Engineering and Technical Management
19598
  
DAU132560005518/5/2021
Contracting
How should FM fund Labor Rate adjustments? Is it tied to the original Funds awarded on the contract (which would make it a UOA)? is it Bona Fide need of the FY the rate changes took affect? Or can we use any active year dollars we have available?
Our Office Delivery Order has experienced significant delays.  The contract was awarded in October 2016 with FY16 funding. The Government Office issued a Strategic Pause on 15 May 2018  directing vendor to cease all activities on the project while the Government attempted to solidify new requirements to be added to the Delivery Order.  The strategic pause lasted 2 years. The overall project is about 5 years old. The Contractor/Vendor submitted a Engineering Change Proposal request Labor Rate Adjustments and revised pricing to current year amounts due to the length of time associated with Government-directed Strategic Pause and the nearly two years that have passed since the release from the Strategic Pause. nearly five years has passed since our original proposal was submitted prior to Delivery Order award, the repricing of previously awarded labor hours will be updated from FY16 to current FY22 rates.

This response is based on the information provided.  We suggest you discuss with your Comptroller, contracting team, program manager and/or legal department as appropriate.

 

Based on the information provided, it appears this labor rate change would be in-scope. You did not provide the Appropriation type but RDT&E, PROC or O&M would all be expired by now. As long as this is in-scope work, the I believe you would be able to request an Upper Obligation Adjustment and use the funds that are already obligated. If you do not have funds available, then you would have to seek reprogramming of funds from that Fiscal Year and Appropriation.  If the funds have cancelled (which might apply if these are O&M funds) then you would be able to use any currently available funding of the original obligation.

 

A discussion with the Comptroller or funds certifier and possibly the legal office will assist you in the event that GAO comes back to question the manner in which you funded these labor rate adjustments.

Posted506448/6/2021 8:32 AM
EMMETT SIMMONSContracting
19599
  
DAU132560005518/5/2021
Contracting
Do you need to do a J&A to pay royalty payments?
Making royalty payments

This is a great question, one I’m not sure we’ve received here at AAP before.

Typically the need to make royalty payments in and of themselves does not require a Justification and Approval for other than full and open competition. That is because many patents are available for potential offerors to purchase a license or use fee if they are not the patent or IP owner.

But the official answer is, of course, “it depends”.

In most instances the need to make royalty payment(s) is either:

1) Identified ahead of time as a result of market research, acquisition planning, and refining your requirement. Then communicated to potential offerors of the fact the licensed patent will be applicable to the prospective contract.  See FAR 27.202-2. Or

2) Identified when the contractor proposes a cost element for the royalty in their offer.  Example: If certified cost or pricing data is needed, the existences of a royalty would be identified when offerors submit their proposal or offer to a request for offers and they include the royalty amount in their proposal.  See FAR 15.408(n)(2)(iii), Table 15.2, II Cost Elements, E. Royalties.

In these instances a J&A is not needed because you are not limiting competition.

However, if the patent or intellectual property required to complete the contract is only available from one or a limited number of contractors (e.g. the patent owner or a select licensee) and no other way exists to meet the government’s requirement; J&A might be needed.  In this instance you would follow the rules at FAR 6.302-1 and DFARS 206.302-1.  It would not be the fact you need to pay the royalty that leads you to completing a J&A, but the fact you have only one (or a limited number for DoD and NASA) of sources that can satisfy the agency requirement.

Posted506508/6/2021 10:11 AM
EMMETT SIMMONSContracting
19591
  
DAU132560005518/4/2021
Business
My name is Brilee, and I work for the U. S. Navy. I am reaching out today to gather some information on the ICAPS and how it may be of value to us. If you could send me an email I will send you our objective and a quick questionnaire to fill out to help us evaluate if you offer something we could use.
NAVSEA is researching the development of a Supply Chain Risk Management (SCRM) database that would provide downstream visibility of products into their end application, and would provide visibility into upstream supply chains that contribute to those products and risks associated with those supply chains. 

To this end, NAVSEA is seeking both government and commercial resources that have access to data that may contribute to this upstream and downstream visibility, or maybe provide data related to risks associated with entities in those supply chains (e.g. products, manufacturers, distributors, integrators, sub-contractors, suppliers, etc).  

Relevant risks may include product availability, inventory, failure history, usage rates, on time delivery, reliability, financial health, regional risks, non-conformances, supply chain interruptions, counterfeiting, vulnerabilities, malicious activity, foreign ownership, or any other factor that may prevent a product from being acquired on schedule and performing as intended.

You have been identified as supporting a database or tool that may have access to some of the types of data identified above.  

Interactive Computer-Aided Provisioning System (ICAPS) is a Logistics information technology (IT) application owned by Naval Sea Systems Command (SEA 05R).  ICAPS is currently the Navy’s only authorized application for performing provisioning functions. ICAPS provides a real-time environment for the creation, review, and processing of Bill of Material (BOM) data for both Maritime and Aviation equipment. It enables provisioning personnel to create, validate, correct, and manipulate Provisioning Technical Documentation (PTD).  ICAPS is scheduled for replacement by Model Based Product Support (MBPS) in FY22.

              The Navy currently requires PTD to be delivered in a format accepted by ICAPS. The ICAPS software is designed to support and accept data in various Logistics Product Data (LPD) formats. LPD summaries contain information that the Government needs to assess design status, conduct logistics planning and analysis, influence program decisions, and verify that contractor performance meets system supportability requirements.

              Additional information on ICAPS and the Navy provisioning process can be found in NAVSEAINST 4423.5 Provisioning Policy (7 May 2019) and NAVSEA M-4423.1 Provisioning and Allowance Procedures Manual (May 2019).

Posted506218/5/2021 11:27 AM
EMMETT SIMMONSBusiness
19592
  
DAU132560005518/4/2021
Contracting
Would making the site visit mandatory be against any regulation and potentially cause protests which may be upheld? Would this be considered restricting competition?
We are looking to purchase furniture using the Navy BPA for several areas within the DCNG. This is considered a supply purchase, per the BPA the delivery and installation of the furniture is incidental and within scope of the BPA. There are numerous BPA holders (small and large businesses as the solicitation will be unrestricted) in the East Coast region. We would like to make the site visit mandatory to ensure the potential vendors are aware of how to access the installation buildings, freight elevators, view the areas to take pictures and measurements for the delivery and install.

Yes, requiring a site visit could create problems. The time to alert potential BPA holders of the site visit issue would have been when the Navy solicited and awarded the original BPA, but presumably this is not included in the BPA terms/conditions. One possible solution is to include a note in the RFQ that you will be available for any offerors who want to visit the site in case they would like to see for themselves the access, measurements, etc., without indicating that offerors who do this will have a competitive advantage.  Another idea is to take the most relevant photos and measurements yourself and include them as attachments to the RFQ. In any case, you should run this by your activity's legal counsel since you are concerned about implications for potential protests.

Posted506478/5/2021 2:09 PM
EMMETT SIMMONSContracting
19593
  
DAU132560005518/4/2021
Contracting
Is this considered a multi-year contract?
FFP Requirements Contract with a 5 year ordering period (-8).
No Option Years.

Based on the limited information provided with the question, I need to make a few assumptions in order to provide an answer. These are: 1) you're using annual appropriations; 2) your agency has not completed the review and approval process necessary to enter into a mult-year contract found in the AFFARS (your agency); and 3) You meant FAR 52.217-8 Option to Extend Services.

That said, I am 99.99% positive the answer below applies to your acquisition.

A requirements contract (see FAR 16.503) is not considered a multi-year contract, it is one of the three(3) types of indefinite-delivery contracts described at FAR subpart 16.5.

A multi-year contract (see FAR subpart 17.1 and DFARS subpart 217.1, and your agency supplement) is its own type of contract. Specifically, see the definition of a Multi-year contract at FAR 17.103. Because a multi-year contract allows the procurement of property (supplies) and services beyond one year and up to a period of 5 years; the need to have the option to extend services clause is not required if the term of your contract is less than 4.5  and you are not authorized to excede five years with a multi-year contract.

Posted506458/5/2021 3:34 PM
EMMETT SIMMONSContracting
19594
  
DAU132560005518/4/2021
Contracting
Can we extend the POP of Option Year 1 for longer than 1 year even though it has been incrementally funded with FY20 O&M (1 year) money?
We have a R&D delivery order.  The CLINS are CPFF for labor and travel. We are in Option Year 1 with a period of performance of 27 Aug 20- 26 Aug 21.  Option 1 is funded with FY20 O&M (1 year money).  Option year 1 is incrementally funded and is not fully funded.  Due to Covid, our mission partner will not use the full amount of Option Year 1 and is requesting to fully fund Option year 1.  Due to COVID delays, they will not use all of the CLIN value (reminder-this CLIN is incrementally funded) by the end of the POP (26 Aug 21).  As a result, our mission partner requests to extend the POP of Option Year 1 from 26 Aug 21 into Feb 22 so they may fully utilize the full amount of Option Year 1.  They will add FY21 money to fund the remainder of the Option Year 1. 

The answer is No.  The funding constraints are the biggest hurdle.  If FAR Clause 52.217-8 is in the contract, technically yes you could extend the option year by up to another six months as long as the extension does not exceed the overall duration of the term of the contract, including any extension.  However, the one big disadvantage of using the -8 clause to extend Option Period 1 is the fact that the entire contract would end at the end of this extension.  In other words, if there are additional unexercised options in the contract for follow-on years after Option Year 1, these would not be available any longer for use. 

But, even if you did want to use the -8 clause as described here, the funding constraints are insurmountable.  10 USC 2410a says that this severable services contract could have been funded for the full 12 months (27 AUG 20 to 26 AUG 21) with FY20 O&M. But, the moment they go beyond 26 AUG 21, that becomes a bona fide need of FY21.  As such, any funds from 27 AUG 21 to FEB 22 must be FY21 O&M.

31 U.S. Code §1502 says “Agencies may only obligate funds to fill a requirement once the bona fide need exists, AND may only use funds current while the bona fide need exists”. FY 20 funds are no longer current.

Finally, I highly recommend discussing the submitted Ask-a-Professor question with your Contracting Officer, Competition Advocate and legal advisor to ensure compliance with any limits in the existing contract as well as applicable laws and regulations.

 

Posted506368/5/2021 3:35 PM
EMMETT SIMMONSContracting
19595
  
DAU132560005518/4/2021
Contracting
Can you help me find the most recent guidance outlining WHEN to avoid, to the maximum extent practicable, using” LPTA procedures for procurements that are “predominately for the acquisition of” certain types of procurements? (with reference) Also, can you assist me in finding the list of criteria that must be met in order for LPTA procedures to be permissible for a procurement? (with reference) Is there a template for a Determination & Findings for the use of LPTA?
I know the NDAAs often reference LPTA and the limitations of its use.  However, I am having a hard time finding the most recent guidance outlining WHEN to avoid, to the maximum extent practicable, using” LPTA procedures for procurements that are “predominately for the acquisition of” certain types of procurements.  Also, I am trying to find the list of criteria that must be met in order for LPTA procedures to be permissible for a procurement. 

We have a follow-on requirement in my office that has historically utilized an LPTA Source Selection Methodology.  I was working on completing a D&F for the use of LPTA for the follow-on, and I was trying to ensure I was including all the information I needed to, as well as ensure this particular requirement was able to utilize LPTA.  I am just having a hard time finding the information that I need.
Posted506488/5/2021 3:36 PM
EMMETT SIMMONSContracting
19596
  
DAU132560005518/4/2021
Contracting
Can you help me find the most recent guidance outlining WHEN to avoid, to the maximum extent practicable, using” LPTA procedures for procurements that are “predominately for the acquisition of” certain types of procurements? (with reference) Also, can you assist me in finding the list of criteria that must be met in order for LPTA procedures to be permissible for a procurement? (with reference) Is there a template for a Determination & Findings for the use of LPTA?
I know the NDAAs often reference LPTA and the limitations of its use.  However, I am having a hard time finding the most recent guidance outlining WHEN to avoid, to the maximum extent practicable, using” LPTA procedures for procurements that are “predominately for the acquisition of” certain types of procurements.  Also, I am trying to find the list of criteria that must be met in order for LPTA procedures to be permissible for a procurement. 

We have a follow-on requirement in my office that has historically utilized an LPTA Source Selection Methodology.  I was working on completing a D&F for the use of LPTA for the follow-on, and I was trying to ensure I was including all the information I needed to, as well as ensure this particular requirement was able to utilize LPTA.  I am just having a hard time finding the information that I need.

The current guidance for DoD can be found at DFARS 215.101-2-70. This is based on the fact there are no current DoD Class Deviations or DoD DPC Policy Memoranda that includes additional limitations or guidance surrounding the use of LPTA by DoD.

The process: if an NDAA changes something that requires a change to the FAR or DFARS, those changes must go through the rule making process. Depending on the language of the NDAA and when the requirement must be implemented; a class deviation will be issued until the change can be incorporated into the FAR or DFARS. The class deviation will be recinded and archived once the change to the FAR and/or DFARS is final.

