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  1. Today
  2. Problem of the Day

    What we were taught in the USACE was that, if a claim was resolved prior to commencing performance of a disputed construction item or prior to procuring materials involved in the dispute, theortically, no additional out of pocket expenses would have have been incurred prior to that time. The contractor could theoretically usually recover the extra costs in its normal construction progress payments, as though it had been in the contract all along. Thus, there would supposedly be no financial impact to the contractor between the contract as changed vs the contract had the extra work or materials been in the contract to begin with. We were taught that interest was payable for claims where additional expenses were incurred but not paid for until after the claim was settled. Otherwise, contractors would supposedly be encouraged to initiate claims long before the work was performed or extra costs were incurred to collect interest, even though the government couldn’t make progress payments for the work until it was being performed. I don’t have any problem with resolving claims early to avoid impacts but it doesn’t seem right to pay interest before the investment is even made. It’s something like the bank having to pay interest before you make a deposit or one having to pay interest before borrowing the principal amount of the loan. The “old rule” makes perfect sense to me, except that it ran afoul of the CDA of 1978 language. As for Vern’s general argument that it generally isn’t the KO’s role or duty to comply with statutory changes on their own authority or initiative prior to the administrative rule making process necessary to implement the statute, where applicable - I agree. For example, there have been several comprehensive Energy Conservation Laws enacted since circa 2005 that contained several hundred pages of new requirements for Federally owned or controlled facilities. There is a lengthy process for adopting or implementing these changes in new or existing programs. These often cant be implemented on a contract by contract basis by a contractor or even by the. Contracting team or individual military department. Yet we kept getting demands from Installation Environmental Offices to simply reference entire Acts as contract requirements for individual building projects. Ridiculous and impossible!
  3. Problem of the Day

    The problem is that the court never confirmed that the government's interpretation of FAR 33.208 in Alberici was correct and that the regulation therefore violates statute. It did not rule on what FAR 33.208 means. It simply ruled on what it could not mean. Here is what FAR 33.208(a) says: Now what, exactly, does subparagraph (2) mean? What does "otherwise would be due" mean? "Otherwise"how? "Otherwise" on what basis? That language has always struck me as strange and obscure. There was no explanation of it when it first appeared in the regulations before the FAR was issued. Alberici was first tried before the Corps of Engineers Board of Contract Appeals, which rejected the government's interpretation of the regulation. I discussed this in the 2009 article that Joel cited: I don't think that any tribunal has ruled that FAR 33.208(a)(2) violates statute. In Alberici, the Federal Circuit ruled on the government's interpretation of the statute itself. It did not rule on the meaning of FAR 33.208(a)(2). Thus, we don't know for sure that FAR 33.208(a) violates statute. At least, I don't. Similarly, while FAR 15.403-1(a) might seem to be inconsistent with statute on its face, a CO cannot know the truth until he or she queries the FAR councils. In light of the statutes and FAR 15.403-4, why does it say what it does? As for complying with FAR 1.602-1(b)--that's easy. If a CO thinks FAR violates statute he or she should not act on his or her own interpretation, but seek guidance and direction from higher authority. Based on that thinking, I say that the correct answer to Don's poll is No, because I think that a CO cannot say Yes on the basis of his or her own interpretation of statute and FAR. He or she cannot violate FAR 15.403-1(a) by requiring certified cost or pricing data at or below the SAT without having approval to deviate from FAR in hand. No, on the other hand, might mean (a) No, don't demand certified cost or pricing data, or it might mean (b) No, don't do anything until you get guidance and direction. Unfortunately, Don's yes or no poll did not allow a respondent to make a choice in that regard.
  4. Yesterday
  5. Problem of the Day

