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C Culham

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Everything posted by C Culham

  1. Personal initiative regardless of what pigeon hole a person might otherwise fit into in a bureaucratic organization. I can not help myself to add - here is a regulation that you ought to show to the More Important..... The role of each member of the Acquisition Team is to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs. In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.
  2. @Small Biz Finance SCA applicable? If so holidays are a fringe benefit. If SCA is applicable a FAR 52.222 clause might be your answer if such clauses exist in the contract along with a lot of other details like updated wage determination. I will stop with any further thoughts other than read your contract.
  3. @FAR-flung 1102 Killing some time and in reading latest in this thread I had this recollection of a past thread where I think it was Don that mentioned the Library of Congress for such things. Did a quick search and found the following. More in-depth looking at LOC may help you. https://www.loc.gov/item/cfr1968065-T32CIP1/
  4. Careful....not sure the discussion is aligning with other elements of guidance. https://fedspendingtransparency.github.io/whitepapers/place-of-performance/#:~:text=In contracting reporting instructions for,the service will be performed. "In contracting reporting instructions for many years, the “place of performance” was the location of the principal plant or place of business where the supply items will be manufactured; where finished products will be taken from inventory; or, for services, the principal location where the service will be performed."
  5. Now I could be wrong but if memory serves me right the intent of the FAR in its beginning was in part for consistency. Where, I could as a contractor move from one agency to another and hopefully find a proposed solicitation formed in the same manner - the Uniform Contract Format. Not that it matters but in my personal view having the consistency would make it easier (less costly?) for folks to do business with government. I particularly like my local doctor because she treats me consistently, it is when I stray away from her clinic, her associated primary and have to deal with someone new that frustrates the heck out of me, along with the fact that I spend extra time beyond the actual care matters, which in their own right takes more time to educate the new doctor, but the administrative side on how my personal finances and insurances should pay, will pay, for the care. Time and time again they do not get it right on the latter and I do feel my time is worth something. Poor example be it as it may. Consistency does play an important role in my view. I will enjoy reading "Fear..."
  6. Highlighted much of the time in Forum is the reflected experience that professional discretion may not be that but just a "wing it" as implied by Tzarina which by my read means someone does do something without much preparation and practice. I do wonder how many CO's, by example, have taken the time to personally explore the matter discussed here in to arrive at a reasonable opinion, or should I say a well documented decision as to why or why not for an instant procurement? I agree with less rules and professional discretion while I also agree there should be a genuine concern with regard to people "winging it". Winging it probably happens much more than it should! For an industry that experiences it a lot, where I suspect such inconsistency might be the lynch pin to proposal pricing and even acceptance it would seem an added rule of definition might be a very good thing for everyone.
  7. Hmmm, neither cost nor savings? https://www.cbo.gov/system/files/2021-04/s583.pdf
  8. So don't pound your head or laugh but I wonder. "We have a Firm Fixed Price contract that is not domestic in one country." "The contract is written poorly and references very little FARs..." Maybe the FAR is not applicable to the contract in question. What would make it so, having to have the FAR definitions clause in it? What if it not?
  9. A couple of thoughts.... You do note that the contract has very little FAR's. Does it have a Disputes clause? If so and if it is a traditional FAR clause it would provide for a claim that could be elevated above the contracting officer/agency for a decision. Another possibility. Some FAR based contracts carry an economic adjustment clause related changes in labor costs that are dictated in the United States by labor laws. As already noted when reviewing your contract and looking for helpful clauses think "economic adjustment" as you review to see if there is any clause that provides for economic adjustment. If there is none, and not that it would work, but an interesting question, and possibly basis to approach the contracting officer/agency, is a "what if". What if the contract work was applicable to US labor laws would the agency have put an economic adjustment clause in the contract? The contracting officer/agency might skirt the question but if they were to say "Yes" you might be able to play on their sense of fairness in your situation and suggest that there should have been one in the contract. Offered as thoughts as on one hand depending on the the details of the contract I might strongly agree with the position of the contracting officer/agency yet on the other hand your description of the answers seem vague where the contracting officer/agency is not referring to specific clauses (or lack there of) of the contract as to why a price adjustment is not allowed. The reference to fixed price contract is true but on the other hand and generally a fixed priced contract can be changed by mutual agreement of the parties.
