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ji20874

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Everything posted by ji20874

  1. Don't these questions apply to EVERY evaluation of a technical proposal where the technical proposal is not incorporated into the contract? I am generally okay with subjective evaluations for many procurements. After all, as the GAO reminds us, the responsibility for persuading the Government evaluators falls squarely on the offeror.
  2. I understand where you're coming from. However, I think the text in FAR 15.206(e) is entirely adequate to answer the question regarding (1) amendment or (2) cancellation/new solicitation. The original poster should simply read FAR 15.206(e) and then simply apply it as it is written. For me, I think appeals to the cardinal change doctrine or any other text is unnecessary -- we need to rely on the applicable text in the FAR, which is really quite clear (even though it leaves room for contracting officer judgment). I haven't posted a link to FAR 15.206(e), but I really hope anyone reading this thread will find it and read it.
  3. Doesn't the cardinal change doctrine apply only post-award? I think this thread is pre-award, and I would prefer not to think of cardinal changes in pre-award settings.
  4. I think there will be very few who agree with your approach. The result of your approach is that a solicitation amendment could almost never be issued (as every amendment would change something) -- that would be an absurd or unreasonable outcome, so I cannot endorse your definition. I recommend reading FAR 15.206(e), which provides an answer to your question of whether a contracting officer should (1) issue a solicitation amendment; or (2) cancel the solicitation and issue a new one. Indeed, I recommend using only that guidance to answer your question. You will note that the word "major" is never used there, and that there is room for judgment. We generally speak of amending solicitations and modifying contracts (to wit: see blocks 9, 10, 11, and 13 of the SF-30).
  5. It seems that Charlotte's situation does not involve schedule contracts.
  6. Doesn't the contractor have a say in this matter? After all, both parties have to agree.
  7. For contracts performed in a foreign country, the contracting officer determines the acceptability of a surety if it is impracticable for the contractor to use Treasury-listed sureties. See FAR 28.202(b). Here, the contracting officer is already reaching beyond Treasury-listed sureties by allowing bonds from any federally-insured bank — that is generous of the contracting officer — it might be unreasonable to expect him or her to stretch any further, especially if adequate competition can be obtained with the current generosity. Any person required to furnish a bond has the option, instead of furnishing a surety on the bond, of depositing certain U.S. bonds or notes in an amount equal at their par value to the penal sum of the bond. In such a case, the contractor must also provide a duly executed power of attorney and agreement authorizing the collection or sale of each bond or note in the event of default. See FAR 28.204-1. Similarly, such a contractor may also provide cash or an irrevocable letter of credit in lieu of a bond. See FAR 28.204-2 and -3. The solicitation lists what the contracting officer thinks of as acceptable, but this does not limit you from using one of these other alternatives. See FAR 28.201(b).
  8. I’m talking about the present reality...
  9. That's for the contractor to decide, right?
  10. The FAR is not silent on this. See FAR 1.108(d).
  11. No. The Government is expected to be fair, but there is no requirement to answer questions.
  12. If-- all work under the base period CLIN is finished and the CLIN there is a stand-alone CLIN (with its own stand-alone obligated funding, estimated cost, and fixed fee amount), and the de-obligation is an administrative action to remove excess funds, and the work in the option one is stand-alone work in a stand-alone CLIN (with its own stand-alone obligated funding, estimated cost, and fixed fee amount), then NO, you should not update the information in the local clause. Your administrative de-obligation has no impact on the rights or obligations of the parties, but the information in the local clause does -- so leave the clause and its fill-ins alone to reflect the amount the contractor's costs may rise to. If the indirect cost settlement is higher than you anticipate, you might have to re-obligate funds to cover the government's obligation -- if not, you might later be able to de-obligate even more money. Joel, I found the clause -- it is a Navy clause to be used in conjunction with the Limitation of Funds clause.
  13. To me, it seems very sloppy to have a local clause with the EXACT same name as a standard FAR clause -- couldn't they have found a new name for the local clause? If I understand correctly, the base CLIN is finished -- all the work is done, and closeout of that CLIN will occur as soon as the indirect rates are finalized and settled -- and all new work is being done under a new option one CLIN, with its own stand-alone estimated cost and fee -- nothing from the base CLIN rolls over into the option CLIN. If that is right, then YES, you may de-obligate excess funds as an administrative function (unilaterally), but be careful not to de-obligate too much, as retreadfed makes a good point about future coverage of those indirect rates.
  14. And, tell us if option one is merely continued funding of work started under the base period (it’s all mixed together) or if option one is a separate CLIN for a new period of performance (the work under the base is finished and the work under the option proceeds).
