Jump to content
The Wifcon Forums and Blogs

C Culham

Members
  • Content count

    769
  • Joined

  • Last visited

Everything posted by C Culham

  1. Hopefully not a run away thread and most likely no impact but the questions that occurred to me with the first post by the OP were - Is the 52-217-9 clause already in the contract? Not clear that it is. Is the contract for a commercial or non-commercial item? Again not clear. The above have no specific impact on the best option proposed in the thread but do have impact on what I will call the side discussions that have occurred.
  2. A possible alternative that is close to that suggested. Following the ideal of FAR 52.222-41 Service Contract Labor Standards include in the 52.219-14 clause a "Records" paragraph adjusted accordingly to indicate required records to support the LOS. This paragraph would stipulate that only SBA is allowed access to the records. As such at completion of all work under a contract (an order in some cases) if a CO suspected non-adherence to the LOS they would simply refer to SBA for investigation, penalty etc. prior to final closeout of the contract. I am suggesting this alternative as there appears to be a parallel with regard to who should have the power with regard investigation and enforcement of violations. In labor laws the DOL has the investigative and penalty powers and in the latter it appears that by statute and regulation that SBA has or should have the investigative and penalty powers. An alternative to this alternative if you will could be like that stated in 52.222-8 where such LOS records are accessible by both the CO and SBA. In suggesting the "Records" paragraph be in 52.219-14 I believe that having the requirement for "Records" stated within the 52.219-14 clause helps reinforce its necessity without having to refer to another part of the contract. If only the SBA is listed as that party that has access to the records I would suggest that adequate information is otherwise available during performance to suggest whether compliance will occur by completion giving the CO the foresight to possibly "intervene to prevent a breach" at contract end. Of course having both the CO and SBA listed would be of great benefit. That benefit being the ability to help avoid a breach in the end much like the ability to do in process inspection that is the norm for non-commercial contracts in the Federal sector. One issue would be a performance evaluation of a contractor that was suspected of non-adherence and investigation concludes that non-adherence did in fact happen. It would seem that this should be captured in a performance evaluation. I am unsure if CPARS allows for revised/amended evaluation and if it does if there is a limitation on when such a amended evaluation can be done. Here I am reminded as well that interim performance evaluations can be done and might possibly be the tool that helps the CO intervene during contract performance.
  3. Joel - Thank you.....and I never will.
  4. I dislike broad brushes and digression. If no one cares why is there even discussion in WIFCON on any contractual matter? God forbid why is there an organizations like NCMA or even prestigious publications like Nash & Cibinic? this discussion has gone off track and I am going to take the spur line..
  5. Vern –I feel you have distracted the conversation on a specific point without giving consideration to the whole of what “contract administration” is with regard to assurance of compliance with contract terms and conditions and the remedies given to both parties in a contract to help assure the compliance. At first blush your comments suggest that clauses like the limitation on subcontracting clause and possibly the 52.236-7 Permits and Responsibilities clause are worthless as either clause lacks "contractual power of inquiry or contractual authority to compel a contractor to produce and disclose specific information as to compliance with a Federal law and regulation during performance of work under a contract. The contract provides the power of inquiry, or in other words either party can ask the other party to a contract if the party is complying. I would agree that if asked by one party if they are complying and for data to support such compliance the other party is not compelled to answer. In fact I would say that as a whole the contract does not “compel” one to do anything contained in the contract. You sure hope they do but if they do not then there is a course of action with regard to a breach of promises. As I have already provided in my comments there is a course of action if the CO does not believe the limitations on subcontracting are being adhered to during performance and in the end if the contractor does want to tell me to get lost I have the power to compel them to tell me why I should have of or should not of gotten lost. In Federal contracting I just terminate them for cause or default and they produce the information or not, their choice, but if they do not I am guessing that they sure won’t like the outcome. My conclusion is that in the end as a party to a contract I can compel the information. PS - Posted after you an Joel continued to discuss. Relevant to my response here, who knows as I spent the time to produce the above response so I am just posting, what the heck.
