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C Culham

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  1. @Vern Edwards Thank you for the praise. I might add that forgotten in the back and forth on this subject is FAR 52.219-8. Does -8 not give the instructions on how a prime would determine small business size? Does -8 not give the the CO the authority to determine a contractors compliance with 52.219-14? I might add that, as noted before, that I encourage a read of 13 CFR 121.4. As it goes with FAR part 19, and acknowledged before in the whole of Forum, a combined read of the SBA regulations with the FAR is sometimes necessary to provide context with regard to small business matters. Here the question is - Is it wrong thinking to encourage a read of 13 CFR where at FAR 19.000 establishes the Scope with reference to the Small Business Act. And then there is of course FAR 19.501 and its reference to FAR 19.505. My conclusion - We have danced around the limitation matter without giving concise and clear reference to the FAR and its guiding principles. @Don Mansfield That is what I know.
  2. We could continue to quibble the fine details but I do wonder about records of management and business relations, tax delinquencies readily recorded and given to the CO, and trafficking, as officially recorded?? Ask! Red Herring! Would you not agree that the limitation matter does get protests and hearings and extended to False Claim Act matters and as such holds a higher degree of interest than 52.204-4? Otherwise I defer to Vern Edwards further posts along with that of Joel Hoffman's previous ones. Pick and choose as you may in the end there is ability and possibly the need to determine, on the behalf of the government, compliance. I would not want my red face on the cover of Rolling Stone stating that I never proactively reviewed the limitation matter when in the end, at the least, shell organizations get the all the work or at the worst my actions promoted fraud forever. But if you would like, have at it.
  3. Thank you the nuance is understood and I was aware when I made my post. I guess in the same way the comply with reporting performance on Quality of product/service, Cost Control, where applicable, Schedule/timeliness, Management or business relations, SB subcontracting (as applicable) including reduced or untimely payments, Trafficking violations, Tax delinquency, Failure to report in accordance with contract terms and conditions, Defective cost or pricing data, Terminations, suspension and debarments, some I would suggest do not require a contractor to report on nor is there a OMB Control No. for. It would seem to me that if the government expects a contractor to do their due diligence to agree to the limitations clause by submission of a offer and execution (performance?) of a contract, just as they do for say performance of the work overall, then government monitoring is acceptable. I just do not understand why there is always a firestorm when it is suggested by me that the government should do their job in assuring the four corners of a contract are adhered to? Forget about the imitations clause but hold a contractors feet to the fire on adhering to a period of performance and if not expect a reduction in price, what truly is the contractual expectation difference? None, in my view.
  4. Good question but I might suggest in the context of this thread and comments made that the question should be - Please point out where the CO is to report on compliance? The answer would be FAR 42.15, OMB Control number 9000-0142. FAR Guiding Principle - 42.1503(b)(2)(vi)
  5. The following is not an argument against just a reminder with emphasis added.....as I said early on let the contractor figure out what they think with regard making the representation but yet...... 1.602-2 Responsibilities. Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall- (a) Ensure that the requirements of 1.602-1(b) have been met, and that sufficient funds are available for obligation; (b) Ensure that contractors receive impartial, fair, and equitable treatment; No disagreement.
  6. And there you have it the new prescription for 52.219-14, put it in a contract but ignore it and not enforce it unless of course you figure out it was a front after the fact! Me thinks that is exactly the thinking that makes a great legislator as from my single chair it seems the whole dang FAR is based on such thinking that created the law (and yes I mean statute, case law and executive order) that is saddled with today. Knee jerk reaction to stuff that should have never happened in the first place. Yep our bureaucracy is alive by such thinking!