  15. Construction is never commercial (FAR Part 12), so a fixed-price construction contract will always include the Suspension of Work clause at FAR 52.242-14. The Stop-Work Order clause at FAR 52.242-15 is inapplicable to contracts for commercial items. The prescribing language for that clause is absolutely trumped by the text at FAR 12.301(d). That's a fact, and we need to accept it -- no stop-work orders for contracts for commercial items. However, in an exceptional case, if a contracting officer decides that a stop-work order privilege is necessary, he or she may add the clause in the solicitation and resulting contract under FAR 12.301(e) after determining that a stop-work order is consistent with commercial practice or obtaining the waiver contemplated by FAR 12.302(c). The Government has already screwed up the administration of your contract -- please don't screw up further by issuing an unauthorized stop-work order.
  16. Trish, You mentioned the limitation of liability clause -- which clause were you referencing? The clause at FAR 52.246-23, Limitation of Liability; 52.246-24, Limitation of Liability - High-Value Items; or 52.246-25, Limitation of Liability - Services? Regardless, I cannot see how any of these fit the question. I wonder if you really intended to mention the clause at DFARS 252.232-7007, Limitation of Government's Obligation?
  17. I don't think the contract expressly addresses payment for scaffolding -- if it did, the original poster would not have started this discussion. But it is okay -- the contract clause at FAR 52.232-5 still provides for progress payments (not reimbursement of incurred costs). The contractor can make a payment request based on the estimate of work complete represented by the erection of the scaffolding (but not reimbursement for incurred costs for the erected scaffolding) -- although it will be serendipitous if the percent complete and incurred cost numbers coincide. At least, this applies if the clause at FAR 52.232-5 is the basis for the desired payment, which I think is the case because that is what the original poster cited in starting this thread. Yes, let's apply the contract by reading and following the contract clause at FAR 52.232-5. And yes, work it out -- the contractor needs to persuade the agency (the agency does not need to persuade the contractor). All this being said, if the contractor is unable to persuade the agency to make an immediate payment in the amount it seeks, it may (1) drop the matter; or (2) pursue remedy under the contract's Disputes clause.
  18. Really? I didn't think we reimbursed contractors based on their incurred costs under the clause at FAR 52.232-5, which is the subject of this discussion back to the original posting. FAR 52.232-5 says we'll make progress payments based on estimates of work complete. If scaffolding erection is not preparatory work, then the answer to the original poster's question in the original posting is that it is not entitled to reimbursement of costs (or any payment at all) for scaffolding erection under para. (b)(2) of the clause at FAR 52.232-5. It might be entitled to some payment under para. (b) and (b)(1), but not (b)(2).
  19. Then, it seems that comparing scaffolding erection to concrete forms is inapt and irrelevant in a discussion on treating scaffolding erection as preparatory work, right?
  20. Joel, Does forming for concrete fall under preparatory work for purposes of FAR 52.232-5?
  21. In an invoicing situation, the burden of proof is generally on the contractor. If the contracting officer can't find it, the contractor should point to something in the contract that specifies its entitlement to immediate reimbursement of its incurred costs for scaffolding erection. If the contract specified exactly how scaffolding costs would be paid, then there would be no discussion here. But it seems the contract does not so specify. The agency's position seems to be reasonable -- other practitioners might approach the situation differently, but that doesn't mean the agency's position is unreasonable. Right. Ideally, the contractor will point to something in the contract that clearly specifies its entitlement to immediate payment for its incurred costs for the scaffolding. If not, it can still get a progress payment based on the estimate of work complete represented by the erection of the scaffolding (but not reimbursement for incurred costs) -- although, it will be serendipitous if the percent complete and incurred cost numbers coincide, right ;-). At least, this applies if the clause at FAR 52.232-5 is the basis for the desired payment. All this being said, if the contractor is unable to persuade the agency, it may (1) drop the matter; or (2) pursue remedy under the contract's Disputes clause.
  22. Okay. So, after all that happens, would you approve a payment to reimburse the contractor its actual costs for the erected scaffolding? Or would you approve a payment based on the percent of work complete represented by the erection of the scaffolding?
  23. Well, I thought the agency established that pay stubs were preferred, not mandatory. How is it unstated? It seems as though it is stated in Question 4. Don’t answer here — but you should expect to address these matters as the protest works its way through the process.
  24. I don’t think it applies directly to proposals at all. It seems to me that the clause applies to the company’s processes and procedures for its corporate estimating system whenever the contractor submits proposals (to public and private sector customers) in the expectation of receiving contract awards. It applies at the back-office or system level.
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