Retreadfed

jwomack asserted that agencies frequently appoint to need not capability. What he is saying is that agencies do not comply with FAR 1.603-2 when appointing contracting officers. Appointing contracting officers is an issue that is distinct from what agencies do after they have appointed a contracting officer. In any field, if an individual does not keep current, that individual will become less of an asset and more of a liability. Maybe some of the government types at this Forum and provide some insight as to what is being done with the acquisition training fund that is supposed to be established to provide training to members of the acquisition workforce.

I don't see that at the website you gave. There the birth certificate is used to show American citizenship. Can you provide a quote that supports your statement?

Pepe, if you don't stay in the government pond, you stand a good chance of getting gigged by an incompetent government contracting officer.

That is scary for contractors and the taxpayer. In this case, I presume the agency would not give the incompetent a fair and realistic performance evaluation, but would create a false document to avoid having to remove the individual for poor performance.

If you have an incompetent person, should they have a warrant at all? Unfortunately, while on the contractor side, I have had to deal with such situations. Many small businesses have had to close their doors because of the actions of incompetent contracting officers who should never have had a warrant.

52.222-41(m) is merely a notice requirement placed on the contractor. It does not authorize a price adjustment. Price adjustments are permitted under 52.222-43, not -41.

To achieve efficient operations, the System must shift its focus from “risk avoidance” to one of “risk management.” The cost to the taxpayer of attempting to eliminate all risk is prohibitive. The Executive Branch will accept and manage the risk associated with empowering local procurement officials to take independent action based on their professional judgment. FAR 1.102-2

How is the contract priced, e.g., cost reimbursement, T&M, fixed price? Also, what does the contract say about using employees who have not completed the training?

That is an incorrect interpretation. The functions listed in those subsections must be performed by a contracting officer from the cognizant Federal agency. It is up to the CFA to determine who that contracting officer is. This is made clear by 42.302(a). Also, note the definition of CFA in 2.101. Many contracts are novated by contracting officers from agencies that did not award the contracts. The fact that a contract is awarded by one agency does not mean that only that agency can novate that contract. Many contractors do business with several agencies at the same time. If one of those contractors sells the assets used to perform those contracts, each individual agency would not be responsible for novating its own contracts. Instead, the responsible contracting officer would be responsible for doing so for all agencies.

The adjustment is only calculated beginning with the exercise of an option and only applies to service employees working on a covered government contract. Not all employees covered by a CBA may be service employees as contemplated by the SCA. Thus, identifying who are service employees covered by the CBA may be a good starting point. Next, the adjustment is made on a prospective basis not retroactive. Thus, if the new CBA rates went into effect in the middle of an option period, the contractor is not entitled to an adjustment based on the effective date of the new CBA rates. Instead, the new rates would only be used in computing the adjustment for the next option period. You can tell the difference in the hourly rates (wages and fringe) by comparing the old rates and the new rates. The rub comes in determining the hours by which to multiply the difference. Neither, the DoL regs, the SCA, nor the FAR say how this is to be computed. Moreover, I am not aware of any appeals board or court decision that answers this question. The guide that Carl provided contains the Navy's view on this which is similar to other DoD agencies. However, the guide is just that, a guide that has no regulatory effect unless it is incorporated into a contract.

I don't think that the veracity of this statement is clear. I learned a long time ago that laws, regulations and contracts mean what the appeals boards and courts say they mean. That is why I asked if you had any decisions to support your statement. Looking simply at the text of 1.108 does not necessarily provide an authoritative interpretation of it. The language quoted above is preceded by "the final anticipated dollar value must be the." Reading the entire sentence, raises several questions. First, from whose perspective are we looking in regard to what can be anticipated? If it is the contractor, the contractor cannot be said to have an anticipation of receiving anything more than the minimum under an IDIQ contract. See, for example Travel Centre v. Barram, CAFC No. 00-1054, 00-1126, (Jan. 4, 2001) ( Travel Centre could not have had a reasonable expectation that any of the government's needs beyond the minimum contract price would necessarily be satisfied under this contract.1) Similarly, if the anticipation must be mutual, because a contractor would not have an expectation of receiving anything more than the minimum, the mutual expectation (anticipation) could not exceed the minimum. Thus, that brings us to the third possibility that it is the government's anticipation that must be considered. Simply reading the text of 1.108 does not provide an answer to this question. Next 1.108 says "If the action establishes a maximum quantity of supplies or services to be acquired." It does not say a maximum quantity that "may" be acquired. Thus, in an IDIQ contract we need to ask what is the maximum quantity of supplies or services that are to be acquired. The answer to this is clearly the minimum. Any amount above that minimum quantity "may" be acquired. Alternatively, 1.108 states that if the action "establishes a ceiling price or establishes the final price to be based on future events, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options." Here what we need to establish is what is the "highest final priced alternative to the Government." For options, making that determination is fairly easy. However, for an IDIQ contract that may not be readily determined. I would not say that the maximum amount that can be ordered is the same as the "highest final priced alternative to the Government." In many cases, a price is not established until an order is issued. Based on this, it is not clear to me how 1.108 applies to an IDIQ contract. This would be even more interesting if we are talking about multiple award IDIQ contracts.

Yes. That is what FAR 52.222-43 requires. A CBA is a form of WD. If an amended CBA is in effect when an option is exercised and the wages and fringe benefits in that CBA have increased, thereby increasing the contractor's cost of performance, the contractor is entitled to a price adjustment as ji noted. Further, its overall profit margin will likely go down as a result of this adjustment. The fact that you did not provide the contractor with a recipe is irrelevant.