  6. Vern – The nexus is this in that 15 USC 645 (see below) is the connection (basis) for 13 CFR 125.6(h). As referenced in 15 USC 645, 15 USC 657s is the subcontracting limitation provisions of the statute. While the penalty is not stated specifically in the FAR 52.219-14 clause as things go with the regulations of SBA all conclusions. processes and actions of SBA programs are not stated in the FAR. FAR 19.00 is clear that it implements the “applicable sections of the Small Business Act” and the LOE as noted in this discussion is an “acquisition related” part of the Act. Supported by the fact that within WIFCON there are references by many that direct an OP to 13 CFR for clarifying information with regard to action and process on small business matters. Noting this along with the fact that a violation of the LOE has specific penalty as prescribe by statute and regulation YES I believe the noted connection does give the Government (CO, SBA, GAO, OIG, Justice and ????) the right to inquire as to a contractors compliance with the LOE. For a contractor to simply tell the Government to “get lost” when inquiry is made with regard to LOE for a specific contract would be a wrong minded action by the contractor in my view. 15 USC 645 (g) Subcontracting limitations (1) In general Whoever violates a requirement established under section 657s of this title shall be subject to the penalties prescribed in subsection (d), except that, for an entity that exceeded a limitation on subcontracting under such section, the fine described in subsection (d)(2)(A) shall be treated as the greater of— (A) $500,000; or (B) the dollar amount expended, in excess of permitted levels, by the entity on subcontractors. (2) Monitoring Not later than 1 year after January 2, 2013, the Administrator shall take such actions as are necessary to ensure that an existing Federal subcontracting reporting system is modified to notify the Administrator, the appropriate Director of the Office of Small and Disadvantaged Business Utilization, and the appropriate contracting officer if a requirement established under section 657s of this title is violated.
  7. Does the fact that the LOS clause has a direct nexus to 15 USC 645 have any bearing on the rights of the Government to request information specifically to determine if the contractor shall be penalized and/or debarred?
  8. Vern/Pepe - Thank you. As Vern notes I may not be fully convinced. No further debate but rather I leave the discussion with this. To say "I cannot see that SBA has any responsibility or authority with respect to enforcement of the limitations. Their consultative role is just that, " leaves a big hole as to who pursuant to 13 CFR 125.6(h) will level the penalty. As the penalty provision is part of the SBA's regulations and pursuant to the statute requiring its implementation it would seem authority lies solely and fully in SBA's lap. To which I raise the question how does one refer to SBA a matter for penalty? The CFR is not clear but as Pepe notes SBA may not help in clarifying in the FAR either.
  9. Vern - I get hung up here....FAR 19.104-3(d)(2) A small business that is unable to comply with the limitations on subcontracting at 52.219-14 may be considered nonresponsible. When read with this - 13 CFR 125.6(h) - it seems SBA has to be involved. I guess it all boils down to this - what prevents a post award determination of responsibility? Can't a CO who awards a contract thinking a contractor is responsible and then gains further facts that leads to determination that they are not, change their mind and go the route to in the end T4D a contractor? If not why not?
  10. Pepe - Admittedly I have not enforced the concept but it seems to make sense as I thought about all the concerns expressed and personal experiences I had many years back in dealing with the limitation issue (SBA for 15 years). SBA needs to be brought in as it is their civil penalty provision of the CFR that could/should be applied for failure to meet the limitation. Specific to your "Good Luck" statement it was after all SBA who developed their regulations so what is the problem with putting it on the their plate? It sure would be interesting and fun to give it a whirl one time to see what transpires. PS - As to timely remember this - FAR 19.602-49(c) - discusses timely response, one would think it would apply in a pre/post scenario?
  11. Vern – My thought is to hold SBA responsible for what they are charged to do. First is it not clear by the language of 13 CFR 125.6 that not meeting the limitation is a responsibility matter? I clearly understand that for breach of other terms and conditions that a CO has latitude but in the case of the limitation clause it seems clear they are either responsible or not? The route is plausible when you couple a potential default of a SB with the requirements of FAR 49-402-3(e)(4) which states – “If the contractor is a small business firm, the contracting officer shall immediately provide a copy of any cure notice or show cause notice to the contracting office’s small business specialist and the Small Business Administration Regional Office nearest the contractor. The contracting officer should, whenever practicable, consult with the small business specialist before proceeding with a default termination (see also 49.402-4).” So with more detail…cure notice/show cause to the contractor for failure to meet the limitation, stating they could be considered not responsible to complete the contract, copy to SBA with a request for review with regard to a Certificate. Ball is in SBA’s court. SBA does not provide the Certificate, T4D and request to SBA to apply penalties.
  12. Wait a minute I believe that both the CO and SBA have "enforcement authority and powers". “13 CFR 125.6(e)(2) Compliance will be considered an element of responsibility and not a component of size eligibility.” FAR 9.104-3 read in full a small business that cannot “comply” with clause 52.219-14 maybe considered non-responsible. If a CO has reason to determine a small business non-responsible prior to or post award the CO would enlist the process of FAR 19.6 Certificate of Competency. Further 13 CFR 125.6(h) which states – “(h)Penalties. Whoever violates the requirements set forth in paragraph (a) of this section shall be subject to the penalties prescribed in 15 U.S.C. 645(d), except that the fine shall be treated as the greater of $500,000 or the dollar amount spent, in excess of permitted levels, by the entity on subcontractors. A party's failure to comply with the spirit and intent of a subcontract with a similarly situated entity may be considered a basis for debarment on the grounds, including but not limited to, that the parties have violated the terms of a Government contract or subcontract pursuant to FAR 9.406-2(b)(1)(i) (48 CFR 9.406-2(b)(1)(i)).” So if a small business is not complying with FAR 52.219-14 why wouldn’t a CO consider them not responsible to complete the contract, go to SBA for the Certificate, and if none is provided default terminate the small business and request further action by the SBA under the penalties paragraph of 13 CFR 125.6?
  13. Rejecting an Award

