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mtclymer

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About mtclymer

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  1. It's always meaningful! Especially when its contracts basics. For one, I wish people had spent more time educating me (when smacking me down) earlier in my career, so I take the time and make the effort to help develop others. And second, every time I have to make an argument, it's always from a slightly different perspective or situation, so I'm really learning it myself too. Thanks bob7947 for fixing my formatting.
  2. The Task Orders are Fixed Price; we are providing mission support services which would include oversight of the integration of our "payload" and therefore our performance at the government facility is limited and oversight/observation only. Based on some of the Task Orders on the old IDIQ, the bulk of the work is preparing for the mission, preparing the payload and performing the activities to ensure the payload can fly, all which is NOT done at the government facility. We (and our payload) is at the government facility pre-flight and post-flight. Technically, this effort at the government facility is required in order to complete the SOW, but again, it's more a degree of what constitutes partial performance versus travel. We can go to meetings pertaining to our performance/scope at the government facility and not have to have "partial performance" clauses.
  3. You're right, these particular ones aren't overly onerous, I should have used some of the others out there. However, I work for a non-profit institution of higher education so I try to get out any added effort as we're just not set up for managing compliance centrally. The less clauses the better! And thank you ji20874 for validating the H clause idea.
  4. What happened was I kept pushing back on the CO, referencing the FAR and explaining consideration. The CO took it up her chain and eventually they let it go. It doesn't help on all my new awards, but I did feel vindicated. Thanks all!
  5. Hi all, thanks in advance for your consideration and sharing your thoughts. I am negotiating an IDIQ in which performance is anticipated (based on the previous task orders under the previous IDIQ) at our (Contractor's) facility. However, as part of the performance it is almost always necessary that we travel to a federal facility to provide some integration and testing. The work itself is services (research) as we do not deliver the items we integrate (they remain ours), in case that matters. There is no "place of performance" in the IDIQ, AND, historically, based on the last IDIQ no mention of place of performance in the Task Order either. There are several FAR and NASA FAR Supplement clauses which prescribe use based on work being performed on federally-controlled or owned facilities (see below a few examples): 52.223-5 Pollution Prevention and Right-to-Know Information FAR 23.1005(a) says "provide for performance in whole or in part, on a federal facility" 1852.223-70 Safety and Health Measures and Mishap Reporting NFS 1823.7001(a) says "when work will be conducted completely or partially on federally-controlled facilities" I have been looking everywhere to determine what partial performance is described as. There are onerous requirements if the predominance of performance is at our own facility and we "visit" the federal facility for a small portion of the work. QUESTION 1: Does anyone have some familiarity with how NASA or the Government, generally defines partial performance that I could refer to? I can't find anything in the FAR or NFS and I've grappled with this for years with different answers from different government COs. One time I came across in NASA procedures a distinction between visiting for work and performance, but sadly, did not realize the gold I had found and did not make note of it. QUESTION 2: Is it feasible that I request we address the definition of partial performance in the contract (H clause I assume)? Thank you all in advance for any thoughts you have on this.
  6. @joel hoffman - how do you know it is a task order contract? It actually isn't...but it is cost reimbursable. NASA CO quoted that this clause is applicable to ALL cost reimbursable (not task order cost reimbursable). You're thinking all the same things - we tried to get a different advance payment clause. As we are a University - we tried to get draw down on Letter of Credit which falls under Contract Financing and not Progress Payments, but CO rejected. We tried to comply with the electronic invoicing part but remove the required backup (hours and progress report) and that's when the CO offered me to take the clause and a letter outside the contract authorizing deviation...I hate that I can be right but still not get what should be a no brainer. Thank you for your help!!
  7. @Vern Edwards - thank you! I took your class many years ago and I appreciate your comments. The CO eventually pulled back the clause, but what I was concerned about was whether I had made a dumb mistake and should have accepted their offer even though it didn't sit right. Thank you!
  8. Yes, our contract requires progress reports to be submitted to the program office, not through billing. So I envision we now have to deliver the progress reports twice. Our billing group does not have easy access to the progress reports, so it requires additional coordination with the program to obtain a copy of what has already been provided.
  9. No, that is one of our concerns as progress reports are required on our contract. The other is the labor hours. I work for a non-profit Institution of Higher Education (which is a state entity). Our cost accounting standards are under Title 2 - Uniform Guidance (FAR 31.3 vs FAR 31.2) and therefore we have effort reporting. So providing labor hours is always difficult.
  10. @Vern Edwards you got it! I did quote FAR 1.108(d)(3): new clauses may be included in an existing contract with consideration...
  11. PS, there is a final Procurement Notice now: https://www.hq.nasa.gov/office/procurement/regs/pn18-07.pdf
  12. Yes I did and it says the NASA CO is required to bilateral modify...how that can be achieved without consideration is beyond me. We do not want to provide a progress report (which is applicable for our contract) with the voucher.
  13. Hi all, I have a very odd situation that I've not seen before and wanted some feedback. Pardon my ignorance! The CO has issued a bilateral mod to update the billing clause on the contract. We do not wish to accept this clause and have rejected it. The CO persisted, so we then offered an alternate billing clause and then finally, offered to accept the clause with language revisions. The CO responded to our last attempt to reach agreement as follows, "Unfortunately, I do not have the authority to deviate the clause. However, if you send me a formal request which captures the spirit of your revisions, I can send back a CO-signed authorization on NASA letterhead." In short, the CO has offered that we accept the new billing clause and then receive "consideration" in terms of a CO letter authorizing deviation to the clause, but that letter would not be an attachment to or part of the contract. The part we have a concern about is a "shall". If we accept the letter, and invoice according to the "letter" not the clause and are subsequently not paid due to a deficiency in backup documentation required by the clause, do we have any contractual leg to stand on? This situation feels like one where the CO is not acting in good faith, but I may be missing the part of the FAR that allows this? The clause is 1852.232-80 Submission of Vouchers/Invoices for Payment. (Apr 2018). Many thanks in advance!
  14. Thank you all, very interesting discussions! I am reminded of how much I don't know.
  15. Thank you Vern, this is very helpful - I learned something new - "arise under the contract" vs "relate to the contract"! So on the downside, 52.242-17 would exclude profit on the adjustment, where 52.233-1 may include profit. On the plus side 52.242-17 has some procedural safeguards for the contractor and I gather does not preclude the contractor for pursing additional remedy through 52.233-1...? I guess it's an opinion, but sounds like 52.242-17 would be desirable in situations where the prescription is optional.
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