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Todd Davis

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Everything posted by Todd Davis

  1. I'd leave it up to each offeror to determine if they want to increase their pricing year-over-year, keep it flat, or decrease it. Regardless of what they choose to do, if they are awarded a FFP contract, the rates would not be subject to an escalation, except for one that may be permitted by a service contract labor standards statute price adjustment clause in the contract. Having also worked in the private sector as a buyer, we didn't expect increases from our suppliers and service providers. It was much to the contrary. We expected sellers to find ways to offset cost pressures in materials, labor, and exchanges rates (as applicable). So much so, that they would realize savings for their efforts and then share a portion of those savings each year with us as the buyer for having a business relationship for a certain amount of time with them. This usually resulted in cost reductions year-over-year for a defined period of time. We did the same thing within our company for the products we sold. We continually sought cost reductions through buying materials at a lower cost, making processes more efficient to reduce labor input, among other things. For whatever reason, in Government there is an expectation that the price should only go up. I know there are cost pressures, especially on labor (pay raises, healthcare, etc.), but I would also often expect a contractor, depending on the nature of the procurement, to become more efficient. I also know that some contractors become less profitable on contracts for various reasons, but some also become more profitable. If you receive adequate price competition, you should have little price analysis to conduct, regardless if the price for each option stays the same, increases, or decreases.
  2. Scenario: IFB is issued for construction since government estimate is over the SAT. Low bid is under the SAT. Bid is responsive and bidder is considered responsible. IFB included FAR clause 52.228-15, Performance and Payment Bonds-Construction, requiring payment and performance bonds. Question: Do you think it would be appropriate to make award and then bilaterally modify the contract to remove this clause and replace with 52.228-13, Alternative Payment Protections, along with a price reduction reflecting the removal of the performance bond premium and any difference in the cost of the payment protection provided? I was unable to find any GAO decisions or other case law on the issue with the resources I have. My initial though is that this would be appropriate since there is not a compelling reason to cancel the IFB (FAR 14.404-1) and no bidders would be subject to competitive prejudice by award being made (all submitted bids based on same information). Thank you. Edit: I suppose a contractor could argue that they did not include the cost of bonds in their bid since clause 52.228-15 itself does not require bonds if the "resulting contract price is $150,000 or less."
  3. Earlier this year the ASBCA concluded that the Christian Doctrine applies to performance and payment bond requirements. The case involved the construction of a pre-fab building. The CO used a GSA schedule contract to make award. The order did not include FAR 52.228-15, which implements the requirement for performance any payment bonds. Upon award the CO requested bonds. The contractor initially said it couldn't provide them, but ultimately did two years later! Upon providing the required bonds the CO provided equitable adjustment to compensate the contractor for the bonds that it said were to have been read into the contract to begin with. Upon completion of performance the contractor submitted a claim for delay costs among other things due to the two years that had passed between award and performance. One of the arguments the contractor made was that this was not a commercial contract and not a construction contract, so bonding wasn't required. The Board concluded the contract was for construction and that the Miller Act requirements still applied, even if the procurement was conducted as a commercial acquisition. The Board determined that inclusion of the clause was mandatory, even though the bonds statutes and implementing FAR regulation permit the CO to waive bonding. They reasoned that the CO could only waive the requirement in situations explicitly stated in the statute, which did not apply in this case (i.e., performance in a foreign country or authorized by another statute). The Board also concluded that bonding requirements are significant components of public procurement policy. In the request for reconsideration, the contractor cited a prior U.S. District Court case (Faerber Electric) as having held that the Christian Doctrine does not apply to the Miller Act. The Board distinguished this case from Faerber. It stated that the decision in Faerber was in the context of whether or not a subcontractor possessed a right of action against a prime contractor based on the presumption that the prime was required to have obtained a payment bond, despite both the CO and contractor having ignored the requirement. It also stated that Faerber did not decide address applicability of the Christian Doctrine. ASBCA Opinion http://www.asbca.mil/Decisions/2017/60686, 60687 K-Con, Inc. 1.12.17.pdf Request for reconsideration denied. http://www.asbca.mil/Decisions/2017/60686, 60687 K-Con, Inc. 5.8.17.pdf Prior related Wifcon discussion.
