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C Culham

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About C Culham

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  1. @RetreadfedIn this thread the OP posed the following summary – “Is it Permissible to Unilaterally Re-Establish Delivery Schedule on Commercial Contracts?” The OP then went on and posed a specific question - “Is it legally permissible for the Government to re-establish a delivery schedule unilaterally on a contract for commercial services that includes FAR 52-212-4(c), when the Government, through its inaction, previously waived timely delivery (DeVito waiver?) “ As follow up to the question the OP posed “The agency knows that the contractor will not sign a bilateral modification agreeing to a 30-day extension to reset the delivery schedule. Can the Government re-establish the delivery schedule by written notice to the contract; i.e., through a letter from the CO, or can the CO issue a unilateral modification to re-establish the delivery schedule; despite the language of 52.212-4(c), which requires that all changes to T&Cs be made bilaterally?” And – “If such a unilateral action were impermissible, by forbearing termination for cause within a reasonable time after the breach (late or missed delivery), agencies later would be incapable of re-establishing a delivery schedule when a contractor does not agree to a new deadline. Is this the case?” And “Editing to add: We can terminate for failure to make progress or provide adequate assurance of performance. But can we re-establish the delivery schedule unilaterally?” To this you then stated “Thus, it appears to be an open question. If you feel adventurous, try it and see what happens. I think it is worth trying. Who knows, maybe the contractor will not contest it.” ji said – “Of course you can unilaterally re-establish a delivery date. The day after, you can terminate for cause.” ji repeated in a subsequent post that “Of course you can unilaterally re-establish a delivery date -- it isn't a change and it isn't barred by 52.212-4(c). Let me say that again for emphasis -- it isn't a change.” In all the discussion to this point not one responder clarified their position by reference that such an action under termination. was appropriate and the how to of making it happen. I was left with the impression of my read that you all were saying sure you can unilaterally change the delivery date of a contract even if uncharted territory try it! Concerned about what was being implied in direct question to ji I posed - Why isn’t it a change? to change the delivery date based on my read that ji had not provided any other reference. ji’s response was that it is an administrative action based on common sense and common law. ji responded with further dialog that I took exception to noting that the action was related to a termination for cause and my position can best be summarized by my statement that “My concern is to suggest that one can unilaterally change a delivery date of a contract awarded pursuant to the FAR absent a contract clause to do so. You can not. With regard to the instant matter there is authority to address a failure to perform timely” You and Jacques then turned to discussion on the termination issue by further discussion and a ASBCA case that spins on termination for cause. Jwomack enters the discussion at this point to further point to termination of cause clarity. Now to hopefully clarify where I am coming from is that you admitted that what the OP wanted to do was uncharted territory and ji said it wasn’t a change but not once did you offer advice on how pursuant to the unilateral right of the government contained in the contract pursuant to the termination for cause that in a termination for cause action the delivery date matter can be addressed as jwomack has pointed out better than I. So let me restate my position - In a commercial item contract you cannot unilaterally change the performance period of the contract unless such action is taken pursuant to a specific clause of the contract. In this instant case it is not paragraph (c) of FAR 52.212-4 as ji has stated but paragraph (m). Further it is not uncharted territory, administrative action, common law but is taking action pursuant to the contract and the guiding principles of the FAR related to termination.
  2. I attempted to locate this decision and my internet search engine did not locate. Can you provide a link?
  3. Here is where I am coming from. Resetting the delivery date or unilaterally establishing a delivery date is not forbearance. Rather forbearance is to refrain from taking an action one is legally entitled to. It is not "resetting a delivery date" or "unilaterally establishing a delivery date" it is telling the contractor I could default you today but I am not going to until X.
  4. My concern is to suggest that one can unilaterally change a delivery date of a contract awarded pursuant to the FAR absent a contract clause to do so. You can not. With regard to the instant matter there is authority to address a failure to perform timely.
  5. It is not reestablishing a delivery date it is terminating for cause for failure to perform after drawing a line in the sand. By example delivery is Sept 30. Contractor hasn't delivered by Oct 15. Issue a show cause not a mod and demand delivery by Oct 16 and terminate on Oct 17 if contractor hasn't delivered. Delivery date still Sept 30 per the contract. Doing so is not outside the FAR it's not common law it is not an administrative action it's what the contract allows as remedy.
  6. How so "outside the FAR"? Where in the contract does it say the government has a "in lieu" right for an administrative action other than the T4Cause? As to "common law" consider.... "Unilateral Modifications in General Contract Law The principle is that a contract is agreed by both parties for the terms that are provided for at the time of its conclusion; therefore it is not possible for one party to unilaterally modify the terms of a contract." https://www.acc.com/resource-library/when-one-party-entitled-unilaterally-modify-contract Now the matter at hand. Issue a show cause stipulating the contract will be terminated on such and such date and wait and see what the contractor does. If delivers then there you go, if not terminate. Or in other words an action within the contract and essentially pursuant to the FAR. It has nothing to do with common law. If a dispute and claim arise out of the government's actions the the courts will decide if "common law" applies. Any action otherwise puts the government at risk of a possible conversion to T4C by the courts.
  7. Why? Period of performance is one of the 3 prongs of consideration of scope. Also if the contract was for instance noncommercial the changes clause at 52.243-1 Alt vests a unilateral right to change delivery period to the government. 52.212-4 does not. So what is the reference that provides it is not a change?
