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Fara Fasat

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  1. We're talking to them today. My guess is that they want the right to fully use the software on the computers it is installed on at their site, and they don't understand that restricted rights gives them that. Hence the mash-up of 'unlimited' and 'government purpose.'
  2. Vern -- not DoD. That's why 52.227-15 is in the RFP, not 252.227-7014. I thought the reference to 52.227-15 was sufficient. Besides, do you really read the government's question as a request to negotiate something other than the standard license rights? If so, then what is it that the contractor needs to clarify? It's the government that wants something different. Carl read it right. "Unlimited" and "government purpose" are two very different terms, and even if this were a DoD contract, the CO combined them in a way that makes no sense. For a non-DoD contract, there is no 'government purpose' category. And yes, we're already asking the government to clarify what it wants. Just thought people might get a chuckle out of the government mash-up.
  3. Thought this might bring a smile to some faces, or maybe cause some to weep in despair. Contractor submits with its proposal a list of software that qualifies as restricted computer software, in accordance with 52.227-15. Government sends back a question, stating that it needs "unlimited government purpose rights" in the software, and asks contractor to clarify its offer.
  4. Is anyone else having trouble getting to the Ask A Professor ("AAP") site ( https://dap.dau.mil/aap/Pages/default.aspx )? For a couple of weeks now I have been getting an error message saying the site can't be reached. Just need to know if it's being blocked by my company network or whether the problem is at the DAU end.
  5. Or "a really futile and stupid gesture on somebody's part." (Otter, contracting officer for Delta House).
  6. Yes, but I don't see in there an equivalent to the contractor's certification at 33.207(c). At the risk of this going off on a tangent, there's a reason why Congress thinks it's important that a contractor should be required to put its signature to the words "I certify."
  7. Yes. Just wasn't sure what form the government claim takes. Sounds like a claim letter is it. Too bad there's no requirement to certify entitlement, amount, etc., like the contractor has to do. Might make the CO think about it a little bit.
  8. Far-flung: this is not government property subject to 245-1 or 2. Vern, Retread: thanks. My initial thought had been a government claim, but could find nothing on that topic in my N&C materials. In addition, the only thing I could find in Part 33 was a statement in 33.206 that "The contracting officer shall issue a written decision on any Government claim initiated against a contractor within 6 years ...." I assume the CO issues a claim letter, the contractor responds, and the CO then issues a final decision?
  9. Also, the equipment is out of warranty.
  10. Hypothetical: government awards contract for large equipment and 10 years of maintenance. Government will operate it. Contractor installs, government accepts and pays. Equipment operates correctly. At year 5, equipment fails, is damaged, and must be replaced. Government and Contractor disagree over who is responsible, i.e. was the maintenance faulty or was it operated incorrectly. What courses of action are available to the government? I'm not asking about theories of recovery; I'm asking how. What contractual methods does it have to recover the cost of replacing the equipment, which exceeds the annual price it is paying the contractor for the maintenance? I'm from the contractor side, so I know how a dispute unfolds for a contractor and what its courses of action are.
  11. I’ve read the article and a couple of the cases in it that sounded promising. The article itself was very general and thus not of much use. One case was a bankruptcy case (193 B.R. 204), and the bankruptcy court cited the DPAS acceptance/rejection criteria to assert that a supplier could withhold performance. It looked at 700.13(c), which gives a supplier the right to reject an order, and asserted that this explicitly allows a supplier to refuse to ship when its terms aren't met. I don't buy it. The court took contract formation criteria and applied it to contract performance. The Sterling Millwrights case (26 Cl.Ct. 49) was more on point. Complicated facts before the Claims Court in a T for D case, but one Sterling defense was that various government delays and failures excused its own failure to meet the DPA. The Claims Court disagreed and said that “the court must conclude that the government’s indolence in performing its contract obligations did not excuse Albany Steel [a subcontractor] and Sterling from performing in accordance with the DPA.” Sterling has been cited many times, but not on DPAS. It remains the only case I can find on this issue, and it concluded that a supplier had to continue performance in the face of government failures. The full context of Sterling makes a direct comparison difficult, but it's a red flag.
  12. Thanks for the responses. Here are my thoughts: C Culham: I don't think 700.13 (d)(3) helps. That applies when the supplier "finds that shipment will be delayed" which suggests production difficulties or other inability to meet the delivery date. Here, the supplier has made the product but wants to withhold shipment. It hasn't 'found' that delivery will be delayed; it wants to delay. Vern: trying to get that BP now. That quote concerns me. OIS accepted orders, wanted to stop production, and refused delivery. In response, SIES issued a directive to OIS to perform, and presumably could have taken enforcement action. That's what concerns me unless there is clear authority excusing performance of deliveries. Given the regs' priority requirements, DPAS clearly expects suppliers to put themselves in potentially breaching positions with other customers in order to meet a rated order's deliveries. That tells me that the overall mandate of DPAS is "meet your delivery date regardless of other impacts."
  13. Scenario: a subcontractor has accepted a rated order from a prime. Sub has made deliveries on time, but prime has failed to pay. In accordance with its standard practice, sub wants to put a hold on future deliveries until prime pays. However, can a contractor do that under a rated order? A contractor's primary obligation under a rated order is to deliver on time, even if it requires delaying deliveries on non-rated orders. Must the sub therefore keep delivering even if the prime is not paying, and seek other remedies? I have searched the DPAS regs thoroughly, and gone through all training materials from DoD, DoC, and even the DAU DPAS course. None of them answer this question. However, none of them mention any exception to the obligation to deliver on time either. My conclusion so far is that the sub must continue delivering on the current order, but if anyone knows of an exception to this ....
  14. FWIW, I think you're making too much of the sub's business into your business. In 25+ years doing this, I have dealt with all the major primes and hundreds of smaller. I have seen all of their standard terms and non-standard terms. With the exception of a FAR clause that specifically requires it, none of them require the sub to separately confirm or verify their compliance with any flowdown clause. My company is also a major prime, and we don't do it. There are some that might require some monitoring of a sub, like the counterfeit parts clause, but certainly not EEO, AA, etc.
  15. Where in that clause do you see a requirement to provide proof to you of enrollment within 30 days? Unless I'm missing it, even the prime is not required to provide proof (and to whom, the CO?). Why do you consider it the prime's job to verify that your sub enrolled in E-Verify? Do you require your subs to verify to you that they have filed their EEO reports; have AA plans; notify their employees of rights under the NLRA; etc, just to name a few other mandatory flowdown clauses?
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