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Barbara S. Kinosky, Esq. President Centre Consulting, Inc. Monday, August 4 3:10 – 4:10 PM PowerPoint Presentation
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Barbara S. Kinosky, Esq. President Centre Consulting, Inc. Monday, August 4 3:10 – 4:10 PM

Barbara S. Kinosky, Esq. President Centre Consulting, Inc. Monday, August 4 3:10 – 4:10 PM

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Barbara S. Kinosky, Esq. President Centre Consulting, Inc. Monday, August 4 3:10 – 4:10 PM

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  1. Task, Delivery Order, and Schedule Contracting Update and Best Practices Barbara S. Kinosky, Esq. President Centre Consulting, Inc. Monday, August 4 3:10 – 4:10 PM

  2. Indefinite Delivery – Indefinite Quantity (IDIQ) Contracts • Authorized by FAR 16.504 • Requires the Government to buy a Guaranteed Minimum Amount under the contract but leave actual requirements to later determination

  3. Benefits of IDIQ Contracting • Can be single award or multiple award • Guaranteed Minimum is typically low • Commitment of funds (beyond the guaranteed minimum) does not occur until actual orders are placed • Task order awards have historically not been protestable

  4. IDIQ Contracting Issues • Must specify a reasonable maximum quantity (based on market research) • Must specific procedures for placing orders • Preference for Multiple award IDIQs- Market research & acquisition planning must be employed • May not exceed five years in duration

  5. Multiple award IDIQ Contracts • Preferred as a matter of policy: FAR 16.504(c) • Are mandatory for IDIQ advisory and assistance service requirements exceeding 3 years and $11.5 million unless exception met

  6. Multiple Award IDIQ Ordering “Fair Opportunity” is required for all orders exceeding $3,000 except: • Urgent requirements; • Requirements that can be fulfilled by only one vendor; or • Requirements that are logical follow-ons to previously ordered requirements. FAR 16.505(b)

  7. DoD 2008 Authorization Act Changes for Task or DO over $5 Million • Notice of the planned task/DO • Reasonable time to respond • Disclosure of significant evaluation factors • Best value documentation • Post award debriefing

  8. Limits on Task/Delivery Orders in Excess of $100 Million Prohibition on award to a single source unless agency head determines: Only single source can perform work, firm fixed price task orders, public interest

  9. Protests of IDIQ Task Orders • Awards of task orders (a.k.a. “down selects”) have historically not been protestable • Protests of task order awards>$10M now authorized by 2008 DOD Appropriations Act • Clean Contracting Act pending in Congress would lower that threshold to $5M.

  10. DoD Specific Requirement for Interagency Contracts

  11. Types of Interagency Contracts Interagency Contracting is authorized by law in one of three ways: • Orders placed against Federal Supply Schedule contract in accordance with FAR 8.4 • Orders placed against Government Wide Acquisition Contracts (GWACs) • Orders made under the authority of The Economy Act. See FAR17.5

  12. Interagency Buys Using GWACs • Congress has given special authorization to certain agencies (GSA, NASA, NIH & Commerce) to create contracts for use by all government agencies. Contracts are also referred to as Government Wide Acquisition Contracts (GWACs).

  13. Interagency Buys Using FSS Contracts • FSS contracts are maintained by the General Services Administration (GSA) or the Department of Veterans’ Affairs (VA) • Federal buying agencies may place orders directly against FSS contracts under the procedures of FAR 8.404

  14. Mechanics of Interagency GWAC Contracts • Contracting agency establishes contract terms and conditions and make contract awards under the contract • Buying agencies place orders either directly with contractors or through the GWAC manager • Contracting agency receives a management fee for operating the program

  15. FSS & GWAC Issues • Historically have enabled Gov’t program managers to end run their Contracts Dept • Potential for “out-of-scope” ordering • Potential for very minimal completion • Interagency contracts may not reflect agency specific contracting requirements

  16. A Related Subject – Assisted Acquisition Services • Some federal agencies are authorized by law to establish “fee-for-service” assisted acquisition buying services for federal agencies

  17. OFPP Issues New Guidance • As of October 1, agencies must make best value determinations • Starting November 3, agencies must begin using the model interagency agreement

  18. Assisted Buying Benefits • Enable buying agencies to leverage special expertise in certain procurement fields, such as IT contracting or performance based contracting • Can be very beneficial for agencies with understaffed contracts departments

  19. Assisted Buying Issues • Potentially high service fees • Potential for “end runs” around in-house contract departments • Assisting buying agency may not be attuned to agency specific acquisition issues or requirements

  20. Interagency Contracting under The Economy Act • The 3rd method for Interagency Contracts • Disfavored because use must be accompanied by a detailed Determination & Finding (D&F) and an explanation why a direct contract is not feasible FAR 17.503

  21. DOD Policy – Interagency Contracts Use of Interagency contracting is permitted if: • DoD program managers coordinate with assisting buying entities to ensure reasonable competition is achieved and requirements are clearly reflected in SOWs • For non-Economy Act procurements in excess of $500,000, a DOD CO must review the order to ensure that it complies with DOD unique procurement requirements

  22. Special Note on BPAs BPAs are not subject to “fair opportunity” rules of FAR Part 16.5

  23. OFPP Interagency Working Group to Promote Competition in Acquisitions • Paul Denett called for new group to collaborate on acquisition practices that promote competition

  24. Questions?

  25. Thank