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C Culham

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About C Culham

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  1. A different look….. The question you have raised would possibly relate to the “responsibility” of the contractor to perform the work. Adding in the mention of “small business” suggests the solicitation/contract was seta-side for small business. As such a Certificate of Competency (COC) is thrown in the mix. References - both FAR Part 9.1 regarding responsibility and FAR 19.6 regarding COC. The matter is whether or not the firm has “the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them” to perform the work. However as your original post suggests a contract has been awarded which constitutes a CO’s affirmative determination of responsibility. Protesting a CO’s affirmative determination of responsibility and having GAO sustain such a protest is rare. Reference GAO protest regulations at 4 CFR 21.5(c) as well as go here and read protest decisions related to FAR 9.1 and FAR 19.6 http://www.wifcon.com/pdbyfar.htm A realistic view is that it is a done deal and move on…..
  2. Waiver of Amounts Due the Government

    Beyond the wisdom stated by Don and the logic of ji I say No (maybe). Reasoning – The NAVSEA clause appears to be a policy rather than a regulation as I could not find a FAR supplement that authorizes it’s use. I will be honest my research was limited. As such if NAVSEA did not seek a deviation from FAR subpart 32.6 for the waiver clause as such it seems in conflict with regulation. Here I note that in another part of the FAR a waiver of an amount due the government (liquidated damages) from a contractor is left to a higher authority and not the CO (FAR 11.501). Interesting to me in my research is that on one hand NAVSEA is waiving the amount but on the other hand complies in the few solicitations I reviewed with FAR 32.6 and includes FAR Clause 52.232-17 in solicitations. Beyond the FAR I could find no other discussion (GAO Redbook) about a CO’s authority of waive contract amounts due the government, but again it was limited research on my part. Confusing wisdom and logic yet innovative application of the FAR in Dec 1995.
  3. Davis Bacon Wage Determination For Non Construction

    I find this statement by the OP to be very interesting so posting for thoughts. The contractor is ultimately responsible for determining whether SCA or DB is applicable to the work. The Government attempts to do its best to classify the work for application of either SCA or DB or both. So my question is - So if the contractor truly asked for the DB determination why debate application as the contractor thinks it applies, has requested so why not give the determination and call it good? Question asked noting that the responding posts do give the OP some valuable information but still..........
  4. Napolik - Sorry for the no response on my part. I am busy during the day and it prevented me from responding. Thanks Don for carrying the torch.
  5. Is there a reason this paragraph of 13 CFR 121.404 was not quoted? 121.404 (a) SBA determines the size status of a concern, including its affiliates, as of the date the concern submits a written self-certification that it is small to the procuring activity as part of its initial offer (or other formal response to a solicitation), which includes price. Determination is not only based on date of initial offer, that includes price, but the fact that the offeror has provided a written self certification as well.
  6. I have no experience so not aware of any issues from a hands on view but I do have some thoughts. I am almost there with regard to it being market research but ......... Is the "free" really free. By my experience free trials with regard to the Cloud in many cases imply some kind of monetary connection. Something like you get $300 in value in using the trial or get $500 in credit if you extend the trial to a full subscription. So is the latter case especially it seems a exchange of a promise that involves value. Does not fit the FAR definition of a contract but still has an uneasy feeling. Add on the Competition in Contracting Act ideals and you may have some effort ahead of you to ensure that you are not giving one firm a leg up over another (offer all you might review or contact in market research an opportunity to let you try their product for free?) if you decide to go to a competition to get your need. If the idea for the trial is to check out an entity before acquiring on a single or sole source basis then that is a different matter. Hope these thoughts help.
  7. I don't know it may too early in the morning (ps - I do not drink coffee) but in reading in this thread I came to the quick conclusion that you do not want a "team" you want a "sub" agreement. No intent to get into a big discussion about the differences, definitions, etc. but for me in the practical view "team" is some how absent from the intent of what you want in this particular arrangement.
  8. So just thinking out loud….. You have not specified if the original contract had one CLIN in a lump sum or multiple CLINS for the different elements of the service. Just noting but I am not sure it matters with regard to how I see this. Also not sure if you are asking as the prime, the sub or the Government, again for me it probably does not matter but for others it might. You ask – Questioning after the fact if you are the prime does not make any sense if the work was already agreed to and added. If you are the Government sure it is okay to question the costs your prime and its sub incurred as to allowable and allocable. You also ask – Not for me. It was simply a renegotiation of the fixed price. It seems your question revolves around the fact of a prime allowing a sub to change its contract pricing during contract performance and the need to have a specific clause to do so. Contract terms and conditions are in a contract to help address unanticipated issues that might occur (need to direct a change in contract, differing site condition, increase in DOL wage rates, etc.) and/or to give direction to a contractor on how to deal with a particular matter (EEO, cooperation with other contractors, using GFP, etc.). However it is my view, that I believe is supported by courts, with regard to any contract arrangement whether between private entities or in the Government that the contract can be changed without the need of a specific term or condition to allow if both parties agree the change is necessary. In Government contracting there are issues of scope etc. that may come into play but not sure scope matters in private industry.
  9. Court Order and the FAR

