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C Culham

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Everything posted by C Culham

  1. Travel Costs-M&IE Per Diem vs Actuals

    I am surprised this was not your very first post to this thread!
  2. Travel Costs-M&IE Per Diem vs Actuals

    My posts never implied that the "right" answer would come from the CO. My posts stated that one should ask (communicate) with the CO on the conflict to find out how the Government interprets what the Government has written so that the OP could figure out what they should do. My view is neither pro-government, pro-contracting officer it is pro communication as I do not hold to "ask for forgiveness" I hold to communicating about a conflict and doing the best one can to mediate it and if it can not be then there are adversarial ways to handle the matter. I will do better in the future to state what my exact position is and again to clarify for this thread...................Go ask the CO and if the answer is not the one you want then follow the Disputes clause to figure out the "right" answer. I do not have the "right" answer and dare say no one posting to this thread has it but communication with the CO is a prudent, responsible and well held contract administration procedure to arrive at answer to a conflict in a contract about what a contract says and in this case how the bills can be submitted to the Government so the Government will pay them. Thanks
  3. Travel Costs-M&IE Per Diem vs Actuals

    H2H - Come on really? Go to the CO is more than viable it is the only course! And again you are close on interpretation but I think you are missing what the contract says. Why? "FAR 31.001, Definitions as used in this part - Actual costs means (except for Subpart 31.6) amounts determined on the basis of costs incurred, as distinguished from forecasted costs. Actual costs include standard costs properly adjusted for applicable variances." (Emphasis added) FAR 31.205-46, is referenced in the contract is from this part and as such the full language of the contract at FAR Clause 52.202-1 applies - “Definitions (Nov 2013) When a solicitation provision or contract clause uses a word or term that is defined in the Federal Acquisition Regulation (FAR), the word or term has the same meaning as the definition in FAR 2.101 in effect at the time the solicitation was issued, unless-- (a) The solicitation, or amended solicitation, provides a different definition; (b) The contracting parties agree to a different definition; (c) The part, subpart, or section of the FAR where the provision or clause is prescribed provides a different meaning; or (d) The word or term is defined in FAR Part 31, for use in the cost principles and procedures.” To suggest that a contractor to not ask the CO for interpretation because “It's not a good idea when you might not like the answer you receive.” or to change their internal policy and procedures when the contractor has an approved accounting system is ludicrous. The only advice is go as the CO, but by the way you might want to be armed with the following points.................. Eager - The matter of what the contract means is really quite simple. You first ask the CO for a interpretation of the contract. You then have choices after the CO provides the interpretation - 1) Agree with the interpretation; 2) Disagree with the interpretation and still bill per the interpretation; 3) Disagree with the interpretation, bill as you interpret (possibly based on the advice provided in this thread) and file a claim (FAR clause 52.233-1). If the 3 choice is made you are then is afforded the ability to appeal the CO's final decision if you disagree with the interpretation. In the end as it is the intent of the FAR to have decisions made at the level of the CO again I say " In the end I will say it will actually be left to you and the CO" to decide what is the appropriate way to bill.”
  4. Travel Costs-M&IE Per Diem vs Actuals

    Vern, H2H, Retread, Pepe - The question from Eager is - "Are we complying with the prime contract if we bill the maximum daily per diem rate for M&IE rather than actuals?" Who in fact from each of your points of view should answer the contract interpretation question?
  5. Travel Costs-M&IE Per Diem vs Actuals

    H2H - Agreed as related to this instant thread since the reference of the FAR language at 31-205-46 is in the H clause. It thought I covered same with this language “While referenced in the H clause my read is that the FAR reference is being used to indicate what travel charges (amounts) can be billed for at cost (“limited to those”) not that the rates can be used.” Sorry I was not clear. I do still say that the contract language is confusing as in one place it clearly says “actual cost” (at the CLIN) which is different than a rate and in another (at clause H) is not explicit as to what is really is the way that M&IE is to be billed.
  6. Travel Costs-M&IE Per Diem vs Actuals

