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C Culham

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Everything posted by C Culham

  1. As always sometimes a post has hidden facts that would help in a response. I posed the questions for that purpose. To your question no, but what about you do you have one? I direct to the OP's question might have ideas for agency document that could be used absent a template, whether used to cut and paste or not!
  2. As I continue to read the discussion and read the articles provided I also harken back to the days when I utilized the USACE Partnering approach. Maybe Alpha is a new twist on it, I won't read more to reach a foregone conclusion, but a look see about it might be of help in your search for help. https://www.iwr.usace.army.mil/Portals/70/docs/cpc/91-ADR-P-4_Partnering.pdf
  3. By my read it is a "shall" .... 8.405-4 Price reductions. Ordering activities may request a price reduction at any time before placing an order, establishing a BPA, or in conjunction with the annual BPA review. However, the ordering activity shall seek a price reduction when the order or BPA exceeds the simplified acquisition threshold. Schedule contractors are not required to pass on to all schedule users a price reduction extended only to an individual ordering activity for a specific order or BPA.
  4. The short questions might have helped you figure out what to do but let me add a few more. Why are you asking? Is there a specific reason you are in a quandary on how to close out the contract? Does the contractor owe you something? A release, return of classified material, info on government furnished property and possibly its disposal, settlement of indirect rates, etc.? With a little more info on what is driving your question would most likely generate answers that would help and not generate questions.
  5. A youthful experience for me that I have never forgotten. Jet A spilled on a airport runway. Sole source authority took a few days but was quicker than usual due to the environmental concerns. Contract negotiated and work done to remove, remediate and replace 30,000 cubic yards of runway and soil. Included re-pavement of the runway. All told the contract negotiation and work took 3 days. I second Matthew Fleharty's comments if that is the direction you are headed but noting Jacques comments a little more detail on your part might generate other valuable comments. (Mine might not be but I always found my experience on that one procurement to support that anything is possible with the right players!)
  6. If I might add if the contract is a "Commercial Item Acquisition" and FAR 52.212-4 is in the contract this paragraph may have application to your situation... " (i) Payment.- (1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract. (2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C.3903) and prompt payment regulations at 5 CFR Part 1315. (3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause. (4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made. (5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall- (i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the- (A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment); (B) Affected contract number and delivery order number, if applicable; (C) Affected line item or subline item, if applicable; and (D) Contractor point of contact. (ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer."
  7. 'I fear this takes us off topic again yet uncovers some very good info regarding GSA FSS that at least for me has been a learning process. Why? Within GSA FSS there are two options to procure professional services - the "Professional Services" MAS (PS) and OASIS. Under the PS the rates are not subject to SCLS. To confirm this go back to the RFP that I have provided as reference and look at the "Professional Services Category Attachment". No reference to SCA (aka SCLS). I believe the reason is only professional service categories are priced on this schedule to which GSA has determine SCA does not apply. I would suggest that if an agency needed both professional and non-professional services the Professional Services MAS would not be appropriate to use. So lets move to OASIS where a mix would be appropriate. I implore all to go to the reference link that immediately follows and read, most specifically pages 14 and 15. https://www.gsa.gov/cdnstatic/Final Conformed OASIS Solicitation.pdf And as usual for me you might find the document "Comparison [PDF - 145 KB]" that is found at the bottom of this webpage https://www.gsa.gov/buying-selling/products-services/professional-services/buy-services/oasis-and-oasis-small-business of interest where PS and OASIS are compared Once you have read I think you, like me will learn more, which for me has me doing a complete 360 and would suggest to the OP that Yes in certain instances depending on the GSA FSS schedule the agency can tell a contractor that the needed services are those that might be exempt from SCA (SCLS). I will follow the thread further but I really do believe it is case closed, lesson learned, with apologies to all for not doing my homework first before writing even one comment! Now I will see if lesson learned for me sticks for future Forum discussions! Happy New Year!
