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REA'n Maker

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About REA'n Maker

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  1. So much for my attempts to shut down a thread that had devolved into an argument over rather meaningless semantics... For the record: I have always understood the process and maintain the exact same position I laid out in my first post. In my travels implementing PD2 across DoD, I did in fact run into the exact case you described, specifically, 1102's attempting to Release IDIQs without funding, whereupon the award failed system validation because it violated DoD policy, and was always halted as a business practice when it was discovered. It is also common practice to obligate $1 on an IDIQ IDV (and I can point you to the exact vehicles if you're interested), but that doesn't mean that it's a good idea. Regardless, it's not an "administrative obligation" to issue an IDIQ without a funds cite....and I have no doubt that Vern has a deus ex machina up his sleeve regarding unfunded IDIQs, but hey, that's Federal contracting - there's always a waiver or exemption lurking somewhere!
  2. Like I said, a contract is awarded, and funds are obligated. That's not 'administrative'. The distinction between 'authorizing' and 'physically recording' an obligation is meaningless. Does the CO also 'administratively sign a contract', considering that a wet signature on an SF1449 doesn't physically enter an obligation on the books? I do understand what you are saying, and you are certainly correct, I just don't understand why the mode of the accounting entry has any practical relevance, or why we would even be discussing (e.g.) personnel or entitlement funding processes. I suggest we both accept each other's positions and move on. Cheers!
  3. "Administrative obligation" is a contradiction in terms. I would be greatly "obliged" if you would point me to the authority, agency-level or otherwise, which allows non-COs to obligate funds. I understand Comptrollers being "creative" to protect funds, but obligating funds means you have created a liability on the part of the government in regard to the other contracting party. To whom is the government obligated in your "standard and required procedure"?
  4. Truth Decay

    Just for the record, "Fake News" was coined to describe Stephen Colbert's and Jon Stewart's shtick back in 2011: The Stewart / Colbert Effect: Essays on the Real Impacts of Fake News "For millions of people, The Daily Show and The Colbert Report have become a favorite source of news, information, and political commentary." https://www.amazon.com/Stewart-Colbert-Effect-Essays-Impacts/dp/0786458860 Irony abounds. (My personal favorite bit of nonsense regarding today's state of journalism is that "Completely screwing up the most basic aspects of your job is a non-issue as long as you correct it when someone else points it out". Apparently the "professional standards" of today's journalists are below those of carnival ride operators).
  5. Hmmm. Is that the contracting version of "sort-of pregnant"?
  6. 2nd Tier Sub Labor Violations

    Your recourse is whatever is allowed by your subcontract with the Tier 1 sub. From your perspective, the Tier 2 is synonymous with the Tier 1; Tier 2 fails, you ding Tier 1.
  7. You split revenue, not profit/margin. Revenue is based on rates x hours. Your rate should include a profit/margin component, based on your internal accounting practices and profit/margin goals ("loaded rate"). FTE% will only match revenue% if every FTE has an identical loaded rate, so don't confuse the two; they CAN be equal but they don't have to be (and probably won't be). Your task is to align the 60/40 nominal revenue split with the FTEs required to accomplish the task. Your final agreement with the prime will be a horse-trading exercise to get the numbers and FTEs to line up (e.g., you can't split an FTE so you have to round to the nearest FTE and then figure out the resulting revenue split). Don't sign anything final until you at least do a preliminary analysis along these lines. Eazy Peazy.
  8. Note that the FAR defines "CO" as an individual with "... the authority to make and administer contracts and to make determinations and findings with respect to contracts", so I would say you do have unlimited authority to change other CO's contracts anytime you want, within reason (i.e., your authority must be derived from the same source as the other CO). COs change/back each other up all the time, with no 'CO novation' necessary. I don't disagree with the gist of your point; however, I think that professional courtesy is what drives not messing in your colleague's business, not legal implications. So, for example, if your unlimited CO warrant allows you award a $100M contract , and your FAC-COR I allows you to administer a $1M contract, if you were to award and administer the contract as CO, your authority to administer the contract would be unlimited, but you wouldn't be eligible to act as a COR for the same contract? Doesn't that seem kind of absurd?
  9. The Department of Commerce has a Task Order Manager (TOM), who is delegated authority over specifically-enumerated TOs, usually in conjunction with multi-award IDVs (COR delegation is at the IDV level). Bonus points are awarded if you are a TOM whose given name is "Tom". Related question: Does a CO who has COR responsibilities require a delegation from the contract CO? (e.g., a CO-COR who has oversight of contractors in a government procurement shop). I say 'yes' as a matter of administrative clarity, but *some* on my team have argued that such a delegation is redundant and unnecessary. The main difference in my mind is that the CO would not be required to be certified as a COR, assuming their FAC-C/DAWIA certification was valid.
  10. Specific Performance

