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C Culham

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  1. So call me dumb and thats fine but I am wondering if there is a reach to this situation via a GFP clause that might be in the contract that would remedy the future unknown costs the OP is wondering about?
  2. @rios0311 So I am confused just a little. You say "Can the Government..." Then you reference UCC and say FAR and Disputes Act does not apply. Then you reference "We have a contract...." So do you have a contract or a lease. Who are "We". What "Government" is involved? As to the Contract Disputes Act, are you sure? Reference http://cafc.uscourts.gov/sites/default/files/opinions-orders/16-2308.Opinion.7-31-2017.1.PDF I am with Vern as noted you have not provided enough detail.
  3. I believe you are actually talking about a "dispute" not a protest. The dispute clause of a Federal contract is a remedy for either party. As to case law demonstrating its use as you inquire I will leave that to others to respond.
  4. So as the thread fades into the sunset I have some final thoughts which come to me in part based on the quoted highlights. Forgotten by legal and in the context of a 8(a) sole source is FAR 19.8, and here I will add 13 CFR 124 as well as the Small Business Act must be considered. I will not bore you with quotes but I highly recommend that for the future CaptJax may well want to refer the likes of legal to references in the FAR, CFR 124 and the Act to "Fair Market Price" and how estimating such plays a big role in the price agreement of an 8(a) sole source. In fact I could see a PNM (FAR 15.406-3) that highlights references from each. As I did early on I would suggest that when it comes to 8(a) sole source while FAR 15.4 has a role that role must be woven with appropriate principles of FAR 19.8, associated regulation and statute. I will be bold and suggest that for the particular project that is the subject of this thread that the POM might be one and the same as the current fair market price estimate.
  5. 360 back to the post where I stated this - "No regulation prohibits G&A on travel but the solicitation/contract language might." Conclusion an attempt to reduce the cost of the contract. It just seems if the intent is that only actual travel costs will be paid absent G&A then in a very simplistic view the contractor is left holding the bag where they would incur G&A that they would normally recoup in doing business. That said I do understand there are ways that they might otherwise recoup such as increasing the profit on the FFP CLINs in the contract whereby they are assuming a risk not known for what travel is really going to be required and the G&A that goes along with it. From a regulation side it would seem that "Actual Cost" is the cost of the travel and would include G&A because it is a "standard cost" based predetermined measures but I am betting that is not what the Government wants to pay. Ticket to Jamaica $1500 , Government pays $1500. A CLIN whose wording would need the entire context of the contract to figure out with my conclusion there is cost saving thinking behind it.
  6. But there is as stated by the OP - "The name of the travel CLIN is "Travel & ODCs - Reimbursement for Actuals."" I know the thread has run its course but it would seem that the discussion is not really about such things as G&A, Actuals, ODC's etc. it is about a scheme to reduce the cost of the contract with regard to travel. Overall the whole issue depends on the specifics of the instant contract, at least one would hope so, and not on a read of the regulations.
  7. Interesting. So how about 52.212-4 with its Alternate I? And if so what is the exact language of 52.212-4 Alt I?
  8. You do not have to be convinced but I appreciate the ability to respond. I understand where you are coming from yet I still believe your premise is off base. Rather than address each of the terms and conditions you note which I would imagine all may not be in a contract say to build your house, consider this. Service Contract Act. While I understand there is a difference in such things as payrolls and basic records SCA does carry requirements unique to a Federal contract. A read of FAR clause 52.222-41 will support my view. Do you believe that a service contract, like janitorial, is not a commercial item contract, since SCA is required? I do know that GSA for FSS fought the battle and lost wherein their commercial contracts require SCA and it seem that most if not all agencies put SCA in commercial item contracts.
  9. No regulation prohibits G&A on travel but the solicitation/contract language might. It depends. Find this it may or may not help -https://www.acquisition.gov/content/part-9904-cost-accounting-standards#Section_9904_410_T48_70102650192 More specifics as to why you are asking question might help. Already asked was post award invoices but then the type of contract might matter too such as a T&M contract.
  10. Oh I get it and I have had this argument thrown at me before. Throw a dang term and condition in a contract that you as the owner (dare I say CO) feels that they have no enforcement power over. If so why put in at all? I guess when you build a house and your contract requires the contractor to comply with all state and local laws and codes and the contractor fails to do so you will just say "whatever" and move along! Or, wait will you take contractor to task, even ask for a change in price if they don't. Sanity check is correct and your suggestion is insanity.
  11. You have received some other refined and general comments. I will just add mine but as noted in other comments you are being driven to do something by a CO so I guess that is the rule. But my view is this as dumb as it may sound. I believe the negotiation of an 8(a) sole source begins at the very start where the agency begins dealing with SBA to identify an appropriate contractor to do the work and ends with a successfully agreed to contract. On one hand dealing with SBA is sort of like ( a flimsy "like") clarification, and discussion to figure who is best for the work. On the other hand, and I would agree not often used, is the fact that SBA is the prime supposedly, so when you start talking to them at the very beginning you are negotiating. It has been a long while since I worked in the 8(a) arena but in the 15 years I did spend in it I always advocated for not making sole source complicated. I do advocate for a well documented file however and if you have to hang an acronym on it then a POM and PNM it is.
