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dwgerard

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Everything posted by dwgerard

  1. Krazy KO, My sympathies on your situation! As the recipient of similar hot potatoes in the past, coincidentally in an Army office as well, I have but one piece of advice: put the legal first before the fair and reasonable. It does no good to have a happy program office and happy contractor if the contracting officer goes to jail, gets fired or loses his or her warrant.
  2. physiocrat: any of a school of economists founded in 18th-century France and characterized chiefly by a belief that government policy should not interfere with the operation of natural economic laws and that land is the source of all wealth. It is generally regarded as the first scientific school of economics. physiocrat. (2009). In Encyclop?dia Britannica. Retrieved October 13, 2009, from Encyclop?dia Britannica Online: http://www.britannica.com/EBchecked/topic/458805/physiocrat Is there truly anyone who believes in that economic philosophy anymore? I do somewhat believe that government policy should not interfere with economic laws, but not totally. I do see a role for government involvement in an economy as a sort of engine governor. The government can use economic policy to keep the economy from reving up too high in the boom times, storing up fiscal reserves for when the economy falters as it is today. Of course our government does not perform that way, so I am as pollyanna-ish as the physiocrats in that belief. If our government DID work that way, we could have a stimulus package that did not borrow from the future. I apologize for derailing the thread, but I had to respond to the part that brought back my undergraduate economic history classes!
  3. Thanks to everyone on their suggestions! I will look at the research on the suggestions and decide on a primary and a few secondary potential topics that I will propose to my dissertation committee. I will post the accepted topic title here once it is accepted, and I will also post a link to the complete dissertation if possible on this site.
  4. I am currently pursuing a doctoral degree in Business Management and I will be beginning the early stages of my dissertation in November/December of this year. I have a very loose idea of a topic that deals with the success (or failure) of the DAWIA degree/24 hr requirement for 1102's. I am not married to the topic, and it has not yet been reviewed or approved by my dissertation committee, so I am looking for other options that may be more suitable or acceptable to my committee. I appreciate any responses that the esteemed members of WIFCON can provide! Those responses do not need to be formatted in any particular way, I am just brainstorming in a virtual environment with this request. Thanks!
  5. I see heavy rolls ahead as GovExec magazine just release a report that the adminstration is advocating abolishing the Federal Employees Health Benefit in favor of pushing us in state controlled health programs. Of course the word "state" in the proposed language is not defined as the federal government as a state or an actual state, but with so many lawyers running the show, I bet it means exactly what they want it to mean. Heck if they are going to start using Federal employees, including the contracting workforce, for their political agendas, you may as well be whistling in the wind if you are hoping for anything like decisions that are good for improving contracting.
  6. At my former office our attorneys advised us not to sign the standard terms of an internet provide as it gave their state and local courts authority over the Federal Government rights. We refused to sign their document and offered our own terms, which they agreed to in 2008. In 2009, they forgot that they agreed to those terms, and resent the original boilerplate terms for us to sign again, and we again refused. They, without warning, disconnected the service, and the Deputy Assistant Director unleashed hades on them, after which they restored the service and last I heard, accepted the standard commercial terms and conditions of the PO they signed. If you look closely, you will see that their T&C's conflict with the T&C's in your SF 1449. In order of presidence, the contract rules, but how will the contractor see it when their T&C's say one thing and the contract says another? Is it not best to resolve those conflicts up front rather than potentially pitting one court against another? And when John Q. Public becomes a sovern authority, he might consider what he signs a bit more carefully.
  7. I have to agree with Leo here, as my former office has been in an overtime, no leave without Assistant Director approval mode since July. My current office is not as busy as much of funding is multiyear, but there is still plenty of overtime and no leave without approvals in effect here as well at my Army PEO command. I too would like to know Ms Doan's sources, and what agency that information came from, as it appears to be "spun" to meet someones agenda.
