Neil Roberts

On 11/17/2023 at 2:13 PM, Retreadfed said:

Not so fast my friend.  When I worked for the government, I successfully used government incompetence as a defense against various complaints in administrative proceedings.

The situation here would be the government employee, under oath, in a court trial, admits he or she was incompetent or inexperienced, despite the fact that he or she took this specific job. That doesn't seem like that is what you are specifically talking about. 

8 hours ago, Retreadfed said:

However, as I am sure you know, that does not mean that the suit is proper.

...and I am sure you know that filing a suit does not mean it is improper.

7 hours ago, Retreadfed said:

Neil, of course anyone can be sued by someone else at any time.  However, as I am sure you know, that does not mean that the suit is proper.  If a government employee is sued for an alleged tort done in his/her official capacity, the government can step in and file a motion to have the government substituted as the defendant.  In that case, the provisions of the Federal Tort Claims Act come into play.  Further, it would be the government who asserts the incompetence of the employee as part of its defense if it gets that far.

...and the government may not step in, claiming that the individual's conduct was so egregious as to have been out of scope to acting in an official capacity.

@retreadfed;@formerfed, several of the things you say are reasonable. I did not recommend immediate filing of anything but if an eventually come down to suing, what is wrong with the poster finding out now that there may be a legal recourse and "not just" talking to the government as a recourse? Some individuals, governments and companies become reasonable about negotiating and discussing disputes only after they are sued.

4 hours ago, joel hoffman said:

And the contractor should be raising every issue of incorrect interpretation of contract requirements to the appropriate government personnel (e.g., the QA rep’s supervisors). If a contractor sued one of our QA reps without doing that, I can guarantee they would likely never again win a best value contract award.  it could possibly become a responsibility issue and would also likely be reflected in the performance rating.

It is a good idea to put the employee and the government on notice with a letter. However I am not aware that failing to do so means the lawsuit is not permitted to be filed. This can be discussed with their attorney. I am more bothered with your guarantee. Looks like another potential lawsuit in the making.

4 hours ago, joel hoffman said:

In a conflict of interest law suit? Sure it would. That’s not conflict of interest.

Joel, this is what lawsuit I said: "tortious interference with contractual relations with the government." Admitting one is incompetent or inexperienced could result in loss of employment and injury to one's own reputation.

39 minutes ago, C Culham said:

The continuing discussion reminded me of the below.  Long decision but the portion regarding "Bad Faith" while not directly spot on may be of interest.

https://www.cbca.gov/files/decisions/2013/HYATT_03-15-13_1789, 1845, 1929, 1930__ALK_SERVICES_INC.PDF

I don't think it was smart of the government to assign this person the job they did. It has the appearance of being inappropriate. I think a case can be made against the government. It does not look like an accident that:

"The person was a Site Safety and Health Officer (SSHO) responsible for being on site during all repairs.  The individual now performs QA for the agency.  This individual now inspects the work for the same personnel he used to support on the contractor side."   

56 minutes ago, joel hoffman said:

Proving purposeful intent can be difficult…

It may just be lack of competence and/or inexperience in the job.

That might be his defense, but it would not go well for him at all to maintain such a defense.

20 hours ago, Boomer635 said:

The person was a Site Safety and Health Officer (SSHO) responsible for being on site during all repairs.  The individual now performs QA for the agency.  This individual now inspects the work for the same personnel he used to support on the contractor side.  I am hearing from the field that the great relationship we historically had with the QA, may not be as positive as it had been previously, and most inspection comments provided by this person are not supported by the scope, specs, etc.   

You may have rights to sue this person for tortious interference with contractual relations with the government. You would need to consult an attorney. In general, you would need to prove that without a factual basis, he acted in a way that was purposely meant to cause harm to your company. It is a tough road but your attorney may find a basis to send a letter to him which could make him request a new job assignment with the government.

