Constricting Officer

For ease of finding - 19-783 Van Buren v. United States (06/03/2021) (supremecourt.gov). Not going to lie, the conversation is WAY above my head. Quotes from the Dissent: @ 1 “The majority offers no real response. It notes that “entitled” is modified by “so” and that courts must therefore consider whether a person is entitled to use a computer to obtain information. Ante, at 10. But if a person is not entitled to obtain information at all, it necessarily follows that he has no “right to access the information by using a computer.” Ante, at 9. Van Buren was not entitled to obtain this information at all because the condition precedent needed to trigger an entitlement—a law enforcement purpose—was absent.” @ 2 “Next, the majority’s reading is at odds with basic principles of property law. By now, it is well established that information contained in a computer is “property.” Nobody doubts, for example, that a movie stored on a computer is intellectual property. Federal and state law routinely de[1]fine “property” to include computer data. E.g., 12 U. S. C. §5433; N. Y. Penal Law Ann. §155.00 (West 2010). And even the majority acknowledges that this statute is designed to protect property. Ante, at 2. Yet it fails to square its interpretation with the familiar rule that an entitlement to use another person’s property is circumstance specific. Consider trespass. When a person is authorized to enter land and entitled to use that entry for one purpose but does so for another, he trespasses. As the Second Restatement of Torts explains, “[a] conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.” §168, p. 311 (1964). The Restatement includes a helpful illustration: “3. A grants permission to B, his neighbor, to enter A’s land, and draw water from A’s spring for B’s own use. A has specifically refused permission to C to enter A’s land and draw water from the spring. At C’s instigation, B enters A’s land and obtains for C water from the spring. B’s entry is a trespass.”

I understand the point of you contract admin point @C Culham. There is nothing wrong with monitoring compliance. Make sure everyone is getting paid what they should be. Either way, there isn't U.S.C. or regulatory standing to support your stance.

Present 2/1/10 - [USC05] 41 USC 352: Violations (house.gov) Missing by 1/7/11 - Document not Found (house.gov)

I am good with it. Like @ji20874 said, very similar to AE acquisitions under the Brooks Act with the price presented prior to negotiations. Three things: I think we would end up in a few legal battles on the definition of "most promising offer." Are you suggesting a change to a certain procedure in place (ex. FAR 15) or an additional part to be added? 70% of the work force right now doesn't know how to move between the different FAR procedures (FAR 8/13/14/15) based on requirement as it is. Might not help anything.

There it is. You sign and administer your contracts as you see fit. I shall do the same. Easy day.

Everyone in DC has a government purchased and issued cell phone. Sure there is something those contracts that says they can't be made in a China sweat shops. News flash - they are!

"The U.S. Department of Labor's Wage and Hour Division (WHD) is responsible for administering and enforcing some of the nation's most important worker protection laws. WHD is committed to ensuring that workers in this country are paid properly and for all the hours they work, regardless of immigration status." - How to File a Complaint | U.S. Department of Labor (dol.gov) Here's one boiler plate clause: "52.223-18 Encouraging Contractor Policies to Ban Text Messaging While Driving." Doesn't mean we "left-seat-right-seat" with their drivers to confirm once a week. That may very well be the case, but that is on the employee. Murder, theft, arson and driving while under the influence are all illegal in this country. We basically agree to those terms when we're born, but the police don't go around to every citizen each morning and ask them if they complied with the law.

