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C Culham

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  1. I am reminded that a contractor shall be given the opportunity to address adverse past performance if not given the opportunity to do so previously. FAR 15.306 As such I reason in a best value procurement kicking a contractor to the curb for pursuing such an action on a previous contract is past performance. Therefore I also reason that if a contractor is not given the opportunity to address their action and it is considered it will simply depend on the rules and history.
  2. CO? Or General Contractor? Raised to make sure we are talking Government to Prime. Maybe yes maybe no but your indication of new suggests so but it depends on what is to be accomplished. Yes as long the matter of scope is not an issue.
  3. Thoughts J&A? Or creation of and approval of a JOFOC? Neither. Maybe a just memo to the file that explains the extension. Mutual agreement of the parties - Yes I know it is non-commercial but remember the parties to a contract can mutually agree to a change without the need of a clause to do so. Consideration? If I were the CO I would want consideration. Pursuant to FAR 16.601(c) one could imagine the possible need to extend the period of performance of a T&M contract. Emphasis added "Application. A time-and-materials contract may be used only when it is not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence." Scope? If the need for extension is to pursue some type of result (the work) that was reasonably anticipated by the procurement it would seem scope is not an issue. Some of my thoughts came from this based on the idea that a T&M contract is sometimes referred to as a hybrid of a cost reimbursement/fixed price contract.
  4. The continuing discussion reminded me of the below. Long decision but the portion regarding "Bad Faith" while not directly spot on may be of interest. https://www.cbca.gov/files/decisions/2013/HYATT_03-15-13_1789, 1845, 1929, 1930__ALK_SERVICES_INC.PDF
  5. The individual may not realize that they may have a responsibility to declare the possible impartiality. Lots of thoughts on the route you might take to express your concerns. Leaving it to your imagination. https://www.ecfr.gov/current/title-5/chapter-XVI/subchapter-B/part-2635/subpart-E
  6. How about a literal read of FAR 9.104-6(a), does it help answer your question for a Federal contract award? Reminder the FAR definition of "shall" and checking of SAM.gov could mean many things yet for responsibility it would seem 9.104-6(a) is clear.
  7. I apologize for the mis-read. I was amazed that it was the best point made now, but it was not when made a few days ago. Thank you!
  8. In the most professional manner that I can muster at this very moment, based on the last comments of both of you it is clear that you have little respect for my points and do not attempt to read and interpret them for what they are....informed dialog. The most glaring example is the below quote which I posted to this thread on on Friday November 3 at 7:57am. Respectfully each of you should read with understanding not bias full discussions and move away from I used to do it this way. I too am done trying to reason with either of you. READ gentlemen, READ! "As promoted by the FAR at 33.2 "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." "
  9. I do not see the use of "claim" when requesting correction effort under a warranty as improper. The FAR at 2.101 does define "claim" yet the FAR also provides that (emphasis added) "A word or a term, defined in this section, has the same meaning throughout this regulation (48 CFR chapter 1), unless- (1) The context in which the word or term is used clearly requires a different meaning;..." In research "warranty claim" appears to be a often used term when the discussion is with regard to warranties. In researching I did stumble into use of AI and found this - https://www.genieai.co/define/warranty-claim#:~:text=Warranty Claim means a claim for the repair or replacement,the provisions of a clause. I understand yet there is another approach that I suggested. Again David can choose his course. For the good of the order.....if it does not link automatically simply cut and paste into a browser. What's in a name: REA versus claim - WIFCON.com
  10. Reference? Is not the government making a claim against breach of warranty? What I will term common law views it as such.
