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About Sunstrider

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  1. In the past, DCMA's Commercial Item Group was responsible for reviewing/making recommendations as to Commercial Item Determinations for buying commands throughout the field. The Procuring Contracting Officer was ultimately responsible for making the determination/decision. Now, based on one of DPC's newest policies, this authority has been taken away from Procuring Contracting Officers altogether. Thoughts?
  2. Assume: The Government relied upon certified cost or pricing data to award a particular contract and/or mod. The conditions under which the Government is entitled to a price adjustment for a sum certain are met. The clauses at 52.215-10 Price Reduction for Defective Certified Cost or Pricing Data and 52.215-11 Price Reduction for Defective Certified Cost or Pricing Data - Modifications were both missing due to negligence of the CO. FAR 15.407-1(b)(1) emphasizes that the above clauses entitle the Government to demand a contractual price reduction. Therefore, in the absence of these clauses, there is no remedy available in such circumstances. My question is, wouldn't the courts read in clauses 52.215-10/52.215-11 into the contract? Is the right to price reduction not always effective by operation of sovereign Government law regarding certified cost or pricing data?
  3. Yes to both questions. I do think that, considering an intended benefit of commercial contracting is increased efficiency in administration, inflexibly requiring supplemental agreement on every single contract modification is a bit impractical. I am definitely looking to learn of ways to responsibly issue unilateral mods to commercial contracts (for such circumstances I originally stated) and thereby expand my toolbox.
  4. I would also offer that in commercial contracting, the vast majority of the time those terms and conditions are agreed upon up front. There is definitely no unrestricted power to issue the change now, then close the deal later. With that in mind, assuming my personal assertion made in the OP is correct, then we are talking about negotiating/incorporating initially agreed upon circumstances in which the Government can unilaterally change commercial T&Cs, and only when such unilateral changes are already consistent with commercial industry practices within a particular market. Doesn't seem like unrestricted power to me, and there will have been clear agreement up front... Either way, I'm not the expert here and remain open-minded.
  5. A fairly simple example should the clause itself: 52.212-4 - Contract Terms and Conditions - Commercial Items
  6. As prescribed in FAR Subpart 12.302, the CO may tailor any paragraph of clause 52.212-4 except for those related to the following: Assignments Disputes Payment (except as provided in Subpart 32.11) Invoice Other compliances Compliance with Government-unique contract laws Unauthorized obligations The Changes paragraph at 52.212-4(c) is not excepted. Therefore, can the CO specify by addendum to 52.212-4 certain circumstances in which modifications may be issued unilaterally? Examples that could be included in such an addendum: deobligations of excess funds due to unutilized work, forward-priced "change orders" for the commercial item already procured under the contract, etc. Initial thoughts to this question are yes, since provided that such an addendum is included in the initial award, the contractor will have agreed to all terms & conditions, to include potential unilateral mods. When inquired, others stated no and insisted that all contract modifications pursuant to 52.212-4(c) may be made " only by written agreement of the parties" no matter what. This may be the case, though I would think a unilateral mod as described in above circumstances would be issued pursuant to the 52.212-4 addendum. Which interpretation is correct?
  7. Sunstrider

    Contractor Request to Extend POP

    You are doing the right thing by asking for consideration, as based on what you said there is nothing inducing the Government to grant this extension. I'm curious... What authority will you cite to issue the mod?
  8. I do have very recent historical pricing that shows the prime can get a much better deal from their supplier. Were they to purchase from one of their lower-priced suppliers, price would be otherwise fair and reasonable. As things stand, the prime clings to the supplier who's quoted the highest price among the unidentified suppliers. I have no way of verifying the identity, cost breakdown, responsibility, or delivery schedule of any of the suppliers. Truly, I cannot even verify the suppliers' prices since I don't have their quotes. As mentioned, both the prime proposal and the supplies to be purchased (from the one supplier) exceed the TINA threshold. And yes, the supplies comprise greater than 10% of the prime's total price IAW FAR 15.404-3(c)(1)(ii).
  9. Yes, the chosen supplier is other than lowest price.
  10. Prime is FFP. Not specified for the sub.
  11. The prime contractor is the sole source. The prime will provide non-commercial equipment to the Government, which they will have purchased all via a single supplier. The equipment does not have to be purchased from a single supplier; however this is what the prime has proposed. Additionally, worthy of note is that the total value of these equipment items exceeds Truth in Cost or Pricing Data threshold. The prime's proposal purchase attempts to show adequate price competition, where there is a crude analysis of all supplier quotes. However, my concern is that the only information really provided is each supplier's bottom line price and whether that supplier comprised the "best value" or not. Imagine reviewing a heavily redacted "streamlined PNM" or brief pricing memo as the basis for all of prime's equipment costs. Not a single supplier is identified, especially not from whom they will purchase.
  12. And if they refuse to? Would the proposal be inadequate? Would you accept the COPD cert?
  13. You are evaluating a proposal for non-commercial items in a sole source environment. Non-commercial equipment to be purchased by the prime from a supplier exceeds the Truthful Cost or Pricing Data threshold in total value. However, the apparent successful equipment source/supplier is unidentified by the prime. In fact, all of the prospective suppliers are unidentified within the prime's evaluation of equipment quotes documented within their proposal. In this case, would you deem the prime's proposal as inadequate? If adequate, should the Government refuse to accept a COPD cert until the prime's equipment supplier is identified?
  14. Absolutely. This new scenario will have addressed my same concern (warrant authority).