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Everything posted by prodigalko

  1. 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. 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. 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. 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. Following a default termination or termination for convenience (either after t4d was overturned or after determination that award was improper).
  6. 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. 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. 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."
  15. ji0874, The example I had in mind when framing the issue had clearly contradictory terms to the purchase order. If the form was not contradictory or they were amendable to making it compliant I have no issue. Where the clauses contradict it is my understanding that federal law is limited, but supreme (McCullough v. Maryland). While the FAR does offer deviation from some requirements, such as a BAA waiver, the sections I had issue with have no waiver provision that I am aware of. Some examples include the following: 1. Term - the PO was for base + four years, but the terms of the Service Agreement (SA) was base + 2 years and then automatically renewing every 60 days unless terminated. 2. Payment - The payment terms differed from the payment terms in the PO with regard to invoicing, fees, payment terms, and claims. 3. Venue - it was identified as a specific state. 4. Applicable Law - identified as the laws of the state in #3. 5. Indemnification - Gov indemnifies ktr in an unlimited manner. In the hypothetical I would see any contracting officer modifying these terms to be improper, and exceeding their authority, if they did not follow a waiver process defined in the FAR. I find acceptance of such clauses to be dubious because the federal law will be the applicable law - after probably some back and forth at the district court over standing and venue. For example, I can sign an agreement with a company stating that the venue and applicable law will be the fictional state of "Madison", but in a claim the Contract Disputes Act of 1978 will govern - not the claim terms in the agreement, and so on with regard to the parts of the FAR as applicable. I found a different example the other day, but advance payment works as contractors like to change payment terms to advance payment; however, contracting officers lack the authority to make this change without hca approval. Johnson Mgmt. Group CFC, Inc. v. Martinez, 308 F.3d 1245. I am hesitant to accept/incorporate their document because it will become part of the complete integration of the agreement, and while the federal law is supreme, it would definitely create some issues when a dispute arises (the contractor could argue that I clearly meant to go with their terms, or I would not have included them). Adding it and knowing that it does not apply (or that they would lose in court) is not an argument I think any attorney would encourage because it could be used to make an argument that the government signed the agreement acting in "bad faith", or at least not in a manner "above reproach". Update: Apparently I was wrong about the court following the government clauses exclusively. If you are going to COFC the contractor may be successful enforcing their clauses. See DMS Imaging Inc. v. United States, U.S. Court of Federal Claims No. 12–204C, April 30, 2014 available at https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2012cv0204-46-0. This article is outside counsel encouraging contractors to include their terms because they may be used as evidence of the complete integration and therefore could be enforced in a dispute.
  16. What would you do if you came across a large contractor that refused - at the highest level - to accept a government purchase order without having the government sign a contradictory and dubious commercial form("services agreement")? Specifically the commercial form was written to the UCC and references state law/venue (different than the performance location and state), payment terms, performance terms, and other terms that differ from federal practice and the issued federal purchase order. How have others solved this problem? I can see a few ways to do this, but am thinking that I might be missing something. 1. Tailor the contractor form until all conflicting terms are removed. This seems like the most difficult to get completed on the contractor side and is hampered by the government's inability to compromise. 2. Use non-appropriated funds so that less terms conflict and tailor as necessary. 3. Use a concessionaire contract so that the contractor is in charge of payment, fees and some of the conflicting terms. If the contractor does not capitulate despite the clearly contradictory terms and the fact that the federal law in the government purchase order supersedes the UCC in the contractor form I am at a loss. Thanks in advance.
  17. The GSA contracting officer should be involved and legal, possibly from both offices.
  18. It will really be hard to know what you are competitive for in the DC area without being here. Many contractors - for various reasons - do not have the capability to recruit someone until the position exists (either after contract award or through vacancy). It sounds like there is some bias against Acquisition Support positions, which means that many positions may not be considered. Regarding positions that would be open - Contracts Manager, Subcontracts Manager, Acquisition Manager, etc - you may not be competitive without some additional certification (CPCM, CFCM, PmP, CIPP, CIPM) or direct experience in the field. Instead of a DAWIA or FAC-C some private companies tend to prefer other certifications because their employees are unable to get the government only certifications. If you are really interested in moving up and out there is no reason not to pursue the next grade up in DC. If you do not like the position then you will be local and will have a better understanding of the local market, and you will also have a better chance to network (through work, NCMA, PMI, or other groups) and learn about the positions that may be a good fit. If you are not competitive for the next grade up in DC, you may not be competitive for the best private positions, which is what it sounds like folks are trying to target. Many positions over 150k (like Mustang Bob mentioned) will really want quite a bit out of you (Supervisory, 25% or more travel,50-60+ hours weekly, 24/7 availability, significant responsibility and accountability, leading very large change initiatives). So you are then left with position in the 100-150k range, but more commonly in the 100-125k range. Even in the 100-125k range you are going to be competing with some very qualified people (retired 1102's, current/former JD's, retired military, and individuals that spend their career in the field/company). Without something unique to stand out or lots of direct experience it will be difficult. With that said if you are getting a lot of interest and have a lot of direct experience it is not unrealistic to be in the 125+ range with close to ten years of experience, but there is usually a catch. If you follow Vern's advice on developing yourself in the other threads I think you would be very competitive, but the reality may be that you are not targeting the positions that are a good fit (for the folks that are not hearing back). If you are able, get some feedback on what is missing from your resume that they want to see. If recruiters will not tell you, then ask friends and people you respect. However, on a final note I have had some bad experiences with accepting a high salary (without enough research or asking enough questions). I would suggest looking first to see if the company/work is a good fit and you are learning and developing yourself. You may succeed in getting the paycheck you are looking for only to find out that you cannot continue on at the company for other reasons. Harvard Business Review has some good articles on general business advice and red flags to look for when starting Senior/Executive Management roles.
