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  1. Sorry if I miss-stated the full details of my former post - I was not trying to argue those points but more interested in how COs view such unethical/illegal behavior by gov't officials and whether it is an appropriate issue to raise in the claim, but I suppose it isn't a factor to be considered. Yes, I am braced for disappointment, but I wouldn't be satisfied if I didn't try. Thanks, Jose
  2. Carl - actually, the contract type is unresolved -I'm working on a claim. It was awarded as FFP with a CLIN for nte hrs - for a full discussion of the contract see http://www.wifcon.com/discussion/index.php...pic=901&hl= For the purposes of this message, I'll ask as if this is considered a Labor Hour; however, i welcome any response.
  3. (This is a spin off of another of my post and fact finding, but thought it better to keep this issue in separate post) Background: Small business contractor was awarded contract for hourly consulting services NTE xx hours Gov't official (program manager) engaged in nepotism (hired a relative and assigned the relative as project mgr to work with contractor on the project). Contractor began performing under the contract The prohibited personnel practice/illegal appointment was discovered a few months later and gov't project manager was terminated from gov't employment. The gov't project manager was not replaced and the Contractor was not able to complete the project and work the full nte hours specified in the contract. Is this a breach of contract or a violation of any of the FAR? Apparently the Contractor has no recourse to collect for hours not worked Does the Contractor have any recourse under FAR or contract law? or possibly other avenues Thanks Jose263
  4. HereTo- thanks for your comments - I do intend to pursue Cajuncharlie posted -1.602-2( b ) reads, "Ensure that contractors receive impartial, fair, and equitable treatment; and..." noble thoughts Joel - appreciate the caveat - my lump sum offer was for the full contract award amount - if the original CO contemplated that this was a LH contract- there should be evidence in the contract file. Happy Holidays to all, Jose
  5. Vern Glad you got a laugh from my comment - I do appreciate advice and will take it under advisement - but i'm not quitting yet. Joel - my offer was stated as a lump sum and accepted - I signed a contract that was FFP and that I believed entitled me to the full award amount. The gov't didn't complete the work agreed upon and described in the SOW. I don't know what is contained in the contracting office contract file - but a foia request for the contents should fix that. Then, if a claim is indicated, I intend to pursue. Thanks, Jose
  6. Vern - Thanks for the advice - I'll discuss with the expert
  7. HeretoLearn - this is definitely the place for that. Vern raises good points I read Verns blog about many COs lacking requisite knowledge - admittedly even the weakest CO is miles ahead of me. and I especially liked his reference to the possibility that the agency might be incompetent Too bad doing 'the right thing' and ethical behavior isn't covered in the FAR Members on forum advised me to find a local contract expert to review the contract. The expert has identified multiple issues and inconsistencies - so next step is a claim. Jose
  8. I appreciate the advice and comments- if there had been time, I would have had this contract reviewed prior to signing. but that is history. I certainly will have future contracts reviewed before signing. You are correct, I was excited about the contract. I trusted the Senior exec. If the agency had done what they said they were going to do it would not have mattered if this was FFP or LH - I would have done more than the 2040hrs and the agency would have functioning software. BTW: I did raise the issue of not working with the COTR numerous times. It would serve no purpose to debate ethics here, so I won't. Besides, what goes around, comes around. I will find an expert to review this contract and this discussion before doing anything further contract wise. Perhaps this has provided worthwhile discussion for the regulars. And, as a former fed, I know what a PITA FOIA and other inquiry avenues can be - thanks again for the discussion Jose
  9. Vern, don't sugar coat it, just tell me what you think. I appreciate your opinions and Carl's advice. I will continue to discuss with the new CO., Yes, I did sign a contract without fully understanding the customer's intentions and it looks like the original CO produced a contract full of errors. As far as not knowing what I am doing now, you are spot on - that's why I'm asking questions on this site. I don't expect any more business from this customer and don't want any. I do expect fair/honest treatment by the customer and if I can't get that, I don't mind being a PITA.
