Jump to content


  • Posts

  • Joined

  • Last visited

Everything posted by wvanpup

  1. There is something else that has not been discussed yet. In B-291878.3; B-292448.2, Leisure-Lift, Inc., the GAO specifically said the contracting officer may accept an offeror's Buy American Act certification and has no duty ensure the component test is met unless there is a reason to suspect the validity of the certification. I am not aware of anything since which raises questions about the validity of the decision.
  2. I am an attorney who recently retired from Wright-Patterson AFB. There are several JDs and MBAs who are working as contract specialists (and I remember two contract specialists that were selected for atttorney vacancies) after going through an intern program. I believe they started as GS-07 and received non-competitive promotions to GS-11 (possibly GS-12, but I am not sure of that). If you have not already done so, you should look into the various intern programs sponsored by the military and civilian agencies. If you are mobile and fortunate enough to be selected, try to get into one of the big buying offices because small offices do not have the same promotion potential. With respect to the previous comments: I do not believe relocation expenses are authorized for new hires (I may be mistaken, I did not have to worry about that). As a practical matter, buying agencies are generally not authorizing relocaton expenses even for promotions, which puts a damper on being mobile. I do not believe intern programs will be prejudiced against you because you are an attorney; as I said, we had several in our intern program at WPAFB. On your application, your legal degree should be a positive factor, and can be prominently mentioned. Do not dwell on it, and do not come across as God's gift to the Government because you have a JD. While the degree is a positive factor, you will probably be competing against a lot of others with a JD/MBA. To the extent possible, stress whatever business experience you have. People who have worked with contracts (including grants sought by non-profits) have useful experience. Take JI's comments about how to act to heart. Good Luck!
  3. Vern, a couple of things: 1. The Contracting Officer may well be trying to negotiate ceiling rates, but the three items mentioned in the original post don't seem to lead to that. - Notify the Contracting Officer before incurring direct labor rates in excess of those proposed in response to the task order RFQ; - Provide a detailed rationale for the need to utilize personnel with direct labor rates exceeding those proposed in response to the RFQ, including a description of the benefit to the Government; and - Provide a detailed breakdown of how the costs associated by the increased direct labor rates will be absorbed within the direct labor cost ceiling on the task order." The first item seems more like a limitation of cost type provision (provide notice if the rates will be higher), but does not prohibit higher rates. The second item requires notice and justificatoin when using personnel who are paid at higher rates, but does not prohibit use of such personnel. Unless the RFP establishes a "labor cost ceiling" (which to me does not really fit within the construct of a CPFF contract), the third item is ambiguous. 2. The contracting officer may be requesting labor rates as part of the proposal, but the three items seem to apply during performance, not as part of the information requested before award. I have no problem with the Contracting Officer doing this, but it is not at all clear what the Contracting Officer is going to do with the information. For example, if actual cost rates are higher than those proposed, and the contractor provides the notice/explanation required, then what?
  4. What is the estimated value of the contract? What is the contract type? What are the proposed CLINs? Why can't you use progress payments to provide funding?
  5. A requirements contract is a promise from the government to order all its requirements from the contractor, and a promise from the contractor to fill all orders, subject to maximum order limitations (which may be a limit on a single order, a limit on a combination of orders within a specified period, and/or a limit on the total orders under the contract). These mutual promises provide the consideration for the contract, even though the Government does not promise to order anything. It seems to me, therefore, that despite the language in the GAO decision, the scope of the contract is the maximum order limitation, not the estimated quantities. As the contractor, I would argue that the failure of the Government to place orders within the maximum order limitation (regardless of how much in excess of the estimate) would be a breach of the Government's promise. (All of this is premised, of course, on the assumption of a properly prepared estimate.)