  11. First I appreciate your acknowledgement of my earlier post. Your clarification is not quite on point. I provided a suggestion for consideration. The thread flowed from there as @joel hoffman wanted to call into question my suggestion. I then provided additional thoughts as to why a claim might be the option. Now I am going to be specific to your question acknowledging that David seems to have found a path forward. By the very wording of the OP a 'claim" against the warranty clause was made. Such word usage seems consistent with case law. As such I beleive David would be best served by perfecting a request for money via a claim pursuant to the Disputes clause of the contract. Why? The government claimed against him did they not? Based on the very limited info the government did not do due diligence prior to making the claim, suggesting that an REA would recieve the hand wringing that the government must of been doing and that this discussion has immersed itself in. Moving directly to a perfected claim puts the rock in the CO's pocket to either solve the problem at his/her level or make a formal decision. And as acknowledged in this discussion there is a question as to which clause would be the basis for an REA. All said a claim is a solid path that protects David and his request for money with a gut feeling that he would most likely get to a claim anyways. To the point that a "claim" sets a poor stage of cooperation I have already stated my view but for the good of the order and noting additionally that the government in fact started the claim ball rolling by demanding effort under the warranty clause I offer this. Here is what I would do when I asked for the money - Dear Contracting Officer - I am submitting this claim pursuant to the Disputes Clause not infereing that an adversary relationship exists but to afford the company of its rights in reaching a mutual agreement at your level based on your claim against the warranty of contract XXXXX. I think we all know that the simple use of REA that the government is not going to roll over and say here is your money. The discussion seems to imply it will and that is wrong minded in my view. A claim highlights that the contractor means business and wants the CO to take the matter seriously. Neither good nor bad but a right afforded by the contract. I will acknowledge there is debate in the world of Federal contracting as to what constitutes an REA and a claim and what is the best route and that was my basis for my first post in this thread. Cornered by continued discussion I will stand by the above in this case based on the facts, albeit limited, that the request should be in the form of a claim.
  12. I believe you have missed salient quotes in the case. Example: "We conclude that GSA has failed to prove the elements of its warranty claim." and "Regarding the second element of the warranty claim..." This said David has provided his response to the full discussion regarding his original post and feels he has a path forward.
  13. Therefore my question. Paragraph (C) of the citation Joel provided - "The contracting officer could request the data through a solicitation provision."
  14. No sir. The Government asserted a "claim" pursuant to the warranty clause. For sake of discussion I will believe David that the government was wrong to assert such a claim. Therefore the government can not prove its claim and owes David money. As promoted by the FAR at 33.2 "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." If the government denies said money to David, David then has the ability to assert a claim against the government for the money. Not spot on but I encourage a read of the following. Make it easy on yourself....fast forward to page 56 and after a read there fast forward to page 86. https://www.cbca.gov/files/decisions/2019/ZISCHKAU_12-19-19_2953, 2954, 2955, 3596, 4175, 4377, 5006__SUFFOLK_CONSTRUCTION_COMPANY,_INC. (Decision).pdf
  15. Based on your premise the contractor therefore has a "claim" not a REA. FAR 52.233-4, which I might add is hopefully in the contract as prescribed by the FAR.
  16. A claim pursuant to FAR 52.233-1 or with regard to the Dispute paragraph of FAR 52.212-4 provides remedy to either party of the contract. The action allowed by the clause should not be construed by anyone to be other than a clause that provides for a remedy just like those clauses that provide for an equitable adjustment in contract. To imply or otherwise say so is hogwash. Prefer as they may, not handling a matter as a written demand or written assertion when a close look a the contract provides no other clause for a remedy a contractor puts themselves at a disadvantage and I would not encourage a contractor to do so. David can do as he wishes but use of REA and promote same in the context of this thread, in my view, is not viable nor appropriate advice.
  17. Just a suggestion for consideration. You may in fact want to consider a claim (FAR subpart 33.2) rather than a REA. Discussion with legal counsel will help you pick the appropriate terminology and process if you decide to pursue reimbursement for the costs of your efforts.
