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Everything posted by charles

  1. What type of money is being used for your construction project? A purpose violation may occur if the wrong pot of money is used. Costs for delays may exceed thresholds for certain types of money. If this construction project is a milcon then those delay costs may bust the project's appropriation. Delay cost issues may trigger an ADA. Why does your department officials want to suspend work? Are there more serious issues requiring suspension of work?
  2. Just to clarify. I never said it was the only recourse. But, I would rather pursue an action with the Prime than contact DOJ. IMO attempting to work this issue out with the Prime may provide a quicker remedy than requesting support from DOJ. Retredfed your statement infers that you were able to obtain a quick resolution through DOJ. Is this correct? How quick was there response? And were any penalties or charges filed against the sub? Thanks.
  3. Why doesn't the agency initiate an action against the Prime KTR? What type of data are we talking about? Sensitive info?
  4. Joel, From the original poster?s own admission a cure notice was issued for services received when no contractual instrument was in place. There are no additional facts from the OP?s statements to indicate whether the KO and KTR agreed to continue work without a written instrument with the intent to definitize it. There are no statements to indicate there was a meeting of the minds. Perhaps, the agency considering a cure notice when no contractual instrument was in place is some evidence indicating there was no mutual assent. Also, your suggestion that this transaction may require ratification seems to infer you are questioning whether this was in fact a contract. If the KTR continued performance based on statements from someone who did not have the authority to enter into a binding agreement then the government would have to determine whether ratification is appropriate. If something requires ratification then it would be appear to be an unauthorized commitment, no contract. So, I supposed to be more correct I could have stated ?IMO most likely than not there is no contract.? But, I thought the following statements on equity and implied contract theory would be sufficient to indicate a quasi contract may exist. And if more facts were available we could argue that there was an express contract as opposed to an implied one. Again my original statement was based on the OP presented facts not assumptions. Best, One more thing. I enjoy the discussion and appreciate your comments.
  5. IMO, you should cut your losses and immediately procure new services. You do not have a contract but KTR may be entitled to compensation for services performed under implied contract, equity, estoppel theory etc. Also, what will you do if KTR ignores cure? Will you proceed with a termination? If so, what are you going to terminate? Perhaps, in the future, your agency should consider, adding/exercising options, procuring new services, or any other fall back plan.
  6. Hello All DOD reinstated the use of set asides under the Small Business Competitiveness Demonstration Program (SBCDP). SBDCP in part tests the ability of small businesses and emerging small businesses to compete on an unrestricted basis with large businesses in designated industry groups. There is more to it but, Construction is part of this group. GAO in part opined rule of two applies to orders from multiple award contracts (Delex 2008 decision). Question. Does SBCDP affect existing construction MACs? How does this program work with the Delex decision? Thoughts and Comments?
  7. I have never heard of an agency running out of money to buy paper (I had a good chuckle). BTW, Ashleyh, if its important, tell legal ASAP, because if its important to you then its important them. Where I work at we are part of one team and personally I would respect anyone who can admit mistakes so we can correct them.
  8. Thats kinda silly. Is it a part of your agency's SOP or something? Im curious?
  9. Go to George Washington Law School - And specialize in Procurement & Government Contract Law, however, its expensive (probably not best value whether its trade off or LPTA), it takes 3 years (beyond your solicited period of performance), BUT if you have a JD then you could obtain an LLM (I know, not within scope, but it was a part of my value engineering proposal) . Kidding aside, IMO a senior leadership type course would be more beneficial than a TOP GUN school in contracting (soft skills are critical in any organization and I would rather work for a good leader than the best technically proficient contract manager. BTW, how would you select the best of the best Contract Managers?
  10. If your statements are true then it appears the KO was unprofessional. And I am surprised a KO would respond this way. Is it possible to request a meeting with the head of agency and ask the KO to be switched? In the future, will your company take a hard lined/non-pansy approach with other agencies? Also, in your opinion does the KOs actions affect the performance of your contract? Best
  11. http://www.lexisnexis.com/store/catalog/bo...mp;prodId=10377 Hello, see above link for requested information. This reference provides case law in addition to secondary materials. FYI, this reference is relatively expensive, but your legal staff may have access to Lexis Nexis.
  12. Vern I would recommend other references in addition to the cibinic and nash books such as federal contract management (BTW your name has been cited in this references several times) and government contracts administration and procedure. Anyhow, here is my attempt to copy and paste more relevant sections, unlike the DAU professor attempt, to answer the poster?s question Edited excerpt from FCM While liquidated damages are not a disfavored method for the Government's control of contract performance, they will only be enforced where they represent a reasonable approximation of the actual damages that would otherwise be sustained. The test of reasonableness is applied as of the time of contract formation, not as of the time of delay suffered. The parties' projection of what damages might be subsequently experienced governs. Thus, even when the Government suffers no actual damages from a delay, assessment of liquidated damages will be considered reasonable and will be enforced, if the parties (when the contract was formed) reasonably projected that damages might result from delay. When the stipulated damages bear no relationship to damages that could reasonably be expected as a result of delayed performance, the provision will considered a "penalty," and enforcement should be denied.
