Retreadfed

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  1. Note that the OP stated that this contract was one of a series of multiple award contracts. We do not know if these were IDIQ contracts, but if they were and no orders were issued to this contractor, where is the default?
  2. No, I am not kidding. You and I must have traveled different roads if this is all that surprising to you. I agree it is shocking and disgusting that government personnel would not be ticked off that fraud had happened on their watch and want to do whatever is necessary to get it eradicated. However, DW's experience is not uncommon for whistleblowers.
  3. DW, when something goes wrong in an organization, management frequently considers it to be a negative reflection on its management ability. Therefore, while disappointing to receive the reaction you did, it should not be all that surprising.
  4. Vern, some old mossbacks like me remember the Renegotiation Board. Would you be in favor of reviving it or something like it?
  5. Don, you are right about the clause. My bad.
  6. Vern, thanks for the history lesson. I was a history major in college and find the origins of things to be interesting. As to the reason for my question, in my experience, many COs think that a fair and reasonable price is a price that is developed strictly through cost/price analysis. I wanted to see where Lionel was on this.
  7. Lionel, a fundamental question that should be addressed here is what is the definition of "fair and reasonable price" and what is a "reasonable price"? Do you have such definitions?
  8. Don, this gets down to the intention of the parties. I can see if there is a follow-on contract and all the property under the old contract is transferred to the new contract, property close-out activities may not be required. In that case, there is no problem. On the other hand, if the follow-on contract does not require use of some or all of the property, then close-out activities may be required in which case I think the H clause would kick in. We have been discussing a conflict between the H clause and the current version of the GP clause which came into being in 2007. However, we do not know what GP clause(s) are in the contract. It very well may be that we are dealing with an old dog here and that the property was provided under a facilities contract. I should have caveated my statements to reflect this reality.
  9. Don, I guess we have a difference of opinion on this. I do not think that my interpretation renders any language in either clause meaningless. The GP clause says the contractor will do certain things when a contract is terminated or expires. The H clause says there is no money in the contract for those activities, but when a termination occurs or the contract expires with no follow-on, the government will require the contractor to do the things listed in the clause, which generally means the contractor will comply with the GP clause, and add money to the contract to cover these activities. In regard to a termination for convenience, this is consistent with the model termination letter found in FAR 49.601-2. Thus, the direction contemplated by the H clause in regard to terminations would likely occur prior to or simultaneously with the termination. If the government elects to allow the contract to expire, direction to comply could be issued prior to the or concurrently with the expiration. We have to assume that government officials will do their jobs correctly. Thus, I do not see a conflict.
  10. Don, I do not read the H clause as saying the contractor does not have to do what is required by the Government Property clause or any other clause in the contract. Instead, I read it as saying that the price of the contract does not include the activities listed in the H clause. However, the clause goes on to state that in certain circumstances the government will add funding to the contract to cover the cost of these activities. This interpretation harmonizes the H clause and GP clause so that no conflict is present. Such harmonization is the preferred way of interpreting the contract. Gabriel, why are you concerned with paying twice for close-out costs? It seems like you are accusing the contractor of attempting to defraud the government.
  11. Gab, I do not think the Order of Precedence clause is relevant to this discussion. That clause tells the parties how to resolve conflicts between terms in the contract. The H clause is not in conflict with any of the standard FAR clauses you have cited. As for the meaning of source of funds, we can all speculate as to what the contractor meant (my guess is that the contractor was asking for a fund cite to be added to the contract providing funding for the activities requested by the contracting officer) however, the best thing to do is simply ask the contractor.
  12. REA'n, the FAR limitations on the use of FP LOE contracts are frequently ignored by the government. I have seen more such contracts that do not comply with those limitations than those that do and that is quite a few. Pat may have left the building, but if (s)he is still around, maybe we can find out what payment clause is in the contract. If it is an FFP contract, 52.232-1 should be the payment clause.
  13. Joel, as you indicated, the FAR does not tell what the higher level official is to do once (s)he receives a referral like this from a contracting officer. That gives them a lot of wiggle room on what they do. In my experience, what happens at the higher level is up to the person occupying the higher level position. In some cases, they will call the CEO or other officer of the company and try to work something out. Sometimes, they direct the CO to go back to the contractor and state that the higher official agrees that the price is unreasonable and that if the contractor does not lower its price, it will not get the award. Or as ji has indicated, they may review the record and say the price is reasonable.
  14. If FAR 52.245-1 is in your contract, it is a contractual requirement, not a regulatory requirement. Part 52 of the FAR also provides guidance to contracting officers in that each sections starts with words such as "Insert this clause in all contracts."
  15. Rea'n, please read 13 CFR 124.510 and 12 CFR 125.6. I think the SBA has a different take on when you measure compliance with the statutory limitation on subcontracting.