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Everything posted by dwgerard

  1. The problem with that is the advance planning and work need to be done by the requiring activity. That activity often see the world in a self centered way where they are important, while the card holder/contracting shop AND the rules they are required to follow are not important. That is showing up more and more as leaders are not buying into the idea of contracting being a profession and not just a fancy name for a clerk. I also am beginning to see that some in contracting WANT to be just clerks, shuffle responsibility off to legal or back on the programs, or generally don't want to be both
  2. In my former office this problem happened on a number of occasions, and each time it was due to senior managers putting pressure on lower grade employees to break the rules. In at least one case, an SES told a GS-7 to either do what she was told, or plan on looking for another job. When we found out, there was virtually nothing we could do because the SES over our office did not want to get into a tussle with the other SES in headquarters, so we had to simply document the file and move on. In organizations like fomerfeds, good managers and executives are true blessings. In an organization
  3. CM, I don't understand your last sentence as written. Are you saying the DL engineers are being absorbed against their wills, that they are grudgingly accepting the positions because they fear losing their jobs, or something else? Last I heard, press gangs were not running around DC or anywhere else in the US, so I would see the first as being a bit outlandish, but that is implied by your sentence. Not long ago, I watched an entire PWC organization get disestablished, and many of the technical and contracting employees were absorbed into a larger service-wide organization. Some of the emplo
  4. I am working on a contract right now with a CLIN for technical data that will be in the base and also in each option year. We intend, and have notified the contractor, that we do not intend to award that CLIN in either the base or an option year until the FINAL period of the contract, whenever that is. We have added the price for each CLIN into the Government Estimate, and expect the contractor to price each TD CLIN as well, so it will be a set FFP no matter when we need the data. I see adding the extension clause at 52.217-8 as the same thing, we just have to think a little differently to m
  5. I like what Vern said in his post at 12:27 PM a lot. I have negotiated union contracts representing the union and such techniques as ""Well, there's a first time for everything." Then I'd smile, real friendly-like." were my specialty. CG1, has anyone actually sat down and told the contractor that its the "cap" or the highway? In my office right now, there is significantly more competition for our contracts, and the contractors are accepting lower costs as a result. I see your situation as no different, and would make sure the contractor was aware of that fact. With a really friendly smile.
  6. Mike, If right and wrong is in the eye of the beholder, so is the concept of whether or not an intentional contract breach is ethical. I see a signed contract as a formal agreement to perform, something that in the past was done with a handshake. I have also been taught that my word is my bond, and if I promise to do something, to do otherwise is wrong. Not everyone believes that, and it may not be taught in Harvard either, but perhaps many of the scandals of the last decade or so may have been avoided if such a system was still taught as it was in the past.
  7. Thanks Joel, unfortunately the network adminstrators here have locked out any changes to the internet options, so I cannot turn on the "accept cookies" feature. I'll download it at home later tonight on my home computer.
  8. Sure wish I could get a full copy of that paper, as all I could get from the link was the abstract.
  9. I agree with Vern as most termination situations are more complicated than a simple "you're done here" in my experience. In all of the situations I worked, most of them inherited, I was able to work them out without a T4D by descoping, compensation from the contractor in the form of extra work along with additional time to complete the work, or allowing subs to take over more responsibility. Those were all construction contracts, I have not had any termination scenarios other than failure to deliver scenarios otherwise, and those are relatively simple.
  10. Perhaps the Contracting Officer would want confirmation that the contractor had received the document and understood the changes contained in that modification. A copy of of the modification with the contractor's signature would be a record in the contract file that the contractor had received and ackowledged the mod. If the contractor is disputing the T4D, then they might not want to sign the SF-30, but that is between the contractor, their attorneys and the Government. I would not presume to nor am I quailfied, to advise the contractor to any action in this circumstance. Personally, I wo
  11. Vern, Thanks for the great reply! I also see that basically the entire organization I am with uses legal as cover for their real or imagined lack of skills in contracting. It also may be a way of deflecting blame for problems that arise such as protests; "Its not my fault, legal signed off on it!". I have also seen how legal will basically rewrite an RFP, and when they are done, it is hard to even tell what we are purchasing! In many instances, the legal professionals have been great in my experiences. In other commands however, legal reps are not very knowledgeable about contracting and i
  12. This argument was applied to sales of the C-130 Hercules aircraft a few years ago in my memory. A Contracting Officer wanted to make a purchase of C-130 subassemblies a commercial purchase, arguing that since C-130's have been purchased by non-governmental corporations, that made them commercial. Legal was arguing that it was not commercial, as the C-130's in question were not available to the public as a complete aircraft. Seems to me that if I buy a wiggly hula doll to put on the dash of my F-35, that does not make the hula doll purchase a non-commercial sale since the F-35 is a military
  13. Vern, Legal is jumping into the mix all to often and assuming the role of deciding what is appropriate, even over the Contracting Officer's opinion. I keep reminding everyone that legal attorneys are advisors and not deciders, but the senior management disagrees with that. Basically, everything goes to legal, and if they say its not "legally sufficient", it never reaches the street. Thjat is increasing, as my organization just instituted "peer reviews", which add no less thant 2 extra legal reviews to each contract action. I asked how an attorney consitutes a peer, and to date I have recei
  14. I have no problem with being called a journeyman, Contract Specialist, work force member, etc. What I DO have a problem with right now is being called a "clerk", defined as "1. a person employed, as in an office, to keep records, file, type, or perform other general office tasks". I rather resent being called a mere record keeper, file administrator or a general office assistant, but that is exactly what we are called by the CPARS system upon being granted access to that system. Here is the message I received after registering with the CPARS systems: "You have been granted access to CPA
  15. In my DoD office, it requres a J&A approved by the PARC or his deputy in order to place a interagency (GSA task order) acquisition. That seems to be at odds with "DoD contracting officers are encouraged...", as most KO's would rather go open purchase than deal with the J&A process, which entails legal reviews and at least three levels of supervisory reviews, not to mention a lot more time than many KO's have.
