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joel hoffman

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Everything posted by joel hoffman

  1. If the main argument is independent of the other protest arguments, I often read where the GAO doesn’t dismiss a protest just because other points have no bases for sustaining the protest. They will address the separate, main argument. Edit: Of course, if there are other grounds for dismissal, such as timeliness of the protest, then the protest issues are moot.
  2. It is up to the government side to describe and define key personnel positions, minimum quals and experience and any restrictions on substitutions if the persons were identified in the proposal and evaluated as part of the award of a contract or task order.
  3. The sample H.7. Key Personnel Requirements above resembles a special contract requirement, later adopted as a USACE contract clause, that our HQUSACE Office of Counsel attorney, Laura Meeker, and I wrote for design-build and construction contracts. The difference here is that the H-7 special requirement identifies and defines each key personnel position and qualifications criteria. In our contracts we identified the positions and minimum qualifications in the equivalent to the Uniform Contract Format (UCF) Section L and/or in the applicable SOW or technical sections. The proposals identified the proposed key personnel and their corresponding qualifications and experience for evaluation. We incorporated this part of the winning proposal into the contract. Where the proposed person exceeded the minimum solicitation requirements, that became the new minimum for any proposed substitute. Our clause also addressed key subcontractors, which we also defined in the Solicitation and were evaluated in the proposal. Any proposed substitutions were also subject to KO approval. In response to the question here is that the solicitation and contract identifies key personnel positions and their minimum qualifications. It should also address requirements for proposed substitutions.
  4. For a commercial contract, a deductive change requires mutual agreement. Under these circumstances, that’s not possible unless you just pay the full contract price. If you aren’t willing to accept that, then take other actions. Since the remaining efforts can’t be completed for whatever reasons, terminate the remaining work for convenience pursuant to the contract terms and conditions and advise the contractor how to prepare a settlement proposal. If it won’t do that, you can estimate the amount of work not completed and the estimated costs expended toward it, yourself and offer the resulting price as a Termination settlement. If the contractor won’t budge, you can and should issue the termination settlement unilaterally. I don’t know the dollar magnitude of the issue. However, costs to pursue a claim are generally unallowable. That may or may not deter the firm from initiating a claim. As I said before, if the government dilly dallies around and does nothing - under a commercial contract, the contractor might be able to claim a breach of contract action. That would be quite serious and probably costly. You must have a lawyer in your agency or organization who can confirm all of this or point out deficiencies in my reasoning. Recommend consulting with them. Im sorry that you can’t afford a copy of Administration of Government Contracts. I personally bought two editions myself during my active career. The price for one of the books 30 years ago was about $80. I considered it to be personal professional development. I also was able to get the office to purchase two other editions as well as other books in the Nash and Cibinic, Government Contracts series. These resources helped me save the government and taxpayers millions of dollars in entitlements and in settlement costs for mods and claims. I was able to be much more effective in mutually benefiting both contractors and the government in other contract admin actions. It also helped me to get promotions and attractive assignments… $158 is a good investment for a beginner in contracting.
  5. Especially since “all BPA calls will be under the Micro-purchase Threshold (MPT) Limit” (Original post). What’s the problem with reserving the BPA for small business? Seems to be consistent with Part 19 government policies encouraging and maximizing opportunities for small business participation, including using set-asides under 19.5. See also 13.303-5 Purchases under BPAs: …”(c) The existence of a BPA does not justify purchasing from only one source or avoiding small business set-asides. The requirements of 13.003(b) and subpart 19.5 also apply to each order.”
  6. If the government won’t TFC the remaining services but doesn’t want the full services, it would appear to me that the government breached the contract, preventing performance and the contractor could demand, at the least, full payment. Government has to do SOMETHING.
  7. Shouldnt a delay in furnishing services under a fully funded FFP contract still provide for completing the services under the same appropriation? It was a bonafide need of the year of the original funding. Beyond that, it appears that the OP simply wants to avoid a dispute if the contractor won’t agree with the governments terms of a TFC settlement. Not sure why the OP is asking for advice here if the contractor won’t agree to anything other than full payment even though the entire services weren’t provided.
  8. I’m not aware, absent a government breach of contract, where the government would pay for FFP services that weren’t rendered, other than paying for the effort expended in a termination settlement.