All current and archived DoD Class Deviations and Defense Pricing and Policy letters can be found at: https://www.acq.osd.mil/dpap/index.html

Posted506488/5/2021 4:41 PM
EMMETT SIMMONSContracting
19597
  
DAU132560005518/4/2021
Contracting
Is AT/OPSEC form required to be completed by DoD procuring on behalf of non-DoD organization and non-DoD funds? Army Corps of Engineer acquiring construction requirement for non-DoD agency using non-DoD funds? Can USACE get away with doing just a a cover sheet similar to Service Contract Approval coversheet, instead of filling out all whole form?
Is AT/OPSEC form required to be completed by DoD procuring on behalf of non-DoD  organization and non-DoD funds?
Posted506528/5/2021 4:44 PM
EMMETT SIMMONSContracting
19590
  
DAU132560005518/3/2021
Contracting
How would you document a tradeoff analysis between numerous (more than 5) offerors? Would you need to compare each proposal to each other? Would you need to compare your apparent awardee to every other proposal? Or could you just state why the proposal you chose is the best value?
A part 15 source selection best value trade off. Technical is more important than price. The SSP states: In accordance with RFP Section XX. Basis of Award, a trade-off among price and non-price factors will be done. The PET, TET, and PPET evaluation reports will be used to develop a trade-off analysis recommendation to the SSA which will be documented in the Trade-Off Analysis Report.

Note: The proposals will not be ranked but will receive an adjectival rating for each factor except price.  Ie Factor 1 Good, Factor 2 Outstanding ect... There could be 4 to 5 factors with one being price, one may be past performance with a confidence rating and the rest would be technical factors.  There would be no sub factors. 

FAR 15.308 states: "The most important consideration is documenting the results of evaluating each proposal against the evaluation factors stated in the solicitation. The source selection authority’s (SSA) decision shall be based on a comparative assessment of proposals against all source selection criteria in the solicitation."  In other words, the basic evaluation (first step in the process) rates each proposal against the solicitation's evaluation criteria rather than other proposals. Once each proposal is rated on its own merits using the adjectival ratings, those ratings serve as the basis for comparing which overall proposal provides the best value to the Government (the second step). The documentation for the first step addresses each offeror's rating against the solicitation's evaluation factors. If each proposal were to be compared to every other offeror's proposal for each rating factor, it would require 90 separate entries (assuming 10 offerors in the competitive range) for each separate evaluation factor. That is not practical, or required. However, it may be advisable to include some specific examples of how and why the top-rated proposal is considered superior to others. 

 

Posted506438/4/2021 9:01 AM
EMMETT SIMMONSContracting
19589
  
DAU132560005518/2/2021
Contracting
My question is two part: 1. What is the legal definition in the FAR of "origin"? I believe it means origin or origination of the subject product. where it was made. Which under normal circumstances it is identified in block 17 of the contract. Unless the Facility code is populated to indicate the actual place of manufacture or origination. 2. Is there anytime that a Distributer should be in both block 17a and the facility code block if they don't manufacture anything? Per the PGI 253.213-70 if the work is known to be performed other than the address shown in 17a place the cage code in the facility block. Where else in the DFARS or FAR is this block defined? Thank you
We have a Distributer that wants to have I&A at there location with no inspection system of equipment to verify compliance to contract.
They also have their cage code inserted in to both block 17a and the facility code block.

The answer to the question on what does origin mean:  The word origin means “the point or place where something begins, arises, or is derived.” However, in other locations in the FAR it gives more detail explanations of what FOB Origin means.

The answer to the second part of the question regarding the forms is that the FAR and DFARS do not detail how to fill out the forms.

In discussion with the originator of the question, I further defined what he is asking. The issue is that he has a contractor who is a distributor but not a manufacturer.  As a DCMA QA he is required to do specific QA functions on various products; however the contractor does not have those specific qualifications and relies upon the subcontractors. The prime contractor is reviewing certificates from the subcontractor in condcucting their quality control processes.  His contracts are using part 13 Simplified Acquisition Procedures.

FAR 13.101(a)(3) states provide for the inspection of supplies or services as prescribed in 46.404. FAR 46.404 further states that:

         (a) In determining the type and extent of Government contract quality assurance to be required for contracts at or below the simplified acquisition threshold, the contracting officer shall consider the criticality of application of the supplies or services, the amount of possible losses, and the likelihood of uncontested replacement of defective work (see 46.202-2).

      (b) When the conditions in 46.202-2(b) apply, the following policies shall govern:

           (1) Unless a special situation exists, the Government shall inspect contracts at or below the simplified acquisition threshold at destination and only for type and kind; quantity; damage; operability (if readily determinable); and preservation, packaging, packing, and marking, if applicable.

           (2) Special situations may require more detailed quality assurance and the use of a standard inspection or higher-level contract quality requirement. These situations include those listed in 46.402 and contracts for items having critical applications.

           (3) Detailed Government inspection may be limited to those characteristics that are special or likely to cause harm to personnel or property. When repetitive purchases of the same item are made from the same manufacturer with a history of defect-free work, Government inspection may be reduced to a periodic check of occasional purchases.

In looking at paragraph (b), it references FAR 46.202(b) and those exceptions do apply.  While the Government needs to ensure the quality of the contractors processes, FAR 46.404(b)(1) specifically states that  “Unless a special situation exists, the Government shall inspect contracts at or below the simplified acquisition threshold at destination and only for type and kind; quantity; damage; operability (if readily determinable); and preservation, packaging, packing, and marking, if applicable.” 

Understanding how the Government is handling contracts below the SAT is the baseline but this has to deal with the subcontractor and therefore FAR 46.405 details how to handle inspections of subcontractors. If the Government believes that additional inspection is necessary, FAR 46.405(b) gives the authority to conduct inspections at the subcontract level when the contracting officer believes it is in the Government’s best interest. Furthermore, within FAR 46.405(c) states that when inspection of the subcontractor is necessary “ Supplies or services for which certificates, records, reports, or similar evidence of quality are available at the prime contractor’s plant shall not be inspected at the subcontractor’s plant, except occasionally to verify this evidence or when required under (b) of this section.  Therefore, inspecting the documentation at the prime contractor’s location is acceptable.

The challenge we identified is that the Government would need to make a determination part by part or subcontractor by subcontractor on whether inspecting their documentation is satisfactory.  This may be unfeasible but without the determination by the contracting officer that further inspection is necessary the Government doesn’t have a reason to go further than FAR 46.405(c).

Posted506348/3/2021 11:55 AM
EMMETT SIMMONSContracting
19582
  
DAU132560005518/1/2021
Contracting
Is a QASP required to be completed for a PWS under $25000?
A PWS is being used for required services that are estimated for  $24,990.  A COR will not be assigned, the KO will be the COR. 

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

The FAR is not explicit as to the form or format government quality surveillance must take.  FAR subpart 46.4 overall and FAR 46.401 General with more detail addresses government performing quality assurance.  DFARS 246.401 General provides additional guidance, "The requirement for a quality assurance surveillance plan shall be addressed and documented in the contract file for each contract except for those awarded using simplified acquisition procedures. For contracts for services, the contracting officer should prepare a quality assurance surveillance plan to facilitate assessment of contractor performance, see 237.172 ."

"DFARS 237.172 Service contracts surveillance.

(a) Ensure that quality assurance surveillance plans are prepared in conjunction with the preparation of the statement of work or statement of objectives for solicitations and contracts for services. These plans should be tailored to address the performance risks inherent in the specific contract type and the work effort addressed by the contract."

We found no additional information directly related to Quality Assurance Surveillance Plans (QASPs) in the AFARS.

We note that the guidance is clear that some plan for quality surveillance is part of the program/contract process is needed and is to be documented in the file.  The complexity of the service provided should drive the level of detail in the QASP or other plan.

 

Posted506178/2/2021 9:03 AM
EMMETT SIMMONSContracting
19583
  
DAU132560005518/1/2021
Contracting
Can you provide a list of how many Net Days (14/30) for the main contract types or where to find the info?
I understand there is a Fiscal Law requirement that mandates a set number of Net Days for payment to the contractor for specific construction contract types (AE, SABER/MATOC/MACC, ID type contracts, General Construction, etc.).

This response is based on the information provided.  We suggest you discuss with your contracting team, financial team, program manager and/or legal department as appropriate. 

 

The contract clauses specify payment terms.  In general the payment is what the contract calls for.  A construction contract will likely have FAR 52.232-5, Payments under Fixed-Price Construction Contracts, and FAR 52.232-8, Discounts for Prompt Payment.  If a contractor offers "net terms" DFAS will determine which is more favorable to the government.

"If your invoice offers discount terms better than those specified by the contract, we will take the better of the terms offered. You may offer a discount on your invoice even though the contract terms are net 30 days."

(DFAS  --  Contractor and Vendor Payment Information Booklet, PG 13; April 4, 2018).

Posted506268/2/2021 9:04 AM
EMMETT SIMMONSContracting
19584
  
DAU132560005518/1/2021
Contracting
Is applying a spray on insulation a service or construction?
We've received a funded request from CE stating the end user wants spray foam added to the inside of an old building with the argument it's altering real property and would like for it to be a construction project. However, is this a one time service that a commodities flight could handle faster?

When trying to figure out if a requirement is a service or construction, a good starting point is looking at the definition of construction IAW FAR part 2; Construction means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. Definition of a service falls under FAR 37.101, where a contractor is performing an indentifiable task, and includes routine recurring maintenance of real property. 

Use the rules in DFARS 222.402-70 if the definitions of construction and service did not answer the question. DFARS 222.402-70, Installation support contract, is a good resource since it is important to know if there is an applicable labor law. This talks to coverage of the Service Contract Labor Standards statue and the Construction Wage Rate Requirements statute. Paragraph (d) is very helpful as it establishes parameters when it is unclear if the work to be performed falls under construction or service. Work of 32 or more work-hours falls under Construction rates and work requiring less than 32 work-hours shall be considered maintenance subject to Service Contract Labor Standards.

Looking at context of all this information, the contracting officer will need to use their business judgement to make the call. 

Posted506258/2/2021 9:05 AM
EMMETT SIMMONSContracting
19585
  
DAU132560005518/1/2021
Contracting; Business
If a contract is issued. then a change is needed to that contract. then, in pricing the change, the contractor uses the original cost model for the entire contract - to price the change - if the change itself - is less than the cost and pricing threshold - but the cost model captures the entire cost of the original proposal (greater than C&P threshold) - to include the priced change - is that cost model required to be certified?
If a contract is issued.  then a change is needed to that contract.
then, in pricing the change, the contractor uses the original cost model
for the entire contract - to price the change - if the change itself - is less than the
cost and pricing threshold - but the cost model captures the entire cost of the original proposal (greater than C&P threshold) - to include the priced change - is that cost model required to be certified?

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

We will restate the question as we understand it and you will be able to determine if we are answering the question you intended to ask.

A contractor was awarded a contract and submitted cost or pricing data using its cost model.  It is now submitting cost or pricing data for a modification to that contract.  The change, taking the absolute value of additions and deletions into account, is less than the Truth in Negotiations threshold of $2 million.  However the contractor added the change to its previously submitted cost or pricing data.

The key question is whether or not you can segregate for analysis purposes the cost or pricing data for the proposed change from the initial submission.  If you cannot do that, you should have the contractor submit cost or pricing data that stands on its own and can be analyzed for the new/deleted work.

In any case, the submitted cost or pricing data under $2 million doesn't meet the certification threshold.  FAR 15.403-4()(1)(iii) is useful on this subject.

 

Posted506228/2/2021 9:06 AM
EMMETT SIMMONSContracting; Business
19586
  
DAU132560005518/1/2021
Contracting
Is it required on construction contracts for the PCO to document the determination to Use/Evaluate Options? The regulations in FAR 17.200 and 17.205(a) appear to contradict each other.
FAR 17.200 Scope of subpart.  This subpart prescribes policies and procedures for the use of option solicitation provisions and contract clauses. Except as provided in agency regulations, this subpart does not apply to contracts for (a) services involving the construction, alteration, or repair (including dredging, excavating, and painting) of buildings, bridges, roads, or other kinds of real property; (b) architect-engineer services; and (c) research and development services. However, it does not preclude the use of options in those contracts.  FAR 17.205(a) 17.205 Documentation. (a) The contracting officer shall justify in writing the quantities or the term under option, the notification period for exercising the option, and any limitation on option price under 17.203(g); and shall include the justification document in the contract file. For A-E contracts.

The answer to your question is No.  There is no contradiction between FAR subpart 17.2 and FAR 17.205(a).  FAR subpart 17.2 does not apply to construction contracts which means FAR 17.205 does not apply.  There is no further guidance in the DFARS and DFARS PGI.  However, the FAR does not preclude you from documenting option decisions and including them in your contract file which is also good business judgment.  Please verify this with your agency regulations.

