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prodigalko

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  1. Can an agency contract out the COR/COTR job?

    A better (easier, possibly more productive) question might be how would you contract out the COR function while complying with " all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals . . . "(FAR 1.602-1(b))?
  2. Can an agency contract out the COR/COTR job?

    This ought to be fun. FAR 1.602-2(d) is below. (1) says shall unless otherwise authorized. There are lots of issues with this and reports that you can find generally and specifically regarding when contractor's were appointed as COR's in overseas environments. Short answer - check your agency supplement. I am sure that others will chime in with the long answer soon. "(d) Designate and authorize, in writing and in accordance with agency procedures, a contracting officer’s representative (COR) on all contracts and orders other than those that are firm-fixed price, and for firm-fixed-price contracts and orders as appropriate, unless the contracting officer retains and executes the COR duties. See 7.104(e). A COR— (1) Shall be a Government employee, unless otherwise authorized in agency regulations; (2) Shall be certified and maintain certification in accordance with the current Office of Management and Budget memorandum on the Federal Acquisition Certification for Contracting Officer Representatives (FAC-COR) guidance, or for DoD, in accordance with the current applicable DoD policy guidance; (3) Shall be qualified by training and experience commensurate with the responsibilities to be delegated in accordance with agency procedures; (4) May not be delegated responsibility to perform functions that have been delegated under 42.202 to a contract administration office, but may be assigned some duties at 42.302 by the contracting officer; (5) Has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions; (6) Shall be nominated either by the requiring activity or in accordance with agency procedures; and (7) Shall be designated in writing, with copies furnished to the contractor and the contract administration office— (i) Specifying the extent of the COR’s authority to act on behalf of the contracting officer; (ii) Identifying the limitations on the COR’s authority; (iii) Specifying the period covered by the designation; (iv) Stating the authority is not redelegable; and (v) Stating that the COR may be personally liable for unauthorized acts."
  3. Replacement Contracts Guidance

    My situation actually just became moot. I was relying on the Redbook, but a finance individual (below the comptroller) in the chain decided they were not comfortable with it (despite the fact that the comptroller's signature is required on the PR to certify prior year funds) and effectively killed it by spreading a lack of understanding. I do not know that there is much that can be done when individuals will not read the legal treatise for their career field published by the Comptroller General. You could write a legal memo (question presented, applicable law, law analogically applied to your facts, determination), but I usually avoid this because I'm not admitted to the bar and do not know how it would be received. As a law student they hammer us pretty hard about not practicing without a license, but legal reasoning is pretty important to a contracting officer, so the line is difficult. I think the only real approach in that instance is to send case law and citations and hope that the attorney has time and effort to read them, do their own research, and make a decision. Regarding undue delay I think the only guidance you will find is in cases like JI cited above that deal with reasonable time to award to the next low, not specifically with replacement contracts. In that instance I think that a case could be made that 100 days is the limit because that is as long as protest funds are available, and is longer than the 60 days for claims. However, based on interactions where I have picked up an overdue or soon to be overdue claim it does not seem unreasonable to delay a claim response if necessary; although this may require an attorney to explain to the COFC why it's late. So what is the definition of "undue delay"? I would think two years would be hard to justify, but it's likely to be driven by the facts of the case. Two years on a multi-year contract is a lot different than on a purchase order with a 30 day delivery, or even a service contract with a six month PoP; and two years could be entirely reasonable on a systems contract for production that is ten or twenty years.
  4. Replacement Contracts Guidance

    There is a hyperlink to the CAD in my first post after the page citation. To add a link just highlight the word and then click the two chains linked together icon to the right of the underline icon in post dialogue, then put in the address of the link or paste and hit "insert into post". This should be the same as gmail.
  5. Replacement Contracts Guidance

    Following a default termination or termination for convenience (either after t4d was overturned or after determination that award was improper).
  6. Subject Matter Experts vs true expertise

    I think Boof's funding issue is quite prescient. When you have senior leaders mandating a 25% cut in FTE's or otherwise reducing the manpower below realistic levels it is very difficult to get all the work done (and done competently) without hiring professional services to assist; especially when contract dollars are provided to soften the blow of the FTE decrease. This is compounded by poor career field management (mainly DoD) resulting in large decreases in average years of experience in any given office over the last ten years.
  7. Replacement Contracts Guidance