    Vern, your recollection of what the Court did in Alberici is correct. However, the basis for the government's appeal was the interest provision in the Disputes clause and FAR 33.208. Unfortunately, the Court did not consider it necessary to address the government's position except in a footnote where it said "The government argues in its brief that particular regulations prohibit 'claims' for future costs, but that begs the question. Statutes trump conflicting regulations. Thus, this case turns on the meaning of section 611. The government's statement of issues in its brief essentially limits this case to 'a straightforward question of statutory interpretation' involving section 611. See Rule 28(a)(3) of the Federal Rules of Appellate Procedure, which requires an appellant to state the issues presented for review." To me, this is a statement that the regulations are in conflict with the statute to some degree. Don's original question raises the issue of how contracting officers are to comply with FAR 1.602-1(b) which says "No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met." This seems to imply that contracting officers cannot simply be in compliance with the FAR when awarding contracts, but have to take reasonable steps to ensure that they have complied with applicable laws and executive orders as well. The FAR does not limit the term "regulation" to the FAR or agency supplements. Instead, "regulation" can be any regulation that is applicable to the procurement such as the regulations promulgated by the Department of Education for procurements conducted where the Randolph-Shepherd Act applies. This brings up the problem of what a contracting officer is to do if a regulation promulgated by an agency to which congress has delegated the power to write regulations implementing a statute is in conflict with the FAR. This is particularly problematic if the other regulation is one having the force and effect of law.
  6. Multiple Award Schedule

    ContractSpecialistTJohn: If you wish, you should use the messanger to provide any information to Carl. It is at the top right and is the letter icon.
  7. Multiple Award Schedule

    Of course Vern's guidance is spot on but actually ContractSpecialistTJohn you have peeked my further interest.... You said So my bad I guess for assuming you meant a GSA MAS contract which from my experience and actual confirmation before my post contain the 52.216-18 clause. The term "Schedule" was my basis for going straight to the FAR clause. Now you say So what agency and what contract as I would be interested in seeing it for myself if available on a public facing website to read what clause they decided not to flow to the order level and how they stated the deviation to do so? Thanks
  8. Software Roulette

    There are several sources easily found on the internet that find and compare MRP or ERP systems that best fit your business. Or, if you are happy with the Deltek Premiere product, you can send them a Request for Information asking them to identify comparable software that works with your platform.
  9. SmallGovCon readers may recall that, in 2016, the Government Accountability Office proposed an electronic filing system for bid protests. GAO released a pilot version of its new system earlier this year, and Koprince Law LLC has had the opportunity to test it on several occasions through our bid protest work. Here are some first impressions on GAO’s Electronic Protest Docketing System. EPDS is very functional and easy to use. If you’ve ever clicked a link, selected an option from a drop-down menu, and uploaded a document to a website, you’d have no problems using the system. But even if you did run into trouble, GAO has published a comprehensive user guide and videos that thoroughly explain how to use the system. Upon logging in, the user’s dashboard displays a list of each protest it has pending before GAO. This list provides basic information about the protest—GAO’s docket number (or “B-number”), identification of the protester and agency, filing date, next due date, and case status. From this page, users can also file a new protest (once that feature is active upon EPDS’s formal roll-out) or intervene in a protest that’s currently pending. Users can drill-down into each individual protest to view even more detailed information, like the solicitation number, whether there is an intervenor or if the protest is consolidated, the protester’s size status, and the identification of the GAO attorney considering the protest. Links to filed documents also appear on this page: if allowed access by GAO, users can view the protest, agency report, comments, and any other filings made. It’s from this page that users can also file documents—a pretty simple process of selecting the type of filing from a drop-down menu, then attaching a PDF document. Registered users are notified of each filing via an instantaneous email and can access filed documents right away. Overall, we are very impressed with EPDS. But there are a couple tweaks that could make the system even more useful: A messaging function. We don’t mean an instant messaging function [does anybody miss AIM?], but instead an email-esque function where parties can discuss routine matters with GAO. For example, we recently needed to request access to a document following our admission to a protective order; rather than simply sending a message within EPDS, we had to prepare and upload a letter. GAO responded immediately, but sending an internal email would have been more efficient. EPDS does have a “no objection” button, which allows users to, for example, easily state that they have no objection to a protective order application. But a broader, simple messaging function would be useful for other quick communications. Indefinite storage of protest documents. Before EPDS, it was up to the parties how they would store bid protest documents. And under the pilot program, it still is. But could a party use EPDS as its primary document storage system? This could be a great convenience for bid protest attorneys, especially if certain documents will remain accessible on EPDS even after a protest is closed. That said, we would caution against any requirement that litigants only store documents within EPDS—even in 2018, there will still be occasions where an attorney or pro se protester will need access to protest documents offline. These issues don’t detract from EPDS’s functionality or its ease of use. GAO has obviously paid significant attention to developing an easy-to-use system. As EPDS is rolled-out, we expect it will be proven a tremendous leap forward for the GAO bid protest process. View the full article
  10. Software Roulette

