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C Culham

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About C Culham

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  1. I suspect h2h is right along with the fact that there will be a difference in view from agency to agency and most likely office to office. This website might add help (or confusion?) to the discussion but it is a government source.....https://www.telework.gov/about/
  2. While I would hope not the poorly worded statement stands to possibly also confuse folks on how they might code a procurement as well considering that FPDS has added a new National Interest Action (NIA) Code to the NIA field for coding procurements related to COVID19.
  3. Agreed, sorry for the mistake. However I do not believe the memo changes the process of how changing an existing contract ought to occur. Ref. FAR 43.102(a).
  4. I understand the following citation relates to severable contract work but it does fly in the DFAS contention that "a contract can only have one progress payment rate, not two." FAR 32.502-4(e). Their contention is a "system" thing and not a FAR thing in my view. As to a carte blanc action by the DFAS I understand the ease that everyone wants but isn't there more to it with regard to contract administration of progress payments with regard to contract pricing, funds obligated etc? Consider undefinitized contracts as well that might and most likely do exist. A contract by contract change may not be a simple as everyone wants to make it out to be. In a detailed read of the FAR, and most likely supplements to it, the move from lower rate to higher rate is a move from customary to unusual progress payments. In the case of undefinitized contacts there is statutory limitation more specific than just that of customary versus unusual. Additionally there is FAR 43.301 and the imperatives it provides. In the end the change in rate is not mindless and consistent contract administration and documentation hygiene requires the engagement of the contractor in my view. With this noted an action to change the rate under any specific contact "depends" on the contract itself and with the thoughts noted in this thread the effort should be left to the CO's view of their authority and what they would do to document the change.
  5. C Culham

    Coronavirus Impact

    I suggest an adjustment to No. 2. and adding a number 4. Number 2 is "Performance delay". Performance difficulties are left to existing agency practices. Number 4. "Performance Retooling" to adapt or alter a contract to make it more useful or suitable within the exiting contract's scope in addressing needed actions with regard to COVID-19.
  6. C Culham

    Coronavirus Impact

    Not saying this is exactly it but it might the basis for a start. Sharing in case you had not yet seen..... https://www.acquisition.gov/coronavirus
  7. C Culham

    Coronavirus Impact

    Agree and for you to imply my post recommended cowboy actions it did not and I do not. Yet the bias is present already. I have a friend who is a VP for a national long haul trucking company. He is dealing with complaints from drivers who are being refused access to restrooms of the clients the trucking company delivers to. This mentality is not limited to the trucking world I know by first hand experience. PEOPLE NEED TO THINK!
  8. C Culham

    Coronavirus Impact

    One thought is the bias this unique experience will have on individual COs. My hope would be as they deal with matters related to each contract matter that often forgotten guidance of the FAR at 1.602-2(b) is brought to the forefront as the whole of the same FAR subpart is put into practice.
  9. Is this in writing and if so was it via a amendment to the solicitation? If other than by an amendment who provided the "in writing" response?
  10. Don - Poor response on my part. I am not arguing that an exception applies but was offering that case law supports that a BPA is not a contract yet there could be a slight crack in the door of a possibility depending on how the BPA is worded. My basis for saying this is that if you follow Faye Zhengxing vs. the United States to Modern Sys. Tech. Corp. v. United States the Court in Modern states this - "The absence of mutuality of obligation leads to the conclusion that the parties lacked the requisite contractual intent. Additionally, the BPA is not sufficiently definite for this court to find that the Postal Service was in breach by not ordering its MAC work through MSTC." Overall I was concerned with the reference to Contract Action Report (CAR) as to what concludes a BPA call to be a contract. There is much more to it than that and was hoping the OP might follow inference of Faye to follow the trail. I probably got too out there as your intent on your statements is correct (hopefully I repeating correctly) if you stick to FAR part 13 guidance a BPA itself is not a contract which then leads the to the discussion of synopsis..
  11. So you are the prime contractor and the "Sub" is the supplier correct? If I am reading right......Have you notified the government of the delay as that is your first responsibility? The discussion with the government will help with your next steps. As to the sub/supplier are they someone you work with regularly so they are aware of priority ratings? If so then it seems you would need to take more aggressive action than you have been to get them to respond. I will leave that to you to decide. If it is a sub/supplier that is new to you and possibly new to ratings you still might need to take more aggressive action but they might need to be educated too. On the education part consider working with them (aggressively?) where they contact their local Procurement Technical Assistance Center (PTAC) to get them educated on ratings and what their responsibility is. https://www.aptac-us.org/
  12. So as this thread goes I am reading two different contract clause applications am I not? One is whether an item meets the contract requirements - so quality assurance and the governments rights under say clause 52.246-2 or 52.212-4(a) and the other is whether it is appropriate to continue to make the financing progress payments based on costs based on the contractors compliance with the material requirements of the contract. Just noting as when the dust settles as to what the "contract" provides then a response as to appropriate action can be woven together. Clearly an action can be taken for failure of meeting requirements but my head spins as to what might be appropriate when you are talking progress payments based on cost, with the costs not fully addressed by the OP in his/her posts. By example what costs have been paid to date, what costs are still outstanding, what about subcontractors if any....etc. etc. For me too much missing to make an affirmative statement to the OP but I will watch responses with interest as usual.
  13. C Culham

