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  1. Yesterday
  2. I wasn’t able to connect : “We are sorry, the page you're looking for can’t be found on the Department of Justice website. Please try the following: Use the Search to search for words or phrases. Check the URL you entered for possible errors, including the use of upper and lower case letters. Some files associated with previous administrations have been moved to the Archive section of the Department website.” Updated August 21, 2018
  3. Since it is a micro purchase, I’m not sure that you can protest - at least I don’t know how to. I think that the Dr. and the patient should express their dissatisfaction to the specialist and/or elevate the matter.
  4. I would say that you should talk to their supervisor and point out the VA’s regulation referenced above.
  5. https://www.justice.gov/archive/usao/ma/news/2010/July/THROWERverdictPR/html
  6. Follow-up question - If the purchasing agent refuses to change his or her purchase order, which is the appropriate procedure for disputing/appealing the purchase? Thanks!
  7. @Jamaal Valentine and @Deaner - thank you for the input. This is exactly what I needed.
  8. You can set a higher standard for past performance than the simple responsibility standard. For example, for a particular acquisition, you can set that all Past Performance must be at a level higher than "Satisfactory" in order to be considered technically acceptable. The TA is whatever the government sets it to be. As long as offerors meet that standard (no matter by how much), price then becomes the only discriminating factor.
  9. I don't see that as a contracting question. I recommend you pose that question to the agent's supervisor and/or person who delegated their warrant authority. (I don't even know if the agents you are referencing have warrants and are subject to FAR; OR are supply technicians, medical logistics specialists, etc. not subject to FAR) I previously lead a team working medical contracts for several years; we received a lot of brand-name justifications under similar circumstances. I don't know the inner workings of the VA, but from a practical standpoint I would think the agent should have purchased what the funds were committed for...if they weren't going to (e.g., needed a brand-name justification), they should have communicated with the requestor. *I was unaware of the two previous posts while I was posting; @Deaner seems to have nailed it.
  10. When i worked at the VA, I never worked prosthetics, but this may answer some of your questions. Most prosthetic are sole source procurements. See 38 U.S. Code § 8123 See VHA Directive 1081 in part below. (4) Network Contracting Officers are responsible for: (a) Complying with the clinician's prescription. The CO does not have the authority to change or override a clinician's prescription but should ensure that the prescription adequately supports use of sole source authority under 38 U.S.C. 8123.
  11. In addition to what Jamaal wrote, it's not correct to say the Government closes out contracts. The Government closes out its contract files. FAR subpart 4.8 covers "Government Contract Files" and FAR 4.804 covers closeout of Government contract files. A contract may or may not exist after the closeout of a Government contract file. Also, the amount that must be legally recorded as an obligation is not affected by payments made or the passage of time since the obligation was recorded. The introduction of risk management into such a scenario is misplaced, unless the risk that's being managed is the risk of being caught under-recording obligations.
  12. FWIW - this appears to be the form that purchasing agents use to place prosthetic orders - Prosthetic Authorization for Items or Services, VA Form 10-2421
  13. Thanks, @Jamaal Valentine I realize that I packed a lot into my first question. I'll try to unpack it with a bit more factual context. The fundamental question is about purchasing authority. Generally, prescribing doctors working with VA patients do not have warrants. They are not authorized purchasers. They cannot bind the government. But they are responsible for determining what is medically necessary for patient care. Here, I'm trying to figure out how procurement of prosthetics works. Prosthetics are defined broadly by VHA to include basically anything that replaces, supports, or complements the human anatomy (e.g., orthotics, hearing aids, medical equipment and supplies, etc). According to VHA Handbooks 1173.1 , 1173.2 and 1173.08 , VHA Prosthetic Departments are responsible for procurement of prosthetics. Here is the scenario: Dr writes Rx for a specific prosthetic item deemed necessary for a veteran patient. Rx is for a COTS prosthetic that is under the micro-purchase threshold and is on VA Schedule. Other manufacturers that sell this general type of COTS prosthetic to the federal government. Dr thinks this particular COTS prosthetic is best for patient care. Rx is sent to the local VHA Prosthetics Department and a prosthetics purchasing agent makes the purchase. Prosthetics procurement agent decides to purchase a different COTS product from a different vendor. Dr. is not happy and neither is patient. Does a Prosthetic Purchasing Agent have the authority to ignore the Dr choice of prosthetic? Thanks for any insight you can offer!
