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Iron Man

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  1. Iron Man

    Contract Close Out

    Disbursements may be made only on vouchers certified as to (1) the correctness of the facts in the certificate, voucher, and supporting documentation; (2) the correctness of computations on the voucher; and (3) the legality of a proposed payment under the appropriation or fund involved. 31 USC ? 3528. In my experience, the contracting officer is not the certifying official. This certification usually comes from the office that receives the goods/services. If the program office is responsible for certifying (or not certifying) the voucher, it should do so. Perhaps the program office is not shirking their duty but they have a good reason why the invoice should not be paid. Forcing the issue with the program office will ensure that all relevant facts (maybe even ones the contracting officer could not discover) has been properly considered. Finally, the concept of ?sufficient evidence? to support payment of a voucher is subjective. Every persons judgment is different, and what I consider sufficient may be different from the original poster?s. If the issue is reviewed by a third party (e.g., an IG, Board, Court), that third party may disagree and conclude there was not sufficient evidence to pay the voucher. In such a case, if I were a contracting officer, I would want the support of the program (and legal office) and not be in the unenviable position of having directed payment of a voucher without the certification of the program office that the goods were received or work was completed.
  2. Iron Man

    Contract Close Out

    I would not recommend paying an invoice without evidence that the work was done. Contact the contractor and ask for documentation or other evidence you can present to the program office to show that the work was, in fact, performed. If possible, contact former program office officials that might have knowledge of what was done. If, after gathering as much information as possible, there is sufficient evidence that the work was performed, the program office should certify that the work was performed. If the program office is unreasonable and refuses to certify the work was performed, then elevate the issue until you get to someone who is reasonable. The legal office may also be of assistance in convincing the program office in such a situation, as I am sure they don't want to have to defend a Board or COFC appeal where the evidence shows the work was performed. If there is not sufficient evidence that the work was performed, either from the contractor or the program office, then deny the invoice.
  3. Iron Man

    Buy American Act

    When you say that German H&K firearms "are required for special ops," what do you mean? Does H&K make a class or type of weapon used by special ops that no domestic manufacturer makes? Or are H&K weapons viewed as technologically and/or mechanically superior to domestic versions?
  4. Iron Man