  10. Hope everyone enjoyed the holiday Joel -thanks - based on prior discussions - are you suggesting that this contract could be considered as a firm-fixed-price, level-of-effort term contract? Carl ? thanks for your comments. This is definitely a learning experience for me. I?ll be sub-ing from now on. I am surprised that this contract could be considered to be LH with so many omissions and apparent errors. (i.e. missing FAR 52.212-4, Alt. 1, LH must be competitive, LH in excess of $100k must receive higher level approval, advertised and awarded as FFP, bid as lump sum, etc.) I?m still tracking down the senior exec ? maybe that will be helpful. It is my understanding that a final decision will be needed to go the dispute route. Should I raise these contract issues with CO at the time I request a final decision or prior to? At what stage is it appropriate to request ADR? I only have the RFP, contract and emails that I furnished to CO. I don?t know what other documents are in the contract file or are being considered by the CO. Is it appropriate to request copies of all the documents/information that the CO is considering to arrive at the decision ? i.e. a FOIA request? Should that be done prior to a request for final decision? BTW: I am still confused about interpretation of FAR 52.212-4 (i) Payment clause (required for all commercial items)-I understand that agency will pay for services delivered and accepted. An example: A FFP contract for services over 1yr period of a project , $xxx total award. Would this clause prohibit the contrator from collecting full award if the agency delayed work on the project or constrained contractor from performance? Thanks Jose
  11. Carl ? thanks for suggestion ?Senior exec has moved on, but I?ll try to contact. I was under the impression that CO could only consider the written contract? I?m trying to understand and still have questions. Thanks in advance to those willing to render an opinion or point me to an answer. Joel ? you mention Part16 in your last post and others have suggested that the agency is treating line 2 as LH.? my brief research found restriction for LH contracts in Subpart 16 authorizes agencies to use LH contracts only when the parties cannot accurately estimate the extent or duration of the contract?s work, or reasonably estimate the costs of the contract, at the time of contracting;the contracting officer prepares a determination and findings (D&F) that ?no other contract is suitable?; and; the contract includes a ceiling price that the contractor exceeds at its own risk. Subpart 12 agencies may use labor-hour contracts to acquire commercial services only in contracts that were ?competitively? awarded. Additionally, D&Fs must not only conclude that ?no other contract is suitable? Subpart 12 of the FAR imposes additional requirements upon use of time-and-materials and labor-hours contracts to acquire commercial services. Under Subpart 12, agencies may use time and materials and labor-hour contracts to acquire commercial services only under contracts or orders that were ?competitively? awarded. Additionally, under Subpart 12, D&Fs must not only conclude that ?no other contract is suitable? but must also: (1) include a description of the market research that was conducted to reach this conclusion; (2) establish that it is not possible at the time of contracting or ordering to accurately estimate the extent or duration of the work or anticipate the costs; (3) establish that the requirement has been structured to maximize use of firm-fixed-price or fixed-price with economic price adjustment contracts in future acquisitions for the same requirements (e.g., limiting the length of the contract); and (4) describe plans to maximize the use of firm-fixed-price or fixed-price with economic price adjustment contracts in future acquisitions. 1. So, since this contract was non-competitive(soleSource) and award process didn?t include items required in Parts 12 and 16, can it be considered a LH contract? 2. It is my understanding that FAR 52.212-4 is required for all commercial contracts, except a LH contract must also include FAR 52.212-4 Alternate I. I previously asked about The FAR 52.212-4 (i) Payment clause - says that payment is required when an item has been delivered and accepted. That makes sense. But, it doesn?t say (to me at least) that an item must be delivered and accepted in order to receive agreed upon payment. Can anyone provide a cite or cases that have resolved this?? Thanks - and happy Thanksgiving Jose
  12. Joel ? Obviously, I don?t consider this to be a labor contract. The full contract is 72 pages. This was a last minute (end of FY) procurement of desktop software that I had developed and had been licensing for several years to individual agency users. I received an unsolicited phone call from a senior agency executive (we had worked together previously) asking if I would sell software to the agency and assist them to migrate to a national web platform. We struck a deal over the phone $xxx for the software and $xxx for my consultation to assist in migrating the software.(a package deal) So-the intent of the contract was to procure my software and my proprietary knowledge and assistance. The executive turned over contracting details to the responsible IT manager. I think much of the problem stems from the IT manager using a ?boilerplate? IT development SOW and projecting that x amount of time would be needed for his shop to migrate the software. I never negotiated over hours. Everything was a last minute rush to beat the end of year deadline. The CO assured me that this was a FFP contract and I would be entitled to the full award amount. My offer stated the full amount as a lump sum. The procurement was sole source because the software was one-of-a-kind and so was my proprietary knowledge. My consulting services were dependent on the agency?s timetable and effort? thus the need for task orders. The agency apparently had bigger fish to fry; therefore, they haven?t completed the software project or used me as we agreed. However, the contract period has expired. I no longer own the software and cannot license as before but I haven?t been fully compensated for the software per our agreement.