  10. Nope...hours. The government might get half the supplies, half the service, none of each or everything they wanted as the government bought hours. I have read the unfolding thread beyond how Vern says it should work and I would agree, it adds clarify and makes the acquisition different than say if the main line item was not present and all the sub-line items are. Or in other words it depends on the contract. Noting Vern's previous reference to a document that was posted in 2004 points this out clearly. Bottom line the contract terms and conditions count as to what is being bought.
  11. On the basis of direct labor hours. A job bought and paid for not my a shovel full or a tree planted but hours that are acquired from the contractor to dig the hole or plant the tree. It can be if the CO so chooses it to be. It seems this is true "...The customer agrees to pay the contractor by the hour..." Yep I agree and is the aggregate of hours the customer has agreed to pay the contractor for the hour by a stipulated hourly rate. Now before you nit pick I have kept my comments to hours to be in line with the primary subject of the thread but I do understand that the aggregate includes materials as well for a TM.
  12. Really? Talk about boring. We have been down this road before Mr. Edwards! So now tell me, please I beg you, 1. Why a TM contract, pursuant to the FAR does not acquire supplies or services on the basis of direct labor hours at specified fixed hourly rates; and 2. Why pursuant to the FAR that "it wrong" that a TM contract has a ceiling price that the contractor exceeds at their own risk?
  13. Really? Nothing has ever stopped you before, why now?
  14. How so? Description. A time-and-materials contract provides for acquiring supplies or services on the basis of- (1) Direct labor hours at specified fixed hourly rates that include wages, overhead, general and administrative expenses, and profit; How so? The contract or order includes a ceiling price that the contractor exceeds at its own risk.
  15. Could be that the IDIQ is the most misunderstood and misused! And not to be reasoned as an exception to what has been stated so far, just clarification that I felt compelled to offer. Paraphrased specific to this thread the single award IDIQ is providing for services specified as labor categories, rates, and overall estimated LOE. Not stated is how the associated TO can be placed - FFP, TM/LH, Cost - but it appears that at least TM/LH is allowed by the master IDIQ. To illustrate it sounds like, by example, the contract is for say janitorial services. It further sounds like the master IDIQ is stating the services of janitors, as a labor category(s) are priced at specific rates as opposed to the services of clean a toilet at a specific job rate. ( I will admit I do not get the LOE reference in the original post without seeing the master.) The IDIQ orders nothing (52.216-21) hopefully in the master contract) but establishes the unilateral right of the government to order the janitor services at the hourly rates specified to a stated maximum and the IDIQ states that a specified minimum of janitor services must be ordered. Again all at labor rates it sounds like. With regard to a TO, and again noting that the IDIQ has established labor categories and rates, then it makes sense (FAR 16.601) that a TO, as a TM/LH type of order, that it would acquire the need at stated labor hours at specified labor rates identified in either the schedule of the master contract or a more specific schedule of a TO. Such as some might take a short cut and just say any of the categories/rates of the master apply and advise the contractor not to exceed a ceiling (dare I say a single lump sum CLIN on the TO) while others might have the TO state (by separate CLINS in the TO schedule) the labor category(s), hours and rates that are to perform the work at a stated ceiling price for all. Either fits from my view. Not so explicit in my view as the the door is left open with a "may" at (4)..... The contracting officer may structure these procurement instruments to reflect a firm or estimated total amount for each line item . I think I do because FAR 16.601(b) states in part "Description. A time-and-materials contract provides for acquiring supplies or services on the basis of- (1) Direct labor hours at specified fixed hourly rates". The TM/LH is to acquire hours at specified rates. The total quantity of hours must not exceed the ceiling price. So the door is open to the CO's discretion (see above) as to hours of specific labor categories that will be delivered. So all told - Yes it would appear that the FAR allows such discretion to the CO. One caveat it will also depend on what the IDIQ itself establishes. It may. Again discretion of the CO unless the IDIQ itself states otherwise.
