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Jacques

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Everything posted by Jacques

  1. Is The FAR Enforceable

    Seeker, I didn't say that "obey first, grieve second," doesn't have exceptions. It does. The Court of Appeals decision discusses one of them (5 USC 2302(b)(9)(D)). You have identified another. It does not change the fact that employees can be and have been disciplined (and that discipline has withstood review) despite the fact that the employee ended up being right as to the "legality" of the order. Ideally the Douglas factors help limit the severity of the discipline in these cases, but it is not a defense to a charge of either refusal to perform work or failure to follow instructions that the supervisor's order ended up being inconsistent with a regulation. Fieckenstein has been largely overturned by Cooke v. USPS, 67 MSPR 401 (1995).
  2. Is The FAR Enforceable

    I don't think the Court of Appeals decision is particularly precedent setting. I think the idea of "obey first, grieve later" is fairly well-established. See, e.g., Gragg v. U.S. Air Force, 13 MSPR 296, 299 (1982). There are exceptions to the general rule, of course. Additionally, it seems to me there are a fair number of opportunities in contracting to get help before being forced into this Hobson's choice, like going to Policy or Clearance or Legal for advice, and then "blaming" your clearance approval official (or your agency's equivalent) for preventing the Government contracting officer from following the supervisor's improper direction. If a requiring activity is asking the contracting officer to violate the rule, hopefully most agencies are set up so that working PCOs are not under the immediate supervision of someone who has never held a warrant.
  3. Is The FAR Enforceable

