MBrown

I second the motion!

JAG: I concur with napolik and Culham, in part. In those jurisdiction of which I am aware, law firms (businesses) are not licensed to practice law. Individuals are licensed. That stated, if the business is violating that rules for the practice of law applicable to the State or Territory in which they operate, I would recommend advising the contracting officer of your allegation that the business cannot not responsibly perform. I wouldn't recommend simply recognizing a done deal and moving on. Additionally, if you believe, or know, that improper conduct is occurring, have you considered reporting the conduct to appropriate prosecutor's office or disciplinary board for the Bar of the State in which the offending business is operating? Look to your own status. Might you have a duty to make such a report?

I would ask the engineer to explain how he/she intends to ensure compliance with 31 U.S.C. 1501. The overrecording of an obligation will not help Uncle Sam achieve auditability and frustrates accountability.

Culham and Davis appear to hit the nail on the head. May I also add that many "free" offers involve an automatic charge at the end of the "free" period (i.e., if you do not affirmatively cancel, they continue your subscription and bill you). What happens at the end of your proposed trial period? Under fiscal law, you should have positive legal authority that allows you to proceed. If the services have any value, you may run afoul of impermissibly augmenting an appropriation by signing up for that "free trial". I recommend you consult with your agency's fiscal law counsel.

High performers open the regulations and read them, frequently. Low performers use the regulations book as a desk ornament. High performers approach contract negotiations from all sides. They envision multiple potential outcomes. Low performers approach wearing blinders.

For the newly appointed Contracting Officers, please recognize that your signature bears responsibility on behalf of these United States of America.

Recognize that "this is the way that we've always done it", may not be the right way. Recognize that statutes, regulations, policies and procedures will change. Do not let the train leave you at the station. Recognize that mistakes will be made, but own your behavior. Take pride in your work product. Be willing to share what you learn.

ICE-CO, I would also add that options give you the flexibility to revisit the potential availability of competition; and also, changes to market conditions.

Based on your question, it appears you have some type of appropriation. Do you have a statutory authorization to spend those funds on an award? There is no authority to spend and appropriation without a specific authorization. What agency are you with? What color of funds do you have? What does your agency's authorization act say you may do with those funds?

For me, the issue is whether I'm dealing with an "offeror/bidder" or a "prospective supplier". Relative to the former, I try to avoid pre-award one-on-one dialogues to the maximum extent practicable in order to avoid creating unfair competitive advantages. An RFI process that provides the answer to all offerors/bidders is my way to go. On a post-award basis, I give as much as the FAR allows, whether a debriefing or a brief explanation. Relative to the prospective suppliers, I echo the sentiments expressed earlier. More often than not, the contact I receive is akin to "How do I get on your preferred vendor list?" I also get the name droppers with "I was speaking with BG Comeasiam and would like to meet with you to tell you how you can sole source to my company." For the serious inquiries where the prospect desires information on how to do business with the Government, I do my best to point them to helpful resources, such as SBA, PTACs, etc. Otherwise, I politely decline the requested sales meetings by explaining my need to avoid the appearance of favoritism.

FAR Fetched: While I agree with Mr. Edwards that your choice of vernacular might have confused some of your interview audience, I do not believe they should have been considered too hard for the caliber of professional you were seeking. That said, the issue isn't completely private versus public sector mentality. I've known of several instances both inside and outside of Gov't service where the management candidate was lacking but had a track record of being the ______ that rises. Most recently, I had the opportunity to deal with a Gov't contracting office where the new unlimited warrant, supervisory contract specialist was a field grade officer with no DAWIA courses to their credit, let alone any certifications. So, I'm not surprised that your interview candidates may have been less than stellar.

I would add that the Army National Guard has a regulation, NGR 420-10, on the issue of program validity, which unlike the USACE higher level review requirement, could halt a construction award where the amount exceeds the Government Cost Estimate. Section 5-1( b )(2) provides, in part, that the signed programming authorization remains valid if the project cost will not exceed 125% of the estimated cost AND programming is less than 2 years old. "All completed, signed NGB Form 420-Rs or DD Forms 1390/1391 remain valid only if the project does not exceed its USPFO approved scope or 125% of its estimated cost and if the form is less than two years old. In those cases, the form requires amendment, staffing, and approval as if it were a new project, before the project may continue."