  16. My statement was with regard to Rachel_CO FAR references.
  17. My thoughts - IDIQ Multiple Award where Fair Opportunity is used to select the contractor? In general either approach is acceptable as to the award approach but if you are asking contractors to give a proposal that is used for fair opportunity selection it is interesting that the contractors proposal on labor categories and hours as proposed is not converted into the CLIN's for the TO. Posed another way if selection under fair opportunity does not consider the labor mix and hours and selection is based on other stuff why even ask for the mix and hours in the proposal? If mix and hours is used as evaluation (proposed price of TO) it would seem prudent to list them in the CLIN. I say this as it would seem that if the mix and hours are evaluated the government is agreeing to the mix and hours approach. Overall for me it boils down to how the mix and hours are used to evaluate for award. By example if you are just worried about the "ceiling price" when evaluating for award just ask contractors how much they are willing to do the work for - total price - and then award as your office is currently doing. IDIQ single award, I am back to my view that either approach works. FAR references are guidance so I would not be too hung up on them. My concern on payment would be that it might take a little extra effort to view and concur on an invoice when the labor mix and hours with rates are not on the TO. Just takes looking at the parent IDIQ so not a big deal. But what goes along with this is the expectation thing again. Simplified example. Contractor proposes 200 hours of a specialist (higher rate) and 50 hours of a technician (lower rate) to do the work. Award is at ceiling price only. When the invoice comes in contractor bills for 275 hours of technician and 75 hours of specialist. Did the government get what they bargained for? More importantly for post work completion evaluation by customer for the future maybe the completed work expectations could be viewed differently for future contracts. In other words why do you need specialists on the example contract when techs can get it done.
  18. Thank you for the response. Don has posed some great questions. For me your response makes me wonder if the requirement is one that has continued over a long period time whereby the contractors themselves have settled into a routine where they too know there is no detriment to contract performance in their eyes and it seems in the government's eyes as well whereby nothing negative has been passed on to them by such things as reduced payment, adverse performance evaluation, etc. It would seem Vern's idea posted early on with regard to required subcontract agreements could be the fix if the questions Don has offered still result that key personnel is a required evaluation factor. I guess one could switch it up and just require that the work or certain elements of the contract work must be performed by individuals with certain credentials and ask how offerors intend to insure they will keep individuals in such positions and evaluate the contractors plan to do so.
  19. I hope the OP is getting your point. I went and refreshed myself with all comments made by the OP and I may have missed it but the only issue seems to be that key personnel changed during contract performance. I did not see that having the key personnel move on caused a contract performance issue. If it did then I might understand the OP's concern but if it did not, and the only issue is hey John Doe left the contractor's employment and was a key personnel, then I too wonder why there needs to be a stipulation for key personnel by name and they are evaluated.
  20. Without specific contract language but generally. Option exercised based on contract language is a unilateral right. Your post suggests you may not have that unilateral right now. BUT, if the contractor were to agree with exercise you might be able to exercise now bilateral.
  21. Ah but I wonder how an agency or even a particular CO looks at what the mandate actually is and then bends it to their particular view....."Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors".
  22. Refuse vaccination is not the issue, stating status of vaccination is. I will leave it to the contractor and their employees as to how truthful the statement of exempt (again not refusal) is. type of contract seems to matter as already stated - 31.205-6 Compensation for personal services might cover it already. But not to detract it seems the discussion is about existing contracts where all of a sudden a surprise requirement is placed on a contractor who hopes to have their costs of compliance to continue to do business under the existing contract with the government are covered. My view is a new solicitation that results in a new contract that carries the same requirement gets a different view on the incentive plan cost to the contractor and how that contractor could or could not pass it on to the government when the government reviews a proposal that discusses cost for an employee incentive plan that is inclusive of a vaccination program incentive.
  23. I wonder? As the definition of an "Employee Vaccination Program" is not define, therefore left to the contractor to so define, couldn't it be incentive program? I as a contractor want my employees to carry a card that shows vaccination status. I as an employee have a card that might say vaccination status "exempt" which is a status I was incentivized to attain and state. If I have no status (refuse to say whether I am vaccinated or exempt) then there is the distinct possibility that I would not have a job with the company. You are encouraging the employee to state their status.
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