Jump to content
The Wifcon Forums and Blogs

All Activity

This stream auto-updates     

  1. Past hour
  2. I'm looking for a way to waive the payment protection requirement required in 28.102-1(b), for work at a domestic, government-owned property. We have emergency repairs needed and don't want to delay the work waiting for a contractor to get payment protection (although I know in many cases a payment bond might take only 1-3 days to get, we want to streamline this as much as possible). Since I've posted the above, my legal counsel has said they have found no way to waive this requirement. I'm hoping someone might be able to say otherwise.
  3. What laws apply to the US. Mint?

    Vern Edwards – Oh for goodness sake. Remember my “done” carried a caveat and that was leave it to others to make up their own minds. And this says the same thing by my read…. This is the very reason I said I am done. You had your say I had mine, that’s it. I just do not get how I am the bad guy when you edit your posts, tell me stuff like “I won’t respond to you” and “done” in previous posts you make and when the shoe is on the other foot you whine. Get over it.
  4. New to Government Contracts

    This is a task that calls for somebody with experience in this area. You are not just writing an employee handbook; you are writing timecharging--and therefore billing--instructions. For example: emergency closures. When will contractor employees charge the contract and when will they charge overhead? When will they be told to use accumulated leave/PTO instead of doing either? Another example: wage determination ("prevailing wage") compliance. That's either Davis-Bacon Act or Service Contract Act compliance. Compliance can involve payments in lieu of benefits. If the contract wage determination changes, you have to pay the covered employees more, but you might be entitled to an equitable adjustment on the contract price. You really, really, really do not want to be guessing on these topics. Further, there's no shame in admitting you don't know everything about government contract compliance; hardly anybody does. We are all still learning, and even if we think we know something, the rules change frequently. You might be tops in HR matters such as hiring, retention, and firing--and still be unsure about many other areas such as proper timekeeping and labor charging, or compliance with D-B or SCA. Do yourself a favor. Convince your new company to hire SME expertise in some of these areas. It will be money well spent.
  5. Today
  6. Good point Redskin fan. That's my concern as well. They assumed we could pay for it under this ODC pot and the contract was structured as such. I will definitely make sure there are no bona fide need concerns based on funding types.
  7. Here's a different aspect I would look at as well. I see you indicated the technical personnel indicated the costs were envisioned as an ODC when they prepared the IGCE. My initial reaction to similar claims by technical personnel is then why the requirement was not specified in the SOW and priced accordingly. If they are attempting to tap into a pot of money (ODCs) for an award made in a prior fiscal year, just make sure you can establish there was in fact a bona fide need for the subscription in the prior fiscal year. (Of course I don't know the specifics or what type of money is involved but if you are crossing fiscal years I'd make sure I knew the answers.)
  8. Mike, are you looking for a waiver of payment protection for a contract for construction less than $150k that would be performed overseas, particularly on non US owned property? As I recall, our overseas construction contracts generally required performance guarantees other than bonds, such as Bank Letters of Guarantees, in lieu of performance bonds. Since persons or contractors, subs and suppliers can’t file mechanic liens on property owned by the US Government in the US or in US Territories, payment protections are required for such contracts over $150k to help protect workmen, subs and suppliers. The KO may be able to waive the amount or type of payment protection but not the requirement. So, what kind of a waiver are you seeking? Performance, Payment, both? Domestic or foreign locations?
  9. 2018 NDAA Increases Civilian Micro-Purchase Threshold to $10,000

    I wonder if the DoD was intentionally or inadvertently left out of the micro-purchase threshold change. The change to the simplified acquisition threshold for DoD changed because the 10 U.S. Code § 2302a language regarding the threshold references back to the definition in section 134 of title 41. Maybe someone assumed the DoD micro-purchase threshold was written the same way?!?
  10. Yesterday
  11. What laws apply to the US. Mint?