Posted506198/2/2021 10:11 AM
EMMETT SIMMONSContracting
19587
  
DAU132560005518/1/2021
Contracting
If an offeror proposes an FTE who meets all of the technical requirements on paper, but the recent and relevant experience was with the customer as a civilian, and the customer says this person was a terrible employee and they would never work with this person again, what is the way forward? Can a candidate's past performance be lumped into the offeror's past performance? Or would this stay under technical and the customer would need to state something like, "Although the proposed candidate meets all of the requirements specified at XYZ section, the performance of the proposed candidate, during their employment history at DoD ABC, was neither exceptional or acceptable, and DoD ABC has no desire to work closely with this individual again."
Under SAT; Seaport MAC (FAR 16.505); Service for 1 professional FTE

The past performance of an offeror is the sum of the individual past performances of the employees who work for the offeror. If a large percentage of an offeror’s employees performed marginally for previous customers, that offeror’s past performance could be justifiably downgraded. If only one or two employees performed clearly unsatisfactorily, that offeror’s past performance could also be justifiably downgraded. FAR 13.106-2(b)(3) provides contracting officers with a reasonable degree of latitude for evaluating past performance and does not prescribe the extent to which any one employee’s individual past performance can or can’t be a significant factor when evaluating past performance. All that said, the specific path forward is a contracting officer decision…in consultation with the unhappy customer.

Posted506288/2/2021 10:12 AM
EMMETT SIMMONSContracting
19588
  
DAU132560005518/1/2021
Contracting
Most times a Contractor will submit their very best past performance evaluations for a contract bid review.... These are not inclusive of all of their government work and they rarely ever include poor performance evaluations. Where can I search to find all of a contractors past performance evaluations? Thank You, Shaun Fontenelle
I'm looking to find all of a contractors Past Performance Evaluations.

You are looking for the official Contractor Performance Assessment Reporting System (CPARS). It can be accessed at:

https://www.cpars.gov/#

Note: you will need to register and follow your Agency's (VA) process to get access to this website.  Additional information regarding the documentation and submittal of contractor performance information is found at FAR subpart 42.15.

Posted506338/2/2021 12:15 PM
EMMETT SIMMONSContracting
19580
  
DAU132560005517/26/2021
Program Management
Hi, looking for any good DoD references links on Agile in general for s/w development projects and Agile Product Owner role specifically. thanks
Hi, looking for any good DoD references links on Agile in general and Agile Product Owner role specifically.  thanks

Sent seperate emails since response included attachements.

Contracting Considerations Page 57

Software Pathway Policy Pages 16,22

https://media.dau.edu/media/t/1_k4z9d6ml (By no means official DoD Policy or Guidance)

Posted503227/27/2021 11:49 AM
EMMETT SIMMONSProgram Management
19581
  
DAU132560005517/26/2021
Business
What are the authorities and responsibilities of a lead service in the acquisition management of a Joint program, and where are those referenced?
With a number of programs of a Joint nature coming out of the Missile Defense Agency, the question continually comes up about lead service responsibilities and authorities and the only thing I've been able to find on the topic is lead service definition in the DAG.

Here is the short answer: A lead Component will be designated by the Decision Authority.  A MOA will be developed to further define roles and responsibilities. Ref: DODI 5000.85, Appendix 3C discusses Joint Programs. (See below for or click on DODI 5000.85 link for additional details)

 

Here is a link to the Joint Program Management Handbook.  Even though it is dated the processes/concepts haven't changed much and given our adaptive acquisition framework, it is a guide for Joint Program Management Programs.    https://www.acqnotes.com/Attachments/DAU%20Joint%20Program%20Management%20Handbook.pdf

 

---------------------------------------------

Joint Program Office Organization.

(1) A joint program office will be established when a defense acquisition program

involves the satisfaction of validated capability requirements from multiple DoD Components or

international partners, and is funded by more than one DoD Component or partner during any

phase of the acquisition process In joint programs, a lead Component will be designated to

manage the acquisition process and act as the acquisition agent for the participating DoD

Components. The participating DoD Components (i.e., those with a requirement for the

program’s products) support and participate with the lead DoD Component in managing the

acquisition process.

 

(2) Joint programs will be managed in accordance with the provisions of a memorandum

of agreement and with the lead DoD Component’s acquisition procedures and acquisition chain

of command, unless directed otherwise by the DAE.

 

(3) DoD Components will neither terminate nor substantially reduce participation in joint

MDAPs without capability requirements validation authority review and DAE approval. The

DAE may require a DoD Component to continue some or all funding, as necessary, to sustain the

joint program in an efficient manner, despite approving a request to terminate or reduce

participation. Memorandums of agreement between DoD Components should address

termination or reduced participation by any parties to the agreement. Substantial reduction will

be determined by the MDA in coordination with the requirements validation authority, and is

defined as a funding or quantity decrease that impacts the viability of the program or

significantly increases the costs to the other participants in the program

--------------------------------------------------------------------------------------------------

Posted506237/27/2021 3:44 PM
EMMETT SIMMONSBusiness
19578
  
DAU132560005517/25/2021
Contracting
How does an acquiring activity amend a DD Form 448-2 MIPR Acceptance?
Received a MIPR acceptance containing administrative error. The acquiring activity seems confused about how to correct it. DFARS PGIs and department MIPR guides have no information about correcting the DD 448-2.

One option is to cancel the MIPR and issue a new one. The acquiring activity can then accept it again...hopefully this time without the administrative error that seems to be creating confusion. DCMA's MIPR Instruction may provide additional information relevant to your situation.

 

Posted506187/26/2021 7:18 AM
EMMETT SIMMONSContracting
19579
  
DAU132560005517/25/2021
Contracting
Would you classify Team Chief Legacy wall as an mission accomplishment award or a decoration. Based on that classification is the use of appropriated funds authorized?
 An inquiry has been asked by a unit to establish a Team Chief Legacy wall.  The name will be engraved on a name plate and added to their wall of all prior Team Chief's.  The display will be in a common area in their building to show recognition for the accomplishments those who have held the position.

This question need to be examined IAW the applicable Air Force (AF) Manual. Procurement of recognition items for Air Force special trophies, awards, decorations and memorialization programs is addressed in AFMAN 36-2806. Paragraph 2.9 says commanders and civilian directors may authorize the use of unit funds for reasonable costs, such as the purchase of trophies, plaques, certificates and other items intended primarily for presentation... Interpretation of the AFMAN is awards are given to those who made significant contributions to the AF or functional area. If the purpose of this display is to recognize all those who held a certain position, how is holding a position making a significant contribution?

Paragraph 3.1 says commanders use decorations to recognize meritorious or outstanding service as well as excellence above and beyond the actions of others. How does merely holding a position fall under this intention? Ultimately, this sounds like a question for your installation legal counsel. 

Posted506107/26/2021 2:44 PM
EMMETT SIMMONSContracting
19577
  
DAU132560005517/21/2021
Contracting
How many days does a SAP buy have to be posted on Beta.Sam or SEWP?
posting changes

The timelines for publicizing contract actions varies greatly based upon the total anticipated dollar amount, as well as the type of requirement(s) being procured (e.g., commercial item, non-commercial item, A-E services, etc…).  That being said, whenever agencies are required to publicize notice of proposed contract actions under 5.201, they must proceed as follows (see FAR 5.203):

      (a) An agency must transmit a notice of proposed contract action to the GPE (see 5.201). All publicizing and response times are calculated based on the date of publication. The publication date is the date the notice appears on the GPE. The notice must be published at least 15 days before issuance of a solicitation, or a proposed contract action the Government intends to solicit and negotiate with only one source under the authority of 6.302, except that, for acquisitions of commercial items, the contracting officer may-

           (1) Establish a shorter period for issuance of the solicitation; or

           (2) Use the combined synopsis and solicitation procedure (see 12.603).

      (b) The contracting officer must establish a solicitation response time that will afford potential offerors a reasonable opportunity to respond to each proposed contract action, (including actions where the notice of proposed contract action and solicitation information is accessible through the GPE), in an amount estimated to be greater than $25,000, but not greater than the simplified acquisition threshold; or each contract action for the acquisition of commercial items in an amount estimated to be greater than $25,000. The contracting officer should consider the circumstances of the individual acquisition, such as the complexity, commerciality, availability, and urgency, when establishing the solicitation response time.

      (c) Except for the acquisition of commercial items (see 5.203(b)), agencies shall allow at least a 30-day response time for receipt of bids or proposals from the date of issuance of a solicitation, if the proposed contract action is expected to exceed the simplified acquisition threshold.

      (d) Agencies shall allow at least a 30 day response time from the date of publication of a proper notice of intent to contract for architect-engineer services or before issuance of an order under a basic ordering agreement or similar arrangement if the proposed contract action is expected to exceed the simplified acquisition threshold.

      (e) Agencies must allow at least a 45-day response time for receipt of bids or proposals from the date of publication of the notice required in 5.201 for proposed contract actions categorized as research and development if the proposed contract action is expected to exceed the simplified acquisition threshold.

      (f) Nothing in this subpart prohibits officers or employees of agencies from responding to requests for information.

      (g) Contracting officers may, unless they have evidence to the contrary, presume the notice was published one day after transmission to the GPE. This presumption does not negate the mandatory waiting or response times specified in paragraphs (a) through (d) of this section. Upon learning that a particular notice has not in fact been published within the presumed timeframes, contracting officers should consider whether the date for receipt of offers can be extended or whether circumstances have become sufficiently compelling to justify proceeding with the proposed contract action under the authority of 5.202(a)(2).

      (h) In addition to other requirements set forth in this section, for acquisitions covered by the World Trade Organization Government Procurement Agreement or a Free Trade Agreement (see subpart  25.4), the period of time between publication of the synopsis notice and receipt of offers must be no less than 40 days. However, if the acquisition falls within a general category identified in an annual forecast, the availability of which is published, the contracting officer may reduce this time period to as few as 10 days.

<<END>>

Posted506047/22/2021 8:37 AM
EMMETT SIMMONSContracting
19574
  
DAU132560005517/20/2021
Contracting; Program Management
Have the two courses been reviewed and adjusted to each other and/or considered equivalents for each other?
CORs have historically been required to complete DAU CLC 107 if they review contracts.  With change 1 (dated 9 Jun 2020) to AFI 10-701, paragraph 4.4.3 added a and additional requirement to complete an OPSEC fundamentals via https://www.iad.gov/ioss.  It has been communicated that “OPSEC Fundamentals” course is in addition to the DAU CLC 107 “OPSEC Contract Requirements” COR training requirement.

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

DAU has no say in how a service, in this case the Air Force, chooses to qualify/certify its contracting officer representatives (CORs).  The Air Force made a change to its instruction and apparently added OPSEC Fundamentals to COR training.  If the Air Force believes its change affects the content of the DAU course, it would should identify potential/possible issues to DAU.  The Air Force is the organization that needs to make any determination of redundancy.  DAU has no authority or right to tell the Air Force what its training requirements are, particularly below the DoD level.

 

Posted506137/21/2021 11:22 AM
EMMETT SIMMONSContracting; Program Management
19575
  
DAU132560005517/20/2021
Contracting
Is this type of terminology and strategy normal for DoD services? Where can this verbiage be found within DoDI, etc.
Starting in contracting for re-acquisitions (services), I was introduced to multifunctional team (MFT) meetings and docs (Charter, Sign-in sheet, Minutes, Agenda).  In construction we lean toward the term kick-offs.

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

We are assuming you are referring to Post Award Orientation, the details of which you will find in FAR subpart 42.5.  Post Award Orientations are commonly referred to as kick-offs.  "Multifunctional team meeting" is, we believe, a generic term - not specific to any particularly type of meeting.  It should seem to be the way the Management Information System/documentation database your organization is using refers to meetings.  Understanding the purpose of a meeting and its intended outcomes is the focus.

Posted506127/21/2021 11:23 AM
EMMETT SIMMONSContracting
19576
  
DAU132560005517/20/2021
Contracting
Am I required to conduct MR? If so, should it be tactical (Market Investigation) or strategic (Market Survey)?
I understand there is a tactical MR and strategic MR. I know where to find guidance on MR requirement in FAR Part 10.001(a)(2). I am contracting for an AE Firm Fixed-Price construction contract under the SAT. This will likely be a SB set-aside.

The short answer is "Yes," Market Research is required.  Generally, when we are at the point of need (awarding a contract), we are looking at tactical market research, while we use strategic MR to assist in developing or refining our requirements. 

FAR 10.002(b)(1) tells us that the extent of market research required is dependent on numerous factors, and that we may use research that was already conducted within the past 18 months.  If you look at the A&E contracting process at FAR 36.603, and DFARS 236.272 and your activity has conducted the process of prequalifying sources, then the requirements for market research may have been satisfied through that process.  Provided that this data is current (within 18 months) you could document this in your SAT file as the market research utilized for your contracting action.  

Posted506117/21/2021 1:52 PM
EMMETT SIMMONSContracting
19570
  
DAU132560005517/18/2021
Contracting
My question is does Performance Based Acquisition (PBA) strategy apply only to service acquisitions over $25000 or is it required to be applied to any service contracts regardless of dollar value?
PBSA Question as it relates to Service contracts

Good Morning, thanks for this great question.  FAR 37.102 (a) and Public Law 106-398, section 821 state that Performance Based Acquisition (see subpart 37.6) is the preferred method for acquiring services and should be used to the maximum extent practicable, with the following exceptions; Architect-engineer services, Construction (see Part 36), Utility services (see Part 41), or Services that are incidental to supply purchases.  Additionally FAR 7.105 states " Acquisition plans for service contracts or orders must describe the strategies for implementing performance-based acquisition methods or must provide rationale for not using those methods."  So to answer your question if your services acquisition does not meet one of the previously stated then PBA is the preferred strategy.  Also I would recommend checking to see if your agency has any supplemental guidance that may provide further direction, for example in AFI 63-138 section 4.3.3. and AFFARS 5337.170-2 the Air Force requires Services Designated Official approval for any action that is not performance based and is above the Simplified Acquisition Threshold.  Hopefully this answers your question, and I hope you have a great day. 

