ji20874

What is the real circumstance?

1. Supplies.
2. Services.
3. Something else?

1. Government made an order, vendor has not delivered/performed, vendor has not charged card.
2. Government made an order, vendor has not delivered/performed, vendor has already charged card.
3. Government made an order, vendor has delivered/performed, vendor has not charged card.
4. Government made an order, vendor has delivered/performed, vendor has already charged card.
5. Something else?

With facts, you might get better answers.

2 hours ago, joel hoffman said:

...FAR 4.2103 says that the contracting officer “may rely” on the representations...

Your statement is incomplete and, it appears to me, is intended to mislead WIFCON readers.  FAR 4.2103 says the contracting officer may rely on the representations unless the contracting officer has reason to question the representation -- you are essentially saying that the contracting officer must not rely on the "will not" and "does not" representations.  I understand that you take this matter seriously, but you are over-reaching. 

The correct principle is that a contracting officer may rely on the representations unless the contracting officer has reason to question the representation.

Joel,

I'm trying to understand your position, so I took the liberty of marking up FAR 4.21 in the way it seems to me that you think it should have been written given that you oppose reasonable contracting officer reliance on offeror certifications. 

Am I getting it right?

-------------------------------------------------

FAR 4.2103 Procedures.

      (a)(1)(i) If the offeror selects "does not" in paragraphs (c)(1) and/or (c)(2) of the provision at 52.204-26 or in paragraphs (v)(2)(i) and/or (v)(2)(ii) of the provision at 52.212-3, the contracting officer may [shall not] rely on the "does not" representation(s), unless the contracting officer has reason to question the representation. If the contracting officer has a reason to question the representation, the contracting officer shall follow agency procedures.

      * * * * *

      (a)(2)(i) If the offeror selects "will not" in paragraph (d)(1) of the provision at 52.204-24 or "does not" in paragraph (d)(2) of the provision at 52.204-24, the contracting officer may [shall not] rely on the representations, unless the contracting officer has reason to question the representations. If the contracting officer has a reason to question the representations, the contracting officer shall follow agency procedures.

            (ii) If [Regardless of whether] an offeror selects "will" [or “will not”] in paragraph (d)(1) of the provision at 52.204-24, the offeror must provide the information required by paragraph (e)(1) of the provision at 52.204-24, and the contracting officer shall follow agency procedures.

            (iii) If [Regardless of whether] an offeror selects "does" [or “does not”] in paragraph (d)(2) of the provision at 52.204-24, the offeror must complete the disclosure at paragraph (e)(2) of the provision at 52.204-24, and the contracting officer shall follow agency procedures.

      * * * * *

-------------------------------------------------

23 hours ago, joel hoffman said:

How is an offeror supposed to know if a company is or isn’t a subsidiary of a prohibited source? By relying upon a certification by that company?

Yes.  "[W]here an agency has no information prior to award that would lead to the conclusion that the vendor, or the product or service to be provided, fails to comply with the solicitation’s eligibility requirements, the agency can reasonably rely upon a vendor’s representation/certification of compliance."

From the GAO case provided by Carl--

Quote

 

Compliance with Prohibited Telecommunications Regulations

V3Gate contends that the VA failed to meaningfully consider whether purchasing Lenovo products from AATD complied with FAR clause 52.204-25, which prohibits agencies from contracting for certain telecommunications equipment. V3Gate Protest at 10. In this regard, V3Gate broadly argues that the Lenovo computers quoted by AATD “fall within [the] expansive definition” of covered equipment found in FAR clause 52.204-25, as equipment linked to the Chinese government. Id. at 11. The protester asserts that the agency was required to analyze whether issuing a delivery order to AATD complied with FAR clause 52.204-25. Id. at 12.

In response, the agency asserts that it fully complied with the applicable regulatory prohibition. V3Gate MOL at 12. Specifically, the VA explains that it included the pertinent FAR clauses in the solicitation, and requested that vendors self-certify whether they provide covered telecommunications equipment in their quotations. Id. (citingFAR 4.2105, mandating the insertion of FAR clauses 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment; 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment; and 52.204-26, Covered Telecommunications Equipment or Services-Representation in the solicitation). The VA maintains that the contracting officer here reasonably relied on AATD’s representation that it did not provide covered equipment or services. Id. (citing FAR 4.2103); see V3Gate AR, Tab 15, AATD Quotation, AATD Self-Certifications at 2.