In my experience, consulting Agreements for advice (not providing goods or services for a government contract) are not handled by supplier management at all, but are handled by contracting personnel on the program/sell side of the business. I can't imagine an advice consultant accepting say 50-100 FAR subcontract flowdowns from the government or a prime contractor. They make no sense in context. If the work is providing goods or services required to support a government contract or subcontract, a Purchase Order or Professional Service Agreement makes sense.

Discussing a Consulting Agreement, Professional Service Agreement and Purchase Order titled document are highly dependent upon the contract language included in each. Despite that, my experience in reviewing tens of thousands subcontract deals is that I have never seen, heard or recommended a contractor doing what your company does.

12 hours ago, newtocontracting12 said:

Our prime contract does have this statement incorporated into our contract. The prime contractor is an O&M contractor operating a government facility on behalf of the government,

@newtocontractng12, so now it now appears you are a subcontractor, not a prime contractor? If that is correct. and if you have taken no steps to comply with the statement above which appears to be applicable to your company, and with respect to all the questions you have had in these discussions, comments that have gone unanswered, and the apparent uncertainty/complexity of your contractual situation, perhaps your company should consider hiring an experienced government contracting/subcontracting attorney for advice as to your company's contractual rights and obligations?

@VA_CPA, it sounds like your company has the same outlook regarding disclosure of incurred/proposed cost details that you are complaining your subcontractor does.

Do they have approved forward pricing rates? Is the government maintaining cognizance over them on on ongoing basis either onsite or remotely? Have you asked the government for audit assistance of their proposal? What cost elements have been displayed in the proposal? Did the proposal include a Form SF1411 cover sheet? Would they agree to sign a certificate of current cost or pricing data certifying the certificate to your company and the government? Would they agree to a contract clause that payment of claimed cost invoices may be delayed pending government review of the amount claimed?  

@newtocontracting12 so, display the actual contract language in contract#1 that you think controls the pricing for each year and compare it to the pricing your company billed. Add it all up to see how many dollars are involved for the difference. If you want to share this information, you may get some more comments. You may be able to come to your own acceptable conclusion. It's about the actual contract language.

@newtocontracting, with respect to your terminology, the title of your post appears to be referring to what you call contract #2. The body of your post appears to be referring to facts related to what you call contract #1. The language you quote in your post regarding contract#2, does not seem to have anything to do with contract pricing for goods or services under contract #1. You would need to look at contract #1 language to determine that.   

On 10/24/2023 at 8:15 PM, newtocontracting12 said:

My main concern is the pricing was never based off of a GSA schedule as the GSA schedule did not have these fiscal years priced out at the time of award.

What do you mean saying "pricing was never based off of a GSA Schedule?" Did you receive and accept a GSA Multiple Award Schedule Contract that had no pricing at all applicable to the contract? If so, there was no contract. Whose pricing?

I am also having difficulty assessing your post due to some underlined terms that seem to need further analysis.

1. "The contract with our customer has the following language: "In the event of any inconsistency between the terms and conditions of this order..."

2. The FSS schedule has the following language in it:

"The application of any new pricing in the Seller’s GSA Multiple Award Schedule Contract will not be retroactively applied to existing transactions issued under this Agreement, but rather to any new transactions from the date the new GSA Schedule contract pricing goes into effect."

Is this language included (and/or otherwise applicable) to the GSA Award Schedule Contract? If so, does your management contend that no transactions or orders were issued under or applicable to the GSA Multiple Awards Schedule Contract initial contract document?

can you provide more detail about an unlimited PTO model?

Here is a 1 hr. free webinar on subject. https://www.thompsoncoburn.com/insights/tcle/presentation/detail/2018-12-10/the-key-personnel-requirement-in-government-solicitations

10 hours ago, ji20874 said:

you are in good company -- many, many people in the federal acquisition community do not understand FAR 13 BPAs, and they make the same mistakes that you are making.I hope this discussion helps the OP and other readers understand correct principles.