    This might help as well....., http://www.dcma.mil/DPAS/
  14. Crap shoot...but I tried my version of an internet search and found the below....sorry no link but what I found it referenced to sounds a lot like what you are looking for. See Dubinsky, 43 Fed. Cl. at 254-60
  15. FAR Case 2016-005

    I am caught between “old school” and the new world. Adding clarity to the FAR makes sense. Yep there will be some that do not or will not want to read its clarity as it seems that happens every day by what is posted in WIFCON every day. Over simplification probably but all the same maybe the wording ought to be simply “If you can find a pending procurement on the internet (and I am not talking FBO posts) you can discuss it to the length of the details found on the internet”. After all Google sure the heck knows what I am thinking about buying. A little more ammo to enlighten the acquisition workforce makes sense to me!
  16. SIg Sauer

    In reading the solicitation it states that the minimum is (at page 6 of the solicitation) – “ MINIMUM QUANTITY WEAPONS: 1 Weapon System Component Package (as described in Section C.3.1.1) AMMUNITION: Included in the Weapon System Component Package” Interesting to me the maximum is stated at a dollar amount while the minimum is stated as an Unit – “MAXIMUM Program Value - $580.217 Million”. The cost control is that each weapons system component package is at a set unit price . The contract would be funded I would hope at the minimum guarantee noted above and is further support by this language in the Executive summary at page 2 of the solicitation “Each contract that is awarded will be issued a delivery order in the base year to meet the minimum guarantee for the contract. The minimum contract guarantee will consist of the weapon system component package (CLIN 0001), as described in the statement of work.” Subsequent orders for “weapon system component package” after the one issued to achieve the minimum would then have to be funded. Conclusion is the FFP is the unit price per item or in other words the weapon system component package. As an aside it appears from research that instead of "The Government contemplates award of up to 3 Firm Fixed Price Indefinite Delivery/Indefinite Quantity contract(s) resulting from this solicitation." there was actually only one award and the award is causing rumblings in the industry, protest pending????? Who knows? Finally the age old argument can an IDIQ be a FFP contract with FFP orders -
  17. Direct Overhead Costs

    here-2-help - This comment has no intent to change the great discussion regarding this thread and its primary topic direct/indirect costs. I just wanted to pass along that in reading the thread and doing my own research related to all the thoughts expressed in reviewing FPDS-NG both the firms mentioned in the case it would seem that each has handled many contracts either individually or in total that amounted to millions of dollars. From this view it would seem that the answer to this question was adequately addressed by the agency during market research leading to the SB set-aside. As you note the SB set-aside also helped in making administration less arduous (with regard to CAS)?
  18. A Competition Revolution

    I have read the discussion and beyond regarding the subject of this thread only wish that I was still in a CO chair to give this idea and its proposed variant Vern Edwards has mentioned in this discussion a try. The full dialog that occurred was very helpful in helping how one would approach in using. Very valuable to the counsel I have the occasional opportunity to provide to those that do sit in a CO chair today. In my career I handled procurements that bordered or eclipsed the $50 million mark but by and large they were much smaller and from my view the application of the approach (and as tweaked) have great opportunity for even the smaller procurement. It may be karma but when a post appeared on this thread today - http://www.wifcon.com/discussion/index.php?/topic/3529-spspd2/&page=2 – I thought to myself finally the missing link has been found to the idea I posted back in June of 2016. I do not claim ownership to the idea as it has been discussed by many but now there is a way to actually make it work! A perfect way to start 2017…………………………………
  19. Past Performance

    I think your questions are best answered by the CO for the solicitation.
  20. Lodging Per Diem - No Receipts

    Could be biased but many times "old school" has been proven effective over time and is why it is the way to go!
  21. Lodging Per Diem - No Receipts

