Retreadfed

What do you mean by "conformed copy of a contract"? As the contractor, don't you have a copy of the contract with all the mods, orders, etc.?

Yes. Whoever you are dealing with in the government should get to be good friends with the Small Business office in their commend.

What do you mean by "client"? Is the contract one of the indefinite delivery contracts described in FAR 16.5? If so, what is the ordering period for the contract? Also, is there anything in the contract that contradicts FAR 52.216-20(d), 52.216-21(f) or 52.216-22(d) as applicable?

I noticed there were several references to DODIG reports. I am suspicious of such reports because in my experience the DODIG has been against the commercial item exception to the submission of certified cost or pricing data. Further, when the threshold was raised from $100K to $500K the DODIG did everything it could to stop that action. The IG's argument was based on the situation at one aircraft parts supplier. For years, the supplier had been selling parts to DoD and providing cost or pricing data. At the same time, it was providing similar parts to manufacturers and repairers of commercial aircraft at significantly higher prices. The saying at the time was if it flies in the free world it has parts from that parts manufacturer. Based on this one circumstance, and its fear that DoD would pay more for the parts it had been buying from this contractor, the DODIG opposed raising the threshold and creating a commercial item exception to the submission of certified cost or pricing data.

Piggy-backing on Joel's questions, why do you want to have key personnel at all? What is so magical about designating someone as a key person?

We don't know what type of funds were used on the original contract so we can't answer that question. For example, what if the funds are no year funds?

I'm confused. How did final payment occur if the contractor did not submit a final voucher? Also, unless the quick closeout procedures are used, a final voucher is not submitted until after final indirect costs are established for all contract years.

Agreed. Even though the procedures for award of a sole source contract are followed, that does not mean that a new contract document needs to be created. The new contract can be added to the existing contract as a modification.

I don't know if this mindset still exists in congress, but some time ago a very powerful congressman (whose name I have forgotten) was quoted as saying "one protester is worth a thousand auditors."

I'm not so sure about this. We don't know what the contract required the contractor to do. The contractor may have completed the contract as written, but the government has not awarded a follow on contract. In this case, to me, the extension would be new work that requires a new contract.

In this case, it seems to me that the government should follow the procedures for award of a sole source contract.

Amen or a claim is filed. These things tend to focus the mind.

I agree. Further, instead of a lawsuit, a claim might be the better course of action if the matter cannot be resolved through communications with the agency. If the inspector is holding you to an unreasonable standard or one that is not authorized by the contract and that is costing the contractor money, a constructive change might have occurred that gives the contractor the right to an REA/claim.

I'm somewhat confused. Was the work actually delayed or is the need for the extension needed because the government has not been able to award a follow-on contract o that the extension is, in effect, a bridge contract?

Vern, some matters for consideration: How would your proposed process address those rare situations such as those presented by the Darlene Druyun and Boeing scandal where it took years for contractors hurt by her to find out the truth? If you convert protests to claims, would you exempt such claims from the Equal Access to Justice Act? If the object of the changes is to make agencies responsible for their procurements, would you eliminate DoJ from the process before the COFC? For consistency, would you make the standard of review the same for claim appeals submitted to the cognizant appeals board and COFC? If so, what would that standard be? Would an appeal to the CAFC be permitted under this process? If so, would you eliminate DoJ from that process? As an ancillary matter, how would your system deal with size and status protests to the SBA, and possibly the COFC? If you make protests subject to the CDA, would you make the CDA time lines applicable to such claims and would you establish a time within which a decision has to be made by the appeals board or COFC?

Neil, of course anyone can be sued by someone else at any time. However, as I am sure you know, that does not mean that the suit is proper. If a government employee is sued for an alleged tort done in his/her official capacity, the government can step in and file a motion to have the government substituted as the defendant. In that case, the provisions of the Federal Tort Claims Act come into play. Further, it would be the government who asserts the incompetence of the employee as part of its defense if it gets that far.

What is the contract for and why is an extension needed? There could be various options depending on what the facts are. By the way, a T&M contract does not require a level of effort if that is what you meant by LOE. In my several decades of experience, I have never seen such a contract.

Not so fast my friend. When I worked for the government, I successfully used government incompetence as a defense against various complaints in administrative proceedings.

You are talking about a COI of a government employee. The FAR does not cover this except in regard to FAR 3.1, particularly the Procurement Integrity Act. Most COI regulations are found in the Government-wide Ethics Regulation. What ethics rule to you think this individual may have violated?

I agree with Oyster. Agency reports are frequently the source for new information that gives the protester additional grounds for protest.

I presume that there will be multiple individuals who occupy the administrative assistant position. How will you determine which individual is paid at what rate?

Do you intend on using an indemnification clause in the subcontract? If so, why don't you specifically address this issue in that clause?

Do(es) the applicable wage determination(s) show different rates for the position?

Carl, in your earlier post, you brought up what David's options could be if the government did not pay him for the costs incurred in responding to the government's erroneous claim. However, you omitted a discussion of how David could put the government on notice that he was expecting to be paid those costs. I'm just asking you to complete your analysis of David's problem. I'm not taking any position on whether he could submit an REA, a claim or anything else.

For the government to deny David the money he is owed, it seems that David would have to request payment of the money since I doubt the government will just say our bad in regard to the call and pay some sum of money without a request for payment and some evidence of the amount due. What would be the nature of this request, e.g., REA, claim, or something else?