Guardian, in regard to 1, was the "REA" submitted in regard to the exercise of an option? As for 2, unless there is something unusual in the contract, I don't see a basis for the REA based on the facts provided.

The first sentence is demonstrably untrue. First of all, FAR 42.1204 requires the transferor and transferee to submit specified information. We have no idea what was submitted. Even if we knew what was submitted, we have no idea as to whether it was complete and accurate and what actions the GSA contracting officer took when (s)he received that information. Also, your original post did not say whether the GSA contracting officer obtained input from other contracting agencies before executing the novation agreement. In this regard, you state that the GSA CO did not reach out to your agency. That is your side of the story. However, the GSA CO may have a different version. Thus, there are several facts that we still do not know. As for the GSA CO not following the FAR because the assets had not been transferred, it is not clear what assets you are referencing. You seem to be focusing on employees. However, it is not clear that employees are assets that can be transferred. To me they are not. In any event, the FAR requires the transferor to provide an authenticated copy of the document evidencing the transfer of assets. We don't know what was submitted in this regard. However, if employees are not assets that can be transferred, no fault can be assigned to Contractor A or the GSA CO on this account. As for your obligation to comply with the novation agreement, the fact that you are asking about an FSS contract seems to be a red herring. FAR 42.12 addresses the novation of contracts. Nothing in 42.12 indicates that the guidance there does not apply to FSS contracts. Note that FAR 42.1203(a) demonstrates that the FAR Councils know how to write exceptions to application of the procedures in 42.12 to novations. Thus, if they had wanted to exempt FSS contracts from the procedures in 42.12, they clearly could have one so. There is simply no indication that 42.12 does not apply to GSA FSS contracts. FAR 42.1203 describes the procedure for processing novation requests. The responsibility for doing so is vested in a single "responsible contracting officer." From the text of 42.1203, it is clear that this single responsible contracting officer acts for all agencies in processing novation agreements concerning the contracts listed by the transferor. This concept of having a single contracting officer act for the government is not unusual. For example, FAR 42.302(a)(5), (9), (11) and (12) require that a single contracting officer perform the functions listed in those subsections. Simply put, the FAR assigns a single contracting officer the responsibility for negotiating novation agreements on behalf of the executive branch. Nothing in FAR 42.12 can be interpreted as giving individual agencies the discretion to accept or reject a novation agreement executed by the responsible contracting officer.

We cannot answer your question because we do not know all the facts. However, if we assume that the GSA contracting officer complied with the provisions of FAR 42.12 and included your task orders among the contracts being novated, you had no authority to disregard the actions taken by the responsible contracting officer who was acting on behalf of the executive branch when executing the novation agreement. Again, if the GSA contracting officer followed the FAR, you should have had an opportunity to comment on the novation before it occurred. If your agency did not take advantage of that opportunity, somebody is in need of career counseling. Further, as Carl said, the resolution of the issues between A and B was not your problem.

I agree that NASA takes safety very seriously. However, I am curious about this statement. If it is not a contracting matter, what is the government's authority to conduct such a review?

Having a sub submit certified cost or pricing data is not necessarily limited to the circumstances listed in FAR clauses. Primes can go beyond that as a matter of policy. Thus, your manager is not necessarily off base in regard to what (s)he is saying.

ji, it seems the prime directed the sub to send its employees home. Based on the terms of the subcontract, this direction may create an obligation on the part of the prime to compensate the sub. However, we have no information concerning what, if any, role the government played in this decision. Therefore, we have no information upon which to even venture a guess as to the government's liability to the prime for any compensation the prime provided the sub in this circumstance.

H2H, I am confused by this statement. Are you saying that a prime has to get certified cost or pricing data from a sub in regard to the award of a subcontract if no exemption is available to the sub even if the prime was not required to submit certified cost or pricing data?

Lionel, I know you quoted FAR 1.108(c) as the basis for this statement. However, the language of the text and the nature of an IDIQ contract do not necessarily support this conclusion. For example, it can be argued that the anticipated value of an IDIQ contract is the minimum order value. Can you elaborate on your reasoning for reaching this conclusion? Is your conclusion supported by any court or board decisions?

Joel, as a clarification, my comments to which you were responding were intended only to respond to H2H's question, which was open-ended and not limited to any particular contract type.

ji has provided some good advice to check to see what the status of payment to the prime contractor will be. Some agencies, such as NASA, use provisions in their contracts that allow contractors working on NASA facilities to be paid for days when NASA employees are excused from work.

I had a client that was impacted by Katrina. It had CPIF contracts. The big issue they faced was the cost of redoing work that had already been done. The government paid for the increased costs, but did not adjust the incentive structure. In addition, because of diversion of labor to recovery projects, where workers were paid premium wages, the client had to recruit new employees and pay them premium wages in order to be competitive with other employers.

Carl, no mod has been proposed yet. It seems like the contractor is simply being asked to reduce the price of the contract without a contract change. If I were the contractor, I would not do it until a mod is proposed so I can know the impact of the change on my pricing. As you indicated, there may be no impact or the price may go up.

I think a good starting point in looking for answers would be the contract level CO's PD and the contract. There does not seem to be any inherent obligations to manage the TO level COS by the contract level CO.