  18. And herein lies the problem. The history of Federal acquisition is long and I would offer that audibles are called 99.9% of the time because the quarterback is not well informed. The OP, in my view, is calling for a time out, to reaccess and define a new play as opposed to an audible due to the unexpected presentation of something completely new that is not expected and not been seen before. @ArrieS So it appears you are saying do either one of these but do not create a second CLIN? If so I would agree. (6) Subline items structured to identify different accounting classifications for identical items (delivery schedule shall be established for each subline item, not the contract line item). AJ: 17X150518350315069100000192B000000000000000000 AK: 17X150518370317569100000192B000000000000000000 AL: 17X150519350314369100000192B000000000000000000 ITEM NO. SUPPLIES/ SERVICE QUANTITY UNIT UNIT PRICE AMOUNT 0002 Pulse Decoder KY-312/A5Q-19 EA $3,037.40 0002AA Pulse Decoder KY-312/A5Q-19 ACRN: AJ 2 $6,074.80 0002AB Pulse Decoder KY-312/A5Q-19 ACRN: AK 6 $18,224.40 0002AC Pulse Decoder KY-312/A5Q-19 ACRN: AL 2 $6,074.80 NOTE: Unit price may be shown at line item level and total amounts shown at subline item level. (7) Informational subline items established to identify multiple accounting classification citations assigned to a single contract line item. ITEM NO. SUPPLIES/ SERVICE QUANTITY UNIT UNIT PRICE AMOUNT 0001 Air Vehicle 1 EA $6,700,000 $6,700,000 000101 ACRN:AA $3,300,000 000102 ACRN:AB $2,000,000 000103 ACRN:AC $1,400,000
  19. No sir. The FAR does make it complicated. CO may use FAR 13.5 simplified acquistion procedures for a commercial products and services. The procedures may be any in FAR part 13. But when the CO does FAR part 12 applies and if the CO uses other parts of the FAR, FAR part 12 takes precedence. So in the context of this thread here is how I see it, what do you think? The procurement was done pursuant to FAR Part 13.5, Simplified Procedures for Certain Commercial Items. As such FAR 52.212-1 should have been included in the solicitation and paragraph (l) applies. Aside - Should have the agency tailored 52.212-1 if for the particular market place debriefing does occur and essentially follows FAR 15.506 (without the specific timing but at anytime) whereby the original paragraph (l) of 52.212-1 would be inconsistent with the marketplace? And what if the agency did not tailor does a offeror have a case for protest that they should be debriefed following that as occurs in the market place and in the same detail as provided for in FAR 15.506 if that is what the market place does?
  20. Sure you can mark it but other statutes and regulations may control the informations disclosure. In stating this I do not to make you concerned as in my experienced view the information you note shall in general not be disclosed. The information you note is specifically addressed in the Freedom of Information Act and its implementing regulations. Here is a couple of Federal Acquisition Regulation (FAR) references that may help your thought process. FAR 3.104-4 Disclosure, protection, and marking of contractor bid or proposal information and source selection information. And FAR Subpart 24.2 - Freedom of Information Act
  21. Quite a challenge. My thoughts in no particular order. Have you asked why the boss thinks performance based will work best for the situation? No technical requirement owner? Presume that means no program area for the assist? Leaves a big hole as to what mission accomplishment looks like. This may require you to do more extenisvie market research. SAM.gov for examples of audit services procured by other agencies. An RFI, possibly with a sample work statement, to engage input from entities that provide audit services to gauge if you are on the right track. Even entertain a pre-solicitation get together with industry for their input on the RFI and invite the boss to observe to understand better the challenges of putting the perfect contract together. While you might find a decent example avoid using it exactly for your need. I know crazy thought but maybe ask the boss to provide input on whatever best sample you find for buy in. Here are some links that might help help you zero in. Good luck...... https://www.gsa.gov/system/files/CCAS Ordering Guide May 2023.pdf https://oig.hhs.gov/oei/reports/oei-07-99-00430.pdf PS - I just finished this when formerfed posted. Some of my content relates to his content.
  22. How about both FAR part 12 and 13, I could live with that? Yes each procurement stands on its own when it comes to matters in conflict when handed to someone like GAO to adjudicate. I did a little more looking. My thoughts are swayed in part but not completely as noted above. Seeing the instant procurement would help me zero in my thoughts and I still feel the agency response is not well perfected. https://www.gao.gov/assets/b-411284.pdf And
  23. Just dipped my big toe in. First thought off the bat is I did not see a Sealed Bid choice. Maybe missed it, if I did sorry, if not should it not be included? More decisions, I wonder? I am use to attorney desk books issue by various entities, along with the GAO Red Book. For these two they seem to concentrate on primary cases that are based on historical case history. Too many might muddy the waters. I will keep looking as I can and pass along other thoughts if I have them.
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