    In the Federal workplace, the FAR is not something an employee can “enforce” against his supervisor by refusing to do what his supervisor tells him to do. (By the way, Dr. Rainey was a COR, not a “contracting officer,” as suggested in the GOVEXEC summary.) Many civil servants are prepared to do the right thing without regard to the impact on their careers. These folks can stop reading now. I would encourage Government employees (concerned about discipline) who are directed to do something that (the employee believes) violates a rule to “obey first, then grieve.” When circumstances permit you to convince your supervisor, obviously do so. When circumstances permit you to achieve the results your supervisor wants to achieve in a way that is consistent with the rules (as you understand them), try to follow that path. The general rule from the MSPB perspective is “obey first, then grieve.” One narrow exception to that MSPB-recognized rule appears in the WPA, which makes it retaliation to discipline an employee for insubordination when that insubordination was required in order for the employee to avoid violating a STATUTE. (Another exception is irreparable harm, so hopefully this thread will be able to avoid the Lt. Calley/My Lai comparisons.) For whatever reason, Dr. Rainey (or, more likely, Dr. Rainey’s counsel) either chose not to or was not able to describe why “tell[ing] a contractor to rehire a terminated subcontractor” would have invariably resulted in Dr. Rainey violating a STATUTE. We can probably Monday morning quarterback that forever, especially if the available facts are as thin as they appear (given the appeal at issue here is from the MSPB ALJ’s granting a motion to dismiss). The State Department denies the supervisor (Katherine Dhanani) ever ordered Dr. Rainey to do any such thing. See its Brief and Supplemental Appendix, at 7 n.3 (https://assets.documentcloud.org/documents/2748161/State-Dept-s-Response-Brief-and-Suppl-Appendix-1-1.pdf).
  4. G Wiz, you may also want to take a look at Kardex Remstar, LLC, B-409030, Jan. 17, 2014. Communications, even communications conducted under a FSS buy, must not be fundamentally unfair, which was the point of my earlier post. Don’t take your attorney’s advice too literally. The GAO looks to the standards in FAR Part 15 for guidance in determining whether exchanges under a FSS buy were fair and equitable. Discussions should not be conducted in a manner that favors one offeror over another. You may have some rationale as to why you requested a price reduction from one vendor but not the other at a time when neither quote was awardable, but, unless I’ve missed it, you haven’t provided that rationale. The vendor from which you sought price reductions appears to have quoted a LOWER price than the disappointed vendor at the time you sought the price reduction, so your facts seem distinguishable from those in Bannum, Inc., B-409831, July 30, 2014. There may be a line of cases that will show that my concern is misplaced, but off the top of my head, I’m concerned your discussions may potentially have been unequal. Nothing in FAR 8.405-4 prevented you from seeking price reductions from both vendors. I could see citing to Optimus Corp., B-400777, Jan. 26, 2009, and trying to argue that, because seeking discounts doesn’t trigger a duty to have MEANINGFUL discussions, then a disappointed offeror shouldn’t be able to argue that failing to seek discounts from the disappointed vendor amounts to UNEQUAL discussions. In other words, if seeking discounts doesn’t amount to discussions, how could there have been unequal discussions? Even if the GAO buys that, I doubt the lack of equal treatment has to be grounded in DISCUSSIONS. The protest could simply be that the agency treated similarly situated vendors differently without justification to the prejudice of the disappointed vendor. In fact, if the order was greater than the SAT, I could see a disappointed vendor arguing that FAR 8.405-4 should be read to require the agency to seek price reductions from more than just one vendor when that request is made prior to the identification of the successful quote. You write, “Both vendors were able to fix their TQs.” As such, while I don’t understand why you didn’t seek price reductions from all vendors at the same time you sought them from one, I REALLY don’t understand why you didn’t seek price reductions from the disappointed vendor when it became technically acceptable. Doing so would not have amounted to reopening discussions.
  5. I assume that the successor vendor was the one from which you requested the price reduction. I assume the vendor's initial price was not so high as to preclude award in its own right. If both my assumptions are correct, I don't understand what your rationale is for treating the two vendors differently.
  6. FARmer, you ask, “Can the CO of the farmed out work make an OCI determination and make award?" The CO of the farmed out work can make award, but not the determination that award is consistent with the restriction on future contracting appearing in the MA IDIQ contract. The decision to award does not protect the contractor from any adverse action WRT the MA IDIQ. The Government contracting officer responsible for the contract that contains the restriction on future contracting (the MA IDIQ contract in your example above) has authority in the first instance (i.e., absent an appeal of a contracting officer’s final decision to a BCA or the COFC) to interpret the contract over which that CO has cognizance/responsibility/authority. If the CO finds the contractor failed to comply with the terms of that restriction (e.g., by submitting an offer that was accepted), the CO for the MA IDIQ can take whatever adverse action against the “breaching” contractor permitted under the contract (e.g., termination for default, adverse CPAR, something in-between). The Government CO responsible for awarding (what may be) the “offending” contract has no authority to interpret the language of the MA IDIQ contract on behalf of the Government. However, that CO is responsible for insuring that award is consistent with FAR Subpart 9.5. As a restriction on future contracting may restrict more than just patently obvious organizational conflicts of interest, there is no necessary conflict between these two determinations (that is, where the CO on the MA IDIQ says the clause restricts, and the CO on the “farmed out work” finds award would not immediately result in an actual organizational conflict of interest). While looking for even actual OCIs often involves looking at the terms of both contracts (to include any ongoing task orders under the IDIQ), it becomes more challenging for the CO on the “farmed out work” when s/he starts considering potential OCIs, which could easily require that CO to consider the scope of the MA IDIQ. When viewed in that light, hopefully the CO on the “farmed out work” would defer to the reasonable interpretations of the CO on the MA IDIQ on the meaning and scope of that IDIQ contract.
