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C Culham

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About C Culham

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  1. The language may have been solved but limiting participation when a firm may be a subcontractor to many and itself a prime seems crazy to me. My first step would be to ask the program office Why? they want the language. That would help me determine how I as the CO would offer back to them my alternatives to their request. There are lots of reasons for me as to why I think it is crazy - Does the solicitation and resulting contract carry exact language that subs participating in the solicitation process must be the same subs that must perform the work carved out for that sub by the proposal? Is the agency already expecting that the prime will give authority to a sub, any sub, that a sub can be the "contractors representative" on the project. Seems you are entering into the world of subcontractor responsibility (FAR 9.104-4). I hope the sentence is not it. The program office should have provided within the context of their evaluation factors that subcontractor capabilities are a part of the selection process. Will a singular firm that is viewed as a subcontractor always be doing the same work for the multiple possible primes? Cutting the firm from participation in multiple presentations assumes they will, is the program office sure? Are they even sure that same firm will as a sub be doing the same thing as a prime? My quick thoughts and I could probably come up with more. I am with the OP on how the idea seems to conflict with the ideal that a subcontractor has no privity of contract why make it so in the solicitation process. Reading between the lines it would seem that all told the agency in their processes has failed in previous solicitation processes where oral presentations are allowed to key in on having meaningful evaluation factors as they would apply to performance, supervision and control of the work. In this vein it seems the program office has already made up its mind on a firm or firms they want. Heck why not just do it as a sealed bid because no one seems to really care about a firm stating how they will pursue the work as a prime or as a subcontractor under a prime, everyone already knows!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
  2. No disagreement with the idea of a "blurb". One additional thought to consider. The IDIQs' statements on FO are the guiding principles of ordering under the IDIQs. No doubt there is no restrictions to your idea but if me I would scrutinize the ordering and use instructions of each IDIQ to insure there is no road block to running concurrent competitions. Again absent some contract statements doing the FOPR concurrent would probably be ok.
  3. I have not processed orders off of the tool. However in reading the information available on the public facing website my view would be that you would not need to do a sole source at the order level - reference FAR 6.001(e)(2). I noticed that the LOC does provide contact information for such questions. Might be good to visit directly with them on the question to help understand what they exactly did in awarding pursuant to FAR Part 6 and whether, like GSA FSS, LOC has other policy or possibly language in their IDIQs about limited competition.
  4. Yes it has been found applicable to the Government. Below you will find a reference to a Civilian Board of Contract Appeals cases that supports that at a certain point (claim by the government against a contractor) that the Government will be required to provide specific data. So to your situation here is an example of an approach that could play out if you were so inclined. Write to the CO and deny the amount stating that there is not adequate detail in the proposed REA documentation to give you adequate ability to review the request. You might even note Rule 6(a) of the CBCA rules as the basis for your request. I acknowledge you are not in a dispute yet but the REA by the government can lead to a claim based on a final decision by the CO. If the CO gives detail then fairly evaluate, negotiate and reach an agreement with the government on the amount. If the Government still refuses then they will have a choice to do a few things. Issue a final CO decision with regard to the amount at which time under appeal the government will be required to provide the detail. Terminate your contract for failed performance at which time under settlement the government will be required to provide the detail upon appeal. Overall it is your call on what you may do or not do with regard to the government's stonewalling but I do not believe the government can stonewall you with regard to how they arrived at the amount, considering the cases I have shared here. The government has an obligation to operate under good faith and fair dealing just as they demand the contractor! The door for "stating in simple, concise, and direct terms the factual basis for each claim and the amount in controversy." does swing both ways in the eyes of the CBCA it seems. https://www.cbca.gov/files/decisions/2016/LESTER_02-03-16_4826__JR_SERVICES_LLC_V_VA.pdf Consider as well - https://www.cbca.gov/files/decisions/2016/LESTER_02-24-16_5188__RALPH_MUHAMMAD_V_DOJ.pdf
  5. No, and you do, either a termination clause or the implied in fact ability to do a supplemental agreement. One could conclude if there is no obligation to pay Voxx's agency is in violation of the recording statute by obligating money in the first place. The contract is a promise for something for a promise to pay the contractor then the obligation is rightful. Stupid view many of you will argue but the contractor owns that obligation just a much as the government. As such the promise needs to be modified or changed. Continuing from my previous post that kept this thread going this is the reason that the FAR provides that to close out a contract file funds "must" be determined for deobligation (FAR 4.8054-5) and such deobligation "shall" be accomplished by a supplemental agreement (FAR 42.302(b)(4). You all want to read that an administrative change that allows for a change in appropriation data is defined as one as the same as "deobligation". I believe such a view and the premises you have made to support it are not consistent. Likewise specific to the OP's comments this ain't a one time deal it happens all the time by my read. Makes me wonder if what they are doing has another answer as I already tried to suggest like using variation in quantity, estimated quantities or services that they need to explore. For overall reference how about Volume 2, Chapter 7 of the GAO Redbook.