Our Office has repeatedly explained that where an agency has no information prior to award that would lead to the conclusion that the vendor, or the product or service to be provided, fails to comply with the solicitation’s eligibility requirements, the agency can reasonably rely upon a vendor’s representation/certification of compliance. See, e.g., Kipper Tool Co., B-409585.2, B‑409585.3, June 19, 2014, 2014 CPD ¶ 184 at 5 (denying protest that agency could not reasonably rely on representations regarding compliance with the Trade Agreements Act); KNAPP Logistics Automation, Inc.,

B-406303, Mar. 23, 2012, 2012 CPD ¶ 137 at 4 n.1 (same, with respect to the awardee’s small business size certification); New York Elevator Co., Inc., B‑250992, Mar. 3, 1993, 93‑1 CPD ¶ 196 at 2 (same, with respect to compliance with the Buy American Act).

Based on our review of the record, we find no basis to sustain this protest ground. At the outset, we agree with the VA that upon receiving a self-certification from AATD, representing that the company did not provide or use covered equipment, the agency could rely on the veracity of that representation. Specifically, FAR clause 52.204-26 mandates that a vendor should review the excluded entities list in the SAM, and then self-certify compliance with the prohibited telecommunications regulations. Further, FAR section 4.2103 provides that the contracting officer may rely on vendors’ “does not” or “will not” “representation(s) [included in FAR clauses 52.204-24 or 52.204-26], unless the contracting officer has reason to question the representation.” FAR 4.2103(a)(1)(i), (2)(i).

Here, there were no concrete indications that AATD was providing prohibited telecommunication equipment. In fact, V3Gate does not claim--nor can it--that Lenovo is subject to any exclusion listing. Rather, the protester asserts that, in light of the “well-known connection between Lenovo and the Chinese Government,” the VA should have investigated the truthfulness of AATD’s representation that its quoted products were not prohibited telecommunications equipment. V3Gate Comments & Supp. Protest at 11.

We see no merit to the protester’s contentions. While the protester cites to a number of publications, including a 2019 Department of Defense Inspector General report and the 2015 cybersecurity alerts issued by the Department of Homeland Security, which warn of cyberespionage risks associated with Lenovo products, there is no evidence that the contracting officer was aware of these sources or should have been. Accordingly, we do not find that this information gave rise to an obligation to investigate AATD’s FAR clauses 52.204-24 and 52.204-26 representations.

Nor do we agree with V3Gate’s allegation that the contracting officer was required to investigate “whether or not the Secretary of Defense . . . belie[ves that Lenovo was connected to the government of China, by] contacting the [Department of Defense] or reviewing other published lists of such published entities.” V3Gate Comments & Supp. Protest at 12; see also Protest at 12. We find no such a requirement in the existing regulations. This protest ground is denied.

 

A contracting officer's reliance on an offeror's self-certification in these circumstances is entirely reasonable.

But the OP might be asking from the offeror's perspective, which is different from the contracting officer's perspective.  An offeror needs to do what FAR 52.204-24/25/26 asks for.

Please be careful that you don't make this harder than it needs to be.  For example, see the definition of "reasonable inquiry" and an offeror's/contractor's duty thereto in FAR subpart 4.21 and the provision and clauses it prescribes.  And also, note that the contracting officer may generally rely on an offeror's representation of "does not" or "will not" in these matters.

2 hours ago, pconner said:

My thinking is that it "is not required" but wanted to make sure I wasn't missing something. 

I've read the contract(s) and there is no mention of requiring us to inform or request permission of either the CO or COR for us to change labor categories. I've sent notices to both CORs and COs to provide situational awareness and haven't had any pushback other than ensuring it won't impact the cost/price to the contract.

Right on...

pconner, I wondering -- based on your readings so far, what are you thinking?  Are you thinking that permission probably--

• (A) is required; or
• (B) is not required? 

Why?

In addition to reading the FAR, would you consider reading the text of the contract(s) you are wondering about?  After all, it seems to me that it is the contract text that matters.  Might it be possible that one T&M/LH contract might have a different answer than another T&M/LH contract?

creyes814, I hope you will engage with an answer to my question -- it will be beneficial for your learning.  In the question, the pronoun "you" need not point to you personally, but could point to your organization since you might just be a cog in the wheel of your organization.  Let me re-word the question (editing shown in italics):

• By unnecessarily re-styling these notices as RFPs, I wonder if you or your organization are unnecessarily encumbering yourself with the procedural baggage that we think of as going along with RFPs?

And I'll add an additional question, based on your consideration of the above question:

• Are you or your organization willing to stop styling these notices as RFPs, and instead style them as notices and prepare them under the guidelines of FAR 16.505(b)(1)?

5 hours ago, Don Mansfield said:

Are you saying . . . ? Or are you saying . . . ?

I asked the OP a question:  By unnecessarily re-styling these notices as RFPs, I wonder if you are unnecessarily encumbering yourself with the procedural baggage that we think of as going along with RFPs?

creyes814, Here is something for you to consider: the FAR does not require an RFP for a task order opportunity. 

