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C Culham

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About C Culham

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  1. C Culham


    So what does the clause 52.222-41 have to do with it? Nothing I say. Contractor at negotiation says that she will need to conform. CO and contractor agree and understand its DOLs call on a conformed rate. CO and contractor agree to a CLIN using the closest stated wage (the clerk1) which they hope DOL will accept and also add a T&M optional labor category via a CLIN, priced, in case they might be wrong on the rate that contractor is proposing and CO agrees with. The optional rate/CLIN is based on mutual agreement at negotiation table that DOL might go two bucks higher in the worst case. Option is conditioned that option will only be taken pursuant to DOL none acceptance of proposed rate. All the other stuff happens and contractor (either as sole source or competitive that allows for negotiation) is selected for award. Contractor submits 1444 prior to contract performance (after award) to CO who due to negotiations agrees with proposed wage rate. CO sends to DOL who has their say. Option exercised or not. In this example it is a negotiated stipulation with regard to an optional T&M labor category available on the contract. Option Clause will be stated on the SF30 exercising the option. Pulling in FAR 52.222-41 has nothing to do with it because it's not a price adjustment its exercising an option. I believe this way of handling could work even with using an unpriced option, it just makes the evaluation process for award when negotiations are allowed a little more complicated.
  2. C Culham


    Never did it related to SCA but have regarding other issues of unknowns. Remember specifically using an added option to do so. Deviation, why? It's not changing anything the FAR says you cant do. It's a negotiated stipulation. Fits FAR 1.102(d) too.
  3. C Culham


    A counter view regarding Scenario 2 - Depends. Conformance is a mutual effort that flows from the Contractor to the CO to the DOL. In this process the CO provides its agreement or not with the proposed conformed rate to the DOL with DOL having the final say. If in the process of the contract negotiations contractor was astute in providing to the CO advance information during negotiations on the need for classification conformance I could see that the CO and the contractor could agree that the contractor could get an adjustment to whatever the DOL decides. No clause of the FAR provides for this, but nothing says it could not be an agreed to condition of contract award (and so documented). TAP has provided the view if such a condition at award was not agreed to.
  4. C Culham

    Missing Clauses?

