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C Culham

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  1. CF - You may want to wade through this website as it may assist as well.... https://www.dol.gov/whd/govcontracts/eo13706/faq.htm#IOLPTO4
  2. FAR coverage is adequate.....adding one more Act to require contracting entities to make responsibility determinations or otherwise determine if a contractor can deliver is a waste of pen and ink. PS - I wonder if the Press Release is click bait as the letter it references and links to is about immigration! Lordy!
  3. CF - Just in case you did not dig into the CFR regarding your questions here you go as it may help.... 29 CFR 4.162 Fringe benefits under contracts exceeding $2,500. (a) Pursuant to the statutory scheme provided by sections 2(a)(2) and 4(c) of the Act, every covered contract in excess of $2,500 shall contain a provision specifying the fringe benefits to be furnished the various classes of service employees, engaged in the performance of the contract or any subcontract thereunder, as determined by the Secretary or his authorized representative to be prevailing for such employees in the locality or, where a collective bargaining agreement applied to the employees of a predecessor contractor in the same locality, the various classes of service employees engaged in the performance of the contract or any subcontract must be provided the fringe benefits, including prospective or accrued fringe benefit increases, provided for in such agreement as a result of arm's-length negotiations. (For a detailed discussion of section 4(c) of the Act, see § 4.163.) As provided by section 2(a)(2) of the Act, fringe benefits include medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, unemployment benefits, life insurance, disability and sickness insurance, accident insurance, vacation and holiday pay, costs of apprenticeship or other similar programs and other bona fide fringe benefits not otherwise required by Federal, State, or local law to be provided by the contractor or subcontractor. (bold added) 29 CFR 4.170 Furnishing fringe benefits or equivalents. (b)Meeting the requirement, in general. The various fringe benefits listed in the Act and in § 4.162(a) are illustrative of those which may be found to be prevailing for service employees in a particular locality. (bold added) The benefits which an employer will be required to furnish employees performing on a particular contract will be specified in the contract documents. A contractor may dispose of certain of the fringe benefit obligations which may be required by an applicable fringe benefit determination, such as pension, retirement, or health insurance, by irrevocably paying the specified contributions for fringe benefits to an independent trustee or other third person pursuant to an existing “bona fide” fund, plan, or program on behalf of employees engaged in work subject to the Act's provisions. Where such a plan or fund does not exist, a contractor must discharge his obligation relating to fringe benefits by furnishing either an equivalent combination of “bona fide” fringe benefits or by making equivalent payments in cash to the employee, in accordance with the regulations in § 4.177.
  4. Are you the ethics official for your agency? If not you may want to visit with them on the matter. Why? Well your reseach sounds complete but there is consideration beyond the FAR that the agency may want to evaluate before creating a perfect 60 minute cover story.
  5. Here is my thought for consideration.... Obligation is a definite commitment, administratively recording (I have seen the wording used by GAO) is a different distinct action, such as reserving funds used in the Federal budgetary process. With regard to an IDIQ even the minimum is a definite commitment because generally speaking it has to be paid if no orders are ever issued. And the funds used must represent a bona fide need for that funding source therefore the minimum is recorded as specific obligation of the contract. PS - I know we could go off on a tangent regarding payment of the minimum if no orders are ever issued but the simple view is why the minimum is an obligation that must be recorded per the recording statute.
  6. As support to kevlar51's response consider the clause in your contract, 552.238-74 INDUSTRIAL FUNDING FEE AND SALES REPORTING MODIFICATIONS (FEDERAL SUPPLY SCHEDULE) (MAY 2014), and note is discusses "all sales". You might be interested in cruising through this webpage too - https://72a.gsa.gov/ifffaq.cfm#04
  7. Discussing terms with regard to the Federal budget process can be as tricky as discussing terms that apply to Federal contracting or as budget terms apply to Federal contracting. This document may be of value to those that want to get into the weeds - A Glossary of Terms Used in the Federal Budget Process https://www.gao.gov/new.items/d05734sp.pdf Here are a few terms from the glossary that might be of interest as related to this thread. Obligation A definite commitment that creates a legal liability of the government for the payment of goods and services ordered or received, or a legal duty on the part of the United States that could mature into a legal liability by virtue of actions on the part of the other party beyond the control of the United States. Payment may be made immediately or in the future. An agency incurs an obligation, for example, when it places an order, signs a contract, awards a grant, purchases a service, or takes other actions that require the government to make payments to the public or from one government account to another. The standards for the proper reporting of obligations are found in section 1501(a) of title 31 of the United States Code. See also OMB Circular No. A-11. Antideficiency Act Federal law that •prohibits