  14. Admittedly, I don't really understand the situation or context for questions. (Is this question about contracting for supplies using appropriated funds?) Does FAR apply to the ordering of the prosthetic? If yes, does FAR 6.302 or FAR 13.106-1( b ) apply? Sounds like routine brand-name contracting. See if FAR 11.105 helps you.
  15. Deleted. Was replying to a post on an earlier page. Didn’t see the continuation on the next page .
  16. Last week
  17. It's probably worth discussing relevant terms: Physically completed - except for rental, use, and storage agreements a contract is considered to be physically completed when -- (1) (i) The contractor has completed the required deliveries and the Government has inspected and accepted the supplies; (ii) The contractor has performed all services and the Government has accepted these services; and (iii) All option provisions, if any, have expired; or (2) The Government has given the contractor a notice of complete contract termination. (FAR 4.804-4) Closeout/Administrative Closeout - per DAU, "[c]ontract closeout is the final stage of the Government contracting process. It can begin when the contract has been physically completed, and is not finished until final payment is made, any disputes settled, and all administrative actions required by the Federal Acquisition Regulation and specific agency procedures accomplished." For contracts other than SAP, closeout means using the procedures at FAR 4.804-5. Discharge - occurs when obligations of a contract end, which entails a termination of a contractual relationship. (click for full description) Administrative change - means a unilateral (see 43.103(b)) contract change, in writing, that does not affect the substantive rights of the parties (e.g., a change in the paying office or the appropriation data). Administrative closeout of a contract generally occurs after receiving evidence of its physical completion or discharge. Administratively closing AND deobligating funds where a government/contractor obligation still exists is problematic because of the Anti-Deficiency Act and obligation recording rules. (NOTE: closing a contract doesn't have to affect the substantive rights; nor does it require a modification) In order to properly close and deobligate funds the parties' obligations need to be discharged. I wonder what people would do if annual O&M (Operations & Maintenance) appropriation was used and surpassed the 'current' and 'expired' timelines, and is 'cancelled' (i.e., no longer available for use for any purpose including disbursements/payments) ... or if a file was lost.
  18. Okay, my last word-- I have never said that a contract modification SF-30 is needed to effect a contract closeout. But if a modification is used, it certainly can be unilateral (provided that it is simply a closeout modification to deobligate remaining or excess funds). Some 1102s were raised to think that closeout must be done by bilateral modification, but this belief is not required by the FAR. FAR 4.804 never requires a modification for closeout, much less a bilateral modification -- and it also never requires a release of claims for any contract as part of the closeout process. Organizations that require these things are trying to avoid all risk, rather than reasonably managing risk. A contractor can close out a contract and move it to inactive status in its own books without the Government's permission -- if the Government later presses an action on the contractor, the contractor might have to return it to active status. Similarly, the Government can close out a contract and move it to inactive status in its own books without the contractor's permission -- if the contractor later presses an action on the Government, the Government might have to return it to active status. But here is the best answer -- read FAR 4.804 and do what FAR 4.804 says. By its own words, FAR 4.804 speaks to “administratively” closing out contracts, and the entirety of FAR Subpart 4 is “Administrative Matters.” If you have to deobligate excess funds, maybe your agency will do the deobligation without a SF-30 contract modification -- some agencies do. If you have to do a modification to satisfy your automated systems or your agency policy, well, remember that closeout is an administrative action on the Government’s part — the contractor is wholly uninvolved, and none of the contractor’s rights or obligations are affected by the Government’s administrative closeout of the contract. Thus, a unilateral modification may be done (unless your agency policy dictates otherwise). However, if you want to change the contractor's rights or obligations, then a bilateral contract modification would be more appropriate.