    Eager – Food for thought as the expressed position of H2H may not be spot on. Your question definitely needs discussion with the CO to resolve. For what it is worth my view suggests that your contract has a conflict, and the conflict, unless otherwise mitigated, requires you to bill for actual charges, and that the actual amounts billed for M&IE cannot exceed (“reasonable and allowable”) a sum that is in excess of per diem rates. My position is based on the following that may not be the true facts of the contract but my explanation as follows may help you be in a position to have a good discussion with the CO to sort the matter out. My reasoning – If the Solicitation/contract is result of following process and procedures of FAR Part 15 as such the prime contract would then follow the uniform contract format (UCF) (FAR 15.204). Additionally the contract would therefore contain FAR clause 52.215-8. The CLIN is most likely contained in “The Schedule” as part of B – Supplies or Services andprices/costs as defined by the UCF. The clause noted as being in Section H is in “The Schedule” as well, Special contract requirements. The CLIN states actual costs and H confused the statement in the CLIN and brings in the possibility of rates. FAR 52.215-8 does not solve the conflict so the need for a CO to determine. Further FAR part 31.205-46 does not solve the matter. First off 31.205-46 simply is the FAR statement as to what is allowable and allocable with regard to the costs of any contract. While referenced in the H clause my read is that the FAR reference is being used to indicate what travel charges (amounts) can be billed for at cost (“limited to those”) not that the rates can be used. Your contract by my read specifically states that the costs allowable for travel under your contract are those that are actually incurred and are limited by 31.205-46. Just because the employees are paid at per diem does not equate to what the actual costs were for the M&IE experienced under the contract. Contract employees might be spending way less or way more in actual costs than the per diem rate for their travel. Because there is a big difference between simply billing under the contract for M&IE at a rate versus that of actual costs for M&IE I would darn sure clarify with the CO before I billed.
  7. Required to Roll-up Adjectival Ratings?

    Vern - Agreed. No intention to imply it did. Sorry that you took my post to imply otherwise as it was intended exactly as stated to just bring to light the FAR reference regarding records requirements regarding proposal evaluation noting that the OP's post could be read that FAR was not a part of the OP's research just the GAO. For the good of the order I reviewed all Department/Agency supplements to the FAR to see if there was possibility that a "roll-up" requirement existed and I found none.
  8. Required to Roll-up Adjectival Ratings?

    As you have referenced GAO but not FAR, unsure if you had read this so simply providing the following as a reference in case you had not..... FAR 15.305(a)(3) - (3) Technical evaluation. When tradeoffs are performed (see 15.101-1), the source selection records shall include -- (i) An assessment of each offeror’s ability to accomplish the technical requirements; and (ii) A summary, matrix, or quantitative ranking, along with appropriate supporting narrative, of each technical proposal using the evaluation factors.
  9. Well I can't help myself......means if Mr. Trump doesn't go into the building all is good? Seriously, your point does give pause for thought, I did not pull that out as the key. Quick thought is that if the LLC is made up of other entities that are not sole proprietorships (inclusive of Mr. Trump) how far do you go to conclude that an elected official is admitted to share, part, benefit? From posts and other readings it seems that the LLC is made up of other entities rather than individuals. Leads me back to my initial thoughts, if and when does a shareholder to an LLC or multiple levels actually receive share, part, benefit and I would add now does it matter what that value of share, part, benefit is it that they ultimately receive? If there are multiple levels of entities that the benefit flows through does it become de minimis when the elected official finally realizes the share, part, benefit?
  10. Travel Costs-M&IE Per Diem vs Actuals

