joel hoffman

As the OP stated, the conditions for use of the two clauses at 52.232-18 and -19 do not seem to be applicable. In addition, funds won’t be available from the Country X through the US Treasury until the second quarter of next FY, in the next “Calendar Year”.

It would seem, at first glance that there is plenty of time to solicit, receive a proposal, and negotiate a contract to be funded in the next calendar year. Without any more information, my first impression would be - don’t try to price a contract this early that can’t start for 9-10 months out from now. And definitely don’t award a contract in advance of funding.

When the US Military was still active in the former Panama Canal Zone in the 1990’s, our USACE (Corps of Engineers) District advertised many O&M funded backlog of construction (maintenance, repair and alteration) contracts with award subject to the availability of funds. The industry was well aware and cooperated. As excess funds were being released by U.S. Army Southern Command and made available, we’d award as many contracts as possible prior to the expiration of the FY funds at midnight.

Of course, we never awarded any of those contracts without funding. The original poster’s scenario is consistent with that.

But we proceeded up to the point of award prior to obtaining funding, with industry’s full knowledge and participation.

What is the RFQ for?

On 3/17/2023 at 10:55 AM, Retreadfed said:

Who is paying for this contract?  Will U.S. appropriated funds be used?

Typically, foreign funded contract funds flow through the U.S. Treasury. 

On 3/17/2023 at 9:08 AM, Self Employed said:

Country X does not have funds avail this year, manpower to be provided this CY to work pre-award, but adtl lines for buy will not be implemented until next CY.)

With respect to Carl’s post, this is sole source and is voluntary on the part of the contractor. Therefore, proposal prep and negotiation costs (if that is what you are cryptically referring to) aren’t reimbursable, right? They are typically an indirect, contractor overhead or G&A (e.g. bid and proposal) cost.

Salaries of Air Force employees to prepare,  negotiate and award contracts are likely O&M funded, aren’t they?

On 3/14/2023 at 1:35 PM, Tzarina of Compliance said:

This was never done for this very small business, which was the first time contractor, which actually applied under a BAA and was told by the agency that a CPFF term contract would be most appropriate for their concept - this was done as part of a so-called "co-creation" with the agency, in an effort to attract non-traditional contractors.

From my perspective, this agency should have been more proactive with a new contractor but the actions of the PM are somewhat telling and intriguing. The PM may or may not have had experience with government contracts.

We also don’t know what the lines of communication were.

The statement that the PM was not the point of contact for CPARS is also interesting but no need to expand on that here. 

Good luck, Tzarina! 

27 minutes ago, formerfed said:

Hmm, the more I look at this, it sounds to me like OMB is saying that the Contract between the Agency and the Contractor has to "require" the "use" of TikTok.

I don’t read it that way. Are you saying that, if the Agency doesn’t specifically require the use of TikTok but the contractor uses it expressly or “to a significant extent in the performance of a service or the furnishing of a product", then it’s ok to continue using it?

That doesn’t make any sense to me.

Edit: Vern posted above while I was posting:

“@govt2310"Require" does not necessarily mean that the contract expressly requires use of TikTok. It can mean that the contractor needs certain information in order to perform and has found that TikTok is the best or only source of the information.”

i agree with Vern.

Thanks, Carl

That helps explains the CPFF contract approach.

Of course, Vern is correct.

And it should be clear that the directive applies to any contractor using TikTok in performance of a contract - regardless of whether or not the contract  specifically requires its use.

On 3/13/2023 at 3:09 PM, Tzarina of Compliance said:

Question:  is there a way under any circumstances where the agency is able (i.e. is such an action even allowed) to withdraw a finalized CPAR from the system to revise?  Would this be only a Procurement Executive level decision?

An answer to the original question:

22 hours ago, joel hoffman said:

See FAR 42.1503 Procedures.

“…(f) The Government shall update CPARS with any contractor comments provided after 14 days, as well as any subsequent agency review of comments received.”

Others have also responded with additional references to similar CPARS implantation policy. 
 

Tzarina has now added further information to indicate that there appears to be little or no government communication to the contractor about the CPARS process or it’s right to respond to such ratings.

We don’t know what, if any communications from the government occurred or whether the contractor did or didn’t have knowledge  of the interim or final ratings.

On 3/13/2023 at 3:09 PM, Tzarina of Compliance said:

The notifications went to an employee who was no longer with the company.

Note the plural “notifications”.

There seems to be much more to the story that hasn’t been revealed. We are getting snippets here. 