Have you considered a competitive range determination under FAR 15.306( c ).

I think it would depend on the type of contract and the contract terms. Look at the GAO decision: In the Matter of: Funding of Maintenance Contract Extending Beyond Fiscal Year, B-259274 (May 22, 1996), also referenced in GAO Red Book, Vol. II, Ch 6. This is a case where the Air Force was held not to have violated ADA or bona fide need when it funded 4 out of 12 months of an option on a severable services contract (i.e., 8 months unfunded). The contract period of performance ran 1 Sep 1994 to 31 Aug 1995. First 4 months crossed fiscal years and used FY94 funds. Additionally, Air Force put language in contract to provide that government's obligation after December 31 was contingent on the availability of funds and required notice from the Contracting Officer that funds had become available and that contractor could continue work. With that Air Force case in mind, consider that an Option exercise under FAR 52.217-9 is typically unilateral. If you are intending to exercise your option for a lesser period than as stated in the contract, a bi-lateral modification of the option term might be warranted to avoid any claim potential. Additionally, are you subject to a full funding policy that you need to take into consideration?

Outside of an acquisition following Brooks Act procedures (40 U.S.C. 1101-1104), is there a permissible method for contracting for service contractors to perform on-site engineering reviews, construction phase inspections, preparation &/or review of As-Built drawings, or similar services? I view these items as “services of an architectural or engineering nature, or incidental services, that members of the architectural and engineering professions (and individuals in their employ) may logically or justifiably perform, including studies, investigations, surveying and mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals, and other related services." FAR 2.101; 40 U.S.C 1102(2)(C ). Accordingly, it is my position that they must be procured by qualifications based selection under the Brooks Act, FAR 36.602-1 and applicable agency FAR supplements. That said, I’ve noted some single award Indefinite-Delivery/Indefinite-Quantity Contracts (IDIQs) for services (that it has been suggested I use) where “engineering technicians” and “design & construction project managers” are acquired for in-house/on-site support via IDIQ Task Orders. On making inquiries with the PCOs for these contracts, they have acknowledged to me that their IDIQs were either competed under FAR 15, or were direct awards under the 8(a) program. Under both scenarios, I am also of the understanding that specific selection criteria from FAR 36.6 were not utilized, even in the case of the FAR 15 procurement’s tradeoff analysis. Additionally, if engineering related services are acquired to provide on-site government support (but not through the statutory authorization of the Brooks Act), does the government convert an otherwise authorized service acquisition into a contract for personal services under FAR 37.104? Any thoughts would be appreciated.

It sounds like people are confusing "obligation" with "availability" and "liquidation". Funds placed on a contract award are "obligated". Obligated funds on a contract that are paid to a contractor for specified performance (i.e., the purpose of the contract) are "liquidated". Obligated funds on a contract that have not been paid to a contractor for specified performance (i.e., unused, not yet invoiced, will not be invoiced, etc.) are "unliquidated". Under appropriations law, funds will generally expire for obligation at the end of the fiscal year concluding their period of availability for obligation (O&M = 1 yr; Procurement = 3 yrs; MILCON = 5 yrs; etc.). Unliquidated funds remaining on a contract after the conclusion of the funds' period of availability for obligation does not change their status from being "obligated" for a particular purpose. Funds that will not be liquidated for the purpose against which they were obligated (bona fide need of the original fiscal period of availability) cannot be reobligated for a new purpose arising after the fiscal period of availability.

An adjustment of the price exceeding $100,000 that is not certified AND not seeking payment ... I'll venture an answer of Yes - you have a "claim". Now, I'm curious to learn how there will be compensation.

