jwomack

Enjoyed the commute this morning for a change

Agencies are required to record obligations (like contracts) only when supported by documentary evidence of a binding agreement that is in writing (31 USC 1501). Adjustments to recorded obligations, like the recordings themselves, must be supported by documentary evidence (Red Book, page 7-9). The SF-30, Amendment of Solicitation/Modification of Contract, shall be used for removal of contract funds. FAR 43.301(a)(1).

The Government can unilaterally establish a new delivery date, and the contractor is bound to that date, even when the contract doesn't allow for such changes? That's a new one. Good luck with enforcement.

Outside the FAR and in the realm of common law? How is this possible? Aren't FAR-bound executive agencies bound by the FAR? Is there some exemption from this?

Any unilateral change to the POP would be considered a government offer. If the KTR rejected the offer then T4D based on the contractually established POP would be appropriate and allowable.

Companies consider potential impact on their bottom dollar. Period. Riskier candidates could mean delayed revenue and possible contract default. Is the risk worth the reward? Most for profit companies, if not all, couldn’t care less how much it costs the Government to run a background check.

The POP is a stated contract limitation.

The contract must be read as a whole. Ignoring a stated POP would not be proper. A mod would be necessary.

The CO may be able to replace the funds. Any contract mod to extend the POP should be based on this which may mean caveating the extension with "funds are not presently available beyond xx/xx/xx".

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.

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.

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.

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”

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.

Failing to exercise an option is not a material breach of the contract.

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.

The clause isn't poorly worded. COs just don't know how to interpret it properly.

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.

13D "Other"

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.

Opportunity cost. Surely you could be more productive for the Government in other ways.

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.

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?

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.

Gaining “peace of mind” due to ineptness, i.e., the inability to properly interpret how options work, does not equate to the Government receiving consideration. You need new attorney friends and a better professional group if this is the advice they're giving you.