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C Culham

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Everything posted by C Culham

  1. 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......
  2. 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.
  3. What laws apply to the US. Mint?

    Vern Edwards – Thank you. Interesting conclusions but to an extent I do not think they balance with the whole of what has been litigated with regard to the “NAFI Doctrine”. Yep a new term for me, only found it as I continued to think about this discussion. I have not concluded that the DTAP does not apply after reading through some of the many references I have found, noting only that once a contractor has a dispute or protest involving the US Mint they are in for quite a ride. Otherwise I am done with this discussion thread and will leave it others to draw their own conclusions. “NAFI Doctrine - 76. Nonappropriated Fund Instrumentality Claims A nonappropriated fund instrumentality (NAFI) is an entity to which Congress has appropriated no funds, and for which it assumes no financial obligation. See Standard Oil Co. v. Johnson, 316 U.S. 481, 485 (1942). NAFIs include military post exchanges and officers clubs. Slattery v. United States, 635 F.3d 1298, 1304 (Fed. Cir. 2011) (en banc). Although a Government entity's status as a NAFI used to be a bar to jurisdiction over contract disputes under the Tucker Act, the jurisdictional criterion no longer is how the entity is funded, but whether it was acting on behalf of the Government. Id. at 1301.” (Reference: https://www.justice.gov/usam/civil-resource-manual-76-nonappropriated-fund-instrumentality-claims) Some additional references with a whole bunch more available via internet search. I might add that there is even coverage to an extent in the GAO Redbook. Slattery v. United States, 635 F.3d 1298, 1300 (Fed. Cir. 2011) (en banc). (This appears to be an important change to the NAFI doctrine especially if the US Supreme court has not overturned it as in general it concludes that a NAFI acting on behalf of the Government is not immune unless specific statute so states. AINS, Inc. v. United States, 365 F.3d 1333, 1344 (Fed. Cir. 2004). (This case by my read was the general holding prior to Slattery.)
  4. What laws apply to the US. Mint?

    Help me understand your logic. Isn't 41 USC 1707 a "provisions of law governing procurement or public contracts" and as such, pursuant to 31 U.S.C. § 5136, it is not applicable to the U.S. Mint. In fact none of 41 USC would be applicable would it? Or in other words if Treasury/U.S. Mint wants to adopt anything out of the FAR and DTAR as their rule (policy) for doing procurements they could. I do understand that they might run up against the likes of GAO (and others) as noted because an entity like GAO would exclude themselves from helping with protests for lack of jurisdiction pursuant to laws and regulations applicable to them.
  5. What laws apply to the US. Mint?

    Absolutely nothing. I might ask the same back to you but I won't. Again I only offering my research that supports that the DTAP does apply to the Mint. I did scan the DTAP and it says this "The DTAP applies to all acquisitions of supplies and services involving the obligation of appropriated or non-appropriated funds." Again I will retract if it is found that my conclusion that DTAP applies to procurements of the US Mint is wrong. That easy!
  6. What laws apply to the US. Mint?

    Vern Edwards - Nope. You did and continue to do so. Why? Heck I do not know. None, really? Rule (emphasis added) - "1. An established standard, guide, or regulation; a principle or regulation set up by authority, prescribing or directing action or forbearance; as, the rules of a legislative body, of a company, court, public office, of the law, of ethics" (Blacks Online Dictionary) There are no regulations but there are "rules" its the DTAP, it may be stupid, they are available to the public yet it is the rule until you convince me otherwise. So you are piling the lard not me. Feel free to keep it up and we will measure piles when you are done!
  7. What laws apply to the US. Mint?