  4. I suspect a deviation will be approved Federal-wide to implement the new thresholds unless they plan on issuing a FAC shortly, which I doubt. I would not apply the new thresholds until the FAR was updated or a deviation approved. That is why DoD had to get a deviation approved to implement the revised micropurchase threshold that only applied to it in the 2017 NDAA. Here is a link to a Wifcon discussion from last year regarding whether to follow a new statute or the FAR.
  5. He signed it today. http://www.nextgov.com/policy/2017/12/trump-signed-ndaa-heres-what-it-means/144494/
  6. I saw that too. I wonder if their rationale was that employees have otherwise been able to wash their dishes in the community sink with water out of the tap and that it would be okay for them to use the bottled water for the same purpose. If so, and if I were the local commander, I'd not allow water to be used for that purpose if it would significantly increase the cost to the government.
  7. I like it. The government shouldn't have to spend one more penny than it needs to. If I were in that situation, I would not view it as the government's job to provide me with a clean plate and fork to eat the food I bought and prepared myself. I can either wash my own dishes at home at the end of the day (I already do) or break down and spend $2 for a 100-count of paper plates. I would be different if folks were stuck in the command post 24 hours a day for days at a time, but here they are just on 12 hour shifts. It amazes me the lengths folks will go to, in order to try and get taxpayers to pay for some of these types of things to be purchased. Like folks not wanting to by their own $3 box of tissues or a $1 bottle of hand sanitizer.
  8. The definition of "mircropurchase threshold" at FAR 2.101 states that it is $3,500 for everything (not just supplies), unless one of the exceptions stated in the definition apply. One of those exceptions are services subject to SCLS statutes. If SCLS doesn't apply, the threshold for services remains at $3,500. If you are part of DoD, you simply substitute $5,000 for $3,500 because of the deviation. The deviation only changed the dollar value and not the exceptions and their dollar thresholds. https://www.acq.osd.mil/dpap/policy/policyvault/USA002333-17-DPAP.pdf
  9. Below are some cases referenced in the Contract Attorney's Deskbook and the Government Contract Guidebook (4th ed). I don't believe they relate to the Government pursing specific performance, but rather the contractor pursuing the remedy. Boards of appeal cannot order specific performance. (General Elec. Automated Sys. Div., ASBCA No. 36214, 89-1 BCA ¶ 21,195; Western Aviation Maint., Inc. v. General Services Admin, GSBCA No. 14165, 98-2 BCA ¶ 29,816 (Tucker Act does not waive the government’s immunity from specific performance suits)). Also, the COFC does not have the authority to order specific performance. (John C. Grimberg Co. v. United States, 702 F.2d 1362 (Fed. Cir. 1983); Rig Masters, Inc. v. United States, 42 Fed. Cl. 369 (1998); Paragon Energy Corp. v. United States, 645 F.2d 966 (Ct. Cl. 1981); Valley View Enterprises, Inc. v. U.S., 35 Fed. Cl. 378, 40 Cont. Cas. Fed. (CCH) ¶76920 (1996), 15 FPD ¶42, 38 GC ¶358; Cardiosom, LLC v. U.S., 91 Fed. Cl. 659 (2010)). I haven’t researched the issue much or reviewed the above cases, but if this type of remedy cannot be ordered in favor of the contractor, I wouldn’t think it could be ordered in favor of the Government. I’d be interested to hear from those more knowledgeable on the issue.
