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Everything posted by Retreadfed

  1. Contracting Scandals

    It is not uncommon for defense lawyers to file a motion to set aside a verdict. The usual ground is insufficient evidence upon which to base a conviction.
  2. Meaningful debriefing

    Seems like you have a disagreement with the agency over what is acceptable. Your mere disagreement is not enough to show that the agency was wrong. From what you have written, it seems that acceptability is in the eyes of the beholder and that there is no bright line test for determining that. If the next evaluation panel has different people, they may have a different view of acceptability. Even the same panel may have a different view if later events have changed their perspective. As long as subjective evaluations are conducted, there frequently will be situations where there will be disagreement with that evaluation. Just look at the scoring in boxing, gymnastics and figure skating for example. However, as Lionel Hutz indicated, if the agency had an unstated requirement that offerors would perform with a specified number of people, that is a different story.
  3. Contracting Scandals

    Just a point of curiosity, I wonder if any of the other offerors in the case referenced in the press release filed a protest after finding out about his conviction. Such protests were filed by competitors of Boeing after Darleen Druyun's (?) conviction.
  4. While many universities have courses on effective writing, many undergrads do not take them. Instead, they take "relevant" courses such as "how the Seinfeld Show affected modern society." In this regard, how many supposedly educated people do you hear say such things as "where we are at" or "raise up"?
  5. Shall7, I don't know if you are aware that most major universities in the US are contractors. Contracting with them to teach effective writing, which would seem to be a prerequisite to writing effective SOWs, doesn't seem like a bad idea. I suspect that most people graduating from college in the last several years could probably use an effective writing course.
  6. Field Testing as part of Source Selection

    Aaron, when you say significant field testing, do you mean testing it in an operational environment and using it as if it were government property? II don't know why it could not be used for other types of equipment particularly if you have a DT/OT evaluation requirement.
  7. I recently received information from a contractor that the government had withheld amounts due to the contractor in order to collect taxes allegedly owed to the DC government. I am not aware of any authority for such contract withholdings to be made. Am I missing something? Can someone point me to where the authority to do this is found?
  8. Price Analysis

    Neo, I did not see where you said that 52.244-2 is not in your contract. If it is in the prime contract, does it require consent to subcontract despite the fact that you have an FFP contract?
  9. Collection of State Taxes

    The Debt Collection Act deals with debts owed by individuals. FAR Subpart 32.6 deals with contract debts. Thanks anyway.
  10. Request for Equitable Adjustment, Continued

    Vern, let me add a couple more factors that sometimes come into play when a contracting officer receives an REA. The CO requested and received an audit report from DCAA on the REA. The audit report questioned many areas of cost on questionable grounds that you do not feel are supportable. However, your agency has just received an IG report stating that your agency does not do enough to support DCAA audit findings. You are also aware of your agency's policy of requiring you to justify any rejection of a DCAA audit finding. Finally, you have just read the DCAA memorandum on reporting contracting officers who do not follow DCAA audit recommendations to the agency IG. The REA is in regard to a contract supporting a high visibility program that has congressional interest. The HCA has just received a letter from the Chairman of your agency's oversight committee asking questions about cost control on the program and voicing concern over cost overruns. The Chairman said the committee was concerned about contractor's buying in to the program then trying to recover their losses through contract modifications. The Chairman has requested that the HCA and PM testify before the committee on this subject to two weeks. Another contractor that supports the same program has just been found liable under the False Claims Act for submitting false claims to the government. Because of the visibility of the program, this determination of liability has made national news and focused attention on all contractors supporting the program. If any of these scenarios is present, the CO has to make the decision whether to ignore the external factors and only look at the merits of the REA or to become a bureaucrat and go into CYOA mode.
  11. Request for Equitable Adjustment, Continued

    Vern, although your question was directed toward H2H, I work with several contractors in regard to government contracts. Most of those contractors are small business concerns. Based on my experience with these small business concerns, there are several reasons why they do not file a claim. First, in many cases, they feel that if they file a claim it will tick of the contracting officer. If they do, they not get future work from the government or the government will make their lives miserable in regard to ongoing contracts. In this regard, on several occasions, the government has tried to bully the contractor out of filing a claim. I had one instance where the government actually threatened to report the contractor for fraud if it filed a claim. Next, they erroneously believe that they will need to hire an attorney to file a claim. The cost to do so is a big deterrent to filing a claim. Also, finding an attorney to take their case is a problem since many small businesses cannot afford to pay the hourly rate that attorneys skilled in government contract law charge. Another issue is a lack of knowledge as to what is required to file a claim. In some instances, these companies do not even know that they can file a claim. Obviously, the level of sophistication of these contractors is not high. In summary, in my experience, contractors act in this way out of fear and a lack of knowledge.
  12. CPSR driven by FAR 52-244-2?