  7. To put it in the language of the GAO, the agency would be alleging that ABC is not an interested party to protest. The GAO doesn’t have to give much weight to post-hoc rationalizations, but the agency can certainly make the argument. Even if the agency is successful in showing ABC is not currently eligible for award, though, that isn’t necessarily the end of the matter as to whether it is an interested party. As noted in the earlier posts, even if ABC is presently ineligible for award, whether ABC is an interested party depends on the corrective action it argues the agency must take, which, in turn, depends on the protest allegation.
  8. It seems we both agree such speculation that would not be a productive use of time.
  9. Don, I apparently did misread your Post #7. I didn’t appreciate that the cost proposal (which I read to mean nothing more than cost volume or price volume) literally included proposed wages (lower than SCA prevailing wages), not just prices. In any case, can you point me to any GAO decisions for the award of a FFP contract where the protested proposal literally included proposed wages (something typically not required to be included in proposals for competitively awarded FFP contracts) where those proposed wages were lower than SCA prevailing wages and the GAO held in the same way it did in, e.g., Group GPS Multimedia? In other words, do you have an actual example of how these lines of cases are inconsistent?
  10. If you’re wondering, it probably is. We could speculate that the software was delivered under a contract that contains the Rights in Special Works clause and then debate what the impact of that would have any any advice anyone may have given up to that point in the thread. That sounds just as productive as doing the same thing with GS1102’s speculation of what the facts may be. Fortunately, Ken9455 can tell us what the facts actually are. Hopefully he has. If not, hopefully he will.
  11. Don, as you are no doubt aware, there are many decisions like Group GPS Multimedia. How is the line of decisions of which this decision is a part inconsistent with the decisions on 52.219-14? Unlike the offeror on the set-aside who proposes to subcontract in violation of the Limitations on Subcontracting clause, your inference that the contractor intends to violate the Service Contract Act is just that, inference. It does not follow inevitably (or by deductive logic) that because the price it seeks would not permit it to pay SCA wages AND SIMULTANEOUSLY NOT PERFORM AT A LOSS, that the contractor will not comply with the SCA clause. Nothing prohibits a contractor performing an FFP at a loss, intending to perform an FFP contract at a loss, or proposing to perform an FFP contract at a loss.
  12. GS1102, thanks for encouraging Ken to confirm his statement of the facts in Post #1. In the meantime, it sure would be a refreshing change of pace if this thread didn’t build on your speculation of what the facts might be.
  13. LadyS_CO, you may want to rephrase your post. You talk about "reasonableness" in a competitive environment, suggesting you should normally be able to determine price reasonableness based on price analysis (one way or the other), ideally through comparison of proposed prices received in response to the solicitation. FAR 15.404-1( b )(2)( i ). (Presumably you are evaluating price reasonableness and looking at rates because you either work for DoD or your agency supplements FAR 8.404(d) like DoD does.) Getting subcontractor proposals sounds on the face of it more like getting other than cost or pricing data, which is more typical of cost analysis than price analysis, especially for the FFP portion of your effort. On the other hand, you talk about a labor-hour contract type, which makes me wonder whether your agency permits blended rates under FAR 16.601(f)(1). Are you sure the other contracting officer believes the "requirement" is derived from the need to determine the prime's price is fair and reasonable? EDIT: Thanks, Desparado, for your Post #8 below. The language I struck out above was based on my misreading of DFARS 216.601(e), which prescribes the clause at 252.216-7002 Alt A, but, as the name of the clause and the prescription make clear, only for non-commercial items. FSS MAS contracts are solely for commercial items, so the clause, and by extension the prohibition on "blended rates" in the clause, doesn't apply.
  14. Ken, before following Vern's advice in Post #4, I recommend checking to see whether your contracting activity has any policies or restrictions in place relating to early effective dates. I continue to believe a mod to the original contract is the approach that better reflects the reality of the situation. As the "work section" is accepting the benefit of the software, it is unreasonable to suggest the contractor is performing at risk. I suspect Vern's advice is based on his reasonable assumption that you know for a fact that you have proper and adequate funds available, so that your situation is NOT like that in PCL Constr. Servs., Inc. v. U.S., 41 Fed. Cl. 242 (1998), described in the Red Book (3d Ed.) at 6-109. Given that the period from 15 August 2015 to 15 September 2015 is all part of the same fiscal year, this seems like a reasonable assumption on his part. If you have a PR in hand, great; otherwise, make sure you KNOW you have funding.
  15. Ken, You write the work section used the software beyond the period of the license. I find ji's analogy to insurance less compelling than an analogy to rental equipment. If your work section rented a piece of equipment for a year, refused to return it at the end of the year and continued to use it beyond that year, I doubt there would be any doubt as to the contractor's entitlement. That entitlement wouldn't be grounded entirely on the fact that the company could have rented the equipment to a third party--it would be based at least in part on the unjust enrichment to the Government in using something it was not entitled to use. That fact that we're dealing with intellectual property shouldn't change the result. I recommend seeking a bilateral modification of the original contract extending the expiration of the license from 14 Aug 2015 to 14 Sep 2015 (to include a standard FAR Part 43 release), as it seems to me the contractor's entitlement arose under or relates to the original contract. What I wouldn't do is have your new contract compensate the contractor for the work section's unauthorized use.
  16. Which Contracting Office is Responsible

