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Matthew Fleharty

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Everything posted by Matthew Fleharty

  1. Invoicing for unworked hours under a FFP TO

    If this contract is for severable services and the contractor failed to perform those services for an entire month then subsequently submitted an invoice for that month, that could be a violation of the False Claims Act, 31 U.S. Code § 3729 (reference Holt and Klass, "Implied Certification Under the False Claim Act," Public Contract Law Journal (Fall 2011): Without reading your contract and knowing what supporting documentation may be available, I can’t give you a definitive answer; however, I can say that the Government has more options available to address non-performance than merely rating the contractor poorly in CPARS (even if the contract is FFP). One caution: the number of hours worked is likely irrelevant as you probably did not contract for a certain number of hours (regardless of the “estimates” you mention in your post). What is likely relevant are the contract’s requirements: if the Government contracted for X, Y, and Z services and the contractor failed to perform X, Y, and Z services, there is a problem; however, if the contractor performed X, Y, and Z services in half the “estimated” time, that sounds like a job well done to me.
  2. Sealed bid- Late Price Modification

    Whether it was the "initial" bid or not has no bearing on whether the bid was late. Consider if the company withdrew their "initial" bid (asked for it back) and then resubmitted the same bid without changing anything 4 minutes after the time specified (as alleged). The "initial" bid would then be late and cannot be considered unless it fulfills the criteria of FAR 14.304(b).
  3. BANNED! Again...

    I would be more curious, but I had the unfortunate experience of reading similarly unintelligible posts during Latvian's brief stint on WIFCON...
  4. I'm currently on the hunt for new reading material and I figured while I try to help myself, why not help others. For those also looking for something to read related to contracting, a list that I have found helpful compiled by Vern can be found here (www.wifcon.com/anal/RecommendedReading.pdf). Similarly, I'm sure other members of this community have books that they share when asked for recommendations, but haven't taken the time to compile a list (I'm guilty myself) so I'd like to ask the Wifcon members for a simple, easy request: Provide just one recommendation for a book that would be beneficial for a contracting professional to read. I'll start: My recommendation is Thinking, Fast and Slow by Daniel Kahneman (https://www.amazon.com/Thinking-Fast-Slow-Daniel-Kahneman/dp/0374533555). In a career field where making sound decisions is a critical trait, one should understand how the mind works, how it can deceive us, how to recognize those situations, and how to adjust accordingly. What you'll learn from this book is as useful (if not more) in life as it is in contracting. What's yours?
  5. Invoicing

    Fair points Vern - I should have read more skeptically given that the article was an opinion piece, also sloppy behavior on my part.
  6. Invoicing

    I'll second Vern's point of order. For those of you who may think that his point of order is nitpicky, read George Orwell's essay Politics and the English Language (attached to this post) and then see if you think differently. Word choice matters. See the following opinion article from the NYTimes just this morning regarding the use of the word "collusion": https://www.nytimes.com/2017/11/02/opinion/collusion-meaning-trump-.html HonorsOrwellPoliticsEnglishLanguage.pdf
  7. System for Award Management (SAM) - Exclusions

    What do you mean by "held accountable for?" Based on your first post and this one, I think you may have a habit of worrying too much. Take a deep breath and read the following FAR excerpts until they're permanently ingrained in your contracting psyche: Don't paralyze yourself over rules that may or may not exist. Research thoroughly, but if you come up empty and your actions are reasonable, based on sound business judgment, and documented, you won't find yourself in trouble (just don't do anything illegal, unethical, or immoral). If someone does try to punish you for such actions, you're probably in the wrong organization to begin with.
  8. Privatization

    Then how can you make statements like: Vern, I have the book on order and I plan to read it while I'm stuck on planes this month flying around to a couple honeymoon destinations. I look forward to engaging in the discussion when I return at the end of the month.
  9. DPAS

    I think you might have gone a bit too far - what if the order was a cost type contract and the Government ran out of money to pay for the effort? Would the contractor(s) still be required to "meet [their] delivery date regardless?" I'd think not, so why would a subcontractor have a requirement to perform in spite of prime contractor's breach of contract? Since a breach of contract can be grounds for termination (none of us, except maybe Fara Fasat, know the terms and conditions of the subcontract), maybe this subcontractor should terminate the current order and then refuse subsequent orders under the authority of 15 USC 700.13( c )(1). Question: why wouldn't your same logic apply to the prime contractor's contractual responsibilities (one of which is timely payment for deliveries)? Your argument is essentially under rated orders, contractors have a requirement to perform contract obligations in spite of whatever hardships may arise - if we accept that premise, the prime has an obligation is to fulfill its promise under the subcontract (payment) while the subs fulfill theirs (delivery). Maybe an argument could/should be made that the prime is the one in violation of 15 USC 700 - by not paying in a timely manner the prime has not given rated orders the "preferential treatment" required by the DPA.
  10. Am I the only one who can read napolik's posts? Why does everyone continue to post key personnel clauses that govern post-award contract administration?
  11. Isn’t that the truth.
  12. A veteran of these forums (and contracting generally) provided some of the best advice I've heard regarding reading/researching the FAR - always start with the "Scope, Applicability, and Definitions" (SAD) sections of any FAR Part or Subpart...otherwise, you may very well end up relying on inapplicable rules.
  13. If you used GSA, why are you looking in FAR Parts 13, 14, and 15 when FAR 8.404(a) states: Maybe you'll find the answer to your question somewhere under FAR Subpart 8.4. Also, this topic should be in a different sub-forum (probably Contract Award Process)...
  14. IDIQ Decision

    From last year's NDAA (the DFARS does not currently reflect these changes):
  15. IDIQ Decision