I hope readers come to their own conclusion. You and I do not agree on anything with respect to the Department of Defense DFARS (not FAR) Form that is THE subject of this posting with a background associated with FAR Part 13 and other type BPA's that result in contracts for goods or services.

4 hours ago, tjsmith1957 said:

I am working with a Prime Contractor on a program and we have submitted our proposal.

You should have received an RFP or ITQ that states the terms and conditions and reviewed it. If there were none, I would amend the proposal to add a response to what you were asked by the prime...something like, the proposed price does not include applicable taxes.

Tricky question ji. I personally for my own company, would include those clauses that apply only to the micro-purchase amount for each purchase but I would also consider what additional clauses and risks there are at $1M and take appropriate additional steps that may include additional clauses prescribed for the $1M level that would require incorporation into each purchase. That is what large contractors do. I would have the BPA reviewed by someone with $1M in authorization. Kind of getting off track here. The DOD form says what it says and appears to focus on estimated cumulative dollar amount for the deal. 

If any language in the initial BPA is invoked in any way with a call that is agreed to by the parties, that invoked language and the call is a contract. I hope you agree?

1 hour ago, C Culham said:

I fear, on the premise expressed by Joel and a pure read of paragraph l of 52.212-4 that the government is now at a disadvantage...

 

I hope your advice is not that the contract clause language should be ignored. FAR part 49 can not override the contract provision. It can fill in details not at odds with the clause language.

An example of a definition is described in the contract clause below. I do not know if this clause is found as a standard clause somewhere. The definition in this clause appears to make the Contractor responsible for identifying those personnel.

H.7 KEY PERSONNEL REQUIREMENTS

(A) Certain skilled experienced professional and/or technical personnel are essential for successful contractor accomplishment of the work to be performed under this contract. These are defined as "Key Personnel" and are those persons whose resumes were submitted for evaluation of the proposal. The contractor agrees that such personnel shall not be removed from the contract work or replaced without compliance with paragraphs (b) and (c) hereof.

(B) If one or more of the key personnel for whatever reason becomes, or is expected to become, unavailable for work under this contract for a continuous period exceeding thirty (30) work days, or is expected to devote substantially less effort to the work than indicated in the proposal or initially anticipated, the contractor shall immediately notify the Contracting Officer and shall, subject to the concurrence of the Contracting Officer or his authorized representative, promptly replace such personnel with personnel of at least substantially equal ability and qualifications.

(C) All requests for approval of substitutions hereunder must be in writing and provide a detailed explanation of the circumstances necessitating the proposed substitutions. They must contain a complete resume for the proposed substitute, and any other information requested by the Contracting Officer or needed by him to approve or disapprove the proposed substitution. The Contracting Officer or his authorized representative will evaluate such requests and promptly notify the contractor of his approval or disapproval thereof in writing.

(D) If the Contracting Officer determines that suitable and timely replacement of key personnel who have been reassigned, terminated or have otherwise become unavailable for the contract work is not reasonably forthcoming or that the resultant reduction of productive effort would be so substantial as to impair the successful completion of the contract or the services ordered, the contract may be terminated by the Contracting Officer for default or for the convenience of the Government, as appropriate, or, at the discretion of the Contracting Officer if he finds the contractor at fault for the condition, the contract price or fixed fee may be equitably adjusted downward to compensate the Government for any resultant delay, loss, or damage.

6 hours ago, C Culham said:

With regard to limits I did not do exhaustive research as I kept coming back to a BPA is not a contract which seems to be a well founded conclusion of case law.  

I know of no case that stands for the proposition that any document with a header "BPA" is automatically not a contract. One must examine the language in the document to determine whether the requirements for a contract are present. FAR Part 13 BPA's might not be a contract when initially issued, depending on the language, but eventually there is a contract if used as intended. There are other Agencies and the commercial world that may issue BPA's quite different than FAR Part 13 type. For example,If a specified price and delivery schedule is called out in the initlal BPA when issued and Seller is required to sell under those terms by the initial BPA, it may be a contract when initially issued.