  7. My dead horse analogy was not intended to address your comments but the fact that Vern Edwards enjoys stalking my posts and relating sharp innuendo with regard to my positions on other matters discussed in Forum. Now I can not be sure but Vern's comment was a specific reference to the SCA thread of sometime ago and if so let the shoe fit and if not...oh well my cryptic comment missed the point. I guess I am not as good as Vern at being cynical to an individual's expressed position that is steeped in reasonable conclusions does not fit his own ideals. With regard to your most recent posts Joel I agree in general. Specifically with my 15 years at SBA I was involved with dozens of efforts regarding the limitation clause most with the 8(a) program but many not. Why is exactly as you point out to ensure that small businesses are not just fronts. Some CO's may care about such matters and some may not as in the scheme of things there are lots of clauses in contracts that many CO's do not give a darn about. I would offer that their carefree attitude in part is a matter related to those that express no need to enforce such clauses as they personally think they do not matter for some reason or another. In this case a clause I might add that is based on statute (at Section 46 of the Small Business Act). As it goes an expression of not enforcing a regulatory clause based on statute is our culture. Such things happen every day where people ignore such things as a speed limit. No big deal right until that ignoring directly relates to them. Think about it, who cares about the limitation unless you happen to be the small business whose livelihood depends on winning contracts set-aside and you sit back and watch companies that are not eligible win the contracts all the time, encouraged by COs' that by their very word or actions say they are not wasting their time in enforcing the limitation. Discouraging at the least and at the very most a sad representation of the undermining culture we live in today. Sad, very sad. With regard to the OP I applaud the effort to figure out an easier way to "enforce" the limitation clause. However through experience I do not believe you can dumb it down and have to take effort on each contract as like most things in contracting "it depends" on the actual facts of the matter. Holding the limitation clause up as the epidemy of why the FAR is not perfect in and of itself is a waste of time. Applying a personal enforcement standard in my view goes against the very tenants of the FAR guiding principles and specific to this discussion while one can not find "a CO shall" one also can not find in the FAR where it says that where the limitation matter is a specific strategy, practice, policy or procedure provided for in the FAR that is based on statute that the the CO has full digression to ignore it.
  8. With the above clarification I really do wonder about giving this instruction/advice/calculation format in the RFP. The subcontracting limitation clause, in my words, is a representation made by the contractor they will meet the performance standard on limitation at proposal submission and execution of contract. In making such a representation the contractor should be left to their own devices, pursuant to the clause, as to how they made their determination of compliance. If the government tells them how to they are taking on a responsibility in my view that is not appropriate. The tentacles of application of the limitation clause reach far and wide. Agencies themselves questioning a firms size based on the limitation clause, other firms also questioning, GAO protests, SBA OHA appeals and even DOJ False Claims Act cases ( https://gtpac.org/2019/08/29/doj-cracks-down-on-set-aside-contracting-fraud/) How often, how many, I really do not know. In the end no matter who questions the limitation matter the one that does question will be compelled to prove their position with a preponderance of evidence. In doing so the specific facts of the contract, how it is priced and how such pricing assists in evaluating the limitation matter will play a big role along with what the contractor is actually doing. And then there is 13 CFR 125.6 that carries with it its own examples of calculation. I know my thoughts are not refined for this post but quickly stated they all lead me to think that in the scheme of things putting a calculation method as created by the agency and placing it in the RFP does not make sense to me.
  9. I have read and re-read your example and I wonder if it addresses this portion of the clause (deviation) with regard to services -"Any work that a similarly situated entity further subcontracts will count towards the prime contractor’s 50 percent subcontract amount that cannot be exceeded." My simple calculation to illustrate my wonderment. In this example all dollars relate to principle purpose.- Contract award is for $1,000 to the SB (Prime) Prime subs $500 to LB (not similarly situated) and subs $250 to similarly situated entity. All good at this point. The similarly situated sub then subs $200 to a LB (not similarly situated). Not good now as the subcontracted amount to not similarly situated entities is $700.
