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ji20874

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Posts posted by ji20874

  1. Who knows what would happen?  That would depend on circumstances and personalities.  If it is happening to you, please share some facts, and others here might be able to share insights.  Services, supplies, or construction?  What contract clause was used to issue the stop-work order (the clause already mentioned in this thread is just one clause that authorizes stop-work orders)?  And so forth...

  2. 20 minutes ago, FrankJon said:

    Let's assume we go the BPA route.

    We would have an executed J&A for all calls thereunder.

    Each call (an email) would be under the MPT, so synopsis requirements would not apply.

    Calls could be grouped together and billed for monthly against an order created in the contracting system.

    Is there a problem with this approach?

    I don't see a problem.  

  3. The rights and obligations of the parties for a stop-work order are found in the clause at FAR 52.242-15, Stop-Work Order (assuming your contract contains this clause and this clause is the basis for your stop-work order).  Generally, a stop-work order may provide an entitlement to an extension in the contract's delivery date or end of period of performance.  After issuing a stop-work order, the Government has two choices:  (1) cancel the stop-work order; or (2) terminate the work covered by the order (see FAR 52.242-15(a)(1) and (2)).  If the Government chooses (1), the contractor may ask for an extension in the contract's delivery date or end of period of performance (see FAR 52.242-15(b)).

  4. Carl,

    • With a BPA under FAR part 13, synopsis can be handled on a purchase-by-purchase basis.  I'm not saying a BPA is ideal for this situation.

    FrankJon,

    • Is your intermediary (prime contractor) a mandatory source?
    • Are the 5,000 different sources state and local government organizations?
    • Carl is right -- since you are sole source, you can work it all out with the intermediary.
    • For me, I would envision contracting with the intermediary for whatever value the intermediary provides (you haven't told us what the prime contractor does).  May a flat fee per transaction, say fifteen cents.  I would envision the payment to the 5,000 sources as direct reimbursable to the intermediary (direct reimbursable, not cost-reimbursement), with the intermediary simply as a pass-through.  So if a transaction involved a five dollar payment to one of the 5,000 sources, you would pay the intermediary $5.15.
  5. formerfed,

    Why not just follow the terms agreed to by the parties when they formed the contract?  Being reasonable and fair means implementing the agreement for which the parties bargained, as reflected in the T&Cs of the contract.

    A construction contract using the standard FAR clauses apportions risk as part of the bargain.  For unusually severe weather beyond reasonable expectations, the contract provides for more time (but not more money).  That is fair.

    What you are suggesting already exists for many agencies — it is called Public Law 85-804.  A distressed contractor may petition for relief under Pub.L. 85-804, but this is neither a REA nor a claim.

  6. So, the “intermediary” is the prime contractor?

    What does the prime contractor do?

    Is each “source” a subcontractor to the “intermediary”?  Government-directed subcontractor, or selected-by-the-prime subcontractor?  Or is each source just a normal supplier, approached on a transaction-by-transaction basis?

    Don’t dismiss SAP so quickly — you can do a BPA for commercial items with no overall ceiling or maximum but each individual purchase doesn’t exceed $7 Million.

  7. 10 minutes ago, kathilou said:

    Now, this almost circles back to the question I asked yesterday about the Hurricane Michael effect on labor and material prices.

    So, the other posting from yesterday was about a construction contract?

    The standard FAR clauses for construction contracts do not envision an increase in the contract price to cover a contractor's increased costs because of an unusually severe weather happening -- they do provide for additional time (well, they bar T4D because of not meeting the end date, which effectively is a grant of additional time), but not additional money.  This has been tested many times and the rule holds true.

    But if the contractor had purchased builder's risk insurance, and that insurance covered hurricanes, then the insurance company would cover the contractor's additional costs.  That is fair.  If the contractor didn't buy the insurance, or didn't buy a solid policy, then any cost impact remains with the contractor.  That is fair.

  8. 35 minutes ago, joel hoffman said:

     Whether Direct or indirect wasn’t part of  the actual question.

    Must the contractor purchase it and is it allowable were the OP’s expressed concerns in the thread.

    Not so.  Please re-read the original posting at the very top of this thread.  The question was expressly whether builder's risk insurance can be a direct cost -- here's the quote:  "can it be considered a direct cost on their proposal?"

    Not having gotten a direct answer from the Government, I can easily see a contractor shifting to ask, "Does the Government require...?"  But really, that is a question in disguise, because if the Government answers YES, the contractor will use that as a basis for a direct charge.

  9. “...the contractor had only asked if we require them to carry it [builder’s risk insurance] and to what limits...”

    The contractor should consider purchasing this coverage for its own protection and to meet its own contractual obligations.  Maybe the real question isn’t whether the construction contractor should purchase the coverage, but whether it should be treated as a direct or indirect charge?

