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Fara Fasat

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  1. Your facts are confusing. You talk about a "main company" but then say that both that and the company in Germany are "under" the same entity. Do you mean that both are subsidiaries of a parent company? Anyhow, it probably doesn't matter in the end. A SAM registration is required for each separate legal entity, and each separate division or branch of an entity. SAM considers a division or branch as a separate entity, even though in the legal sense it is not. Back when the ownership reporting came out, we questioned DLA about this, and their answer was that subsidiaries, divisions, and branches are all considered entities. The "owner" of a division is the next level up in the corporate hierarchy. Besides, from a practical standpoint, you want the Germany company to have its own registration even if it is a division and not a separate legal entity. All of its administrative information, address, banking information, points of contact, etc, will be different from that of the "main" company that you want to use. Just register it, and get an NCAGE too.
  2. True, that would explain the result in this case. I lean the other way -- that the contracts changed hands on the effective date of the novation. That follows from the wording of the novation agreement, which says that after the effective date, the term "Contractor" in all contracts shall mean the transferee. Of course we don't know if they used the standard template, and there are likely other facts we are missing. After all, both parties had experienced law firms on their side, so it is unlikely that DynCorp was ineligible for the task order and no one caught it. We'll just have to leave it at "we don't know."
  3. Neil, that article is informative and I have saved it for reference, but I don't think it applies to the novation of a government contract. From a quick read it looks like it discusses the circumstances in which a parent can be liable for the obligations of a subsidiary, i.e. piercing the corporate veil, when there is no assignment or transfer of the sub's contracts or obligations to the parent. In a novation, there is a formal transfer of the sub's (the transferor's) contracts and obligations to another party (the transferee) (in our case, the new owner/parent). The transferee takes on all obligations of the transferor, and the transferor is released. The standard novation agreement in FAR Part 42 basically follows this. So, back to Vertex. The GAO was a little ambiguous by saying that DCMA "approved" the novation "request", but it did cite the "DynCorp Novation Agreement." DMCA also directed individual COs to modify their contracts "to incorporate the Novation Agreement." I think there was a formal novation, not just an approval of a request, and it was signed by all three parties as it should be. If true, then all contracts, including the IDIQ, became Amentum's contracts, not DynCorp's. And so the legal issue is still unanswered: how did DynCorp get awarded a task order under an IDIQ contract that it no longer held? One possibility is that the assignment is not complete until an individual contract is modified to identify the new party. If the IDIQ had not been modified yet, then DynCorp might have been the holder still. The problem with that is that the novation agreement makes it a done deal. The following is in (b)(4) of the FAR template: "Following the effective date of this Agreement, the term “Contractor,” as used in the contracts, shall refer to the Transferee." That sure sounds like the contracts got modified right there; any individual contract modification is just an administrative update. Yeah I know, talk to an attorney. But I'm not looking for legal advice on how to proceed. I just noticed something that didn't sound right, and I'm interested in others' thoughts on the matter.
  4. The GAO just released the Vertex decision, where it sustained a protest by Vertex of the award of a task order to DynCorp. The GAO held that the AF did not adequately document its evaluation of the impact of the purchase of DynCorp by Amentum. While decisions involving corporate ownership and structure are very fact-specific, I was puzzled by one thing. Brief chronology: Both DynCorp and Amentum were awardees of the IDIQ contract under which the TO was issued. The sequence of relevant events was, in order: Amentum bought DynCorp and held it as a wholly-owned subsidiary; DynCorp submitted a proposal for the TO; Amentum did not; all contracts held by DynCorp were novated to Amentum, including the IDIQ contract; the TO was awarded to DynCorp. Here's what I can't figure out. If all DynCorp contracts were novated to Amentum, then DynCorp no longer held the IDIQ contract when it was awarded the TO. Amentum held the IDIQ contract. Since they are separate legal entities (DynCorp was a wholly-owned subsidiary), the IDIQ was held by one legal entity and the TO went to another. Maybe we're missing some facts, but does that sound right? Can an entity be awarded a task order under an IDIQ contract that it no longer has, as long as it submitted a proposal while it held the IDIQ contract? Or is a contract held by a parent (Amentum) also held by all subsidiaries (DynCorp) even though they are separate legal entities? I don't think so, but I don't know much about corporate structure and ownership.