    Economical LPTA

    Actually, an LPTA procurement is part of the best value continuum. I believe the distinction you were trying to make is a Tradeoff Process (FAR 15.101-1) vs LPTA (FAR 15.101-2). I think GeoJeff was trying to point out what he views to be a general principle that applies to both types of procurements. Specifically, an offeror's price may be so high that it renders the proposal ineligible for award regardless of the technical merit or rating of the offer. In a tradeoff procurement, that will happen if, as GAO says, the "quoted price [is] too high in an absolute sense." In an LPTA that will happen if another technically acceptable proposal offers a lower price.
  5. Ha ha. That was exactly the point I was making in my post about the government's right to appeal the COFC. Did you get so caught up in my use of the word "rights" that you didn't notice that I was agreeing with you?
  6. I'd have to go back and read the cases more closely. It may well be dicta, but it isn?t always a bright line. For the purposes of an internet discussion board, I?m not sure it makes a difference. Dicta is often relied upon as persuasive authority even if it is not binding on a court. I pointed out two cases (out of hundreds) in which the appellate courts and the Supreme Court refer to and adjudicate the government?s right to do (or not do) something. I?d be surprised to find a case that stands for the position (whether as dictum or a holding) that the government has no rights. If you?d like a reference that is more clearly a holding, how is this one? ?The right of the government to the duties accrues, in the fiscal sense of the term, when the goods have arrived at the port of entry. The debt for the duties is then due, although it may be payable afterwards according to the regulations of acts of Congress. The debt due to the United States for duties on imported merchandise, is not extinguished by the giving of bonds, with surety, for the same. The revenue collection act of 1799, ch. 128, requires that the collector should take the bonds for the duties from all the persons who are the importers; whether they be partners, or part owners. The government of the United States have a right to retain money in their hands belonging to a surety in a bond given for duties which is unpaid, until a suit shall be terminated for the recovery of the amount of the duties on the goods due by the importers. The government is not obliged to appropriate the money of the surety to the satisfaction of the bond, but may hold it as a security until the suit is determined. Mr. Justice STORY delivered the opinion of the Court.? Meredith v. U.S., 38 U.S. 486, 491 (1839). Or how about a statute? ?Any mortgage, lien, or encumbrance created under the provisions of this section shall be subject to the rights of the Government to compel the enforcement of the terms of the lease or contract of the mortgagor, and any purchaser under a foreclosure of such encumbrance shall take subject to all the conditions assumed by the original lessee or contractor.? 16 U.S.C.A. ? 33
  7. I'll have to disagree. Government agencies do not have Constitutional civil rights, but that is not the entire spectrum of rights, which can arise out of constitutions, statutes, contracts, etc. The SCOTUS and Fed Circuit often refer to and enforce the Government's rights. See, for example, Caplin & Drysdale, Chartered v. U.S., 491 U.S. 617, 626 (1989), ?First, the property rights given the Government by virtue of the forfeiture statute are more substantial than petitioner acknowledges? and Gaylord v. U.S., 595 F.3d 1364, 1383 (C.A. Fed. 2010), "Whatever this agreement accomplished as between its parties, it cannot constitute a relinquishment of the government's rights under the contract or pursuant to 28 U.S.C. ? 1498(."
  8. The flaw in your argument is that you assume there is no possible alternative interpretation of the law and no other possible "floor." Have you read DOJ's memo supporting SBA's parity regulations as a permissible interpretation of the law? http://www.justice.gov/olc/2009/sba-hubzon...inion082109.pdf Personally, I think DOJ's argument is weak and the law as written, whether intentionally or not, provides HUBZone's with priority. However, DOJ's argument is not totally off the wall. I've certainly seen weaker arguments prevail in litigation. The government, or if you prefer the executive branch , has regulations and a long standing practice of parity, and it has a straight-faced legal argument it believes supports that practice and those regulations. An agency loss at GAO or the COFC is not the end of the process and the agency is not required to immediately abandon its position. If at the end of the appellate process MCS is successful, the Executive Branch will comply with the decision. However, there is a process for resolving different legal interpretations. Pursuing rights under that process is not wrong or evil, even when it is a federal agency pursuing those rights.
  9. Try reading beyond Junior High. I suggest GAO, COFC and CAFC opinions, where you will see an agency's argument is routinely referred to as the government's position or view. If you think use of the phrase "Government's view" is emblamatic of royalism, I don't know what to tell you, other than you are embarrassing yourself.
  10. How can this be a clear example of "royalist impudence and disrespect for the law," yet at the same time be an interesting issue with room for more than one view? I guess there is no room for the government's view? Or does that only apply when your view is being challenged?
  11. You can stop the faces by unchecking the box under the area where you draft your post that says "Enable emoticons?" If would be nice if having it unchecked was the "default" setting. However, until that happens you'll just have to manually do it.
  12. Good question, that statement is pretty vague. When a new solicitation is in the works, I recommend questioning those that developed the estimates regarding how they were established. If you are aware of information that would impact the estimates, ensure that the information has been considered. If necessary, ask to review the back-up data that was considered. If there was a previous contract for the same or similar item/service and the orders significantly exceeded (or failed to meet) the estimate, ensure that whatever lesson to be learned (if any) has been incorporated into the new estimate. Do not automatically accept the estimate at face value, especially if there is a history of poor estimates in that area. If you are comfortable that all relevant and available information was considered and the result is a good faith, reasonable estimate, then no problem. If you don?t come to that conclusion, then ask to have the estimates revised, or at least reviewed, based on your concerns. Of course, how successful you are may vary depending on your standing in the organization and your role in the process, e.g., contracting officer, program manager, agency attorney, or someone else.
  13. I recommend trying to hold feet to the fire when establishing estimates. Unfortunately, when some people know that they will not be bound by the estimates, they don't put much effort in developing them. I see too many estimates that are justified by a statement that says something similar to, "We used 100 last year, we anticipate ordering 100 this year." Past usage/ordering is helpful, but not always the last word. Have laws, regulation or policy changed that will affect a contract? Has usage been trending upward or downward? There are all sorts of factors that may influence an estimate. Take a look at the reason you are ordering double or triple the estimated quantities. Maybe that will give you some insight into what else you should be considering when establishing an estimate. If a good estimate is generated, but unforeseen circumstances result in an increase or decrease in the requirement, such a change could either help or harm the contractor depending on the circumstances. Such a risk is inherent in a requirements contract, and this risk, presumably, is factored into its offer.
  14. Unfortunately, where there is money to be made, there are fraudsters and scams. See GAO Report, "SERVICE-DISABLED VETERAN-OWNED SMALL BUSINESS PROGRAM Case Studies Show Fraud and Abuse Allowed Ineligible Firms to Obtain Millions of Dollars in Contracts" http://www.gao.gov/new.items/d10108.pdf
  15. Iron Man

    Buy American Act

    DoD has already determined it is not in the public interest to apply the BAA to the listed "qualifying countries." See DFARS 225.872-1. "(a) As a result of memoranda of understanding and other international agreements, DoD has determined it inconsistent with the public interest to apply restrictions of the Buy American Act or the Balance of Payments Program to the acquisition of qualifying country end products from the following qualifying countries: Australia Belgium Canada Denmark Egypt Federal Republic of Germany France Greece Israel Italy Luxembourg Netherlands Norway Portugal Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland"
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