  6. Assuming the risk of Vern's laughter and head shaking ... Perhaps this is a bit simplistic, but if an employee spends four hours a day working on the original subcontract, that subcontract is charged for four hours. The rest of the employee's time is charged to whatever effort it supports, such as the contractor's non-Government business, the contractor's fixed-price contracts, or the contractor's other cost reimbursement contracts (e.g., the new subcontract). Charging more or less than the four hours actually worked on the subcontract should end up in some kind of cost mischarging situaton. (NOTE: I do not think you are suggesting that a contractor employee must devote the entire work day exclusively to one contract.) "The labor is direct and the office-related expenses are indirect. You cannot fragment the base of the full burden pool by having the employee charge 1/2 his/her time to the base of the offsite pool." I do not understand what is being fragmented, or why you cannot do that. The indirect office expenses are supporting four hours of effort on the original subcontract and four hours of effort on the new subcontract. Whatever the rate for the office related expenses, that rate should be applied to each hour and charged to the subcontract effort that is direct charged. Perhaps you can give me some made-up numbers to illustrate your concern. BTW, I do not understand the program manager's budget concern. The original subcontract funding will not be burned up faster under this arrangement, it will be burned up slower because the monthly direct charges will be reduced by four hours per day for this employee. In addition, it will be charged at the on-site rate, since that is where the work will be performed.
  7. H2H seems to think the employee costs are included in an overhead pool, while Retreadfed seems to think Is the employee's time charged directly to the contract. I read the post as Retreadfed (the time is charged directly). SLK, can you clarify so that the discussion can focus on your (now mooted) situtation and then can determine what the difference might be between direct and indirect charging?
  8. Just back from a wonderful vacation with the grandtwins and reading the discussions. My apologies for not doing the research to check my memory about the rules on options. The legal opinion is described as saying that you cannot exercise the -8 option because it was not included in the J&A. There are two very practical consequences of this option. First, you must negotiate a new contract because there is no option available, which will require a proposal, evaluation, etc., and which may require a break in service. Second, you will not be able to take advantage of the current contract pricing which is built into the -8 option. Does the legal opinion give specific citations to support its conclusions? If you can provide those citations, it might help address the specific question (i.e., can you exercise the -8 option if you get a new J&A?). My understanding of the GAO decision on exercise of an unevaluated -8 option is that the option exercise IS authorized if there is a new J&A. Thus, I disagree with comments like:
  9. Your posts do not indicate (at least to me) whether you work for a contractor or the Government. If you work for the Government, do you mean that you would ignore the Executive Order by not including the clause required by the order? If you work for a contractor (or are yourself a contractor), do you mean that you would not pay the minimum wage required by the clause? What does ignore the Executive Order mean?
  10. Physiocrat Good luck with coming up with a theory where you are able to sue, and good luck with any suit you try. I hope you are well versed in how to file a lawsuit, because I cannot imagine any attorney, reputable or otherwise, taking this case.
  11. It should also be noted that FAR 3.601 describes the purpose of the policy prohibiting award to Government employees to include, among other things, "avoid[ing] the appearance of favoritism or preferential treatment by the Government toward its employees" (emphasis added). Because the party awarding the contract is the United States, and the policy is to avoid the appearance of favoritism toward "its" employees (i.e., employees of the United States), the policy only applies to U.S. Government employees.
  12. To follow up on the original question, holidays, annual leave, sick leave, training (and perhaps other time for which the employee is paid but does not work directly on the contract effort) are factored into the rate that is established in the contract. That is why you pay, as stated by Vern, the specified rate for the actual time worked.
  13. INOW, in your example you posit that "2. Has the space pen been sold or offered to the public? (No, in this example only NASA may buy it.)" Of course, you can set the facts of a hypothetical as you choose, and I assume that "only NASA may buy it" really means that "only NASA is allowed to buy it" (public sales are restricted) rather than "only NASA has bought it" (public sales are permitted, but no one from the public has bought it). Suppose the item has been offered for sale to the public, but no member of the public has yet made the purchase (I have seen situation, but I do not remember specifically what the item was, though I think it had to do with data storage devices for communicatons systems). How would the offer to the public, without a sale to the public, affect your rationale?
