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C Culham

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Everything posted by C Culham

  1. Reference? Is not the government making a claim against breach of warranty? What I will term common law views it as such.
  2. 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.
  3. 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.
  4. Therefore my question. Paragraph (C) of the citation Joel provided - "The contracting officer could request the data through a solicitation provision."
  5. 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
  6. 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.
  7. 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.
  8. 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.
  9. 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
  10. 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?
  11. 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
  12. 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.
  13. 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
  14. 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.
  15. Did you know that if you are registered in SAM.gov that you can establish a Login account that allows you to view the general registration of any firm in SAM.gov? Looking up the prime and viewing their core business info might give you an idea of exemption. I say this profit status of business is shown. It would seem to me that if the prime is a for profit business they would not be exempt from taxes. I like here_2_help's response too.
  16. Shooting from the hip yet I do know the Competition in Contracting Act does not apply to FAR Part 13. So is the rule statutory or regulatory? Otherwise I do agree.
  17. So we are going full circle. I pointed out Logan early on and I think I get why Jamaal thinks it is not applicable - multiple BPA's were established. Yet as the discussion unfolds I would agree Logan applies. But it does get tricky thinking about such things as FAR part 5.... If individual calls are stated to be over the micro purchase threshold yet under under $25,000 what is extent of competition? Post the proposed BPA somewhere and say there will only be one BPA issued? Additionally document the file with a single source determination that calls into application (FAR 13.302(c)(2)). It would seem this would avoid a GAO adverse view if protested. While the FAR provides that that the existence of a BPA does not justify purchasing from one source (13.505-1(c)) does not the FAR allow that further determination could via a single source determination(FAR 13.106-1(b))? If individual calls are stated to be over the micro purchase threshold and over $25,000 what is extent of competition? Post the proposed BPA on SAM.gov say there will only be one BPA issued? It would seem this would also solve an adverse view of GAO. The extent and ability of a single source determination to stand the muster of GAO as to why only one BPA supports that only one source is reasonably available. In the context of a BPA I would think doing so would take some very unique thinking but there is, in my view and in consideration of the Logan decision, a way to make it happen.
  18. For the sake of discussion where in FAR part 13 does it say you must have a solicitation to establish the BPA(s)? Seems that it is the first hole in your premise.
  19. This decision speaks directly to your question. https://casetext.com/case/arko-executive-services-inc-v-us
  20. Ok on closer read I better understand the question. As a call is the procurement action why couldn't a CO utilize FAR 13.106-1(b) to do so. Use a single source determination per call. Or, make a single source determination when establishing the BPA.
  21. I find this thread to be most interesting. There is an indication of a long term failure of RFP's that provide that multiple contractors have failed to perform. This is coupled with no indication of the exact work, the magnitude of the work, how the work is defined (PWS or otherwise) and the comments seem to be provided by someone that is a program office person and not a CO or COR. The individual has asked how to improve the RFP process to improve contract performance. Based on the limited information how does one know that it is the RFP process and not that of contract administration or even a skewed view of what the contract is to accomplish. I have especially wondered about the whole matter based on this in the original post "on who a contractor puts into a position" and follow-up comments that seems to provide that there is no key personnel clause in the contrat. Person put in a position? Is not an outcome being acquired? How does person matter within the scope of the work defined if there is not key personnel clause? I do not need a reply to my thoughts but my comment for @goviegogo it is that I (again based on limited info) think you are looking in the wrong place. You should be looking at contract administration and the relationship you have with your contracting shop on how contract performance are meeting both the terms and conditions and program expectations of what the accomplishment of contract effort actually is to be. I say this especially noting that you express that the problem is in my terms systemic.
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