     

  10. There is a few problems here.  

    Why is the contracting officer eager to increase the contract price?  If the contract had the standard FAR clauses, then there is probably no basis for a price increase.  Maybe additional time, but not additional money, is the general principle in the standard FAR clauses for an unusually severe weather impact.  Nothing in the original posting suggests anything other than the standard FAR clauses, so I am relying on those standard principles.

    Thankfully, the finance office is saying NO to the contracting officer’s apparently unjustified generosity with taxpayer dollars.  Maybe the finance office understands contract principles better than the contracting officer?

    If the contractor wants more money, it needs to file a claim and make a case for its entitlement.  

  11. What clause in your contract authorizes more money for a hurricane?

    This may seem like a harsh question, but it is entirely fair. 

    You said FFP, but you didn't say if the contract was for supplies, services, or construction (or something else).  You also didn't say the dollar amount of the task order, or whether the task order is for commercial items.  All of this is important information for anyone here to be helpful to you. 

    But really, the key question:  What clause in your contract authorizes more money for a hurricane?

    [Edit:  Generally, based on the standard FAR clauses (but of course depending on the terms of your contract), a hurricane that goes far beyond normal expectations might permit the agency to allow additional time, but not additional money.  But we don’t know the terms of your contract.]

  12. Jack,

    Carl and Joel are trying to figure out if the contract requires you to do everything you are doing.  That's fair.

    However, I am taking you at your word that--

    • (1) you have received "technical direction" from the COR;
    • (2) there is no contractual basis for his or her demands; and
    • (3) these demands are costing you money. 

    If (1), (2), and/or (3) are not true, then you need to establish what the contract requirement are.  That is where Joel and Carl are leading you.  We have learned through experience that original posters rarely tell the whole truth in their original postings, and it makes sense to want to make sure of the facts before proceeding further.

    But if (1), (2), and (3) are true (my starting point, based on your original posting, and notwithstanding real but sad experience in not getting all the pertinent information in original postings), I think you should carefully read the clause at FAR 52.243-7, Notification of Changes -- even if the clause is not in your contract, the principles in the clause are very applicable, and you may adapt them to help you solve your problem.  I recommend giving the contracting officer a written notice substantially the same as described in para. (b)(1) through (6) of the clause at FAR 52.243-7.  If that works (i.e., the agency drops its requirement or satisfies you that you are wrong), all is well.  If that doesn't work, you should carefully read the clause at FAR 52.233-1, Disputes, because you will be seeking one of the things offered by para. (c) of that clause and you might have to use that clause to get what you want.

    Readers sometimes wonder why different commenters give differing responses — a big reason is because we approach the original posting from different directions.  

  13. So, is your victory a meaningful and substantive victory, or a pyrrhic victory?

    I wish more participants in the Government contracts arena understood foundational principles, like consideration.  So it is good if your effort helped some participants better understand.  But I know that sometimes, victories come at a cost.

  14. I read the two clauses you referenced.  I didn't discern anything in either clause that would strike me as onerous for the integration and testing you described (but I admit, the original posting is all I have to work with).  Can you share what portions of the clauses are onerous?  That may allow for specific solutions to be proposed, rather than general recommendations.

    Here's a general recommendation:  Draft a proposed H clause (SCR) saying that the place of performance is your contractor facility, and that, notwithstanding any other text in the contract, your visits to government facilities for periodic and routine integration and testing activities do not constitute performing work on federal or federally-controlled facilities.  If the NASA contracting officer agrees, you're free.  It's all negotiation, right?

  15. Okay, let's talk about BPAs.  Let's talk FAR part 13 BPAs.

    1. You can establish a BPA with as many prospective toner suppliers as you wish.  No competition is needed.  No synopsis is needed.  No purchase request is needed.  Just do it.
    2. Your BPAs may include (1) T&Cs only, or (2) T&Cs and prices.
    3. When someone needs toner, his or her action depends on the dollar value of the instant purchase--
    • Up to the micropurchase threshold, get one quote from any one of the BPA holders (or if the BPAs are priced, look at the BPAs) -- if it is reasonable, place the call.
    • Over the micropurchase threshold and up to the synopsis threshold ($25,000) -- get quotes from as many of the BPA holders as is needed to provide maximum practicable competition (or if the BPAs are priced, look at the BPAs) -- place the call with the lowest price quoter (assuming delivery and other terms are met).
    • Over the synopsis threshold and up to $7,000,000 -- synopsize the requirement and get quotes from all interested sources -- if the winner is a BPA holder, place the call -- if the winner is someone else, issue a purchase order.

    At the end of each month, each BPA holder submits an invoice with delivery tickets and you make payment with one transaction (such as a single Government purchase card charge).

    As an alternative to the above, you can allow each call issuer to make payment for his or her own call using his or her Government purchase card.

    It's that simple.  You don't have to make it any harder than this.  I recommend unpriced BPAs since you talk about fluctuations.

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