  19. If the contracting officer satisfied everything in FAR 9.105-1(c ) and documented proof in accordance 9.105-2(b ), then no formal determination is required under 9.105-2(a). The signature on the contract is a determination. If the requirements of 9.105-1© were not met then you are in the area between where a determination was made - based on the signature - but it was not documented in accordance with 9.105-2(b ). I am teleworking today so I do not have access to my library to see if there are on point cases, but I would be surprised if there were not any. As a remedial action it may be a good idea to run the checks now and document (and conduct training/issue policy to avoid the issue in the future) to show that the mistake was identified and proactively handled.
  20. As someone who has previously tried and failed to effect change at agencies I have been at, I am now a big fan of the Organizational Project Management Maturity Model (OPM3). Not necessarily the details, but the concept of benchmarking, certification (training and external validation), and reassessment seems to be a sound and valid way to improve an organization. While the certification may or may not indicate success, the effort of training and developing indivdiuals is where I have found the value in this process (as a student and instructor). My current position is the only one where I have pursued such a structured approach to changing an organization, but change management at the small agency level is what I am hoping to learn in my current position. If an OPM3 approach were undertaken across the career field (without the myopia of the current DAU and FAC-C refresh) with focus on relevant specializations I think some solid proficiency could be developed in the career field. I do not profess to know enough to be knowledgeable about the best specializations to use, but it does seem like the old categories of negotiator, TCO, ACO and others could be a starting place. It may also help to avoid the hiring of folks that only have systems or R&D skills into leading an operational shop, or vice versa. While there will always be some individuals that do not want to change, there is unprecedented opportunity in the number of folks that will be retiring (assuming their positions are backfilled). As identified above, there are certain things you cannot fix (uncertainty of funding/legislature, brain drain, individuals leaving civil service for personal reasons), but systematic approach to developing talent with more specialization than the current Level I, II, or III may do the career field some good. On a personal level I have nothing to add to Vern's suggestions, except maybe to take some introductory law classes or teach yourself in addition to the regular educational/professional development. Regarding my teach yourself comment check out the examples and explanations book in a field and then the best treatise. That should give you a great foundation, assuming you keep up to date on new law and whether the seminal cases you look to are still good law (or dicta). In my experience law school is a lot of teaching yourself.
  21. I would suggest contacting the GSA contracting officer to get their thoughts on this. They should have a good idea if 32.206(g) is standard commercial practice ("installment payments for the item are either customary or are authorized in accordance with agency procedures"). They may also have negotiated the schedule rates based on whether they thought that this type of financing is customary (and may have included the clause in the schedule terms and conditions), or may have decided that it was not customary. If you have not previously contacted a GSA contracting officer just put the schedule number into the GSA elibrary website and it will display as the government poc phone and email. You can also check the T&C's on the same page and expiration date. If you have trouble getting them find a contract in the same schedule with a different poc and they should be able to help. If all else fails you can call their help desk and they will get you someone.
  22. I wanted to see if anyone else has been following the most recent Caddell Construction bid protest of a Department of State award. Bob already has it posted and it is an interesting read. I am curious if this might be the approach that State uses with future disputes over Small Business Act overseas application (sorry for bringing it up again, it is my first time seeing an agency not take GAO's recommendation), or if any other Agencies use this approach to ignore GAO recommendations.
  23. I had different firms demand the abstract of proposals and every other proposal citing FOIA. That is an interesting take. I have not done construction using sealed bidding procedures before (my understanding is that it is more commonly used by state and municipal entities). I had thought that the proposals would be protected under the prohibition above. I was understanding this in line with the post-award debriefing that states that point by point comparisons are prohibited according to FA 15.506(e). I had not thought to distinguish the line item or overall pricing with the proposal.
  24. I prepared informal abstracts in excel and word when determining the competitive range and for use in the source selection documentation. This was not a sealed bid so I did not record them on the optional form or think that disclosure would be proper. I wanted to make sure that I was not missing any requirement to disclose other unsuccessful vendor's total price if required.
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