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  • Question

    Can CPFF CLINS be used to support an FMS case or do the CLINs have to be FFP?


    Answer

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

    FAR subpart 1.7 -- Determinations and Findings
    FAR 1.701 -- Definition
    “Determination and Findings” means a special form of written approval by an authorized official that is required by statute or regulation as a prerequisite to taking certain contract actions. The “determination” is a conclusion or decision supported by the “findings.” The findings are statements of fact or rationale essential to support the determination and must cover each requirement of the statute or regulation.

    FAR 1.704 -- Content
    Each D&F shall set forth enough facts and circumstances to clearly and convincingly justify the specific determination made. As a minimum, each D&F shall include, in the prescribed agency format, the following information:
      (a) Identification of the agency and of the contracting activity and specific identification of the document as a “Determination and Findings.”
      (b) Nature and/or description of the action being approved.
      (c) Citation of the appropriate statute and/or regulation upon which the D&F is based.
      (d) Findings that detail the particular circumstances, facts, or reasoning essential to support the determination Necessary supporting documentation shall be obtained from appropriate requirements and technical personnel.
      (e) A determination, based on the findings, that the proposed action is justified under the applicable statute or regulation.
      (f) Expiration date of the D&F, if required (see 1.706).
      (g) The signature of the official authorized to sign the D&F (see 1.707) and the date signed.

    FAR 1.706 -- Expiration
    Expiration dates are … optional for individual D&F’s. Authority to act under an individual D&F expires when it is exercised or on an expiration date specified in the document, whichever occurs first. ... When a solicitation has been furnished to prospective offerors before the expiration date, the authority under the D&F will continue until award of the contract(s) resulting from the solicitation.

    FAR 1.707 -- Signatory Authority
    When a D&F is required, it shall be signed by the appropriate official in accordance with agency regulations.

    2. The references quoted below in pertinent part are also applicable to this response.

    A. National Defense Authorization Act for Fiscal Year 2017 [FY2017 NDAA]
    https://www.gpo.gov/fdsys/pkg/PLAW-114publ328/pdf/PLAW-114publ328.pdf

    Sec. 830. Requirement to Use Firm Fixed-Price Contracts for Foreign Military Sales
    (a) REQUIREMENT.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall prescribe regulations to require the use of firm fixed-price contracts for foreign military sales.

    (c) WAIVER AUTHORITY.—The regulations prescribed pursuant to subsection (a) shall include a waiver that may be exercised by the Secretary of Defense or his designee if the Secretary or his designee determines on a case-by-case basis that a different contract type is in the best interest of the United States and American taxpayers.

    B. DoD Class Deviation 2018-O0017 (Jun 28, 2018), Determining Contract Type for FMS Contracts
    https://www.acq.osd.mil/dpap/policy/policyvault/USA001568-18-DPAP-Class_Deviation_2018-O0017.pdf

    Effective immediately, when determining contract type for FMS procurements, Contracting Officers shall comply with section 830 of the NDAA for FY 2017.

    Section 830 provides requirements, exceptions, and waiver authority for the use of firm fixed-price contracts for foreign military sales. Therefore contracting officers shall-
      In accordance with section 830(a), unless one of the following exceptions or waivers apply, use firm fixed-price contracts for foreign military sales.

      In accordance with section 830(c), Waiver Authority, request a waiver on a case-by-case basis when a contract type other than firm fixed-price is in the best interests of the United States and American taxpayers. The determination of best interest must be made on a case-by-case basis. The waiver approval authority is the Chief of the Contracting Office.

    3. As authorized by Sec. 830(c) of the FY2017 NDAA and as implemented by DoD Class Deviation 2018-O0017, CPFF CLINs may be used to support this FMS case provided that the Chief of the Contracting Office executes a formal Determination and Findings prepared in accordance with FAR subpart 1.7 that the use of the CPFF contract type for this particular acquisition situation is in the best interest of the United States and American taxpayers.




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