  19. ji and I disagree on the view of a unilateral contract modification under a commercial item contract. Rather than continue a protracted discussion in this thread intended for a beginner I will simply offer that ji has provided no reference to his opinion and has from my view carried the conversation of an administrative modification beyond its intent. I believe that a unilateral modification of a commercial item contract cannot occur unless such modification is authorized by a specific clause of the contract based on the following – FAR suggested terms and conditions for commercial item contracts are intended to provide common commercial practices. Commercial practice as support by the common law commercial practice of a “Variation Clause” support that unilateral modifications in the commercial market place are rare. Should one want to depend on FAR part 43 one should refer to both the definition of Administrative Change in FAR 43.101 and use of an administrative change modification at 43.103(b) neither of which provides for a closeout modification being unilateral. FAR subpart 4.8 dealing with contract closeout makes no reference to the use of the modification to closeout a contract. This is likewise supported by direction in the “DCMA Manual 2501-07” dated January 19, 2019 that provides for unilateral modifications for uncooperative, bankrupt or non-communicative contractors. This more current document is supported by the “CONTRACT CLOSEOUT PROCESS FOR THE 50TH CONTRACTING SQUADRON(50CONS) SCHRIVER AFB (SAFB) COLORADO” dated May 2009 that provides for closeout modifications to be bilateral. All considered a unilateral modification that lacks proper contract clause authority to issue would be inconsistent with contract authority in a commercial item contract by a view of the FAR or otherwise. As important if one believes that contract closeout fits the use of unilateral contract modification as an administrative action this too would be inconsistent with FAR principles. As I provided early on I will leave it to the readers of this thread to arrive at their own conclusions based on information provided herein and the direction that they might find within their own agency policy.
  20. All contracted items were not delivered? That’s a termination matter. Or maybe it’s a de-scoping matter. Regardless, it is not a closeout matter. Disposition of government property and clearing the final patent report is part of the contract administration process. Closeout occurs after all required contract administration actions have been fully and satisfactorily accomplished. Imagine a contract was for 1 EA commercial item at $15K FFP, and the contractor delivered and invoiced for $14K. And we paid $14K. What’s the problem? The contractor has six years to invoice for the additional amount if the contractor wants it. If four years have passed, the Government might figure that the contractor is unlikely to file an invoice and may administratively close out the contract and deobligate the $1K remaining amount (the contractor probably closed out the contract on its books a long time ago). If one wants to avoid all risk, he or she may seek a release of claims from every contractor on every contract, even though the FAR never requires a release of claims for closeout. And he or she could also insist on doing any needed deobligaton as a bilateral modification. But it is unreasonable to try to avoid all risk. Instead, we’re supposed to manage risk. In the case above of the $15K contract where the contractor delivered and invoiced for $14K four years ago, and there had been no action on the contract since then and everyone is happy, there is a risk that the contractor will invoice for the remaining $1K — but the risk is very small, and it is eminently reasonable and entirely amenable to FAR 4.804 to close out that contract and administratively (unilaterally) deobligate the $1K.
  21. Indeed, that would seem to be the primary issue with the proposed approach.
  22. Ji, I am not completely on board with understanding what "closeout" is for this blog. In my experience, the closeout process includes disposition of government property, identifying any patents or royalty items/issues, etc. To that extent, a broad brush that the contractor is wholly uninvolved with the closeout process and there are no contract rights and obligations involved, seems a stretch. The contractor and the government are both involved with the laundry list of those items. On the other hand, if those standard laundry list of closeout items were already completed, and all contracted items were physically delivered and paid for per the contract amount/price, the contract could be considered complete in my view. It does sound like there are some internal government steps to take to de-obligate some funds and I also think of that as a unilateral government action. However, where all contracted items were not delivered and paid for, my experience, advice and practice in the subcontract world for a major prime contractor, was to negotiate a final closeout change notice with the subcontractor when there were outstanding contract issues such as presented in this blog i.e., "Government did not order and contractor agreed not to provide x." This made it bilaterally clear. Contract clauses were inserted to foreclose any claims.
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