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Guardian

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  1. Guardian

    Contractor Request to Extend POP

    The considered change would be content-based, not stylistic. Allow me, if I may, to adapt the scenario for this forum by describing in hypotheticals. Example: Original Statement of Need: Evaluate a furnished sampling of workstations out of a total of 500 and provide summary reports on 100 of them. Modified requirement: Evaluate a furnished sampling of workstations out of a total of 500 and provide summary reports on 110 of them. I appreciate your venture into cynical humor, but in deference to the season, may we suspend it until the new year ?
  2. Guardian

    Contractor Request to Extend POP

    By agreement of the parties, a supplemental agreement within scope. I heard back from the contractor. The report we are purchasing is clearly measurable in terms of units, given how we described it in the SOW. The contractor has offered to increase the individual units by 10%. I find that fair consideration for a POP extension of approximately 30-days. While the proposition of a price reduction is always worth keeping in mind, as has been so fluently suggested, consideration may be realized in various ways. The taxpayer sees the headlines. I recently re-read Federalist 10, wherein Madison posits the business of Government is often best left to the specialists. As a CO, I have to consider everything involved in returning funds to our budget office, which is to say, how much of a service I am really doing the taxpayers when we flaggingly pass through the administrative red tape for somewhat modest returns. Ji, the TO does not contain the Government Delay of Work clause, although its inclusion is worth considering in future actions. I judged this acquisition to be for commercial services, meaning the incorporation of that clause would have been optional. Jamaal, thank you for the previous thread. You are the only one who really answered my direct question by pointing me to a case citation/legal precedent. Thanks for reading my words.
  3. Guardian

    Contractor Request to Extend POP

    I hear you loud and clear, Don. You are preaching to the choir on that one. I have fought the good fight for long as I can remember. However, the cost of this report is such that the juice just ain't worth the squeezing. Put it this way, it otherwise should have been placed on a micro-purchase card. The story is convoluted and mostly uninteresting, but the end result was my recruitment to the effort. My position at this point is by and large to preserve the integrity of the component and my appointment. To strike some reasonable balance, I thought we could agree to them upgrading the product by at least a modest degree. We have spent enough time doing this; us "smart ones" have come to realize there are some occasions to flail fist and others when it best to play coy and strike a deal.
  4. Guardian

    Contractor Request to Extend POP

    They are last year's funds. I only stand to get them back if I Terminate for Cause (it's a commercial item). No one on the program side is going to care about a reduction in price at this point. That is why my mind was going the direction of a supplemented product/service. No, I do not think it's excusable.
  5. I have a couple starting comments: (1) I see that a similar topic/discussion, "POP Extension," was posted back in September. So as to gain full exposure for my unique set of circumstances, I am starting a new thread. My regrets if there is any perceived overlap. (2) The title I have chosen is a bit of a misnomer as I have not yet received a formal request from the contractor. The facts and fiction are as follows, Near the end of FY18, I awarded a small-dollar TO, the product/deliverable being a "report," which would be developed from the performance of professional services. Although an agency-specific privacy clause was provided for the contractor's review before award, some time shortly thereafter, the contractor took issue with it. I went back to the office that devised the clause and obtained their approval for a deviation of sorts and modified accordingly. Fast forward to late last week and today--I have heard nothing from the contractor on the NDAs, nor on the progress if any of their performance. The POP, already once extended from its original date, expires after 2359:59 and the carriage becomes a pumpkin. The COR contacted me (on behalf of the contractor) to request an extension. I informed my designee that I have received nothing to date from the contractor, neither in writing nor even as much as a phone call. Twenty minutes after I got off the line with her, the contractor's representative calls in a most syrupy voice. I expressed my displeasure and read them the riot act in syncopated rhythm. I am typically willing to give away one free pass, and in the case of the first POP extension request (tied to the matter of the privacy clause) there were surely extenuating circumstances. Concerning this second request, the contractor claims, seemingly without full confidence, that the delay was partly attributable to the Government. While I always appreciate cutting to the chase over a phone line, such requests ought to be in writing, and the justification backing up their assertions need to be convincing. I am of the mindset that contracting between parties rests on the concept of quid pro quo. So then, I asked the contractor, when she suggested her "no cost extension," what additional product might the Government receive for its gift of time? Albeit I am a merry soul, I certainly am not Santa. I know my mastermind group will have some strong opinions on this topic. I would be grateful for a case citation concerning POP extensions as an administrative cost to the Government that should be met with some equivalency from the contractor in the manner of a supplemented product and/or services. Let us begin....
  6. Guardian

