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C Culham

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About C Culham

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  1. Thank you...Did some reading and appreciate being brought up to speed.
  2. I apologize for not providing all thoughts at once but as this thread advances things come to mind. CPARS versus PPIRS - If I had a choice I would reference PPIRS. Why? Archives in PPIRS suggests that a business has seen and provided input to the completed eval. Therefore if they did or did not address an UNSAT they received it would seem such facts would help in the value of such an eval on a future procurement. By example consider 15.306(b)(4). Also a visit of FAR 42.15 would likely help you as well.
  3. We have concentrated on the performance issue but do not forget that there are 6 other general responsibility standards. Do not leave those stones unturned and address them if there is failure with regard to them as well.
  4. Sorry no samples. I imagine you have done an internet search of "responsibility determination" or something similar. If not give it a try to get more information that may help in your drafting of the referral. Additionally take a look at 13 CFR 125.5 SBA's regulation regarding COC's as well as GAO protests regarding responsibility and COC's. For the latter the WIFCON Legal tool for looking at protests by FAR makes it easy to drill down to look at the subject of FAR 9.104-1 - http://www.wifcon.com/pd91041.htm - and FAR 19.602 - http://www.wifcon.com/pd19_6022.htm All would give you food for thought as you draft your referral. Coupled with ji's most recent thoughts remember the burden of proof is on the SB. Upon your referral to SBA and the subsequent notification by SBA to the SB the SB must apply for the COC to SBA. This brings me back to the timing matter, do not relinquish the 15 day period. I found this. Provides most of what has already been noted in this thread but it might be of help.......https://www.sba.gov/sites/default/files/2018-02/COC_workbook.pdf
  5. Mis-placed conclusion on the part of legal counsel. While as already mentioned the SBA might issue a COC think this through and consider the following. Read FAR 19.6 carefully along with FAR 9.104-1. When your refer to the SBA make sure you are very clear on all the reasons that responsibility is in questioned. Be very detailed and remember fit your issues into all the general standards that apply. Do not just do a letter referring for a COC on a general basis provide facts that support the question of responsibility. In my 15 years with SBA, yes a while ago but I believe still applicable, lots of times agency's failed to provide detail about why a firm is not responsible. In such cases SBA simply defers to looking at their financial where with all to perform the contract and issue a COC. Determinations of responsibility require much more and you have to load SBA up with the info. Additionally while the FAR provides for a collaborative process in some cases for COC referrals do not give away your authorities, by example give longer than the time periods provided for in the FAR for the COC process. In noting the above it may appear that I am not an advocate of SB's, quite the contrary, I am. However it is my view that the COC process has been maligned not because SBA in effect applies too much discretion and just hands out COC's like candy it is because through the course of years agency's have not done their due diligence in representing why a firm is not responsible. In truth it is my belief that if you can prove a firm is not responsible to SBA then do it and in most cases they will agree, especially with if there are facts as you have represented. In the end as you can tell I do not think dropping LPTA and past performance is the answer, the answer really is do your dead level best to show why a firm is not responsible. There are many times that I experienced both with SBA and away from SBA that a well documented referral results in the SBA of either not responding in the time required so in essence no COC is provided or issues a denial formally. PS - CPARS is there for a purpose along with the archiving in PPIRS. If I were doing a COC referral today I would emphasize the PPIRS information as being an official record and reflection of the contractors abilities most especially because a contractor has the ability to comment on their evaluations and demonstrate or not that performance misgivings were beyond their control. Read FAR 9.104-3(b) and if the standards stated are not met give SBA the PPIRS information to demonstrate why.
  6. Just for the heck of it I did a very simple search of CBCA and GAO and found no specific reference to "Block 13" in case or protest decision documents. I did find this which reinforces that some believe it is important to place an authority in the SF 30. (Search on this wording as could not copy/paste link) "Contract Modification Authority Decision Help Guide" But after my own research I have to agree with one two word quote in this thread. "Dumb form"
  7. Keep up Joel I was referring to the SF 1402 when I said form. Have you read the reverse of the SF 30? Carry on!
  8. With it noted that a warrant is numbered or at least that is the authority it is looking for! No picture needed just as I have already stated check "Other" write in "warrant" and the "warrant number"!
  9. Your entire post is well stated, I appreciate it. I do have to raise a thought. The FAR does not place authority upon some one, nor does it have authority upon a contractor. It is internal guidance to the Government. This said it would seem to me that FAR 1.602-1(a) is not an authority in an of itself to change a contract either unilaterally or bilaterally. The warrant is the authority.
  10. It seems you are aware of the difference between a policy and a regulation. With that said are you sure that your agency head or designee has not authorized the additional information required? By my experience your view of other agencies is true. However in the drill down I have found that the agency head or his/her authorized designee (ref. FAR 1.404) have signed off on the policy. The agencies hygiene in perfecting the policy may not strictly adhere to the FAR 1.4 as a deviation but all the same it turns out to be a deviation. Yes clarity could be better but is it the clarity of the FAR or of your agency that is needed?
  11. Yes, following the track of the definition of invoice to proper invoice as I have provided. First you have invoice then you must determine proper invoice. No but it is a part of what a proper invoice is as described in 32.905 which is a part of a contract pursuant to application of the definitions clause. In the end while I might agree that the FAR drafters do not always get it there are reasonable ways within the context of the FAR to reconcile that the OP's agency is okay. It can be a tailor, it can be a supplement of the terms and conditions, it can be interpretation of what a proper invoice is all applicable definitions considered, or it could be a deviation.
  12. @Retreadfed I understand where you are going but by my read you have not considered all facts in your discussion. 52.212-4(e) provides that the definitions of FAR 52.202-1 is incorporated. Which in turn means the definitions of terms in FAR 2.101 apply. FAR 2.101 provides that an " “Invoice” means a contractor's bill or written request for payment under the contract for supplies delivered or services performed (see also “proper invoice”)." and that a "“Proper invoice” means an invoice that meets the minimum standards specified in 32.905(b)." Reading the minimum standards seems to catch the very issue you mention. My conclusion is that the 52.212-4 clause might be lacking in detail but a person does need to look elsewhere to reconcile that what the agency is doing is ok, whether it be the track on proper invoice or simply writing it off to a deviation.
  13. I pose the following what ifs..... What if as noted the selection process is more than simply on price? After all LPTA is stated. AND What if the selection process of LPTA was used to determine the award of a task or delivery order? After all the question is posted in GWACs, MACs area. If the what ifs are present I would suggest that the first place to look is at the fair opportunity ordering process of the parent contract and absent any discussion there I would offer that the CO could use any process to their liking to make the final determination. How about that even in a selection of LPTA a narrative regarding the technical capability of each firm in meeting the evaluation factors would surely determine at least one difference that could be used as the support to direct award to that firm. Nothing is absolutely equal and one firm had to have exceeded a factor where another only met it. And what about exchanges with the offerors, has that been done? After said considerations then using the aforementioned FAR citation is reasonable.
  14. Bluntly, are you sure? I realize my experience of the past may not be equal to the current processes but let me offer an anecdote. By my recollection some indemnity agreements between the bonding entity and the contractor will only adjust bonds on certain increments, say $150,000 or whatever. Again it depends on the specifics of the indemnity relationship between the contractor and bonding entity so again I highly recommend that you research your specific instance before you put much effort into your creative idea. While you may think that there is little or no benefit remember the bonding company may. They in fact have bonded the entire work and their liability is there unless they release the contractor who in turn would release the government. So I arrive at the same conclusion - either you or your contractor should talk to the surety's representative before you do anything as whatever benefit you think you are gaining for your customer may be for not!
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