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C Culham

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  1. CF - You may want to wade through this website as it may assist as well.... https://www.dol.gov/whd/govcontracts/eo13706/faq.htm#IOLPTO4
  2. FAR coverage is adequate.....adding one more Act to require contracting entities to make responsibility determinations or otherwise determine if a contractor can deliver is a waste of pen and ink. PS - I wonder if the Press Release is click bait as the letter it references and links to is about immigration! Lordy!
  3. CF - Just in case you did not dig into the CFR regarding your questions here you go as it may help.... 29 CFR 4.162 Fringe benefits under contracts exceeding $2,500. (a) Pursuant to the statutory scheme provided by sections 2(a)(2) and 4(c) of the Act, every covered contract in excess of $2,500 shall contain a provision specifying the fringe benefits to be furnished the various classes of service employees, engaged in the performance of the contract or any subcontract thereunder, as determined by the Secretary or his authorized representative to be prevailing for such employees in the locality or, where a collective bargaining agreement applied to the employees of a predecessor contractor in the same locality, the various classes of service employees engaged in the performance of the contract or any subcontract must be provided the fringe benefits, including prospective or accrued fringe benefit increases, provided for in such agreement as a result of arm's-length negotiations. (For a detailed discussion of section 4(c) of the Act, see § 4.163.) As provided by section 2(a)(2) of the Act, fringe benefits include medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, unemployment benefits, life insurance, disability and sickness insurance, accident insurance, vacation and holiday pay, costs of apprenticeship or other similar programs and other bona fide fringe benefits not otherwise required by Federal, State, or local law to be provided by the contractor or subcontractor. (bold added) 29 CFR 4.170 Furnishing fringe benefits or equivalents. (b)Meeting the requirement, in general. The various fringe benefits listed in the Act and in § 4.162(a) are illustrative of those which may be found to be prevailing for service employees in a particular locality. (bold added) The benefits which an employer will be required to furnish employees performing on a particular contract will be specified in the contract documents. A contractor may dispose of certain of the fringe benefit obligations which may be required by an applicable fringe benefit determination, such as pension, retirement, or health insurance, by irrevocably paying the specified contributions for fringe benefits to an independent trustee or other third person pursuant to an existing “bona fide” fund, plan, or program on behalf of employees engaged in work subject to the Act's provisions. Where such a plan or fund does not exist, a contractor must discharge his obligation relating to fringe benefits by furnishing either an equivalent combination of “bona fide” fringe benefits or by making equivalent payments in cash to the employee, in accordance with the regulations in § 4.177.
  4. Are you the ethics official for your agency? If not you may want to visit with them on the matter. Why? Well your reseach sounds complete but there is consideration beyond the FAR that the agency may want to evaluate before creating a perfect 60 minute cover story.
  5. Here is my thought for consideration.... Obligation is a definite commitment, administratively recording (I have seen the wording used by GAO) is a different distinct action, such as reserving funds used in the Federal budgetary process. With regard to an IDIQ even the minimum is a definite commitment because generally speaking it has to be paid if no orders are ever issued. And the funds used must represent a bona fide need for that funding source therefore the minimum is recorded as specific obligation of the contract. PS - I know we could go off on a tangent regarding payment of the minimum if no orders are ever issued but the simple view is why the minimum is an obligation that must be recorded per the recording statute.
  6. As support to kevlar51's response consider the clause in your contract, 552.238-74 INDUSTRIAL FUNDING FEE AND SALES REPORTING MODIFICATIONS (FEDERAL SUPPLY SCHEDULE) (MAY 2014), and note is discusses "all sales". You might be interested in cruising through this webpage too - https://72a.gsa.gov/ifffaq.cfm#04
  7. Discussing terms with regard to the Federal budget process can be as tricky as discussing terms that apply to Federal contracting or as budget terms apply to Federal contracting. This document may be of value to those that want to get into the weeds - A Glossary of Terms Used in the Federal Budget Process https://www.gao.gov/new.items/d05734sp.pdf Here are a few terms from the glossary that might be of interest as related to this thread. Obligation A definite commitment that creates a legal liability of the government for the payment of goods and services ordered or received, or a legal duty on the part of the United States that could mature into a legal liability by virtue of actions on the part of the other party beyond the control of the United States. Payment may be made immediately or in the future. An agency incurs an obligation, for example, when it places an order, signs a contract, awards a grant, purchases a service, or takes other actions that require the government to make payments to the public or from one government account to another. The standards for the proper reporting of obligations are found in section 1501(a) of title 31 of the United States Code. See also OMB Circular No. A-11. Antideficiency Act Federal law that •prohibits