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C Culham

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Everything posted by C Culham

  1. Vern – Your thinking to get to the conclusion to include the clause 52.224-2 in subcontracts of the prime is understood with but my read is that 44.402 is less than clear and inconsistent with its own direction. As such I believe, in a departure with your view, that 52.224-2 is to be flowed down as a contract obligation. Policy as stated in 44.402(a)(ii) is subcontractors shall not be required to apply any clause to their subcontracts except those “(i) Required to implement provisions of law or executive orders applicable to subcontractors furnishing commercial items or commercial components” . FAR 52.224-2 is required by law when applicable and is not simply an agency unique requirement yet 52.244-6 does not include it. I find it inconsistent with FAR stated policy at 44.402 and by direction of 52.244-6 that 52.224-3, inclusive of it’s Alt 1, is to be flowed down “when” contractor employees have access, create, design a system that includes privacy information but 52.224-2 is not. I do understand the whole of this thread so there is no need to go further, it is just my opinion as to the obligation of the prime to include a clause such as 52.224-2. Another such clause is 52.223-18. As such I am not as confident as you and others in this thread that the meaning of 52.244-6 is a clear contract clause in putting forth the policy stated in FAR 44.402. That's it.
  2. 1. No 5. Yes 6. Yes 7. No 52.224-2 is in the contract as a separate clause
  3. If I have read correctly conclusions of this thread is that DCMA may not be doing an adequate job of understanding and providing advice on implementation of the FAR with regard to clauses and contractors should know and understand the FAR in the conduct of government business. Raised as well is whether the FAR in and of itself provides less than adequate and clear advice on the specific matter of flow down of clauses to subcontracts for commercial items/components. As illustration of the latter consider the wording in FAR 52.224-2 Privacy Act at paragraph (a)(3) and balancing the Privacy Act clause with FAR 52.244-6,especially that at paragraph (d), and the language of FAR 44.402(b)? FAR 52.224(a)(3)....... Include this clause, including this subparagraph (3), in all subcontracts awarded under this contract which requires the design, development, or operation of such a system of records. Shall a prime contractor include or not include FAR 52.224-2 in all subcontracts or not?
  4. Unreasonable Price

    Vern - I agree yet I am trying to understand the comment? Are you saying that "complex"ity of the work determines whether the supply, service, or construction project's price is fair and reasonable? I am probably not getting it but I thought the discussion of this thread was what approach to looking at an offer - objective and subjective - might apply with regard to determining fair and reasonable price?
  5. Unreasonable Price

    I would agree. My view may be too narrow whereby I have not dedicated a lot of time to thinking about the matter. But my conclusion is based on this. Consider an award of of a simplified acquisition based solely on price, or a sealed bid.
  6. Questions Regarding Net-60 Payment Terms

    A couple of links that you might find helpful………for the first link go to the menu on the left had side and go to "Prompt Payment". For the second link do a search of the document on "60" for discussion about the cost of money. https://www.fiscal.treasury.gov/fsservices/gov/pmt/payments_home.htm https://www.asaonline.com/eweb/tcc/TCCJan2015/tcc_2015_Jan.pdf
  7. competitor not performing

    I agree with Gordon Shumway. Additionally there might be legal options for a competitor who was not the successful offeror in a competition but would the legal arguments be made on sound facts. In some cases where there is smoke there is fire but in others, which I might suggest are in the majority based on first hand experience, the word coming back could very well be without basis. Move along and concentrate on being successful on the next competition!
  8. Set up the two BPA’s, that simple. – REF: FAR 13.303-2 Each need over the micro purchase level is then competed amongst the two BPA holders and if you think the BPA’s DO NOT provide for adequate competition for a particular call then you follow FAR Part 5. REF: FAR 13.303-5(d) Absent other information and if “with only two local firms that do this sort of repair work.” is in fact a very limiting factor on getting other competition it might be true that every time you have a need and competing with the two firms is adequate competition. Only other thought would be doing a “Sources Sought” synopsis to assure yourself that the 2 firms are the only game in town. If you find additional firms then you could have more BPAs if you very that there are no other firms it will support that the 2 firms are the only game in town and the adequate competition policy.
  9. Increasing Rights in Software--> In-scope Change?