    REA - Services

    Joel, I found a good case citation for your above statement-- "An equitable adjustment compensates for changes by paying a contractor its increased costs resulting from the change plus an allowance for profit" (United States v. Callahan Walker Constr. Co., 317 U.S. 56, 61, 63 S. Ct. 113, 87 L.Ed. 49 (1942)). I discussed this matter with our attorney this morning. He agreed that both the first request, which is based on seniority rates tied to the CBA, and second request based on the overtime hours at the outlying post should be seen exclusively as requests for price adjustments. I was a bit undecided on how to categorize the second part of the contractor's claim. However, my attorney sent me a PowerPoint document from the Air Force, which is an overview of CBAs and the SCA. It mentions the thorny nature of shift/lead differentials, which is partially what I am confronted with here. He advised that I modify per the authority of 52.222-41(m) Collective Bargaining Agreements Applicable to Service Employees. Paragraph n of that same clause requires the submission of seniority data for each contract employee to which the CBA applies, not-less-than ten-days prior to the end of the current contract term. I need to give further consideration to this paragraph as their request concerns rates that are based on varying tiers of seniority.
  7. Guardian

    REA - Services

    Ji, I did not want to get bogged down on what to call it, as I reached out on this forum firstly for some practical answers. That said, the gears of my mind are turning, and I am wondering if the title I gave this thread, "REA - Services," is appropriate from a wonkish standpoint. Of course, part two of the FAR does not proffer a definition of "equitable adjustment." However, your parenthetical correction prompted me to dig a bit into the shadowy recesses of the World Wide Web. Is what I described in this thread an equitable adjustment or rather a price adjustment, as the clause terms it? Perhaps it is both, as the latter might constitute a subset of the former. “…all requests for price adjustment called for by contract clauses constitute non-routine requests [emphasis added]—including a request for equitable adjustment for a constructive change…; a request for equitable adjustment for ordered changes…; a request for an equitable adjustment for a recognized differing site condition…; a claim for lost revenue…; a request for a contract rate adjustment to reflect wage and fringe benefit changes made by a contractor in accordance with a wage determination… In such cases, the contractor has the choice of submitting a request for equitable adjustment (“REA”) to the contracting officer –calling for a negotiated settlement—or of submitting a [Contract Disputes Act] claim requesting a contracting officer decision…” (The Administration of Government Contracts (Administration of Government Contracts, Fourth Edition, by John Cibinic Jr., Ralph C. Nash, Jr., & James F. Nagle ©2006, CCH, pp. 1231-1255)). & [T]he U.S. Court of Appeals cites a REA as “anything but a ‘routine request for payment’ (Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995). https://www.dau.mil/acquipedia/Pages/ArticleDetails.aspx?aid=e704abe8-424e-4b3e-8d69-a343fae8a338 What a great way to end the day.
  8. Guardian

    REA - Services

    Fair enough. So then, when you have a sizable mix of contractor employees with differing levels of seniority, how might the CO determine the proper upward adjustment of price? The contractor has proposed using an average wage rate calculated from the point at which the new CBA went into effect. This is where I get a bit squeamish as a CO. FAR 52.222-43, the clause they cite as authority, speaks of adjusting "to reflect the Contractor's actual increase or decrease in applicable wages and fringe benefits." The labor pool on such an effort becomes somewhat fluid. A senior level employee taking up to 30-days per year of paid leave may be temporarily replaced by someone with less than three-years' experience earning 20% less per hour.
  9. Guardian

    REA - Services

    Yes, in anticipation of the Government exercising an OP. My understanding is that if the CO were to approve a rate increase, it would be effective at the start/exercise of the next option. If we accept the premise that the CBA (which I read in full) mandates certain wage increases tied to seniority, then the question becomes, should the CO increase the per diem rate based on the fact that it is made up of respective smaller units, which the CBA has forced upward? It would be akin to the baker increasing the cost of her/his cake, citing the increased costs of Himalayan salt and Zambia Gold honey. The fact remains, as the contracting officer, I never provided a recipe to follow, nor do I fully know their "secret formula."
  10. Guardian