  10. The above sounds very confusing, so I can't comment on your specific situation. Having said that, I suspect the bona fide needs rule applies to your situation. The bona fide needs rule states that a fiscal year appropriation may be obligated only to meet a legitimate, or bona fide, need arising in, or in some cases arising prior to but continuing to exist in, the fiscal year for which the appropriation was made. This is one of the main principles of appropriations law. With respect to the severable services, it the type of appropriation used matters. If funded by single year appropriation, it can only be used to fund serverable services across FYs, for a time period not to exceed 12 months (FAR 32.703-3). If funded by a multi-year appropriation (e.g., FY 16/17), those funds could not be used for serverable services in FY 18 since since they are only available for the bona fide need of FYs 16 and 17. If the multi-year fund was FY 17/18, they could be used for a severable service until the end of FY 18. If a no year appropriation was used, the bona fide needs rule and issue of severability does not apply. A non-severable service is chargeable to the fiscal year in which it was made, notwithstanding that performance may have extended into the following fiscal year. Having said that, if the time period availability of the appropriation used has expired (e.g., FY17 annual appropriation), those funds cannot be kept obligated used for a new non-severable project started in FY18. Any time I hear that someone is concerned with "losing" their funding and is trying to find ways to keep it so it can be used in subsequent fiscal years, there is a good chance there could be a bona fide needs violation either existing or about to exist. More information on the bona find needs rule can be found on this site at: http://www.wifcon.com/bonafidecontents.htm As far as the "Class C" and "D" type contract is concerned, I'm not sure what this means. It almost sounds like someone may have awarded an indefinite delivery contract (FAR Subpart 16.5), but didn't put it in the system that way. See the contract prefixes at FAR Subpart 4.16. Prefix D is used for indefinite delivery contracts. If it truly is an indefinite delivery contract (contains FAR 52.216-XX clauses), then the type of IDC would matter. If it were an indefinite quantity contract, only the guaranteed minimum stated in the contract should be obligated. Subsequent orders are obligated as requirements are developed for projects and orders are placed under the contract. If the guaranteed minimum is not satisfied during the period of availability of the appropriation used for its initial obligation, the obligation must be updated to utilize a current year appropriation. I'm not sure, but it almost sounds like this could be an indefinite delivery contract that someone just obligated funds on and planned on using those funds as needed over the multiple fiscal years.
  11. I worked in private industry for a small division of a very large company (in the top 20 of the Fortune 100). I remember helping one of our proposal writers look at a list of DoD flow down clauses. We were looking at being a sub for a prime with a contract. I started to help him interpret them and he essentially said forget it just after a couple minutes. He decided that we weren't going to bid on that work because we didn't want to accept all of the flow down requirements, some of which he thought were excessive.
  12. I agree. Having said that, the FAR does define the ratings. I can't speak to your situation, but I suspect some COs are quick to hand out top ratings as if it were a 5 point scale on how happy you were with the contractor. Contractor's may get used to getting "Exceptional" or "Very Good" ratings and be shocked when they get a "Satisfactory." However, that is not how the rating system is defined by the FAR. A Satisfactory rating is one where "Performance meets contractual requirements. The contractual performance of the element or sub-element contains some minor problems for which corrective actions taken by the contractor appear or were satisfactory." "To justify a Satisfactory rating, there should have been only minor problems, or major problems the contractor recovered from without impact to the contract/order. There should have been NO significant weaknesses identified. A fundamental principle of assigning ratings is that contractors will not be evaluated with a rating lower than Satisfactory solely for not performing beyond the requirements of the contract/order." To obtain a Very Good rating performance would have had to exceed contract requirements to the benefit of the government. "To justify a Very Good rating, identify a significant event and state how it was a benefit to the Government. There should have been no significant weaknesses identified." The FAR also provides a definition and guidance for the Exceptional rating. If you have objective evidence of why the rating definitions were misapplied to your rating, I'd document that in the comments section and reference the definitions from the FAR.
  13. You actually have more than 14 days to respond. While FAR 42.1503(d) states that "contractors shall be afforded up to 14 calendar days from the date of notification of availability of the past performance evaluation to submit comments, rebutting statements, or additional information". That does not mean that is all the time a contractor has. Changes were made to the process a couple/few years ago. FAR 42.1503(f) also states that "these evaluations, including any contractor-submitted information (with indication whether agency review is pending), are automatically transmitted to PPIRS at http://www.ppirs.gov. not later than 14 days after the date on which the contractor is notified of the evaluation’s availability for comment. The Government shall update PPIRS with any contractor comments provided after 14 days, as well as any subsequent agency review of comments received." This means that you have between days 15 and 60 to submit comments. This was changed so that at least a "pending" report is submitted to PPIRS in a timely manner and PPIRS does not have to wait for the CPARS assessment to be finalized. Agencies do not always conduct assessments in a timely manner. CPARS is just a feeder system to PPIRS which is the repository that is used future source selections. I agree the only way to help get a review at a level above the CO (reviewing official) in the CPARS system is to not concur with the assessment and contact the CO to request a discussion. I'd try to learn more about an agencies specific policy regarding the second level review. The FAR simply states "agencies shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation. The ultimate conclusion on the performance evaluation is a decision of the contracting agency." The comments section isn't necessarily a place for requesting a meeting, instead it is you opportunity to state why you disagree with the rating. It will be your only opportunity to get your comments in the system. Even if a reviewing official gets involved and the assessment is changed, the contractor does not have the subsequent ability to add comments. I'd be professional, fact based, and provide adequate support so that an objective reader understands your side of the issue. If you aren't already aware of it, there is training documentation/slides regarding the process on the CPARS website at https://www.cpars.gov/webtrain_tm.htm.
