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C Culham

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Everything posted by C Culham

  1. I would like to read. References please. Yes but 52.232-40 is based in statute and while new, 2023, one would think the statutory emphasis would carry some weight. Too bad you are already justifying an agency's noncompliance. By my read of the clause prescription it is an imperative to include and follow. Oh well!
  2. How so? Experience, experience or? The history is short so I am very intrigued about your fist comment. Again the same questions! https://www.federalregister.gov/documents/2023/02/14/2023-02425/federal-acquisition-regulation-accelerated-payments-applicable-to-contracts-with-certain-small
  3. With the limited details from the Original Poster (OP) I fear they have encumbered themselves to follow FAR part 15. Proof would be seeing exactly how the parent IDIQ describes ordering procedure and how the specific request for offers under Fair Opportunity was fashioned. I did a little research and found this quote in a protest decision to be interesting (I added emphasis). The decision can be found here http://www.wifcon.com/pd16_505b.htm and the protest relates to "SSI". "The ordering provisions of SSI’s contract provide only that the firm be given a fair opportunity to compete, which includes that, upon receipt of proposals the contracting officer may open discussions or negotiate with all or some contractors providing proposals, issue a task order based upon the original proposal furnished, reject the proposal, or cancel the requirement." All said it would seem that the OP should be looking closely at the parent contract and task order request for offers to decide the correct process for canceling the request for offers.
  4. A few have strayed from the original post so I am going to join in. First and foremost Don's post is on target. If your company is a small business another alternative is to be aware of the primes (customer in your post) contract with the Federal government. If the customer's contract has included in it FAR clause 52.232-40 and your relationship is strong enough maybe you could convince the customer to take advantage of the accelerated payment. Contract too old for the clause? Maybe have them consider asking the government to amend the contract to include? PS - FAR 52.232-40 is included in FAR 52.212-5 that goes in commercial item contracts.
  5. Maybe? T&MAF - Pay labor at a set rate (that does not have profit built into the rate), reimburse for materials at actual cost + award fee on scoring criteria CPAF - Reimburse for labor at actual cost, reimburse for materials at actual cost + award fee on scoring criteria
  6. Noting that your post relates to how you do it and how you might counsel your new office on how to do it here you go. If you want elaboration on any of what I have offered please feel to message me via WIFCON's message tool. Have the agency folks review and grasp the FAR and agency supplements regarding 8(a) - FAR 19.8 Alert your agency folks to its SBA Partnership Agreement if one exists to ensure a grasp of compliance with regard agreement that essentially supplements the FAR guidance -https://www.sba.gov/document/support--sba-and-agencies-partnership-agreements Contact the SBA District Office that services your office to develop a relationship - Noted here if your agency has a Procurement Center Representative or other entity that assists keep them in the loop too. Here I just note that if they have had little experience with the 8(a) Program it makes me wonder if the latter exists for your agency. Identify a potential procurement for offering to the 8(a) Program Market Research specific to 8(a) - Armed with a North American Industrial Classification Code (NAICS) number of the potential procurement utilize the Small Business Dynamic Business Search tool to find potential 8(a) firms to name offer the potential project too. https://dsbs.sba.gov/search/dsp_dsbs.cfm Also contact the local SBA District to ask them for suggestions. Once you determine potential entities further research them in the usual internet ways, possibly even CPARS to determine their past performance record, contact the firms you have determined to be best potential to do further assessment - specific reference for this is 13 CFR 124.503(f)(2). I highly suggest that you have agency folks review 124.501 through 124.513 for nuances of the offer/award process beyond the SBA Partnership Agreement and the FAR, including agency supplements. If you like one that you have found then offer the project to the SBA in the name of the firm. You can also do a "open" offering to the program where the SBA matches a firm they believe is appropriate. Just be aware of the nuances of offering a project to the 8(a) Program as there are considerations to make, one especially is attempting to withdraw the project offering. The CFR references already provided are big help here too. Reminders If construction geographical area of the project is a factor in the selection of named offering - 13 CFR 124.501 (many references but see (K)) An estimate for an 8(a) Program offering is to be based on Fair Market Pricing - 13 CFR 124.511 I could probably add details here and there but this is the quick of it. I hope it helps. PS - SDB is different than 8(a). Research it please. 13 CFR 124.1001.