17 hours ago, Tzarina of Compliance said:

how is a new contractor supposed to know that they will be reviewed and what the timelines are?  In this case they had no clue and they never once commented to any of the 4 CPARs received during contract performnace and the agency never asked "why" - do you think this would be a good argument to ask an Ombudsman or HCA to revert?

What does “they had no clue” mean? They had no clue about what? Their performance? The government’s position concerning their performance? Knowledge of the ratings? That the communications were sent to a former employee not to the contractor?

What was the “Contractor totally at fault” for?

17 hours ago, Tzarina of Compliance said:

this very small business, which was the first time contractor, which actually applied under a BAA and was told by the agency that a CPFF term contract would be most appropriate for their concept - this was done as part of a so-called "co-creation" with the agency, in an effort to attract non-traditional contractors.

Is “BAA” a “Business Associate Agreement”? 

So this “very small business”, “first time contractor” was issued a cost plus fixed fee contract?????

On 3/13/2023 at 3:09 PM, Tzarina of Compliance said:

the rating was inconsistent with all the other action by the Government, including paying full fee (CPFF Completion) for "satisfactory" performance.

- with an agency with no apparent clue how or who to communicate with????

Did either party know how to manage and execute a CPFF contract? 

Based upon the sparse information provided, yes the government can revise the final CPARS rating. We don’t know much more than that.

We don’t know if the contractor has asked anyone or if they have asked the Contracting Officer to discus this. If they have discussed this, what did the person or the KO say? 

18 hours ago, Tzarina of Compliance said:

do you think this would be a good argument to ask an Ombudsman or HCA to revert?  Thank you again!

I agree with the other respondents.

In response to the original question:  It would seem apparent to me that, if a court or board could direct a revision to an incorrect contractor rating, the KO could -on their own- revise the rating.

Why put everyone, including the parties and board or court,  through the time and expense of a dispute, if the KO agrees that the rating was unfair or incorrect**.

The HQ US Army Corps of Engineers Office of Counsel has long advocated mutually resolving issues at the lowest level, avoiding formal claims/disputes. Unnecessary legal proceedings are wasteful of time, resources and money for all sides

**”Contractor totally at fault [for not commenting within 14 days? For not providing updated official company contact information?], but the CPAR was in bad faith and the rating was inconsistent with all the other action by the Government, including paying full fee (CPFF Completion) for "satisfactory" performance.”

EDIT: my first thought was that, if this was the contractors first government contract plus “the notifications were sent to a person who was no longer with the company”, were the procedures too informal, considering that the CPARS rating was negative with probable impacts to the Company? Was that person the only official contact address for formal, important contract communications? 

Edit: See FAR 42.1503 Procedures.

“…(f) The Government shall update CPARS with any contractor comments provided after 14 days, as well as any subsequent agency review of comments received.”

If the subcontract pricing timing is time critical and audit support isn’t available to support the schedule , I like the idea of incorporating a downward adjustment clause in the subcontract. That is, if the KO/ACO concurs and that there is also a provision for passing on any savings to the prime, plus applicable markups, to the government.

An FPRA, by definition, is an agreement between the firm and the government and may be based upon a previous audit:

Edit: “Forward Pricing Rate Agreement means a written agreement negotiated between a contractor and the. Government to make certain rates available during a specified period for use in pricing contracts or. modifications.” ( FAR 2.101)

As such, I would communicate the situation with the government and ask the KO or ACO for their involvement. You could ask for their review and/or recommendation for audit update/review. If the sub is proposing pricing based upon an FPRA, it must make the basis of the rates and any updated info available to the government for applicability to this action, review, possible audit updates and verification, etc.

“15.407-3 Forward pricing rate agreements.

       (a) When certified cost or pricing data are required, offerors are required to describe any forward pricing rate agreements (FPRAs) in each specific pricing proposal to which the rates apply and to identify the latest cost or pricing data already submitted in accordance with the FPRA. All data submitted in connection with the FPRA, updated as necessary, form a part of the total data that the offeror certifies to be accurate, complete, and current at the time of agreement on price for an initial contract or for a contract modification. (See the Certificate of Current Cost or Pricing Data at  15.406-2.)

       (b)  Contracting officers will use FPRA rates as bases for pricing all contracts, modifications, and other contractual actions to be performed during the period covered by the agreement. Conditions that may affect the agreement’s validity shall be reported promptly to the ACO. If the ACO determines that a changed condition invalidates the agreement, the ACO shall notify all interested parties of the extent of its effect and status of efforts to establish a revised FPRA.