    As a frog, with beautiful, slimy, green skin, PepeTheFrog used to think that she was slippery. No longer.
  12. New to Government Contracts

    I edited the original post to remove a proper name.
  13. New to Government Contracts

    To be clear, the person who...wrote...that...post...was hired as the HR Manager for a business which has multiple federal contracts?
  14. Just started a new position as a HR Manager with government contracts. I'm updating the employee handbook and need to know what to to include, etc. vacation, jury duty, military, emergency closures. Do I need the wage determination for the contract? I know there is a specific document I need but I don't know what it is called. Thanks!
  15. I am serious! Let's start to track how long it takes contracting activities to definitize REAs after receipt, when a small business is involved. You can't improve what you can't measure, or so the Six Sigma folks tell me. I fully realize there will be completely valid reasons for not definitizing timely (however that's defined). But let's see what the data tells us. The data might surface anomalies so that HCAs can take appropriate remedial action. http://www.asbca.mil/Decisions/2016/60533 HCS, Inc. 9.20.16.pdf
  16. The VA has formally proposed to eliminate its SDVOSB and VOSB ownership and control regulations. Once the proposed change is finalized, the VA will use the SBA’s regulations to evaluate SDVOSB and VOSB eligibility, as required by the 2017 National Defense Authorization Act. As regular SmallGovCon readers know, the differences between the government’s two SDVOSB programs have caused major headaches for veterans. As demonstrated in the recent Veterans Contracting Group saga, the SBA and VA have different SDVOSB eligibility requirements. That means, as was the case in Veterans Contracting Group, that a company can be a valid SDVOSB for VA contracts but not for non-VA contracts, or vice versa. In 2016, Congress addressed the problem. As part of the 2017 NDAA, Congress directed the VA to verify SDVOSBs and VOSBs using the SBA’s regulatory definitions regarding small business status, ownership, and control. Congress told the SBA and VA to work together to develop joint regulations governing SDVOSB and VOSB eligibility. However, a proposed consolidated regulation has yet to be published. Now the VA has proposed to eliminate its separate SDVOSB and VOSB ownership and control requirements, which are found primarily in 38 C.F.R. 74.1, 38 C.F.R. 74.3 and 38 C.F.R. 74.4. In a proposed rule published in the Federal Register last week, the VA notes that “regulations relating to and clarifying ownership and control are no longer the responsibility of VA.” The proposed rule wouldn’t entirely repeal the VA’s existing regulations, but, with respect to the eligibility requirements for size, ownership and control, those regulations would simply refer to the SBA’s rules in 13 C.F.R. part 125. The VA is accepting public comments on the proposal until March 12, 2018. The VA doesn’t say when it expects the rule to become final, but if it follows the ordinary rulemaking process, it will likely be summer at the very earliest. My biggest concern is whether the VA intends to finalize this rule before the consolidated SBA/VA eligibility rules take effect. If that happens, verified SDVOSBs and VOSBs will be stuck with the current SBA ownership and control regulations. And, as we recently saw in Veterans Contracting Group, those rules aren’t always veteran-friendly. In Veterans Contracting Group, a VA-verified SDVOSB wasn’t eligible for a non-VA contract because the company’s governing documents allowed the company to repurchase the veteran’s shares in the event of the veteran’s death, incapacity, or insolvency. This provision was just fine with the VA, which verified the company. But the SBA found that this restriction interfered with “unconditional ownership” under the SBA’s separate SDVOSB regulations. Although the Court of Federal Claims memorably called the SBA’s harsh interpretation “draconian and perverse,” the Court held that the SBA was within its legal rights to impose such strict eligibility requirements. If the VA’s rule “goes final” before a consolidated SBA/VA rule takes effect, every firm in the VA’s VIP database will be subjected to these strict SBA requirements, even when bidding on VA contracts. Undoubtedly, many companies with provisions like those at issue in Veterans Contracting Group have been verified by the VA and rely on their verifications to bid VA work. These companies could be vulnerable to successful SDVOSB status protests if they don’t update their governing documents to reflect the SBA’s stricter rules. Of course, there’s no guarantee that the consolidated SBA/VA rule will fix the problem. The consolidated rule (which, again, has yet to be proposed) could be every bit as strict as the current SBA interpretation of “unconditional ownership.” It’s anybody’s guess what the consolidated rule ultimately will say. But if the VA eliminates its ownership and control requirements before the consolidated rule is finalized, no guesswork is needed: a lot of verified SDVOSBs and VOSBs will suddenly become ineligible for VA set-aside contracts. Stay tuned. View the full article
  17. What laws apply to the US. Mint?

