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jtolli

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  1. No, it now appears that what they are hanging their hat on is the DoD Financial Management Regulation (FMR), Volume 3, Chapter 8, Paragraph 0811 which reads: "0811 TEMPORARY DUTY TRAVEL Tentative obligations for temporary duty travel shall be recorded from written administrative determinations, based on the travel authorizations issued, for the estimated transportation to be purchased and the estimated reimbursement to be earned by the traveler for per diem allowances, use of privately owned vehicles, and incidental travel expenses. When travel is performed under a blanket authorization (with the itinerary not definite), the amount of the tentative obligation recorded in the current month shall not exceed the estimate of the travel expenses to be incurred to the end of the current month. When the period covered by the travel authorization extends beyond the end of the fiscal year, and the travel costs are being paid by means of an annual appropriation or the final year of availability of a multiple-year appropriation, the amount of the recorded obligation shall be the cost of transportation purchased and reimbursements earned to the end of the fiscal year." (Bold added by me) So then the question would be if contractor personnel traveling under a contract are considered to be performing "temporary duty travel", or is the FMR only referring to travel performed by Government personnel? I don't know the answer to that question, and it doesn't matter much now as we have already moved forward with de-obligating funds that will not be used this fiscal year. I am merely trying to provide additional information I received.
  2. You can make whatever you want from that question and answer from AAP. I only shared it to illustrate that there appears to be a belief in some circles that contractor travel must be paid for with funds from the fiscal year that travel occured. Like you I wish the professor would have cited the sources, but again that is typical of what I have ran into when asking this question; nobody can really cite any difinitive source to support their position that the travel funds are limited to use in the fiscal year that travel actually occurs. I am now being told that there was a legal opinion issued within my command thay also supports that position, and am trying to get a copy of it to see what the basis of the opinion is.
  3. Here is a question and answer from the Ask A Professor site that someone pointed me to https://dap.dau.mil/aap/pages/qdetails.aspx...stionID=107100: "Question - On a contract support contractor labor with a period of performance of 28 Sep 2010 through 27 Sep 2011, does the Bona Fide Needs rule prohibit payment of the travel CLIN with FY10 dollars due to the fact that most of the travel will be conducted in FY11? Can FY10 dollars be used for the travel CLIN or are FY11 dollars required? Scenario - I am the COR in the last stage of implementing a contract for contractor support personnel who will develop JCIDS documentation and other capability development work. The period of performance is 28 Sep 2010 to 27 Sep 2011. Funding is all FY10 dollars. "Legal at the contracting office says that the labor CLIN can be paid with FY10 dollars, but the Bona Fide Needs rule requires that the travel CLIN be paid with FY11 dollars. Answer - I have checked several sources and your response from the Army JAG is consistent. The Bona Fide Needs Rule requires that travel be paid for with the FY dollars in which the travel was conducted. I've attached a good site to research the Bona Fide Needs Rule. http://www.wifcon.com/bonafidecontents.htm Note: Material added 11/8/2010 The official "bona fide need" rule applies to appropriated funds. Details on contract considerations within the DoDFMR can be found here at http://comptroller.defense.gov/fmr/03/03_08.pdf ."
  4. Yes, you are correct, it is for travel by the contractor to support the contract effort.
  5. Yes, they are fully funded contracts, and no they aren't task order contracts. Many of the contracts don't have "firm" travel established though. What I mean by that is there is a "bucket" of money placed on the ODC CLIN to cover travel that is anticipated to occur sometime during the one year period of performance, but there isn't always a schedule of when specifically the travel will take place. I was thinking perhaps that was part of the reasoning for us being told that we could not use the current fiscal year funds (e.g. it appears there will be no need until the next fiscal year). But when I asked about some contracts where we do have definite travel schedules, including some scheduled in October, the answer was it doesn't matter, any travel to occur in FY12 must be funded with FY12 funds. It's not a big deal, as you say no sense in wasting a lot of time arguing about it. There is a positive side to it in that it allows us to recover some FY11 funds to use for other requirements. I'm just the type of person who likes to understand the "why" of doing things, and get frustrated when someone just cites a vague reference (fiscal law) without providing any specifics.