The terminology behind "cancellation" is a term used for purchase orders: "13.302-4 Termination or cancellation of purchase orders. (a) If a purchase order that has been accepted in writing by the contractor is to be terminated, the contracting officer shall process the termination in accordance with- (1) 12.403 and 52.212-4(l) or (m) for commercial items; or (2) part 49 or 52.213-4 for other than commercial items. (b) If a purchase order that has not been accepted in writing by the contractor is to be canceled, the contracting officer shall notify the contractor in writing that the purchase order has been canceled, request the contractor’s written acceptance of the cancellation, and proceed as follows: (1) If the contractor accepts the cancellation and does not claim that costs were incurred as a result of beginning performance under the purchase order, no further action is required (i.e., the purchase order shall be considered canceled). (2) If the contractor does not accept the cancellation or claims that costs were incurred as a result of beginning performance under the purchase order, the contracting officer shall process the action as a termination prescribed in paragraph (a) of this subsection." Since this is a task order, ordering procedures governed by FAR 8 or FAR 16.505 and the parent contract, I think termination is a good course to take.

Sorry - Late to the party. A few questions outside of the extensive background to the OP. 1. Why would a CO want to take on the responsibility of the DOL? 2. If so, why have the DOL? 3. Wouldn't employees file complaints if not paid what they are required to be paid (with DOL)? 4. Isn't this already addressed with the contractor submitting a quote/offer for evaluation (compliance with the requirements of the SOL and in turn the contract's when signed/accepted)?

There is a precedent - protecting your processes and therefore your business model. If the government wants to observe anything the company is doing that is proprietary in nature then have them sign a piece of paper that says they can't tell anyone not associated with the administration/performance of your contract. You could do this, but will it be that much of an inconvenience? Are they intending to come onsite with a laptop and sit in a conference room or are they asking for three furnished offices, bay windows, on the 10th floor and planning to hang family photos? Bid difference.

I mean, I didn't provide you with the delivery instructions (which were going to be fun - "once a week/Tuesday//at 7:01 AM/to a government employee that probably won't be there once awarded/etc.). Therefore, the SOW was in that sense incomplete.

Yes - my apologies.

Moral of the story - "Don't be that guy."

Some SOWs for pencils (I’m sure): "The pencil shall confirm to the following standards: - 6. 275' in length; 3.068 mm in circumference; wood must be sourced from a northern California Abies lowiana Tree (AKA - California White Fir) between 2006 and 2007; - pigment core must be made of locally sourced Graphite, between 2001 (JAN 3rd) and 2001 (MARCH 22nd) and .507 mm in circumference; - The pencil must be capable of writing 6,000 words, in cursive, on a single sharpening, the text must be at a minimum a 9/10 on the darkness scale (see link – (Department of Education Fake Link); - The text (for darkness scale see bullet point 3.5 above to review) must be erasable, utilizing only 2.96 strokes of the eraser in a left to right, per word; - The metal portion of the eraser shall house the eraser and be sourced from Tajikistan (post-Soviet Iron Curtain period) and cured to 3,000 degrees to make sure the eraser doesn’t fall out mid-erase). - The eraser shall/must/always be . . . “ I’ll stop here as I am wasting my time, having to much fun and you’ll get the point.

Don't forget to consult your agency's specific guidance. Yes - FAR 13.000 "This part prescribes policies and procedures for the acquisition of supplies and services, including construction, research and development, and commercial items, the aggregate amount of which does not exceed the simplified acquisition threshold. . . " Forms - FAR 13.307(b) "Other than commercial items. (1) Except when quotations are solicited electronically or orally, the SF 1449; SF 18, Request for Quotations; or an agency form/automated format may be used. Each agency request for quotations form/automated format should conform with the SF 18 or SF 1449 to the maximum extent practicable."

"Receive package to buy pencils/buy pencils/closeout - repeat" What is the training focused on accomplishing? Market research, acquisition procedures, determining if commercial/none commercial or what???

We don't get reforms as the word is defined. We get what they think is better in the form of legislation which makes now sense or when it does, goes against business logic.

An additional quote from the same paragraph: "The availability of complete administrative review of a contracting officer's decision may sometimes tempt the contracting officer to follow subnormal procedures in the processing of a dispute and to give less than his best attention to his decision."

