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wvanpup

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Everything posted by wvanpup

  1. Don, you wrote: Based on this, you concluded: As expressed in an earlier post, I came to a very different conclusion. I am curious; what is the flaw in my logic?
  2. ohno wrote: I am not saying anything close to what you are implying. For DoD, the clause is not required for one of two reasons. The first reason is because the contract is below the TINA threshold. The second reason is because the contract, while above the TINA threshold, is of a certain type. I am saying that the provision gives the contracting officer the discretion to include the clause regardless of the reason it is not required. I am saying that "and of any contract type" applies independently of "below the threshold." The reason I am saying this is threefold. There is no "contract type" associated with the below the threshold provision for not including the clause. Therefore, adding the contract type language would be unnecessary. If the contract type language is to be tied to the below the threshold language, the proper word would be regardless (i.e., the contract type does not matter). It makes absolutely no sense to say that the contracting officer can use his discretion to include the clause in a contract below $700,000, but cannot use his discretion to include the clause in a contract of $150,000,000 (pick any large contract value). If I were drafting a regulation and wanted to impose a limitation on the contracting officer's discretion, it would be to prohibit the clause in the small contract where the amount in question is minimal, and authorize the clause in large contracts where the amount in question is significant.
  3. I do not read the FAR as you do. 1. In your last sentence, the reference to below the simplified acquisition threshold is incorrect. The Navy (the contracting activity you identified in your post) is part of DoD, and for DoD (n)(2)(i)( says the clause is required only for contracts or orders in excess of the threshold for obtaining cost or pricing data, not the simplified acquisition threshold. Your sentence is probably a result of typing too quickly rather than misreading the FAR. 2. I read 15.408(n)(2)(ii) (as applied to Navy contracts) as giving the contracting officer discretion to include the clause as follows: "When the total estimated contract or order value is below the thresholds identified in 15.408(n)(2)(i)" gives the contracting officer the discretion to include the clause in contracts below the threshold for cost or pricing data. "And for any contract type" gives the contracting officer the discretion to include the clause in contracts above the threshold for cost or pricing data when the clause would not otherwise be required because of the contract type (e.g., the contracting officer may include the clause in a contract above the threshold for cost or pricing data when it is a "firm-fixed-price contract awarded on the basis of adequate price competition"). 3. If your reading were correct, the proper word would be "regardless" rather than "and".
  4. Your argument seems to be that you should not get a marginal rating because you delivered IAW the revised schedule. Take the following situation: Your due date is 1 June XX. On 1 May XX you notify the contracting officer you will not be able make the due date and offer $1,000 as consideration for extending the contract for two months. Rather than terminate for default, the contracting officer accepts the offer and revises the delivery schedule accordingly. This happens twice more, until you finally deliver on 1 November (30 days before 1 December, the date required by the latest delivery schedule). Using your logic, are you saying you should receive an exceptional rating because you are now significantly early?
  5. Whatever was evaluated should be reflected in your PNM/SSDD (whatever documents the award decision). If there is no discussion of how options were considered, how would the existence of a contract ceiling tell you the option years were considered (evaluated) when making the award decisions?
  6. I do not know (nor, really, care) what VA policy is or should be. However, note the difference between your question ("do all the SSEB Members need to be from the PMO office," i.e., are they required to be from the PMO office) and the CO thoughts ("they should not be on the SSEB").
  7. My objection to doing away with the Christian Doctrine is that I do not want to give contracting officers the authority to disregard acquisition laws or regulations (remember, in Christian the contracting officer knowingly decided to omit a termination for convenience clause). If the FAR requires including something in a contract, or prohibits including something in a contract, there is a waiver process that should be followed (or perhaps a prohibition against a waiver) if the contracting officer believes it is not appropriate for a particular contract. In any event, whether the requirement is good policy or bad policy is not for the contracting officer to decide. I recognize the difficulties that may be imposed on a contractor when the contracting officer inadvertently (either through ignorance or simple oversight) omits something required. My policy choice is that the contractor bears the consequences, not the taxpayer. I recognize that reasonable people may differ.