  8. Vern's post is a good summation of how this thread has gone so far, but it hit me while I was reading it that it reminds me of another debate I saw in both print and acted out on video. It was some of the debates in the pre-revolution Continental Congress over negotiating with the King over his decrees as they applied to colonies. In that light, figure out which representative each of us represents from that august body, and it gets even more interesting. Picture Vern's last sentence and you can see the decision point that led to the Declaration of Independence in this thread!
  9. Whynot, Unconvincing? You can lead a horse to water but you cannot make him drink. Methinks that applies in this case. I cannot find case law for something that HAS NOT been found illegal. Proving a negative is impossible, which is why I asked for you to show a case where a reimbursable CLIN was found to be impermissible. Here is something that I DID find: "RFP price schedule included a contract line item number (CLIN) for each of the specified 36 labor categories required under the contract along with an estimate of the total hours of work (and overtime) for each CLIN. The offeror was to propose a fixed hourly burdened labor rate for each CLIN, which was to include direct labor cost, as well as fringe benefits, overhead, general and administrative (G&A) expenses, and "all other charges against the contract (unless otherwise [provided for])." The RFP required that the contractor furnish the necessary tools and equipment, including designated computer equipment and software, necessary to perform the contract statement of work (SOW). The RFP also contained for each contract year 3 CLINs for direct costs not included in the labor rates: (1) materials, (2) travel, and (3) per diem, and designated "[n]ot to exceed" amounts for each CLIN of (1) $200,000, (2) $75,000, and (3) $75,000, respectively.[1] In the proposal instructions, these designated amounts were reaffirmed as those to be utilized in determining the total evaluated price, except that the costs for travel and per diem were added together and set forth as $150,000 in "other direct costs." The RFP also provided the following instructions to offerors for submitting cost proposals: ..." Trandes Corporation File: B-256975.3 Date: October 25, 1994 *REDACTED VERSION[*] http://redbook.gao.gov/11/fl0051197.php If the GAO looked at and wrote down information about the reimbursable CLINS, do you think they might have said "Whoa, they can't do that!" if adding a reimbursable CLIN was inappropriate. If you read that case, you will see that did not happen. A second case is exactly the same, the GAO noticed the reimbursable CLINs, wrote about them, yet did not issue a ruling that they were illegal: "The RFP, issued on May 18, 1994, contemplated the award of a requirements contract with a 3-year base ordering period and two 1-year options. The majority of the RFP contract line item numbers (CLIN) called for fixed prices, a few items (e.g., travel) were cost reimbursable, and certain site specific requirements (e.g., installation and ancillary equipment) were to be negotiated after award. For these latter items, such as CLIN 24 (installation), and CLIN 25 (ancillary equipment), offerors were to propose pre-priced conversion factors (based upon the offeror's direct and indirect costs, such as support labor hours, rates, factors, overheads, and profit) for application to the direct material, base labor hours, and ancillary equipment required for site specific installations, to be determined and negotiated after award on an individual delivery order basis." L.K. Comstock, Inc. and Liebert Federal Systems, Inc. File: B-261711.5; B-261711.6 Date: December 14, 1995 * REDACTED DECISION http://redbook.gao.gov/11/fl0050207.php And on another note, I could not even begin to make sense of your last paragraph. Perhaps you say that even if we do lose a ton of money, at least we are compliant with the law. That my friend is suicide by stupidity.
  10. Whynot, Do you have any case law regarding your position? I have authored, signed and seen literally thousands of contract actions that were fixed price with reimbursable travel CLINs. If you look at FEDBIZOPPS right now you will see solicitations with that same CLIN structure. What you are saying in effect is that you are right while thousands of others are wrong. Your position seems to say "let's shoot ourselves in the foot with a plainly dumb interpretation of the law". The contractor AND the Government cannot accurately forecast travel costs, yet you insist that both we and the contractor do exactly that. That position also intidicates that the contractor should propose and the Government analyse with knowledge the same unknowable information. I disagree with that, and so does every office and organization I have worked with. If other offices do not think that way, I am very, very pleased I have not worked with those organizations as they are a sign that our Government is intent on suicide by stupidity.