    General guidance would be helpful. I do not have specific questions, but I have not done this before and was just curious if anyone had any experience or lessons learned.
  8. I am looking for guidance regarding replacement contracts. As I am reading the GAO Redbook and Contract Attorney's Deskbook (pages 24-23 to 24-24 at this link) I am envisioning the process below ( Funding of Replacement Contracts, B-232616, 68 Comp. Gen. 158 (1988); Navy, Replacement Contract, B-238548, 70 Comp. Gen. 230 (1991): 1. Issue determination and finding regarding whether award was made erroneously (was improper). (if yes then proceed to step 2) 2. Determine if award was made in good faith. (if yes then proceed to step 3) 3. Determine if bona fide need existed at time of award and still exists. (if yes proceed to step 4) 4. Determine if size and scope of the potential contract and previous contract are the same. (if yes proceed to step 5) 5. Issue new contract without undue delay. The timeline is not clear here, but if you take the protest funds availability as guidance, then 101 days is too long. I did not see any new GAO cases that would modify the doctrine or its application, but may have missed something. The only guidance I could find other than the redbook and CAD, was DOE fiscal guidance. Thank you.
  9. I guess my follow up would be, "How would you address this during an audit?".
  10. After reading the GAO report 674849 regarding extensions utilizing 52.217-8 exceeding the limitations of the clause, I was interested in a question that was not addressed in the report. Specifically, if a predecessor CO (no longer at agency) exercises an option for one year (extends the term), but mistakenly cites 52.217-8 on the SF30, but otherwise acts as if they had cited 52.217-9, can performance continue? Facts supporting intention to extend term: informal email to the contractor, but no formal notice as required by 52.217-9; utilization of rates for next option year (not at current rates); continuation of performance past six months; 12 month extension completed in contract writing system. Contract is currently outside of limitations of 52.217-8, but not 52.217-9, due to extension beyond six months, but there is remaining time on the latter clause. While previous threads have outlined that a contract can continue past the period of performance if all the obligations of either party have not been met (before final payment), I am interested in the ability of a successive CO to continue utilizing the contract and whether that is sound. Possible approaches to the issue - from Contract Attorney's Deskbook ch. 21 "Constructive Changes" - Adopt; Reject; Adopt, but deny change exists. 1. Treat the mutual mistake on the part of the CO and the contractor (who keeps performing as if 52.217-9) as constructive modification to the contract. Modification to correct the mistake and proceed. This relies on the common law detrimental reliance and extrinsic evidence being allowed in despite patent ambiguity of incorrect clause citation. This seems like the more pragmatic answer. 2. Treat the extension as improper and re-solicit. Due to the fact that 52.217-8 was already used, and for a period longer than six months, a break in service will result. This seems like the more correct answer given the patent ambiguity and resulting duty of the contractor to seek clarification. If extrinsic evidence is excluded this is also the likely result. 3. It does not seem like adopting the change, but denying a change is an option here. Given that no dispute currently exists and both sides agree that the term was extended (through continued ordering and performance), is it improper to proceed under approach 1? Utilizing the approach from the GAO report cited above it seems like it may be appropriate after corrective action including training (despite the responsible employee's departure). It was unclear in the report if GAO directed any action for contracts that were currently being performed, or in the future should the situation arise again. This avoids an interruption in performance, and a possible loss (based on common law and contra-proferentum, despite patent ambiguity) in case of dispute.
  11. Hi Napolik. Thanks for the desk reference text. I have used it in the past, but usually default to the administration of government contracts or other GWU treatises because the desk references refer to them. Thanks Joel that is great. I guess it's too much of a hassle to publish a treatise.
  12. I know that there are a few government construction contracts books out there, but wanted to see if anyone has a suggestion, or maybe experience using the available texts. Specifically I am interested texts expanding on areas where a solution or requirement is unique to construction and may help resolve a dispute. Thanks in advance. Some of the resources I found. Smith Currie and Hancock (by AGC) Federal Government Construction Contracts (by ABA) Federal Government Construction Contracts (Bastianelli)
  13. I am having some trouble locating a treatise that captures SBA OHA decisions and puts them in one place. I appreciate any suggestions.
  14. FAR 17.5 Interagency Acquisitions

    In NPS we follow the DOI guide , but it's pretty thin and really just specifies how to follow 17.5. In practice there is a pretty simple D&F that we accomplish for economy act actions (I haven't yet received good guidance, but I generally try to find a cfr regulation giving the agency we are using specific authority, ie FHWA for highway work. The gist of the guide that we follow is that we have to have some terms in place. It does not matter where the terms are, or what document they are in, but it really focuses on the responsibilities of each party and dispute resolution (FAR 17.503(c )). Have you checked out the Army Interagency Agreement Reference Tool? I think you may be looking for "executive agency" instead of "agency", which is defined in 2.101 as follows: "“Executive agency” means an executive department, a military department, or any independent establishment within the meaning of 5 U.S.C.101, 102, and 104(1), respectively, and any wholly owned Government corporation within the meaning of 31 U.S.C. 9101."
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