  13. Don, Thanks for your response. Sorry if I was unclear. There is NOT a reference to FAR 52.212-4, Alt. 1 in the contract; however FAR 52.212-4 is referenced. My understanding from reading other posts on this site is that a Labor Hour contract should have included FAR 52.212-4, Alt. 1. This contract solicitation and award was done in a big rush at end of FY and now the originating CO is gone. The Payment section of the contract has paragraphs A thru D. A. Preparation and submittal of invoice shall be in accordance with paragraph (g) of the clause at 52.212-4. para(g) talks about invoicing: (g) Invoice. (1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized), to the address designated in the contract to receive invoices. An invoice must include.... B. Invoices may be rejected if information is incomplete. Invoices shall identify task order number, purchase order number and period of service.... C. Invoices shall be submitted in arrears monthly.... D. Contractor shall submit invoices to: Government invoice address is provided. I?ve learned from reading discussion on this site that FAR 52.212-4 also includes a payment paragraph (i) Payment. (1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract. Obviously, I am a novice when it comes to contracts. I always thought an FFP placed the loss risks on the contractor but guaranteed payment of the agreed amount. I didn't realize that there is a problem with invoicing on an hourly basis with a FFP contract? The contract includes a paragraph titled 'Earned Value Management System' that requires tracking and monthly reporting of time spent on the project. It seemed reasonable when I was also told to invoice on an hourly basis. The FAR 52.212-4 (i) Payment clause - says that payment is required when an item has been delivered and accepted. That makes sense. But, it doesn?t say (to me at least) that an item must be delivered and accepted in order to receive agreed upon payment. Is there a case or cases that have resolved this? advice, discussion, or comments appreciated. Thanks in advance for further responses. Jose
  14. Hello everyone - I am a small business contractor SDVOSB (single employee) I found this post that is very similar to my situation here: http://www.wifcon.com/discussion/index.php?showtopic=284 But was advised to start a new post. 1. The contract is FFP and has two items (1)software purchase and (2)consulting services supporting the software implementation. I have been paid for item (1). 2. The contract schedule of supplies/services line item 2: provide expertise and knowledge transfer of products, quantity 2040hrs, unit price $xx per hr, Amount $xxx. I have not been paid for the full amount under item 2. 3. The contract does incorporate by reference 52.212-4 without Alt 1. 4. The contract was awarded as FFP, sole source DVOSB. 5. I did submit monthly reports and invoices based on the actual number of hours worked for the month,per instructions from the project supervisor. However, was not provided enough tasking to use the award amount. 6. The SOW says task orders to be issued by government, services to be performed at the contractor site and delivered to Gov't. The CO who awarded this is not available and I am dealing with a replacement CO. Contract period has expired. I believe that I am entitled to the remainder of the lump sum award for services that were not utilized since I was available to perform and urged them to utilize my services. I do not have a final CO decision. the remaining amount barely exceeds $100k, I don't have alot of $ to spend chasing this if there is no possibility of prevailing. looking for sage discussion and options Thanks Jose'
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