    ladybug108, see Post #2 above. The answer all depends on your agency. In the Air Force, for instance, the “commander of the organization in which the unauthorized commitment occurred” is charged with ensuring certain information is provided to the contracting officer. A reasonable inference under the Air Force’s procedures is that the contracting organization that typically supports the organization of the individual who made the unauthorized commitment would generally be responsible for determining whether or not to ratify. See AFFARS MP5301.602-3, at para 2. Other agencies may have other procedures. If not, consider raising the issue with your policy folks or up your contracting chain of command. If your implementing regulations don’t speak to it and your functional chain is no help, I suspect where the contractor chooses to send its invoice (or which contracting activity it chooses to contact about the issue) will end up being dispositive. Your contracting office likely has the greatest understanding of the terms and conditions that would apply if there was in fact an unauthorized commitment. It doesn’t sound like the requiring activity objects to a ratification, so I doubt you’ll have much problem getting a funding document (e.g., a purchase request) if the decision is made to ratify the putative unauthorized commitment. As your question isn’t (1) whether there is an unauthorized commitment or (2) if there was, whether the agency should ratify it, I express no opinion on either of these two issues.
  17. Unfavorable CPARS rating

    You seem concerned about funding. You write about "funds expiring 30 Sep" and "the issue of losing $6M in funding." Can you talk about your funding situation? Is the contract for supplies or services? If services, is the effort severable or entire? What color of money are you using?
  18. Single Source Justification

    TC2012 writes, "The contractor is basing its claim on the fact the Government failed to issue a single source justification..." This seems to be an issue of contract administration, so the Part 6 discussion seems largely irrelevant. Reading between the lines, is the contractor claiming the Government had superior knowledge that use of OEM parts was inevitable in order to successfully perform, knew prior to award that the contractor intended to perform without using OEM parts, and didn't bring that to the contractor's attention? Assuming there is nothing to the superior knowledge allegation, I recommend the Government in its conversations with the contractor focus on the language of the requirements documents, and how those requirements remain unchanged. Don't get caught up in conversations about "derived" requirements, and certainly don't give the contractor new direction. How the contractor meets the express written requirements of the contract is up to the contractor.
  19. Multiple Certificates Required?

    rdtmk5, you may want to keep in mind the following. The Price Reduction for Defective Certified Cost or Pricing Data—Modifications clause at FAR 52.215-11 provides, at para ( b )(3), “If any price…negotiated in connection with any modification under this clause…was increased by any significant amount because…any of these parties [the prime or a subcontractor] furnished data of any description that were not accurate, the price or cost shall be reduced accordingly….” Para ( b ) applies when the modification of the PRIME contract exceeds the TINA threshold. Under para (d)(1)(iv) of the clause the Contractor agrees not to raise as a defense that the subcontractor did not submit a Certificate of Current Cost or Pricing Data. The clause at 52.215-10 contains the same language.
  20. Multiple Certificates Required?