Posted506057/19/2021 10:28 AM
EMMETT SIMMONSContracting
19571
  
DAU132560005517/18/2021
Life Cycle Logistics
My team manages equipment programs that have legacy PPPs that were created/formally approved during the acquisition phase and transitioned to sustainment. In some cases these PPPs were developed over 10 years ago. Per AFMAN 63-113, we understand the requirement to conduct reviews every three years to verify no new threats have emerged to Critical Program Information (CPI) and/or Critical Components (CC) for the programs. Question: 1. Is the sustainment office required to update the PPP to the latest format, if no new threats are identified to CPI and/or CC? Guidance for management of PPPs within sustainment is limited, Defense Acquisition Guidebook (DAG), Chapter 13 states "Further guidance on sustainment considerations for Program Protection will be provided in the next Defense Acquisition Guidebook (DAG) update." Our staff is limited and we lack resources to bring older PPPs to modern format. Your feedback would be greatly appreciated!
What is the criteria for maintaining latest format with respect to Program Protection Plans (PPP) that have formally transferred from acquisition to sustainment program management?

Thank you for your question about Program Protection Plan updating requirements.

At present the approved template for PPPs is still the 2011 DoD Template.  It has not changed.

This instruction is the most current guideance directing the preparation of PPPs:  https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/500083p.pdf?ver=fmz4Sx5tYVXnJZNKIoPoUQ%3D%3D

This instruction does not require updating the PPP if there are no new threat elements identified.

Posted505937/19/2021 11:37 AM
EMMETT SIMMONSLife Cycle Logistics
19572
  
DAU132560005517/18/2021
Life Cycle Logistics
Is there an outline that identifies the requirements of an SCRM training plan for a program office? Is SCRM training included in Acquisition certifications?
Cybersecurity Strategy document development requires an SCRM training plan

Thank you for your question regarding Supply Chain Risk Management Training.

At present DAU does not provide an outline of requirements of an SCRM training plan.  We DO facilitate a lesson on Supply Chain Risk Management in the PQM course content - but this content will very soon be terminated.

I can recommend excellent SCRM content to be found at this site:  https://www.cdse.edu/toolkits/ci/supply.html

SCRM is not presently covered by a DAWIA competency compelling a certification.

Posted504427/19/2021 11:38 AM
EMMETT SIMMONSLife Cycle Logistics
19573
  
DAU132560005517/18/2021
Contracting
Does the Defense contractor’s electronic property management system meet the intent of FAR 52.245-1 section (f)(1)(ii) to “…identify as Government owned in a manner appropriate to the type of property (e.g., stamp, tag, mark, or other identification)”? Or does the Special Tooling require a physical ownership marking (i.e. “GOV”) in addition to its unique identification that is traceable to the contractor’s property record which also notes the assets ownership as GOV?
Defense contractor’s Special Tooling (ST) is physically marked with a unique identification number that is serialized and barcoded, and both the unique ID and barcode are both traceable to the contractor’s electronic property management system which contains property records that comply with FAR 52.245-1 (f)(1), including, but not limited to, part number, description, quantity, acquisition cost, and ownership. Additionally, each unit of Government owned Special Tooling is physically marked (typically engraved or permanently labeled) as “GOV.”

The Defense contractor’s electronic property management system is considered the golden source for property information including, but not limited to, ownership. Physically marking Government ownership in addition to maintaining an electronic database that contains ownership provides opportunity for errors (i.e. missing or inadvertent errors in the physical ownership marking, even though the ownership noted within the contractor’s electronic property record is correct).

Generally speaking, no the Defense contractor’s electronic property management system does not meet the intent of FAR 52.245-1(f)(1)(ii). The intent for Government property to be physically marked with an indication of Government ownership is inferred by the examples given (i.e., stamp, tag, mark, or other identification).  Physically marking Government property with an indication of Government ownership assists in ensuring that Government property isn’t confused with contractor-owned property and subsequently used for unauthorized purposes.  Based on the background information provided, there is nothing that prevents the Special Tooling from being marked with an indication of Government ownership since it is already engraved or permanently labeled with “GOV.” An exception would be if it is impractical to mark the property because it would interfere with the functioning of the item. In that case, the contractor would have to address how such property will be indicated as Government property. This is something that should be discussed with the assigned property administrator.

Posted506067/19/2021 4:16 PM
EMMETT SIMMONSContracting
19569
  
DAU132560005517/15/2021
Program Management
Are there best practices or examples of approaches to assigning Functional Sponsor or Functional Lead? (e.g., level/grade of each role, location within organization, etc.)
The DoDI 5000.75 defines business systems roles related to requirements and acquisition process. While some roles (e.g., Program Manager) are well aligned with parts of an organization (e.g., PEO) other roles including Functional Sponsor and Function Lead are not as well aligned. As an organization, we have a business process / workflow management product (business system) that will supports both back office and mission areas. The agency needs to assign a Functional Sponsor and Function Lead for the business system.

Assignment of the Functional Sponsor and Functional Lead is at the discretion of the Service Component or Agency. DoDI 5000.75 assigns responsibilities to each and although it does not specify grade or rank requirements, it does identify the necessary authority for each role. Because the Functional Sponsor is intended to be a Service Component Senior leader with the necessary authority within the Service Component or Agency’s business domain to define business requirements and commit funding he/she is assumed to be a Senior Executive or Flag Officer and  is the Milestone Decision Authority’s (MDA) counterpart. Likewise, the Functional Lead represents the Business Area on behalf of the Functional Sponsor and is the Program Manager’s closest counterpart. He/She is frequently of the same grade or rank as the Program Manager, but it is not a requirement if he/she has the necessary skills and authority to fulfill the Functional Lead’s responsibilities.

The Defense Business System Community of Practice (https://www.milsuite.mil/book/groups/ bcaccommunity) and DAU’s Adaptive Acquisition Framework website (https://aaf.dau.edu/dbs-resources) provide additional resources, including implementation guides by both the Army and Air Force that further define responsibilities.

Posted504637/16/2021 8:35 AM
EMMETT SIMMONSProgram Management
19565
  
DAU132560005517/13/2021
Contracting
What is the disposal for Simplified Acquisition Threshold - isn't it 3yrs?
I looked in the FAR to look for changes or updates to disposal dates and I don't see the separate date for under SAT?  There used to be a separate disposal date of 3yrs instead of 6yrs,  I looked in DoD supplement that also didn't decrease the date for SAT, then the Army supplement had nothing. 

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

Our search of the FAR/DFARS/AFARS and National Archives Records Administration General Records Schedule (GRS) show 6 years as the retention period for the official contract file if the file/contract does not meet some exception (GRS Item 010).  Contracts at or under the Simplified Acquisition Threshold fell under the 6-year retention period.

The office is allowed to destroy records that are not part of the official contract file when business use ceases (GRS Item 011). 

Posted506017/14/2021 7:24 AM
EMMETT SIMMONSContracting
19566
  
DAU132560005517/13/2021
Contracting
Can a warranted FAR Based KO use non appropriated funds to obligate the Government?
Question related to non appropriated funds.

A warranted FAR based KO cannot use non-appropriated funds to obligate the Government. 

Per the FAR 1.104 Applicability: The FAR applies to all acquisitions as defined in part 2 of the FAR, except where expressly excluded.

Acquisition is defined in FAR 2.101: "'Acquisition' means the acquiring by contract with appropriated funds of supplies and services by and for the use of the Federal Government through purchase or lease…”

Contract is defined in FAR 2.101, "Contract’ means a mutual binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing…”

The Foreward of the FAR states, "The FAR is the primary regulation for use by all executive agencies in their acquisition of supplies and services with appropriated funds."

Since you are asking about a FAR based KO, when it comes to using non-appropriated funds, the FAR does not apply.

However, like with most things, some agencies have exceptions.  The Navy has SECNAVINST 7043.5C dated 03 May 2021.  This instruction is titled “NONAPPROPRIATED FUND PROCUREMENT POLICY” and establishes a NAF procurement policy within the Department of the Navy (DON) for MWR, Military Resale, and Construction.

Posted505137/14/2021 3:13 PM
EMMETT SIMMONSContracting
19567
  
DAU132560005517/13/2021
Contracting
Is there anyway that an NTP can be delayed due to unforseen complications once it is sent out? I am assuming the 14 days should not count as part of the contractor scheduled work. they were given 56 days for the first portion of this project.
I have sent out the Notice to Proceed with the approval of both the end user and the contractor. However, it was found that a work permit will be needed to do work in base. After the form is filled out by the contractor, Civil Engineer on base will need 14 days to fill out locates before the contractor does any digging.

Yes, a Notice to Proceed can be delayed. Use of this clause provides a degree of flexibility. Generally the clause 52-211-10 is included in the contract.  It is a "fill in the blank clause" at the contracting officer's discretion.  So what Ii would do is issue a mod to add the days to this clause to delay the start of work and add the days to contract completion.  But yes,  it would be fair and reasonable to account for what is an action beyond the control of the contractor (delay caused by the base Civil Engineer).

52.211-10 Commencement, Prosecution, and Completion of Work.

As prescribed in 11.404(b), insert the following clause in solicitations and contracts when a fixed-price construction contract is contemplated. The clause may be changed to accommodate the issuance of orders under indefinite-delivery contracts for construction.

Commencement, Prosecution, and Completion of Work (Apr 1984)

The Contractor shall be required to (a) commence work under this contract within _________ [Contracting Officer insert number] calendar days after the date the Contractor receives the notice to proceed, (b) prosecute the work diligently, and (c) complete the entire work ready for use not later than ______________.* The time stated for completion shall include final cleanup of the premises.

* The Contracting Officer shall specify either a number of days after the date the contractor receives the notice to proceed, or a calendar date

Posted503917/14/2021 3:20 PM
EMMETT SIMMONSContracting
19568
  
DAU132560005517/13/2021
Contracting
I need help with ensuring I'm filtering the Clause Matrix correctly. When sending my RFQ document for review to the contracting officer (KO), he has listed several clauses that were filtered out based on (what I can conclude) as Contracting Purpose section #2 section of the filter, where I unchecked "blanks" for Commercial SUP. For example, Clause 252.204-7003 Control of Government Personnel Work Product has a prescription of "Use this clause in all solicitations and contracts", a R(required) in Column J for #1 Contract Type for FP, but in Column W for #2 Contract Purpose, Commercial SUP, the cell is blank. When I filter results based on my procurement type, this clause was not showing to include, however the KO's review asked me to include this clause, along with a few others that have the similar results. Would someone be able to help? There's an expedited award need by date, and while I've just added the clauses the KO has requested, I'm trying to ensure going forward that I'm filtering correctly so my RFQ postings sent for review are more accurate. Thank you!
I can not access the FAR Matrix "how to" video and have tried on Edge, Internet Explorer and Chrome.   I'm currently filtering by FFP to remove blanks, then by Commercial Supply to remove those blanks.  My procurement is on NASA SEWP, so I'm also filtering by DFARS.  Procurement is over SAT, so I'm leaving #3 portion alone, with no filter.  Using the most current March 2021 Clause matrix downloaded from DAU website.   Would a professor be able to call me to discuss since I can not access the training video (helpdesk thinks it's a security setting on our NMCI network, and not a quick fix, but has been requested)

First, try this link to see if you can access the "How-to" video: 

https://media.dau.edu/media/DAU+Provision+and+Clause+Matrix+How-to+Video/1_z9d28a0l 
 

Next, to your issue. First- thank  you very much for your feedback. Apparently there was a glitch causing certain DFARS clauses to not appear, even when filtering for DFARS clauses. (Strange) 

Anyway, I have fixed the issue in the matrix, and I'm going to push out an updated version of the matrix today. 

I hope this solves the issue. 

Should you need to contact me directly, please feel free to do so at mark.jenkins@dau.edu. 

Thanks again for your feedback! 

 

Posted503887/14/2021 3:21 PM
EMMETT SIMMONSContracting
19563
  
DAU132560005517/12/2021
Contracting
Can 52.212-4 and 52.246-4 be incorporated in a contract? If so, does DCMA have a right to perform in process evaluations, audits, PQDR investigations and other surveillance?
Contracts include both the 52.212-4 and the 52.246-4 clause. There are numerous quality issues and the procuring activities are continually requesting DCMA to perform PQDR investigations where the 52.212-2 and the 52.246-4 clauses are invoked.