    Eager - It would helpful if you provided the exact wording of the prime contract so that folks could consider in responding to your question. In the end I will say it will actually be left to you and the CO, concluding that you are the prime so to speak, in coming to a final decision as to what compliance really is.
  11. Thank you Vern - A very interesting discussion especially considering the fact that I was watching a national news show last night where a pundit affirmatively stated that the Mr. Trump had in fact breached the lease. More experts!! I continue to wonder on what basis exactly and if the basis is the sole clause discussed in this thread then why hasn't the lease been terminated? Maybe it will be concluding that it will be a long shot to do so under the specific clause discussed in this thread, a very long shot!
  12. Sorry meant to add this - 18 USC 432 "Whoever, being an officer or employee of the United States, on behalf of the United States or any agency thereof, directly or indirectly makes or enters into any contract, bargain, or agreement, with any Member of or Delegate to Congress, or any Resident Commissioner, either before or after he has qualified, shall be fined under this title."
  13. Retread - Admittedly no research beyond this statement in the Fed Reg that I used as reference in my previous post..... 'The criminal provisions found at 18 U.S.C. 431 and 432 remain in effect." Now that I read it especially 18 USC 432 it makes me wonder why someone is not calling out the leasing officer to be fined if in fact the clause applies even though Mr. Trump is still just an elect and not the President yet? I am still left in the fog that Schooner, Gordon, Drabkin, and this thread for that matter, is trying to reason something that is beyond reason!!!!!! Again the clause is sloppy and worthless and I have now come to the conclusion that it does not belong in the lease as there is no basis in statute to have it in the lease.
  14. Actually removed from the FAR in 1995 - https://www.gpo.gov/fdsys/pkg/FR-1995-07-21/pdf/95-17935.pdf - reasoning as stated in this reference because statute changed. Begs the question as to why the dang clause is in the lease in the first place? I will admit my research is left looking at what is dribbled out as each new comment is posted but my read of the above reference appears to indicate any violation is not a contract matter ( and I do mean lease in this context) but a possible criminal one. Should not this matter be of a concern and determination of the Attorney General and not that of contract (lease) professionals?
  15. "or" - inclusive or exclusive? A court would have to decide in the end and good luck with that! The matter could also be decided when Mr. Trump and his organization figures out what they plan to do. In the end the clause is, as I have already noted, poorly written and to depend solely on it as a definitive conclusion that there is breach as a result of Mr. Trump having any connection to the LLC is careless thinking. With the full language of the clause noted I continue to disagree with Schooner, Gordon, Drabkin. An impossible task to figure out and for some reason "Snipe hunt" comes to mind.
  16. Yes, FAR 22.1703, 1704, and 1705 when read together requires that the offeror shall provide the certification of 52.222-56 prior to award. The demand would not constitute discussions but rather is the exercise of a right of the Government to request the certification. As a post proposal certification prior to award has been deemed by the GAO to be an effort to correct a minor irregularity doing so is not discussions it is clarification. (FAR 15.306).
  17. Boof – First like Vern I am confused by your questions in your posts as they suggest different scenarios at least by my read. So thinking about the thread in total here is my shot at providing an answer…. Solicitation provision left out of the solicitation and is recognized before award by the agency, should the RFP be amended? Yes, FAR 15.206. Solicitation provision left out of the solicitation and is recognized before award by the agency, yet an offeror has completed an annual reps and certs in SAM and the specific provision was in their annual reps and certs yet the certification was not provided, should the RFP be amended and can the agency request the offeror to provide the certification