  7. Did you consult this WIFCON resource.. http://www.wifcon.com/bonafidecontents.htm
  8. My initial reaction is you should pursue further legal action. As is per usual I do want to offer a few other thoughts. First I suspect folks are reluctant to respond based on my initial thought, you have complicated matter. However as it goes in Forum many times those that respond to an original post get frustrated when the poster basically disappears. I have a similar view that a original post should not languish and go unanswered as well so here I am. I am not sure there is a specific FAR clause in a contract that will help you. Others may find something to assist. I say this as you are attempting to find "an in" as a subcontractor yet indicate that you are not listed as a subcontractor. As such it would seem that your only course is direct to the company you note as being prime on some military contracts. Another option would be to appeal your facts directly to the contracting officer (CO) of the contracts in question. There may not be a specific FAR clause that the CO can apply but if in fact the prime contractor is representing the software as theirs then there are matters of good faith and fair dealing, operating in a business like manner (honesty) and even the possibility, based on the limited facts in your post, of using stolen property in the performance of the work. Each may or may not have a FAR clause to hang a hat on but do reach to the ideal of a responsible contractor. Reference FAR part 9. Alerting a CO to the facts would put them in a position to review and decide what may or may not apply and the actions then might take. All said just my thoughts and again it would seem that seeking further legal counsel is the number one best approach.
  9. @Just the FAC I will just stop here as I think you get the idea....
  10. Well just because you are still wanting to pursue. DFARS PGI 201.602. SOFAR -5601.604. Commerce 1352.201-72. And then there is the question - Does not FAR 1.102-4(e) apply otherwise. And while not the FAR lots of places in multiple agency policies - USAID, Commerce, Environmental Protection Agency, etc. and FAR 1.301 provides such authority. All said I think the FAR says something! No sir. By my read of the many references a ALT COR will need to have FAC-COR certification. It means what it means - being away from a place. Could be but in all sincerity I doubt it. Realistically I think you can answer the questions yourself. Out of context a bit and intended as rhetorical what would you do if you were the assigning CO with regard to assigning acquisitions to other CO's? This thought reaches to my very first post in this thread - "having two would be cumbersome." You have the discretion as CO to do as you will I would just offer that at this point with regard to the specific question of co-CORs, each from a different agency seems problematic to me for all the reasons, including even the ones you have brought to the table, discussed in this thread. Friday, weekend, weekday they are all the same for me! Have a GREAT DAY!
  11. ??? I may have not included the one you note, but I did otherwise didn't I? Understood. Consider the statement withdrawn.
  12. Thank you and agree. As I followed and thought about it I took a look at the FAR and DFARS Smart Matrix. No help but then I thought why do not each have a check box for set aside or not. I would have to do extensive research to figure out if this would be a great add to the matrix or not...........
  13. Thank you I should have included this citation with my response. You have a quote, signed in some formality by the contractor. The government issues a purchase order. Government asks for contractor to sign and return purchase order. Contractor does not but begins performance, affirmation of acceptance is by performance rather than signature. Yet you have signed quote. Does this reconcile the statements? I offer because quotes pursuant to the FAR and how they are generally received (orally versus written) especially for a need in excess of $25,000 unless construction then over $2,000. Ref: FAR 13.106-1 Probably not the best reconciliation but there you have it. If you have one better I would be interested in seeing it. I appreciate pointing out the hole. In re-reading the thread and how the world of procurement operates now I should have also noted that in the case of an "order" placed against an indefinite delivery contract only the contracting officers signature is needed. By my most recent experiences some folks use the term contract/purchase order for such orders because of not adhering to the specifics of terminology of the FAR. As I originally noted the answer is much deeper and it would be better to base a response on the specifics of a procurement and how it transpired. I tried to provide a general view without the frustration of trying to get the original poster to give specifics as to why he/she was asking the question.