    So I post a lengthy response to your question to me, and you respond that my answer does not "to an extent... balance with the whole of what has been litigated," posting a quote about something that you say is new to you, which you clearly do not understand in the context of my answer, and the pertinence of which you otherwise do not make clear, providing a link to the source that doesn't work, and mentioning some obscure references with no explanation or argument of your own. Then you announce that you're done. That's it?
  18. Does anyone know if there is a waiver process to the payment protection requirements in 28.102-1(b) (please see below). 28.102-1(a) references a waiver option, but (b) doesn't appear to, but given the small dollar amount I find it hard to believe there isn't one. I'm still researching this and my legal office is my next stop, but was hoping someone here might have a quick answer - thanks!!! Mike 28.102-1 General. (a) 40 U.S.C. chapter 31, subchapter III, Bonds (formerly known as the Miller Act), requires performance and payment bonds for any construction contract exceeding $150,000, except that this requirement may be waived— (1) By the contracting officer for as much of the work as is to be performed in a foreign country upon finding that it is impracticable for the contractor to furnish such bond; or (2) As otherwise authorized by the Bonds statute or other law. (b)(1) Pursuant to 40 U.S.C. 3132, for construction contracts greater than $35,000, but not greater than $150,000, the contracting officer shall select two or more of the following payment protections, giving particular consideration to inclusion of an irrevocable letter of credit as one of the selected alternatives:
  19. What laws apply to the US. Mint?

    Vern Edwards – Thank you. Interesting conclusions but to an extent I do not think they balance with the whole of what has been litigated with regard to the “NAFI Doctrine”. Yep a new term for me, only found it as I continued to think about this discussion. I have not concluded that the DTAP does not apply after reading through some of the many references I have found, noting only that once a contractor has a dispute or protest involving the US Mint they are in for quite a ride. Otherwise I am done with this discussion thread and will leave it others to draw their own conclusions. “NAFI Doctrine - 76. Nonappropriated Fund Instrumentality Claims A nonappropriated fund instrumentality (NAFI) is an entity to which Congress has appropriated no funds, and for which it assumes no financial obligation. See Standard Oil Co. v. Johnson, 316 U.S. 481, 485 (1942). NAFIs include military post exchanges and officers clubs. Slattery v. United States, 635 F.3d 1298, 1304 (Fed. Cir. 2011) (en banc). Although a Government entity's status as a NAFI used to be a bar to jurisdiction over contract disputes under the Tucker Act, the jurisdictional criterion no longer is how the entity is funded, but whether it was acting on behalf of the Government. Id. at 1301.” (Reference: https://www.justice.gov/usam/civil-resource-manual-76-nonappropriated-fund-instrumentality-claims) Some additional references with a whole bunch more available via internet search. I might add that there is even coverage to an extent in the GAO Redbook. Slattery v. United States, 635 F.3d 1298, 1300 (Fed. Cir. 2011) (en banc). (This appears to be an important change to the NAFI doctrine especially if the US Supreme court has not overturned it as in general it concludes that a NAFI acting on behalf of the Government is not immune unless specific statute so states. AINS, Inc. v. United States, 365 F.3d 1333, 1344 (Fed. Cir. 2004). (This case by my read was the general holding prior to Slattery.)
  20. I'm sympathetic to the proposed "past performance" requirement. Turn-about is fair play, after all.
  21. What laws apply to the US. Mint?