It seems to me that the question is suggesting that the employees of a contractor under a service contract should somehow have an expectation to continued employment at steady or increasing salaries. I do not discount that individuals employed by service contractors may offer particular benefits to the recipient of their services (the government). However, whether difficult to swallow or not, service contract employees are, in essence, chattel being bought by the recipient of the service. Regardless of the fact that there are provisions allowing for first rights of refusal for incumbent service contract employees, it is emminently fair that a successor contractor might extend offers of employment at lesser rates of pay. If the service contract employee doesn't want to work for the lesser wage, the service contract employee does not need to accept the offer of employment with the successor contractor. The government ought to be concerned with receiving the service, not the individual. I wonder if a similar question would ever be raised for a supply/materials acquisition. For example: "The government has been buying my widgets for years. It does not seem fair that the government would now seek to buy equivalent widgets from another contractor at a lower price."

http://www.acq.osd.mil/dpap/policy/policyvault/USA005536-12-DPAP.pdf The January 14, 2013 Memo from DPAP starts with "As [DoD] identifies and executes budget reductions critical to support the President's agenda, it is important to be able to trace contract expenditures for services." This Memo goes on to require the use/identication of Product Service Codes at the Purchase Request level, notwithstanding their use at the contracting/obligation level. Does anyone have any thoughts on how this might be utilized to further limit the use of service contracts?

I'm keenly interested in the short and longterm outcomes of Section 829. I wonder at the likelihood of an outcome where a directive is issued prohibiting contracts for services that are closely associated with inherently governmental functions.

How is it that you have a contract "placed in default" that was not modified to reflect the default? You either terminate for default or you do not. In addition to checking with your legal counsel as to what is meant by the phrase "undue delay" as it relates to reprocurement and applicable agency financial management regulations concerning the use of expired appropriations, you should also review the Miscellaneous Receipts Statute (31 U.S.C. § 3302() and also at 31 USC §§ 1502 and 1552. The simple approach is that bad news does not get better with time. The longer it takes to reprocure, the harder it will be to pay for the reprocurement. The original appropriation will tell you when it expired for obligation. From the expiration of the appropriation, it remains available for another five (5) years before it is canceled. Relative to Terminations for Default (T4D), there is Life After Death for the appropriation provided a Bona Fide Need still exists; reprocurement is accomplished without undue delay; and substantially the same item or serive is procured. So, if you have a good justification for why it took 11 months to effect the reprocurement and the funds haven't been canceled (or otherwise spent by the Treasury), the funds ought to be available for reprocument purposes. How is it that you will receive the payment of the penal sum? Shouldn't the U.S. Treasury be the recipient of such funds?

Vern, Thank you for this. I thought the section on the application of FAR amendments to pre-existing contracts was particularly edifying.

While other nations' acquisition laws and/or practices might make for some interesting professional or hobby reading, this should not equate to a requirement for federal acquisition professionals to study and/or adopt such practices. Indeed, I would consider such a program of study a waste of government resources if it were to be included in any type of mandatory certification curriculum. The vast majority of federal acquisition professionals are not policy makers. Instead, we are persons charged with following and implementing Acts of Congress, executive agency regulations and executive agency policy. Inserting a "What does the international community do?" / "What does China do?" approach into determining value for the United States on a federal acquisition is not a gorge that we ought to be traversing. Perhaps, if you are a high-level policy maker, a comparative course of study would be beneficial to you (i.e., Master's Thesis). For the rest of the acquisition community, I recommend a focus on the core contracting competencies which (WIFCON readers excepted from this generalization) are lagging in many acquisition offices.

I would echo those recommending a call to your IG, but I will not. Instead, I recommend you run to your IG. Coherency to the side, I started imagining the witnesses testifying when I read the following: It appears there is either a complete absence of internal controls (not to mention an audit trail) governing the preparation of the government cost estimate, OR a complete disregard. I'd hate to be the KO having to answer a question about how the government estimate for this project is documented in their file. Since you know "every time" that you will be millions off, where is the good faith effort?

I would echo Mr. Edwards on this. I would also point out that from the Government's perspective there needs to be clear delineation of contractor responsibilities when the contractor is in a federal workplace. Being a "team player" or "us versus them" has nothing to do with it. Among both contractor and government personnel, there needs to be mutual respect for the contract. I know it sounds mean-spirited, but a contractor's personnel are not the government's staff and they are not government employees; and cannot be treated as if they are. ji20874 - Unless the government contract authorizes to attend comaraderie type events (and it does not), you create an unauthorized expenditure of an appropriation when you have your contractor's on-site employees invited to those office birthdays.