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Everything posted by charles

  1. "Joseph Jordan, the White House’s top contracting policy chief, floated the idea Tuesday of having contracting professionals rotate between government and the private sector." See link. http://www.federaltimes.com/article/20130723/ACQUISITION03/307230006/Official-Rotate-contracting-officers-between-government-private-sector?odyssey=mod_sectionstories Jordan knows there are issues with his idea and obvioulsy among other things there are potential conflicts of interests. What are your thoughts?
  2. Read cited GAO opine. This may help. "Where a contract for visitor reservation services has expired, the contractual relationship which existed is terminated and the issuance of an amendment 4 months after the expiration date to retroactively extend and modify the contract as if it had not expired amounts to a contract award without competition, contrary to the requirements of the Competition in Contracting Act. A protest challenging the amendment is sustained, therefore, and GAO recommends that a competitive procurement for the requirement be conducted" (65 Comp. Gen. 25 (Comp.Gen.), 25, 1985 WL 50837, 1).
  3. OP FWIW your agency most likely committed a CICA violation and a protest challenging the exercised option may be sustained. "Where a contract for visitor reservation services has expired, the contractual relationship which existed is terminated and the issuance of an amendment 4 months after the expiration date to retroactively extend and modify the contract as if it had not expired amounts to a contract award without competition, contrary to the requirements of the Competition in Contracting Act. A protest challenging the amendment is sustained, therefore, and GAO recommends that a competitive procurement for the requirement be conducted" (65 Comp. Gen. 25 (Comp.Gen.), 25, 1985 WL 50837, 1).
  4. Why protest?

    I think it is a bit disingenuous to infer protests are too cost prohibitive. Agency level protest and GAO level protests are relatively inexpensive. I think the costs for a KTR to send an email to the KO is negligible. In my experience GAO has provided some flexibility to the pro per/se KTR. Regardless, of costs, I agree most protests can be a waste of time, although, some protests I reviewed and advised on, were IMO meritorious, and agency corrective action was appropriate.
  5. Are Task Orders contracts? See ASBCA decision. http://www.asbca.mil/Decisions/2012/57400%20MCC%20Construction%20Corporation%207.16.12%20WEB.pdf Compare with Delex GAO decision. http://www.gao.gov/products/A84543#mt=e-report Any thoughts?
  6. Use of No-Year Funds

    Hello ji20874 I thought revolving funds are ?no year? funds. See, e.g., Department of Defense Appropriations Act, 2000, Pub. L. No. 106-79, 113 Stat. 1212 (1999). Although, revolving funds are not dependent upon annual appropriations and the Bona Fide Needs Rule does not normally apply I think there are restrictions. See 10 U.S.C. ? 2213(a) (limiting the acquisition of any supply item to 2 years of operating stock); U.S. GEN. ACCOUNTING OFFICE, REPORT TO CONGRESS, DEFENSE WORKING CAPITAL FUND: IMPROVEMENTS NEEDED FOR MANAGING THE BACKLOG OF FUNDED WORK (2001). See also, Matter of: Implementation of the Library of Congress FEDLINK Revolving Fund, B-288142, Sep. 6, 2001; Matter of: Continued Availability of Expired Appropriation for Additional Project Phases, B-286929, Apr. 25, 2001 (it is still improper to ?bank? an agency?s annual funds with a GSA account to cover future year needs). So what are the differences between no year and revolving funds?
  7. Hello All, KTR failed to disclose subcontractor use when it submitted its proposal. KTR received BPA award for services based on its own organic capabilities. KO intends to terminate BPA. What processes/procedures are required to terminate a BPA? Since a BPA is not a contract, there is no established jurisdiction under the Contract Disputes Act (CDA). Zhengxing v. U.S., 71 Fed. Cl. 732, 739 (2006); Julian Freeman, ASBCA No. 46675, 94-3 BCA at 135,906. So you can just terminate correct? If NO then what procedures have you used (i.e. cure, show cause, etc. ) Also, are there any cases/regulations on point highlighting this bait and switch scenario? Regards
  8. Vern it is readily apparent your neurotic need to make a ?whatever point? highlights how full of yourself you really are. My intent for this post was too illicit some responses to help me better understand what is a BPA and whether there were some concepts applicable to the BPA whether or not it was included in the agreement?s terms (i.e. Christian Doctrine). I can read the contract or agreement and I am familiar with contract law, agreements, and understandings. However, federal procurement law is different from contract law. For example, federal contracts do not contain two way indemnification agreements, state choice of law provisions, recitals, severability clauses, and so on. I admire your subject matter knowledge, but some of your responses have not been always been perfect, some wrong, so get over yourself. It?s not all about you.
  9. Dear Jacques and Other Readers, Gov has placed BPA orders w/ KTR. Gov received notice KTR will use subcontractor a few months after KTR received BPA award. Gov has an ongoing need to use BPA. Gov may have awarded BPA to different KTR had it known KTR was using subs. Gov intends to resolicit BPA. Since Gov has a continuous need for services offered in BPA is Gov required to provide notice for termination or whatever stating orders will no longer be placed with KTR?s BPA?
  10. Liquidated Damages

    I view liquidated damages as a clause to provide the Government monetary relief from a contractor's delayed or deficient performance through reasonable price adjustment under a stipulated contractual formula. It?s not supposed to be punitive. It is what it is. Also, I do not think it?s appropriate to use LDs as a carrot. IMO, those carrot instances (I feel like bugs bunny) could potentially create an acceleration issue. Regards.
  11. IMO you should raise the issue in your claim and it will be part of the record if your claim is elevated to a board or court. Then let the board or court decide whether it?s relevant. Even if the board or court does not consider it relevant it will put the government in an unfavorable light. And yes, a procurement litigation attorney would be helpful
  12. ODC Funds Crossing Fiscal Years?