    True. True. And so the question is whether the DTAP answers these questions: My response: Not by reading the DTAP. If the Mint wants to adopt anything out of the FAR or DTAR as their rule, it could do so. So what rights would a contractor have to force the Mint to comply with the DTAP. None, because the DTAP does not have "the force and effect of law." It is not in the CFR, and it was not published in the Federal Register, and it is not even mentioned in the DTAR, which is published and is in the CFR. The DTAP specifies strictly internal procedures. It says so. Moreover, federal statute says that the Mint is not bound by any federal procurement law or regulation. So, for instance, the Christian Doctrine could not apply to any contract of the U.S. Mint. The Christian Doctrine is not based on 41 U.S.C. 7101, which did not exist when the court ruling on which it was based was decided. It was decided on the basis that the regulations that required the inclusion of the T for C clause were promulgated by statutory requirement. Thus, those regulations have the force and effect of law. No statute requires the Mint to publish any procurement rules that it issues. As far as I can tell, they have not published any procurement rules for the public. The DTAP imposes certain requirements with respect to compliance with CICA. See Part 1006. However, an offeror cannot go after the Mint for violation of any of those DTAP procedures, because the GAO has held that the Mint is not subject to CICA and it has no jurisdiction to handle protests against the Mint. Similarly, the Contract Disputes Act does not apply to the Mint. So even if the DTAP imposed CDA-type procedures on the Mint, such as CO decision within a certain period of time, the contractor could not go to the CBCA or the COFC on a deemed denial basis, because they would have no jurisdiction. So even if a firm that is considering responding to a solicitation from the Mint did, on your advice, find a rule in the DTAP that applies to the Mint and that requires the Mint conduct its procurements in certain ways, it could not hold them to it on the grounds that the Mint violated the DTAP. Even if a contractor could find that the Mint violated the DTAP in awarding its contract, it could not seek relief on the ground that the Mint violated a rule that has the force and effect of law. In short, even if the DTAP applies to the Mint, it would not answer the question: Might a prospective contractor or an actual contractor learn from the DTAP what the Mint was supposed to do? Perhaps, if the DTAP applies. But what good is that if it has no legal right to seek enforcement? (Does the DTAP apply to the Mint? I don't think so. Consider DTAP Subpart 1033.2. What sense does it make to say those rules apply to the Mint when under the CDA the CBCA and the COFC have no jurisdiction over disputed claims against the Mint? The Department of Treasury or the Mint cannot decide to apply the CDA to the Mint, since statute says that it doesn't, and since such a decision thus could not grant jurisdiction. In only one place does the DTAP appear to require the Mint to do anything. See DTAP Table 1, footnote 3: "The U.S. Mint HCA, or designee, in consultation with the SPE, shall determine which specific contracts or class of contracts is for products and services unique to U.S. Mint operations and programs.") What a prospective contractor and actual contractor must know about doing business with the Mint that it is not bound by Federal procurement statutes and regulations and is not even bound by its own, whatever they may be. I can't find them. It does not appear that a prospective contractor has any rights with regard to the Mint's conduct of its procurements. I presume that an actual contractor's rights are only those stipulated in its contract with the Mint. Can a prospective contractor learn of its rights and of the procedures the Mint must follow from a solicitation? i don't know. I have not been able to find one, and I don't know what they look like or contain. Don't assume that they are the same as the ones prescribed by FAR. Can it learn from a contract specialist? Maybe. Would the info obtained from such a conversation be reliable? Maybe.
  22. What laws apply to the US. Mint?

    Help me understand your logic. Isn't 41 USC 1707 a "provisions of law governing procurement or public contracts" and as such, pursuant to 31 U.S.C. § 5136, it is not applicable to the U.S. Mint. In fact none of 41 USC would be applicable would it? Or in other words if Treasury/U.S. Mint wants to adopt anything out of the FAR and DTAR as their rule (policy) for doing procurements they could. I do understand that they might run up against the likes of GAO (and others) as noted because an entity like GAO would exclude themselves from helping with protests for lack of jurisdiction pursuant to laws and regulations applicable to them.
  23. Last week
  24. What laws apply to the US. Mint?

    One additional thought. Let's suppose, for the sake of discussion, that the DTAP does apply to the Mint. In order for a procurement "rule" to apply to companies doing business with an agency and to be a basis for litigation, it must be published in the Federal Register. 41 USC § 1707. A rule must be published only if it According to the DTAP: In short, it doesn't meet all the criteria for publication in the Federal Register as it relates to the MInt, because the Mint does not spend appropriated funds and because it doesn't have a significant impact beyond the internal operating procedures of the agency. The OP asked: Well, a contractor cannot learn that by reading the DTAP, because it does not apply to the public. It is one of those internal procedures I mentioned in my first post. So, reading the DTAP will not teach the OP anything about what rights it has and rules that the Mint must follow that impact those rights. And, in fact, a reading of the DTAP shows that it pertains strictly to internal processes that don't have "a significant effect beyond the internal operating procedures of the agency" or "a significant cost or administrative impact on contractors or offerors."
  25. Revenue Recognition

    I'm late in replying, but thank you both for your contribution/direction. I'll try find the section in the AICPA Guidance that addresses this,
  26. What laws apply to the US. Mint?

    I agree that it's easy. The DTAR says it does not apply to the Mint. The DTAP says it supplements the DTAR. If the DTAR does not apply to the Mind, and if the DTAP supplements the DTAR, it follows that the DTAP does not apply to the Mint. Why is that conclusion in error?
  27. What laws apply to the US. Mint?

    Absolutely nothing. I might ask the same back to you but I won't. Again I only offering my research that supports that the DTAP does apply to the Mint. I did scan the DTAP and it says this "The DTAP applies to all acquisitions of supplies and services involving the obligation of appropriated or non-appropriated funds." Again I will retract if it is found that my conclusion that DTAP applies to procurements of the US Mint is wrong. That easy!
  28. What laws apply to the US. Mint?

    I don't know what has gotten into you, and I don't know what I said that has provoked you. The DTAR and DTAP speak for themselves. They do not apply to the Mint. I wonder if you have scanned the DTAP to see what it says.
  1. Load more activity