    Bulgheroni, is 52.244-2 omitted from the contracts because they do not meet the criteria of 44.204 or is it omitted for some other reason? Also, do any of those contracts contain DFARS 252.244-7001 or DFARS 252.244-7001 Alt I?
  13. Whynot, is the modification a type of modification described in FAR 15.403-1(c)(3)(iii)?
  14. Let me clarify my last post. A contractor cannot off-set required wages with increased fringe benefits. The contractor must pay not less than the minimum wages specified in the relevant WD. However, the contractor can substitute one bona fide fringe benefit, such as the employer contribution to a 401K for a fringe benefit specified in the WD.
  15. There is no requirement that a contractor price a proposal using the wages and fringe benefits in a WD. What is required is that the contractor pay its covered employees the wages and fringe benefits in the WD or provide a bona fide equivalent in fringe benefits.
  16. Overclock said "DCAA is reluctant to audit your rates because the government does not have any privity of contract with you." Privity of contract has nothing to do with the government's ability to audit subcontractor costs, including indirect costs. The audit clause, FAR 52.215-2, gives the government this right in regard to cost reimbursement subcontracts, such as the one in this situation, if the prime contract is other than a firm fixed price contract or a contract for commercial items.
  17. Award with a Proposal

    Navy, based on your posts, it appears that you think FAR 15.404-3 applies to contractors. Is that your belief, and if it is what is the basis for that belief?
  18. Troy asked "Given the title of this post what, if anything is wrong with this scenario?" While I cannot say that something is "wrong" with the scenario, I can see several potential problems depending on the facts of the case. First, we don't know if the position to be filled is one that is covered by a collective bargaining agreement that contains provisions for how vacancies are to be filled. Not following those procedures could result in an unfair labor practice. Similarly, we do not know if the position is one that may be subject to the right of first refusal under FAR 52.222-17. If it is, not giving former employees the chance to exercise those rights could be a breach of contract. If the contractor has already offered another person a job to fill the vacancy, there may be an employment law violation if the contractor does not follow through on the offer. This could also be a violation of contract terms such as 52.222.35. Is the person whose resume is being shopped a former government employee with post government employment restrictions on what (s)he can do?
  19. Signing actions above warrant authority?

    Thanks for the clarification.
  20. Signing actions above warrant authority?

    Joel, I am not sure I follow some of what you are writing. Are you saying that for purposes of the definition of contracting officer in 2.101, the only person to whom a contracting officer can delegate some of his/her authority is a COR? If that is what you are saying, what is the basis for that statement?
  21. Minimum Delivery Order

    Benjamin, note that the language you quote only relates to the value of orders the government will place, not what the contractor may invoice or the government actually pay against an invoice. A simple example would be that the contract contains a prompt payment discount provision where the government places an order for $20K, but makes a prompt payment entitling it to the discount so that the contractor receives less than the $20K.
  22. Minimum Delivery Order

    Neil, to clarify your last post, are you saying that an option needs to be supported by adequate consideration separate from the consideration that was given to form the original contract?
  23. Signing actions above warrant authority?

    Boof, the question before the house is not whether it is a good idea or a bad idea, but whether it is prohibited by something.
  24. Contract Closeout Process

    Joel, I agree with your statement that poor audits cost the taxpayers. However, I think your prescription for minimizing such audits is somewhat wide of the mark. Similarly, I do not accept that the backlog of DCAA audits is the result of a lack of staffing. My views are based upon my working for DCAA for 15 years and dealing with DCAA auditors on the contractor side for almost 20 years now If we look at the figures for DCAA prior to 2008 and compare them to the same metrics after 2008, we see a great drop off in productivity. For example, on an average yearly basis, DCAA did substantially more audits prior to 2008 as afterwards. The number of audit reports per auditor had a similar reduction while the time taken to perform the few audits that got done expanded greatly. The reason 2008 is the significant year is because that is when GAO issued its first report finding that some DCAA auditors had not fully complied with the GAO auditing standards (GAGAS) when performing audits. Among the standards that were allegedly violated was the standard on documenting adequate transaction testing. This report resulted in several congressional hearings and the reassignment of the DCAA Director to the DoD Comptroller's office. Internally, DCAA went overboard on transaction testing. DCAA was no longer turning over the big rocks when conducting audits but were turning over grains of sand to show that it had done adequate testing in order to obtain evidence to support an audit opinion. Obviously, this focus on process resulted in DCAA not being able to get reports out the door. Also, I suspect that some of the backlog has a political component to it as this was a tactic DCAA used while I was there. In Washington, one of the favorite solutions to every problem has been more money. Having a backlog is something that can be blamed on a lack of resources so you can get more money. DCAA intentionally did not reduce its backlog of audits so that it could justify its budget and staffing levels. As for training, I doubt there is a more trained civilian workforce anywhere in the government than DCAA auditors. The problem is that most of the training they get is from other DCAA auditors. This perpetuates internal biases and avoids "corrupting" outside influences. DCAA has traditionally not permitted its auditors to attend DAU or other outside procurement training. Maybe Don can speak to this point.
  25. Signing actions above warrant authority?

    If they are separate things, why could the contracting officer not do the latter if it is not prohibited by his/her warrant since the contracting officer is not appointing anyone as a CO??