the making of expenditures or the incurring of obligations in advance of an appropriation; •prohibits the incurring of obligations or the making of expenditures in excess of amounts available in appropriation or fund accounts unless specifically authorized by law (31 U.S.C. § 1341(a)); •prohibits the acceptance of voluntary or personal services unless authorized by law (31 U.S.C. § 1342); •requires the Office of Management and Budget (OMB), via delegation from the President, to apportion appropriated funds and other budgetary resources for all executive branch agencies (31 U.S.C. § 1512); •requires a system of administrative controls within each agency (see 31 U.S.C. § 1514 for the administrative divisions established); •prohibits incurring any obligation or making any expenditure in excess of an apportionment or reapportionment or in excess of other subdivisions established pursuant to sections 1513 and 1514 of title 31 of the United States Code (31 U.S.C. § 1517); and •specifies penalties for deficiencies (see Antideficiency Act Violation). The act permits agencies to reserve funds (that is, withhold them from obligation) under certain circumstances. (See also Administrative Division or Subdivision of Funds; Antideficiency Act Violation; Apportionment; Budgetary Reserves; Deferral of Budget Authority; Deficiency Apportionment; Deficiency Appropriation; Terms and Definitions Page 12 GAO-05-734SP Budget Glossary Expenditure; Fund Accounting; Congressional Budget and Impoundment Control Act of 1994; Outlay.) Antideficiency Act Violation Occurs when one or more of the following happens: •overobligation or overexpenditure of an appropriation or fund account (31 U.S.C. § 1341(a)); •entering into a contract or making an obligation in advance of an appropriation, unless specifically authorized by law (31 U.S.C. § 1341(a)); •acceptance of voluntary service, unless authorized by law (31 U.S.C. § 1342); or •overobligation or overexpenditure of (1) an apportionment or reapportionment or (2) amounts permitted by the administrative control of funds regulations (31 U.S.C. § 1517(a)). Once it has been determined that there has been a violation of the Antideficiency Act, the agency head must report all relevant facts and a statement of actions taken to the President and Congress and submit a copy of the report to the Comptroller General. Penalties for Antideficiency Act violations include administrative discipline, such as suspension from duty without pay or removal from office. In addition, an officer or employee convicted of willfully and knowingly violating the law shall be fined not more than $5,000, imprisoned for not more than 2 years, or both (31 U.S.C. §§ 1349, 1350, 1518, and 1519). (See also Administrative Division or Subdivision of Funds; Antideficiency Act; Expenditure.)
  8. CS - Just in case you did not take Vern's hint you may want to take a look at FAR 32.703!
  9. Retreadfed - Sorry the statement is confusing. I have borrowed the quote below from the GAO decision I referenced to hopefully clarify. "Accordingly, the guaranteed minimum amount in an IDIQ contract must not only constitute sufficient consideration to make the contract binding, but also reflect the bona fide needs of the agency at the time of execution of the contract. B-318046, July 7, 2009." Due to such issues as limitation on funds (no year, one year, etc.) again I leave it to the OP's Fiscal folks and how they would counsel the OP on how to accomplish the award scenario that has be posed and still meet the conclusions of bona fide need and recording statute.
  10. Reference the following GAO decision and the GAO “Redbook” at Chapter 6 with regard to bona fide needs. https://www.gao.gov/products/C00513 for the GAO decision. Here is the link to the GAO Redbook http://www.wifcon.com/bonafidecontents.htm As noted you must “record” the minimum as an obligation. It then gets complicated from there depending on whether the available monies for the obligation are no year funds or otherwise, such as one year funds. Generally speaking a course for recording an IDIQ parent contract obligation and issuing an order that is obligated goes like this – IDIQ awarded. An obligation for the minimum is recorded. The parent IDIQ contract is the reference. The funds that are used must represent a bona fide need for the funds being used for this recording. IDIQ order is issued that accomplishes the minimum. The IDIQ parent recorded obligation is de-obligated and the recording of an obligation for the awarded order occurs and must represent a bona fide need for the products/services on the order. If no order is ever issued for parent IDIQ the recorded obligation remains on the books for the life of the parent IDIQ. If an order is issued that is less than the minimum then the parent IDIQ obligation is reduced to that amount that when added to the order represents the minimum. Example - Parent IDIQ minimum is $1000 and the $1000 is recorded. Order issued for $500 and obligates this amount. Parent IDIQ recorded obligation is reduced to $500. I would offer that the current data systems used by agencies probably make following this course very complicated, difficult or simply can not be followed. But back in the old stubby pencil days this is what happened. Under new systems many agencies try to accomplish these steps together as a work around– Award an IDIQ and issue a obligating order at the same time that accomplishes the minimum (might even be for more than the minimum) but as you can see with regard to the GAO decision and Redbook discussion this may be counter to the bona fides need rule and/or the “recording” statute. My suggestion with these thoughts in mind is that you contact your fiscal office to discuss the matter armed with the references I have provided and let them guide you.
  11. Truth Decay