Above the micro-purchase threshold, you simply have to "provide each awardee a fair opportunity to be considered for each order."   No notice is required, and you "need not contact each of the multiple awardees under the contract before selecting an order awardee if the contracting officer has information available to ensure that each awardee is provided a fair opportunity to be considered for each order."  See FAR 16.505(b)(1)(i) and (ii) for more information.

Above the SAT, you have to provide a "notice" and "[a]fford all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered."  See FAR 16.505(b)(1)(iii) for more information.

Above $6 million, you similarly provide a "notice" that includes the factors and subfactors "that the agency expects to consider in evaluating proposals."  See FAR 16.505(b)(1)(iv) for more information.

By unnecessarily re-styling these notices as RFPs, I wonder if you are unnecessarily encumbering yourself with the procedural baggage that we think of as going along with RFPs?

A broad assertion by an acquisition professional that he or she "always considered considered (sic.) everything a record" seems to me to demonstrate a profound ignorance of case law and fundamental correct principles.  That's my opinion.

But clearly, some in our community (like Don) do indeed consider every scrap of paper, including individual evaluator notes, to be a record.  Others (like every other poster in this thread) do not. 

Each practitioner needs to decide for him- or herself, based on the facts and within whatever leeway is allowed by his or her agency.  There is no universally-agreed-upon answer.

It depends on whether the PCO (or the agency) (1) understands the law or (2) blindly obeys the agency's overly-cautious and not-respectful-of-case-law attorneys.  I esteem the GAO case law as correct, and PCOs who understand the law do not feel a need to automatically retain individual evaluator notes -- they understand that those notes might not be records*.  Overly-cautious and not-respectful-of-case-law attorneys (unfortunately, some agencies have them) will say every single scrap of paper is a record, and will even insist that evaluators create notes just so they can save them as records -- those attorneys are wrong, but no one can say they are wrong because they are attorneys.

*The source selection evaluation report, decision document, and so forth are records.  Individual evaluator notes are not records.

6 minutes ago, Retreadfed said:

On cost reimbursement contracts, contractors don't invoice for hours worked but for costs incurred.  You've got to come off the notion of invoicing for hours.

Right!

On 7/8/2023 at 12:17 PM, Retreadfed said:

The question you have raised is how to account and bill for uncompensated overtime (UCOT).

No, the question was "how do you invoice for the hours expended by salaried employees?" and

Quote

If the employee is on salary, he or she isn't getting paid more, so the company hasn't incurred additional cost. If the company invoices for all hours worked, wouldn't that result in a windfall for the company? Do invoices get adjusted to account for the actual cost of the employee, as opposed to the hours worked? 

OP was not asking about internal bookkeeping and accounting for uncompensated overtime (UCOT).  He or she was asking about invoicing for UCOT hours -- the simple answer is that the contractor does not invoice for UCOT hours.

A contractor does not invoice for an hourly rate in a cost-reimbursement contract -- rather, a contractor invoices for incurred costs.  If a salaried employee's salary for a two-week pay period is $10,000, and he or he works full-time only on this one contract, the contractor invoices for $10,000.  It is irrelevant for invoicing purposes whether the employee works 40-hour weeks or 45-hour weeks.  UCOT is not an incurred cost, so It is not invoiced on a cost-reimbursement contract.

The provision at 52.237-10, Identification of Uncompensated Overtime, is used in solicitations and applies to proposals -- it is not included in contracts and is irrelevant to invoicing questions.

Simple answer:  UCOT is uncompensated, by definition -- the employee is not compensated for UCOT, and the employer does not pay the employee for UCOT, so UCOT is not an incurred cost and the contractor does not invoice the government for UCOT.  A cost-reimbursement contract reimburses a contractor's incurred costs -- it does not pay for billable hours.  Thinking with a billable hours mindset is error.

You said cost-reimbursement, right?  The contractor invoices for incurred costs (within the guidelines of the contract and FAR part 31).

3 hours ago, Fitz said:

...I find myself wondering what my objective is...

Yes, pray tell, what is your objective?

3 hours ago, Fitz said:

...The Vendor has been paid in full...

Then why disturb the vendor's peace with a contract modification?  A ratification gives you authority to pay, but you have already paid.

Instead of starting a ratification process, should you be starting an Anti-Deficiency Act process?  

Have you read the excusable delays text in para. (f) of the contract clause at FAR 52.212-4?  You really should.

45 minutes ago, PATRICK3 said:

...how are we going to harm the contractor...

