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About jmsmith

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    Atlanta, GA

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  1. jmsmith

    Unauthorized Committment

    Thanks for the quick responses, this is all excellent reading and exactly what I couldn't find yesterday.
  2. All, I've been doing some searching and coming up empty handed. I'm looking for cases/examples of a COR directing the contractor to make a change, the contractor proceeds to make the change (and the government benefits), all the while knowing the COR (or should have known) had no authority to direct the change and the courts find in favor of the government. I've heard contracting officers say they wouldn't play a claim under the above circumstances because the contractor knew the COR wasn't authorized to modify the contract. However, I was reading MA DeAntley Construction V. US No. 04-1052C and there it held for the contractor that the project engineer (who I'm assuming had no contractual authority) constructively changed the contract by ordering rock to be moved. Although we have clauses(DFARS 252.201-7000 for instance) that tell the contractor who does or doesn't have the authority to direct changes, can someone show me a case where the courts held in favor of the government on a scenerio as described? This seems like COR 101 to me, but I'm having trouble getting this straight in my head.
  3. Joel, when you said "in your experience the local customer either didn't know, or didn't bother to pursue finding the expired funds", then was the mod execute with current year funds or was the mod not executed unless they could come up with expired funds from the year the contract was awarded? Unfortunately, I have two different finance offices suggesting two different things. Ultimately everyone, including legal, will be around a table to ensure no rules/laws are being broken. I'm not a finance person and was merely trying to get a little smarter on it. Thanks
  4. Fair enough and you are more than likely correct. However, theoretically, if the funds are not available for whatever reason, what are the next funds that should be used to fund an in scope mod? Current year? Could it be any year, available O&M funds from between the year of award to the current FY? Thanks for the replies.
  5. They are "not available" for some other reason, it's not entirely clear why from where I sit but local agency indicates they can't get O&M funds from FY08. The thought was they can use current year funds to cover the in scope modification but a question was raised as to whether or not they could use available expired funds from either FY09 or FY10. I thought I had read in a fiscal law course that funding for an O&M in-scope mod must first come from the year in which the contract was awarded and if not available, then from the current FY year. I may have misunderstood. The above is trying to have it come from a year in between award and the current FY. Thanks
  6. Basic question and for the life of me I can't find the answer in the Red Book or Agency regulations. Scenerio is an FY08 O&M renovation. An inscope modification has come up and FY08 expired funds are not available. Must FY11 O&M funds be used, or could FY09 or FY10 expired O&M funds be used? FY09 and FY10 funds were used previously to fund inscope mods that occured in those respective years when FY08 funds were not available. Can you point me to the guidance?
  7. In reference to FAR 36.203(a): "An independent Government estimate of construction costs shall be prepared and furnished to the contracting officer at the earliest practicable time for each proposed contract and for each contract modification anticipated to exceed the simplified acquisition threshold." There is debate in my office as to whether the "anticipated to exceed the SAT" applies only to the modification portion of the sentence or to both the proposed contract and modification portion. Do we need an IGE for a small construction contract that is not anticipated to exceed the SAT? Thanks
  8. jmsmith

    FPIS and Incremental Definitization

    Thanks for the feedback all. You've solidified much of what I was thinking. This is not ECI Joel, but a similar variant.
  9. jmsmith

    FPIS and Incremental Definitization

    Thanks for the reply. I gather you are saying if we wanted to do this, we would have to set it up at the outset the way you are describing? We have an ongoing debate and some have interperted 52.216-17(g)(1) as allowing the government and contractor to bilaterally agree to remove portions of the work to negotiate separate disposition of that work, completely removing it from the FPI(S) operation (to include negotiating a FFP profit for that piece of removed work). Adjusting the targets on the work that remains FPI(S) would be easy enough. Would this seem even plausible to you? Thanks again for the reply
  10. We have an construction contract with 2 CLINS. CLIN 1 is a FFP clin for the construction contractor to provide preconstruction services during design. CLIN 2 is an FPIS clin to actually build the facility being designed. The design packages are phased such that the construction contractor can start working prior to the whole design being completed. As the individual design packages are completed to 100% we are wanting to convert that portion of the work from FPIS to FFP, while leaving the remaining portions of work, still being designed, as FPIS (no work is happening on the portions that are still under design). Question (s). 1. Does that approach seem possible under 52.216-17, specifically (g)(1) or any other paragraph in the clause that would allow incremental definitization? 2. If not under that clause, does anyone know of another clause/statute to sight to allow for this? Thanks