  9. But probably does to the extent referenced in the cost principle, which is applicable for cost reimbursement…
  10. “What else should be considered?” Without any context to the locations or scope of the contract, like others have asked about, the question can’t really be answered. @ReadTheContract848, I’d say “ReadTheContractAsAWhole”. Please clarify what the contract is for and where (at least in general terms) it will be performed. Since it is CPFF, 31.205-46 Travel costs is applicable, in addition to/in concert with the other stated coverage for travel costs and travel arrangements. Thanks in advance.
  11. Yes, if you don’t want the contractor to complete the rest of the contract, terminate for convenience and pay them for the attempted delivery.
  12. I will add that the word “immediately” is often a bit Utopian (an impossible ideal) in practice. But it effectively requires issuing the SF 30 without delay, if issued after directing a change - not days, weeks or months later… And the Changes Clauses recognize that an oral order is also to be treated as a change order, though not the preferred method. Agency policies often stress written orders as the norm. How difficult is it these days to text or use other electronic means to issue a change order?
  13. 43.201 (c) The contracting officer may issue a change order by electronic means without a SF 30 under unusual or urgent circumstances, provided that the message contains substantially the information required by the SF 30 and immediate action is taken to issue the SF 30. That is from the FAR based policy for change orders, applicable prior to issuing the SF30. Edit: See also 43.105 Availability of funds (availability of funds certification required based upon at least a Rough Order of Magnitude ROM estimate) as well as DFARS or other agency coverage of change orders (e.g., Not To Exceed NTE amount stated), as applicable, for unpriced changes.
  14. Most of this is speculation. We don’t know enough facts about the whole situation, e.g., •whether or not the partial performance met a defined requirement (“sort of”), if any was defined? •if performance of the first session met requirements(?) or expectations(?) • if no, was there feedback to provider before the second session?, etc. •WHY they want all(?) or part(?) of their money back? …in order to provide appropriate advice. I find it hard to believe that the OP can’t get appropriate legal advice from his/her agency or lower level legal office.
  15. It is critical that all competitors as well as the government are uniformly interpreting how travel by subs will be addressed and paid for. If it is ambiguous and open to more than one interpretation, it may well affect the basis of competition and pricing. And it will cause problems after award if the government and contractor don’t have a mutual understanding where and how it is to be covered. A prospective contractor has a DUTY to inquire about something that is patently open to more than one reasonable interpretation (a “patent ambiguity”).
  16. A very sad state of affairs. Such a waste of opportunity!! It isn’t limited to the 1102 workforce but they sometimes stood out in my experiences. As a long time negotiator for contracts, mods and claims, I noted much of that reluctance across the Army Corps of Engineers when teaching various contract admin classes, such as mods and claims and teaching design-build and construction source selection processes up until 2016. This wasn’t limited to COE. Our classes included students from many other agencies and career fields. It was evident when making project and program review team visits to different Districts while on the MILCON Transformation Program Leadership Team (PLT) in the 2005-2013 period. It has recently been extremely difficult to get many people to answer a live call! They seem to prefer text messages…
  17. Reminds me of another current thread about “what authority to direct” a supplier not to try to deliver some products/items in the event that there would have been a govt shutdown (for a few days). Common sense would have led me to call the supplier and ask if they could delay shipment for a few days in the event of a shutdown. I’ll bet that they would have been willing to do that. I’ve successfully done that with personal orders when we were going to be gone for a few days to avoid leaving it outside on the front steps. Of course, calling and actually speaking to a human contractor rep may be terrifying to some (many?) government employees.
  18. Well, even under a TFD situation where there was partial performance, a contractor would be paid for what it did accomplish, unless the partial performance was unacceptable. However, there would have to be a mutually understood (meeting of the minds) as to what constitutes an “acceptable” performance standard. If the government decided that it is disappointed with the training provided and wants to cancel the remaining sessions, my guess is that any credit card refund would be limited to the cost of the 8 unperformed training sessions.
  19. Just for everyone’s information, I found this about the Disputes process for services not provided, when using the Citibank GPC: https://www.citigroup.com/tts/solutions/commercial-cards/assets/docs/govt/Transaction-Dispute-Office-Guide.pdf
  20. Aside from the other discussion concerning the SF44, the form is or was only usable for situations with a single delivery and a single payment. It isn’t intended for up front payment for future services. The GPC shouldn’t be used for upfront payment of future services, either in my opinion. I wouldnt make a single payment up front for ten classroom courses…. https://www.acquisition.gov/node/29498/printable/pdf
  21. Hey, just curious. Did they flub the two course sessions presented? Wishing Good luck for you.
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