Why do you want to harm your agency?  Why do you want to shift all of the contractor's costs associated with the nationwide strike to your agency?  Let the contractor deal with the nationwide strike, and let the contractor deal with any cost impact.  After the strike, you can use the excusable delays text in your contract to accept late delivery or performance without shifting the contractor's costs to your agency. 

If a "country is having a strike," you must be outside the U.S. -- based on this new information, I most sincerely advise you not to rush a Stop Work order.  Since you have a commercial contract, I am supposing you don't have a construction contract, and you don't have a cost-reimbursement contract -- so I cannot imagine why you would want a Stop Work order.

A strike is an excusable delay -- it is already covered by your contract.  You do not need a Stop Work order to accommodate a strike.  There might be, maybe, some other facts that call for a Stop Work, but you haven't shared any such facts.

A strike does not necessitate a Stop Work order.

Generally, a company's contractual obligations remain in place even when it faces a strike.  Assuming you are Government, why do you want to relieve the contractor of its contractual obligations because it may face a strike?  Do you need anything beyond what is already provided for in under excusable delays in para. (f) of the contract clause at FAR 52.212-4 give you the coverage you need?

My advice is to drill down on the question:  WHY are you thinking about a Stop Work order?

Why do you want to relieve the contractor of its responsibilities, and why do you want your agency to assume any and all costs associated with the contractor's stopping work?

My advice is not to rush to a Stop Work order.

Well, if you look at what I actually wrote, and if you read the zero cost risk statement within the context it was presented, then what I wrote is true.  However, if you strip it from its context, then yes, it is no longer true -- but stripping it from its context is unfair, and I want to expect better here.

The MCS case allows for the exercise of an unevaluated option:  "In such circumstances, the agency must justify the use of noncompetitive procurement procedures in accordance with FAR Subpart 6.3 before exercising the unevaluated option."  A J&A or similar document based on appropriate facts could have made a difference in the case.

I don't know what your prime wants, but FAR 2.101 has a definition of "data other than certified cost or pricing data."

The fee is fixed.  An increase in your costs will not reduce or "eat in to" your fee.

The Government has promised to pay all of your costs (reasonable, allowable, and so forth) plus a fixed fee.  You have zero cost risk.  Are you now wanting the Government to pay more than the fixed fee you already bargained for?  Why?

Carl,

You are moving the goalposts.  The question is "Basically, do COs need to seek waivers for the NMR and BAA when we issue orders off of existing government contracts?"  The answer is no.

Your citation doesn't fit the discussion.  As a general rule, the contracting officer has no affirmative duty to determine the size status of indefinite-quantity contract holders before placing an order -- your citation makes the case that the SBA may do its thing if there is a size challenge, and I am fine with that, but that is wholly irrelevant to this discussion thread.  Even so, we're talking about orders for supply items -- there might not even be any "separate procurement[s]" going on.

Issuing orders is supposed to be easy.  Too many people want to bog the process down and sink the ship by imposing all sorts of unneeded demands on the ordering process.  

33 minutes ago, Vern Edwards said:

I don't care about the OP or his/her circumstances.

I do care about the OP's circumstance, and am trying to be helpful to the OP.  A determination that an offeror's price is too low is a valid basis for a determination of nonresponsibility once the apparently successful offeror has been selected.  Of course, it goes without saying that "too low" will have to be supported in the determination -- I agree that your example from case law may be helpful to the OP, notwithstanding your lack of care for the OP or his or her circumstance.

I don't think PAE Government Services, Inc., B-407818, fits the OP's circumstances.  Nothing in the PAE decision would stop a nonresposibility determination in the OP circumstances.  Indeed, the GAO affirms in PAE that "a determination that an offeror's price on a fixed-price contract is too low generally concerns the offeror's responsibility, i.e., the offeror's ability and capacity to perform successfully at its offered price."

I also don't think J.A. Farrington Janitorial Services, B-296875, fits.  Like PAE, that case dealt with the evaluation, not a subsequent nonresponsibility determination.  The agency didn't even evaluate the proposal!  Neither of these cases deals with non-responsibility determinations.

Note that in my comment, I wrote, "...if the company in question is the apparently successful offeror based on your evaluation criteria..." -- clearly, the evaluation and tentative selection has to occur before the question of responsibility or non responsibility even arises.

But if the evaluation has been completed, and the company in question is the apparently successful offeror, the contracting officer can make "a determination that an offeror's price on a fixed-price contract is too low" (note that the GAO uses the words "too low"), along with the other reasons I cited.  The OP's attorney can help him or her draft the wording to make it stick -- all three reasons will need to be fleshed out.

But most likely, I am afraid that the OP will be afraid to do a non-responsibility determination even with the facts presented in the OP -- I hope I am wrong, but it seems contracting officers and their masters are becoming more timid as time passes.