    Vern Edwards - What does the GAO decision have to do with it? I already provided that the U.S. Mint is not subject to the FAR. I guess you didn't believe me but thanks for supporting that the Mint is not subject to the FAR. Again I provided that Federal law states that - "Provided further, That provisions of law governing procurement or public contracts shall not be applicable to the procurement of goods or services necessary for carrying out Mint programs and operations." It is clear from this citation of the CFR that the FAR and TDAR as related to the FAR are not imperative to the US Mint . I repeat however that it is clear that DTAP as a policy does apply to the US Mint as the forward to the document says it does because the US Mint uses non-appropriated funds. Until you provide a specific statement that the DTAP does not apply I stand by my conclusion that it does and as such that DTAP is published for the public to review. Further - Yep that is correct and the DTAP even acknowledges that the DTAP is not codified yet is binding onTreasury bureaus. DTAP quote (emphasis added)- "The contents of the DTAP are intended to provide binding internal, non-codified acquisition policy and procedure to various Treasury procurement bureaus." The OP also asked this question - The answer is two fold - read the solicitations that the US Mint posts on FBO and ask the contracting specialist at the US Mint. Well you did say "None" and your post still shows it. This is notwithstanding that you have edited the post anyway after I posted. I am not going to play this stupid game again as that is your routine. My references are not misleading they are fact, my conclusions are based on the facts, and my posts are unedited. Let me know when you find a written official affirmation that the DTAP does not apply to the US Mint and then I might reconsider until then post away, edit away.
  8. What laws apply to the US. Mint?

    In my view the response of "None" is very misleading. While the OP has raised one question the OP has also made a statement that is mis-leading. That statement being - There is Federal law applicable to the U.S. Mint and its acquisition and that is 31 U.S.C. § 5136, which states clearly - Provided further, That provisions of law governing procurement or public contracts shall not be applicable to the procurement of goods or services necessary for carrying out Mint programs and operations. So while the Federal Acquisition Regulation System does apply the requirements of the statutory language of Numismatic Public Enterprise Fund (31 USC 5134), which is a non-appropriated fund, places the responsibility on the Department of Treasury to put into place policy for the U.S. Mint to operate within with regard to the Fund. As noted the DTAP (see reference above) has been published by the Treasury Department and is applicable to the U.S. Mint and can be found publically available here - https://www.treasury.gov/about/organizational-structure/offices/Mgt/Pages/ProcurementPolicy-Regulations.aspx. Quoted from the DTAP's Forward - "The DTAP applies to all acquisitions of supplies and services involving the obligation of appropriated or non-appropriated funds." FAR 1.101 might be misleading yet the entirety of FAR 1. is clear, most especially, FAR 1.104 noting further that FAR part 2 defines an "Acquisition" as“ "the acquiring by contract with appropriated funds" The U.S. Mint does not operate with appropriated funds but rather through the Fund .
  9. What laws apply to the US. Mint?

    So have you considered the Department of Treasury Acquisition Procedure? https://www.treasury.gov/about/organizational-structure/offices/Mgt/Documents/DTAP_FY18_edition_version 1.pdf
  10. Mod Awarded in Error