    Commercial real estate contracts, yes? It may seem that way to the overtly pedantic, but the topic clearly goes to the whole meaning of a contract, and what you can 'do' with one. Is it a document to compel action, or is it a joint agreement towards a goal? Does it show good faith and fair dealing on the part of the government to include a term such as that ? As Jamaal said, it IS used as a contract term, but within very specific applications. The conclusion is clearly that Specific Performance is not a contractual remedy in the general sense. So why and why not? It goes to the very heart of those 5 words which define the CO's mission: "In the Government's best interests". We can't spend all of our time yammering over the treatment of indirect overheads.
  11. Sealed bid- Late Price Modification

    Is that sequence of events truly accurate?? Who heard the protest? Who directed the "corrective action" of accepting an altered, late bid (as Matthew points out, it was late regardless of "version")? Were both bids low?
  12. Tracking LOE in FFP subcontracts

    ....but you said above you had a CPFF prime contract. What is your rationale for invoking Part 16.202 in regard to your subcontract when it has no relevance to your prime contract? It sounds like the COR is asking that you flow the requirement to track LOE down to the sub. If you have a contract that requires you to track by LOE, you need to track by LOE, subcontractor or no. Whether that impacts your agreement with your sub is a question only you can answer. It's up to you to align any mismatches between contracts, terms, etc.
  13. CPARS comments

    COs have got to stop looking for someone or something else to justify their decision making. CPARS is the ultimate GI/GO system ever produced, and that's all it will ever be: a dump for widely disparate, ad-hoc, self-selected, perspective-based narratives, written many times by people who can barely string a sentence together (although PPIRS is technically the "dump"). Every contract failure has a context that is not universal, and needs to be judged on its own, using sound, professional judgement, with a view towards how any past failure applies to the procurement at hand. No CO worth the paper their warrant is printed on would ever say "There is no need to apply post-award contract surveillance because of the contractor's excellent CPARS assessments", yet centering an award decision on a bad CPARS rating is somehow considered logical. That's what has to change. This is not a software problem.
  14. Specific Performance

    BLUF: What vendor in their right mind would ever sign a contract which gave the CO the unilateral right to demand Specific Performance? Could the CO demand Doubleplus Specific Performance to remedy deficient Specific Performance? Risk = $$. So even if you DID get a vendor to bite on such a term, what are the chances their price would be deemed fair & reasonable? Would you compel a vendor to build an F-35? Would you want to fly that F-35?! I don't think that Efficient Breach and Specific Performance are related concepts. The remedy to an Efficient Breach is liquidated damages, which is the primary factor in the Efficient Breach decision in the first place. And if I am breaching, how could I be held to a 'Specific Performance' term in the contract I am repudiating, outside of a court decision? Also, whither T4D ? Would Specific Performance take its place, or would Specific Performance be in addition to T4D? Kudos on starting a discussion thread that doesn't involve Part 31!!! Hypotheticals like yours are much more entertaining and thought-provoking! (Coincidentally: "Big Tobacco's court-ordered ads make their debut" http://www.cnn.com/2017/11/21/health/tobacco-ads-court-order-bn/index.html)
  15. Specific Performance

    From your own source: "Most commonly ordered in cases involving real property and rare chattels." I'm guessing that it's safe to say that compelling performance isn't really a practical tool in the Government CO's toolbox. It appears that Specific Performance is primarily applicable to real property, because property tends to be unique and its value is subjective. Also, it's not something that could be built into a contract anyway (i.e., it would be the potential remedy to a legal dispute, like paying the protester's costs.) I would also add that logic dictates there would have to be a clear and unequivocal act with a definite outcome that would be compelled, such as transferring title in a land sale. Contrast that with, for example, HHS demanding Specific Performance defined as "a working Affordable Care Act web site"
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