  12. Prevailing rate means that which is prevailing in a particular area. Not all D-B rates are union. By example if Turner Construction was building in Benton County Arkansas based on your application of D-B being the basis for determining commercial services would the project be commercial? If I think about it your premise does not make sense. As to record keeping requirements check out FLSA and let me know if it only applies to Federal contracts. Overall the AIA standard that I noted before carries a term and condition that the contractor shall comply with applicable law, statute etc. in performing the work. As a general rule of thumb your reasoning seems flawed to me. From a D-B wage determination emphasis added - "A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than ""SU"" or ""UAVG"" denotes that the union classification and rate were prevailing for that classification in the survey."
  13. This made ME think! @CaptJaxHere are your questions yet everyone piled on the construction- commercial item subject including me. Yep finding the questions buried in the scenario might have caused the confusion but the problem it seems in the form of some questions were very possibly clearly stated. Let me back track and offer the following. Q. Is it dangerous to use terms of clarification, discussions, POM/PNM, negotiation from FAR 15 applied to an 8(a) sole source for commercial services? A. Yes I believe so in an 8(a) sole source. Too much formality. FAR subpart 19.8 only calls in the entirety of FAR Part 15 when doing a competitive 8(a). May sound too simple but stick to FAR 19.8. I am not saying the POM/PNM is not required as your agency policy may dictate and it just makes common sense to me as well. Clarification and discussions do not fit in my view. You are just sitting down with the sole source and negotiating. Q. The term "negotiation" in the world of the FAR is it wholly owned by FAR 15? A. In the case of the OP procurement see 19.808. Q. I had a contract where the service could only be done during whale season, which is somewhat of a moving target; how could this POP commencement rule be so stringent? A. I think FAR subpart 11.403 might help you answer the question yourself.
  14. Agreed but why does that impact the discussion? Miss! True but where in the FAR does it say you cannot use FAR Part 12 to procure construction. Emphasis added and by the way one source - RS Means. "Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions. For purposes of these services– (i) Catalog price means a price included in a catalog, price list, schedule, or other form that is regularly maintained by the manufacturer or vendor, is either published or otherwise available for inspection by customers, and states prices at which sales are currently, or were last, made to a significant number of buyers constituting the general public; and (ii) Market prices means current prices that are established in the course of ordinary trade between buyers and sellers free to bargain and that can be substantiated through competition or from sources independent of the offerors; or All of it could be except that which is statutorily required. Here I would say that a full view of Forum discussions on use of FAR Part 12 there are several examples where folks have said that they would wholesale change 52.212-4. My read of the FAR at part 12 is that there is clear intent to do so if market research provides that 52.212-4 should be change to meet commercial practices. Red herring. Commercial practice, here I will reference the AIA General Conditions for Contract for Construction, provides a clear example regarding bonds and insurance. With regard to both Davis Bacon and Service Contract that they are "prevailing" wage requirements. Nothing I have found prevents the use of Davis Bacon in a FAR part 12 contract. It applies when USDOL rules says it does but it is not indicative of having a contract defined as construction as you attempt to do. In fact I would suggest that a service contract by definition could in fact have Davis Bacon requirements in the contract as well. Reference FAR 36.1010(c). As will you. Exactly and in the end I have found none that were taken to task (protest) for doing so. Have you? And reemphasized 2019 by my read. What? Are you saying that union rates only apply to Federal government contracts? Union rates are part of everyday ordinary trade. "Pub. L. 114–328, div. A, title VIII, §876, Dec. 23, 2016, 130 Stat. 2311 , as amended by Pub. L. 116–92, div. A, title IX, §902(59), Dec. 20, 2019, 133 Stat. 1550 , provided that: "Not later than 90 days after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall revise the guidance issued pursuant to section 855 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2377 note) to provide that- "(1) the head of an agency may not enter into a contract in excess of $10,000,000 for facilities-related services, knowledge-based services (except engineering services), construction services, medical services, or transportation services that are not commercial services unless the service acquisition executive of the military department concerned, the head of the Defense Agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition and Sustainment (as applicable) determines in writing that no commercial services are suitable to meet the agency's needs as provided in section 2377(c)(2) of title 10, United States Code [now 10 U.S.C. 3453(c)(2)]; and "(2) the head of an agency may not enter into a contract in an amount above the simplified acquisition threshold and below $10,000,000 for facilities-related services, knowledge-based services (except engineering services), construction services, medical services, or transportation services that are not commercial services unless the contracting officer determines in writing that no commercial services are suitable to meet the agency's needs as provided in section 2377(c)(2) of such title [now 10 U.S.C. 3453(c)(2)]." Have a great week everyone!
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