       (c)  Contracting officers shall not require certification at the time of agreement for data supplied in support of FPRA’s or other advance agreements. When a forward pricing rate agreement or other advance agreement is used to price a contract action that requires a certificate, the certificate supporting that contract action shall cover the data supplied to support the FPRA or other advance agreement, and all other data supporting the action.”

Often, legislation pertaining to government contracts will include language concerning applicability. The legislation will generally state an effective date for contracts awarded on or after a specific date and/or will direct the FAR Council to develop regulations and clauses to implement the new requirements.

If the new requirement WILL apply to all contracts or MAY also be applied existing contracts,  the legislation and implementing regulations will state that. The implementing guidance usually provides for adjustments or equitable adjustments for time and/or cost impacts on existing contracts.

This is a generalized statement but govt2310 also used the generalized statement (emphasis added):

10 hours ago, govt2310 said:

Typically, one sees some language to the effect of "the contractor shall comply with all applicable Federal laws, including new Federal laws passed by Congress during the contract performance," written into the SOW. 

For example, the Prompt Payment Act Amendments of 1989 were effective for all contracts awarded after March 31, 1990.

However, many Corps of Engineers (USACE) construction contracts were awarded after that date without the amended clauses because USACE issued the implementation directives later in April or May 1990. HQTRS USACE directed all Districts to administratively modify those contracts.

I had to prepare the admin mods and develop and issue standard operating procedures and standard forms to our field offices to explain and implement the new progress payment procedures. 

The changes significantly accelerated progress payments to primes and provided automatic interest penalties for late payments.

But the changes also accelerated prime progress payments to their subs and importantly, forbade the prime from physically holding any retainage or withholdings from subs earnings. Instead the government deducts and withholds such retainsge or withholdings from the primes’ progress payments.

This meant that primes were not allowed to finance their contract costs at the expense of their subs and suppliers. This was a significant and huge impact for primes and their subs and suppliers.

Thanks, Bob

Since the government is moving toward all electronic contracting, it would make sense to include proposals submitted by specifically authorized means - like email. Or replies to a website, for example. Obviously, someone purposely intended to allow for exceptions to the late proposals standard back in the day of earlier transmission means.

9 hours ago, Vern Edwards said:

If so, can it do so after the fact?

Can the government T for C after the fact?

What do you mean by “after the fact” The fact is that the start of the 12 months of service hadn’t started. It was delayed for 1 1/2 months.

The OP didn’t specifically say that the 12 months of services had been contractually reduced.

[Edit: The original post is actually ambiguous, lacking much context. And it is posted under the Topic Area for “Government Contracting Personnel” issues. It has nothing to do with government contracting personnel issues. 

The government would have to do something if it can’t extend the dates or period to provide full 12 month's of service.

Plus, if the contractor was injured by a delay, the contract should provide for a cost or equitable adjustment. 

49 minutes ago, Vern Edwards said:

The OP said that the contractor was unable to perform the first 1-½ months of services because the government wasn't ready. The OP wanted to know if the contractor was entitled to be paid for those months. Why are you asking about the last 1-½ months of services? I don't understand.

You asked six questions.

I attempted to answer the last three. I didn’t think they were tied to the first one or the second and third  “if so” questions regarding a contract breach.

There was a delay in providing the services. The contractor apparently didn’t provide the services for the first 1 1/2 months, through the fault of the government. 

If the contractor didn’t provide the services, it might only be paid for the months of services it provides plus costs incurred during the delay in starting performance. 

The government could decide to extend the contract for the full 12 months of service plus pay impact costs for the delay. If it is a commercial contract, any “change” would have to be bilaterally agreed to.

If the contractor only gets paid for services provided and if the government can’t extend the period for providing full 12 months service for some reason, it might be able to pay the delay costs and delete or terminate 1 1/2 months of the service. Depends upon the type of contract and the contract terms and conditions, which the OP didn’t describe. 

if the optional 52.242-17 clause is in a non-commercial service  contract, the government would be required to extend the dates of performance for the 12 months service and adjust the contract price for additional costs incurred during or due to the delay. If the government can’t extend the period for some reason, it could alternately  partially terminate the 12 months by 1 1/2 months .  But would probably still be liable for impact costs pursuant to the -17 clause.

Much speculation by everyone without more information. 

3 hours ago, Vern Edwards said:

Can the government unilaterally change the period of performance?

