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wvanpup

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Everything posted by wvanpup

  1. wvanpup
    Leaving aside for the moment the question of how you will write a delivery order based on estimated quantities when you do not know the quantities that will be needed (and the associated problem of what you will do if the estimate turns out to be too high or too low), when do you need to order the items to ensure they are available when you need them in FY15? If your production lead time is relatively short, so that you do not need to order the items in FY14, they are bona fide needs of FY15 rather than FY14. If you need to order them in FY14 in order to have them available when needed in FY15, they are either (perhaps depending on semantics) a bona fide need of FY14 or an exception to the bona fide need rule which allows you to order them in FY14. I am just guessing here, but I suspect that the legal opinion ("The bona fide need rule is satisfied because the agency had a blanket and continuing need to provide these items when the IDIQ contract was executed in FY14, and that need crosses into FY15") is an effort to express the lead-time aspect of the bona fide need rule.
  2. wvanpup
    I could well be mistaken, but I seriously doubt that the Government would abandon (i.e., relinquish all claims to ownership and control) classified property. Most likely, there has simply been no instruction on what to do with the property. I echo the recommendation to contact a good contracts attorney for assistance. That will most likely lead to the "best" result (getting the government to take control and possession of the property, getting paid your past storage costs, getting paid for future storage, etc.), though it is questionable as to whether that will be the most cost effective action you can take. Disposing of the property yourself is dicey; it is, after all, classified, and that could lead to some significant problems for you.
  3. wvanpup
    I too have started and stopped my response. I think I can laugh at myself when appropriate (I am an identical twin, and many times have told people what it does to my confidence to look at my twin brother and think he is one ugly dude). What I do not like, and do not think is funny, is to tell jokes that depend upon and reinforce negative stereotypes to be funny. I would not think it funny for you to tell me a Jewish joke based on the sterotype of Jews being cheap, in fact I would be insulted. I have the same reaction to lawyer jokes. My wife (from Kentucky) is tired of redneck jokes. For the life of me, I cannot understand why I am supposed to be a good sport and just let myself be insulted, particularly when I do not know the person telling the joke.
  4. wvanpup
    Sorry JonM, but not funny. If you think Government will destroy the earth, what do you think will happen with the alternate?
  5. wvanpup
    Is there a difference between an invoice and a voucher? "Invoice" is defined at FAR 2.101, but I cannot find a definition of voucher. It appears to me that in some places the terms are used interchangeably, but not always. My guess is that an invoice is for completed supplies or services, while a voucher is for interim payments (progress payments, interim payments on cost contracts, etc.). The distincition will not make a difference in what I am working on, but I do want to use the proper term. TIA.
  6. wvanpup
    I wonder if it is a function of age. Is KO more prevalent among those of us approaching (or, like me, well past) our dotage than among our wet behind the ears colleagues with only 10-15 years experience? How ironic is it that the we use KO but never PKO, AKO, or TKO?
  7. wvanpup
    You say that there is no post-demolition construction, but then you say that the demolition is segregated from the construction. If there is no post-dmolition construction, what construction needs to be segregated? If there is some construction to follow, doesn't 37.301 say the demolition is construction subject to Davis-Bacon?
  8. wvanpup
    The Federal Register says It specifically refers to the cost principle at 31.205-6, not to the principle at 31.205-33 for consultants. I do not see how this limits what can be paid to consultants.
  9. wvanpup
    As has been said before, the devil is in the details. One of the details may well be the specific ground rule or assumption that comes into question. As has been pointed out, the parol evidence rule prevents using outside information to contradict the terms of the contract. There is an exception for contract terms which are ambiguous. IIRC, there is another exception when the contract does not reflect the agreement the parties intended. Take this situation. The GR&A assume that GFP provided under a contract XYZ may be used in the performance of the contract (call the new contract ABC) and will be transferred to contract ABC when contract XYZ is completed. The PCO agrees and negotiates price on this assumption, but there is nothing in the contract specifically authorizing the use of the GFP or directing transfer of the GFP to the contract. Also, contract XYZ says that the GFP provided can be used in contract 123, but does not provide for use in any other contract. Assume (1) the ACO for contract XYZ prohibits use of the GFP even though it is not needed for contract XYZ, and (2) the ACO directs the contractor to return the GFP to the Government, which prevents its use in contract ABC. What happens if the proposal is not incorporated into the contract?
  10. wvanpup
    One last post concerning the ability to assert a claim for late delivery. See Federal Boiler Co., 94-1 BCA P 26381, September 23, 1993:
  11. wvanpup
    Sorry for the multiple posts, but I thought making comments separately was better than one long post. I agree with those who have said the best the contracting officer can do is an adverse CPARS evaluation. While the contracting officer may be able to withhold fee pending completion of the contract, that fee must be paid in full when the contract is completed. I believe that any effort to waive the default and unilaterally establish consideration for that waiver (which will be a reduction in the total fee paid) will not be upheld on appeal (and the Government will be on the hook for EAJA fees if the contractor is a small business because the Government's position will not be substantially justified).
  12. wvanpup
    The1102 wrote: Sure the contracting officer can open the boxes, use the helmets, and negotiate consideration. The real question is what does the contracting officer do when the other side is unwilling to negotiate. In that case, the contracting officer either determines how much the Government has actually been damaged by the late delivery and makes a claim for that amount or pays in full. I am not aware of any authority that gives the contracting officer the ability to unilaterally determine a fair consideration for the late delivery and reduce the contract price by that amount.