  14. Actually the answer is much deeper than offered by policyguy. You must have a contractors signature that constitutes acceptance (quote, usually a purchase order) or the contractor signature that constitutes a firm offer (bid or proposal and the common term that is used is contract. See the following). You can use can use FAR part 13 (Quotes), FAR part 14 (Sealed Bid) or FAR Part 15 (Request for Proposal) procedures for the solicitation that will result in the contract/purchase order. Ref - FAR 13.106-2. If a quote per the reference already provided by policyguy the CO can sign but it is a request to the contractor to accept the government's offer based on the quote. See FAR part 2 and the definition of "Purchase order". Or in other words the firm offer is made by the government and the contractor has right of acceptance. As noted in the policyguy's post getting the contractors signature is the acceptance. Acceptance can be in the form of performance as well. Without signature of acceptance or performance equal to acceptance you do not have an awarded purchase order. If done by either FAR part 14 or 15 procedures the offer received from the contractor is considered "firm" and acceptance belongs to the government. In such cases the signature of the government is acceptance of that firm offer and usually the contractor has signed their offer as a result of the solicitation process. I will say that based on the general principles of what constitutes a contract (inclusive of purchase order) pursuant to the FAR both parties signature of offer/acceptance is needed to make it mutually binding. Without both you do not have a purchase order or a contract.. See definition of the "Contract" in FAR part 2.
  15. So your view is the "or" as stated here "the acquisition is set aside OR is to be accomplished under the 8(a) program." (my emphasis added) means only 8(a)? I am quite honestly surprised! I encourage you to read FAR subpart 6.203 and 6.204 along with 19.5 to understand that the 8(a) Program is what I will call an offering program that is separate and distinct from "set aside". I suggest you reread 19.708, please!
  16. Are you sure? "Insert the clause at 52.219-9, Small Business Subcontracting Plan, in solicitations and contracts....UNLESS the acquisition is set aside or is to be accomplished under the 8(a) program." FAR clause edited and emphasized by me to reflect that for all the set-aside solicitations, unless the solicitation is amended to be a full and open, 52.219-9 would not/should not be in the solicitation and therefore would not be in the resulting contract. Without research it would be my professional opinion "most" contracts with small businesses are a result of set-asides.
  17. We are beating a dead horse but for sake of a clear discussion I offer this. Joel said this to which your responded with a link to Joel's post. "That" sir is not sending a letter to the primes by my read. It is trying to bust The Wall of privity. I am not so easy to make such a dismissal without specifics. Laptops!!!!!! Neither you or I know what they might hold with regard to ability to access government systems, personal identity information and so on. I do agree that if nobody cares (2 primes and one or two government entities) then I would most likely destroy the items and move on. But I dang sure would cover all my bases as to my efforts regarding contacts and my actions in destroying in a manner that prevents any use. Donating in my view is out of the question.
  18. @joel hoffman @bob7947 @Neil Roberts @Don Mansfield @NOVA_CO2344 I wonder if NOVA is creating a solicitation for full and open competition and the reference to a small business subcontracting plan is dumped in as Don initially noted? See FAR 19.708 (a)(2). FAR Clause 52.219-9 in the solicitation, yet awarded to a small business, no plan after award. Maybe that is why the OP has never returned? The DD 254 could be an unintentional red herring. To my knowledge there is only one FAR clause/provision (inclusive of DFARS) that requires a DD 254, FAR 52.204-16. I do not see mention of a subcontracting plan in the provision.
  19. So what? Again the sub needs a prime to carry their issue to the government. The first prime will not respond. The second prime is their avenue. If they too want to be silent then the sub needs an expert (legal counsel) to help chart next steps. Or as you suggest roll the dice and hope nobody comes a knocking. To borrow a phrase "The Wall" of privity is well settled and breaking through it is difficult. The sub errored early on and now has a challenge based on relationships, if any, with primes to solve.