    Wrong. Other viable options include, but are not limited to-- Jamis Unanet Procas
  11. Multiple Award Schedule

    I came across some agency guidance and it identified a clause in an IDIQ that did not "flow down" to the order level. So @Vern Edwards you are probably right. Will need to read through everything just to verify some things on this.
  12. Deltek is the universal software for government contracts because of its provision for contracts and pool. All software, regardless of application, changes quite frequently to boost sales for a new and improved product. The products are often not improved, and they often attempt to "force" users to change by removing products that are in use. In recent months, Deltek has discontinued support for its immensely popular Premiere product. And then after offering "Time and Expense" as an add-on to their ultimate CostPoint software, they now make it mandatory. The result is that what they offer now is user-hostile or can only be operated by users with advanced training. I throw the question out to the group: "Is there a better alternative with the conventional features Deltek has offered through the years?
  13. By David Warner In August 2017, the U.S. Equal Employment Opportunity Commission (“EEOC”) brought a class action lawsuit against cosmetics giant Estée Lauder alleging that the company violated federal law when it implemented and administered a paid parental leave program that automatically provides male employees who are new fathers lesser parental leave benefits than are provided to female employees who are new mothers. The suit alleged that, under the company’s parental leave program, in addition to paid leave already provided to new mothers to recover from childbirth, new mothers were provided an additional six weeks of paid child bonding leave for child bonding. In contrast, the plan only provided new fathers with two weeks of paid child bonding leave. Recently, the EEOC and Estée Lauder reached a settlement in the matter. While the terms of the settlement remain confidential, it is highly likely that the resolution required the company to equalize child binding leave as between mothers and fathers. This would be consistent with the EEOC’s guidance that, given the prohibition against gender-based discrimination under Title VII, if bonding leave is offered to employees men and women must be able to take equal amounts of that leave. While some commentators have suggested that parental leave policies should no longer have varying levels of benefits for “primary” and “secondary” caregivers, such distinctions would not appear to conflict with Title VII or the EEOC’s guidance so long as they are administered without regard to an employee’s gender. Further, greater leave for “disability” arising out of childbirth is similarly seen as legitimate and non-discriminatory even if it has the practical effect of providing greater leave benefits to bother as opposed to fathers. Parental leave policies are an attractive benefit for employees; but, given the EEOC’s recent success with Estée Lauder, employers are well counseled to review their policies to ensure that disability or maternity-related leave is clearly distinguished from bonding leave and that bonding leave, if provided, is equally available to both mothers and fathers. About the Author: David Warner Partner David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices. The post “Hot Take” Alert – Turns Out, Dads Are Parents Too! appeared first on Centre Law & Consulting. View the full article
  14. Multiple Award Schedule

    Yes, I know. Read the contract. I'm not being sarcastic. That's the only way to determine which clauses flow to the order level, especially if the contract provides for issuance of orders with different pricing schemes. Sorry. There is no easy answer. FAR 52.216-18 has to be interpreted an applied in context.
  15. Problem of the Day