  8. The perfect acquisition professional response....good Lord!
  9. Your facts provide otherwise. I suspect based on facts as you have stated an auditor may question your position as to what your 5% add on to your hourly rate was truly for. Think before you leap!
  10. You are absolutely right but I chose a historic quote as remember Joel's war story is based on an occurrence from a few years back!!!!
  11. Joel - I think you still might be naïve! The following comes from this reference - https://dodprocurementtoolbox.com/faqs/purchase-card-faqs Can I use a merchant/vendor that charges a fee to use a GPC? What if the merchant/vendor is the only source that offers the supply/service I need to acquire? Answer: No, the cardholder shall not pay a charge/fee to use a GPC. If the merchant/vendor/contractor, etc. is the only source that offers the supply/service needed; then the requirement shall be processed through the contracting office for award and payment by the servicing DFAS. Cardholder's are not authorized to violate VISA/MasterCard laws and regulations. The charge card industry calls this charge a "checkout fee" and it is a reportable offense if this fee is passed on to the cardholder. The merchant/vendor/contractor, etc. could lose their ability to process payments with VISA/MasterCard for violating the laws and regulations governing the "no checkout fee" to cardholders. Merchants/vendors/contractors, etc. can offer a discount for cash and check purchases; however, they cannot charge a fee for use of a credit card. VISA and MasterCard rules do not allow merchants/vendors/contractors, etc. to charge cardholders a checkout fee for using their cards, mirroring laws in 10 U.S. states. Reference: VISA and MasterCard official websites: www.VISA.com ; www.MasterCard.com In the current competitive market I find this statement to be interesting. I know it depends of volume but having researched this personally it would seem that 4% is at the top end of the fee matrix.
  12. This might help..... https://www.dcaa.mil/Content/Documents/sac/Chapter4.pdf
  13. Agreed. It seems that lots of discussions in the Forum encourage innovation that could be adopted by others. Well maybe not so expressly but In a way that DHS met the intent..... "15.102 Oral presentations. (a) Oral presentations by offerors as requested by the Government may substitute for, or augment, written information. Use of oral presentations as a substitute for portions of a proposal can be effective in streamlining the source selection process. Oral presentations may occur at any time in the acquisition process, and are subject to the same restrictions as written information, regarding timing (see 15.208) and content (see 15.306). Oral presentations provide an opportunity for dialogue among the parties. Pre-recorded videotaped presentations that lack real-time interactive dialogue are not considered oral presentations for the purposes of this section, although they may be included in offeror submissions, when appropriate.... 15.102(c)(4) The impact (including cost) on small businesses. In considering the costs of oral presentations, contracting officers should also consider alternatives to on-site oral presentations (e.g.,teleconferencing, video teleconferencing)...." Guess it depends on the discretion of what the agency would keep to then send to GAO. "15.102 (e) The contracting officer shall maintain a record of oral presentations to document what the Government relied upon in making the source selection decision. The method and level of detail of the record (e.g.,videotaping, audio tape recording, written record, Government notes, copies of offeror briefing slides or presentation notes) shall be at the discretion of the source selection authority. A copy of the record placed in the file may be provided to the offeror."
  14. Some thoughts..... ji's comments spin off of the "may" in 52.232.-5 however consideration also needs to be given to other references.... Just do not look to the payment clause. Look to the contract as a whole especially the specifications as they may address what and how on preparatory work. Ask the new district for the specific contract reference that provides that payments needs to be included with the activities that the scaffolding is being put in place for and that it will be paid as a percentage as the other activities are completed. In the wisdom of the USACE there might be differences. By example here is what one USACE district states in their contract administration direction - 4.5 Payment for Preparatory Work and Mobilization. Contract Clause, Payments Under Fixed-Price Construction Contracts , states, in part: "In the preparation of estimates the Contracting Officer may authorize . . . preparatory work done to be taken into consideration." Preparatory work includes such items as cost of erection of batch plants, construction of haul roads, erecting fences, shops, etc. (less acquisition costs of equipment and materials not to be incorporated into the work, or mobilization costs). (Reference - https://www.sam.usace.army.mil/Portals/46/docs/military/construction/docs/SADDM 1110-1-1 June 2012.pdf)
  15. But it does and the bureaucracy of our Federal agencies has made it so, confusingly so. Think about it? Under the FAR definition and related to micro purchase the FAR is clear, the threshold of $2500 spins off of whether SCA applies or not. That simple. Then you have an agency (really a Department) like USDA that changes by policy the decision point away from application of SCA to a decision point as whether it is a "service" or "supply" as noted in my November 8 post where USDA says "Services (personal and non-personal) under $2,500" negating the SCA decision point all together. Also consider FAR 13.202 when you start talking about accepting standard commercial agreements. A very tangled web where in the end acquisition offices are trying to manage appropriate use of a GPC and DOL is trying to enforce archaic labor laws. Then there is the poor GPC coordinator that in some cases is not well versed in the nuisances of procurement regulations as a whole. My view is that the GPC was intended to make life simple for procurements up to the micro-purchase threshold and the regulations on whole should be changed to simply allow use of the card to the maximum of the MPT, period.
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