    REA - Services

    The only citation their REA letter references is 52.222-43 Fair Labor Standards Act and Service Contract Labor Standards - Price Adjustment (Multiple Year and Option Contracts). Thanks for replying.
  11. A contractor provides space in a facility to our agency at a per person/per day rate. These "services" require the work of service employees under a variety of SCLS positions. The SCLS WD is superseded by a CBA requiring higher rates. I received a formal REA citing 52.222-43, indicating that the contractor and labor union recently agreed upon a new CBA. The REA was sent within 30-days after the date of that document. The key impact of the new CBA was ensuring higher wages for service employees based on seniority. The CBA aligned pay increases with established tiers, e.g., 0-3, 4-6, 7-10 years, etc. It is important to note that we do not state wage rates on any of the contract CLINs. Instead we contract at a per person per day rate based on the mix of labor categories and hours deemed appropriate by the contractor. Clause 52.222-43, states, "The contract price, contract unit price labor rates, or fixed hourly labor rates will be adjusted to reflect the Contractor’s actual [emphasis added] increase or decrease in applicable wages and fringe benefits...." The contractor arrived at the per person, per day rate based on (in part) the need for over 30 service employees (those of prime and subcontractor) at varying degrees of seniority. Because of alternating shifts in their workforce to compensate for annual, family, sick and holiday leave, it is impossible to forecast the exact burden to the contractor for an upcoming year. So then, the contractor has submitted to me that the average employee's pay has increased by approximately $1.30 per hour. Therefore, they request an increase to the per person per day rate. This is a FFP contract. The way I am reading the Fair Labor Standard Act and Service Contract Labor Standards clause, I do not think I have the needed justification to authorize this REA. Part Two of their request - In the same REA letter, the contractor states that the contract requires the manning of a particular outlying post from sundown to sunrise. Pointing to the fact that the winter has more darkness, they indicate that they have been keeping their two or so employees (regularly assigned to that post) over their normal shifts and paying them overtime, rather than bringing in a substitute. It's fair to mention that we are several years into this contract. I do not believe the solar system has changed much in that time, though I imagine that is debatable. Again this is an FFP contract. I am not sure why they are worrying me about the specific scheduling of their service employees when our PWS is just that, performance-based. As with the scenario above, the contractor has tied this storyline to their request for an increase to the per person per day rate. Again, my inclination is to deny this. I may be missing some angle here. Do any of the COs have cogent thoughts on these requests?
  12. Kathleen D Vohs, professor of marketing at the Carlson School of Management at the University of Minnesota writes, “Once you’ve reached a peak level of acceptance, however, you’re not going to be motivated to work harder.” This is a raveled statement inconsistent with Buddhist philosophy. It’s neither true nor false; it merely shows a lack of understanding of the principles of Buddhism. So then, what is it a practicing Buddhist realizes he needs to accept to progress toward an improved state? Emptiness—which is to say, that which is ubiquitous and perpetual, a recurrent state intrinsic to the temporal world. Herein we are confronted with an oxymoronic condition, which is emptiness in the face of abundance. He needs to accept the feeling of emptiness, which will continue to burden him even as he passes through many stages in life achieving successes. “[A] peak level of acceptance,” well now, that would be nothing short of nirvana. It would require more than a week or two of sitting in your company’s meditation room to reach such a state. I recently read the following essay, a portion of which is as follows— BALANCING INTERNAL MOTIVATION AND EXTERNAL NORMS So what would be the focus of law (as a set of norms) if it is to reflect the appropriately internal motivation so central to Buddhism? It must be designed so as to promote individual happiness—but that is too easy and too quick. It must be designed so as to operate on one’s dispositional states, such that one is disposed to be motivated properly. It must be designed to change hearts and minds, not merely behavior. So, if a law (let us refer to that law as a norm for now to avoid complexities surrounding the contrast between law in action and law as codified) is to be designed in such a way, a way appropriate to the internalist norms of personal development and motivation reformation, it must be internally endorsed, not externally enforced. Importantly, this norm will not work to promote the values it is supposed to instill unless one endorses it. In the case of external norms, one need not care about the norm or be motivated appropriately for the scope of that norm to apply; while I might not care about social sanction, the norms of social behavior will still be applied to me. But how can we formulate norms that will encourage this, that is, facilitate right motivation in the right way, rather than enforce behavior that leads to happiness in a manner entirely inconsistent with the internal focus of Buddhist norms? More simply, how can we formulate norms that capture the essentially internal motivation of Buddhist norms? Notice how odd it would be to say “to make people strive for their own happiness” rather than, more appropriately, “to encourage happiness.” (Shockley, Kenneth, “Internal Motivations, External Coercion, and Educating for Happiness” as published in the Buffalo Law Review, Vol. 55: 635-735 (2007).) Vohs might be correct in her assumption that “you’re not going to be motivated to work harder.” However, this seems a narrow-minded goal. Would not the better goal be for a greater work product, a smarter, more efficient method of doing business, and mutual satisfaction between parties. While hard work can certainly lead to economic growth and prosperity, in and of itself, it does not necessarily guarantee the results intended and has been a bane to many workers. Take the case of Warren Buffet, who nearly refuses meetings. His practical goal for some time has been to read prospectuses alone in a comfortable environment and make three of four wise acquisitions each year that will yield him and his stakeholders a worthwhile profit. Herein, there seems to be a level of utilitarianism. Many people benefit, as well as the larger economy. This he does in a modest office in Omaha, Nebraska. Yes, Buddists are concerned about profit too. The Dalai Lama said— Economic motivation is very powerful and we cannot expect people not to be personally motivated by economic gain. Also without money, there is no progress. Even Buddhist monks who are aiming for Nirvana in their day-to-day life, they need money. And I think from the Buddhist viewpoint, is really a matter of balance…. Surely the companies that will take us through the halfway mark of the 21st century will not disavow profit. Profit is essential—without it the company dies. But what else might become acknowledged as being important and by what other models can companies maximize profit? Lest we forget that Apple, Google and Nike are not companies of our grandfathers’ generations. Oh I watched them take the wrecking ball to the ole Montgomery Wards, Woolsworths became a Family Dollar and Sears has gone online. Have a good weekend, folks!
  13. Guardian