    Although Don did not reveal it in his original post, his problem, in the abstract, poses this issue: What should a CO do if the FAR commands that something be done, or not be done, and the CO thinks that to obey the command would entail a violation of statute? Thus, in the particular case, if the acquisition would be valued at or below the SAT, but the CO thinks that obeying the absolute prohibition at FAR 15.403-1(a) by not requiring the submission of certified cost or pricing would violate FAR 15.403-4 and the statutes that command the CO to require submission of certified cost or pricing data, should the CO go ahead and require the submission of certified cost or pricing data? Yes or no? I do not think that a CO is empowered to interpret a statute and violate FAR if he or she thinks that FAR violates the statute. I think that violating FAR 15.403-1(a), a long-standing regulation promulgated in accordance with 41 USC § 1707, and which has not been invalidated by any tribunal, would be a FAR deviation . The CO would have to obtain approval to deviate before requiring the submission of certified cost or pricing data at or below the SAT. And keep in mind that the definition of the SAT is statutory. Don's poll asked for a yes or no answer. It was not multiple choice, and it did not provide for conditional answers. I think the only proper answer is No. By the way, to the best of my recollection, Alberici did not declare the Disputes clause or FAR 33.208 to be invalid. It interpreted the statute with no discussion of the clause or the FAR rule.
  16. Problem of the Day

    I was involved in the appeal to the Fed. Cir. I had no involvement in the case before the Board.
  17. Multiple Award Schedule

    Emphasis added...
  18. Problem of the Day

    The earlier thread that FAR Fetched referred to is entitled "What is your favorite FAR Part?" (started by elevenohtoo, December 22, 2009 in Contracting Workforce ) at this link: http://www.wifcon.com/discussion/index.php?/topic/468-what-is-your-favorite-far-part/
  19. Has strategic sourcing gone too far?

    To me, its a shortcut that is of dubious value. First, it relieves the CS/KO from anything close to market research. If market research is actually completed that finds a better way, better price, faster delivery, well, too bad. The agency's "strategic sourcing" contract vehicle trumps all of those. Second, it creates another barrier for small businesses. I have seen so many "strategic sourcing" contract vehicles that had one or no small businesses, and those vehicles have a life that may be exceed 5 years. A small business wants to fulfill your requirement? Too bad, you have to wait for another 4-7 years until the next solicitation is release and HOPE that the CS/KO does their market research and finds that small business and its cohort. Otherwise its another "no small businesses found that can meet this requirement" market research document once again. Remember, the CS/KO for that program may not have done any market research since that last re-compete, so those skills might just be a bit rusty. Strategic sourcing is an insult to the buying ability of the Government. It says the whole procurement team cannot find the best pricing in the market, is not consistent in sourcing those products and services, and they take too long. Whether or not those accusations are true is up for debate, but the system itself is not without blame; its hard to be fast and efficient when the procurement system has so many anchors attached to it.
  20. Multiple Award Schedule

    Do you mean FAR 52.216-18?
  21. Problem of the Day

    Retreadfed may be referring to J.S. Alberici Construction Co., Inc. & Martin K. Eby Construction Co., Inc., ENGBCA No. 6179, 97-1 BCA ? 28639. Or, perhaps: Caldera v. J.S. Alberici Const. Co., 153 F.3d 1381, 1383 (Fed.Cir.1998). See further below See this 2011 thread which discussed the conflict between the FAR and the Contract Disputes Act concerning when interest accrual on the payment of a claim begins. http://www.wifcon.com/discussion/index.php?/topic/994-usc-takes-precedence-over-the-far/ I didn’t search the Forum archives further but, in the Original Post in that thread, FAR Fetched referenced an earlier discussion thread (SEE MY NEXT POST FOR THE LINK TO THE EARLIER THREAD) In the above thread link, FAR Fetched referred to a post that Vern made in the earlier thread, stating in part: Vern also mentioned in the linked thread the case that Retreadfed appears to be referring to as well as to an article which he wrote in the February 2009 edition of The Nash & Cibinic Report:
  22. Problem of the Day