A key to this question is FAR 12.208, which states: "Contracts for commercial items shall rely on contractors’ existing quality assurance systems as a substitute for Government inspection and testing before tender for acceptance unless customary market practices for the commercial item being acquired include in-process inspection. Any in-process inspection by the Government shall be conducted in a manner consistent with commercial practice." This mandate prohibits the Government from imposing inspection requirements on the contractor if such requirements and the associated processes are not "consistent with commercial practice." FAR 12.301(a)(2) provides more support to the use of standard commercial practices and clauses for commercial item acquisition. It is natural that the Government would want to exercise strict quality assurance methods to ensure it gets exactly what it contracted for. However, FAR Part 12 was developed to promote the use of customary commercial practices, even if the Government isn't able to enjoy all the benefits of strict quality assurance measures. If exceptions to FAR Part 12 were routinely made, then it would become less relevant. Although the procuring activities would prefer additional quality inspections, the benefits of having FAR Part 12 (i.e., encourage more Industry participation in federal contracting) generally outweigh other considerations such as non-commercial quality procedures.

Posted505677/13/2021 10:46 AM
EMMETT SIMMONSContracting
19564
  
DAU132560005517/12/2021
Life Cycle Logistics
Still not being completely clear on what exactly digital acquisition is and what it entails, what areas in the Logistics arena is digital acquisition applicable? Please provide examples or possible scenarios.
Challenged to apply digital acquisition methodology to the acquisition and sustainment efforts of both new procurement and legacy automatic test systems.

"Digital acquisition" (and its pseudonyms) is an evolving concept that cuts across all functional disciplines, including Life Cycle Logistics.  Its goal is to deliver relevant capability to the warfighter more quickly and to sustain systems more affordably.  In general, digital acquisition involves the use of digital models (e.g., three-dimensional computer-aided design, or 3D CAD) to support the design, development, testing, and sustainment of DoD systems.  This includes support equipment such as automatic test systems (ATS).  New ATS could be procured or legacy ATS could be modified using digital acquisition approaches.  In addition, there are many life cycle logistics activities that can benefit from the use of digital models, including: technical manual updates, obsolescence management and part reprocurement, advanced manufacturing, immersive training, condition-based maintenance, technical assistance request disposition, product improvement, and more.  To learn more, you may wish to complete our online training course CLE 084, Models, Simulations, and Digital Engineering and/or consult the Acquipedia article on Product Lifecycle Management (PLM) or a recent Defense Acquisition Magazine article, "Model-Based Engineering for Product Support".   

Posted506037/13/2021 3:22 PM
EMMETT SIMMONSLife Cycle Logistics
19562
  
DAU132560005517/11/2021
Contracting; Business
Can I obligate the government to purchase a supply (asphalt, concrete and other construction material) that will be use on the project that crosses the fiscal year? The first delivery of the item will be in September and partial delivery will be completed in FY 22 depending when will the project will be completed. Am I violating the bona fide need rule and ADA?
We have an approved multi-year project. The project is funded by annual appropriation (FSRM).

We get this question often at AAP; you can access our full Q&A repository using Search, located in the top-right corner of our site. There are some great answers to questions very similar to yours.  As a result, I will keep this short and to the point.

For your scenario, you would only be violating the Anti-Deficiency Act (Title 31, U.S. Code, Sec 1341 & 1517) if you obligated money in excess of the amount you have available or you obligated in advance of having the appropriation (e.g. obligated FY22 money in FY 21. September per your example above). See our great Aquipedia article on Anti-Deficiency.

Bona Fide Need Rule: “The balance of an appropriation or fund limited for obligation to a definite period is available only for payment of expenses properly incurred during the period of availability…” 31 USC §1502(a).

Construction contracts have different rules to help agencies determine the bona fide need; for us in DoD, we follow the statutory guidance at 10 USC §§ 2801 and 2811.

The following is from the 2019 Fiscal Law Desk Book (Chapter 3): Contracts for construction are considered as similar to non-severable service contracts. Construction contracts may constitute a bona fide need of the fiscal year in which the contract is awarded even though performance is not completed until the following fiscal year. However, the requirement to enter into the contract must exist during the funds’ period of availability. The contracting agency must intend for the contractor to begin work without delay.

A determination of what constitutes a bona fide need of a particular year depends upon the facts and circumstances of a particular year (e.g. weather). Associate General Counsel Kepplinger, B-235086, Apr. 24, 1991. In analyzing bona fide needs for construction contracts, the agency should consider the following factors:

  • Normal weather conditions. A project that cannot reasonably be expected to commence on-site performance before the onset of winter weather is not the bona fide need of the prior fiscal year.
  • The required delivery date.
  • The date the government intends to make facilities, sites, or tools available to the contractor for construction work.
  • The degree of actual control the government has over when the contractor may begin work.

For example, suppose a barracks will not be available for renovation until 27 December 2016 because a brigade is deploying on 20 December and cannot be disrupted between 1 October and 20 December. If the normal lead-time for starting a renovation project of this type is 15 days, then the renovation is a bona fide need of FY 2017 and the contract should be awarded in FY 2017 using FY 2017 funds. Accordingly, use of FY 2016 funds under these facts violates the Bona Fide Needs Rule.

For your scenario; if the materials you are ordering in September need to be ordered in September to meet the construction schedule, you would not be violating the bona fide need rule.

Posted506027/12/2021 7:28 AM
EMMETT SIMMONSContracting; Business
19558
  
DAU132560005517/8/2021
Contracting
Is there a policy that states that if the Non-IT requirement is less than 51% service then it would be considered supply with incidental service?
1.  Purpose:  Buildout individual offices and a conference room.

2.  Facts: The current office configurations in room 169 and 317 does not provide the necessary privacy or confidentiality required for the service provided by the Office of Diversity and Inclusion Directorate. In addition, there is not a dedicated conference room to conduct mediation, investigations and/or hearings.

3.  Contract Requirements:  To install floor to ceiling walls and swinging doors to create individual office spaces in rooms 169 and 317, as well as floor to ceiling walls with two swinging doors to create a conference room within room 208.

The scope described in the question background of this question appears to be construction as the work is altering a building and will result in a "complete and usable improvement to an existing facility" IAW 10 U.S.C. § 2801. According to FAR part 2, construction is defined as construction, alteration, or repair on buildings, structures, or other real property.

The definition of a service contract is at FAR 37.101. A service is performing an identifiable task rather than to furnish an end item of supply. The definition of supply is in FAR part 2, which means buying property, all property except for land. Ultimately the contracting officer will have to make the determination of classifying this requirement as to the type of buy. 

 

Posted505977/9/2021 8:16 AM
EMMETT SIMMONSContracting
19559
  
DAU132560005517/8/2021
Contracting
If a cardholder visits the BSC prior to awarding a PO because they are not certain of all the items they will be purchasing, and makes a purchase but fails to create a PR and award a PO on the same day as the purchase, is this considered an unauthorized commitment (e.g., the purchase is made on 6/28/2021 and the PO is awarded on 6/29/2021)? The date on the invoice would be 6/28/2021 and the award date on the PO would be 6/29/2021. If this is considered an unauthorized commitment, what is the applicable FAR reference? If this is NOT considered an unauthorized commitment, what is the applicable FAR reference? (Our financial system of record is ERP.
Our Command will be opening a Base Supply Center (BSC) (similar to a Servmart) operated by the Blind Industry and Services of Maryland (BISM) and the method of payment for purchases is by the Government Purchase Card.

Per FAR 1.602-3 Ratification of unauthorized commitments.

(a) Definitions.

Unauthorized commitment, as used in this subsection, means an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government.

Based on the definition, this scenarion would not create an unauthorized commitment because the cardholder should have the authority to purchase and make the payment.  This would be true as long as they are not exceeding any authority on what items from the BCS they are allowed to purchase (if any restrictions) or dollar limitations they may have.

Contact with the question submitter revealed the purchase card program coordinator will develop a verification process to be used within their ERP payment system.

 

 

Posted505947/9/2021 8:18 AM
EMMETT SIMMONSContracting
19560
  
DAU132560005517/8/2021
Contracting
OTAs - Does the Cost Plus Percentage of Cost Prohibition of contract type apply to OTA awards?
Researching the applicability of the CPPC prohibition to contractor OTA projected overruns.

The DoD OT guide dated Nov 2018 is the current DoD guide for OTs, see the below link. This current guide does not specifically address contract types, nor does 10 U.S. Code § 2371b. The OT Guide for prototype projects from 2002 (now rescinded) listed statutes that applied to procurement contracts, but not necessarily OTs for prototype projects. One of those statutes is still in effect, 10 U.S. Code § 2306(a), but it applies to contracts. It states "The cost-plus-a-percentage-of-cost system of contracting may not be used." 

Since there is nothing in writing that restricts this contract type for OTs, it is recommended to talk to your procurement team and legal counsel to determine the best contract type for the requirement. The current OT Guide does say "Activities seeking to award OTs should consult with legal counsel for interpretation of statutory, regulatory, and formal policy requirements. If a strategy, practice, or procedure is in the best interest of the Government and is not prohibited by law or Executive Order, the Government team should assume it is permitted"; see page 3. Applying good business acumen would be needed to determine if this contract type would it be in the best interest of the Government.

https://www.dau.edu/guidebooks/Shared%20Documents/Other%20Transactions%20(OT)%20Guide.pdf

 

Posted505997/9/2021 11:30 AM
EMMETT SIMMONSContracting
19561
  
DAU132560005517/8/2021
Contracting
Is AoA (Congressional Notification) required for Master Blanket Purchase Agreement with a cumulative value of $7.5M.
Multiple Master BPAs issued for Material Hauling Services for a ordering period of 5 years and a NTE ceiling of $7.5M.

Bottom line up front: A Blanket Purchase Agreement (BPA) is not a contract.  Goods and services are acquired under a BPA when an order (aka "a call") is issued.  According to FAR 13.303-1(a) A blanket purchase agreement (BPA) is a simplified method of filling anticipated repetitive needs for supplies or services by establishing "charge accounts" with qualified sources of supply (see subpart  16.7 for additional coverage of agreements).  FAR Subpart 16.7 makes it pretty clear that agreements are NOT contracts (See FAR 16.702(a) & 16.703(a)  Also take a look at 48 C.F.R. § 4.1101).  According to DFARS 205.303(a)(i), the threshold for congressional notification of DoD awards is $7.5 million.  It further states you must report all CONTRACTUAL ACTIONS, including modifications, that have a face value, excluding unexercised options, of more than $7.5 million.  In your case, the establishment of a master BPA does not constitute a CONTRACTUAL ACTION.  Therefore, an announcement of contract award in accordance with FAR 5.303 and DFARS 205.303 would not be required, regardless of the dollar value, for the master BPA.  Below I've inserted excerpts from the FAR/DFARs references that I think are applicable to your question.

FAR 5.303 Announcement of contract awards.

      (a) Public announcement. Contracting officers shall make information available on awards over $4.5 million (unless another dollar amount is specified in agency acquisition regulations) in sufficient time for the agency concerned to announce it by 5 p.m. Washington, DC, time on the day of award. Agencies shall not release information on awards before the public release time of 5 p.m. Washington, DC time. Contracts excluded from this reporting requirement include-

           (1) Those placed with the Small Business Administration under Section 8(a) of the Small Business Act;

           (2) Those placed with foreign firms when the place of delivery or performance is outside the United States and its outlying areas; and

           (3) Those for which synopsis was exempted under 5.202(a)(1).

 

DFARS 205.303 Announcement of contract awards.

(a) Public Announcement.

(i) The threshold for DoD awards is $7.5 million. Report all contractual actions, including modifications, that have a face value, excluding unexercised options, of more than $7.5 million.

(A) For undefinitized contractual actions, report the not-to-exceed (NTE) amount. Later, if the definitized amount exceeds the NTE amount by more than $7.5 million, report only the amount exceeding the NTE.

(B) For indefinite delivery, time and material, labor hour, and similar contracts, report the initial award if the estimated face value, excluding unexercised options, is more than $7.5 million. Do not report orders up to the estimated value, but after the estimated value is reached, report subsequent modifications and orders that have a face value of more than $7.5 million.

(C) Do not report the same work twice.

 

FAR 13.303-1 General.

      (a) A blanket purchase agreement (BPA) is a simplified method of filling anticipated repetitive needs for supplies or services by establishing "charge accounts" with qualified sources of supply (see subpart  16.7 for additional coverage of agreements).

 

FAR 16.701 Scope.

This subpart prescribes policies and procedures for establishing and using basic agreements and basic ordering agreements. (See 13.303 for blanket purchase agreements (BPA’s) and see 35.015(b) for additional coverage of basic agreements with educational institutions and nonprofit organizations.)

 

48 C.F.R. § 4.1101 defines “agreement” as “basic agreement, basic ordering agreement, or blanket purchase agreement.”

 

Posted505967/9/2021 12:31 PM
EMMETT SIMMONSContracting
19556
  
DAU132560005517/7/2021
Contracting
May a government buyer create an account on a vendor site in order to use the GPC to make a purchase?
Using GPC to purchase products on vendor site/portal: FAR Part 13 allows the use of the GPC to make purchases under the micro-purchase threshold. Many online purchasing sites require a user to set up an account before making a purchase.

The DOD GPC Guidebook (2017 ed.) does not specifically address setting up accounts on vendor sites to make GPC purchases.  However, since the GPC is designated as a method of payment, you should be able to set up an account with the following caveats:

1) The cardholder should establish the account, and provide their immediate Agency/Organzation Program Coordinator (or a designed representative) the login and password to ensure the same level of oversight as the GPC website.

2) The A/OPC should be consulted to determine if the card number should be saved on the vendor webste, or if the cardholder must input the card number for each set of new transactions. 

