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Everything posted by Retreadfed

  1. Contracting Scandals

    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.
  2. Contracting Scandals

    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.
  3. Unreasonable Price

    Vern, some old mossbacks like me remember the Renegotiation Board. Would you be in favor of reviving it or something like it?
  4. H - clause vs FAR/DFAR

    Don, you are right about the clause. My bad.
  5. Unreasonable Price

    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.
  6. Unreasonable Price

    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?
  7. H - clause vs FAR/DFAR

    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.
  8. H - clause vs FAR/DFAR

    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.
  9. H - clause vs FAR/DFAR

    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.
  10. H - clause vs FAR/DFAR

    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.
  11. 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.
  12. Unreasonable Price

    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.
  13. 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."
  14. 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.
  15. Z, the FAR sections that you cite relate to guidance for government personnel to use when awarding prime contracts. They are not clauses binding on contractors. On the other hand, if FAR 52.245-1 is in your prime contract, it is binding on you and you have to comply. If you want to avoid the flow down requirement, find a clause in your contract that says you do not have to include the clause in contracts below the MPT.
  16. FAR 16.505(b), no debriefing

    The requirement for a debriefing concerning an order issued under a multiple award contract comes from statute (e.g. 10 U.S.C. 2304c(d)(5) for DoD). The statute limits the requirement for a debriefing to orders that exceed $5M, with that limit having been adjusted for inflation to $5.5M.
  17. Wage Determinations under the SCA

    LB, read FAR 52.222-41 and 52.222-43. That should answer your questions.
  18. ji, you are correct in your interpretation. A contractor can still receive an order after recertifying as other than small, but the order is not considered to be an order to a small business concern.
  19. The language I quoted is not related to when a proposal is submitted. It relates to the five year recertification requirement. Under that language, if you recertify that you are other than small, you cannot be considered small in regard to any orders that are awarded after that date, regardless of when the proposal for the order was submitted.
  20. dmuir, you cited 13 CFR 121.404. Paragraph (g)(3) of that section states "If the contractor certifies that it is other than small, the agency can no longer count the options or orders issued pursuant to the contract towards its small business prime contracting goals."
  21. Superior knowledge

    I agree with Joel. The way I see it, rsenn is not really concerned with government superior knowledge, but with a perceived competitive advantage an incumbent contractor may have. If such an advantage exists, it would not be an unfair competitive advantage but merely an attribute of being an incumbent. GAO has addressed this issue several times, and without doing a search to confirm this, my recollection is that GAO has always denied the protest.
  22. Superior knowledge

    rsenn, following your logic, the government would have to disclose labor rates, indirect cost rates, management plans and staffing plans of incumbent contractors to competitors. I don't think you want to go that far, particularly in light of 18 U.S.C. 1905. As Joel said, a contractor's employees are frequently the contractor's most valuable assets and they are generally desirous of protecting those assets from being pirated by competitors. As such, in my experience, if a FOIA request is filed asking for the information you seem to be wanting, the government will deny it under exemption (b)(4) and sometimes (b)(6) depending on the request. In regard to (b)(6), some of the information you are asking for could be covered by the Privacy Act so the government cannot release that information without the permission of the individual concerned. If you read the cases concerning superior knowledge you will find that information concerning another contractor's performance, which includes its workforce, is not the type of information that is covered by that doctrine. Instead, superior knowledge deals with aspects of the work to be done where the government knows something the contractor does not and the contractor cannot reasonably be expected to have that knowledge. A prime example of this is it is necessary to have access to classified information in order to accomplish the contract, but the government does not disclose this information to offerors. This is quite different from what you are talking about, particularly where you have a wage determination and a statement of work that describes what needs to be done so that you can determine what labor categories are required. Further, if a T&M contract is contemplated, the government should be listing labor categories in the RFP. Like Joel and Carl, I just don't see superior knowledge applying here.
  23. Superior knowledge

    There is a disconnect in FAR 52.222-17 between what a successor contractor is required to do and how it is to get the information it needs to comply with the clause. A successor contractor's primary obligation under the clause is to offer employment to "those service employees employed under the predecessor contract whose employment will be terminated as a result of award of this contract or the expiration of the contract under which the service employees were hired." However, the clause does not say how the successor is to know this. That information would seem to be almost exclusively within the knowledge of the predecessor contractor and it may not become apparent to the predecessor contractor until some time after the new contract is awarded.
  24. Government Furnished Equipoment

    Joel, I agree that those FAR provisions should be taken into account by the contracting officer in preparing a solicitation. However, offerors should read the solicitation to determine whether the guidance in those FAR sections has been incorporated into it and what offerors should do in response to the solicitation.
  25. Government Furnished Equipoment

    Jo, read FAR 45.201(c) then read the solicitation on which you are proposing. That should answer your question.