    Jtoli on post 3 you state, "Unfortunately no one has been able to cite any particular reference in the Red Book that prohibits the use of these funds past 30 Sep. The pat answer is, "it's fiscal law"." Your statement appears to indicate a misunderstanding of what is fiscal law. ?The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.? United States v. MacCollom, 426 U.S. 317 (1976). You must have an authority to expend appropiated funds not a prohibition against it. If you have legal support perhaps you could request a PTA analysis on your concerns. Regards.
  13. No X option. No K. To the best of my knowledge no avail precendent to violate K law. Defer to higher. File an MFR.
  14. How to deploy as a civilian contract specialist?

    Albeit obvious you may want to proof read your email, review its content for appropriateness, prior to sending it to a GO or other senior official. For example, avoid "Hey General P Id be like deploying cause Im good at contracting."
  15. Working at Risk

    Assuming you work for the Government. Perhaps you can forward your concerns through your chain of command and maintain an memorandum for record for your files.
  16. T4D and Reprocurement

    How do you reprocure against the KTR's account? Before sending any demands have you provided the appropriate notices to the KTR and surety? And what is your percentage of completion?
  17. Movie I believe a Comedy had a scene where military persons in a meeting were attempting to develop or discuss vehicle fighting requirements and they kept going back and forth on the requirements to absurdum. Does anyone remember this Movie? I tried Google but it appears I am not an adept Googler. Most search terms show ?Stripes.? Not on topic but Stripes was cool. Only if I had that RV.
  18. Time is of the Essence clause

    Are you drafting a commercial contract? I am assuming yes. If subcontractor for dod contractor is not comfortable with "time is of the essence" language then you may want to consider among other things using "promptly, but in any even within X days." It is up to the contracting parties to negotiate its terms, also, does it matter if "time is of the essence" is used? Would a firm delivery date satisfy your concerns?
  19. CON 090

    Hence the challenge.
  20. I am assuming you are the Prime? If you are the government then I have no idea what you are doing with the sub. Its a contract, negotiate it, is it something the sub can only do, perhaps the idemnification could be drafted to be less general, i.e, any and all liability contemplated or not completdated, blah, blah, blah.
  21. IMO your concern about NTE is NOT as critical as Government actions when it issued a change order based on a supposedly faulty/defective specification. Did anyone on your team make a determination whether it was a design or performance specification? Perhaps obvious, I would never advise Government to issue a change order (or bilateral modification) if Government was uncertain whether specifications were defective. What were the contents of your change order? Did it state government acknowledges incomplete specs or whatever and approves KTR REA to complete work? I would argue the change order itself is an admission from Government it acknowledges defective specs. You said, ?Now it appears the contractor is not entitled to payment for the work performed under the change order.? Anyhow, if you intend to proceed with your course of action I would be more certain than ?it appears.?

    Lucy was your issue resolved? FWIW, a novation agreement is executed when a contractor transfers its assets to a successor in interest. A contractor is the transferror and must guarantee performance of the successor in interest (the transferee) and the transferee must assume all of the obligations of the transferor under the contract. The Assignment of Claims Act prohibits the assignment of Government contracts. Notwithstanding this prohibition, the law provides that the Government may recognize a third party as a successor in interest when a contractor transfers all of its assets or the portion of its assets required to perform a contract. Note the KO acting for the Government is not required to enter into novation agreements; rather, it is discretionary. The KO is responsible for determining whether a novation will serve the Government's best interests. The KO must be assured that entering into a novation agreement recognizing a successor in interest will not result in a reduction of the contractor's responsibilities or the Government's rights under the contract. Sample novation and change of name agreements are set forth in FAR Subpart 42.12.
  23. Generally, GAO and courts have ruled that ?open-ended? indemnification provisions in contracts violate 31 U.S.C. ? 1341. See e.g., Union Pacific Railroad Corp. v. United States, 52 Fed. Cl. 730 (2002); United States Park Police Indemnification Agreement, B-242146, 1991 US Comp. Gen. LEXIS 1070, Aug. 16, 1991 (stating that absent specific statutory authority, indemnification provisions which subject the government to indefinite or potentially unlimited liability violate the ADA); Project Stormfury, B-198206, 59 Comp. Gen. 369 (1980). To Howard Metzenbaum, B-174839.2, 63 Comp. Gen. 145 (1984); Assumption by Gov?t of Contractor Liability to Third Persons, B-201072, 62 Comp. Gen. 361 (1983); Reimbursement of the State of New York Under Support Contract, B-202518, Jan. 8, 1982, 82-2 CPD ? 2; cf. E.I. DuPont De Nemours v. United States, 365 F.3d 1367 (2004) (holding that the Contract Settlement Act of 1944 exempted certain contracts with indemnification provisions from operation of the Antideficiency Act).
  24. FYI, Effective 1 July 11 DOD Source Selection Procedures