  14. I am going from memory here, without access to research materials, so you may want to check some of this. The FMR and the DFARS have different definitions of incremental funding. The FMR definition refers to funding from different fiscal years, not fully obligating (funding) the contract value at the time of award. Under this definition, it is not incremental funding to award a $100M contract in Nov 2013 (FY 14) and fund $50M at time of award (from a continuing resolution), $50M in Feb 2014 after an appropriations act is finalized. The DFARS definition (232.001) defines incremental funding as the partial funding of a contract at time of award with additional funding to be provided later. Incremental funding for fixed-price contracts is prohibited by the DFARS except for limited circumstances involving severable services or research and development. Could the different definitions affect how you are interpreting what is permitted?
  15. You might want to clarify what you are asking. Are you proposing to evaluate the proposal as if the offeror intended $55 per hour, or are you proposing to ask the offeror what it intended and treat the response as clarifications? Vern seems to think the former, while I thought the latter. Regardless of what you were suggesting, allowing the offeror to correct the price of its proposal is not clarification. I agree with Ji, and because you believe the price might not be what was intended I would require you to process any change under the mistakes procedures. One last item. If the price proposed is correct, I would require you to evaluate the potential for unbalanced bidding, both the potential of advance payments at an unnaturally high initial rate and the potential of an award that will not result in the lowest cost to the Government (particularly if options are not exercised).
  16. Are you referring to a certified claim per FAR Subpart 33.2, Disputes and Appeals? If so, why do you think that might apply? The "claim" is not pursuant to the Contract Disputes Act.
  17. If the fee is based on the actual cost of the travel you will probably (no final determination unless presented the actual price structure) run afoul of the CPPC rules. If the fee is negotiated in advance and does not vary as travel costs change, you are in a CPFF situation. Which do you have?
  18. I agree with Vern but with one caveat. I assume that the lack of storage capacity was not known at the time of the order. If the agency knew at the time of the order it did not have the capacity to receive everything that was ordered, but went ahead and ordered it anyway intending to postpone delivery, I would review the situation a lot more closely and might arrive at a different conclusion.
  19. I was amazed at the number of times meetings were scheduled with contractors, and legal was invited without any prior meetings with the contracting officer. Have contracting officers forgotten what attorney-client privilege is, or is it okay with them to have the contractors here the advice they receive from counsel? On a somewhat related matter, I was amazed at how many times contracting officers would negotiate a claim/REA with the contractor, reach agreement, and then request legal review. I remember one case from the late 1980s where we terminated for convenience a port-a-potty rental contract (perhaps we were not as full of .... whatever as we originally thought), and the CO negotiate a settlement which was presented for legal review. The problem was that the contract had the short form T4C clause, where we pay only the contract price for services rendered (perhap the strategy was to make legal the whipping boy for reneging on the agreement).
  20. My reading: The revised compensation cap applies to contracts awarded on or after June 24. Compensation paid to an employee through June 23 is not subject to the cap (if the compensation already exceeds the cap it is therefore allowable, subject to any prior caps). QUERY: Is compensation earned prior to June 24 but paid after June 24 subject to the cap? Whether it should be or should not be, he language of the FAC seems to say it is.
  21. Just back from vacation and late to the party. Giving two instances where a CO, without consulting legal, was able to amicably work with the contractor to have an employee removed does not mean there is no need for the CO to consult with legal when acting without agreement of the contractor. Ask yourself which is better, consulting legal before taking action or consulting legal after you receive the claim? Perhaps (as a recently retired civilian attorney for the Air Force) I am biased, but I think legal should be consulted before taking almost any unilateral action that might result in a claim.