    Onix Networking Corporation B-411841: Nov 9, 2015 "In determining whether a modification is outside the scope of an underlying contract (or in this case, a delivery order), our Office considers whether there is a material difference between the modification and the contract. DynCorp Int’l LLC, B-402349, Mar. 15, 2010, 2010 CPD ¶ 59 at 6; MCI Telecomms. Corp., supra. Evidence of a material difference is found by reviewing the circumstances attending the procurement that originally was conducted, examining any changes in the type of work, performance period, or costs between the contract as awarded and as modified, and considering whether the original solicitation adequately advised offerors of the potential for the type of work contemplated by the modification. See Anteon Corp., B-293523, B-293523.2, Mar. 29, 2004, 2004 CPD ¶ 51 at 5. The overall inquiry is whether the modification is of a nature that potential offerors reasonably would have anticipated competing for the goods or services being acquired through issuance of the modification. Id." Found in an array of decision found here - http://www.wifcon.com/pd6_001.htm Seems I am convinced too. As Joel has said go for it!
  10. Generally speaking the agency would have to refer for a COC however details count so you might want to read the cases in this area of WIFCON. http://www.wifcon.com/pd19_6022.htm Is this the reference you noted? https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2015cv1550-35-0 If so my read of the of the decision is a little different than yours as it relates to the COC. My read is that is was concluded by the court that the agency was proper in referring Enviroworks for a COC where another contractor Lawson thought they should not be and in so doing a COC was granted even though it might be concluded that Enviroworks key personnel did not meet the pass/fail test. Yes I guess the situation could occur. But my view is that it is a double edge sword so to speak. If I was the contractor left in competitive range I would be happy if such a situation occurred, if I was the contractor that was eliminated, well I would be unhappy if I knew the situation to be factual true, but proving it to be factually true to the point where I would protest would difficult I would think. Seems the above noted COFC case demonstrates how hard it would be to prove. PS - Bob just beat me to the punch on the WIFCON reference but since I went to the effort to type this up I am posting anyway.......
  11. I think this previous discussion will help........
  12. Superior knowledge

    rsenn - Are you sure? From experience of being a CO on a variety of service contracts or involved in others from tree planting , janitorial, commercial laundry, to a nationwide IT support some how your quote does not ring true to me. From my view the Government describes work to be done or now days the end result expected and the contractor develops the labor mix they feel will accomplish the work or in other words develops the labor category descriptions they expect. Hopefully the contractor uses the most current Service Contract Directory of Occupations to assist so the employees are properly categorized in the appropriate SCA wage occupation for the work they will be performing. By simple example the company running a nursery for the Government hires what they call a "forestry technician" but that position is truly doing what the Directory calls a "tree planter, mechanical" and hopefully the contractor is paying at that rate (or more). A successor contractor then decides not as many tree planters, mechanical are needed but intends to use "tree planters" (more of them probably) and makes offers to the incumbent employees to work at a lessor rate on the same contract, running the nursery. To me a simple example to my aforementioned "Also the new contractors approach to the service may actually have less staffing", or different staffing approach, so I get lost in how the superior knowledge applies. It would seem the contractor has the superior knowledge of how they intend to perform the work. Using my example it would seem to me that the only way your position would be supported is if the solicitation were to specifically state that a contractor must have X number of "tree planters, mechanical " to perform the work. In this new world of performance based contracting I would think such a situation would be rare. But again that is just how I see it. Hope this helps.
  13. So from a different angle with no history research done on the clause. While Federal government contracts are with a contractor and not its employees United States Federal contracting labor laws clearly are intended to protect the rights of contractor employees. By example FAR 52.222-43 allows for the adjustment you are concerned with if the contract is performed in the United States. The ingrained protection for the worker is that if they are not paid the proper SCA stipulated wage and benefit after the contractor is subject to the wage/benefit adjustment and verifies that they need a contract adjustment allowed by the clause the worker can file a claim with the DOL. Bottom line from my quick review of the questioned clause and application of what would happen in the United States, Federal contracting regulations are not quite as concerned about worker protections for contracts performed outside the United States.
  14. Did you read through these before posting your questions? http://www.wifcon.com/pd15_305.htm Does FAR 52.215-1 include Alternate No. 1? Did you read FAR 15.307?
  15. Superior knowledge

    I agree with the conclusion that it is not a matter of superior knowledge. I would add that FAR subpart 22.12, and Its supporting EO also provide a benefit to the government in that use of predecessor employees could be concluded as being efficient. The government should be concerned in the process of solicitation of the need that the incumbent does not start robbing (my term) employees in the preceding period to possible new contract to shelter them from the requirement of first right to a possible new contractor. Also the new contractors approach to the service may actually have less staffing. So might the incumbent for that matter. All in all in my view since there are so many considerations for each contractor to make as well as the government I just don't see how superior knowledge fits.
  16. R&D contracting

    Another possible place to gain assistance, especially if your pen name gives away your agency, is to keep within the civilian side and an agency of the USDA and visit with the folks at USDA-ARS as it is my experience that they have quite a bit going on in the research side. Been a while but I did find this possible starting point for you..... https://www.afm.ars.usda.gov/aboutafm/apd/
  17. FrankJon - Noting the quoted fact I am at an impasse in trying to provide my thoughts absent what the language is in the BPA's about selecting contractors for Calls. I will say I am concerned you might be trying to use an innovative process when something else is already stated in the BPA's as to what the process should be.
  18. I am going to only address your specific example. By my read you are contemplating multiple GSA-FSS BPA’s and the intent is to place a process the BPA's to fairly consider quotes to award a call against the BPA’s. Also assuming that your anticipated Calls will be in excess of the SAT. With this in mind your proposed approach is way beyond FAR 8.405-3(c)(2)(iii)(A)(3) in my view which simply says this (emphasis added)… “(3) Fairly consider all responses received and make award in accordance with the selection procedures.” I applaud your attempt to think of applying an innovative idea but quite honestly you have much more leeway to “utilize an evaluation scheme that is more streamlined, intuitive, and flexible than trade-offs” already. You just need to fairly consider the quotes you would get to finalize the call. So what do you need to do to fairly consider the quotes? Well you could use your approach but it in my view does attempt to utilize a process that is almost like FAR Part 15. You use words like factor, pass/fail and risk suggest this. Instead of your approach why not this…. Go here… http://www.wifcon.com/discussion/index.php?/topic/3940-quotes-vs-proposals/ ….read the thread and then think about the post Napolik made on April 11 and consider how you might easily convert the ideal into a fairly considering quotes for the Call and how you might state selection process in the BPA's.
  19. I could guess but it makes more sense to me to ask the CO the basis of the letter and your view of it's inconsistency with the solicitation.
  20. Commercial Service