  14. I wouldn't judge the career field based on one experience. It is not like that everywhere. I've worked for two different agencies and my wife for three. There are some agencies I wouldn't work for. Management can make a place a difficult or even miserable place to work. On the other hand, good leaders can make the same agency a great place to work. If I were in the environment you describe I would move on as soon as I was able to. In the meantime I would offer my opinion only when asked and in the meantime do my job to the best of my ability. Unfortunately, for whatever reason some folks do not like to be challenged or proven wrong. I guess it's human nature. I'd focus on what I could control and let others be responsible for their actions and contracts unless I had reason to believe that something illegal or improper was going on. If that were the case then I would report the issue to my manager or even to the IG if appropriate, but I'd want to have some solid basis for my assertion and not just a comment to not look at a certain contract. As far as being warranted goes, I'd focus on learning and doing the job the right way. As a CO you will find yourself challenged by management or customers to do certain things. Sometimes the flexibility exists to accomplish what they are seeking, sometimes it does not. Part of being a CO is dealing with these challenges, finding a path if possible, or sticking to your guns if you believe what is being asked is inappropriate and then refer the issue to management. I've seen some COs push back in a confrontational way and/or without adequately explaining why something is not appropriate, which doesn't usually end well. On the other hand, being non-confrontational and adequately explaining why something must be done a certain way or why something is inappropriate may help resolve the issue.
  15. I'm not aware of anything in the FAR or statute that would preclude you from making a payment to a contractor for part of a claim. It may even be the prudent thing to do if the CO has determined the contractor is entitled to the cost and if the amount of interest is significant. If you can get the contractor's agreement to that portion of their claim, I'd execute a bilateral modification that includes release of claims language for that portion of the claim. If the contractor did not agree to the cost for that portion or the claim, I would consider issuing a CO's final decision and make payment to the contractor for that portion.
  16. I cannot speak for the DFARS since I have not worked in DoD for many years, but there is not a requirement in the FAR. I very much doubt there is one in the DFARS. It is probably a local practice and may or may not even be in a policy in your office or the DoD agency you work for. It is sometimes helpful to have the invoice information summarized on a spreadsheet in case you or someone else looking at the file needs to review the invoices. I've done it for some of the larger contracts that I've had where invoices are received routinely (e.g., bi-weekly, monthly, etc.). Also, if there is an automated invoicing system used by your agency, as is the case within the agency I work for, I'd consider just running a report out of that system periodically rather than maintaining a spreadsheet, so long as it had all the information on it that I wanted. I like to do things for a reason and not solely because "that's how we've always done it."
  17. There is no requirement in the FAR to check SAM for every modification that is issued to an existing contract. However, some actions such as exercising an option may require it (17.207(c)(5)). As C Culham points out, even if a contractor under and existing contract is debarred, suspended, or proposed for debarment, agencies may continue with those contracts unless the agency head directs otherwise, except for the types of actions specifically excluded, absent a determination by the agency head. Despite this, some agencies or offices may have local policies that require checking for a SAM exclusion more frequently, such as every modification or every payment. I would question the additional burden this places on COs versus the benefit to the Government. I suspect that a very very small percentage of all those checks would reveal a contractor that is now on the excluded list. Even if someone finds that a contractor is on the excluded list, it may or may not have any impact on the existing contract. Odds are the contractor will still perform and the Government will make payment.