  6. I apologize I meant formerfed. I have edited my mistake. Sorry!
  7. @joel hoffman and @formerfed just want to remind you that my response is based on the facts as I provided in my post based on my full read of the thread. You both want to skew the facts to meet your own responses. The OP has specifically stated what I posted highlighted by "The contract is for 10 EA at $100/EA for a total price of $1,000, but the contractor only delivers 9 and invoices for $900." Likewise it is not stated in the thread that “top level” wants the money the “End user” does. Bottom line the contract CALLED FOR DELIVERY OF 10 EA AND THE CONTRACTOR ONLY DELIVERED 9. You all can do an administrative modification if you want but the hygiene of the contract and its administration requires the imperative for the deletion of that one item from the contract. If you want to advocate removal can be done without the contractors concurrence because upper management is going to be upset or because it is too much bureaucratic BS then have at it. I mean after all government contracting has a whole bunch of BS that goes against the grain of common sense so please advocate reducing all contracts that order a specific quantity from here on out with administrative modifications. Now if you want to play the game of estimated quantities, estimated services, and how the full contract terms and conditions can provide for same then I am all in but I am not all in based on the facts and FAR references I have provided.
  8. While I understand the intent of some of the folks in this thread to solve the OP’s situation with a unilateral modification as a “administrative change” (administrative modification) I disagree. My view is different. The facts pursuant to both the OP’s posts and the regulations - · Commercial Contract Firm Fixed Price – Clause 52.212.4 not tailored and in contract. · The government intends to de-obligate of funds under the contract as a certain amount of something which had money obligated against it by virtue of the contract has not been ordered nor delivered. · Bilateral modification sent to contractor to de-obligate the money (and remove the item?) · The contract is not physically complete – FAR 4.804-4. · FAR 42.302(b)(4) while not in the contract is a regulation that requires the imperative of a supplemental agreement by either a CO if not delegated or the CAO if delegated that a supplemental agreement is required to close out the contract. · FAR 43.103 is explicit that a unilateral modification is not a supplemental agreement. · Supplemental agreement has been sent to the contractor and the contractor has not (may not, never will even when called, etc.) signed. · Conclusions – In disagreement with the “policy people” the contract is not physically complete – the contractor has not completed all work pursuant to the contract as one item has not been ordered or delivered – therefore the contract can and must be terminated to proceed to closeout (Ref. 4.805(a)(15)). I conclude that the policy people are in conflict with their own direction. The policy people believe that a bilateral modification can be issued and must be signed but then turn around and say that when such a modification is not signed that a unilateral modification cannot be issued because the contract is not “expired”. This premise on their part is not consistent with the actions they allow and then turn around and disallow and with the FAR for that matter. The appropriate action is to convert the bilateral modification to that of a unilateral termination for convenience or cause. If the contractor does not reply to the termination notice and request for settlement agreement the government would then proceed to a settlement by determination. PS – I completely understand that this is an administrative nightmare and taking an easier route as has been suggested may not result in any fall out (claim from the contract at a later date for item not ordered). However, I contend that the above is the right way to do it pursuant to the FAR and the contract as explained by the OP.
  9. What about the possibility that the contract contains contract clauses derived from FAR part 45? Just wondering as it seems the government is furnishing stuff for the contractor to perform the work.
  10. ji, There might be a third you should add for clarity. That is.... #3 - If Army is simply adding more work to the contract, work that is within the scope of the contract, then it is not a change order rather it is an agreement by both party's to add work to the contract. I might add that in such cases of adding more work, within the scope, there is no magic formula. I say this as the Army has added info about the ceiling price going up less than 10%. With regard to scope this might be a good read for Army.
  11. I am not quite so sure your assumption is correct noting the OP has stated its is "additional work" of the same kind and has brought in matter of ceiling Increase less than 10%. @ArmyofOne Can your clarify? With regard to the change order you have noted per the 52.243-2 clause in the contract what are you changing (such as drawings, designs, place of delivery, etc.) or is your contemplated modification simply adding more work?
  12. Okay so what within the cost reimbursement changes clause whether for supplies, services, or both authorizes an increase in work?
  13. My apologies @formerfed just using your most recent post to illustrate a point. Such action is not by the book (FAR and I will extend to the DFAR as well.) As much as I hate to say it the "policy" folks might just have it right. Consider FAR 42.302(b)(4) and 243.171 and its related PGI.
  14. In this particular case I agree with @ji20874 noting that the OP has picked No. 1 of the scenarios that ji posed. The rights of the contractor are essentially being altered by removing a unit that they could be paid for. It makes sense that the amount and the unit should be removed forcibly - Termination for Cause I might add is the more correct term. Yes a call to the contractor as @joel hoffman has posed is in the mix but if the contractor is not responsive, what then? Contractor failed in its ability in "management".
  15. .....but as @joel hoffman notes everything is fact specific. Consider for example 13 CFR 125.6 and 13 CFR 125.8. As @Retreadfed has noted as well the facts will get you to the most appropriate conclusion and the implied situation can be twisted any old way one wants to continue the either this or that. In the end using the basic facts posed in the initial post ---- JV awarded a contract, JV disbands without Government knowledge but continues to perform the contract ----my conclusion is that the JV will be held responsible for the performance absent a novation. A novation I might add the government can agree to or not. If the JV asks for a novation and the Government agrees then the Government will have a new contractor to deal with. If the Government disagrees the Governments position of not agreeing to the novation needs to be buoyed by how Government feels the Government interests will be protected with regard to such issues of the Contract Disputes Act, bonding, etc, etc. If the JV never seeks novation the Government will look to the JV to perform within all the contractual requirements and if the JV (disbanded) fails to do so the Government will have an myriad of conclusions to make with regard to such issues as the Contracts Disputes Act, bonding (if any), default, failure to perform as a mentor/protege'........the list simply goes on an on.
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