  11. I posted a message to this yesterday and I messed up saving it, but this is what I pretty much said: As your lawyers to show some evidence or case history on their position. If you look at the thousands of contracts and solicitations on FEDBIZOPPS and the other sites, nearly every professional service and technical assistance contract and/or solicitation has cost reimbursable CLIN(s). If those are wrong, then why are ONLY your legal folks up on that? Second, if you require that contractors propose travel cost for a whole year or multiple years, you will end up with contractors quoting the highest costs, at the worst travel days and times, plus adding a contingency factor to those costs. It becomes a gamble; will the contractor win or lose? And the contractors control the odds by how much they propose. Does the Government really want to become a travel cost casino? Ask the attorneys to submit to the same rules. Ask them to propose their travel budget for the next 1-5 years and if they are wrong on the low side, they have to pay the extra costs out of pocket. Of course if their proposals are way high, the Goverment will come after them for the excess profits. If they are not willing to play that game, then why should we expect contractors to do so? One thing that many offices fail to remember is that attorneys are advisors, not Contracting Officers. If they provide silly and erroneous advice, then we should thank them for their time and go do the right thing anyway. That is what senior Contracting Officers, Supervisors and ultimately the HCA is for, making the decisions that attorneys never face. I would get my duckies in a row, take that evidence and findings to my supervisor and recommend that the Legal office's advice be disregarded. Lastly, if Legal is so dead set against a fixed price contract with reimburseable CLINS, then simply set your contract up with a travel CLIN under the following terms: FAR 16.206 Fixed-ceiling-price contracts with retroactive price redetermination. 16.206-1 Description. A fixed-ceiling-price contract with retroactive price redetermination provides for? (a) A fixed ceiling price; and ( Retroactive price redetermination within the ceiling after completion of the contract.
  12. I have never heard of "substantial performance" in the 5 organizations I have worked with over the last 10 years, so I don't believe it is a valid regulation as stated. As far as contract actions awarded at the end of the year using 1 year or O&M funding, the policies I have seen allow for performance within the FY that the funds are associated with OR 1 year from the date of award if the requirement crosses fiscal years. The second is allowable providing that the award is recorded within same FY that the funding is associated with. The requirement for that is for the Head of the Executive Agency to establish a policy allowing for a severable contract funded and awarded in one FY to cross over into the next FY. Here is the FAR clause dealing with that: 32.703-3 Contracts crossing fiscal years. (a) A contract that is funded by annual appropriations may not cross fiscal years, except in accordance with statutory authorization (e.g., 41 U.S.C. 11a, 31 U.S.C. 1308, 42 U.S.C. 2459a, 42 U.S.C. 3515, and paragraph ( of this subsection), or when the contract calls for an end product that cannot feasibly be subdivided for separate performance in each fiscal year (e.g., contracts for expert or consultant services). ( The head of an executive agency, except NASA, may enter into a contract, exercise an option, or place an order under a contract for severable services for a period that begins in one fiscal year and ends in the next fiscal year if the period of the contract awarded, option exercised, or order placed does not exceed one year (10 U.S.C. 2410a and 41 U.S.C. 253l). Funds made available for a fiscal year may be obligated for the total amount of an action entered into under this authority. Based on the FAR clause above, DoD has established that policy in the DFARS clause below: DFARS 232.703-3 Contracts crossing fiscal years. ( The contracting officer may enter into a contract, exercise an option, or place an order under a contract for severable services for a period that begins in one fiscal year and ends in the next fiscal year if the period of the contract awarded, option exercised, or order placed does not exceed 1 year (10 U.S.C. 2410a). If the regulations strictly prohibited crossing FY's with O&M or 1 year funding, then there could never be any contract with a 1 year period of performance unless it was awarded on Oct 1 of any particular FY. Such a rule would be a "shoot ourselves in the foot" type of regulation, one that would hamper the acquisition process for no good reason. Not that our fearless leaders would not put such a rule in place, but generally such a thing does not happen.
  13. How is converting a T&M contract to a FP LOE contract "issuing" a subcontract? "Converting" means changing from one condition to another, not adding to a condition. I cannot see how the original question changes because of what forum that the question is in. If a prime has a T&M contract with the Government, he can issue any kind of subcontract he wants, provided the contract does not have some sort of restrictions against a particular type of contract.