I want to say yes, but I cannot. Sure, the CO is still needed to make things happen (obligation/admin/termination), but not for the reason outlined in the quote (Economy & Efficiency). COs are expected to be more of "yes men" these days than anything else. It is now more about pushing the current director's, executive's or administration's political agenda/opinion then it is doing what is the best business decision. Our job is only to make sure it get's through without a protest.

The below is a case decision that was based on the 52.242-14 (suspension), but I believe it would still apply to 52.242-15 (stop work): BEARDSLEY_03-26-18_5410__BCPEABODY_CONSTRUCTION_SERVICES_INC.pdf (cbca.gov) Concerning Unabsorbed Home Office Overhead Costs (if that is what you are inquiring about): "BCPeabody requests unabsorbed home office overhead costs in the amount of $49,516.20 for the 179-day suspension. Suspension or delay of contract performance results in an interruption in payment for direct costs, which in turn causes an interruption in payment for overhead; however, overhead costs continue to accrue regardless of direct contract activity. This interruption in the stream of payments causes a portion of home office overhead costs to be unabsorbed. Nicon, Inc. v. United States, 331 F.3d 878, 882 (Fed. Cir. 2003); Wickham Contracting Co. v. Fischer, 12 F.3d 1574, 1577 (Fed. Cir. 1994). Eichleay refers to the formula used to calculate the amount of unabsorbed home office overhead when the Government indefinitely suspends or delays work. See P.J. Dick, Inc. v. Principi, 324 F.3d 1364, 1370 (Fed. Cir. 2003) (citing Melka Marine v. United States, 187 F.3d 1370, 1375 (Fed. Cir. 1999)); Eichleay Corp., ASBCA 5183, 60-2 BCA ¶ 2688. To receive Eichleay damages, appellant must first establish its prima facie case that (1) there was a VA-caused delay that did not run concurrently with any other delay, (2) the delay extended the time of performance of the contract, and (3) appellant was required to remain on standby during the delay. P.J. Dick, 324 F.3d at 1370." In my view, if you are eligible for them, then it should be for the whole period of the stop work order.

Resource: Winding Down: COVID-19 and Work Stoppages - SmallGovCon Anything claimed must be reasonable in nature and clearly not something that could have been mitigated. FAR 52.242-15(a) - The Contracting Officer may, at any time, by written order to the Contractor, require the Contractor to stop all, or any part, of the work called for by this contract for a period of 90 days after the order is delivered to the Contractor, and for any further period to which the parties may agree. The order shall be specifically identified as a stop-work order issued under this clause. Upon receipt of the order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. . ."

My bad - "more than one award is intended to be made by someone other than GSA, under an DO/TO or resulting in ID/IQs."

Yes it does. Talking about a way to do a single award and avoiding a limitation to do so. I pointed out a process that will address both the need and the subject services being set aside.

Then aren't we talking about a partial set aside? FAR 19.507(e) - "The contracting officer shall insert the clause at 52.219-14, Limitations on Subcontracting, in solicitations and contracts for supplies, services, and construction, if any portion of the requirement is to be set aside for small business and the contract amount is expected to exceed the simplified acquisition threshold." Make multiple awards. However many needed to the OEM(s) and one to the small business to manage the repairs/services ordered. Hmmm - almost sounds like contracting out the COR's duties when I put it like that.

I can get behind the sub-contracting limitations being applied to only one CLIN (FFP), based on the circumstances. Hybrid (CR/FFP) = fun. With that, I am assuming that both CLINs are commercial in nature based on a traditional view. If this is the case, are we getting into an area where we have to apply a non-commercial designator to the CR CLIN? FAR 16.301-3(b) - "The use of cost-reimbursement contracts is prohibited for the acquisition of commercial items (see parts 2 and 12)." I mean, it does does say CR contract and not CR CLIN. . . Are we really talking about an acquisition strategy resulting in a "FFP (50%)/CR (50%) - Commercial items (50%)/Non-Commercial (50%) Contract?" Forgive the new guy - here to learn.