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dwgerard

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About dwgerard

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  1. dwgerard

    Working at Risk

    Thanks for the correction Vern, but that leaves the original question unanswered; what mechanism do we or anyone else in the acquisition system have to obtain non-optional supplies or services in the event that funding is not available to the ordering agency? Do we just send out a foraging party, confiscate private supplies or do we release the troops and tell them they are on their own? I realize this is not a likely scenario, but it is possible. It is happening in some countries today, and has happened in our past. It CAN happen again, so I think it wise for us to know if there is a means of obtaining the required supplies or services without descending into anarchy. Perhaps there is no answer to that question and anarchy will be the result. I hope not, because anarchy is much more difficult to recover from than would be a temporary and defined relaxation of the appropriation laws.
  2. dwgerard

    Working at Risk

    I complete agree with what you say and I have done exactly this in my current job a number of times over the last year. In my case, I have actually prepared the stop work notice and sent a preliminary copy to the funding agency which prompted them to send the funding within 2 hours in a few cases and by the next day in all the rest. The problem will come when we have a function that cannot be stopped, such as sanitary services, non-optional provisioning and the like. If the garrison or perhaps even the agency itself does not have the funding to pay for those supplies or services, what mechanism do we have to continue those services or to obtain those required supplies? When I say we I mean everyone, not just contracting. The crux of the question is not when the funding is available and the funding agency is simply stingy or unwilling to fund the activity. The problem I am concerned about is when Congress has not appropriated the funding or has not appropriated enough to cover all of the requirements that includes a non-optional supply or service. In that case there is no funding available to the agency. In essence, what do we do when the "do more with less" is impossible, and we are faced with a day in August of 20XX when the account reaches zero and we still have 100,000 troops to feed? Is there a way to deal with that other than to demand funding from Congress or another agency? Is there a way legally that the supplies or services could be obtained with a promissory note of some sort and not actuall funding?
  3. dwgerard

    Working at Risk

    BS? If it were completely impossible, then why did they add 50.101-1 to the FAR? I agree it is unlikely, perhaps in the extreme, but not impossible. Yes, we could stop all the contractors for working, but we still would need the food to be delivered, and in that unlikely probability, we would need a mechanism to obtain the supplies without having the funding available to pay for it. It has only been a bit over a hundred years since we were in that situation in the Civil War. In my opinion it is more unreasonable for a person to believe those extremes cannot happen again than it would be to me to believe they could.
  4. dwgerard

    Working at Risk

    I understand what you are saying, and agree with the premise that those in charge are responsible for providing the funding. The problem is that does not answer the question about what to do if there is no funding available for those in authority to provide. If there is no funding, do we simply turn off the dining facility? I agree that it is not the contracting officers decision, but what mechanism do we have to ensure that the troops are fed? Do we turn them loose to forage in nearby areas? I would say we start selling property to obtain the funds for feeding the troops, but that is also illegal. What do we do? If those who are responsible for the creation of the ADA law do not follow the law themselves and do not live up to their responsibilities, are we still bound to the restrictions that they themselves fail to adhere to? I realize this is a very unlikely hypothetical question, and the OP does not rise to that level. I do believe we need to know the answer to this question though, because it may eventually happen if our political leaders continue to play the games they seem to enjoy so much. Right now the only solution I have seen is the clause that LEO posted, but you have said that clause is also inappropriate. Edit: I believe I found the answer to my own question- 50.101-1 Authority. (a) Pub. L. 85-804 empowers the President to authorize agencies exercising functions in connection with the national defense to enter into, amend, and modify contracts, without regard to other provisions of law related to making, performing, amending, or modifying contracts, whenever the President considers that such action would facilitate the national defense. ( E.O. 10789 authorizes the heads of the following agencies to exercise the authority conferred by Pub. L. 85-804 and to delegate it to other officials within the agency: the Government Printing Office; the Department of Homeland Security; the Tennessee Valley Authority; the National Aeronautics and Space Administration; the General Services Administration; the Defense, Army, Navy, Air Force, Treasury, Interior, Agriculture, Commerce, and Transportation Departments; the Department of Energy for functions transferred to that Department from other authorized agencies; and any other agency that may be authorized by the President. "without regard to other provisions of law" = a provision allowing contracting without adhering to the ADA and other laws and regulations such as appropriation law.
  5. dwgerard