  22. I am not a contracting officer, and my contracting experience has been primarily with installation type contracting in Germany, where the majority of contracts were de facto sealed bidding and past performance was never in issue, and in legacy aircraft that did not involve source selection. I have been involved in one matter that involved a CPARS rating where I did not think the negative rating was justified by the facts recited in the rating. Take this into account when considering my comments. 1. Any rating system needs to provide other contracting officers the information necessary to evaluate the performance of the offeror under the rated contract. Is a simple rating, supported by as little or as much detail as the rater wants to provide, sufficient? As a contracting officer, how satisfied with a report would you be if all the factors were rated acceptable with no further detail? How much credence would you give to a rating of excellent if there were no details describing how the rating was earned and justified? Never having written a CPARS report, and never having used one in a source selection, I would not be satisfied in making my source selection decision/recommendaton based on simple ratings with no description of the factual basis for the rating. 2. In my opinion, the emphasis on anonymity is misplaced for two reasons. First, the regulations implementing the rating system will define who is responsible for preparing and submitting the report. The contracing officer/program manager/whoever else prepares the report will not be shielded from "contention" if the report is unsigned; that person will probably be known, and in any event will have to deal with the contractor's displeasure when the contractor learns of the rating. Second, the assumption that raters will be unwilling to provide accurate ratings without anonymity assumes raters without the intestinal fortitude to stand by their decisions. The solution is not to change the rating system so the raters remain anonymous, the solution is to rid the system of such raters. 3. It has been suggested that the comments supporting the rating should not be provided to the contractor. NOTE: The second and third sentences seem contradictory. The second sentence says the contractor will be able to see the government comments if a rating is not acceptable, while the third sentence says that allowing the contractor to see the comments will result in agencies unwilling to be honest in their evaluations. From this it is concluded that the majority of the data must be anonymous, and I assume anonymous refers to the nature of the data and not just to the author. Again in my opinion, refusal to provide offerors with the facts and rationale supporting the rating is improper because it deprives the offeror of due process. Without access to the comments, the offeror is unable to respond in any meaningful manner. 4. Finally, I understand the problems with the length of time it takes to prepare the reports. If the reports require more information than is necessary, the report requirements should be changed. If the required information can be provided in a different, less time consuming format, by all means change the format. But do not dumb down the system, and eliminate necessary information, simply because those providing the ratings are unwilling to devote the time necessary. CONCLUDING QUESTION: Is CPARS not working because it is inherently broken, or is CPARS not working because it is not being implemented properly? The answer to this question may determine how CPARS is fixed.
  23. Ohno I think you are misunderstanding what is being proposed. There will be no "understanding" between the government and the contractor. The basic IDIQ contract will have a clause similar to "The parties agree that for all CPFF orders issued under this contract, the fixed fee that will apply to the order will be X% of the negotiated estimated cost of the order." (Those more familiar with IDIQ contracts can pretty up the language.) I would (probably) never recommend using an "understanding" in such a situation for the reasons you mention; different government contracting officers, different contractor contracting officers, one side or the other doesn't like the agreed percentage when applied to an order. Also, it is not a violation of the CPPC rule because the fee is fixed at time of award and does not vary with the contractor's actual cost experience.
  24. I have a few other suggestions for the pop up. 1. Do not assume everyone knows the acronyms. 2. Describe the research that was done. 3. Avoid general questions when you are concerned about a specific situation (e.g., don't ask when an award fee type contract is appropriate when you are concerned about an award fee for a fixed price supply contract; others can probably give better examples).
  25. Don, I understand your interpretation. However, isn't yours just as inconsistent with the statute as you say mine is? The statute (PL 109-364, sec 852) says the implementing regulations shall not apply to an FFP contract awarded on the basis of adequate price competition. It makes no distinction based on the value of the contract (actually, I did not see anything in the statute that sets TINA as the threshold). If it violates the statute to give discretion to include the clause in FFP contracts based on adequate competition which are above the TINA threshold, why doesn't it violate the statute to include the clause in the same contracts which are below the TINA threshold? I don't think either of us will convince the other. One of the best features of this discussion is the ability to disagree without being disagreeable.
  • Create New...