    I am being snobbish here and not even looking. As GSA Schedule contracts are based on FAR Part 12 I wouldn't expect the clauses you note to be there.
  5. No expert on the case in total but yes it was part of the argument by the VA/Government but they did not hold to using goal accomplishment as reason when the case got to the Supreme Court. Makes me wonder if they knew it would not hold water as I suspect again by experience with other agencies where I have never was told or knew by statements by others in agencies that set-asides would be or have been abandoned for full and open competition when goals were met, SDVOSB or otherwise. Or maybe the VA just picked the wrong thing to convince the Supreme Court on why their actions regarding their "rule of two" was the right approach.
  6. I haven't seen that when the goal is met that folks are done, whether coerced by regulation or because they want to continue on. But then again folks might say I have blinders on. I was reminded of my much younger days - "What, me worry?" "Not!" as couple of favorites of mine would say a few decades later.
  7. Well doesn't the FAR in total fall into this category as one could conclude that it as a policy like anything that comes out of the front doors of Congress is a lot of hooey. Not saying that FAR Part 19 is perfect but lost in the rhetoric of this thread is a discussion of the whole picture. A specific not even being discussed is that of unfunded mandates of Congress and the ability of, for instance, the SBA to provide the oversight and assistance necessary to insure something like the 8(a) program works. I for one believe that of the $442,486,733,745.14 pie in Federal procurements available for possible participation by all contractors in 2017 that small businesses would have received a whole lot less than their $105,660,294,868.78 piece without FAR Part 19. And that includes the XYZ small businesses that someday might be the Nike, Apple, Dell, Google, Amazon, H-P, etc. of tomorrow. Could be that I have drank the Kool-Aid but I think there is something to say in helping give businesses a leg up and at some point cutting them loose to fend for themselves. So I get lost in the dialog to add even more socio-economic engineering to the Federal acquisition monster by creating "medium size" businesses Lordy we are sometimes our own worst enemy! As to the book no doubt a great read. The authors are innovative thinkers and at times accomplish inroads. Congress does pay attention to them individually and through the entities they have strong association with. My concern is that they themselves and through the NGO's that they can effect change through have their own agenda's that may not be in the best interest of real improvement to Federal acquisition policy in whole or even in part.
  8. Random thoughts with no claim that they answer the “open market” question. Consider the CFR rather than the statute…. 41-CFR 50-201.1 The Walsh-Healey Public Contracts Act. The Walsh-Healey Public Contracts Act, as amended ( 41 U.S.C. 35- 45), hereinafter referred to as the Act, was enacted “to provide conditions for the purchase of supplies and the making of contracts by the United States.” It is not an act of general applicability to industry. The Supreme Court has described it as an instruction by the Government to its agents who were selected and granted final authority to fix the terms and conditions under which the Government will permit goods to be sold to it. Its purpose, according to the Supreme Court “was to impose obligations upon those favored with Government business and to obviate the possibility that any part of our tremendous national expenditures would go to forces tending to depress wages and purchasing power and offending fair social standards of employment.” (“Perkins v. Lukens Steel Co.,” 310 U.S. 113, 128 (1940); “Endicott Johnson Corp. v. Perkins,” 317 U.S. 501 (1943).) To this end, the Act requires those who enter into contracts to perform Government work subject to its terms to adhere to specifically prescribed representations and stipulations as set forth in 41 CFR 50-201.1 pertaining to qualifications of contractors, minimum wages, overtime pay, safe and sanitary working conditions of workers employed on the contract, the use of child labor or convict labor on the contract work, and the enforcement of such provisions. Except as otherwise specifically provided, these representations and stipulations are required to be included in every contract “for the manufacture or furnishing of materials, supplies, articles, and equipment in any amount exceeding $10,000” which is made and entered into by an agency of the United States or other entity as designated in section 1 of the Act, hereinafter referred to as “contracting agency.” Contractors performing work subject to the Act thus “enter into competition to obtain Government business on terms of which they are fairly forwarned by inclusion in the contract.” (“Endicott Johnson Corp. v. Perkins, supra,” 317 U.S. at 507.) The Act also provides for enforcement of the required representations and stipulations by various methods. Certain exemptions from the application of the Act are provided in section 9 of the statute. Other exemptions, variations, and tolerances may be provided under section 6 of the statute by the Secretary of Labor or the President. [ 43 FR 22975, May 30, 1978. Redesignated at 61 FR 40716, Aug. 5, 1996] Consider this from the AbilityOne Program website….. 7. Where can Federal customers find the Procurement List and what are some examples of available products and services? The complete Procurement List is available to view and download on the website of the U.S. AbilityOne Commission, which is www.abilityone.gov. Many AbilityOne common-use products included on the Procurement List are also clearly identified in the print and electronic catalogs of AbilityOne-authorized Federal and commercial distributors, such as GSA Advantage!™ (www.gsaadvantage.gov), GSA Global Supply (www.gsaglobalsupply.gsa.gov), DODEMALL (https://dod-emall.dla.mil), and www.abilityone.com. Current product lines include aircraft and vehicular equipment and supplies, clothing, textiles and individual equipment, food processing, packaging and distribution, hardware and equipment, office products (e.g. pens, binder clips, paper products, etc.), environmentally friendly and recycled products (e.g. biodegradable disposable cutlery), military-specific products (such as chemical protective over garments and cold weather infantry kits) and medical supplies (such as catheters and surgical masks). Services include contract 26 AbilityOne Procurement Guide for the Department of Defense Chapter 4: Frequently Asked Questions 27 management support (close-out), custodial, administrative services, contact centers, document management services, fleet management, food service, full facility management, grounds maintenance, healthcare environmental/hospital services, laundry services, secure mail/digital document services, and supply chain management. A list of AbilityOne Capabilities is provided in Chapter 3. Finally to replace "open market" while not defined with "commercial item" as defined FAR term as its intended definition seems a slippery slope. While in quick research I could not find something that would help it would seem that the USDOL will determine in the end what "open market" means.
  9. Sorry that you took my comments to be rude and sarcastic. Was not my intent. I was truly mystified as to why you kept raising the question when responses had been provided regarding the common use (FAR Part 15 and 31) of what a ODC is. I now understand you were really asking about establishing CLINS to pay for a cost. Now clarified I hope the additional posts help with your original post.
  10. C Culham