  13. See the following link http://finance.yahoo.com/banking-budgeting...-back-on-course What are your thoughts on this issue? What can be done to improve efficiency and lower cost? I thought fly before buy makes sense but is the counterargument just as valid? Best,
  14. I believe your question is intended to ?ensure? certainty of performance not ?insure? mitigation of risk. The previous posts suggest inserting the correct clause. Granted KTRs should read and understand the terms and conditions of the K. However, I suggest you communicate this expectation to potential KTRs during your solicitation. Happy Holidays.
  15. I believe your question and concerns deal with management issues rather than contracting issues. However, you are certainly welcome to post whatever you think is appropriate. Bottom line: If I know that I may get fired then I will look for a job elsewhere. All you can do is mitigate damages. If there are certain employees you wish to retain then provide appropriate incentives and other assurances.
  16. So what is the construction warranty period? FAR Release of Liens . . .. . . (1) Contracts subject to the Miller Act. The security interest shall be maintained for the later of? (i) 1 year following final payment; (ii) Until completion of any warranty period (applicable only to performance bonds); or . . . Says any warranty period. So can a contractor be on the hook for a 10 year warranty on a roof? The commitment seems a bit excessive. Any thoughts?
  17. Hello, Its a Part 13 acquisition. And yes Limitation on Subcontracting clause was included in the RFQ via FBO. Please assume, the SB who gets the award subs to the maximum allowable extent (50%for services). The solicitation did not clearly specify that organic capabilities are part of the eval critera. However, the governemnt did list as part of the eval criteria "ability to meet gov requirements." I really dont know what means as an eval critiera. And I have not read the SOW. I think the issue is the winning SB submitted his quote and did not include information that the the SB will sub out. The winning proposal on its face appeared the SB would provide all services organically. All other KTRs could not provide all required services organically and responded with who they would sub out to. SB quote did not provide any indication of subing and is awarded K but this award may have went to a different KTR if Gov knew SB intended to sub. This situation seems unfair to other KTRs. In the end i think its probably ok for the SB to sub IAW FAR. Perhaps the KO should have initiated a clarification. I believe the award should have been canceled if the scenario was the following: KO calls SB for clarification. SB affirms that subs will not be used. SB uses subs. As for the question Don: "Question for you. In your scenario, was the percentage of work to be subcontracted a binding promise? Or was it just information the Government used to evaluate proposals?" Answer: It was information the Gov used to evaluate quotes. Thanks for the input. Any additional thoughts?
  18. Government provides solicitation for services. Several small businesses respond. All but one small business states that they will subcontract their work to the maximum allowable extent. Government awards contract to the small business who does not subcontract out. Government considers the ability to accomplish work organically to be important. Small Business who receives award states they will be subcontracting out their work. Question. Should the small business have specified that they will be subbing their work WHEN the government did not specify that subcontracting plans are required in the solicitation? Would this answer be different if organic capabilities were expressly discussed in the evaluation criteria? Your Thoughts?
  19. Has anyone arranged a conference where the Vendors who appear at the conference make donations? The donations are used to offset the cost of the conference. This just seems strange. Any thoughts?
  20. I agree communication is important. KO has made several attempts to speak with end user. But, the behavior and attitude towards new contractor and requests to get back old contractor is still the same. This action is currently being addressed by the persons supervisor. But, I am wondering if there are specific ethic prohibitions on customers being too involved with KTRs.
  21. Thank you for the responses. I am representing the GOV not KTR. It just seems odd that a customer (the gov POC receiving services for their department) would be so bent for a particular contractor. I just dont know if they are violating any rules since their not in acqusition and their behavior is not so blatant that it is a clear violation of the FER. Will send to ethics dept. But still appreciate additional feedback. Best
  22. KTR option is not extended. The service provided by original KTR is re-competed and awarded to new KTR. Customer who receives services from original KTR is extremely dissappointned. Customer does not provide new KTR opportunity too perform. Independent inspector sees no problem with services. Customer constantly advocactes for old KTR. Customer attempts to help original KTR and continues to communicate with original KTR. Usually, in these types of situations, customer gets pissed off then gets over it as long as services are comparable. Anyhow are there any specific rules of ethics a customer must adhere to other than the FER? Has anyone dealt with this before? Any suggestions?
  23. Gov official without proper authority contracts business for services. Business demands payment. Ratification seems appropriate except for one thing. The bill for services include taxes. The feds are exempt from state taxes. So, how would you approach this issue?
  24. I have not visited this forum in a while. But, thank you for the reference. It looks quite interesting.
  25. Customer receives services from KTR. Customer is happy. KTR wants customer to write letter of reccomendation. Are customers allowed to write letters of rec? Are there any issues with this? What are your thoughts? If possible, references would be great. Best regards,
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