    I've answered your poll question and explained my answer. That's all the answer and explanation I'm going to give.
  23. Last week
  24. FAR 52.212-5

    1. FAR clause 52.212-5 is IBR in 48 CFR Part 52. 2. You would follow the procedures in FAR 52.104(d) to cite the fill-ins. You would cite 52.212-5; then you would state "The following clauses are incorporated by reference." If you needed to cite FAR 52.203-13, Contractor Code of Business Ethics and Conduct, you would just cite where it is in 52.212-5: (b)(2), 52.203--13... You would do the same for all the remaining clauses you need to cite in 52.212-5.
  25. FAR 52.212-5

    Where did you hear that Hill AFB's FARSite will no longer be updated?
  26. Multiple Award Schedule

    Would anybody happen to recall or know, how to determine which clauses in a MAS contract flow down to the order level? Thank You!
  27. NAICS code appeals can be powerful, and while they’re infrequent, they often succeed. But NAICS code appeals are subject to a strict, 10-day deadline–and that deadline isn’t extended by deliberations with the Contracting Officer. In a recent NAICS code appeal decision, the SBA Office of Hearings and Appeals reiterated that the 10-day deadline isn’t affected by discussions with the procuring agency. OHA’s decision in NAICS Appeal of AMEL Technologies, Inc., SBA No. NAICS-5892 (2018) involved a NAVFAC solicitation for construction management services. NAVFAC issued the solicitation as a small business set-aside and assigned NAICS Code 236220 (Commercial and Institutional Building Construction), with an associated $36.5 million size standard. The solicitation was issued on January 25, 2018. AMEL Technologies, Inc. believed that the correct NAICS code was 541330 (Engineering Services), which ordinarily carries a $15 million size standard. AMEL apparently initiated discussions with the Contracting Officer shortly after the solicitation was issued, asking the Contracting Officer to change the NAICS code to 541330. The Contracting Officer didn’t respond to the request until March 1, 2018. The Contracting Officer didn’t address the merits of AMEL’s request, but simply stated that she considered the matter closed because AMEL had not filed a formal NAICS code appeal with OHA. AMEL subsequently filed a NAICS code appeal on March 6. OHA wrote that “nder applicable regulations, a NAICS code appeal must be filed within 10 calendar days after issuance of the solicitation, or within 10 calendar days of an amendment affecting the NAICS code or size standard.” OHA “has no discretion to extend, or waive, the deadline for filing an appeal.” OHA continued, “deliberations with a procuring agency which do not result in any change to the solicitation, do not extend the [NAICS] appeal deadline.” Therefore, “the fact that [AMEL] requested that the CO reconsider the NAICS code does not alter [AMEL’s] deadline for bringing a NAICS code appeal at OHA.” AMEL “filed this appeal 40 calendar days after issuance of the RFP.” Thus, “[t]he instant appeal is untimely and must be dismissed.” OHA dismissed AMEL’s NAICS code appeal. When an agency assigns an apparently erroneous NAICS code, it’s not a bad idea to approach the Contracting Officer about a change, as AMEL did. Doing so can avoid unnecessary administrative litigation. Additionally, giving the Contracting Officer the chance to reconsider before filing a NAICS code appeal may be beneficial from a “relationship standpoint.” However, as the AMEL Technologies case demonstrates, informal discussions about NAICS codes don’t extend the strict NAICS code appeal deadline–the 10-day clock keeps ticking. View the full article
  28. Problem of the Day

    Really? So, assuming the date "payment would otherwise be due" is later than the date the CO received the claim, the CO would be compliant with the Disputes statute if they paid interest starting on the date "payment would otherwise be do"? Yes or no is sufficient--you don't need to explain. Also, just so I'm clear on your position--you believe, as a general proposition, that compliance with the regulation implementing a statute ensures compliance with the statute. Do I have that right? Again, yes or no is sufficient--you don't need to explain.
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