    I was reminded of this thread yesterday when hauling horses.... bumper sticker on the pick-up in front of me..... "It does not require many words to speak the truth - Chief Joseph" (attributed to)
  12. Assessment of Actual Damages

    My thoughts that may help in your discussion with your lawyers. Under what remedy action do you intend to seek the “actual damages” you have indicated? I ask because the ability to seek such damages is usually connected to breach of contract. As you have described the scenario I am not quite sure if you have a breach as you have indicated that the contractor has been convinced to correct the defective work under the warranty clause, therefore the quick view is they have complied with the contract. Also the usual construction warranty clause 52.246-21 provides for only reasonable costs of repair and/or reduction in price but does not allow for most of the damages you have listed. Reference paragraph (c) of the FAR clause. The VAAR does not appear to provide a supplemental clause that would extend the right provided in the FAR clause. I would add that a whole read of the contract may provide for the ability to seek such damages but in my experience this seldom occurs as the Government typically just uses its prescribe clause(s) and nothing more. The view I have provided above is a general one and would point to Norfolk Shipbldg. and Drydock Corp., ASBCA No. 21560, as possible case law that may be applicable. This reference comes from various Government contract law desk guides or books. There may be other avenues as well under law to seek the damages but my experience is limited in these areas so I am sticking to contract remedies so to speak. Bonds – Did the contract include the requirement to include bonds? If so remember the Performance Bond is good for the period of warranty as well. While not a tool to seek the damages it is a tool that can be used to convince a contractor to perform warranty work or get the warranty work done otherwise. Reference the “Obligation” portion of the Standard Form 28. 52.246-21, again. Remember that work corrected under the warranty clause has an extended warranty of 1 year after the correction. Reference paragraph (d) of the clause. CPARS – The CPARS system allows for addendum to a final report to allow for recording performance pursuant to a warranty clause. Reference Section E, paragraph 5.3 of the Guidance for the Contractor Performance Assessment Reporting System (CPARS).
  13. CPAR Dispute Deadline

    http://www.asbca.mil/Decisions/2016/60367 Government Services Corp. 3.20.16.pdf Recent activity at the ASBCA that might, again might, lead further clarification of what a contractor can seek as relief.
  14. Sole Source Procurement

    Yes and as more comes out it gets odder!
  15. Sole Source Procurement

    Understand and appreciate Joel's reminder. Yet by all indications you are asking for an irrevocable offer which the PCO can accept unilaterally. The OFFER section of the SF-33 is the support not Block 4.
  16. Pat - I am in the corner of like it or leave it as to whether you want to seek the contract anticipated under the solicitation(s). My conclusion is based on the following thoughts and the limited information you have provided.– First, I have this feeling that the CLINS as you have described are not that much of departure of how one might structure them and provide for what needs to be verified to make payment. Using an example from the DFARS take a look at DFARS 204.71 and the PGI that support it. Noting the DFARS raises the question for me as to how many CLINS are there in the solicitations you are talking about? Many of the kit type solicitations I have seen carry both CLINS that have an actual quantity that are FFP and cost type CLINS. It is okay to have a mix in what would be viewed in total as FFP contract and my guess is that for some reason someone or some dang contract writing system has just put the terminology of FFP on the CLINS in question.
  17. Sole Source Procurement