3) Any statements generated by the vendor site should be downloaded and maintained to verify against the GPC website to ensure procurement integrity. 

4) The A/OPC should determine if the vendor site contains an adequate level of credit card security. 

     These recommendations are the result of my experience as a level 5 APC.  Your  A/OPC will decide what determinations to make above and beyond these recommendations at their discretion.       

Posted505927/8/2021 7:10 AM
EMMETT SIMMONSContracting
19557
  
DAU132560005517/7/2021
Contracting
Since the Technical Order 34A-2-1 specifically states the Air Force's only approved Direct Metal Additive Printing System is the EOS M290 do we still need to provide market research? If so, how do we annotate with the market research that the other commercially available Additive Printing Systems do not meet the Air Force's requirements? Or is there another FAR reference we can use to justify the Sole Source purchase?
HQ Air Mobility Command is facilitating the purchase of a Direct Metal Additive Printing System for Travis AFB 60th Maintenance Squadron through a GSA contract. The purchase cost of the Additive Printing System is roughly $950,000. The Technical Order 34A-2-1 specifically states the EOS M290 Additive Printing System is the only system that will meet the Air Force's requirement. There are other similar Additive Printing Systems commercially available, but they have not been tested/certified due to the cost of research and testing. So, they have not been implemented as an equivalent or substitutes for the printer mentioned above. The Travis Contracting Squadron is stating we need to follow FAR 8.405-6(b)(1) and provide market research before routing the J&A.

The extent of market research depends on the nature of the acquisition and can be somewhat subjective. In fact, you already stated the basis for your market research in the background to your question. You will need to document that contract file with how "...market research indicates other companies’ similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the agency's needs" [FAR 8.405-6(b)(1)]. A concise paragraph on how you made that determination, so that a reviewer can follow the logic, should suffice.

Posted505957/8/2021 9:36 AM
EMMETT SIMMONSContracting
19555
  
DAU132560005517/6/2021
Engineering and Technical Management
If there is a template., can you please point out where I can find it. Thank you
Is there a template for Test Procedures

If you are interested in seeing a template for a test procedure to use a guide or format for other test procedures, I suggest you look at MIL-STD-810H "Environmental Engineering Considerations and Laboratory Tests."  You can find a free copy here:

 

https://quicksearch.dla.mil/qsDocDetails.aspx?ident_number=35978  

 

Go through the table of contents and see if anything there looks about right for what you need.  Or, I suggest you might want to begin with Part Two "Laboratory Test Methods."  Here you will find a couple dozen specific types of environmental tests with very clear guidance and templates.  I am pretty sure any one of these could be a good template to follow. 

 

If you still don't find a good template to adopt/follow within MIL-STD-810H, the I suggest you explore the ASSIST database.  Go to the ASSIST database:  https://quicksearch.dla.mil/qsSearch.aspx and just start searching.  To streamline your search Just type “MIL” in the Document ID, select “Active” if all you want are current/valid documents and then go to the Find term box and type in any free text of what you are looking for.  A quick search for active MIL type documents containing the term "reliability" found 8 full pages.  Some are military specifications, some are military standards and there are other documents as well.  After a while you will figure out what you are looking for and my guess is you will pretty quickly find just what you are looking for. 

 

Posted505917/7/2021 1:43 PM
EMMETT SIMMONSEngineering and Technical Management
19554
  
DAU132560005517/5/2021
Contracting
Is formal source selection required when executing a task order >$100M under Part 16.505 and the value is >$100M. If so, what is the regulation? Our read is formal source selections are not required for task orders >$100M per FAR 16.505(b)(ii) but recommended / shall be “considered” for task orders >$10M per the DoD Source Selection Plan (SSP).
In discussing the schedule, formal source selection came up.  Reviewed the PAM site, FAR, DFAR, AFAR, PGI, and DoD SSP.  We have not found a regulation in black/white that says formal source selection is required for task orders >$100M and want to make sure we're not missing something.

Paragraph 1.2.3 of the DOD Source Selection Procedures states: "Agencies shall consider the use of these procedures for orders under multiple award (Fair Opportunity) greater than $10 million." In other words, formal procedures are required for basic contracts greater than $10 million and are optional, based on the contracting officer's determination, for orders over $10 million. Of course, agencies or local contracting offices may implement lower thresholds.

Posted505907/6/2021 8:41 AM
EMMETT SIMMONSContracting
19552
  
DAU163120000267/1/2021
Contracting
Based on the ACQ 165 training, the QASP is not to be apart of the contract. However, our acquisition office would like the QASP to be a contract attachment and apart of the contract. Can you provide additional insight in this matter?
ACQ 165 - Section 3.2: The QASP is not incorporated into the contract.

Please refer to the additional language/call out from ACQ 165, p 13 of 60, Lesson 3.2.

"Take Note:  The QASP is not incorporated into the contract.  This allows the government to adjust the method and frequency of inspections without modifying the contract." 

Additional resources related to QASP can be found in Quality Assurance Surveillance Plan (QASP) (dau.edu).

Posted504027/2/2021 2:41 AM
Kim StewartContracting
19553
  
DAU132560005517/1/2021
Contracting
Can a construction contractor provide multiple (four) bonds on four CLINS as opposed to providing one bond for all four CLINS in total? This is a 4 phase project with nearly two years for a POP. For example, if the project total is $8 million instead of providing an $8 million bond the contractor provides four, $2 million bonds. The contractor does not want to tie up their bonding on a phased project when Phase 1 and Phase 2 will be done within a year, but if it was on one bond it would tie up $4 million in bonding for completed work. Thanks for any help!
Construction contractor asking for bonds per CLIN on a multi-clin project.

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

You have the ability to structure you contract in a manner that makes the most business sense within the rules of the AR/DFARS/AFFARS.  The best way to accomplish the contractor's request and ensure the government's interests are protected would be to have option CLINs for each phase and a matching bond CLIN of the appropriate value for each phase.  When exercising the first phase you would also exercise the bond option for that phase.  If the work is not progressing as planned, neither the task nor the bond CLIN need be exercised until the previous wok is satisfactory.

 

The risk you run is that the bond may not be available at the time of exercise.

Posted505867/2/2021 11:26 AM
EMMETT SIMMONSContracting
19549
  
DAU132560005516/30/2021
Contracting
Is a DD2579 required for a contract modification?
My contract modification is currently undergoing policy review and the policy reviewer posed the following question: "Not sure but should we not have a DD 2579 for this action? see DFARS 219.201(c)(10)(B): (B) Making the review before issuance of the solicitation or contract modification and documenting it on DD Form 2579. To my understand one is not required and the DFAR reference he is using refers to the Small Business Specialist responsibilites. 

Yes, the contracting officer must prepare a DD Form 2579 for a contract modification and route it to the small business specialist for review. The DFARS reference you mention places responsibility for review of the form on the small business specialist, but it's the contracting officer's responsibility to prepare and route the form to the small business specialist. The small business specialist uses the information on the form to track and report contract expenditures in relation to small business goals.

Posted505857/1/2021 7:49 AM
EMMETT SIMMONSContracting
19550
  
DAU132560005516/30/2021
Contracting
Would this requirement be classified as a service or supply?
I have a requirement to procure an agency wide platform IT platform.  The platform consist of multiple IT components and software from different manufactures.   The is purchasing the platform fully assembled (integrated) as one cohesive functional unit.  

:  This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

Whether you classify it as a product or a service is your decision.  You make your choice by what you are acquiring.  From the background, you describe acquiring platforms and components which indicates a product/supply.  The question is, "How much maintenance is included over the course of the contract?"  If you are purchasing some equipment but maintaining it and possibly more, it could be considered a service.  Are the majority of the dollars going toward equipment or toward maintenance?

Posted505697/1/2021 12:50 PM
EMMETT SIMMONSContracting
19551
  
DAU132560005516/30/2021
Contracting; Life Cycle Logistics
If our FMS customer pays the contractor to manufacturer cables to run a Software Integration Lab at the contractor's location, are those cables considered Government Furnished Equipment? These are not physical USG items being provided to the contractor for free in support of the SIL. These are items USG put on a separate CLIN for the contractor to manufacturer.
The DAPML believes these are not GFE and the contract specialist believes they are GFE.  If these are considered GFE, then wouldn't all items on contract need to be logged into the WAWF GFP module?

Based on the information provided, the cables are deliverable items that the contractor is being paid to manufacture under a CLIN. The cables are not GFE since they do not meet the FAR 45.101 definitions of “Government property” or “Government-furnished property.”  In this situation, the cables also do not fall within the FAR 45.101 definition of “contractor-acquired property.” Unlike contractor-acquired property, title of the cables will not pass from the contractor until they are delivered under the CLIN. This would still be true even if it were not a FMS contract.

If the cables did meet the definition of “Government-furnished property” then FAR 45.302 would apply. It states “Requests by, or for the benefit of, foreign Governments or international organizations to use Government property shall be processed in accordance with agency procedures.” For DoD, that means complying with DFARS 245.302. Also, the Government property clause of FAR 52.245-1 would be inserted into the contract. One of the clauses required to be inserted in the contract when FAR 52.245-1 is inserted is DFARS 252.211-7007, Reporting of Government-Furnished Property. DFARS 252.211-7007 states the contractor is to report GFP to the IUID Registry, which is in the Procurement Integrated Enterprise Environment (PIEE), using the procedures at http://www.acq.osd.mil/dpap/pdi/uid/data_submission_information.html.  

Posted505767/1/2021 3:42 PM
EMMETT SIMMONSContracting; Life Cycle Logistics
19544
  
DAU132560005516/29/2021
1. Is a update to the initial IGCE required at each option year? 2. If an update is required, is there a specific reference?
We awarded a seven year FFP labor services contract with cost reimbursable CLINs (e.g. parts, equipment, travel, etc.) to support the services with a total estimated contract value of $176M.

The IGCE applies prior to award of a contract in the pre-award stage. After award, IGCEs are typically calculated for contract modifications that involve price changes (not tied to wage determinations or prices set by law or regulation). IGCEs are not updated after contract award for the total contract value since that is determined by negotiated pricing. 

FAR 1.108(c) Dollar thresholds is the convention to follow in determining the contract value, see below. The total contract value after contract award should include the base period and all options. Additionally, for cost reimbursement CLINs, the total contract value should capture the "ceiling" or max estimate. 

Unless otherwise specified, a specific dollar threshold for the purpose of applicability is the final anticipated dollar value of the action, including the dollar value of all options. If the action establishes a maximum quantity of supplies or services to be acquired or establishes a ceiling price or establishes the final price to be based on future events, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options.

Posted505806/30/2021 7:07 AM
EMMETT SIMMONS
19545
  
DAU132560005516/29/2021
Engineering and Technical Management
Q1. I am looking for all documents that can help me in the area of QA, QMS, QC documents that are practical for engineers, Logisticians to perform their work. I also write policies, instructions for QA, I have to review all documentation from the Minister directives to lower level work instructions. Q2. Where can I found QA DOD flow down documents from the Top to the lower level documents? Thank you very much
Hi,
I am looking to rewrite the QA manual for the Materiel Department. It has to be practical. I mean, from this manual the Project Manager, the System Engineer, The Quality Manger, The Life Cycle Materiel manager, the procurement Manager, The Quality supplier Manager will know EXACTLY what to do. Because our engineers are reporting that the existing documents does not help them to do their job. An example, a new PM for a procurement of an equipment or a system, does not know where to start wrt Quality. Too many documents, but no clear directives

Thank you for reaching out to DAU.  We, in the U.S., are directed by Federal Acquisition Regulations (FAR) Part 46 and Defense Federal Acquisition Regulation Supplement (DFARS) Part 246 which instruct Quality Assurance personnel on their responsibilities.  These regulations are not written in detail so that each individual contract management office can tailor them to their specific program or contract.   In fact, one of the FAR’s actually direct CMO’s to develop local policy to support the FAR and DFARS activities.  I’m afraid we don’t have the type of documents you are referring to, however, I am providing a link you can use to review the FAR and DFARS requirements.  I apologize that I could not give you more detail. 

https://www.acquisition.gov/browse/index/far

Posted505076/30/2021 10:59 AM
EMMETT SIMMONSEngineering and Technical Management
19546
  
DAU132560005516/29/2021
Contracting; Program Management
Is there a required format or content specified for inclusion in the SAW waiver? Thank you,
The DoDI 5000.74 says that SAW waivers may only be granted by the DoD Component SSM.  We have been unable to find any guidance on the format or required content of a SAW waiver.

There is no DoD prescriptive format to apply for a waiver to the Service Acquisition Workshop requirement IAW DoDI 5000.74 requirement 4.2.d for programs with total contract value over $500M or more than an annual value of $250M. Coordinate with approval authority for preferred format (IAW DoDI 5000.74, 4.2.d.(2), respective DoD Component SSM and for Special Interest Acquisitions, USD(A&S) or ASD(A)).

Posted505516/30/2021 11:11 AM
EMMETT SIMMONSContracting; Program Management
19547
  
DAU132560005516/29/2021
Life Cycle Logistics
Is maintainability (Am) considered a mandatory KPP and/or KSA in the DoD or US Air Force?
My organization (Air Force Technical Applications Center) doesn't consider maintainability (Am) as a KPP or KSA.