the making of expenditures or the incurring of obligations in advance of an appropriation; •prohibits the incurring of obligations or the making of expenditures in excess of amounts available in appropriation or fund accounts unless specifically authorized by law (31 U.S.C. § 1341(a)); •prohibits the acceptance of voluntary or personal services unless authorized by law (31 U.S.C. § 1342); •requires the Office of Management and Budget (OMB), via delegation from the President, to apportion appropriated funds and other budgetary resources for all executive branch agencies (31 U.S.C. § 1512); •requires a system of administrative controls within each agency (see 31 U.S.C. § 1514 for the administrative divisions established); •prohibits incurring any obligation or making any expenditure in excess of an apportionment or reapportionment or in excess of other subdivisions established pursuant to sections 1513 and 1514 of title 31 of the United States Code (31 U.S.C. § 1517); and •specifies penalties for deficiencies (see Antideficiency Act Violation). The act permits agencies to reserve funds (that is, withhold them from obligation) under certain circumstances. (See also Administrative Division or Subdivision of Funds; Antideficiency Act Violation; Apportionment; Budgetary Reserves; Deferral of Budget Authority; Deficiency Apportionment; Deficiency Appropriation; Terms and Definitions Page 12 GAO-05-734SP Budget Glossary Expenditure; Fund Accounting; Congressional Budget and Impoundment Control Act of 1994; Outlay.) Antideficiency Act Violation Occurs when one or more of the following happens: •overobligation or overexpenditure of an appropriation or fund account (31 U.S.C. § 1341(a)); •entering into a contract or making an obligation in advance of an appropriation, unless specifically authorized by law (31 U.S.C. § 1341(a)); •acceptance of voluntary service, unless authorized by law (31 U.S.C. § 1342); or •overobligation or overexpenditure of (1) an apportionment or reapportionment or (2) amounts permitted by the administrative control of funds regulations (31 U.S.C. § 1517(a)). Once it has been determined that there has been a violation of the Antideficiency Act, the agency head must report all relevant facts and a statement of actions taken to the President and Congress and submit a copy of the report to the Comptroller General. Penalties for Antideficiency Act violations include administrative discipline, such as suspension from duty without pay or removal from office. In addition, an officer or employee convicted of willfully and knowingly violating the law shall be fined not more than $5,000, imprisoned for not more than 2 years, or both (31 U.S.C. §§ 1349, 1350, 1518, and 1519). (See also Administrative Division or Subdivision of Funds; Antideficiency Act; Expenditure.)
  8. CS - Just in case you did not take Vern's hint you may want to take a look at FAR 32.703!
  9. Retreadfed - Sorry the statement is confusing. I have borrowed the quote below from the GAO decision I referenced to hopefully clarify. "Accordingly, the guaranteed minimum amount in an IDIQ contract must not only constitute sufficient consideration to make the contract binding, but also reflect the bona fide needs of the agency at the time of execution of the contract. B-318046, July 7, 2009." Due to such issues as limitation on funds (no year, one year, etc.) again I leave it to the OP's Fiscal folks and how they would counsel the OP on how to accomplish the award scenario that has be posed and still meet the conclusions of bona fide need and recording statute.
  10. Reference the following GAO decision and the GAO “Redbook” at Chapter 6 with regard to bona fide needs. https://www.gao.gov/products/C00513 for the GAO decision. Here is the link to the GAO Redbook http://www.wifcon.com/bonafidecontents.htm As noted you must “record” the minimum as an obligation. It then gets complicated from there depending on whether the available monies for the obligation are no year funds or otherwise, such as one year funds. Generally speaking a course for recording an IDIQ parent contract obligation and issuing an order that is obligated goes like this – IDIQ awarded. An obligation for the minimum is recorded. The parent IDIQ contract is the reference. The funds that are used must represent a bona fide need for the funds being used for this recording. IDIQ order is issued that accomplishes the minimum. The IDIQ parent recorded obligation is de-obligated and the recording of an obligation for the awarded order occurs and must represent a bona fide need for the products/services on the order. If no order is ever issued for parent IDIQ the recorded obligation remains on the books for the life of the parent IDIQ. If an order is issued that is less than the minimum then the parent IDIQ obligation is reduced to that amount that when added to the order represents the minimum. Example - Parent IDIQ minimum is $1000 and the $1000 is recorded. Order issued for $500 and obligates this amount. Parent IDIQ recorded obligation is reduced to $500. I would offer that the current data systems used by agencies probably make following this course very complicated, difficult or simply can not be followed. But back in the old stubby pencil days this is what happened. Under new systems many agencies try to accomplish these steps together as a work around– Award an IDIQ and issue a obligating order at the same time that accomplishes the minimum (might even be for more than the minimum) but as you can see with regard to the GAO decision and Redbook discussion this may be counter to the bona fides need rule and/or the “recording” statute. My suggestion with these thoughts in mind is that you contact your fiscal office to discuss the matter armed with the references I have provided and let them guide you.
  11. Truth Decay