    More facts please. Is this one action or two? Toward substantiating your answer, do you have a date of agreement on price that both parties have honored and will continue to honor for the first action? EDIT: The possibility I’m trying to eliminate is that you have only one contract action and the sub has not, in fact, provided accurate, current and complete cost or pricing data to support the entire action.
  21. I'm not particularly surprised that on a competitively awarded T&M contract the Government wants to have some assurance prior to award that the contracting officer will be able to consent to use of the subcontractor(s) identified in an offeror's proposal, especially if that subcontractor will be furnishing any services that are not ancillary. Otherwise, in the absence of blended rates, I don't know how the Government would be able to properly calculate an evaluated price. It seems to me that if the proposal includes subcontract labor, one way or another the subcontractor's rates would need to be considered in the evaluated price (if the solicitation is prepared IAW reg). See the provisions at 52.216-29 through -31, esp. paragraph © of 52.216-29. See also FAR 16.601(f)(1) ("If authorized by agency procedures, the contracting officer may amend the provision [at 52.216-29] to make mandatory one of the three approaches in paragraph © of the provision, and/or to require the identification of all subcontractors, divisions, subsidiaries, or affiliates included in a blended rate.") For instance, DoD's "agency procedures" call for including the provision at DFARS 252.216-7002 Alt A, which seems to require separate sets of rates for the prime and for "each subcontractor." So, assume the solicitation doesn't call for blended rates, e.g., it is a solicitation issued by some DoD agency. Given that the GAO generally requires that the solicitation's approach to calculating evaluated price (and the actual evaluated price) reflect the Government's likely cost experience under the contract, and given that the proposed rates must, in one way or another include the subcontractor's rates if that subcontractor will be furnishing labor, in the normal course I would expect evaluated price to include subcontractor rates. If I've got that right (and I'm not ruling out the possibility that there may be some legitimate way to get around this), significant doubt as to whether the contracting officer will be able to consent to the subcontract would, in turn, create doubt as to whether the evaluated price actually reflects the Government's likely cost experience under the contract. I may be all wet, though, as I haven't looked at any bid protest decisions specific to including subcontractor rates in coming to an evaluated price on T&M contracts. Maybe the GAO would say that consent to subcontracts is purely a matter of contract administration, and that even if the Government knew for a certainty during the source selection that the contracting officer would not be able to consent, the GAO wouldn't entertain the protest. Even if it isn't a protest issue, the contracting activity itself may believe resolving consent during source selection is a step toward having greater confidence in its evaluated price.
  22. Solicitation Provisions

    Another way to think about it, if your focus is on the solicitation and no exception to certified cost or pricing data applies, is to look to the provision at 52.215-20, which calls on the contractor to follow the instructions in Table 15-2, which includes the requirement that the contract pricing proposal cover sheet (or what Table 15-2 calls "the first page of your pricing proposal" or what some folks still call an SF 1411) state "whether the proposal is consistent with your established estimating and accounting principles and procedures and FAR Part 31, Cost Principles, and, if not, an explanation."
  23. So, the Subcontracts clause at FAR 52.244-2 appears prescribed by FAR 44.204(a)(1)(iv). Given that you don't have an approved purchasing system, consent is required for any subcontract other than certain lower dollar fixed-priced subcontracts exempt under para ©(2). Again, to be safe, I would assume the contracting officer wants you to include in the proposal everything the contracting officer would need to (1) consent to those subcontracts prior to award and (2) show that consent by listing all the successful offeror's subcontracts in paragraph (j) of the clause at time of award.
  24. Is there any other discussion of subcontracting in the solicitation that might cast some light? Anything suggesting the government contracting officer believes "individual consent is required to protect the Government" (to quote FAR 44.201-1(a))? Any local clauses? What is the contract type? Do you have an approved purchasing system? How did the Government fill in para (d) to FAR 52.244-2? How did the Government fill in para (j)? If there is nothing special about the solicitation, and there would be circumstances where consent to subcontract would be required, then I would write my proposal with the considerations in FAR 44.202-2 in mind and try to answer as many of questions related to those considerations a contracting officer charged with consenting to the subcontract would want answered. I would also provide the information required by para (e)(1) of the clause based on the assumption that the PCO wants to be able to consent at the time of award, a la para (j) of FAR 52.244-2. For those subcontracts where consent is not required, I would include in my proposal an explanation as to why consent is not required (by reference to the clause).
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