Hello,  a couple of quick points.

A(m) is typically associated with Materiel Availability which is one of the mandatory Sustainment KPP Metrics for Fleet Availability.(looking across the entire organization (USAF) at the entire Fleet of systems)

From the JCIDS Manual of Operations   Sustainment KPP Guide outlined in ANNEX D, Appendix G,  Enclosure B, paragraph 2.2.3.4 :

Sustainment consists of two mandatory key factors:  Material Availability and Operational Availability and three mandatory supporting Key System Attributes (KSA)  Reliability, Maintainability, and Total Ownership Cost for all Acquisition Category (ACAT) I programs. For ACAT II and below programs, the sponsor will determine the applicability of the KPP. During the Capabilities Based Assessment (CBA), the relevant sustainment criteria and alternatives will be evaluated to provide the analytical foundation for the establishment of the sustainment KPP and KSAs.

Maintainabillty was a recent addition to the list of mandaorty Sustainment KSAs.  It was included in the August 2018 revision of the JCIDS manual.

Here is an article discussing that KSA.

https://www.dau.edu/acquipedia/pages/articledetails.aspx#!718

Thank you for reaching out to DAU with your question.

 

 

 

Posted505846/30/2021 4:31 PM
EMMETT SIMMONSLife Cycle Logistics
19548
  
DAU132560005516/29/2021
Contracting
Is a DD form 2579 required for acquisitions under 10K?
DD Form 2579

Bottom Line Up Front: The DFARS states the Small Business Specialist documents their review on the DD 2579 before the solicitation or contract modification is issued for acquisitions over $10,000.  However, the FAR states the Agencies shall establish procedures including dollar thresholds for reviews, so you need to check AFFARS and your local agency policy as well.  The $10,000 threshold in DFARS is not all inclusive.  The PGI for instance states that any contract mod that increases the scope and any order under an FSS contract needs to be reviewed as well.  References that I think are applicable to your question are found below:

FAR 19.202 Specific policies.

In order to further the policy in 19.201 (a), contracting officers shall comply with the specific policies listed in this section and shall consider recommendations of the agency Director of the Office of Small and Disadvantaged Business Utilization, or for the Department of Defense, the Director of the Office of Small Business Programs, or the Director’s designee, as to whether a particular acquisition should be awarded under subpart 19.5, 19.8, 19.13, 19.14, or 19.15. Agencies shall establish procedures including dollar thresholds for review of acquisitions by the Director or the Director's designee for the purpose of making these recommendations. The contracting officer shall document the contract file whenever the Director's recommendations are not accepted, in accordance with 19.506.

DFARS 219.201 General policy.

(c) For the defense agencies, the director of the Office of Small Business Programs must be appointed by, be responsible to, and report directly to the director or deputy director of the defense agency.

(8) The responsibility for assigning small business technical advisors is delegated to the head of the contracting activity.

(10) Contracting activity small business specialists perform this function by—

(A) Reviewing and making recommendations for all acquisitions (including orders placed against Federal Supply Schedule contracts) over $10,000, except those under the simplified acquisition threshold that are totally set aside for small business concerns in accordance with FAR 19.502-2. Follow the procedures at PGI 219.201 (c)(10) regarding such reviews.

(B) Making the review before issuance of the solicitation or contract modification and documenting it on DD Form 2579, Small Business Coordination Record (see PGI 253.219-70 for instructions on completing the form);

DFARS PGI 219.201 General policy.

(c)(10)(1) Agencies are not precluded from requiring that actions over $10,000, but under the simplified acquisition threshold, that are totally set aside for small business be reviewed by the small business specialist. One example of when an agency may choose to require this review is when the agency determines that such a review is necessary to assist contracting officers in identifying opportunities for other small business set-aside programs (e.g., HUBZone, service-disabled veteran-owned, small disadvantaged business, women-owned small business) in order to meet small business goals.

(2) Modifications that increase the scope of the contract, or the order under a Federal Supply Schedule contract, should be reviewed by the small business specialist. At a minimum, these actions might impact the small business subcontracting plan. However, funding modifications or modifications that do not increase the scope of the contract generally should not be reviewed, because the value that a small business specialist review would add in these instances would be minimal compared to the resources that would be expended.

Posted505836/30/2021 4:31 PM
EMMETT SIMMONSContracting
19542
  
DAU132560005516/28/2021
Contracting
Is the clause 52.217-8 required to extend a contract by 6 mos to up 10 years without the prior mentioned clause? Is there anything protestable (i.e., GOA sustained judgments) for extending the contract if there essentially no change in-scope?
Greetings,

We have a CO in our office who has stated there is no need to have 52.217-8 in a contract; and that it can be extended w/ agreement from the contractor without the subjected clause. The CO claimed there is nothing in the FAR that says this is required and that any contract (i.e., MATOC) can be extended any time and also the ceiling;; possibly with or without higher authority (i.e., AFICC).

A phone call with the question submitter revealed more information about the background. This MATOC is a competitive construction acquisition based on a general statement of work which will be further defined within each individual task order. Typical project task orders will consist of multiple construction trades and design (up to 35%) and construction to include maintenance, repair, alteration, and new construction of real property facilities.  Additionally; the contract is up for recompete so the question is purely academic as they were considering adding an option for an additional ordering period but are currently not putting one in.

If evaluated during the source selection; FAR 52.217-8 could be used to extend the ordering period up to six months unilaterally. It could only extend it to 10 years if your Ordering Clause, FAR 52.216-18(a), had 9.5 years as the original ordering period.

Because this is an indefinite-quantity contract (not a requirements contract or a definite quantity); FAR 16.504(a)(4) reads: A solicitation and contract for an indefinite quantity must-

(i) Specify the period of the contract, including the number of options and the period for which the Government may extend the contract under each option;

(ii) Specify the total minimum and maximum quantity of supplies or services the Government will acquire under the contract;

The only limitation on the length of the ordering period is found at FAR 16.505(c) is a normal five (5) year limit when for task-order contracts for advisory and assistance services (not applicable to this scenario).

Typically limitations on the period of performance for construction contracts are dictated by statutory and fiscal law requirements (e.g. use of MILCON funding or O&M funding); they would related to the individual task-order level but not the length of the ordering period.

Without an option or any other clause in the contract; a contracting officer could only modify the contract to extend the ordering period via a bilateral contract modification. Prior to doing that the a scope determination test would need to be done to determine if the change was within the general scope of the contract in order to comply with CICA and FAR part 6.

 

 

Posted505756/29/2021 8:03 AM
EMMETT SIMMONSContracting
19543
  
DAU132560005516/28/2021
Contracting
Hello, does DAU offer a flow chart or guide/tool for referencing requirements for publicizing contract actions under various procurement requirement situations (solicitation, length of posting requirements, proposed contract action synopsis and exceptions, contract award synopsis, etc.). Thanks, this would help our team to decipher when the various publicizing requirements are necessary or excepted based on the acquisition particulars as it can be very confusing and time consuming to interpret all the language in FAR part 5.
Part 5 - Publicizing Contract Actions - Reference Guide Request

This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

 

DAU does not have a flowchart for reading/interpreting FAR part 5.  This is primarily because a flowchart cannot anticipate every potential action and those items/issues specific to a particular situation.

 

Posted505746/29/2021 12:34 PM
EMMETT SIMMONSContracting
19540
  
DAU132560005516/27/2021
Contracting
Is removing and replacing an Air conditioning unit a service or construction?
Need to remove and replace air conditioning unit

The description of the requirement does not appear to be construction as according to the definition in FAR part 2, construction is work done on "buildings, structures, or other real property", which does not apply to A/C units. Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, or other kinds of personal property. 

The definition of a service contract is at FAR 37.101. A service is performing an identifiable task rather than to furnish an end item of supply. The definition of supply is in FAR part 2, which means all property. The A/C unit is considered property (personal). If the requirement is to replace A/C units and install them, then it can be considered a supply buy. A general guideline (not in the FAR) that contracting officers can use is if the estimated costs of the service or supply exceeds more than 50 percent of the requirement, then it can be classified as such. An example would be the A/C unit itself estimated to be 80% of the total government estimate and the service to install it would be 20%, then the service would be incidental to the supply item and the requirement could be classified as a supply buy. Ultimately the contracting officer will have to make the determination of classifying this requirement as to the type of buy. 

Posted505716/28/2021 7:25 AM
EMMETT SIMMONSContracting
19541
  
DAU132560005516/27/2021
Contracting
Is there any exception in FAR Part 5 where KO does not need to post their requirement (pre-solicitation, solicitation, award, J&A for urgent and compelling) in GPE?
We are currently supporting a contingency mission here in AFCENT AOR (Oconus). Some of our purchase requests are over $25K

Thank you for your question.  FAR 5.202(a)(12) has the exception that you are looking for, this exception applies when "The proposed contract action is by a Defense agency and the proposed contract action will be made and performed outside the United States and its outlying areas, and only local sources will be solicited."  This exception applies to most procurements in the AFCENT AOR unless you are not planning to use local sources.

Posted505666/28/2021 12:05 PM
EMMETT SIMMONSContracting
19538
  
DAU132560005516/24/2021
Contracting
What authority do I have to force the Randolph Sheppard act to only choose subcontractors (Blind vendors) who operate as a small business when the rulings conclude that RSA preference takes precedence over less-specific statutes such as HUBZone and the Randolph Sheppard Act does not require that the Blind Vendor operate as a small business? (52.219-8 - Utilization of Small Business Concerns, 52.219-9-Small Business Subcontracting Plan, 52.219-16 Liquidated Damages-Subcontracting Plan?
The Randolph-Sheppard Act ( 20 U.S.C. 107 et seq.) provides individuals who are blind with remunerative employment, enlarging their economic opportunities, and stimulating greater efforts to make themselves self-supporting.  Having researched 20 U.S.C. 107 as well as 34 CFR § 395, I cannot find, within the law, where a blind licensee is required to operate as a small business. Therefore, can I conclude that the blind licensee is not required to be a small business under the law?  Blind licensee means a blind person licensed by the State licensing agency to operate a vending facility on Federal or other property.  Several court cases, (which can be found in APRIL 2004 THE ARMY LAWYER • DA PAM 27-50-371 “The Applicability of the Randolph-Sheppard Act to Military Mess Halls” as well as Chapter 13 2014 Contract Attorneys Desk book) in essence, states that the Randolph Sheppard act trumps SBA programs such as Hubzone and 8(a) program.  The courts have interpreted the RSA to take precedence over all of these preferences.  If the Randolph Sheppard act does not require its subcontractor (blind licensee) to be a small business, and the Randolph Sheppard Act basically trumps SBA programs such as 8(a), what authority do I have to force the Randolph Sheppard act to only choose subcontractors (Blind vendors) who operate as a small business?   (52.219-8 - Utilization of Small Business Concerns, 52.219-9-Small Business Subcontracting Plan, 52.219-16 Liquidated Damages-Subcontracting Plan)  Contract is worth $22 million.

Q1: "Therefore, can I conclude that the blind licensee is not required to be a small business under the law?"

A1: Yes, you can conclude that they are NOT required to be a small business. It is not a requirement of the Randolph-Sheppard Act that a vendor be a small business.

Q2:  "What authority do I have to force the Randolph Sheppard act to only choose subcontractors (Blind vendors) who operate as a small business when the rulings conclude that RSA preference takes precedence over less-specific statutes such as HUBZone and the Randolph Sheppard Act does not require that the Blind Vendor operate as a small business?" 

A2:  Your authority to "force" the State Licensing Agency (SLA) to provide only small business vendors to satisfy the requirement, or conversely, to force the selected vendor to provide a small business subcontract plan, is limited. There is nothing written in the Randolph-Sheppard Act (RSA) specifically concerning subcontracting or subcontracting plans. First, to clarify a point, the RSA does not choose subcontractors, the State Licensing Agency (SLA) issues the blind vendor a “license”. The Prime contract is between the SLA and the Federal agency. If there are more than one eligible blind vendor, they may compete for the agency requirement. Additionally, the SLA must apply for a permit to operate on a DoD installation. Once issued, the blind vendor has priority unless the interests of the U.S. are adversely affected. [DODI 1125.03, encl 2]. As a result, the contracting officer does not appear to have any authority or influence regarding the size of the vendor(s) selected by the SLA to perform the contract.
 

15 U.S.C. §§ 631-657 (Chapter 14A)-Aid to Small Business (a.k.a. The Small Business Act) and 20 U.S.C. §§ (107-107f) (Chapter 6A)-Vending Facilities for Blind in Federal Buildings (a.k.a The Randolph Sheppard Act) have separate and distinct requirements. There does not appear to be an exclusion in the Small Business Act for the state licensing agency vendors under the RSA to provide a small business subcontracting plan. The prescriptions for each clause do need to be carefully considered though because there may be a likelihood that the Randolph-Sheppard Act contracts won’t offer subcontracting possibilities. Otherwise, the vendor is a "business entity" and we select clauses consistent with the FAR.

If a vendor believed they were being adversely limited by the provisions and clauses they could seek relief in arbitration (see e.g. HAWAII v. ARMY ARBITRATION DECISION https://www2.ed.gov/programs/rsarsp/arbitration-decisions/r-s-16-07.pdf). The arbitration decision could be appealed to the United States District Court and subsequently to the United States Court of Appeals.  

