MBrown

It might also go without saying that an accounting consultant with knowledge of SCA noncompliance might refer the matter to DOL or other appropriate authorities. In many jurisdictions, when a client seeks advice in order to commit a crime, such communications generally aren't privileged from disclosure.

They certainly could make such a request. They could also argue that adding the clause creates some type of adhesion scenario. I'll leave that up to the lawyers to decide. At my agency, the guidance we received was clear. Existing contracts that did not have 52.204-25 in them were to be modified to include the clause, and the representations for 52.204-24(d)(1) & (2) were to be obtained, or no options could be exercised (i.e., relationship ends without the clause), regardless of whether the contractor was the only source.

There have been multiple versions of the section 889-related provisions/clauses since August 2019, when Section 889(a)(1)(A) (prohibition on acquiring covered equipment) went active. The current versions of 52.204-24 (OCT 2020), 52.204-25 (AUG 2020), and 52.204-26 (OCT 2020), are merely the latest. Depending on the Agency, incorporation of the current versions into existing contracts (e.g., prior to an option exercise) could be mandatory. At DoD, the 23 Jul 2020 DPC Memorandum, Implementation of the Section 889(a)(1)(B) Prohibition on Contracting with Entities Using Certain Telecommunications and Video Surveillance Services or Equipment, specifically requires the modification of existing contracts to include these provisions/clauses for purposes of covering down on Section 889(a)(1)(B) (prohibition on contractor use of covered equipment) that went active in Aug 2020.

My agency had a few similar experiences. The facts of your action and your agency's position may dictate additional actions that you may need to take. In our case, each of our experiences with contractor refusals concerned actions that were outside of the U.S., where the vendor is the telecommunications monopoly provider and directly owned/controlled by a foreign government. In those cases, through the interventions of multiple people, we were finally able to obtain vendor representations in response to 52.204-24(d)(1) and (2), as well as sub-para. (e) supplemental disclosures sufficient to enable our requiring activities to conduct the analyses necessary to support Determinations to apply FAR 4.2102 exceptions (different from Waivers). A vendor's reluctance to disclose information under the Section 889 related FAR provisions/clauses could be cultural barrier, if dealing with a foreign vendor. Unfortunately, neither Section 889 nor its implementation in the FAR cares; and you cannot assume the vendor's response. The fact is, you need to obtain their representation (whether affirmative or negative) to both what they are provided 889(a)(1)(A) and what they are using 889(a)(1)(B) or you cannot move forward with determining whether an affirmative response (will provide/does use) will impact the ability to award. Additionally, you need to check your agency's guidance on 889. At DoD, there are a few DPC Memoranda relative to 889 (see e.g., DPC Memoranda from 13 Aug 2019 & 23 Jul 2020). Additionally, your OGC or HCA office should be able to advise you if there are any current and applicable Director of National Intelligence Section 889 Memoranda relative to your action (e.g., class-type waivers).

I agree with Don. If you are asking about whether a non-commercial purchase order may be awarded as a cost-reimbursement, I would argue that 13.302-1 only advises that purchase orders "generally are issued on a fixed-price basis." "Generally" doesn't imply exclusivity. My question is, would you have any concerns with meeting the requirements of 16.301-2 & -3 if utilizing SAP? ?

Know what Parts of the FAR and/or Supplement(s) cover your acquisition and read the Scope and/or Applicability sections, then read the applicable provision and clause prescriptions.

Does anyone else find some of the E.O. language confusing or concerning? Pursuant to Sec. 8, within 180 days FAR Council is to “consider proposing” a change to FAR Part 25 whereby the “component test” used for domestic end products, would be replaced by some type of value added test (“a test under which domestic content is measured by the value that is added to the product through U.S.-based production or U.S. job-supporting economic activity”). Seemingly at odds with the value added concept, the FAR Council is also to consider increasing “the numerical threshold for domestic content requirements...”, as well as the Buy American price preferences. Appreciate your thoughts.

It's to be expected. Trump administration issued a freeze/delay on rules that the Obama administration finalized before leaving office, but which had not taken effect before Trump took office. Likewise, the Obama administration froze Bush regulations. Bush froze Clinton, etc. The cycle continues.

Is it an a request for equitable adjustment, or is it a request for reimbursement? Sec. 3610 of the CARES Act gives an agency discretion (available funding "may be used") to reimburse a contractor for certain paid leave that the contractor provided to its employees to keep them in a ready state. There is no entitlement to reimbursement created by Sec. 3610. Sec. 3610 provides, in part: "Such authority shall apply only to a contractor whose employees or subcontractors cannot perform work on a site that has been approved by the Federal Government, including a federally-owned or leased facility or site, due to facility closures or other restrictions, and who cannot telework because their job duties cannot be performed remotely during the public health emergency declared on January 31, 2020 for COVID–19: ..." (emphasis added). It seems to me that you've already made the case that the job duties can be performed remotely.

It's important to keep in mind that there are two (2) different prohibitions at play. Section 889(a)(1)(A) is the prohibition on the Government acquiring covered equipment and services (the representations at FAR 52.204-24(d)(1)). Section 889(a)(1)(B) is the prohibition on the Government doing business with entities that use covered equipment and services (the representation at FAR 52.204-24(d)(2)). Additionally, there is no monetary threshold on applicability and the prohibitions in the FY2019 NDAA are being applied to micropurchases utlizing a Government Purchase Card. https://www.acq.osd.mil/dpap/policy/policyvault/USA001666-20-DPC.pdf

Don, I was following up the (correct in my view) comment by policyguy that he has "not worked by the adage that a clause is self deleting." What I mean is it is a false presumption that inclusion of an inapplicable, unenforceable, or inappropriate clause in a contract may done without harm, or the risk of harm. The inclusion of unnecessary or improper words in a contract does not render those words meaningless. The fact of their inclusion costs people time to read, as well as time and/or other resources to challenge or apply. If you were the contractor, would you not price-in such costs when preparing a proposal or a claim? The fact of the inclusion of unsuitable language in a contract does not mean that it will not be considered enforceable by a court of law. Federal contracts may be written with word processors that contain features that auto-correct as the words are typed, but federal contracts once written do not auto-correct themselves.

From my perspective, a good PM is an expert at managing all of the people involved and keeping a project on target. A good CM is an expert at managing compliance the terms and conditions of the contract and with analyzing and negotiating cost factors that affect the bottom line.

A good template or boilerplate ought to come with an introduction and/or instructions providing guidance on how to tailor to specific acquisitions. No one should work with the view that a clause is "self-deleting". A clause cannot self-delete. It might be found illegal, unenforceable, or unworkable, but relying on the fiction that a clause is self-deleting is unprofessional and opens the risk door wide to the prospect of claims.

Hmmm. On contract awards, my favorites were: using the CAGE code for the wrong awardee; including a price and nothing more in Section B of the award; and leaving the fill-ins blank in the liquidated damages clause. Also, there was the time that I just wanted to bang heads against the wall when a co-worker sent the Government's negotiation position to the contractor with the e-mail tag-line of "Can you give me a proposal that is priced within this range?"

Gwestbury, is it possible that your customer is unrealistically seeking a firm fixed price contract instead of a cost reimbursable contract?