    Did you think about issuing another modification to change the amount of time extension allowed in the first modification. In other words I do not get why you have reached the conclusion that canceling the mod is the final option to solve the issue of granting the time extension in the first place?
  11. Joel - From my view no it is not the same. If you want something in a FAR UCF solicitation to be a part of a FAR UCF contract then you "shall" place that in another Section other than "L". I would suggest that it would go in "H". For non-UCF use any concept that you want to make up. I believe the FAR is clear on this. As to answering the OP's question I agree if the OP's question relates to a FAR part 15 solicitation/solicitation contract that follows the UCF the question is answered. If it is non-UCF solicitation contract no one can answer the question without reading the made up solicitation/contract as it relates to whatever made up format it is in.
  12. Hopefully this thread is not going to confuse the masses because it is a mix of concepts for 1) a solicitation/contract when using the Uniform Contract Format (UCF) and 2) for a non-UCF solicitation/contract. For a UCF solicitation/contract the FAR is clear at 15.204 that when using the UCF “shall” is the controlling imperative. Specific to what shall be in Section L it is clear, and one could conclude, that anything other than what is demanded for the Section is a deviation from the FAR. Also it is concluded that if there is is something that you want in the awarded contract one should place that need somewhere other than Section L. 15.204-5 -- Part IV -- Representations and Instructions. The contracting officer shall prepare the representations and instructions as follows:……. (b) Section L, Instructions, conditions, and notices to offerors or respondents. Insert in this section solicitation provisions and other information and instructions not required elsewhere (emphasis added) to guide offerors or respondents in preparing proposals or responses to requests for information. Prospective offerors or respondents may be instructed to submit proposals or information in a specific format or severable parts to facilitate evaluation. The instructions may specify further organization of proposal or response parts, such as…. For formats using other than UCF anything can be done but should be stated. To confuse concepts of the UCF as directed by the FAR with non-UCF concepts that are made up for each solicitation/contract without adequate definitive language is foolish as it confuses even the most experienced in Federal contracting.
  13. With the progression of this discussion I am reminded of the FAR guidance if the acquisition in question is for a commercial item or service where commercial marketplace practices are encouraged (FAR 12.213 and FAR 12.302 especially at (c)). I could see where a bailment might be a way to approach the need of the laptop. As already noted adding by a modification based on all the considerations noted seems the most reasonable, expedient and less debated route.
  14. I I do not know the details of the Governments contract, nor do I want to ask a bunch of questions that finally bleed out all the information about the OP's situation and the OP's contract. But I will say this....what if, again only a "what if", the contract is for the development of an exhibit/presentation for tradeshows and now the Government rather than providing GFP wants the contractor to provide because the Governments processes for buying the laptop are too darn complicated. Lets do the whole emphasis and add "AND TO WHICH THE GOVERNMENT HAS TITLE." And let me add emphasis that can only add the context and information needed by the OP to determine whether the request is legit - ASK THE CO!
  15. I agree that the situation as painted does sound fishy. Consider the following along with responses already received - Contractor Acquired Property is allowed within federal government contracting. FAR Part 45 addresses this broadly at FAR subpart 45.4 and agency FAR supplements give a little guidance as well. If the CAP is not already included in the contract, the contract could be modified to include it. Determination by a contractor that CAP is improper becomes a very detailed issue, it even takes an agency in some cases a lot of research to determine if it could include CAP in a contract (appropriation law, ADP equipment approvals and certifications, etc.). Want to explore how the request you have gotten could be framed by the government as something proper within the contract requirements do both an internet and WIFCON search on "Contractor Acquired Property". In the end if the inquiry was not made by the Contracting Officer, or an authorized representative of the Contracting Office (example - Contracting Officers Representative) your question might be better posed to one or both of the individuals filling these authorized positions for your contract.
  16. No HUD appears to have concluded through the regulatory process to have the GTR be the go to person for both administration of contracts FAR and grants and cooperative agreements. 24 CFR 115.100 “Government Technical Representative (GTR) means the HUD staff person who is responsible for the technical administration of the FHAP grant, the evaluation of performance under the FHAP grant, the acceptance of technical reports or projects, the approval of payments, and other such specific responsibilities as may be stipulated in the FHAP grant.” I wonder how HUD adequately demonstrated how the change of COR to GTR is necessary to implementing the FAR specific to the needs within HUD FAR 1.302 -- Limitations. Agency acquisition regulations shall be limited to -- (a) Those necessary to implement FAR policies and procedures within the agency; and (b) Additional policies, procedures, solicitation provisions, or contract clauses that supplement the FAR to satisfy the specific needs of the agency. In the end HUD seems to admit that their use of GTR is inconsistent with the FAR but what the heck! Reference - see the definition of COTR in this document ----- http://afgecouncil222.com/B/8fac-cotrart5.pdf
  17. Bob - I may not be following correctly but these thoughts occurred to me as I continue to read this thread. 1. The determination of "detrimental effect" might include research of implied authority as in did a certain title other than COR lead to an implied authority issue. 2. I do wonder if clarification of actual authority through statute, regulation and case law has refined the view expressed in the 1927 decision noted and in effect circles back to the ideal that wouldn't it be nice if everyone called a person with contractual authority (with whatever stated limits) simply a "Contracting Officer". Whether such ideal would prevent conflicts arising or related to a contract is the question and it seems it hasn't to date so probably never will.
  18. "Rough Fish" is the more desirable term. Yet a fish by any other name is still a fish.
  19. Bob Can't say that I have swallowed your logic hook, line and sinker, but you have lured me in. As in most cases CARP require no license to engage with would your new acronym also require a certification or could they just swim on their own? GAR was a throw back (catch and release) so I am concerned that CARP may be looked at the same.
  20. IDIQ VS. Requirements