  5. Has the prime inserted the DPAS clause - 52.211-15 - or incorporated the DPAS regulations (15 CFR 700) into your subcontract? If so you are required to meet the required delivery dates. Very few options for you. Look for some other leverage. And of course, contact a lawyer before doing anything.
  6. Thanks. Could you also provide the link to the page this was on? I've been using https://www.acq.osd.mil/dpap/dars/class_deviations.html and https://www.acq.osd.mil/dpap/ops/policy_vault.html but the memo was on neither.
  7. Has DoD revised its class deviation on enforcement of the vaccine mandate, to reflect the nation-wide injunction? The Dec 2 deviation (2021-O0009 rev 1) is the latest one I can find and it only addresses the 3-state injunction.
  8. I think that early in this discussion, someone said that there's no coercion. After all, the contractor has a choice. Sounds to me like the same kind of choice you have when being shaken down for protection money. "Nice little company you have here. Be a shame if you had to go out of business."
  9. And thus we're on page 8. 🤣 Anyhow, I'm referring to those who have been commenting. I'll say 'most everyone.' Seriously, is there much more than can be said on this topic?
  10. Everyone seems to be on board with 1 and 3 (substituting "information" for "evidence" in 3). For 2, I was simply trying to condense what Joel has been saying about his contracts, and that "review" means what he was saying about the pre-award evaluation. I can't comment further on it other than to say that the ability of a typical CO to recognize fraud doesn't make the statement invalid. I think there are some COs who are fully capable of suspecting when an SB is being used as a front on a set-aside contract.
  11. I think the reason everyone seems to be talking past each other is that we are looking at different problems. Vern, ji, and maybe others, are concerned about the wisdom and practicality of doing continuous monitoring of the prime and its subs. It's a valid concern. Joel says there is a duty to fully vet the proposal and technical approach before making an award. Again, valid. I don't read in his posts a suggestion that continuous monitoring is required or should be done. I'm concerned about the fraud scenario, and allowing a contract to run to its end if it is clear there is fraud. Also what to do if it becomes obvious that the LOS cannot be reached by the end, even absent fraud. I'm confident that no one here would turn a blind eye to it and take a "no monitoring" approach in the face of clear evidence. Maybe we just need to stop digging in our heels, step back, and look at the big picture (did I miss any buzzwords?). Despite this topic reaching its 7th page, I think we can agree on a few key principles: monitoring the LOS throughout contract performance is neither required nor prohibited. If you have the time and the inclination, go ahead. due diligence before award should include a review of the offeror's understanding and compliance with the LOS requirements. It can also detect potential set-aside fraud. if evidence comes to light that suggests that all is not as it should be, the CO has a duty to investigate further. That may be simplistic, but it seems to be the Cliff's Notes version of what everyone is saying.
  12. I'm on the contractor side, not government, so I don't know all the reasons why the government might or might not want to monitor compliance during contract performance and not take a "we'll fine them at the end" approach. But at least one sticks out in my mind. Every week, Koprince Law posts articles on fraudulently-obtained set-aside contracts. Sure, the government collected a fine, but in every single case, a deserving SB was denied the contract. Every day the wrongdoer performed was an opportunity lost forever for a deserving contractor. Had the government caught it, the CO could have terminated the contract and recompeted. There are tons of service contracts where a new contractor could step in and take over performance. Seems to me that's a good reason to do at least some monitoring during performance.
  13. Too late. As in the recent AT&T commercial -- "It's happening." 😄
  14. Actually there is a contract type in the FAR that is close to what you are asking, although not exactly the same. It is an Energy-Savings Performance Contract, or ESPC. It has its own statutory authority (42 USC 8287), and is implemented at FAR 23.205, although 23.205 simply sends you to the DoE ESPP regs, which are extensive. It has the features you mentioned -- performance is financed by an outside financier, and payment is based on achieving the savings guaranteed in the contract. It's not the general PFS authority you are looking for, since it is limited to energy saving projects by its special statutory authority, but if you are looking for ideas and experiences, the DoE web site has lots of reference material. Now, can you apply its concepts using an OT as the contract vehicle -- who knows?
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