  8. I am not sure I agree with this. More years ago than I care to remember, I was involved in an on-line discussion about jury nullification. Someone was pushing for an instruction telling juries they had the legal right to ignore the judge's instructions and, in essence, acquit someone because they thought the law was unfair (as a perhaps extreme example, if the juror thought selling marijuana should be legal the juror would be advised of the right to acquit on that basis, even where the sale of marijuana was proven beyond a reasonable doubt). I did not like the idea of 12 relatively randomly chosen members of society overturning the laws enacted by the elected representatives of the people. I don't find much difference in contracting officers ignoring the requirements of acquisition statutes and regulations. The fundamental basis of the Christian doctrine (at least to me) is the question of who bears the consequences of the contracting officer inadvertently or deliberately violating acquisition statutes or reglations, the contractor or the taxpayer. My vote is the contractor (particularly when the contractor is aware that requirements are not being followed). I recognize others may disagree; after all, the decision in Federal Crop Insurance Company v. Merrill, which is analagous in that it deals with the question of who should bear the consequences of a government agent that violates regulations, was 5-4 (Frankfurter wrote the majority opinion, and Jackson, Black, Douglas, and Rutledge dissented).
  9. As noted, there is not enough detail to provide meaningful answers. In addition to what has already been noted, are you sure the clauses are not incorporated by reference, which would make them part of the solicitation?
  10. I remember the significant improvement to the acquisition process made by changing formal advertising to sealed bidding. TINA by any other name is still a necessary pain in the pattootie. Changing Truth in Negotiations Act to Truthful Cost or Pricing Data will confuse those who do not know the requirement is statutory (and people will not know where the rule about discussions came from). "Procurement Integrity Act is now Restrictions on Obtaining and Disclosing Certain Information." And the PIA restrictions on post-government employment are now .....? As I drift off into retirement next month, I will be comforted by the knowledge that I do not have to worry about these name changes. My hammock is calling.
  11. I am not confusing anything. Post 3 (which is what my previous post was based on) said: I ask this because, I know it is possible to have "disincentives," such as monetary deductions, if PRS standards are not met. For example, for an IT Helpdesk services contract, if it says 99% of calls must be resolved within 24 hours, and the contractor only does 98%, and the PRS says for every 1% below the 99% standard the agency will deduct X amount of dollars from the contract. And all this can occur on a fixed-price contract. However, I thought that providing an "incentive" was NOT allowed on fixed-price contracts, because then it would not be a pure fixed-price contract anymore. I do not care if the poster called the price reduction a "disincentive" rather than a form of damages. The contract requirement is to resolve 99% of the calls within 24 hours. If the contractor does not do this, the contractor is not providing the services it is required to provide and for which we are paying. The price reduction should reflect the value of what is received compared to what we paid for, which is damages. If the reduced price is a disincentive rather than damages, could we then take a further price reduction (or assert a claim) for the damages associated with less than complete performance?
  12. What were the specific tasks for the contractor to accomplish that it did not accomplish? Are they something other than the credits? My understanding of "credits" is prepayment for a certain amount of services (e.g., by making the payment you are entitled to X hours of tech support). Is that the situation? If so, don't we need to give the contractor something to do to take advantage of the credits (if we don't, what does the contractor do to honor the credit arrangement)? With respect to your argument about lack of consideration, the consideration the Government received was the promise to perform a certain amount of work. Think of it as kind of an option; we pay a certain amount for the ability to require the contractor to provide a certain level of service in the future. We do not get our option payment back just because we never require the contractor to actually do anything.
  13. I always thought deductions for failing to perform as required by the contract was a form of damages, not a form of incentive.
  14. MuchToLearn: If, as you say in post #3, you have no idea what a term in your hypothetical means, then, hypothetically, you question probably ain't so hypothetical. It may not matter what "indirectly" means. Vern, as usual (if not as always) is pointing in post #9 to the correct analysis. If a term in the contract is not clear we all know the rule on how to resolve the ambiguity. Is the ambiguity latent or patent? Was there an obligation to inquire as to the meaning?
  15. After my previous post, I spoke with one of the tech data experts in my office. She indicated that because the Government's unlimited rights include the ability to disclose the data without restrictions on further disclosure, the data is no longer confidential and the contractor would not be able to prevent disclosure under FOIA. She also indicated that she would object to a "XYZ Proprietary" marking as nonconforming (and perhaps as inaccurate) and insist the contractor remove the marking and substitute the markings specified by the tech data clause. Vern is correct, as always; consult an IP attorney before using any marking other than that specified by the contract.
  16. You consider the data proprietary, with the Government having unlimited rights. If there were a FOIA request that included the data, would you consider the data exempt from disclosure? If so, I expect you would want to include something in the data that puts the Government on notice of the requirement to notify you if the Government plans to disclose the data. If the Government objects to whatever marking you choose to protect your FOIA rights on the basis that it is a nonconforming marking, you can decide whether to assert that the marking does not limit the Government's rights and should remain or you can remove the marking (or you can decide in advance what you would do, and mark or not mark the data accordingly).