  8. @Artimpa Not specifically on point but the best I can do with my limited resources. Makes me think, as usual, that for a particular contract it depends on the facts of when IFF may or may not apply when the contract is not (or implied as so) specifically made through GSA FSS. I hope all the discussion has helped to some degree. https://www.cbca.gov/files/decisions/2009/KULLBERG_03-06-09_449__NAVIGANT_SATOTRAVEL_508.pdf
  9. Yes and the labor category that is going to do it is proposed and that labor category from the contractors schedule contract is either SCA or not. If the task order requires a category not on contract the I see it becoming a open market need. Two references make me think this way - 1. This from the reference you posted on Sat, Jan 1 at 1:08 - "Task orders may not be issued to Schedule contractors unless the labor categories/fixed price services applicable to the order are awarded under the contractor’s Schedule contract or procured IAW GSAR Clause 552.238-115, Special Ordering Procedures for the Acquisition of Order-Level Materials." 2. And this statement found on all wage determinations with a reminder that wage determinations are in the orders - "Conformance Process: The contracting officer shall require that any class of service employee which is not listed herein and which is to be employed under the contract (i.e. the work to be performed is not performed by any classification listed in the wage determination) be classified by the contractor so as to provide a reasonable relationship (i.e. appropriate level of skill comparison) between such unlisted classifications and the classifications listed in the wage determination (See 29 CFR 4.6(b)(2)(i)). Such conforming procedures shall be initiated by the contractor prior to the performance of contract work by such unlisted class(es) of employees (See 29 CFR 4.6(b)(2)(ii)). The Wage and Hour Division shall make a final determination of conformed classification wage rate and/or fringe benefits which shall be paid to all employees performing in the classification from the first day of work on which contract work is performed by them in the classification. Failure to pay such unlisted employees the compensation agreed upon by the interested parties and/or fully determined by the Wage and Hour Division retroactive to the date such class of employees commenced contract work shall be a violation of the Act and this contract. (See 29 CFR 4.6(b)(2)(v)). When multiple wage determinations are included in a contract a separate SF-1444 should be prepared for each wage determination to which a class(es) is to be conformed."
  10. Maybe explain your concern to the CO who has an open market solicitation on the street. I could see where the CO could change their approach and rather requesting schedule rates but rather indicate that as a part of price evaluation schedule rates would be used as a comparison to determine fair and reasonable pricing and request a contractor to reference their schedule contract. Something like " This is an open market procurement, any references related to GSA FSS pricing is for the sole purpose of evaluating an offerors pricing as fair and reasonable and otherwise has no relationship or intent that this procurement is under GSA FSS as in the opinion of agency GSA FSS is not an appropriate vehicle for this procurement." Could yeah probably, should seems to the operative question. After all why not just do the procurement through schedules? Back to this I did a little more research and I find the general statement in many places but no case law that says it is so. I found this - https://www.fss.va.gov/fss/faqs/fssSalesReports.asp#q006 And it says this (emphasis added). Made me wonder if my proposed wording is a "work around: of the SIN description caveat but I still wonder about where a authoritative reference is that supports the statement in total. "A sale should be reported if the …task or delivery order includes a direct reference to your VA Schedule contract number, then the entire order should be reported as an FSS sale (this includes sales made under prime vendor, direct-to-patient, and consignment programs). …product or service falls within the description of the SINs on your contract and the customer is an eligible ordering activity, the order is considered a Schedule sale.
  11. I know poor me, and probably my own dang fault for not being very good at written communication but I think my position on all kinds of issues in Forum would be better understood (whether I am right or wrong) if folks would read my posts😪🤣
  12. See my response to Vel, I do not think you have considered the full solicitation contract award process that GSA uses. By example are you saying, in consideration of the detail I provided to Vel, that the positions on this contractors current pricing can sometimes be SCA exempt and sometimes not? As you consider please consider how these categories cross reference to the most current USDOL SCA Directory of Occupations Contractors description of the category (picked one category out of tens of them)- Minimum/General Experience: Zero to two years related experience providing assistant to attorneys and preparing legal documents or paralegal certification. Functional Responsibility: Provides assistance to attorneys in preparing legal documents. Performs legal research and compiles data from a variety of reference sources such as digests, encyclopedias, and practice manuals. Performs document preparation (especially during discovery and production support) including reviewing, organizing, numbering, and indexing). Document conversion involving capturing documents on some sort of media: magnetic, CD, microfilm, and converting documents to image (such as tiff or pdf) or to text Performs computer-assisted research on systems such as Lexis and Westlaw. Formal training in legal research and methods. Minimum Education: Bachelor’s degree or equivalent combination of training / experience. SKILL CATEGORY/SKILL DESCRIPTION GOVT. HOURLY NET PRICE Litigation Support Services– 541611LIT Legal Assistant I $ 37.70 L