  13. wvanpup
    Chris M wrote: Why should the Government allow late delivery without receiving adequate consideration? The short answer is that if the Government is unwilling to terminate the contract for default the contracting officer, in the absence of a liquidated damages clause, has no authority under the contract to reduce the contract price. The contracting officer has three options: terminate for default, negotiate consideration for a contract extension, and waive the delivery. Is there anything else under the contract that the contracting officer can do? Keep in mind that under standard contract law, the remedy for breach of contract (late delivery) is either termination of the contract or payment of damages. Since termination is not an option, what damages (other than annoyance with the contractor) has the Government sustained as a result of the late delivery? Note that it is the difficulty of proving actual damages that is the basis of a liquidated damages provision in a contract.
  14. wvanpup
    The1102 wrote: A contracting officer is not powerless when there is a history of unsatisfactory performance. If the contractor is not sole source, the contractor can be found non-responsible and denied an award. In more extreme cases, a history of unsatisfactory performance may be the basis for debarment (see FAR 9.406-2((1)(), though I probably should not say extreme cases since the FAR allows debarment based on a "history" of one contract. If you are in a sole source situation, good luck in getting a contractor to agree to any kind of penalty provision for late delivery.
  15. wvanpup
    There have been some comments about imposing a penalty on the contractor for failing to deliver on time. The Government may be allowed to recover its damages (e.g., excess reprocurement costs, equitable adjustment for delivery of nonconforming item), but I am not aware of any authority of the contracting officer to penalize a contractor except as may be authorized by a contract clause. See, e.g., the defective data clause with respect to a penalty based on knowing submission of defective data; see also, e.g., the prohibition on establishing liquidated damages so excessive as to become a penalty. It is one thing if by penalty you meant recover damages, but keep in mind that penalty and damages are NOT synonymous.
  16. wvanpup
    H2H wrote: I would question this advice based on expiration of the period of performance (I agree with respect to the LOF/LOC limits). The contract is a CPFF completion, and the contractor is required to deliver the contract deliverables. I do not expect DCAA to question costs incurred after the delivery date. See the DCAA Contract Audit Manual, which says
  17. wvanpup
    Regor, do you have your numbers backwards? Seems to me that -8 is for protests/delays in award.
  18. wvanpup
    Back from Christmas leave and thus late to the party. My classroom answer is that anyone who negotiates an equitable adjustment based on common sense rather than the authorizing language of a contract clause will (1) never get it through legal, and (2) either (a) have to later explain why payment was made when not authorized by a clause, or ( b ) explain to a court/BCA why an equitable adjustment was denied when authorized by the contract. My real world answer does not change.
  19. wvanpup
    Jlew, do you know why ~$208K was obligated to fund a CLIN priced at ~$193K? Is this ~$15K the overpayment you want to recover? If not, what is the basis for the contractor billing more than the contract price?
  20. wvanpup
    Somehow I am unable to edit my previous post. You asked about providing an opportunity to correct. A show cause notice (which is not required by the FAR but might be required by agency policy) does not provide an opportunity to correct, it provides an opportunity for the contractor to explain why the contract should not be terminated for default (e.g., the contractor can explain why it is not in default, or explain why it might be to the Government's advantage to permit correction rather than to terminate the contract). A cure notice, on the other hand, directs the contractor to correct the default, and may be required depending on the nature of the default. You need to look at the termination clause of your contract to determine if a cure notice is required.
  21. wvanpup
    Though there is no formal FAR requirement for a show cause notice, there may be an agency policy that requires the notice. What does your agency require?
  22. wvanpup
    Looking for some guidance from the collective wisdom and experience of the group. I can find information on what initial spares are, but I am having difficulty finding information on how we contract for them. My understanding is that the full funding policy requires funding of initial spares (i.e., initial spares are purchased with the end items). What has been your experience in defining the requirement for initial spares and the contract type that is used? For example, does the contract define all the parts that are required (6 widgets, 3 gizmos, and a partridge in a pear tree), or does the contract allow flexibility? Is delivery required to be made with the end item, or can it be later? What pricing structure is used? TIA.
  23. wvanpup
    FAR 17.205( provides: "Any justifications and approvals and any determination and findigns required by Part 6 shall specify both the basic requirement and the increase permitted by the option." I am not aware of a requirement for a J&A if the basic contract is competitive. Where you run into a problem is when the basic contract is competitive and the options are not evaluated. In such cases, the options are considered new acquisitions for purposes of a J&A (i.e., you need a J&A to do a sole source new acquisition). Frequently (if not typically) the -8 option is not evaluated as part of the initial award, and a J&A is therefore required as part of the option exercise. For a case almost exactly on point, see Decision Matter of: Major Contracting Services, Inc., B- 401472, 2009 CPD P 170, 2009 WL 2933344, (Comp.Gen.), September 14, 2009
  24. wvanpup
    Kate I assume you prepared the J&A because the -8 option was not part of the evaluation for the initial award. What did the J&A authorize? If it authorized only a three month extension, I expect you will need another (or need to amend the J&A IAW your agency procedures).
  25. wvanpup
    You have phrased this as exercising -9 and cutting it short. I do not think this is within the policy you mention, which says that -9 can be exercised during any short-term extension. I do not think you can exercise -8 for two months and -9 for 10 months. Typically, the -9 option is pursuant to a specific pricing schedule for 12 months, and is exercised for 12 months. If you try to exercise the -9 option for ten months, you are not exercising the option in accordance with the terms of the contract (reading the option CLIN and the -9 clause together), so the option exercise is not enforceable. Actually, I think there is a disconnect between -9 and the option CLINs because the -9 is so unspecific. In reality, the option exercise is more in line with the -7 clause for additional quantities under separately priced CLINs, in that you have a separately priced option CLIN for an additional year of services, but there is no reference in the -9 clause for what is actually being exercised (just some undefined "option").
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