post receipt of proposals. Yes, the RFP should be amended, again FAR 15.206, with it also my conclusion that even absent an amendment the offeror could provide the required certification prior to award. See http://www.wifcon.com/pd144042a.htm and specifically "Charter Environmental". An agency should always amend their solicitation if they find that they failed to include a term/condition that should have been included. However when it comes to reps and certs failure to provide by a offeror have been found to be a minor irregularity that can be corrected after receipt of proposals. Suggesting that simply depending on SAM or in other words using it as a “crutch” is a sideways approach where it has otherwise been established through what I will term case law to handle failure to provide a cert/rep as a minor irregularity and get the certification after receipt of proposal. The dilemma will come if prior to or even after award could you "demand" the certification. I say yes you could and if the contractor failed to provide it would be reason to not award if the demand is not met, and if after award would be reason for the agency to terminate the contract for convenience. The latter is based on the fact that an agency would have errored in awarding for failure to determine the responsibility of a contractor.
  18. Vern - You are correct regarding FAR. I got caught up in discussion as FAR related like most dicussions in WIFCON. I will edit my post.
  19. Vern - The legal definition of "benefit" as it relates to contract law - Blacks and Legal Dictionary at law.com. As I have tried to relate, No to your second question. Mr. Trump does not "benefit" the LLC does. Mr. Trump will gain potential funds from being a shareholder in the LLC just as I would being a shareholder for any corporation. The tax code just makes me, and Mr. Trump, have to handle those funds in a different manner for tax purposes depending on whether it is an LLC or a corporation. Yes the issue is in play if not merely for "appearance" but personally I can not defend a proposition of breach based on the poorly written clause and am surprised that others would use it as the lynch pin to terminating the lease. From my view cure and show cause like that used in FAR related procurements could easily solve the matter for those that have suggested a concern. I do acknowledge the lease terms and conditions would dictate the exact process in lieu of a jump to termination outright. My conclusion therefore is like yours Schooner-Gordon or Drabkin all have their views and the right answer if I have to go there is that due process of the lease should be followed and the issue is not egregious enough to suggest that breach/default is the automatic end all.
  20. Vern - Benefit via a contract is profit, privilege, and right acquired through the contract. The LLC acquired the profit, privilege, and right not Mr. Trump. Cost recovery as such is a right is to the LLC not Mr. Trump. Mr. Trump is only required to report the profits, if any, via his personal taxes per tax code. From my view the LLC is not only a shelter to liabilities but to the profits, privileges, and rights too. Following the logic of Schooner and Gordon as the article tries to lay out Mr. Trump is both "landlord and tenant". Mr. Trump is not, the Trump Old Post Office LLC is. Further if in fact the contract is in breach the LLC would be terminated for default not Mr. Trump. In the end I believe the article personalizes a matter rather than keeping it a purely business matter. It should be about the LLC and this is not made entirely clear by the authors with many references to "Mr. Trump" as opposed to the LLC. If the LLC is not operating properly then go through the process for T4D, instead Schooner and Gordon want to jump immediately to breach (default) and noting the confusion caused by the poor wording of the clause on which the breach would be based such a jump seems bad Federal Acquisition Regulation process to me. Pandora's box all the way around!
  21. Different.... Share or part...the LLC carries the lease and is liable for the adherence to the lease. Trump as an individual doesn't share or have a part of the lease. Benefit...aka profit is attributed to the individuals of the LLC. Trump, assumed as a member of the LLC, has no issue until a profit is realized.
  22. Inauguration Holiday?