    Working at Risk

    Don, If it comes down to obeying the ADA or feeding troops, which path would you take? Essentially, following the ADA in a dining facility situation where the funding was not made available means the troops don't eat or are forced to survive on MRE's. Yes, the law says one thing, but is the law so ironclad that it means we must figuratively shoot ourselves in the leg? This case does not seem to be that stark, and I bet the garrison has the funding available and is simply withholding it for some reason. I am working on some contracts that are in that situation right now. I have managed to get the funding nevertheless, incrementally, as I have told them I have no problem issuing a stop work notice if they fail to provide the funding in time. My situation is for training, so it is less critical in my opinion than funding for a dining facility. I might not threaten a stop work notice so easily in that situation.
  6. dwgerard

    Late proposal?

    In my opinion, 3:00 pm last 60 seconds until it becomes 3:01 pm. If your IFB said proposals were due at 3:00 pm, then they would be on time so long as they were there before the clock read 3:01pm. If your IFB said proposals were due BEFORE 3:00 pm, then they would be late immediately upon the clock reaching 3:00 pm. Does that make sense given what your IFB says?
  7. When I worked with a Defense Contractor a few years ago, they had a section in all their Government contracts dealing with Business Class travel. Basicially, all intercontinental flights the company made were to be in Business Class, scheduled to fly overnight and work would begin upon arrival. During my time with that company, I made numerous flights to Asia, all in Business Class and all involving both overnight flights and some work while aboard the aircraft. From what I see, if its in the contract, and the Government signed the contract, then DCAA must abide by the terms of the contract. If DCAA believes those terms are incompatible with the regulations, then they should seek a ruling through the appropriate legal forum to resolve the matter. If the Business Class travel terms are not in the contract, then the contract only needs to meet one of the exceptions listed in the FAR should Business Class travel be required. If the Contracting Officer agrees with the contractor's reasons for the exception, then DCAA should not be able to override that determination without obtaining a ruling from the appropriate legal forum for such disputes.
  8. dwgerard

    Contracting Officer Testing

    I have wondered about what you wrote above for a number of years now. I have applied for a number of positions at DAU, emphasizing the fact that I was a doctoral student and have experience teaching at a community college. That MAY have been a mistake, as I never even received an invitation for an interview. It appears that DAU does NOT WANT real university faculty, they seem to want rote instructors who may or may not have any experience in what they are teaching. Nothing against those individuals, but it seems to be the truth from my viewpoint.
  9. dwgerard

    Contracting Officer Testing

    I agree with Vern on most of his points but I have had experience with a multiple choice test system that did test comprehensive knowledge and reasoning abilities. That test was the Series 7 General Securities Representative Examination, an 8 hour 2 session test that had a higher failure rate than the bar exam in California when I took the test. The questions in that test required a lot of knowledge, logical reasoning, and also an ability to understand a complex written problem in order to answer the questions. I used more scratch paper in passing that test than there were test pages and while the test did not test my ability to communicate orally, I could not have passed it without a very good knowledge of the subject AND an ability to interpret written problems sucessfully. Would a series of essay questions improve such a test? Perhaps, but I don't think the improvement would be significant given the complexity of the questions in that test. Also, how would the subjectivity of the grading official play into the grading of an essay question? Yes, in a perfect world that would not be in question. The trouble is we do not live in such a world, as I clearly understand facing some particularly subjective grades I have received in my doctoral program over the last year or so.
  10. Formerfed, Think of it this way; the funding is not resident in an incorrect line of accounting-DFAS won't pay based on the incorrect LOA and there is no funding associated with the LOA, assuming the error does not lead to the LOA being a duplicate of another LOA that is correct. I am assuming that this is not the case in this situationi. In zeroing out the incorrect LOA, you are not deobligating funding-there is no funding associated with the incorrect LOA. In adding the correct LOA on another subclin, you are not adding funding, you are revealing the correct funding that was assumed to be there prior to the discovery of the error. The funding should be still resident within the finance system in your organization-it was assumed to be obligated up to the point when the error was discovered. If the funding is there, and associated in the finance system with the contract or order, then correcting the error by adding the correct LOA is NOT a new obligation, so should not run afoul of the FY rule. You WILL have to explain this with your finance division, leadership, etc. should it involve the crossing of the fiscal year. I have had to do so myself, and have not run into any significant problems. Baierle is also correct. In our methods of adding funding to a clin, the funding line itself with its LOA is an information only subclin and does not obligate the funding. The obligation occurs in the clin from which the subclin depends, and the clin does not have an LOA listed. So the obligation occurs via the clin, but the LOA information is contained in the subclin. I believe that they had the original posted problem in mind when this system was created. The alternative is to allow a clerical error to determine funding, and to allow the computer software to have more control than we do. I choose not to allow that if at all possible.
  11. Jodivs, In our office, we simply zero out the funding contained in incorrect line of accounting, make a note in the description block as to why (incorrect LOA), and cite what new subclin (by number), we are adding with the correct LOA. Then we incorporate the PR line with the corrected LOA as a new subclin, adding a note in the description block citing the original subclin number that we are replacing and why. This has satisfied DCMA, DCAA and DFAS, and several internal reviewers in the past. It is not as simple as it was in my earlier job in DHS where I could simply correct the LOA within the same clin or subclin, but I have not found another way to correct a LOA problem in SPS/PD2.
  12. dwgerard