  13. Agree. However I would offer this is a complicated discussion in that there is the general standards of SCA and then there is the specific standards as related to a GSA FSS. Along the same thoughts that Vern has brought up in his most recent post and using some general references that I have already noted (remember the OP has not pinpointed a specific GSA FSS contract)..... GSA requires a contractor to provide information during the solicitation process as I have previously noted. I directed attention to a solicitation via link currently out on the street. Here is another excerpt from it (in italics at the very end of my comments and question). I know I am cherry picking but I am trying to keep my post as brief as possible. I also want to note that if you look at the referenced solicitation, and as I already noted in a previous post, with regard to a specific SIN GSA does not require SCA compliance info. Again I quote the language with regard to IT - "Cloud related IT professional labor categories are not subject to adherence to the NIST definition of cloud computing; therefore, no technical response is required for a labor proposal." So in consideration of the below quote the question loops back to you, considering what GSA asks for with regard to compliance to SCA in the solicitation/contract in establishing pricing for a specific labor category (CLIN) on a specific GSA FSS contractors contract, can the contractor have it both ways, sometimes have that contract labor category SCA and sometimes not? "Applicable to this solicitation (Service Contract Labor Standards 52.222-41, and related clauses 52.222-17, 52.222-42, 52.222-43, 52.222-49, and 52.222-55) (A) The Service Contract Labor Standards (SCLS), formerly known as the Service Contract Act (SCA) applies to some nonprofessional services to be provided under this Schedule excluding pricing offered for services outside of the United States. The SCLS wage determinations applicable to this solicitation and resultant contract are located on the MAS roadmap. Some of the proposed labor categories may be subject to the SCLS (usually nonprofessional categories and fixed-price services). As such, the offeror should verify that its proposed base rates and fringe benefit rates for these labor categories meet or exceed the SCLS wage determination rates and fringe benefits for the areas included in the geographic scope of the contract (i.e., nationwide); the offeror will be required to comply with applicable SCLS wage determination 47QSMD20R0001 Refresh: 0009 Section I A. Instructions to Offerors Page: 13 of 141 locality rates and fringe benefits regardless of the price proposed and awarded on any resultant Schedule contract. The offeror may be required to submit supporting documentation for the proposed rates that will allow the contracting officer to conduct price analysis to determine that offered prices are fair and reasonable. (B) Schedule contractors must comply with the base rate and fringe benefit rate requirements of the prevailing SCLS Wage Determination (WD) Revision Number currently incorporated into the GSA Schedule contract. Task orders may not incorporate WDs different from those incorporated into the Schedule contract, as the order may then be in conflict with the Schedule contract terms and conditions. However, Schedule contractors must comply with the WDs incorporated into the Schedule contract based on the rate applicable to the locality in which the work is to be performed, regardless of the pricing proposed and awarded on the contract. WDs based on collective bargaining agreements (CBAs) may be incorporated into a task order if the task order is found to be a successor contract as used in FAR Subpart 22.10; a CBA WD would be applicable only to the task order it is incorporated into and no other orders under that Schedule contract. (C) In the price proposal template (PPT), indicate which of the proposed labor categories or fixed price services are subject to the SCLS by placing a double asterisk (**) next to the labor category name or fixed price service. (D) For each SCLS eligible contract labor category or fixed price service, complete the following information in the below spreadsheet format directly in eOffer (labor categories shown are for example purposes): SCA/SCLS Matrix SCLS Eligible Contract Labor Category/Fixed Price Service SCLS Equivalent Code Title WD Number Secretary 01115 General Clerk I 052059 Driver 31361 Truck driver, Light Truck 052059 Engineering Technician 29081 Engineering Technician I 052059 Administrative Assistant 01011 Accounting Clerk I 052059 (E) The following language must be inserted below the SCLS/SCA matrix in the authorized price list posted on GSA Advantage: "The Service Contract Labor Standards, formerly the Service Contract Act (SCA), apply to this contract and it includes SCLS applicable labor categories. Labor categories and fixed price services marked with a (**) in this pricelist are based on the U.S. Department of Labor Wage Determination Number(s) identified in the SCLS/SCA matrix. The prices awarded are in line with the geographic scope of the contract (i.e., nationwide)."