  17. You said the contract effort is manpower augmentation. I am not sure what that is, but it does not seem related to "acquisition, development, production, modification, maintenance, repair, flight, or overhaul of aircraft" as stated in DFARS 228.370(B )(1). Are you sure your contract meets the prescription for both these clauses?
  18. I have never worked with Davis-Bacon, so you will need to check this analysis. It seems to me you start with the Davis-Bacon Act clause, 52.222-6, and go to paragraph ( c ), which describes what to do if there is a class of laborers or mechanics which is not listed in the wage determination. Once you get the correct wage, either by agreement between the contractor and the laborers and mechanics IAW ( c )(2) or the DOL IAW ( c )(3), it becomes the wage for the contract from the first day on which work is performed in the classification (which I think is from the beginning of the contract, not when the wage determination is made a part of the contract). There is no provision for an equitable adjustment. Since this is not a modification to an existing wage determination as described in FAR 22.404-6, the equitable adjustment provided under that section would not apply (BTW, how is this equitable adjustment included in the contract?). The KR may well be SOL.
  19. I might be suspicious of a contractor whose rate of pay for the omitted rate is significantly below the wage determination rate. What information do you have to prove he really pays the lower rate, rather than he noticed a defect in the wage determination and is trying to take advantage of it?
  20. Yippee for me! I want to thank my mom, my dog, the voices in my head, ...
  21. H2H: You said "You seem to be confusing cost-type billings (Form 1034) versus T&M billings. They are not the same. DCAA has a publication "Information for Contractors" that you should read." Is it CR that is confusing things or the client? The original post made it sound like (1) the employee worked 120 hours on the contract, (2) the employee was billed for 120 hours, (3) the billing rate was actual cost (hourly rate + OH + G&A), but (4) the client thinks there should have been an unspecified lower rate. So, the question for me, since it it sounds like it was billed properly, is why the client thinks there should be a different (presumably lower) rate. CR, have I described it properly? If so, does the client tell you what hourly rate it expects, or why it thinks the hourly rate for a full month should be different than the hourly rate for a partial month?
  22. It did not compute for me because it sounded exactly like FPIF, not CPIF. FPIF: Contractor receives cost plus profit, with profit adjusted according to application of share ratio to costs over/under target cost. At point of total assumption (cost + profit as adjusted by share ratio = ceiling price) share ratio switches to 0/100. When cost = ceiling price there is no profit, and additional costs are losses. Contractor is required to complete performance when price ceiling is breached. CPIF: Contractor receives cost plus fee, with fee adjusted according to application of share ratio to costs over/under target cost. Fee is subject to min/max. When fee as adjusted by share ratio = min/max, share ratio switches to 100/0 (Government pays all additional costs or receives 100% of all additional savings). Contractor is not required to continue performance when funding level is (b)reached. The primary difference between FPIF and CPIF is what happens when you reach price ceiling/funding. Can you have a CPIF that "converts" to FPIF, which is what the contract arrangement in the original post sounded like to me? What termination clause is in the contract? Suppose you realize half-way through that the contactor will never be able to complete. You want to terminate for default, but your remedies are very different if you terminate a cost contract or a fixed-price contract. I agree with the comment on recovering admin costs. Those are typically breach damages.
  23. The contract is Cost Plus Incentive Fee, but has a price ceiling after which the contractor is responsible for all costs? Does not compute.
  24. I am not sure I understand the terminology. What is project initiation and what does it have to do with the contract under which the project is awarded? I have seen overlapping single award IDIQs (for legacy aircraft platforms) in the following situation. Contract #1 has an ordering period (picking dated at random) from 1 May 2010 through 30 April 2014. Orders cannot require performance beyond 30 April 2016. Contract #2 has an ordering period from 1 May 2013 through 30 April 2017, and orders cannot require performance beyond 30 April 2019. If we need to issue an order in the overlap period (May 13 through April 14), we issue under contract #1 if performance can be completed by 30 April 16 and contract #2 if performance extends beyond then. That does not seem to be your situation. Regardless of whether project initiation is identification of a requirement, issuance of an RFP, or something else unrelated to when performance must be completed, it seems strange to me that it dictates the contract under which the delivery/task order is issued.
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