    Where do you get this idea that the CO is some almighty with unilateral authority to do whatever he/she pleases? The CO is only a CO because he/she has a certificate of appointment from some higher authority - usually in the case of UCAs, that higher authority is also the CO’s clearance authority and the CO has to obtain that individual’s approval prior to definitizing the contract action (per the regulations, local procedures, AND to keep his/her certificate of appointment and job). That clearance authority typically requires field pricing assistance whenever the DFARS PGI says the CO should obtain it. So foregoing field pricing assistance isn’t necessarily a choice the CO can make on his/her own.
  16. IDIQ Decision

    I guess that means the contractor has no responsibility to negotiate in good faith, provide timely counter offers, etc. This is the same garbage I heard once in negotiations: Contractor: "We submitted a proposal with cost and pricing data, so the price is the price." Government: "Well, we analyzed your proposal/data and found these mistakes in your proposal. We also disagree with the analysis in these BoEs. Therefore, we think the fair and reasonable price is actually lower than what you proposed." Contractor: "Well, we put a lot of time into that proposal and we submitted cost and pricing data, so the price is the price." Government: "Well, we would like to discuss our findings, ask some questions, and work towards reaching agreement on what a fair and reasonable price is..." Contractor: "What more do you want from us?! It's all in the proposal and the data. The price is the price." I suspect you know this, but just in case, when a UCA is in place, the two parties have yet to reach an agreement on the full terms and conditions of the contract (that's why it is called an "undefinitized contract action"). Now this is the part where you seem to be on an island with your bandwagon: when two parties have not reached an agreement, both parties have the responsibility to negotiate in good faith until they reach an agreement (or agree to go their separate ways). A CO/PM cannot do that on their own and it is naïve to think otherwise...by it's very nature, an agreement requires a responsible/authorized individual from each party and the CO/PM only represent one of the two parties (think of it as a mathematical equation: Government Concurrence + Contractor Concurrence = Agreement). The qualifying proposal will probably have errors and will certainly have areas that the Government takes exception to - when that happens, if we accept your proposition, the contractor would have no responsibility to engage the Government in discussions over their findings and disagreements. How is that productive? Agreement would be impossible, so...on this island with your bandwagon, it seems contractors would merely submit qualifying proposals and then Contracting Officers, "with the approval of the head of the contracting activity, [would] determine a reasonable price or fee...subject to Contractor appeal as provided in the Disputes clause" (DFARS 252.217-7027( c ))...I'm not sure that's preferable to the status quo, but you've yet to provide a sound argument as to why that would be better than negotiations (even when they experience a delay in reaching agreement) or why prohibiting UCAs in the fourth quarter or holding COs and PMs personally liable are good policies. Just to see if your views are consistent, should members of the contractor's team be held personally liable for failure to submit a qualifying proposal IAW the definitization schedule?
  17. IDIQ Decision

    Because the failure to definitize in accordance with statute is always solely the fault of the COs and PMs... This is the type of reactionary behavior that, if it catches on and snowballs, would result in poor acquisition policy (though I'll gladly eat these words if you provide a sound argument for your "bandwagon").
  18. I don't know why the FAR should not instruct requiring activities...it instructs agencies, HCAs, SPEs, etc. in addition to contracting officers. Someone on that team needs a reminder that the FAR is not merely Contracting's regulation, but the entire Acquisition Team's. In addition to FAR 1.102-4( e ), see FAR 1.102( c ) which defines the Acquisition Team: That aside, I don't think this is a substantive change - if the contracting officer "shall obtain" something, that means some entity will still need to prepare and provide that something...
  19. IDIQ Decision

    Well said Vern.
  20. IDIQ Decision

    While tongue in cheek, anyone reading this should heed the lesson - without the authority to make the decision, a good idea will go to waste unless the you have the ability to convince the other party that the idea is, in fact, good. You may have to try by speaking, writing, or briefing (and that medium will likely be chosen for you). Practice those skills so that when you have a good idea, you'll be ready. If for some reason you feel you're inadequate or unlikely to succeed (you may lack the trust or "political capital"), have the humility to find someone who is and let them help (by pitching the idea on your behalf, drafting the letter/email/document, or reviewing your work) so that the good idea is more likely to be accepted.
  21. Multiple-Year Funding

    Three individuals have reached what I also think is the right conclusion so I'll add my voice to the chorus. The exception to utilize an appropriation for severable services beyond its period of availability was passed specifically for annual appropriations, not multiple year appropriations, (as evidenced by the language "a fiscal year") in order to allow agencies reliant on annual appropriations more flexibility for funding contracts for severable services. As a result, it had/has no impact on the use of multiple year appropriations. Do the acquisition community a favor by saving and circulating the GAO letter (B-317636) and the corresponding analysis/conclusion amongst your fellow acquisition professionals - from my own experiences, this nuance is not widely understood as I've heard this question before on multiple occasions.
  22. IDIQ Decision

    That wouldn't work - if you're trying to establish that acquisition outcomes for awards made in September are "weak" that requires a basis for comparison (worse than what?). If you only review/sample acquisitions in September, you'll only be able to compare them to one another which wouldn't allow you to properly test the hypothesis.
  23. IDIQ Decision

    This wouldn't be unique to government contracting. See the following: https://hbr.org/2017/08/the-end-of-quarter-sales-rush-costs-companies-money
  24. Let's not forget that while size (or quantity) can increase complexity, complexity is also a function of clarity (or quality). I'd encourage anyone concerned with FAR complexity to visit http://www.plainlanguage.gov/ and read the "Federal Plain Language Guidelines." Those who do will likely find him/herself wondering what the FAR (and other Government regulations/documents) might look like if they followed such guidelines.
  25. Waiver of Amounts Due the Government

    How does FAR 1.602-2 override FAR 32.610?
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