  14. @formerfed I just stumbled on this. No intent to pile on. Do not even know if it is the most current case law. Just thought it was interesting. Maybe the best advice to the OP is that if they were to encounter the situation portrayed on a specific contract action they may want to ask the GSA CO if the agency is doing something correct with regard to SCA. https://www.cbca.gov/files/decisions/2017/O'ROURKE_03-31-17_5458__CONSULTIS_OF_SAN_ANTONIO_INC.pdf
  15. So has the prominent government accounting firm provided reference as to where GSA has prevailed in their stance such as a claim against a contractor for the IFF? As you note (a) (3) seems to say otherwise. Without further research on my part and noting you seem to have done further research I just wonder if it is a GSA bluff or something they have prevailed on. I guess if there is not authoritative reference to show that they have prevailed GSA does have the hammer to simply say pay or you no longer have a GSA contract but if that is the case seems counter to a read of the contract clause and fair dealing.
  16. This seems converse to the references I have posted. GSA solicitations request contractors to provide rates that meet SCA. GSA contracts say SCA applies. Additionally GSA instructions on use of schedules indicate that GSA has evaluated schedule hourly rates with regard to application of SCA. I will agree that agencies are allowed latitude in negotiating more favorable rates, which might include whether a labor category price could be reduced but their instructions imply that such a category, where SCA is determined to not apply, is a non-schedule labor category. Example - GSA solicits pricing. Contractor says here are my rates and for these labor categories SCA applies and for these , exemption applies. GSA evaluates and agrees or disagrees, negotiates as appropriate and the rates become the schedule pricing. Yet the labor category is determined to be applicable to SCA or exempted under SCA. A labor category can not have it both ways, sometimes SCA and sometimes not. I say this with the reminder that the SCA Directory of Occupations determines the labor category to which SCA applies. If the tests for SCA exemption for administrative, clerical and professional apply GSA would have already determined that pursuant to SCA. I view exemption as different than not applicable as the exemption is part of SCA. You referenced information regarding IT positions in a previous post. Consider this from the current GSA solicitation on the street..... Cloud related IT professional labor categories are within scope of this SIN. Cloud related IT professional labor categories are not subject to adherence to the NIST definition of cloud computing; therefore, no technical response is required for a labor proposal. Non-professional labor categories subject to Service Contract Labor Standards (SCLS) (e.g., IT help desk support) that are incidental to and used solely to support specific Cloud related IT professional labor categories and/or fixed-price professional services solutions must be offered under a different SIN that specifically covers the proposed services. Or in other words if an entity needed non-professional labor categories for IT they would go to another GSA FSS SIN to get them.
  17. Does this clause, usually found in GSA FSS contracts, answer your question? https://www.acquisition.gov/content/552.238-80-industrial-funding-fee-and-sales-reporting.
  18. The process yes, but not "the contract" as by my read I could not pinpoint a specific contract mentioned by the OP. The OP's stated questions appeared to be in general with regard to GSA schedule contracts and SCA.
  19. Okay so I mis-spoke but in the case of the matter raised in this thread GSA's FSS solicitation process and wording in finalized contract(s) is consistent with the rules. Any way you cut it the implied actions by the "agencies" that the OP references are not consistent with the rules and the contract.
