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Gabriel Ho

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Everything posted by Gabriel Ho

  1. H - clause vs FAR/DFAR

    The contractor is not providing Final Voucher, property clearance, or other closeout documents due to the H-Clause: both PCO and ACO agreed that H-clause is for production shut down not (closeout). This has been on going for 2+ years. Need your understanding of what take precedence, FAR/DFAR VS local clause. Read your The following H - clause in question in the contract. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ H003 - The parties understand and agree that there are no costs included in the price of this SBC contract, and no requirement for the performance of, packing, crating, handling, removal or restoration, storage, shipment, destruction, scrap, sale, demilitarization, close-out or other disposition of any Government-owned or furnished tooling, equipment, material or other government property, or any residual material, inventory, data or documentation used in the performance of this contract. In the event of a termination for convenience, the Contractor is to be directed in the performance of these tasks and reimbursed in accordance with FAR 52.249-6, Termination for the Convenience of the Government. In the event that there is, for any reason, no follow-on contract (e.g. SBC extension or PBL), then the Contractor is to be directed by the Contracting Officer in the performance of these tasks and reimbursed in accordance with FAR 52.243-2, Changes – Cost reimbursement. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ The contractor statement below when we request property clearance ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ XXXX believes that the H clause as referenced in the email chain, excludes the tasks to disposition Government Property and the intent of the clause when agreed to by the USAF was that a subsequent and separate contract action would fund the work required to complete the close out tasks. As a clarification, the clause is not linked to only contracts that face a termination. Accordingly, these tasks were not bid or contracted for on this effort. Similar to the response provided on the BOA contract, XXXX needs a source of funds to perform the work required to execute these tasks. In this case, as added scope, XXXX would be seeking contract value. Pertaining to order of precedence, if there are conflicting terms on the contract, FAR 52.215-8 lists the Order of Precedence. The Schedule as defined by FAR Part 14.201-2 or to FAR 14.204-1 consists of : Section A - Solicitation/contract form Section B - Bid Schedule Section C - Description/specifications (and one is referred to Part 11) Section D - Packaging and marking Section E - Inspection and Acceptance Section F - Deliveries or performance Section G - Contract administration data Section H - Special contract requirements The subject clause, H003 Disposition and Closeout Costs (Apr 2008) is in Section H. It takes precedence over the Section I, Contract Clauses, where contract clauses 52.245-1 Government Property (Deviation) (June 2007) and 52.245-2 Government Property Installation Operation Services (June 2007) are listed. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
  2. H - clause vs FAR/DFAR

    Vern, are there court cases or samples to backup?
  3. H - clause vs FAR/DFAR

    thank you Vern!
  4. H - clause vs FAR/DFAR

    thats our point, why is it costing the Govt so much! We got a quote from the contractor; ($750K) to provide FV for 20 delivery order ONLY!
  5. H - clause vs FAR/DFAR

    Don- yes transferred to the follow-on. if the group see the H- clause as for property only, that not what the contractor impetrate. To the contractor its "closeout" The contractor will not provide any closeout documents, plus final vouchers (rates been settle), property clearance, etc...
  6. H - clause vs FAR/DFAR

    Retreadfed- not defraud but more like TINA. yes am concern of double charging. Our team also when down the disclosure statement route, what DS at time of award and was there changes. When a contractor provide you a list of physical completed contracts but will not give closing documents like property clearance, and FV. Now that POP is over, contractor is seeking for line item or "source of funds" to close these contracts. (DOs, BOAs) Joel- (ACAT I) program; multi D types, BOAs. and C types. negotiated, line items but no line items for closeout.
  7. H - clause vs FAR/DFAR

    joel- most times, I find too much information muddy the outcome. 1) I am here to ask if H-clause take precedence over the FAR/DFAR clause, 2) does it negates the contractor's responsible to follow the FAR/DFAR clauses "terms and conditions" when it comes to do closeout? PCO/ACO interpretation of this H-clause is closing down production(shutting down production) not (overall closeout process). legal are involve, but as lameman thrusting into the fire I want to know why is contractor and Govt digging in for the long haul. as the Govt i see no benefit in paying twice (direct/indirect) for closeout documents. your help is greatly appreciated.
  8. H - clause vs FAR/DFAR

    Don- but that will require additional funding. PCO is firm that no additional funds will be provided. contractor has agreed that the H-clause is a production shutdown, but will not put on paper. this disagreement has been kick down the road for over 3-4 yrs. the contractor has provided a guestimate that it will cost $10B for closing out these contracts.. high visibility program. contractor compliance officer know that they are in non-compliances but willing to allow their contracting dept to stand their ground. source funding to me mean allowablity for contractor to double charge. direct/indirect. thoughts?? closeout process should and most time are indirect charge. but in this situation the contractor want direct charge. (my opinion) (source of funding)
  9. H - clause vs FAR/DFAR

    yes we told him. they said no! one incident where a BOA has NO H clause, but the contractor assumption that H clause is implied. the contractor is asking PCO for $750K of "source of funding" not "funding" to provide FV on only 20 DOs. we have rejected their CAP (corrective action plan) already.
  10. H - clause vs FAR/DFAR

    See e.g., SUFI Network Services, Inc. v. U.S. --- Fed. Cl. ---, 2012 WL 5448957, Nov. 8, 2012: "The “Performance Period” clause, found at section H.29 of the contract, states as follows... ." System Planning Corp. v. U.S., --- Fed. Cl. ---, 2012 WL 2856070, July 12, 2012: "[T]he DFARS does not describe what rights the Government has with respect to the source code that could be obtained through exercise of the option clause at Section H.9 of the contract... ." Dynamics Corp. of America v. U.S., 17 Ct. Cl. 60, May 18, 1989: "Paragraph g.(1) of the EPA clause, contract section H-6, provides... ." Fluor Intercontinental, Inc. v. Department of State, CBCA 490, 2012 WL 1144972, Mar. 28, 2012: "Section H, identified as "Special Contract Requirements," contained the following clauses concerning temporary facilities and services... ." the intention of the H-Clause by the PCO is for program shutdown. I am trying to get legal interpretation. Why cant the contractor do the work and ask for REA. was precedence set with these cases where, H clause was denied?
  11. H - clause vs FAR/DFAR

    Agree with Don. GFR are unaccounted. 52.245-1 (3) Submission requirements. (i) The Contractor shall submit inventory disposal schedules to the Plant Clearance Officer no later than- (A) 30 days following the Contractor's determination that a property item is no longer required for performance of this contract; (B) 60 days, or such longer period as may be approved by the Plant Clearance Officer, following completion of contract deliveries or performance; or (C) 120 days, or such longer period as may be approved by the Termination Contracting Officer, following contract termination in whole or in part. +++++++++++++++++ the contractor is noncompliance to term and conditions.
  12. H - clause vs FAR/DFAR

    Joel, lol. it was not that. contractor said that he does not want additional funds, he "asking for the source of funds".
  13. H - clause vs FAR/DFAR

    so H clause takes precedence over the FAR/DFAR? but does it negated the contractor responsibility to the "term and conditions" in providing FV per FAR 52.216-7(d) (5) and property FAR 52.245-1. what does "need source of funds" mean to you? (direct/indirect)
  14. H - clause vs FAR/DFAR

    the contract was not terminated, and there been follow-on contracts (with similar H- clause) . ACO/PCO impetration that the H clause is for production shutdown. production is this ongoing.
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