    NASA SEWP and BPAs

    It sounds like you have a recurrent need, which per your market research can best be fulfilled via SEWP. Although NASA may describe the concept of a delivery order with options, this is not the route I would take. About ten years ago I set up a BPA-type vehicle off a SEWP contract. NASA refers to this as a custom user purchase agreement (CUPA). I would contact the SEWP administration office for the agency and confirm that they are still promoting/sponsoring this type of vehicle and accepting such orders. I do not see why they would not be. After all, they are making a fee in the process. My understanding is that a CUPA is substantially similar to other types of BPAs in most respects. The guidance I have looked at from NASA for BPA-type vehicles cites FAR 16.505 and emphasizes that “[f]air opportunity must be maintained.” That said, I would point out that a BPA is not a contract as is an IDIQ described under this subpart and section. Notwithstanding the establishment of the agreement, the Government is not obligated to ever place any orders. Much like the BPA process described under 8.405-3, the preference is for the establishment of multiple awards. Certainly you could borrow some of the prescribed procedures under that subsection. I want to say that by setting the vehicle up as a CUPA against larger SEWP contract(s), you can place what the system refers to as “TOs” against the agreement. In the case of the purchase of supplies, these would really be “DOs.” One advantage, if I recall, is the ability therein to keep separate any modifications to your overarching agreement. As I am going back about a decade, you would have to check with the SEWP folks. Here is the PowerPoint presentation I found online, albeit it is a bit dated— https://www.sewp.nasa.gov/documents/bpa.ppt As to whether awarding a BPA against a non-FSS IDIQ is permissible under the FAR, I think Don answered that one by directing you to FAR paragraph 1.102(d). The question I think you should be asking is whether the administering agency, NASA, currently deems these methods permissible.
  14. Here is a link to the code in question, Vern. http://uscode.house.gov/view.xhtml?req=granuleid:USC-1999-title41-section253&num=0&edition=1999 (B) in the case of a follow-on contract for the continued development or production of a major system or highly specialized equipment when it is likely that award to a source other than the original source would result in (i) substantial duplication of cost to the Government which is not expected to be recovered through competition, or (ii) unacceptable delays in fulfilling the executive agency's needs, such property may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures. By "true sense" I mean "term of art" as you have described in your writings, as opposed to some colloquial usage. No, there is no express "statutory definition" found in Title 10 of which I am aware. I was drawing an inferred definition from the context in which it is used under that section. FAR Subsection 6.302-1 makes three references to the same term. All exist in the same context, the only variation being that one paragraph also mentions supplies for the same. By "rare" I mean, relatively speaking, the number of reported contract actions in FPDS categorized as such compared to the total number of reported actions within the most recently completed fiscal year. Moreover, I would further qualify that statement by underscoring "those that have been reported properly per the guidance that FPDS as administered under GSA provides." Specifically, you asked, "How do you know that follow-on contracts, whatever they are [emphasis added], are rare"? I would submit to you that we must reach some consensus as to what a follow-on contract is before we can move on to the question of whether they are rare. A question for you: If I am correct to understand you apply a broader definition to "follow-on contract" than what I have cited, I would appreciate your definition and its statutory and regulatory basis, including citations.
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