Vern Edwards

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About Vern Edwards

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  1. Joel: In which of his two posts did Neil indicate any of those things?
  2. I have never heard of a government lawyer telling a CO to ignore an an REA in order to force a claim submittal. Here is my more or less standard experience with REAs: So the CO is sitting in his office when the REA comes in by mail or FedEx. The CO has a lot to do, but he looks at the REA, vaguely remembers the change order, sends it off to the COR for “technical evaluation,” and doesn’t think about it again until two months later, when the contractor’s rep calls and asks about its status. He tells the rep he’ll call him back. Later he’s chatting with the COR when he remembers the call from the rep and asks, “Where are you on the tech eval?” The COR lies and says its almost done and then offers one of the three standard COR positions on REAs: (1) “We don’t owe him a nickel.” (2) “We owe him what he wants.” or (3) “We owe him something, but not as much as he’s asking for.” Great, thinks the CO. Very helpful. I don’t believe (1) or (2), and (3) doesn’t tell me anything I need to know. Eventually, and after a few more calls (or threats), the COR delivers either a less than half-baked memo or an unintelligible package two inches thick recommending something or other. The CO reads the thing, ambles down to the COR’s office, asks, “Can we talk about this?” and proceeds to try to figure something out. He then calls the contractor’s rep and asks for more “data.” By now, a good three to four months have passed. All the while the CO continues to be occupied with other work that is more highly prioritized by the program manager. Eventually there begin a series of phone calls between the CO and the COR and the contractor’s rep, who is supported by an engineer or two. (If the contractor is in a pleasant or fun location, the CO and the COR may decided on face-to-face, in-depth "fact finding" at the contractor's facility.) The CO is clueless about what the “right” amount is. He just wants to clear the thing without being taken for a ride, either by the COR or the contractor. But, eventually, the CO offers some amount. If it’s reasonably close and if the contractor isn’t going broke, the contractor might take it. If its unreasonable, or if the contractor has already lost a bundle and wants more, the contractor might reject it. If an ACO, DCAA, and indirect cost rates or CAS compliance are involved, multiply the above by several factors of complexity, obstinacy, and unpleasantness, especially if the ACO and the contractor are in the middle of negotiating FPRAs or fighting over CAS interpretation and application. And so it goes until, as is usually the case, they ultimately settle, or, as is relatively rare, the contractor submits a certified claim and the CO has to go see the lawyer with the COR in tow. After meeting with them, the lawyer looks at the package, looks in a mirror, and asks herself: Why didn’t I take that job prosecuting litterbugs? That's as I remember it, more or less. But it's been awhile. Maybe things have changed.
  3. Thanks, Retread! I share your thoughts on the matter.
  4. Neil: Thanks. I question whether that would hold true. We're talking about interpretation of a contractual agreement with a specific agency. What words in the clause would support an interpretation that since "the prime controls the affiliate in such a way, and/or does not deal with it 'at arms length' such that the affiliates work [w]ould bar the prime from future contracts due to conflict of interest related to the affiliates work." Those words are not in the clause. On what could DOE rely in the clause or elsewhere in the contract to support that interpretation? I can certainly understand DOE wanting to make that assertion, but would the terms of the contract support it? Maybe I don't understand the scenario that you're thinking about. The affiliate is doing some work, and that bars the prime, which is not doing that work or working as a subcontractor for the affiliate. Do I have it right? For all--here is the clause in its entirety:
  5. help: Just curious: Rather than put up with government foot-dragging, why don't contractors submit claims, which trigger a statutory deadline (of a sort)?
  6. Neil: Is that speculation/prognostication or is there something more? Vern
  7. Yep. Are you surprised that AAP was wrong?
  8. If I'm reading DEAR 970.905 and 952.209-72 correctly, then the clause alternate containing the flowdown requirement goes into M&O prime contracts; if it's properly in a prime contract, then the flowdown provision applies to all subcontracts under that prime contract, not just subcontracts for advisory and assistance work; and if a subcontract is for advisory and assistance work the prime must obtain the disclosure statement mentioned in paragraph (2). If you have any more questions I suggest you put them to your DOE contracting officer. I'm just reading the clause. I don't know any more than that.
  9. Well, here's the flowdown provision: I don't see an exception for a subcontractor who happens to be an affiliate of the prime.
  10. Ron: The issue is not whether the product specification is in a mil-spec. The issue is what the specification says and how the buyer wants to use it. If the mil-spec describes a commercial item, then it's a commercial item. Otherwise, it's not. If you try to use the actual mil-spec in the solicitation you're just going to get into a fight with policy people. Just convert the thing into Word and delete the military references.
  11. You're probably talking about a Mil-Spec, not a MIL-STD. See MIL-P-10831B, Target, Paper. Whether or not the paper described in that specification is commercial would depend on whether its available in the commercial marketplace. However, I don't think you could use the MIL-Spec in a solicitation and contract and call the item a commercial item, but I think there are probably more than a few MIL-Spec items that are commercially available. Keep in that MIL-Specs include a lot more than just the product specification, such as inspection procedures and standards and packaging requirements that might exceed commercial requirements.
  12. Why do you think your company needs support from the FAR or some other "authoritative official source"? Seems to me it's doing a pretty good job of thinking for itself. The Subcontracts clause is what gives the government the right to review a contractor's purchasing system. FAR Subpart 44.3 is not binding on contractors except to the extent that its cited in a contract clause. The purpose of purchasing system approval is to simplify the subcontract approval process. If a contractor's purchasing system is not approved, then the process of awarding subcontracts that otherwise require approval under FAR Subpart 44.2 becomes more arduous. But that will not affect contracts under which approval is not required or that do not include the Subcontracts clause. CPSR review is irrrelevant to such contracts, and such contracts are irrelevant to CPSR review. I don't see why subcontracts awarded under prime contracts that do not include the Subcontracts clause should be included in CSPR reviews. I think your company is on solid ground, and I think it is wise of it to put contracting officers on notice. On the other hand, I don't know if it's worth the process of segregating such subcontracts from or within your purchasing system, unless your company knows that a CSPR team would frown on the way it's awarding them.
  13. What is the grammatical subject of Don's sentence?