    CHILIN - No intent to complicate this as the advice provided already hits the high points but as issues of Inauguration Day holiday, weather closings and Executive Order declared leave days are instances that have occurred in the past as they relate to Federal contracting many times you can find guidance in previous forum discussions. I did some basic research in WIFCON and found this discussion thread that may help. In the end you will find no clear cut answer other than what you and your CO(s) decide to do about the leave day. Here is an additional Navy document found here - http://www.secnav.navy.mil/rda/OneSource/Documents/Contract%20Labor%20Standards%20and%20Relations/extraordinaryfederalleavedaysandcontractoremployees2009.doc. "Extraordinary Federal Leave Days and Contractor Employees: President Obama recently issued an executive order excusing most Federal executive agency employees from duty the last half of the work day on Christmas Eve, December 24th, 2009. The President and executive agency management also sometimes excuse employees from duty [without loss of pay and without being required to use leave] in other similar circumstances such as weather related closures and delays, security and emergency situations, National days of mourning and inauguration day [D.C. locality only]. Such decisions often leave contractor employees wondering how these executive branch actions will affect them. The answer varies depending upon a number of things, primarily the contractor’s leave and pay policies. First, it should be noted that the President’s or executive agency’s actions do not create additional Federal holidays. Federal holidays may only be created by the legislative branch with the President then signing them into law. Government contract terms and conditions are generally silent on such matters and therefore leave such matters for the contractor to manage. Contracts for supplies and manufactured goods do not contain requirements for contractor employee holiday and vacation entitlements. Any holiday or paid time-off payments are completely up to the contractor. On the other hand construction contracts subject to the Davis-Bacon Act and service contracts subject to Service Contract Act (SCA) commonly contain wage determinations that apply to the non-exempt workers employed under the contract. The wage determinations do contain requirements for paid holidays, but do not address any “extraordinary days off” such as those mentioned above. Any Federally mandated paid holidays for non-exempt construction or service employees will be explicitly found in the wage determination. The Department of Labor provided guidance for SCA-covered contracts last year which covered a similar executive order issued by President Bush for the day after Christmas, December 26th 2008. The same principles will apply to the Obama Executive Order for Christmas Eve and other similar days when Federal workers are excused from duty: Holiday Pay for Day After Christmas (December 26, 2008) For Service Contract Workers Government contractors subject to the requirements of the McNamara-O’Hara Service Contract Act (SCA) are required to compensate covered employees in accordance with the wages and fringe benefits listed in the applicable wage determination included in the specific contract. Most SCA wage determinations list the ten Federal holidays as a fringe benefit for which payment is required. In these cases, because the Day after Christmas is not a named holiday contained in the wage determination, paid time off for that day would not be required under the SCA. In these cases, any pay provided for time off on December 26, 2008, will be a matter of discretion for the contractor. Issues regarding contract payments for such time not worked would be a procurement matter within the purview of the contracting agency. Contractors, however, may allow covered employees to take paid leave benefits for that day off in accordance with the contractor’s standard leave policies. In certain instances, the SCA wage determination applicable to a contract, (including those based on a collective bargaining agreement under 4(c)), may include a paid holiday provision for any day declared by the U.S. President to be a holiday, such as the Day after Christmas, National Day of Observance, or for any work day where the Federal facility is closed. In these instances, holiday pay would be required under the SCA for December 26, 2008. Contractor employees, therefore, should look to their management concerning whether they will be relieved from scheduled work days/hours and in particular whether such time will be considered paid time off or not. If questions arise concerning impact on a Navy/Marine Corps contract, contracting officers should contact the Navy or NAVFAC Labor Advisor for guidance, since it is not possible to provide a standard answer that will apply to all situations."
  23. Question - How was the "who" determined as to which contractor would be awarded first and which contractor awarded second? Guessing contractors do not care as long as they are getting award but it would seem the reasoning and evaluation to pick one over the other would need to be stated in the RFP. Was it?
  24. Jamaal - So is the only concern the parties to the contract , or for instance should there be concern with regard to an interested party who otherwise might have proposed differently had they known they could have subscribed to customary commercial practices had they known that the solicitation provision, terms and conditions provided for same? Could not this potentially change the sum game with regard to pricing, performance metrics and considerations of contract administration? We only have the OP's comments to go on and it would seem that the complete history and documents of the solicitation, negotiations and resulting contract would be the indicator of intent in this contractual relationship not what was heard? I would agree that the contractor could provide what would be defined as a commercial item pursuant to the FAR but pursuant to the parent contract I am compelled by the facts to believe that that the contractor would in fact be providing non-commercial items as defined by the contract ( the 4 corners) subject to all the terms and conditions that might not otherwise apply to a commercial item. Already stated in a different manner in this thread but what a messy idea and a very slippery slope in my view.
  25. OP Fact - "The contracts have FAR Part 15 clauses; they do not include commercial clauses (FAR Part 12)." OP Fact - "Based on what was heard from the contracting officer (of the department wide IDIQ contract), the IDIQ contracts were intended for commercial and non-commercial use." So what am I missing? In this case the 4 corners of the solicitation and resulting contract govern do they not? So how is the parent IDIQ allowing the purchase of commercial items?