    True but I have seen an approach where "one contractor" is awarded the requirement for this geographic area or other defined location (building?) and another "one contractor" is awarded the requirement for the other geographic area or location. In essence multiple requirements contracts potentially for the same service but that have a delineation that the contractor only gets the requirement based on specifics that separate the delivery location out from being the same requirement delivered somewhere else. More of pain, who knows but I have seen it done.
  21. Oh what a tangled web we weave and should be support to bob that while he and even the FAR attempted to standardize the term Contracting Officer Representative such an attempt within the Federal government will never happen. Good, bad, indifferent who knows but as this thread indicates its not what the title is, it is the authority formally vested in someone that would count in the end. As to USDA, based on experience the term GAR was/is used by the USDA-Forest Service in documents such as specifications published by the agency for road construction and the like. GAR was a catch all term for a inspector rather than a COR. By example a 2014 standard road specification for the Eldorado National Forest - https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd556548.pdf . Other thoughts on GAR – USDOL Office of the Assistant Secretary for Administration and Management (OASAM), Procurement Related Department of Labor Management Series (dlms), Chapter 870 which is no longer in print. Government authorized representative (GAR) is the program manager designated by the contracting or grant officer to act as the contracting or grant officer's representative in overseeing technical performance and providing liaison between the contractor or recipient and the DOL. (In the various Agencies of the DOL, the GAR may also be called the "project officer", "contracting officer's representative (COR) ," "contracting officer's technical representative (COTR) ," or "Federal Representative (FR)."). And now the DOLAR at part 2902 - Contracting Officer's Technical Representative means the individual appointed by the contracting officer to represent the Department of Labor's programmatic interests on a Department of Labor contract, task order, or delivery order. This individual is responsible to the contracting officer for overseeing receipt and acceptance of goods/services by the Government, reporting on the contractor's performance, and approving/disapproving payment to the contractor. Authority is otherwise limited to giving technical direction to the contractor within the framework of the contract (see 2901.603-71). This position may go by other titles, such as: a technical point of contact (TPOC) or Contacting Officer's Representative (COR).
  22. Multiple CORs

    You may want to review your agency’s FAR supplement and other policy documents regarding COR assignment to refine your idea. Here is one example where multiple COR’s is discussed. http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/af_afmc/affars/MP5301.602-2(d).htm
  23. bob - I am taking the easy route with little research other than that which I can lay my hands on quickly. See FAR part 2 which at some point included the definition of COR. I did not wade through all supplements but the DoD carried the definition forward in the DFARS at part 202. DHHS also carries the COR definition in HHSAR at part 302. Interestingly in the HUDAR at part 2402 HUD retained the GTR to mean the COR. As note I did not do the research to go back and see when this definition was added to the FAR. FAI then reinforced the title COR, at least for the civilian side with this 2011 memo on certification - https://www.fai.gov/drupal/pdfs/FAC-COR_20Sep2011.pdf Edit - I also just ran across this in doing some additional research, which is one DoD agency's take on the use of the COR term. From the "Army Sustainment Command Contracting Officers Representative (COR) Handbook" at page 11. "Personnel appointed by the Contracting Officer to assist in contract administration shall be identified as a Contracting Officer Representative (COR). No other title is authorized by ASC."
  24. Escalation Rates

    Thanks but still slightly confused. Are you saying that since it is commercial item that SCA does not apply or is it both commercial item for a service where SCA does not apply? Otherwise you might to take a look at this previous discussion thread....
  25. Escalation Rates

    So.... Solicitation for a FFP contract with option period(s), correct? Work is a service when labor rates and hours is the driving factor for pricing the work, correct? Service Contract Labor Standard wage determination in solicitation and resulting contract , correct? If all answers are yes then it would seem that contract clause 52.222-43 "shall" be in the solicitation/contract. I am confused why you would also add an escalation rate to the contract as it would seem that 52.222-43 is the allowed escalation clause per the FAR with regard to labor rates? Also confused as to why labor hours might escalate if a FFP contract. I could see where their proposal might indicate why their price is effected by their proposed approach for an option period if they feel their hours will escalate but again still confused why you propose a set escalation in hours? Isn't that left to the contractor under a FFP contract as to how they plan to approach the work?
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