  14. The way I see it, there was no contract between the Government and your client so there could be no pre-contract costs. Legally, I believe you will need to go after the individual who "promised" the contract and obtained the services. You may also go after the organization that obtained the benefits as well. How it will be pursued is a big question, as no price was agreed upon for the hosting the pubic according to your scenario, other than a contract that the individual had no authority to award. With that, I tend to believe Government ethics regulations do prohibit that conduct from a Government employee, so you may be successful in your legal action. I am not a lawyer, so you would be well advised to speak to a lawyer who is familiar with U.S. Government regulations, contract laws and the FAR.
  15. I was a Customs Inspector serving at the Port of Charleston, SC that day. I had just been accepted for a position as a Contract Specialist with the Navy and was scheduled to have my goodbye luncheon at 1100 on 9/11/2001. As I was working, my wife called to tell me that apparently a small plane had hit the WTC building, and to turn on the TV to see the results. The whole office went into the lunch room and turned on the TV, talking about how a co-worker was scheduled to be at a meeting at the Customs House in NY, which was between the two WT towers. As we were watching, we witnessed in shock as the second plane impact the second tower. I looked at a friend of mine who was also an Army veteran and both of us said simultaneously "We're at war now!" The next few hours were a blur, but I distinctly remember how my brain refused to acknowledge the first tower falling. It took a full minute before I could stop thinking it was just lost in the smoke and dust cloud. Later I tried to cancel my goodbye luncheon, but my office supervisor decided to go on with it. Unfortunately many of my co-workers could not attend because they were clearing international aircraft that were ordered to the ground and happened to end up in Charleston. It was surreal to see aircraft from so many airlines stacked up on every corner of the airport. The luncheon was very, very subdued, and the restaurant had a television on a stand in the dining room showing the news. Later that afternoon, the lack of aircraft taking off and flying overhead was very noticeable, particular since Charleston was enjoying the same beautiful weather that New York enjoyed that tragic day. To this day I have a lump in my throat when I go into a Olive Garden for a goodbye luncheon, which seems to happen at least twice a year.
  16. I agree with Vern on the purposes of T&M and LOE contracts, but most of the T&M contracts I saw were misused as LOE efforts for projects such as contractor support in the various offices within the agency I worked at. The philosophy was and is wrong, but no efforts of mine were effective at making a change. I cannot say how all offices see these contract vehicles, but that was the philosophy in my last organization. Hopefully the trend is to put projects in the right type of contract rather than simply lumping all into one type or banning a type such as T&M without understanding.
  17. FAR, Reading the tea leaves at both a civilian agency I just left and the DoD agency I reported to, Time & Material contracts are on the bad side of the pendulum swing these days. As such, many offices are probably scrambling to find another contracting method to accomodate the performance risks, scope of work uncertainty, and undefined requirements that are common. T&M contracts accomodate those problems, but if the senior leadership bans or puts significant restrictions on using T&M contracting methods, program and contracting offices will seek an alternative method such as Fixed Price, Level Of Effort contracts. Of course the pendulum keeps on moving, and perhaps T&M will become acceptable again. But then again, the pendulum may swing even further in its current arc, making the only "correct" choice to be firm fixed price for EVERYTHING. Such a train wreck seems to be unlikely, but given the quality of leadership in DC today, it is not beyond the realm of possibility.
  18. This seems to be a case where: Unless the contractor acquired property is a deliverable under the contract, = benefit of ownership to the contractor, not the government no profit or fee shall be permitted on the cost of the property = no benefit to the government means no profit or fee will be paid. We will pay for the article, but not the profit or fee. I can imagine cases where the contractor purchases property such as special tooling, and passes the cost including profit or fee to the government. The contractor then keeps the equipment after the contract has concluded, and uses it on other contracts. This seems on the face to be unfair to the government, but I have not seriously looked at this scenario before now. The wording of the new regulation does seem to be a bit broad, because I can see a number of interpretations other than the one I posted above. Sloppy regulations do not benefit either the government or the contractor. They only benefit the lawyers that end up arguing in court about the sloppy regulation.