  6. Thank you Vern. I have never heard of such an application of the bona fide needs rule in this manner either, but our Resource Management and contracting folks are saying it is a violation of the bona fide needs rule to use the funds obligated on the ODC CLIN on a contract past the fiscal year end date. They have us working on submitting requests to de-obligate FY11 funds that we don't aniticipate using between now and 30 Sep, and then they will do a modification to place FY12 subject to the availability of funds (SAF) money back onto the ODC CLIN for the remainder of the period of performance. Unfortunately no one has been able to cite any particular reference in the Red Book that prohibits the use of these funds past 30 Sep. The pat answer is, "it's fiscal law".
  7. Under the principles of Federal Appropriations Law is it permissible for Other Direct Cost (ODC) funds on a severable services contract to ?cross? fiscal years? For example; you have a Firm Fixed Price contract with fixed price labor CLINs and a cost type ODC CLIN that is used to fund for travel. The period of performance is 1 July 2010 through 30 June 2011. The contract is funded with FY10 O&M funds (1 year money). Can the FY10 funds on the ODC CLIN be used for travel that occurs after 1 Oct 2010 (FY11)? Under the bona fide needs rule, is the travel a bona fide need of FY10 or FY11? I have read the portion of the GAO Red Book in Chapter 5 that discusses services rendered beyond the fiscal year and states in part, ?Most federal agencies have authority to enter into a 1-year severable service contract, beginning at any time during the fiscal year and extending into the next fiscal year, and to obligate the total amount of the contract to the appropriation current at the time the agency entered into the contract.? But does that apply to all of the funding on the contract, or just the actual ?services? (labor) portion of the contract? In the portion of Chapter 5 that discusses materials, it says in part, ?An agency may not obligate funds when it is apparent from the outset that there will be no requirement until the following fiscal year?. So is that the portion of the bona fide needs rule that would apply to the ODC portion of the contract? If you know that part of the travel will occur in FY11, should that portion be funded with FY11 funds?
  8. I have always been curious about FAR 16.301-1 (for cost reimbursement contracts) which reads in part, "These contracts establish an estimate of total cost for the purpose of obligating funds and establishing a ceiling that the contractor may not exceed (except at its own risk) without the approval of the contracting officer." How should this be interpreted? Taken at face value it seems to indicate that the contractor may exceed the contract ceiling, but may not get reimbursed if they do. If that is what it means, does that mean it's OK for the contractor to work at risk as long as the Government doesn't know they are doing it?
  9. Sounds like those (QBI, QAY, etc.) could be references to columns on a spreadhseet.
  10. Very informative and educational post Vern. Thank you very much!
  11. I have always been under the belief that option years must be exercised as written in the contract, and no changes can be made. FAR 17.207(f) states in part that the contracting officer shall make a written determination that "exercise is in accordance with the terms of the option." However, it seems that it is common practice to make changes to options at the time they are exercised. I recently attended CON 120 and this issue was briefly discussed in regards to one of the class room scenarios. The primary instructor indicated that you could make changes with the option when exercising it. A couple of us questioned this, and the instructor in essence said that as long as no one (implying another contractor) found out, then it was OK. When we questioned the second instructor on the side about this, she did say that options had to be exercised as written. We now have a situation at hand where the government wants to exercise an option on a services contract, but reduce the work required which would require the contractor to provide less people to do the work. Could this be done without entering into sole source negotiations with the contractor? Could this be considered a partial termination for the convenience of the government? Could it be considered a de-scope? Would partially terminating or de-scoping the contract upon exercising the option put the government in a sole source environment? I would be interested to know of any case law regarding this. While I was attending CON 120 I was able to find some case law, but it was rather old and wasn't exactly relevant to the scenario presented in the class or the situation now at hand. By the way, the contracting officer for this contract says that you can make changes to the requirement when exercising the option year, but I am skeptical based on what I have been told in the past and would like to have some case law to support my position if my position is correct.
  12. I've seen this happen where the government provides a name and resume to the contractor of a recommended candidate that they want the contractor to hire. The contractor, wanting to keep their government customer happy, hires the candidate, the candidate doesn't work out (can't meet performance objectives) and the government then tells the contractor to fire the person. The contractor essentially then says, "this was the person you told us to hire, so don't hold this against our performance rating on the contract." It certainly puts the government in a sticky situation, so I don't allow my customers to do this. Although I'm sure it still happens on occasion without my knowledge.
  13. Steve, It would also be a good idea to define CHESS. Are you talking about the Army Computer Hardware, Enterprise Software and Solutions program?