  18. Some positions, especially higher graded ones may require a FAC-C or DAWIA certification or the ability to obtain one within a certain period of time. The job notice should state whether or not you need to have it walking in the door. If so, you probably wouldn't qualify, but I'd still apply. You might have to look at some of the lower graded jobs that don't require the certification to get in the door. I've not seen any job notices that require a NCMA or ISM certification, although those are not bad to have, especially those from NCMA. As far as experience, I've seen people get hired into contracting at the GS-9 and above level with little or no experience. I've seen administrative assistants get hired based on having purchase card experience. I've seen car salesman get hired and someone with no experience and a forestry degree. I wouldn't let your experience deter you from applying. However, if hired you'd have to find ways to get up to speed. I'd start networking with other contracting professionals in your area through NCMA so you can meet people and get advice. There are a lot of training materials and reference materials on the internet that are available to the public. There are also resources on this website to help you learn more about contracting. I wish you well.
  19. I know someone that works at USACE. That person also has not heard of the term.
  20. The USDA has a key personnel clause. The prescription states: "The contracting officer shall insert a clause substantially the same as the clause at 452.237-74, Key Personnel, in contracts if contract performance requires identification of the contractor’s key personnel." The clause reads: KEY PERSONNEL (FEB 1988) (a) The Contractor shall assign to this contract the following key personnel: __________________ (b) During the first ninety (90) days of performance, the Contractor shall make no substitutions of key personnel unless the substitution is necessitated by illness, death, or termination of employment. The Contractor shall notify the Contracting Officer within 15 calendar days after the occurrence of any of these events and provide the information required by paragraph (c) below. After the initial 90-day period, the Contractor shall submit the information required by paragraph (c) to the Contracting Officer at least 15 days prior to making any permanent substitutions. (c) The Contractor shall provide a detailed explanation of the circumstances necessitating the proposed substitutions, complete resumes for the proposed substitutes, and any additional information requested by the Contracting Officer. Proposed substitutes should have comparable qualifications to those of the persons being replaced. The Contracting Officer will notify the Contractor within 15 calendar days after receipt of all required information of the decision on substitutions. The contract will be modified to reflect any approved changes of key personnel. (End of Clause)
  21. It now works for me. I was logged in as a member before and after. Whatever was changed worked.
  22. Unless an agency has issued policy or guidance on the matter (FAR 53.212), I would suggest the following. Block 29 only applies when the government is accepting an offer from a offeror to form a binding contract. If the CO is instead issuing an offer to purchase (purchase order) to a vendor, the CO should simply complete Blocks 31a, b and c, then send the purchase order to the vendor. If the CO wants written confirmation of the vendor's acceptance of the purchase order, he or she can check Block 28 request the vendor sign the document and complete Blocks 30a, b, and c. While Block 28 states the contractor is "required" to sign the document, I don't see how they could be required to accept an offer to purchase from the government, even if they submitted a quote. Alternatively, if the CO is not concerned with obtaining written acceptance, he or she can rely on the expectation that the contractor will perform. Tender of performance creates a binding contract. When performance is partial or in part, the question of when a contract is formed is less certain. Boards have found in that substantial performance creates a binding contract, while intiation or partial performance may or may not based on the circumstances (ASBCA No. 33732, Amplitronics, Inc.). I believe the reason that Block 27 states both contract and purchase order, is because those clauses apply regardless of whether the form is used to create a contract by accepting an offer from a vendor or the issuance of an offer to purchase (purchase order) issued by the government. Block 29, on the other hand, is only used to accept a vendor's offer to form a contract when the CO signs the document. Block 29 is not used to issue a purchase order.
  23. I'm having the same issue as edwardscpfd. Also gives the error code 2C171/1.
  24. There are different teams on the Federal Acquisition Regulatory Council, one of which is the acquisition finance team. The link to the list of teams in broken in the link I provided, so I cannot tell specifically what they are responsible for. They are tasked with different activities in a recent list of open FAR cases. I did find GSA points of contact list for the different teams, including the acquisition finance team. The current FAR cases they are tasked with drafting proposed rules for include issues related to sureties, taxes, incremental funding on fixed price contracts, and performance-based payments.
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