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Neil Roberts

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About Neil Roberts

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    Southern California/Nationwide
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    Travel. Providing comments and references for educational purposes. No legal advice is given or intended.

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  1. . You can argue whatever you think is best. Not clear to me what situation is contemplated.The 212 and 215 clauses would not normally be included in the same contract. It sounds like you concerned only with a contemplated "broad request" from the Comptroller General under a 212 clause included in a contract, and you are questioning what records could be included in the examination. If the 212 clause is included in the contract, the 215 clause is not relevant. However, if it was, the definition of records appear to me to be essentially the same in -5 and -2 clauses with respect to the Comptroller General examination. I don't seem to grasp exactly what you see as the issue there, which I thought you seem to have alluded to above as an issue. My view is that Clause 212 (d)(3) does "talk about" records and (d)(1) about transactions. Your view above seems to be different when you state "212 only talks about transactions." The definition of records in 212 is so broad that any record that is pertinent involving transactions related to the contract would be subject to examination. As you say, a lot turn on what the transaction is. Above you seem to state that labor rates and internal cost are not transactions related to the contract. I see those items as records more than transactions.The Comptroller examination request should define what transaction is being examined. To promise another party what they are in advance seems risky. For example, if the Comptroller perhaps was interested in whether a commercial firm hired a former government employee as its officer in an impermissible way, and it perhaps involved unlawful payments which may have been included in the firms commercial item costs. To me, that salary, overhead or direct costs, etc, should be records that are subject to examination by the Comptroller relative to the hiring transaction.
  2. Agreed about where you are heading. My take is as follows: Commercial deals can get a Comptroller examination but negotiated deals can get a Contracting Officer and/or Comptroller examination. I am finding it difficult to argue that a transaction is excluded from examination by the Contracting Officer because I think it is a document or other data record. The Contracting Officer review is more expansive because of the negotiated transaction. I think FAR writers were probably just trying to incorporate in (d) the statutory Comptroller examination language per 50 USC 1433, and then came up with their own language in the other paragraphs which they thought was better for overall understanding by Contracting Officers and Contractors in negotiated contracts.
  3. I worked for a major contractor that studied the concept and found working from home it to be profitable and productive to do so for entire groups of overhead employees. It closed and perhaps sold related buildings...no more brick and mortar overhead costs, for example. About 5 years later, it reverse itself and required those employees to report to company facilities. By that time, some employees moved away from company facilities and moved on with other things in their lives such that it was a hardship and disruption to go back to a nearby facility. I recall being told the major rationale was Silicon Valley employees don't do that because they found face to face collaboration to be essential. I personally thought that was not the prime motive. .
  4. Charlotte, would you agree that your management has discretion for initiatives that are not illegal or immoral, or done in bad faith or unreasonable, etc?
  5. Is FAR 52.216-18 included in the contract? Have task orders already been issued? When does the current POP end? Is the update being requested to be applicable via Task Orders on or after a certain date or by change notice to the contract? Would you agree to send the Contract Holders a summary of the contemplated changes for comment about acceptance via a Request for Information? Do you have this management request in writing?
  6. Assuming FAR 52.212-4 is included in the contract, there is an overpayment remedy (refund of money) if interim payments were not included in the terms and conditions. Potentially there is also a termination for cause remedy related to any overpayment not repaid by the Contractor. If Alternate I was included in the contract in lieu of the basic clause, you can review it and see if that provides some remedies. Just saying, read the entire contract an see if there is something other than stop work.
  7. One reason being that stop work concept is generally not a commercial market practice. See 12.301(d) and 12.302.
  8. I assume you are talking about commercial items? If so, see FAR 12.301(e) and 12.302 for discretionary use of FAR provisions and clauses.
  9. Could you please elaborate about what this has to do with the consent clause? What was the context of discussion with the attorney about in detail, in relation to the consent clause language? Thanks.
  10. Assuming the word "firm" means the prime contractor, my answer to this question is "yes." Assuming the word "firm" means the subcontractor, where the subcontractor is modifying and integrating non-commercial items and such work is not a commercial item or service, my answer is as follows: "Yes," the prime may subcontract with commercial item terms and conditions in accordance with FAR 52.244-6, but doing so would tend to miss prime contract terms that should be flowed for non-commercial items, Example, current cost or pricing data. This practice may be questioned as a breach of the prime contract terms and conditions.
  11. A prime contract for non-commercial items is required to include 52.244-6 Subcontracts for Commercial Items. The prime contractor shall include such clause in subcontracts for commercial items and shall to the maximum extent practicable, incorporate commercial items as components. Per this clause, prime contractors may include in such contracts a minimal number of additional clauses necessary to satisfy its [prime] contractual obligations. Also see DFARS 252.244-7000.
  12. Are you looking for an excuse to ignore your legal counsels advice? Why don't you just do what legal counsel advised you could do?
  13. I am surprised it looks to me that the government acquisition process does not seem to include a process that makes it clear what statutory requirements apply to the solicitation/award even when FAR is not applicable.
  14. I think GAO, Ji, Oja, and myself seem to agree that there are federal statutes that may apply even if the FAR implementation of them may not apply in this case. I contend they should not be automatically excluded from application just because FAR may not apply. Oja's research did not seem to turn up a lot of deep analysis. My example: Is it ok to award a "no cost" contract to a debarred company that openly discriminates in the workplace and defend that action my alleging that those concepts do not apply because the contractor does not have a FAR contract and is therefore not a federal contractor?
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