    Training programs

    Scott, Part of the problem is that policy and other reviewers won't accept any "original" thoughts when it comes to contracts these days. They are so worried about protests or outside reviews that they pick the best work from the last few contracts and then distribute it as a template, refusing to approve anything that does not conform to that template. That even goes to awarding anything outside of the usual TO/DO from our family of ID/IQ contracts. Today I have to go through an entirely separate approval process just to award anything except one of those orders, such as a stand alone contract. Vern, I am not sure if this is pertinent, but in my master's research project, I was required to construct the project as a full thesis, with literature research and current information written, and approved by the thesis review committee, before I did my original research. Perhaps Worlbird's project has a similar requirement.
  13. dwgerard

    Who's afraid of the Anti-Deficiency Act?

    Unfortunately those kind of violations of the Anti-Deficiency Act are far too common. I fought hard against one in a previous job, where the client described the construction of a building on a vacant lot using OMA funding as a "renovation", and then considered a $1.3M estimate as "within the regulations". When I notified the KO of the facts, he overruled my objections in favor of moving forward with the acquisition. The opinions of our legal counsel also failed to dissuade the KO from deciding to go forward with the solicitation and award. That situation was a factor in my decision to leave the Federal Service for a job in the private sector. I have since returned to the Federal Service, but I have not considered any office that deal with construction, hoping to avoid those kind of problems.
  14. Estimated costs are used when you are dealing with unknowns due to possible discounts, future values or other variables that make a sum certain cost impossible. In this case, you're dealing with the present, and the systems in questions have a known value that can be documented. The subcontractor should simply show how much the new system will actually cost right now. Then the subcontractor should show how much it paid or would have paid for the deducted system right now, adjust according to the proposal values, discounts offered or other factors, plug in any other pertinent costs and voila; the subcontractor will have the actual delta between the 2 systems. It is easy to argue over estimated costs, but not so much when there are actual costs. Give the Government the actual costs along with your price worksheets and welcome their efforts to find better prices should they disagree with those figures.
  15. Does anyone else find it somewhat telling that the KO is asking the KTR to provide the FAR regulation and not informing the KTR of the FAR regulation? eklene, personally I would supply the KO with the EDGAR regulation and highlight the word MAY. I would then tell them that you could not find a FAR regulation that deals with that subject. At that point it fall upon the KO to decide if he or she wants to restrict or seek a restriction of the transfer as per the EDGAR regulation. Regarding the FAR, the KO should know that body of regulations and find it his or her self. Be sure you have your reasons for making the transfer at hand and be able to explain how the transfer would benefit the contract performance or improve efficiency without imposing a penalty on the Government. Personally, as a Contract Specialist or a Contracting Officer I would be ashamed to ask a KTR for a FAR regulation that I was too lazy, too stupid, or so unable to read that I could not find it on my own! By the way, in a quick search of the FAR I did not find anything in the FAR dealing with your specific situation.
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