If a commercial service contract, I don’t think it can make a unilateral “change” to shorten the length or dates for performance.

 The government can unilaterally terminate the last 1 1/2 months of services for convenience, whether commercial or non-commercial, right?

If it were a non-commercial services contract, if the “description of services to be performed” would encompass “the quantity of services to be performed”, could the government unilaterally delete the last 1 1/2 months of services? I think that the price adjustment might have to account for costs incurred during or as a result of a government delay to the start of the services  (impact costs). 

3 hours ago, Vern Edwards said:

If so, can it do so after the fact?

3 hours ago, Vern Edwards said:

Can the government T for C after the fact?

Technically, It wouldn’t be “after the fact” if it involves deleting or terminating the last 1 1/2 month of services…

Also if the optional clause 52.242-17 Government Delay of Work is in a non-commercial services contract, in lieu of partial termination, the government shall  extend the existing dates of delivery or performance of services. If the contractor experiences increased costs, the government shall adjust the contract price, less profit and any other contractual terms or conditions affected by the delay or interruption. 

Potentially many considerations…

If clause 52.52.212-4 is in your contract, the delay in beginning work should be excusable from the contractor’s perspective  per paragraph (f) .

In that case, the government could offer to extend the contract to provide full 12 month performance period, under paragraph (c) with the contractor’s agreement on both terms and price (including impact costs if any during the delay.

Or it could terminate the period of delay from the overall performance period pursuant to paragraph (l). Then the contractor should be able to be able to recover costs incurred during the delay.

Edit: I was going to add another option for the government to simply offer to change the period to 10 1/2 months pursuant to paragraph (c) but Voyager has noted that below.

Edit: Any changes to the length of performance would require mutual agreement 

Edit: It appeared to me that the OP is the contractor.

On 3/5/2023 at 9:20 AM, Vern Edwards said:

Sixty years ago. The more things change, the worse things get. We have had source selections within the last decade that have taken longer than World War II. The first operational FB-111 flew on December 21, 1964, less than two years after the source selection decision. Now think of the F-35.

I do agree about the 22 year old F-35 program. And it’s another example of a multi-service plane that fails to deliver required performance. With delays. 

59 minutes ago, Vern Edwards said:

@joel hoffman Gosh, Self-employed and I were talking about cumbersome processes and I used a quote to show that the problem is not new. You give us four posts about the history of a military aircraft that was retired in 1996.

What's up with that?

You don't like the subject?

ADHD

On 3/5/2023 at 9:20 AM, Vern Edwards said:

The source selection procedures were not as formal as they are now. The SOW was issued to prospective offerors in September 1961. The contract was awarded in November 1962, after four rounds of proposal revisions. Pretty fast by today's standards for a big procurement.

 You appeared to commend or laud the speed and relative simplicity of the  F-111 source selection and early development process.

It wasn’t a great success. Both the Navy and the Air Force Military leadership objected to the award and award method that McNamara rammed through.

The plane wasn't suitable for the Navy and that part of the program was cancelled.

And six pre-production F111A aircraft were prematurely deployed to SEA in 1968, almost six years after the initial contract award. Three of the six crashed and four crewmen were killed. It wasn’t until 1972 that the F-11’1 returned to SEA to fulfill its assigned mission. I believe that eight more crashed then.

The F-111’s were used in the Libya raid in 1986. Their systems were still having problems and one crashed on the way to Libya.

Here is a more positive report describing eventual mission effectiveness of the F-111 by 1972, four years after the first,  premature deployment of pre-production F111-A models to SEA in 1968.

Note that the report mentions that “Strategic Air Command B-52s could have precisely hit targets in these conditions at the start of ROLLING THUNDER [in 1965] , but for political and military reasons, they could not be used over North Vietnam.”

https://www.globalsecurity.org/military/systems/aircraft/f-111-sea.htm

At the time of the Viet Nam War, including during the development of the F-111,  the top Air Force Leadership was still primarily from the Strategic Air Command - Bombers, Missiles and the Nuclear deterrent missions.

The USAF had to heavily rely upon Navy developed aircraft for the air to air combat fighter (McDonnell Douglas F-4) and close air support (the WWII Douglas A-1) missions during most of the Viet Nam Era.

The F-111 design and development and initial production contracts were fixed price inventive, which wasn’t very successful either, as outlined in the above referenced GAO report.

It wasn’t suitable for a plane that was expected to do too much for too many types of missions with so little design development at the time of contract award.