  20. In an attempt add clarity let me offer this. The "rules" are dictated by the GSA FSS contract. "Service Contract Labor Standards (SCLS) Schedule contracts contain both SCLS and non-SCLS labor categories. Bona-fide executive, administrative, and professional labor categories are exempt from the SCLS. GSA has applied the SCLS at the Schedule-contract level where applicable. OCOs may order, as ancillary support, any labor typically found in the Department of Labor’s “Service Contract Act Directory of Occupations” if this labor is deemed necessary to deliver a total mission solution integrated across professional disciplines and/or the enterprise. In this situation, it is the responsibility of the OCO to ensure the SCA is properly applied and administered to any non-Schedule labor categories." (emphasis added) REF - https://www.gsa.gov/cdnstatic/MAS_Ordering_Quick_Reference_Guide_FINAL_508.pdf In other words a GSA FSS contract with a particular contractor has pricing by labor category. For each labor category priced GSA has applied SCLS or in other words determined if the labor category is SCLS applicable or not. An Ordering Contracting Officer (OCO) errs in stating that the categories are or are not exempt as GSA has already done so. In an "Order" quote the GSA FSS contractor will propose labor categories and their respective pricing to get the work done. The OCO has no authority to suggest the category is this or that with regard to SCLS, as noted this has already been done at the GSA FSS contract level. If a OCO asks for a labor category not priced in the contractor's particular GSA FSS it is a non-Schedule (open market) labor category. To understand this further consider the following wording from the current solicitation on the street for various categories/SINS for GSA FSS. Go here https://sam.gov/opp/ec77a8ef4af24c229fc199cb96af7f55/view and wade through as I did and you will find this language in the "Office Management_Attachment" document. By comparison I suggest a look see at "Information Technology_Attachment" document as I think it will open eyes that a CO can not just willy nilly suggest SCA does not apply, again GSA has already done so. (PS Hint - search all documents you might download from the solicitation site on the term "SCLS") "Service Contract Labor Standards and Health and Welfare: The Service Contract Labor Standards (SCLS) applies to all nonprofessional services to be provided under this Schedule except for any pricing offered for services outside of the United States. The SCLS index of applicable wage determinations can be viewed at beta.sam.gov. Some of the proposed labor categories may be subject to the SCLS (usually nonprofessional categories). As such, the Offeror should verify that its proposed base rates and fringe benefit rates for these labor categories meet or exceed the SCLS wage determination rates and fringe benefits for the areas included in the geographic scope of the contract (i.e., nationwide). SCLS wage determination(s), including determination number, revision date, state and counties for the preponderance of work location must be submitted. *When submitting Labor Categories subject to SCLS Wage Determination (WD), the offeror is required to provide rates for their intended places of performance along with any supporting documentation. The offeror should indicate any differences in WD base rates for proposal pricing, for instance if Accounting Clerk I is being proposed for a lower WD base rate than Janitor, the appropriate WD should be indicated. The contractor is responsible to adjust their proposal and for paying the appropriate WD for the locality for the intended performance local. Offerors must comply with applicable SCLS wage determination rates and fringe benefits regardless of the price proposed and awarded on any resultant Schedule contract. The Offeror may be required to submit supporting documentation for the proposed rates that will allow the contracting officer to conduct a cost analysis to determine that offered prices are fair and reasonable. Schedule contractors must comply with the base rate and fringe benefit rate requirements of the prevailing rate SCLS Wage Determination (WD) Revision Number currently incorporated into the GSA Schedule contract. No prevailing rate WD may be incorporated into a task order as the order may then be in conflict with the Schedule contract terms and conditions."
  21. Vern Edwards has brought up good points. Added are..... If an order had a mix whereby the agency indicates application of wage rates to some positions and not to others it might be that the "not" positions should be sought as "open market" positions. I would have to think on this a little more but it is my first reaction. https://interact.gsa.gov/blog/open-market-items I think it is appropriate to throw in willing contractors on the trust matter especially with regard to what a contractor is willing to do under the GSA FSS. After all they should know the do's and don'ts of the contract . Are they willing to bend the rule of the contract to get an order? Probably depends on the contractor but my bet is that it happens. And I would bet the same contractor who in turn might yell "Foul" if it wasn't to their benefit. It does take "Two to tango". Appropriate or not it seems Federal government contracting these days fits “It's Easier to Ask Forgiveness Than It Is To Get Permission”
  22. A few thoughts - A contractor has the ultimate responsibility for compliance with SCA. An agency may assume some type of staffing yet the contractor is the one that makes the final decision as to what an employee may or may not be doing, how they are paid etc. This may help on what the tests are for a contractor to determine exemption - https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fs17c_administrative.pdf Also do not forget about this document that assists a contractor in determining applicability of SCA as well - https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/SCADirectVers5.pdf In fact if you read some of the GSA FSS schedules many contractors have positions described that appear to be in direct correlation to the position described in the Directory. Also consider FAR 22.1015. However as a contractor I would not depend on this citation as a hoped for bail out because as noted it is really the contractor's ultimate responsibility to comply with SCA. As to more info another missing link is with regard to the GSA schedule itself. What are the clauses in it besides the SCA 52.222-41 such as 52.222-52 & 53. And finally for the heck of it I will throw this out as a reference. You might find it handy - https://www.dol.gov/agencies/whd/field-operations-handbook/Chapter-14#B14c00
  23. A retrospective view. A young adult that embraced a grand change in 1984 who evolved into a bureaucrat that extolled that if it is so by legislative and/or executive intent then it shall be so. My try to keep the grand change so was not very successful. Change is good but I really do wonder if the heap still called the FAR is more of a dog pile than change!
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