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  • Question

    For CLIN 0002, with regard to a D&F, I can not find anything for what language has to be in the D&F. Is this up to the KS & KO to determine that? The bulk of the contract will be tied to CLIN 0001. Any help is appreciated.


    Answer

    I make an assumption that you are doing a D&F for a T&M CLIN based on Cost of Materials (CLIN 002).  If so, the template follows.  If you are doing a D&F for a Cost CLIN, a D&F may not be required.  I have attached a Navy link, but this link has the best table to explain each contract type and when a determination is required. 
     
    Link - http://www.navair.navy.mil/nawctsd/Resources/Library/Acqguide/selecting-contract-types.htm
     
    Template –

    Determination and Findings for

    Time and Materials or Labor Hour Contract

    Tailor all aspects of this template to the individual acquisition and ensure that any template areas providing sample language or instructions (e.g. italicized and/or red language) are deleted prior to submitting the D&F.

    Determination and Findings

    In accordance with the following Determination and Findings (D&F), FAR 16.601, FAR 16.602, and DFARS 216.601(d), use of a insert “time and material” or “labor hour contract is the most appropriate contract type for the insert a brief description of the requirement requirement.

    Findings

    1.  FAR 16.601 discusses time and material contracts.  FAR 16.602 discusses labor hour contracts and defines them as a variation of time and material contracts without materials supplied by the Contractor.  In accordance with FAR 16.601(d)(1) and FAR 16.602, both require a D&F be executed prior to their use.  Pursuant to FAR 16.601(d)(1) and DFARS 216.601(d)(i), the D&F shall:

    a.  Demonstrate why no other contract type is suitable;

    b.  Include a description of the market research conducted;

    c.  Establish that it is not possible at the time of placing the contract to accurately estimate the extent or duration of the work or to anticipate costs with any reasonable degree of certainty;

    d.  Establish that the requirement has been structured to minimize the use of time-and-materials requirements; and

    e.  Describe the actions planned to minimize the use of time and materials contracts on future acquisitions for the same requirements.

     
    2. 
    FAR 16.601(c)(1) further requires appropriate Government surveillance of contractor performance to give reasonable assurance that efficient methods and effective cost controls are being used.
     
    3. 
    FAR 12.207(b)(2) further requires that a D&F for the acquisition of commercial items shall:
     
    a.  Include a description of the market research conducted;
     
    b.   Establish that it is not possible at the time of placing the contract or order to accurately estimate the extent or duration of the work or to anticipate costs with any reasonable degree of certainty;
     
      c.  Establish that the requirement has been structured to maximize the use of firm-fixed-price or fixed-price with economic price adjustment contracts on future acquisitions for the same or similar requirements; and
     
      d.  Describe actions planned to maximize the use of firm-fixed-price or fixed-price with economic price adjustment contracts on future acquisitions for the same requirements.
     
    4.  In compliance with the FAR and DFARS requirements:
    a.  No other contract type is suitable because explain in detail why the requirements of this acquisition preclude use of another contract type.  Provide your strongest argumentExpiring funds or the need for expeditious contract award are not acceptable explanations.
    b.  Market research, in accordance with
    FAR Part 10, was conducted by describe steps taken to perform market research.
    c.  In this particular situation, it is not possible to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence because insert rationale.
    d.  The requirement has been structured to minimize the use of time and material requirements. This has been accomplished by insert rationale.(e.g., limiting the value or length of the time and materials portion of the contract; establishing fixed prices for portions of the requirement; etc). If acquisition is for commercial item, pursuant to FAR 12.207(b)(2)(iii), state the following instead: The requirement has been structured to minimize the use of time and material requirements and maximize the use of firm-fixed price or fixed-price with economic price adjustment contracts on future acquisitions by insert rationale.
      e.  Use of time and materials contracts on future acquisitions for the same requirements will be minimized by explain planned actions (e.g., a different contract type will be used for follow-on acquisitions once sufficient knowledge of cost and schedule has been attained.) If acquisition is for commercial item, pursuant to FAR 12.207(b)(2)(iv), state the following instead: For future acquisitions of the same requirements, use of time and materials contracts will be minimized and use of firm-fixed-price or fixed-price with economic price adjustment contracts will be maximized by explain planned actions.
      f.  There will be adequate Government surveillance of contractor performance conducted by insert the title of the responsible individual—TM, COR, etc. They will describe what steps they will take to ensure controls to ensure efficient methods and effective cost controls are being used. 
    g.  The contract will include the clause at
    FAR 52.232-7, Payments under Time and Materials and Labor Hour Contracts.  This clause states, in paragraph (e) Ceiling price.  The Government will not be obligated to pay the Contractor any amount in excess of the ceiling price in the Schedule, and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the Schedule, unless and until the Contracting Officer notifies the Contractor in writing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract..”  The ceiling price will be established in the contract schedule based on the customer’s best estimate of the number of hours insert the following additional statement for a time and materials contract: and amount of material.
     
    Per FAR 16.601(d)(1)(i), the Contracting Officer shall sign the determination prior to the execution of the base period or any option periods of the contract(s).
     
    Determination
    Based on the above findings, use of a insert “time and materials” or “labor hour contract is the most suitable contract for this requirement in accordance with
    FAR 16.601(d). 
     
    CONTRACTING OFFICER
    Signature:_______________________________________________ Date:________________
     
    Printed Name:____________________________________   _____ 
     
    Insert printed name of Contracting Officer, and obtain signature and date of signature.
     
    LEGAL REVIEW
    Signature:_______________________________________________ Date:________________
     
    Printed Name:_____________________________________ Location:__________  ______
     
    Insert printed name and location of Legal Counsel, and obtain signature and date of signature.
     
    Per FAR 16.601(d)(1)(ii), when the base period plus any option periods exceeds three years, insert the following signature block:
    HCA   
    Signature:_______________________________________________ Date:________________
     
    Printed Name:____________________________________  _____ 
     
    If this signature block is required, insert printed name of the HCA and obtain signature and date of signature.
     
     
     
     
     

     

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