  16. I have worked with both Prism and PD2, and which would be better for you depends upon how complex or simple you need the software to be. In my experience, Prism is simpler than PD2, but is not as complete as PD2 for some functions such as selecting clauses and formatting of documents. Prism also does not have the functionality of "sending" documents that PD2 does, nor can users share documents as easily. Prism also does not give you a "what you see is what you get" screen; you have to print preview in order to see how the document will print out. The PD2 screen is pretty much a WYSIWYG sy
  17. Seeker said ""Would it be wrong for the contractor to opt for default in order to save the workers' jobs? Should the Government recognize deliberate breach to be a reasonable course of conduct in some circumstances?" The short answer for the first questioni is that it depends. "Wrong" is a relative term based on the ethical, legal or moral standard that applies to the decision. As we cannot tell based on the question, the answer cannot be determined. As far as the second question, it also depends upon who is deciding what is or is not reasonable, and introduces another variable, ie "circu
  18. Vern, Thanks for the information. I agree that each breach should be looked upon in terms of the contingency, which is what I did in my experience above. If the circumstances were different, say a large business rather than a mom and pop company (literally), my reponse might have been different. But then again, I have never had a large firm come to me openly and plainly the way that small business did. And it was the very first government contract that the mom and pop company had received. The ethical training I received was "by the book" training, the law is the law, etc. etc. It implied
  19. Vern, I agree with the concepts that Judge Posner raises in that a breach of contract must have a price for such an action. That is the law, which is different than ethics. A person can be legally correct and ethically wrong, a state that seems to be worth one heck of a brass ring these days as so many of our leaders are seem to be trying to reach that nirvana. Regarding the Judge Posner's position, have any of the other courts or judges accepted that position? Is it truly the case where our legal system is separating itself from ethics? I just had my annual ethics refresher training a few
  20. If you would take the time to read my post more carefully, you would see that I did not say I would not respond, only that I would not respond to all of the considerations. If you do not want to be lectured to, then do not ask any questions. If you already have done the research and spoken to lawyers, why would you still be looking for answers on a website? As far as a court deciding that the financial reward for a breach is compensation for the ethical violation, well, I suppose the court does not get the separation of church and state thing we have in our government. A financial crime
  21. There are ethical, legal, financial and business considerations to this question that I for one would not begin to respond to. In any case, you should be talking to your contracting officer, putting all of your information on the table and be prepared to find a reasonable way to resolve your problem. Simply walking away without even trying to work things out openly with the Government is unethical, irresponsible and would probably ensure your company would not be able to work with the Government for a long, long time. Not to mention financial penalties when the Government comes after you f
  22. Just today a fellow 1102 was embarassed by an attorney after she initially forgot to foward a copy of a document to his office. She herself remedied that mistake and forwarded a copy within a day to that office once she discovered her error. In return, the attorney broadcast his displeasure over the mistake in a very unprofessional manner, and broadcast it to many people who were not part of the process. In my opinion, that is why many do not want to deal with government attorneys; some of them have a self important attitude that is not something most people care to deal with on a less tha
  23. If a contractor did not bother to keep a complete copy of a contract they were obligated to adhere to, why would it matter what clauses you submitted to them? They already have dismissed the requirements under the base contract; what makes you think they would behave otherwise in your delivery order?
  24. I agree with all of the above responses! I have worked with some outstanding attorneys who knew contract law, gave excellent advice and were a jewel in the crown of the command. Others were basically overpaid procurement analysts and english composition professor wanna-be's, who could not tell me if a clause, provision or instruction was appropriate, but sure could tell me if I had some bad grammar in the statement of work! As far as involving an attorney into the contracting process early, I have when I had a competent attorney who understood what I needed and his or her role as a legal a
  25. whoops85, If they did start looking at the color of money down to the installation level, they might have to find new command staff at some installations as O&M funding is being used for new construction quite frequently in my experience. Given the current OP tempo in the Army, I doubt they are ready for that kind of turmoil right now.
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