    Todd- Vern’s response fits in a general sense as related to establishing evaluation strategy in a trade-off process. To your question about “Is this even a good idea” and noting that you have mentioned “task order” I would add that it being a good idea not only applies with regard to what you are procuring but also if the Indefinite Delivery Indefinite Quantity (IDIQ) allows trade-off selection process for placement of orders. Competition under IDIQ contracts is guided by what the parent IDIQ contract says not what the FAR says. Usually under the parent contract the competition/placement process, typically called “Fair Opportunity,” is established in an IDIQ contract and that must be used to be in compliance with the parent IDIQ. So if the parent says that a placement process akin to LPTA is to be used then that is the process to follow. If the parent contract is not specific or otherwise allows a trade-off like process then again Vern’s response fits. If you have not read the order placement terms and conditions of the parent IDIQ you might want to consider doing so before you craft your effort for selecting a contractor for the contemplated task order. Additionally, FAR 16.505(b) provides the basis for “Fair Opportunity” and 16.505(b)(1)(ii) addresses how the process can be crafted specifically for a particular (parent)IDIQ and is a good read as to how “fair opportunity” can be established. But again this is just reference for understanding “fair opportunity” the parent contract rules on the process for order placement. Want to know read up more on fair opportunity? Consider using the search feature of the WIFCON Forum and you will find a significant amount of discussions relating to the topic of fair opportunity.
  11. So as I follow the thread my question back to you is what does it matter if anyone has or has not? I say this noting that you are clear that you are not going to allow it as an ODC even if a contractor could show you through their accounting system that they in fact make such devices a direct cost rather than covering it in general and administrative in their accounting structure. You want the government to provide this service pure and simple. Seems like an answer to your question does not make a difference in what you want to do so I am lost as to why you are even asking it!
  12. Yes. Doing so depends on what the contract says and/or contractor pricing. Further response based on the dribbling of facts - If the FFP contract does not provide for the mobile hot spot devices and does not provide for ODCs and does explicitly provide that the government WiFi will be used yet the program office believes the devices are necessary to access other than government WiFi do the following. Either 1)Get an authorization from the program office to modify the contract to add them into the pricing; and amend the contract to allow the contractor to purchase the devices off of the government BPA but only if the BPA provides that contractors can use the BPA otherwise just let the contractor get the devices as they see fit; or 1(a)) Provide the devices as GFP and modify the contract accordingly if GFP is not indicated in it; 3) Deny reimbursement on the basis that the contractor should have known the devices were going to be needed in the FFP arrangement and sit back and wait for the request to possibly be converted to a claim. Consider the legal concept of constructive change as you work through what option you want to pursue.
  13. C Culham

    COR Conflict of Interest

    By my read there are two aspects to a matter of conflict of interest. One is prevention. The other is enforcement action (lack of a better term on my part). Prevention and as such raising the matter to the right person on the government side would help determine any appropriate preventative action. Who is that person? The CO and the ethics official either through the CO or separately. Enforcement when a conflict is alleged to have actually occurred? Possibilities include CO, Agency Head or designee for disciplinary actions, GAO, courts, EEOC, DOJ, and IG. I read the OP's question as enlisting help on the prevention aspect. When it gets to an alleged violation seeking advice from an expert in contract and administrative law is the best route. Such expert advice would be valuable in prevention efforts too but as noted prevention efforts lack a procedure to demand a specific action.
  14. C Culham

    COR Conflict of Interest

    Just a thought that always comes up with regard to ethics and noting that 5 CFR has been used as a reference. Lois's recourse may be through both the CO as well as the ethics official of the agency involved or maybe even the Office of Government Ethics. I say this noting the discussion at § 2635.106 Disciplinary and Corrective Action.
  15. Becoming a 1102. I never regretted any career decision. Not a dang thing. PS - I am not perfect. I found the 40 years of my 1102 career path to be exciting and full of opportunity only limited by my own personal initiative to make it all it could be.