    (Posted after ji but have a little different spin on something I put together so posted anyways.....) The agency incurs the obligation, unless it wants to ignore the court order. Not sure what you mean by agreement but I envision this…. Court Order issued Agency then finds needed commercial entity or goes to the specific entity the Court Order stipulates Agency then uses the commercial credit card or PO to pay for the services. Single source determination or sole source justification to support as appropriate.
  10. Bob – Joel caught the essence of my thought. At least for the civilian side of things there was this vision captured from a 2007 OFPP memo - “Contracting Officer Technical Representatives (COTRs) perform critical acquisition and technical functions, and Contracting Officers rely on them to ensure that contracts are managed properly to meet mission needs.” that ramped up a supposed emphasis in creating COR’s that would be an “agent of their PM”. By experience in some cases the COR isn’t even from the program area whatsoever just a person that was head hunted because they had the necessary certification. I am not damning the whole as some agencies have associated certification and functional program requirements especially for construction, like the USACE or Forest Service but for others getting someone COR certification is like, well making them get a new system password every 90 days. Just a have to do instead of want to do to make them an agent for successful contract outcome. I see Vern’s suggestion of embedding CO’s with the program area as an alternative to a COR certification program whose intended goal has fallen short.
  11. Vern's idea sounds almost like a full implementation of the current half a** implementation of a system of COR certification. And a sensible full implementation ideal in my view and wish it would happen!
  12. Advice for New Professionals

    As a follow-on to Joel's comments as they relate to WIFCON. Read all the posts in the following Forum subject area as I think you will gain insight on how to utilize the Forum area of WIFCON to its greatest advantage. http://www.wifcon.com/discussion/index.php?/forum/15-before-you-register-before-you-post/
  13. GSA CTAs

    I get GSA's position and the fact of a relationship needing to be with two GSA FSS contractors but it seems that the protest decision depends on specific language in the RFQ, the CBCA case seems to be saying "may" not "shall" (if such a quickly stated view makes sense). When I looked at FAR (subpart 9.6), the GSAR which does not supplement 9.6 and a couple of GSA FSS solicitations, like the OP I cannot find something that specifically supports that the teaming arrangement must the privity implied by the FAQ. FAR 9.603 says this - The Government will recognize the integrity and validity of contractor team arrangements; provided, the arrangements are identified and company relationships are fully disclosed in an offer or, for arrangements entered into after submission of an offer, before the arrangement becomes effective. The Government will not normally require or encourage the dissolution of contractor team arrangements. In the end the OP has to play the game yet I agree GSA policy is not clear and seems to be a position that is not substantiated in contractual terms and conditions. I guess if I was the one "audited" I would ask for a more creditable reference than a FAQ.
  14. GSA CTAs

    This may be the basis for GSA's position......but it seems the that what the actual teaming arrangement says that would dictate in each case. After all FAR subpart 9.6 provides that teaming arrangements can also be a JV or partnership. http://www.cbca.gsa.gov/files/decisions/2007/STERN_04-19-2007_411__KEY_FEDERAL_FINANCE_508.pdf
  15. IAD – You seem to have disappeared. Following is a general response to your question that clarifies my vague question I posed. There are several considerations to make with regard to the situation you have stated but lots of additional details would help. Noting this the following is general thoughts regarding the situation. First, you have stated that your original contract had one shift of 8 hours, it was changed to 2 shifts of 8 hours and now another shift of 8 hours is being requested. If the new shift is just a change in hours to an existing shift is one possibility (still only 2 shifts) or the addition of a completely new shift is another (now three shifts). You have not clarified but either way if the change results in additional costs in performance to your company you may be entitled to an equitable adjustment in contract price. With regard to SCA. It sounds like the CO has questioned the DOL regarding shift rates. Generally speaking shift rates are not contained in SCA wage determinations. So generally speaking when employees work the exact same position during what I will call regular hours or work the night shift the same hourly wage and fringe benefit stipulated in the wage determination for regular hours is paid for the night shift. One exception is if there is a collective bargaining agreement applicable to the contract work, if so a shift rate might be in existence and the wage for a regular hour person might be different than that of a night shift worker. Another exception could be contained in the specific wage determination itself, by example air traffic controllers get shift pay. The overall caution here is that while the CO might advise on what DOL has said, you as the contractor has the ultimate responsibility for compliance with SCA. Noting this if I were in your shoes I would contact the DOL to confirm their view of your specific situation. You should also read the full SCA wage determination or collective bargaining agreement yourself to confirm if it does or does not address shift rates for the type of service you are providing. Should there be a required shift rate that results in additional costs to your performance of the work you may be entitled to an adjustment in contract price if contract clause 52.222-44 is in your contract. This clause covers how you are to request the adjustment if the additional costs in performance are directly related to a required shift rate payment. The change. If there is no required shift rate the change in hours could be “ordered” by the CO but only if a FAR clause in the 52.243-XX “Changes” series is in your contract. In such a case the clause covers how you are to request the equitable adjustment regarding any increase in costs you may have in complying with the change. If your contract is a Commercial Item contract (See FAR Part 12) the allowance to change the contract hours is contained in clause 52.212-4 at the paragraph entitled “Changes”. The FAR boilerplate version of this clause prevents the CO from “ordering” the change but rather requires written agreement of both the CO and the contractor before the change can take place. Be aware the CO could have changed this clause and if so it would be so noted in the contract. In this latter case and if the boilerplate clause and paragraph regarding “Changes” was used is where you would support that the change in hours results in additional costs in performance to which you would seek an equitable adjustment for the change before agreeing to the change. Overall the change in hours and possible increase in costs of performance and your allowance to claim either an “adjustment” or an “equitable adjustment” in contract price hinges both on what the FAR contract clause in your contract regarding SCA states (specifically if FAR Clause 52.222-44 is in your contract) and the change itself whether requested for your agreement (commercial item contract) or demanded (change order for a non-commercial item contract) by the CO results in increase costs of performance.
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