    Yes. Your question goes beyond simply checking of the a block of the SF-33. Use of the SF-33 and the solicitations terms and conditions provide that the government is seeking a irrevocable offer from the offeror which the PCO can accept unilaterally if so inclined. I agree it would be strange to do so. Here is a discussion that while not exactly on point will give you some additional information about the ideal of an offer and its acceptance. You will have reinforcement that the offer you will receive is a irrevocable offer that the PCO can accept unilaterally if the solicitation includes FAR Clause 52.215-1 as well. PS - I was drafting this response prior to any other responses to your question and edited my response to coincide better with the responses already posted.
  18. GSA schedule contracts

    Yes, see FAR 8.402(a). Items can be added to a FSS order that might be non-commercial but see 8.402(f) as generally speaking doing so requires several steps/decision points regarding competition, set aside, etc. because such an item is considered to be "open market".
  19. CPAR Dispute Deadline

    The Contract Disputes Act (CDA) has been reasoned to apply to disputes with regard to CPARs evaluations and so the 6 years may apply. Beyond that I would suggest a contractor seek expert advice with regard to effort of disputing both under the administrative allowance of FAR part 42 and use of the CDA, if CDA is intended to be pursued, as details count and what relief is allowed can be confusing.
  20. What laws apply to the US. Mint?

    Ah hah.....that's it after I have put in all this time and even came back! In order of your questions. It does have to do with "rules" which you said not any apply. Nope, didn't ask as don't care, the question as to whether DTAP applies has been answered. I have answered this and you agreed with the answer so why repeat the question again. You are the one hung up on the ideal that the whole of the DTAP must apply or none of it does so I will leave it to you to ask. My only thought is well I guess it operates like the FAR guiding principles to an extent, it applies when it applies and does not when it does not. You bet it has limitations, it almost says it in its language, and I for one think that I could part and parcel the DTAP to determine when it would apply to a procurement that I am conducting and when it does not. My basis is that a publically available rule does exist under the plain meaning of the term. Didn't you read my post of Monday at 10:26am? As to the USC references two thoughts. First, are you now wanting to talk Constitution, when before you did not? I am confused. Secondly, my read of 5 USC 602(2) suggests that you have overlooked this "the term “rule” means any rule for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of this title, (emphasis added) wherein 553(b) provides and I quote - "Except when notice or hearing is required by statute, this subsection does not apply—(A)to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or(B)when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." (emphasis added) Did you find such a notice or statute that that the DTAP as a policy is required to be published? I answered this question why keep repeating it? I know you won't accept it, enough already. I apologized, like it as it was provided or not, your choice not mine.
  21. What laws apply to the US. Mint?

    Well I see you are not done at trying to discourage my participation in the discussion because I just can't learn! Still more. I will really enjoy adding careless to my resume now! What I said was what appeared to me to be the case. That statement was true then and now. It still appears that way to me. Oh for Pete's sake. So by example a contractor could not file a protest direct with the US Mint? Reference - DTAP 1033.103. This statement (above) is the very reason I continue to repeat myself. Your edited post of 1/14/2018 reads as follows in full - None. The Mint is statutorily exempt from "all" federal procurement laws and regulations. See A-Z Cleaning Solutions, GAO B-415228, November 6, 2017. They have published no rules of their own in the Federal Register. They probably have internal procedures. If they have, they apparently are not making them available to the public. The first sentence of FAR 1.101 is a lie. The question of the OP is "What rules do?" and you said None or in other words not any. Supporting that one rule - GAO - does not is not supporting not any. Now by our posts after your response, but most especially yours, inclusive of your last, supports that rules of law and regulation do and you want to quibble that you were not talking about the "Constitution", actual and prospective contractors, etc. As I posed before (no apology for the repeat) just think if the thread ended with your post as quoted above? Just say'n. Agreed. To your points - A prospective contractor has the right of protest to the agency. DTAP reference already provided. With regard to the DTAP and your further effort to disclaim it as a rule my position is clear but I do believe you are missing a valuable point that comes from the Slattery case and that point being as quoted from the case - "The jurisdictional criterion is not how the government entity is funded or its obligation met but whether the government entity was acting on behalf of the government." It remains untried with regard to a protest yet but I would pose that as the DTAP is followed by the US Mint in performing procurements it could be depended on to show that the US Mint was/is acting on behalf of the government. So I agree it depends. But to the to the point of - it depends - it is an operative position in much of FAR conducted procurements too as contracting no matter how or who is conducting it is not black and white. Effort appreciated, Carl PS - In my efforts of researching the full discussion of this thread I reached out to a US Mint CO with regard to whether the DTAP applies to procurements of the US Mint. The answer was that it does and that it is followed to the "maximum extent practical." As reference DTAP 1001.601 was provided.
  22. What laws apply to the US. Mint?