I could find no precedent (administrative or judicial) that precludes the agency from including 52.219-8, 52.219-9, and 52.219-16 in solicitations and contracts. There do appear to be options to press upon the SLA the importance of including small businesses.


Possible approaches the contracting officer could take:

1. Include within the solicitation a statement along the lines of: "This acquisition will be competed as a small business set-aside and is held under the authority of the Randolph-Sheppard Act (RSA).  Offerors should understand that the RSA agency (SLA) is given preference if within the competitive range." [see similar approach by GAO in Intermark, B-290925, 2002). This approach recognizes the different controlling authorities (RSA & FAR) but does not resolve the subcontracting plan issue.

2. Look to solicitation examples in the System for Award Management (SAM): https://sam.gov/opp/87be0ae9c7e730756571ce6b15eea535/view (see section M of the solicitation)and https://sam.gov/opp/d1a62db2402044f1997720c28504695d/view] (see proposal instructions on page 23). This approach resolves the subcontracting plan if the vendor signs the contract. The contracting officer may then hold the vendor to the terms. Left undetermined is what occurs if the vendor refuses the inclusion of the clauses. Arbitration would be the likely outcome. 


3. Contact the Head of the DoD Component for specific guidance and assistance. Particularly since this area has been subject to dispute and litigation. Consequently, authoritative decisions rendered by the US Department of Education and the GAO must be reconciled with DoD and Component policy. An authoritative response, tailored to the particular State where the work is to be performed and the specific details of prior administrative and judicial decisions can best be rendered by the Component's counsel.

 

Posted505736/25/2021 12:59 PM
EMMETT SIMMONSContracting
19539
  
DAU132560005516/24/2021
Life Cycle Logistics
Are 05 level PdMs required to have PSMs? or is it only the 06 level. looking for documentation on the PSMs and requirements. i feel the army has over used the term PSM applying it to the 05 level log leads.
a question came up as to whether a non ACAT1 or 2 program requires a Product Support Manager

Army Regulation 700-127 (https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN7460_R700_127_FINAL.pdf), Para 4–4. states “PSMs are required for all ACAT I, II, and III programs.”  Additionally, Army policy also requires that:

  • “Prior to MS B, PEOs will assign a MATDEV PSM for each ACAT Program prior to, but no later than, program initiation. The PSM is a direct report to the MATDEV, PSM performance will be rated by the MATDEV (this responsibility will not be delegated).” (Para 4-4b.)
  • “The PSM will be a key leadership position for ACAT I programs, and a critical acquisition position for ACAT II and III programs.” (Para 4-4d.)
  • “Program Executive Officers are responsible for… assigning PSMs to all programs in their portfolios.” (Para 1-16)
  • “Materiel Developers will… In coordination with the PEO, assign a PSM for each ACAT Program at program initiation.” (Para 1-18.c)
  • “MATDEVs will assign a PSM to Joint programs.” (Para 4-9)

Seer also DA PAM 700-127 at https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/DAPam%20700-127_Web_FINAL.pdf  for additional details.

Posted505656/25/2021 12:59 PM
EMMETT SIMMONSLife Cycle Logistics
19535
  
DAU132560005516/23/2021
Program Management; Life Cycle Logistics; Engineering and Technical Management
What types of certifications are required outside of cybersecurity to operate under the Software Acquisition Pathway and what are the governing bodies where we get those certifications from?
Currently working on a container-based network application for deployment on Navy ships.  We understand that we have to have Authority to Operate (ATO) from Navy Authorization Organization (NAO).  We want to operate under the new Software Acquisition Pathway but are unsure of what other certifications are needed.

The questions is "What types of certifications are required outside of cybersecurity to operate under the Software Acquisition Pathway and what are the governing bodies where we get those certifications from?" Some of the answers address only cybersecurity. There are numerous others out there that MAY be required. I cannot find a definitive list. It depends on the program, the type system, how its employed, etc.

 

Here are the various responses that may be helpful

 

--------------------------------------------------------------------------------------------------------------------
Just because it is not specifically mentioned in DoDI 5000.87 does not mean that the requirement for certification goes away. There are other policies, directives, regulations, etc that

 

Thanks!

 

Bob

I have talked with Mr. Wicke and would like to forward this conversation to him. He can then continue his research based on your comments.

---------------------------------------------------------------------------------------------------------------------------

 

Sean Brady and I discussed this and, for the DoDI 5000.87 SW Acq Pathway there are no plans for any certifications---either product or person...no Interoperability Certs, no Cyber Certs.

 

Bob

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The design of cybersecurity under the DoDI 5000.87 is very different than our current compliance based approach (achieve an ATO/ATC). Please look at the attached slides pulling out the construct of cybersecurity under the DODI 5000.87 SWP.  It is a risk-based management approach that goes for continual testing, recurring assessment, high automation (testing, software assurance, threat assessment, vulnerability discovery, etc.), continuous monitoring, and vulnerability remediation that works towards a continuous Authority to Operate (cATO).  A program office following these constructs would have a mature process for: secure development; cybersecurity and assurance capabilities; and secure lifecycle management.  They would work towards frequent and continual drops of capability that for each incremental drop - either does not degrading the existing security posture or corrects another known issue/vulnerability.  This construct starts to implement resilience with at least rolling back to known good configurations.  This approach is a dramatic improvement over our current approaches.  If you read the most recent GAO report (dated 8 June 2021) on DoD Report to Congressional Committees - "Weapons Systems Annual Assessment" (available at https://www.gao.gov/assets/gao-21-222.pdf):

 

"We found that while MTA programs more regularly reported in questionnaire responses that they include cybersecurity in planning documents than MDAPs, about half of the MDAPs and all MTA programs have not consistently implemented cybersecurity test and evaluation processes recommended by DOD guidance. This guidance notes that cybersecurity test and evaluation starts at acquisition initiation and continues throughout the entire life cycle. Accordingly, our analysis this year focused on the extent to which programs included cybersecurity in early planning, such as in cybersecurity strategies and requirements, as well as the extent to which programs assessed cybersecurity resilience and identified vulnerabilities throughout contractor development." (p. 53)

 

Please focus on the above statement - "have not consistently implemented cybersecurity test and evaluation processes recommended by DOD guidance" for MDAPs and MTAs. 

 

If we help program offices work towards implementation of these SWP constructs - we have a chance to make a major impact in their security posture.  Doing this approach requires education and training for the required cybersecurity approach, a culture change at the program office in their software development and contractor management, adoption of a shared responsibility model in their workforce development, and a willingness to adapt to a co-evolving intelligent cyber threat that is continually imposing new cybersecurity requirements on their system and its surrounding environment.

 

Vr,

 

Paul Shaw

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Software Pathway (SWP) is a little bit more complex and involved for cybersecurity than an Authority to Operate and Authority to Connect.  All programs of record regardless if selecting in the AAF the route of SWP - need an ATO and an ATC.  The fact that the group is talking about containers and deploying on Navy ships - implies many other things, such as the use of a DevSecOps process (especially the security piece with automated testing tools), awareness and alignment with the Navy's Project Overmatch, migration to the construct on a Continuous Authority to Operate (cATO) (such as with the Navy RAISE Process), and the many other elements of the SWP process (also described as the .87 process). 

 

May I ask - as there are only 18 officially approved programs in the DoD for SWP on the attached slide (as of last week).  If their name is not listed on the attached slide, may I suggest - we work with this customer to better understand what the DoDI 5000.87 instruction on SWP (attached) means.  There is a group in DAU West that has been working with 3 of the programs listed on the 18 officially approved SWP programs for the last four months.  There are many lessons learned and best practices to assist this potential customer.  Please look at the attached OSD briefs on SWP.  The great news - the OSD Lead for SWP is Sean Brady.  Sean Brady was a professor with DAU before going back to OSD to assume the lead for the SWP program.  Please be aware that a Navy program going on Navy Ships will follow NAVADMIN 342-20.   This customer most likely needs assistance with the Navy's Risk Management Framework (RMF) Assess and Incorporate Software Engineering (RAISE) process.

 

Vr,

 

Paul Shaw

Posted505526/24/2021 7:22 AM
EMMETT SIMMONSProgram Management; Life Cycle Logistics; Engineering and Technical Management
19536
  
DAU132560005516/23/2021
Life Cycle Logistics
Can the Government absolve a contractor of their responsibility to ensure that all products conform to the contract before tender, even if they are not mission critical? It would seem that there is still a requirement for the contractor to have their own internal QA process that ensured 100% of the items installed conformed to the submitted configuration data, logistics support information, and supporting spare parts. That requirement is unenforceable if the reduced-QA verbiage is included in the contract.
I am working on a number of contracts where the Government is directing the contractor to only validate a certain percentage of their deliverables for accuracy and conformance (think configuration of installed equipment).  The Government is specifically noting that the items that are not described are not required to be validated for conformance.  These items are typically not mission critical, but are still contractually required for a completed delivery and have corresponding logistics support items as well as supporting repair parts.  This appears to be in conflict with FAR Part 46 and Part 52. 

Not sure what quality requirement is being called out by contract. Most DoD products require a Higher Level contract requirement, which used to be MIL-Q-9858, and now usually means ISO 9001 or AS9100. The Standard Inspection clause requires the contractor to provide and maintain inspection system, and to complete inspections, document the them and provide that documentation to the government. Covernment reliance of inspection by the contractor allows the contractor to conduct inspections and tests to ensure all suplies conform to contract requirements before them are delivered to the government.  So I am not sure what contract QA requirement is on contract. I am not sure what inspections and testing you (the governement agent) are accomplishing or where.  The contractor may be doing sampling inspections vice 100% which may be authorized. But it sounds like you have a situation where some items get inspected by the contractor and others do not. All should be inspected. and all should meet the governments contract requirements. Can discuss if you like, 240-273-8599

Posted505646/24/2021 9:24 AM
EMMETT SIMMONSLife Cycle Logistics
19537
  
DAU132560005516/23/2021
Contracting
My KO is telling me that we have to cancel all the uncompleted service orders on our BOSC contract have to be canceled at the end of the contract year regardless an option to exercise another contract year. Essentially, this would mean that we would have to resubmit all the uncompleted SOs including SOs that are partially completed. If we have the funds and we are going to exercise the next option period, why in the heck would I have to cancel all those service orders and start again?
I am being told that all uncompleted service orders on my BOSC contract have to be canceled at the end of the contract year.

Lacking anything specific and clear cut; we do not question the judgement and authority of the KO here at AAP.

Note: I'm assuming BOSC = Base Operations Support Contract, but not sure.  I'm assuming SO's = Service Orders, but not sure. I won't venture a guess on FSC; that is most often Federal Supply Class in contracting. Final assumption is that the SOs are funded with O&M appropriations.

It is impossible for us to provide a specific answer to this question without knowing the terms and conditions of the BOSC contract and individual SO's.

The rationale could be labor law requirements, e.g. a new wage determination is required. But that could leave open the possibility of a modification increasing the labor rates.  Or, more probable, a fiscal law issue: if the SOs are longer than one calendar year and the services provided are severable (see FAR 32.703-3 and DFARS 232.703-3(b)) the period of performance cannot exceed one (1) year.

Posted505706/24/2021 10:08 AM
EMMETT SIMMONSContracting
19530
  
DAU132560005516/22/2021
Contracting
Do we have to keep manual call logs for decentralized BPAs using GPC as payment or will the GPC bank statement suffice for that purpose? Can the statement be filed at the GPC office/bank for reference when needed or does it physically have to be in the Contracting Office? Thank you.
Most of our BPAs are using GPC for payment and are decentralized.

This is a great question. The answer however depends on whether you have local guidance or procedures established or higher headquarters guidance or procedures established.  The FAR and DFARS do not get prescriptive enough to mandate manual call logs vs using the GPC bank statement.

This is really a contract file content question. See FAR 4.802(d) and FAR 4.803 Contents of contract files. You should also Review AFFARS 5304.803 (note: I tried to review those links but the USAF fire wall would not allow me to view).

But there additional guidance at FAR 13.303-5(e) which states to limit documentation to essential information and forms and at FAR 13.303-5(e)(3) it gives you the latitude on how to document the minimal, necessary information.  Neither the DFARS nor AFFARS implements or supplements this.

Bottom-line: The GPC bank statements could/would be acceptable unless they don't contain the information required by FAR 13.303-5(e)(3) and/or you have local or higher HQ guidance or procedures that mandate something different. 

 

Posted505636/23/2021 8:16 AM
EMMETT SIMMONSContracting
19531
  
DAU132560005516/22/2021
Contracting
Is FAR 5.202(a)(13)(ii) referring to RFQs made through means similar to GSA, AFWAY or NASA SEWP; a different site that is for purchase orders, rather than task orders; Sole Source Justification posting instances; or when simply posting a RFQ that is below sat on sam.gov (previously FBO)?
I have heard conflicting information and interpretations regarding this part of the FAR 5.202(a)(13) exemption regarding FAR 5.202(a)(13)(ii), which states "Will be made through a means that provides access to the notice of proposed contract action through the GPE;"

The statement "...made through a means that provides