  10. Lots to wade through in the links but there is discussion in the IG report and the CBCA decision referenced below regarding warrant authority. Interestingly in the detail regarding warrant authority the modification at issue - P0004 - was a zero dollar obligation modification. https://www.cbca.gov/files/decisions/2020/LESTER_04-09-2020_6188, 6312_CROWLEY_LOGISTICS,_INC. (Decision).pdf https://www.oig.dhs.gov/sites/default/files/assets/2020-09/OIG-20-76-Sep20.pdf https://www.usaspending.gov/award/CONT_IDV_HSFE7016D0204_7022
  11. Again intrigued as being consistent with the FAR guiding principles. The quote provided states "which shall state" and pursuant to FAR 2.101 "Shall denotes the imperative." I had such a warrant for 15 years with the Small Business Administration. But on point an "Unlimited" warrant having no limitations, it seems the watrrant would by the very language on the SF-1402 that provides "Subject to the limitations contained in the Federal Acquisition Regulation and to the following:" Exactly and as such be inclusive of "internal agency guidance at any organizational level".
  12. As I follow this thread I am intrigued by the above statement and related comments on application of FAR dollar thresholds. While I agree the FAR makes no statement about dollar threshold for delegation of authority, except for the micro purchase threshold, yet FAR 1.603-3 does require limitations which are then stated by agencies in dollar amounts on a Certificate of Appointment required by the FAR. Further it would seem a memorandum like that of the VA reference is an extension of the FAR whereby the threshold statement of FAR 1.108 applies. In support of my view the FAR provides at 1.301(a)(2) that "Subject to the authorities in paragraph (c) of this section and other statutory authority, an agency head may issue or authorize the issuance of internal agency guidance at any organizational level (e.g., designations and delegations of authority, assignments of responsibilities, work-flow procedures, and internal reporting requirements)." Luckily agency policy will further solve the threshold question!
  13. Let me add....if a commercial item acquisition pursuant to FAR Part 12 look to FAR 52.212-4 if in the contract (order) for the actual terms and conditions for the language related to Disputes. And I might add that the (d) paragraph of 52.212-4 is not to be "tailored" so if the 52.212-4 is in the contract then Alt 1 is by my read not applicable.
  14. Close maybe. The USDA-Forest Service contract with regard to Smokey Bear licensed items. https://www.fs.usda.gov/working-with-us/contracts-commercial-permits/licensing-of-smokey-bear
  15. No maybe about it...... https://www.va.gov/oal/docs/business/pps/ppm202001.pdf ("value" but not obligation value 🤷‍♂️)
  16. If I were in your shoes my starting point would be to ask the COR for the basis for the request. Or in other words under what contractual authority is the COR requesting the information and what is the purpose of the information.
  17. I would be very interested in responses from active COs where the term "obligate" is stated, or not on specific warrants. I support Vern's interpretation but my hazy memory does recollect obligation language on any warrant I held back in the day. Just wondering.....
  18. 1.108 FAR conventions. The following conventions provide guidance for interpreting the FAR: (a) Words and terms. Definitions in part 2 apply to the entire regulation unless specifically defined in another part, subpart, section, provision, or clause. Words or terms defined in a specific part, subpart, section, provision, or clause have that meaning when used in that part, subpart, section, provision, or clause. Undefined words retain their common dictionary meaning. (b) Delegation of authority. Each authority is delegable unless specifically stated otherwise (see 1.102-4(b)). (c) Dollar thresholds. Unless otherwise specified, a specific dollar threshold for the purpose of applicability is the final anticipated dollar value of the action, including the dollar value of all options. If the action establishes a maximum quantity of supplies or services to be acquired or establishes a ceiling price or establishes the final price to be based on future events, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options.
  19. Not an expert but by the read of your OP the question that was raised in my mind was not what type of contract but the legal authority with regard to the money side of things. Almost sounds like supplementing an appropriation which is a no-no generally speaking. My comment does acknowledges that nothing surprises me in what can be done in the Federal sector so maybe there is a way. It will be interesting following this thread.
  20. A question that has been raised many times with all kinds of responses. In truth the real answer will come from your agency's own policy.
  21. To hold a SIN must you not hold the FSS contract? Per the reference I provided it seems the only level required is to hold a FSS contract not the SIN. I key in on this - " Under Schedule CTAs, contractors complement each other and it allows teams to compete for orders for which they may not qualify independently."
  22. Not saying this answers your question but did you go here? https://www.gsa.gov/buying-selling/purchasing-programs/gsa-schedule/schedule-features/contractor-team-arrangements
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