    And as an add on I would note that a search of GSA FSS contracts, which are commercial item acquisitions, lists advisory and assistance services as being available under said contracts. You may not have to invent the wheel to get to a commercial item determination.
  21. Commercial Service

    Krusem - As you research the idea of A&A as a Performance Based acquisition if you have not visited these references you may find them of help in your quest. https://www.acquisition.gov/seven_steps/library/RAND_ImplementingPBSA.pdf
  22. Commercial Service

    Your need if determined to be A&A, as supported by market research could also meet the definition of commercial item of FAR Part 2, noting that your contract type will play a role as well. If your need does then using entities off of GSA FSS or use of simplified acquisition procedures could be great options. Routes you may already be aware of, just mentioning due to the title of your post and the above quote from details of your post.
  23. Ratification Authority

    I wonder if the Guiding Principles are based on sound logic and are not really as messy as they have been made out to be in this thread? http://www.cbca.gsa.gov/files/decisions/2010/HYATT_06-15-2010_1165__ENGAGE_LEARNING_INC_508.pdf http://www.cbca.gsa.gov/files/decisions/2016/POLLACK_03-31-16_2294__AMERICOM_GOVERNMENT_SERVICES_INC.pdf
  24. Ratification Authority

    Joel - Actually the FAR says this - "The Government’s policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim." Not this So are you saying that a person who lacks authority and makes an unauthorized commitment has made a contract? If so why have ratification at all? For Contract Disputes to kick in you must have a "contractual issue" shouldn't you?
  25. Ratification Authority

    The above quote does not see congruent with the DFARS. Likewise the easy peasy is now becoming more messy pesi. Sounds like all the documentation that is being proposed like writing a letter, asking now for two certifications, or is it just one, is tantamount to doing a request for ratification? I already did the ratification request and got it approved and issued the modification by the time I waded through letters, certifications, etc. Just saying but like Vern I will let others be the judge. 243.204-71 Certification of requests for equitable adjustment. (a) A request for equitable adjustment to contract terms that exceeds the simplified acquisition threshold may not be paid unless the contractor certifies the request in accordance with the clause at 252.243-7002. (b) To determine if the dollar threshold for requiring certification is met, add together the absolute value of each cost increase and each cost decrease. See PGI 243.204-71(b) for an example. (c) The certification required by 10 U.S.C. 2410(a), as implemented in the clause at 252.243-7002, is different from the certification required by 41 U.S.C. 7103, Disputes. If the contractor has certified a request for equitable adjustment in accordance with 10 U.S.C. 2410(a), and desires to convert the request to a claim under the Contract Disputes statute, the contractor shall certify the claim in accordance with FAR subpart 33.2. 252.243-7002 Requests for Equitable Adjustment. As prescribed in 243.205-71, use the following clause: REQUESTS FOR EQUITABLE ADJUSTMENT (DEC 2012) (a) The amount of any request for equitable adjustment to contract terms shall accurately reflect the contract adjustment for which the Contractor believes the Government is liable. The request shall include only costs for performing the change, and shall not include any costs that already have been reimbursed or that have been separately claimed. All indirect costs included in the request shall be properly allocable to the change in accordance with applicable acquisition regulations. (b) In accordance with 10 U.S.C. 2410(a), any request for equitable adjustment to contract terms that exceeds the simplified acquisition threshold shall bear, at the time of submission, the following certificate executed by an individual authorized to certify the request on behalf of the Contractor: I certify that the request is made in good faith, and that the supporting data are accurate and complete to the best of my knowledge and belief. (Official’s Name) (Title) (c) The certification in paragraph (b) of this clause requires full disclosure of all relevant facts, including¾ (1) Certified cost or pricing data, if required, in accordance with subsection 15.403-4 of the Federal Acquisition Regulation (FAR); and (2) Data other than certified cost or pricing data, in accordance with subsection 15.403-3 of the FAR, including actual cost data and data to support any estimated costs, even if certified cost or pricing data are not required. (d) The certification requirement in paragraph (b) of this clause does not apply to¾ (1) Requests for routine contract payments; for example, requests for payment for accepted supplies and services, routine vouchers under a cost-reimbursement type contract, or progress payment invoices; or (2) Final adjustments under an incentive provision of the contract.