  19. I agree with the "I have been taught" comment, but sometimes breaking out of that fog of misinformation is by simple chance. An example is this thread, which is one reason I have recommended this website to everyone I have ever worked with in contracting.
  20. If the ID/IQ contract itself can be awarded for a 5 year period, could it then also have one or more options, each 5 years in duration? I have been taught that all contracts are restricted to 5 years duration without specific authority for a longer period of time. This could be an ephiphany for my office, which constantly has a problem with long term projects for software development that goes on for a decade or more.
  21. Then show them this: FAR 31.201-4 Determining allocability. A cost is allocable if it is assignable or chargeable to one or more cost objectives on the basis of relative benefits received or other equitable relationship. Subject to the foregoing, a cost is allocable to a Government contract if it (a) Is incurred specifically for the contract; ( Benefits both the contract and other work, and can be distributed to them in reasonable proportion to the benefits received; or ? Is necessary to the overall operation of the business, although a direct relationship to any particular cost objective cannot be shown. Notice the description "the contract" is not "the contracts"; it is singular, not plural. Given your "customer's" position, my red flags and sirens would be going off big time if I were in your position. What THEY believe is irrelevant, go, run, verily hie, to the PCO/ACO, and do the right thing, and save your company big time pain and problems.
  22. I believe it would be a violation of multiple regulations and laws, not the least of which is the Anti-Deficiency Act, which prohibits work being contracted for without funding being obligated for that purpose. I am not an attorney, nor am I working for DCAA, but you would probably need the former and need to fear the latter should your company agree to such an arrangement. As an 1102, I cannot think of any reason why the "customers" don't want to inform the PCO or ACO unless they KNOW they are doing something that would be unacceptable to the Contracting Officer. If you actually agree to their arrangement, you have instantly become a part of the problem. And as the contractor, the PCO and/or ACO will have much that he or she can do to you and little that can be done to the "customer", so YOU would likely pay the price for the transgression. And as a contractor working for the Government, do you really think that concerns about "tattling" are a part of professionalism? Either the request is right or wrong, and in either case you should be talking to your PCO/ACO about this request, unless your company really does perform like it was on a grade school playground.
  23. There has been a few instances in our office where we verified that funding was properly allocated for a contract at the time of award and later found that someone in the finance office moved that funding to satisfy some other requirement. When that happened, we in contracting jumped on that office like it was an empty soda can, and the funding has always been restored pronto. It that was the case in this instance, it would be incumbent upon the Contracting Officer to properly document the facts as they present themselves. I cannot see how the KO would be responsible for that mistake, and the discipline should be directed at the finance office and anyone else who was responsible for the mistake. If that was not the case, and the Contracting Officer DID NOT positively indentify that the funding was properly allocated and obligated upon the award of the contract, then that KO should be disciplined appropriately. In my case, I make sure that a screen shot of the financial status of the funding is in my contract files showing that the funding is properly allocated. Then I document the obligation process since it is completed by a different division within my organization. Those documents should prevent an ADA violation unless someone improperly instructs the contactor to perform extra or different work, or the finance office improperly changes the funding associated with the contract.
  24. The catalog prices are those published for products such as digital cameras (which is where I obtained the 26% discount), law enforcement equipment such as weapons lockers, body armor and specialized equipment and other items such as commercial fitness products like treadmills. As far as the 26% goes, that is not a bad number for a single camera purchase. If I was purchasing more than 1 or 2, I would expect the discount percentage to go up for quantity discounts. When I purchased over 100 GPS units for one of my clients, the discount was in the 50% range over a single purchase catalog price. I am about to leave this office for a new job with the US Army, so my days of small purchases will be ending for the 2nd time. The office I am going to deals with significantly more complex contracts, so I am looking forward to a grown up job that will be more interesting. I did small purchasing as a GS-7, it is not as much fun now that I am a GS-13! Such is life in a civilian agency.
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