    I was reminded of this thread yesterday when hauling horses.... bumper sticker on the pick-up in front of me..... "It does not require many words to speak the truth - Chief Joseph" (attributed to)
  12. Assessment of Actual Damages

    My thoughts that may help in your discussion with your lawyers. Under what remedy action do you intend to seek the “actual damages” you have indicated? I ask because the ability to seek such damages is usually connected to breach of contract. As you have described the scenario I am not quite sure if you have a breach as you have indicated that the contractor has been convinced to correct the defective work under the warranty clause, therefore the quick view is they have complied with the contract. Also the usual construction warranty clause 52.246-21 provides for only reasonable costs of repair and/or reduction in price but does not allow for most of the damages you have listed. Reference paragraph (c) of the FAR clause. The VAAR does not appear to provide a supplemental clause that would extend the right provided in the FAR clause. I would add that a whole read of the contract may provide for the ability to seek such damages but in my experience this seldom occurs as the Government typically just uses its prescribe clause(s) and nothing more. The view I have provided above is a general one and would point to Norfolk Shipbldg. and Drydock Corp., ASBCA No. 21560, as possible case law that may be applicable. This reference comes from various Government contract law desk guides or books. There may be other avenues as well under law to seek the damages but my experience is limited in these areas so I am sticking to contract remedies so to speak. Bonds – Did the contract include the requirement to include bonds? If so remember the Performance Bond is good for the period of warranty as well. While not a tool to seek the damages it is a tool that can be used to convince a contractor to perform warranty work or get the warranty work done otherwise. Reference the “Obligation” portion of the Standard Form 28. 52.246-21, again. Remember that work corrected under the warranty clause has an extended warranty of 1 year after the correction. Reference paragraph (d) of the clause. CPARS – The CPARS system allows for addendum to a final report to allow for recording performance pursuant to a warranty clause. Reference Section E, paragraph 5.3 of the Guidance for the Contractor Performance Assessment Reporting System (CPARS).
  13. CPAR Dispute Deadline

    http://www.asbca.mil/Decisions/2016/60367 Government Services Corp. 3.20.16.pdf Recent activity at the ASBCA that might, again might, lead further clarification of what a contractor can seek as relief.
  14. Sole Source Procurement

    Yes and as more comes out it gets odder!
  15. Sole Source Procurement

    Understand and appreciate Joel's reminder. Yet by all indications you are asking for an irrevocable offer which the PCO can accept unilaterally. The OFFER section of the SF-33 is the support not Block 4.