    Coronavirus Impact

    As a consultant...cancelled engagements
  14. Not my area of expertise but the following may be of help. My suggestion would be to pose your suggestion to with the authority who was the lead with regard to the development....CO, grant administrator, project manager, or ????? and then go from there. To assist in your effort this document may be of help - Department of Defense INSTRUCTION NUMBER 5230.24 Which states - "10. Distribution statements shall remain in effect until changed or removed by the controlling DoD office. Removal of or tampering with control markings by unauthorized personnel is strictly prohibited." https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/523024p.pdf
  15. My thoughts - Always discretionary whether supplies or services because best judgment applies at to what is reasonable. Always a consideration whether supplies or services. At least that is the way I read GAO decisions. Stated by GAO here as related to supply - https://www.gao.gov/products/b-406939.2#mt=e-report "Agencies are generally required to set aside for small businesses procurements that exceed $150,000 if there is a reasonable expectation of receiving fair market price offers from at least two responsible small business concerns. FAR § 19.502‑2(b); e.g., Metasoft, LLC, B‑402800, July 23, 2010, 2010 CPD ¶ 170 at 2. An agency must undertake reasonable efforts to ascertain whether it is likely that it will receive offers from at least two responsible small businesses capable of performing the work in question. EMMES Corp., B-402245, B-402245.2, Feb. 17, 2010, 2010 CPD ¶ 53 at 5; Rochester Optical Mfg. Co., B-292247, B-292247.2, Aug. 6, 2003, 2003 CPD ¶ 138 at 4. No particular method of assessing the availability of capable small businesses is required; rather, the assessment must be based on sufficient facts so as to establish its reasonableness. See, e.g., EMMES Corp., supra, at 5." Stated by GAO here as related to service -https://www.gao.gov/decisions/bidpro/402800.htm "Under FAR sect. 19.502-2(b), a procurement with an anticipated dollar value of more than $100,000 must be set aside for exclusive small business participation when there is a reasonable expectation that offers will be received from at least two responsible small business concerns and that award will be made at a fair market price. That is, an acquisition must be set aside where there is a reasonable expectation that two or more acceptably priced offers will be received from small business concerns that are capable of performing the contract. ViroMed Laboratories, B-298931, Dec. 20, 2006, 2007 CPD para. 4 at 3. A partial set-aside must be made if a total set-aside is not appropriate, the requirement is severable into two or more economic production runs or reasonable lots, and one or more small business concerns are expected to have the technical competence and productive capacity to satisfy the set-aside portion at a reasonable price. FAR sect. 19.502-3(a). While the use of any particular method of assessing the availability of small businesses is not required, the agency must undertake reasonable efforts to locate responsible small business competitors. ViroMed Laboratories, supra, at 3-4. Because a decision whether to set aside a procurement (either totally or partially) is a matter of business judgment within the contracting officer's discretion, our review is limited to determining whether that official abused his or her discretion. Ceradyne, Inc., B‑402281, Feb. 17, 2010, 2010 CPD para. 70 at 4; Vox Optima, LLC, B‑400451, Nov. 12, 2008, 2008 CPD para. 212 at 5."
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