    I have looked at multiple references with regard to NAFI and feel I understand the distinction - Tucker Act versus CDA. I brought in NAFI because you said this. With no distinction regarding CDA. So in total your arguments have be none and then edited and then any and now.... True statement or not true statement? Not any rights are available to a prospective contractor or actual contractor to the U.S. Mint with regard to the Mint's conduct of their procurements.
  23. What laws apply to the US. Mint?

    Vern - Yep, glutton for punishment. I do appreciate the opportunity to respond further. To your points in your edited post– As I have provided there is both law and rule that do apply to the US Mint. They may not provide the detail the OP is hoping for yet there is law that as we have both repeated being that Federal laws governing Federal procurement or public contract is not applicable to the US Mint. To say not any laws apply is not in keeping with the fact that 31 U.S.C. § 5136 exists and does apply to the US Mint. As to a rule I have maintained and will maintain that the DTAP is a rule and does apply to the US Mint. As I further provided as a result of the effort I put into researching the top of this thread another rule also applies to the US Mint and that is of a legal doctrine – the “NAFI doctrine.” To your most recent post and the view that I have casually ignored elements of the DTAP I offer you too seem to ignore the whole of the DTAP. As based on your arguments regarding of the DTAP being not applicable for the US Mint then one would also conclude that delegations of procurement authority are not applicable to US Mint employees who contract for products or services, the Director the Mint has no authority to award and administer contracts, and there is no unique or non-unique considerations to be made with regard to US Mint procurements. Said generally through an explicit quote from the DTAP it adopts guiding principles that do not always provide the imperative but provides that “The FAR, DTAR, and the supplemental DTAP are to be construed liberally to achieve optimum benefit and maximum value for all Treasury acquisitions, and subsequent actions pursuant thereto should be consistent with statutory and regulatory requirements, policy, and sound business judgment. It is disconcerting to me for something like 45 years I have put great value in your thoughts, guidance, and opinion only be summarily and with routine to be attacked with statements about my personal attributes as opposed to simply sticking to the debate. Pardon me but I do not, and I am not, nor do I present a “pile of lard” and or “stupid”. Your intent to discourage my participation in this thread and the WIFCON Forum is for me far less compelling than my personal resolve to stand my ground on views I have presented and be an active participant. So as clearly stated more than once let me know when you find that Treasury provides that their DTAP is not applicable to the US Mint until then I apologize for upsetting you in my attempt to make honest and researched arguments as to why stating that not any laws or rules apply to the US Mint could be confusing to one that simple reads the thread if it ended with your “None” statement. Most and Always Respectfully, Carl
  24. My thought is that there is no opportunity to waive when you consider the supporting USC as its wording unlike the Miller Act provides no language for waiver - reference 40 U.S. Code § 3132. Seems payment protection "shall" be selected from those available. Saying this as first thought was that a individual deviation might be an option but FAR 1.402 appears to preclude the option on the fact that the requirement of 40 U.S. Code § 3132. But then again there is the wiggle room of 1.402 as well. Just my read anyway......
  25. What laws apply to the US. Mint?

    Vern Edwards – Oh for goodness sake. Remember my “done” carried a caveat and that was leave it to others to make up their own minds. And this says the same thing by my read…. This is the very reason I said I am done. You had your say I had mine, that’s it. I just do not get how I am the bad guy when you edit your posts, tell me stuff like “I won’t respond to you” and “done” in previous posts you make and when the shoe is on the other foot you whine. Get over it.