  14. The rule with regard to end of FY contract awards in all agencies where I have ever worked is actual performance has to start in the current fiscal year. The way it was always explained to me is the contractor had to incur some expense in the current fiscal year. So this could be one billable hour of work, making (and paying for) travel arrangments, etc. It wasn't enough to simply have the period of performance start, but an expense also had to be incurred. I have never heard the term "substantial performance" mentioned in regards to this matter.
  15. I don't think FAR 22.18 places any restrictions on hiring non-US citizens. It will require contractors to verify employment eligibility of their workers, but legal immigrants (non-US citizens) are typically authorized to work in the U.S. All E-Verify will do is help ensure illegal immigrants aren't hired. It would seem to me there are no across the board restrictions on contractors hiring non-US citizens as long as they are authorized to work in the U.S., and they don't require a security clearance. I have dealt with contracts in the past however that only allowed U.S. citizens to be employed on the contract, and any exception had to be approved by the Contracting Officer. But that was language specifically placed in those contracts.
  16. That's true if the contractor employee(s) requires a security clearance. The National Industrial Security Program Operating Manual (NISPOM) requires that an individual be a US citizen in order to be granted a security clearance. But govt2310 didn't mention that the contractor employees require a security clearance.
  17. Thanks for all the good input. I like learning new things. So, let's assume that I have a FFP LOE contract. I notice FAR 16.207-3 (d) states one of the limitations for use of this type of contract is, "The contract price is $100,000 or less, unless approved by the chief of the contracting office." My contract is valued at nearly $4.5 million, so if it is a FFP LOE contract, then it would had to have been approved by the chief of contracting office, and it may have been but I don't have that information.
  18. Formerfed, The contracting office considers it a FFP order. It was done through PD2. I am trying to understand how it can be a FFP contract based on how the CLIN is set up, and how the contractor bills. I have never seen a FFP contract with CLINs set up like that. Don, Thanks, yes I read paragraph (i) of 52.212-4, but didn't want to make my original post too long. I was mainly referring to the fact that it doesn't have the T&M payment clause in the contract, but wanted to point out it is obviously considered a commercial service since 52.212-4 is incorporated. In reading paragraph (i) it says, "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." So if this is a FFP contract, and hours are not worked, then I would say the items (hours) aren't delivered/accepted, and shouldn't be paid for. So, then it wouldn't seem to be a FFP contract. I am also aware that contracts for commercial services normally should be FFP. So I am wondering if maybe that's why the Contracting Office wants it considered a FFP contract. Finally, there is no end deliverable to provide. The scope of the contract requires the contractor employee to come to work and provide support on a day-to-day basis. Since the contractor invoices us based on the number of hours worked, then my thinking is once they reach 1920 hours, they can't come to work any more unless a mod is done adding hours and funds to the contract. But the view of those who I am debating with say hours don't matter. If the contractor works more than 1920, then we don't care because it is fixed price. I haven't brought this up with them, but what if the contractor has billed us for all 1920 hours, I guess by their thinking the contractor would have to stop invoicing us as there would be no funds remaining to pay their invoice. The others in my office say if the contractor works less than 1920 hours, then they can submit an invoice at the end of the period of performance for all remaining funds, whether the hours are worked or not. That just seems so wrong to me. Again going back to 52.212-4(i), if we haven't received the items (hours), then why should we pay for them?
  19. I am having a debate with someone in my office regarding the type of contract I am working with. Here are the pertinent details. 1. The contract is for network engineering services. 2. The contract does not include any payment clauses (e.g. FAR 52.232-7). 3. The contract does incorporate by reference FAR 52.212-4 (Contract Terms and Conditions?Commercial Items.) 4. The contract was awarded as an 8(a) set aside. 5. The contract has a labor CLIN that reads as follows: NETWORK ENGINEER, FFP. The quantity is 1920 Hours with a Unit Price in Dollars. 6. The contractor submits monthly invoices based on the actual number of hours worked for the month, multiplied by the unit price. I say this is a T&M contract (it also has a CLIN for travel that is labeled as ?COST?). My office mate says it is a Firm Fixed Price contract because the labor CLIN says ?FFP?. My argument is that if it?s a FFP contract, then the CLIN would not be awarded with a quantity of hours and a unit price per hour. I believe when the contracting office awarded it the FFP refers to the fixed hourly rate. Can you have FFP contracts that are awarded with a quantity of hours and an hourly price? Wouldn?t a FFP contract typically be awarded with a fixed lump sum for labor, or perhaps a fixed monthly price for labor?
