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jwomack

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About jwomack

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  1. A slightly different perspective. In my experience, good P/PMs are the key to a contract’s success. In the absence of good P/PMs, the CO is the key. There aren’t many good P/PMs. Good = knowing how to define the government’s need. And knowing how to select, interact with, and manage the contractors.
  2. Not that taking possession is a sole determining factor, but the Government is taking possession. How else could it be used? Also, I would ask the GPC coordinator what labor category / wage rate this "SCA" acquisition falls under. Then I'd ask how they came to their answer.
  3. You cannot "exercise an option that is not in strict compliance with the terms of the contract". It's impossible and contradictory to the definition of what exercising an option means. See the Lockheed and Alliant citations provided above.
  4. Lockheed Martin IR Imaging Sys., Inc. v. West, 108 F.3d at 323 “option exercise must be unconditional and in exact accord with terms of contract being renewed” Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1275 (Fed. Cir. 1999) “attempt to exercise an option outside its terms does not constitute a valid exercise of option”) Black’s Law 10th. Breach of contract. “Violation of a contractual obligation by failing to perform one’s own promise, by repudiating it, or by interfering with another party’s performance” Black’s Law 10th. Material breach. “A breach of contract that is significant enough to permit the aggrieved party to elect to treat the breach as total (rather than partial), thus excusing that party from further performance and affording it the right to sue for damages”
  5. What you're describing is not a breach of contract nor material breach. Both of those terms, as defined by Black's Law, imply there was a violation of a contractual obligation. "Exercising an option in a way that is not in strict compliance with the terms of the contract" is not, in fact, exercising an option; it's a non-binding offer to change the terms of the contract. That offer can be ignored/rejected, accepted, or counter-offered.
  6. Failing to exercise an option is not a material breach of the contract.
  7. Exactly. I was taught to put "90 days" in the first fill-in and did so for years. I trusted the initial guidance but, in hind sight, should have questioned it. I suspect I'm not alone.
  8. The clause isn't poorly worded. COs just don't know how to interpret it properly.
  9. 52.217-9(a) “The Government may extend the term of this contract by written notice to the Contractor within _____ [insert the period of time within which the Contracting Officer may exercise the option];…” Examples of fill-ins and their proper interpretations: “the contract’s ordering period” – the option could be exercised as long as the contract’s ordering period had not expired. “the contract’s performance period” – the option could be exercised as long as the contract’s period of performance had not passed. “one month following the final performance period” – the option could be exercised up to one month following the contract’s final performance period. “one year” – the option could be exercised within one year of the date the 52.217-9 clause was included in the contract. “five years” – the option could be exercised within five years of the date the 52.217-9 clause was included in the contract. “five days” – the option could be exercised within 5 days of the date the 52.217-9 clause was included in the contract.
  10. If SCA applies then the answer to #2 depends on why the clerical workers weren't paid properly. If SCA does not apply then #2 cannot be answered as the question would be based on a false premise.
  11. Opportunity cost. Surely you could be more productive for the Government in other ways.
  12. Not enough information to conclude the appropriateness of shifting funds from one CLIN to another. You’ll need to consider the time, purpose, and amount restrictions of the appropriated funds before you can change what they'll be used for (the ODCs). See the Red Book, Chapters 3, 5, and 6.
  13. On a case-by-case basis, there may be (e.g., CERCLA). But, no, there is no single federal statute/reg that requires federal contracts/actions to comply with all state laws. Are you sure? What if performance was on federal property?
  14. If the estimate was reasonable and the de-ob mod is to revise the quantity accordingly, then you are not changing the terms or conditions of the order and bilateral concurrence isn’t required. There are multiple “authorities” you could cite but I would cite FAR 1.602-1. That was a recent topic of discussion on Wifcon not long ago. If the estimate wasn’t reasonable, you could do a partial termination for the government’s convenience. Your authority would be 52.212-4(l) or one of the 52.249-x clauses. “Reasonable” depends on what you’re buying and how volatile that market normally is.
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