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About mtclymer

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  1. @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!!
  2. @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!
  3. 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.
  4. 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.
  5. @Vern Edwards you got it! I did quote FAR 1.108(d)(3): new clauses may be included in an existing contract with consideration...
  6. PS, there is a final Procurement Notice now: https://www.hq.nasa.gov/office/procurement/regs/pn18-07.pdf
  7. 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.
  8. 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!
  9. Thank you all, very interesting discussions! I am reminded of how much I don't know.
  10. 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.
  11. No, I didn't until you mentioned it. I can see where some of those alternatives might broaden the changes clause to make 52.242-17 less important.
  12. This has thrown me for a loop...I've been thinking on how I can miss your point. Or maybe your point is that there's no point to whether the changes clause is in the contract or not... Anyway, so the question is whether I would prefer to accept 52.242-17 or not. Does it aid me more in the situation where the government has caused delays than the disputes clause.
  13. I've been looking at 52.242-17, Government Delay of Work. The prescription states that the clause is optional when a fixed-price contract is contemplated for services, or for supplies that are commercial or modified-commercial items. It also states that the clause is not applicable if the contract otherwise specifically provides for an equitable adjustment because of the delay or interruption; e.g when the changes clause is applicable. However, the changes clause (52.243-1) doesn't address delay or interruption, only changes in 1) drawings, designs, or specs (when supplies are to specially manufactured for gov in accordance with drawings, designs or specs), 2) method of shipment or packing and 3) place of delivery. So, this leads me to believe if we don't have 52.242-17 on contract, then the disputes clause (52.233-1) applies with regard to any government delays. Which got me to thinking, if a fixed-price contract is contemplated for services (or supplies that are commercial or modified commercial), would 52.242-17 be preferable in the contract to address any government delays as opposed to being left with only the disputes clause? Assuming I've made the right connections here, there seem to pluses and minuses with each clause. What do you all think?
  14. I have also requested clarification and have not received any additional guidance. I believe (my own personal opinion) that the government is wanting to get away from using DUNS as D&B does not have a mid-level "parent" configuration and the government wants to know for large organizations that informal mid-level parent information. They have therefore made the ownership of offeror very broad to fit small companies and very large organizations - leaving interpretation up to the contractors, I guess!
  15. Does anyone have experience on what "throughout the life of contract" means in 52.204-12? (see pasted clause below, I have bolded in blue the reference) I have checked definitions, prescription etc. The issue is this: When can I retire a DUNS number? The guidance on CAGE codes is clear, but because a contract may be awarded by DUNS and not CAGE code, I can't assume the same guidance for retirement of a CAGE code applies to a DUNS. A CAGE code has to remain active in SAM until final payment and active in the DLIS Master CAGE code listing until parts are dispositioned, FCL is closed and all contracts closed out. For contracts that pay through DFAS, it's very clear the DUNS has to stay active through final payment as those contracts will have a CAGE code and EFT information in SAM so we can be paid. What about contracts with a DUNS that don't pay through DFAS? Is "throughout the life of the contract" the performance period or until final payment/release? Many thanks in advance for your thoughts and inputs. ************************************************************************** Data Universal Numbering System Number Maintenance (Dec 2012) (a) Definition. “Data Universal Numbering System (DUNS) number,” as used in this clause, means the 9-digit number assigned by Dun and Bradstreet, Inc. (D& to identify unique business entities, which is used as the identification number for Federal contractors. ( The Contractor shall ensure that the DUNS number is maintained with Dun & Bradstreet throughout the life of the contract. The Contractor shall communicate any change to the DUNS number to the Contracting Officer within 30 days after the change, so an appropriate modification can be issued to update the data on the contract. A change in the DUNS number does not necessarily require a novation be accomplished. Dun & Bradstreet may be contacted— (1) Via the internet at http://fedgov.dnb.com/webform or if the Contractor does not have internet access, it may call Dun and Bradstreet at 1-866-705-5711 if located within the United States; or (2) If located outside the United States, by contacting the local Dun and Bradstreet office.
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