  20. This doesn't seem odd to me at all. In my experience with service contracts it is a common occurrence. The problem as I see it is that customers develop relationships with contractor employees, much as they do with their fellow civil service employees. They know about their families, their hobbies, etc. So when it comes time that their "fellow" employee is going to lose his or her job, then the customer obviously feels bad for that employee. Of course I am assuming that when you say the customer is disappointed with the new contractor the case is really the customer is actually disappointed with the new contractor's employee. I had a recent experience where a new contract was being awarded, and it looked like the new contractor was going to be bringing in a new employee. The customer had already determined before the new contract was even awarded that there was no way the new contractor (actually the new employee) was going to be able to do the job, and was asking how long after award they had to wait before requesting the contract be terminated. I have another contract ending this week where a new contractor will be taking over, and as of now it appears that they will be bringing in all new employees. So the customer is asking how we can keep the current employees because "they are good people". In my experiences this has always been resolved by the new contractor hiring on the incumbent employees, even though it happened at the last minute. I would think this is common throughout government contracting with service contracts, which is probably the reason why the President signed the Executive Order giving incumbent employees right of first refusal. Is your situation where one where the customer is truly biased against the new contractor as a company, or is it the new contractor brought in a new employee, and is that the real reason the customer is dissatisfied? If it is a case where the customer really is dissatisfied with the new contractor (company), with no obvious valid reason, then I certainly would question that customer?s relationship with that company.
  21. That's good to know information Joel, but just for clarification do you mean subchapter 451? I can't find subchapter 415, but SC451.15.2.2. states, "Persons or organizations having a commercial or profitmaking relationship with the Department of Defense or with a DoD Component shall not be granted recognition, unless the contribution is substantially beyond that specified or implied within the terms of the contract establishing the relationship, or the recognition is clearly in the public interest." Thanks!
  22. I know a major focus of this is to convert in-place contractor employees to GS employees, and there are probably a lot of those people who do not want to convert. But there are also a lot of people in the commercial sector who would like to get into DoD contracting but have been blocked from doing so as many of the DoD contracting positions have been advertised as either "internal" or only open to candidates with "status". I never really understood why DoD did that, as they are typically stealing people from one agency (DoD or non-DoD) to fill vacancies in another and restricting bringing in "new blood". In my last job (non-DoD) I was a term civil service employee which didn't give me the necessary status to apply for a lot of DoD vacancies. Fortunately I eventually got my foot in the DoD door because I was a retired vet. I know some other people who previously spent time in DoD as term employees, took a job in the commercial sector because it seemed to offer longer term security over a term appointment, and are now having a hard time getting back into DoD because they don't have "status". Hopefully DoD will open up the doors a little wider with this new influx of civil service employees.
  23. Here's a question and answer from the Ask-A-Professor site that would lead one to believe the DoD memo applies to 8(a) also. Can I use GPC for a service buy under $25k if it is off a GSA contract schedule holder? Posted to Government-wide Purchasing Card on 4/1/2009 12:00:00 AM The Scenario? I have a requirement to have some furniture moved to another building. The price exceeds the micro-purchase limit but is not over $25k. The Question? Can I use a GSA schedule holder if I get 3 quotes? If not, may i issue a P.O. directly to an 8(a) contractor -------------------------------------------------------------------------------- I recommend you read FAR 13.301 which addresses utilization of the Government Purchase Card in greater dollar amounts. To answer your question on going directly to an 8a Firm, I recommend you read Memorandum for Secretaries of the Military Departments, Under Secretary of Defense, 10 Mar 2009, at https://acc.dau.mil/CommunityBrowser.aspx?id=275888.
  24. For what it's worth, I have a Government Contracts Dictionary that was provided to me many years ago when I went to my first contracts training class. I use it quite often. It doesn't always give the source for its definitions, but in the forward it says it has been compiled from scattered elements of Federal, State and local government contracting regulations and literature. Here are the definitions it contains for Contractor and Vendor: Contractor: (1) A supplier, vendor or manufacturer having a contract (commitment) to provide supplies or services to the Government. (2) Any individual or other legal entity that (a) directly or indirectly (e.g., through an affiliate), submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a Government contract, including a contract for carriage under Government or commercial bills of lading, or a subcontract under a Government contract or ( conducts business, or reasonably may be expected to conduct business, with the Government as an agent or representative of another contractor. Vendor: (1) Seller. Means a supplier of goods or one who operates in real estate; a supplier of a house, etc. (2) An individual, partnership, corporation or other activity which sells property to the military establishment. A vendor may supply a Government contractor. See Contractor.
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