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Contract Cruncher

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  1. Thanks for taking time to look at it. I think you might be reading 1091 a little too narrowly. The authority to enter into PSCs is not explicitly limited to individuals. 1091(a) establishes the authority for PSCs: "The Secretary of Defense. . . and the Secretary of Homeland Security. . . may enter into personal services contracts to carry out health care responsibilities in such facilities, as determined to be necessary by the Secretary." There is a limitation on individuals, which you may be referring to, but that is only in 1091©, which describes procedures that are only applicable to PSCs
  2. Thanks for adding this -- I probably should have included a similar disclaimer to my original post -- it's quite possible that the premise of my question is founded on a faulty legal conclusion or assumption. Any feedback received will not be regarded as legal advice, but I appreciate any suggestions or ideas!
  3. wvanpup, Sure, thank you for your interest. Try these links: https://www.jagcnet.army.mil/DOCLIBS/ARMYLAWYER.NSF/c82df279f9445da185256e5b005244ee/5230ba510359c87585256e5b0054d907/$FILE/Claims.pdf (the main article that puts doubt on whether the military will defend independent contractors working under a PSC) http://www.usuhs.mil/ogc/pdf/mhln12.pdf (pp. 10-11, briefly) http://www.dtic.mil/whs/directives/corres/pdf/600006p.pdf (see Section 3, "The term does not include any contract provider who is not a personal services contract employee.") http://www.apd.army.mil/pdffiles/r27_20.pdf *see
  4. My question concerns the applicability of the Federal Torts Claims Act to medical malpractice suits involving "personal services contract" health care workers. Let me provide some background. 10 USC 1089(a) states that the Federal Torts Claim Act provides the exclusive legal process for filing medical malpractice claims against health care workers employed by certain federal agencies. It also states that the FTCA remedies are equally applicable to similarly situated health care workers who are not civil service employees, but who are "serving under a personal services contract entered into u
  5. Vern, thank you for the research. I'm sorry that I misrepresented that you "suggested" the answer was "No," when, indeed, you declared it was "No" (I didn't hear you "say" anything). Sorry for the semantic confusion.
  6. Vern seems to have this locked down. It seems like the very simple solution is for the FAR council to remove the entire sentence: "However, a written demand or written assertion by the contractor seeking the payment of money exceeding $100,000 is not a claim under the Contract Disputes Act of 1978 until certified as required by the Act." It's a useless sentence, because the consequences of not certifying a claim of more than $100,000 are already described in 41 USC 7103(b(3) -- i.e., there's no need for a regulatory definition that attempts to reiterate these consequences in a way that only c
  7. Thank you for the insight. The question appears to require significant analysis "outside the box" to get a final answer. Based solely on what I've read here, it seems: Whether or not a particular request constitutes the type of "claim" requiring certification is determined by an analysis of the CDA, since the CDA is the statutory authority requiring certification of certain claims. If the CDA's definition of the type of "claim" that is subject is certification requirements is, itself, subject to more than one reasonable interpretation, a court must determine which interpretation shall preva
  8. From a purely literal perspective, the answer is a simple, "yes". Edit: Snipped the comments that went outside the box!
  9. Yeah, this may be the interpretation the DOL uses. But I can also see it going the other way. The ACA's coverage/benefits aspect is frequently referred to as a "mandate." Though it may appear to be an "option," it's not really a free choice if there's a penalty for non-compliance. I mean, you can commit a crime if you want -- it's your option -- but there's a penalty if you do! I would think you are "required" to obey the law, even if you have the option of breaking the law and incurring a penalty. I think, to me at least, it seems like the ACA mandate for employer provided health care b
  10. Do you know if the employer-provided health care coverage can then be calculated to be part of the "wage" in hawaii? So, if the minimum wage is $20/hr, can an employer pay $5/hr. toward health benefits and pay an actual cash wage of $15/hr to meet that minimum?
  11. That would seem contrary to how the DOL has issued WDs in connection with Hawaii's mandated employer health care law. This excerpt is from the June 11, 2012 memo regarding WD revisions for last year: Wage Determination for the State of Hawaii Under Section 2(a) (2) of the SCA, fringe benefit payments that are required by state law may not be used to satisfy the employers' fringe benefit obligations. In Hawaii, most employers are required by law to provide health insurance coverage for their employees. Therefore, employer contributions that are made to satisfy the employers' obligations unde
  12. Has anyone discovered any guidance on how the DOL's Wage Determinations will be affected by the Affordable Care Act? It would seem that, since employer contributions toward group health care premiums would become mandated under ACA, those contributions would no longer be eligible to count toward the H&W component of fringe benefit minimums. If the DOL issues guidance -- and maybe, even if it doesn't, e.g., if this is simply a matter of law -- that, effective Jan. 1, 2014, employer contributions toward healthcare plans may not be considered part of the H&W component of WDs, it seems lik
  13. Thank you for your thoughtful response. I think we agree on how -43 should be intepreted, and I have concluded, as you noted, that clarifying any reliance on minimum WDs and/or -43/SCA adjustments within the proposal will hopefully minimize ambiguity and the opportunity for misunderstanding. FWIW, the DAU advances an interpretation of -43 that is very much like the one you and I propose (See Section 7.3.1 of Vol. 3 of its Contract Pricing Reference Guide): If the contract is a multi-year contract or includes an option to extend the contract, remember that the Fair Labor Standards Act and Ser
  14. This is correct. The only time you could run into problems is through the legal theory of estoppel, and only then under certain circumstances. Estoppel is a doctrine grounded in "good faith" and "fair dealing," which may find a party liable for intentionally misrepresenting information with the intent that the information be used or relied upon by another party to its detriment. Though you may feel confident your estimates are prepared entirely in good faith and based on reasonable judgment, the possibility that you could have overlooked a cost or misstated something accidentally could be pe
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