    This post is in no way intended to dispute any post to this thread but rather provide further exploration of the situation, as noted in the OP’s question and found in other threads of WIFCON, where FAR 31.205-46 is incorporated into a contract. FAR 31.000 Scope of part provides - “This part contains cost principles and procedures for— (a) The pricing of contracts, subcontracts, and modifications to contracts and subcontracts whenever cost analysis is performed (see 15.404-1(c)); and (b) The determination, negotiation, or allowance of costs when required by a contract clause.” (emphasis added) FAR 31.103 goes on to say (hopefully paraphrased appropriately) that for certain contracts that are negotiated on the basis of cost that ”the cost principles and procedures in Subpart 31.2 and agency supplements” SHALL (emphasis added) be incorporated into the certain contracts by reference and used for the basis of – 31.103(b)(1) –“ Determining reimbursable costs under— (i) Cost-reimbursement contracts and cost-reimbursement subcontracts under these contracts performed by commercial organizations and (ii) The cost-reimbursement portion of time-and-materials contracts except when material is priced on a basis other than at cost (see 16.601(c)(3)); (2) Negotiating indirect cost rates (see Subpart 42.7); (3) Proposing, negotiating, or determining costs under terminated contracts (see 49.103 and 49.113); (4) Price revision of fixed-price incentive contracts (see 16.204 and 16.403); (5) Price redetermination of price redetermination contracts (see 16.205 and 16.206); and (6) Pricing changes and other contract modifications.” Thinking about the above it would seem that rather than simply stating a specific reference like FAR 31.205-46 the contract should reference the whole of FAR 31.2. Doing so would help as the FAR must be read in whole and solely referencing say FAR 31.205-46 leaves a gap with regard to such thoughts as “what is the contractor's policy in regard to reimbursement of travel costs?”. Further a real dilemma occurs if the contract was negotiated on the basis of “price” (as defined by FAR Part 15) as the question is raised per a full read of FAR 31 if a contract is negotiated on the basis of “price” should there even be reference to FAR 31.2 principles and procedures is in the contract? Noting that FAR Part 31 has no prescribed clauses CO’s are left to jury rigging references to Subpart 31.2 leaving wide holes when just a specific reference like FAR 31.205-46 is placed in a contract. Cherry picking a reference like FAR 31.205-46 for incorporation into the contract just does not cut it the whole of FAR 31.2 needs to be referenced.
  22. Lodging Per Diem - No Receipts

    So many things left unsaid! First is your post related in any way to this discussion thread? http://www.wifcon.com/discussion/index.php?/topic/3819-travel-costs-mie-per-diem-vs-actuals/ If not related then missing is information about the prime contract under which the travel expenses were “acquired”. What type of contract is it? What is the actual contract language that references FAR 31.205-46? Even absent the above I do not think you have read FTR Chap, 31, paragraph 11.25 closely. It provides a further reference of “see §301-52.4 of this chapter” which provides as follows – “§301-52.4 What must I provide with my travel claim? You must provide: (a) Evidence of your necessary travel authorizations including any necessary special authorizations; (b) Receipts for: (1) Any lodging expense; (2) Any other expense costing over $75. If it is impracticable to furnish receipts in any instance as required by this subtitle, the failure to do so must be fully explained on the travel voucher. Mere inconvenience in the matter of taking receipts will not be considered; and (3) Receipts must be retained for 6 years and 3 months as prescribed by the National Archives and Records Administration (NARA) under General Records Schedule 6, paragraph number 1 (http://www.archives.gov/records-mgmt/ardor/grs06.html).” Noting this additional FTR language additional detail would be needed regarding the detail of expenses – hotel actual receipt and documentation of “other expenses” with regard to evaluating the “at least $75” that might be paid without furnishing receipts. Bottom line I do not think your question can be or should be answered in this forum as it is specific to the contract under which the travel expenses (with or without receipt) were experienced. Any question about what is allowed travel expenses, again with or without receipts, should be answered by the contractor (prime?) and the CO for the contract. On this basis I am OUT!
  23. Travel Costs-M&IE Per Diem vs Actuals

    "33.204 -- Policy. 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. Agencies are encouraged to use ADR procedures to the maximum extent practicable. Certain factors, however, may make the use of ADR inappropriate (see 5 U.S.C. 572(b)). Except for arbitration conducted pursuant to the Administrative Dispute Resolution Act (ADRA), (5 U.S.C. 571, et seq.), agencies have authority which is separate from that provided by the ADRA to use ADR procedures to resolve issues in controversy. Agencies may also elect to proceed under the authority and requirements of the ADRA." Hmm, I see nothing in the above statement that the contractor is held to the Governments interpretation of a contract controversy? My read is that by this regulation (above) it is to be by mutual agreement at the CO level, what am I missing?
  24. Travel Costs-M&IE Per Diem vs Actuals

    Retread - The quote you have parsed out in your post is a quote of what the contract says. Did I say it was in conflict with what H2H said? If you believe so please tell me where and I will address my comment if I made it. The only thing I have ever said about conflict is that the dang wording of the contract is in conflict. I would add as supported by this thread that the conflict has left a void of interpreting what the OP can bill for.
  25. Travel Costs-M&IE Per Diem vs Actuals

    H2H - I would hold that the contract could provide the definition or would provide the basis for the definition that a court says it is.
×