  20. By your very suggestion you did. If I were the CO I wouldn't respond to a sub at the most, at least I would tell the sub to contact their prime. So what? The subbdid what the government told them to do at that is what counts. So what? They assumed the property for the follow on. Use does not constitute their acceptance of the order to move the GFP, they moved it. How do you know this? The OP is silent on this. Constructive or cardinal change that the subbshould ask the second prime to pursue on their behalf. They should not go directly to the government for all the reasonsvI stated or implied. No it is not in it is the the subs. The sub took action on the request of the government and the first prime. Right, wrong, or indifferent they are holding the property. It is their responsibility to determine what to do with it based on their assumption of the property for the second/follow on contract. So they can prove due diligence to protect their liability and culpability. THERE IS NO PRIVITY OF CONTRACT BETWEEN THE SUB AND THE GOVERNMENT. THEY NEED TO RECTIFY THEIR ACTIONS BASED ON THEIR PRIME NOT THE GOVERNMENT.
  21. I would write the government KO of the last contract that you were officially assigned the GFP. So you both believe there is privity of contract between the government and a sub? How so? The subs current contract is with a prime which by the indicated documentation where GFP was to go to the current contract by order of the government and was removed from the previous prime/sub contract by mod. The sub has two routes; the previous prime who the OP says refuses to respond, rightly so as the GFP was modified out of their contract, and a current prime. For the latter I see nothing in the OP about any attempt to contact the current prime. However reading between the lines the sub took the GFP believing it was applicable to the current prime contract. Therefore the course based on privity of contract is with the current prime. Basis for my recommendation to consult with legal counsel is IF the current prime also is silent the sub then has to make an independent decision that may carry liability. I also question abandonment without concurrence of the current prime based on assumption that sub took GFP for the current contract. I suspect a laptop is sensitive property and as such the prime must consent.
  22. Here is my feedback. If I have the scenario correctly your firm as sub received GFP from a prime pursuant to what I will call Contract A. There was a subsequent contract on which you were also a sub to a different prime on, Contract B. You call it the "follow-on". Pursuant to Contract A, the government and the prime for contract A you, as the sub, was informed that the GFP had passed to contract B. The prime for Contract A modified your Contract A subcontract accordingly removing the GFP. Now with regard to Contract B the GFP has languished and documentation beyond the Contract A modification and some sort of communication from the government nothing has occurred with regard to Contract B or in other words the prime for Contract B nor the government for Contract B has confirmed or otherwise accounted for the GFP as being part of Contract B. If I have this correct then this is my view of how I would handle the matter. I would write a letter to the prime for Contract B that provides the detail of how you believe the GFP was transferred to Contract B. I would provide the facts of the transfer by providing documentation to support (modification from Contract A, communication from the government for Contract A, etc). I would request that the prime for Contract B provide written instructions as what to do with the GFP. The letter should provide an expected due date for the instructions. If such a request falls on deaf ears with the prime for Contract B I would then seek legal counsel with knowledge about GFP and the Federal government to carry the matter further.
  23. GSA regulations prevent a multiple award schedule contract from being issued on a cost reimbursement basis. General Services Administration Acquisition Regulation System (GSAM/R) at 538.271 provides that FSS awards will be for commercial products and commercial services. Also see GSAM/R 512.203 that provides that FSS contracts are to be in accord with FAR Part 12. FAR 12.207 provides the contract types for commercial products and commercial services and cost reimbursement is a type not allowed (prohibited). Therefore as it goes GSA policies as well as the regulations prevent award of a GSA MAS order on a cost reimbursement basis. See page 5 of this GSA policy document - https://www.gsa.gov/system/files/MAS_Ordering_Quick_Reference_Guide_FINAL_508.pdf Likewise as a order is issued as a commercial product or commercial service order FAR 12.207 prevents the order from being cost reimbursement.
  24. An interesting discussion. While monitoring I was doing my own reading. As this thread trails into the sunset one thought that I had based on the reading I did is interpretation and application of 44 USC 3301 post award with regard to both the contractor and the government. The mere suggestion of the National Archives of a "contract term and condition" in itself is the start of another rabbit hole. Quite a Pandoras Box....... https://www.archives.gov/records-mgmt/policy/records-mgmt-language
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