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Vern Edwards

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Everything posted by Vern Edwards

  1. See FAR 33.213, Obligation to continue performance: So what's the difference between "arising under" and "relating to"? In ABB Enterprise Software, Inc., ASBCA 60314, June 29, 2016, 16-1 BCA ¶ 36425, a software company accused the Navy of breach of contract based on breach of a master software license agreement, which the government had signed. The Navy argued that the board had no jurisdiction, because the license agreement was not mentioned in or incorporated into the government contract. The board decided that violation of the license agreement was a matter "relating to" the contract, and it thus had jurisdiction. In making its decision, the board cited Todd Construction, L.P. v. United States, 656 F.3d 1306, 1311 (Fed. Cir. 2011). A read of those two decisions, ABB and Todd, will give you a better idea of the distinction between "arising under" and "relating to" a contract. For details about the breach accusation, see ABB Enterprise Software, Inc., ASBCA 60314, January 9, 2018, 18-1 BCA 36954. The board granted the contractor summary judgment. The Navy agreed to pay the contractor $600,000 in settlement.
  2. For an in-depth description of pay for success contracting, see this downloadable/printable article: https://ssir.org/up_for_debate/article/the_payoff_of_pay_for_success
  3. See FAR 52.212-4(d), which says: Emphasis added. Compare the last sentence in that paragraph to the alternate to FAR 52.233-1: There is no need to tailor paragraph (d) to add the alternate. As written, paragraph (d) bars a contractor from ceasing performance pending final resolution of an accusation of government breach.
  4. @General.ZhukovUh, the "date" example might not be a good one. I'm old now, but my recollection is that sometimes persistence in the matter of asking for a date paid off. But I was 11B4P, and fortune favors the bold.
  5. @NewbieFedYou asked: "Termination" is a term of art used in government contracts to describe an act of the government, not of a contractor. Contractors do not terminate contracts. However, under the common law of contracts in the United States, if one party to a contract fails to fulfill a material contractual obligation—which is a material breach of contract—the other party is excused from further performance. See Restatement of the Law, Second, Contracts 2d, Section 235, "Effect of Performance and Non-Performance," which states: Now see Section 237, "Effect on Other Party's Duties of a Failure to Render Performance," which states: And now see Section 240, "Part Performances As Agreed Equivalents," which states: And now see Section 241, "Circumstances Significant in Determining Whether a Failure is Material": Bottom line: As a general rule, if the government materially breaches the contract the contractor is freed from its remaining obligations to perform. However, see the Disputes clause, FAR 52.233-1, Alternate I, which states: If that version of the Disputes clause is in the contract it may limit the contractor's common law right to cease performing.
  6. What if the COR just says it's their personal policy not to fill out such questionnaires?
  7. @NewbieFedYou are not being clear! What do you mean by "technology"? Hardware? Software? Both? Something just on paper. None of those? Do you know? WHAT are you buying permission to use? What do you mean by "technology/process"? Hardware? Software? Both? A facility? Something just on paper? None of those? Do you know? A "technology/process" might be a mathematical equation, a chemical formula, or a process specification. Specifically what will be delivered or rendered under contract? Do you know? Don't be embarrassed if you don't know. A lot of us have bought stuff we didn't understand, especially in our early days on the job. If you don't know, please say so. Then go away, find out, and come back if you still have a question.
  8. The FAR says nothing about COR completion of past performance questionnaires.
  9. @Weno2Seems to me that leaves room for interpretation when it comes to IDIQ. Does the amount on the certificate apply to the amount of the minimum, which is an obligation, or the maximum, which is the limit on the government's right to buy? I don't know, absent a clear statement on the certificate of appointment as to what the dollar limitation applies. Why should it apply to the maximum? The CO who signs the contract may not sign any of the orders. Interesting.
  10. @RF-SAWhen you read the EO as a whole it clearly applies to contracts only for services and construction and "contract-like instruments" for the same. There is no need to expressly exempt contracts for products, since they are not among the contracts listed to which the EO expressly does apply. I think the reason they expressly made mention of subcontracts solely for products is so that service and construction contractors will l know that the EO does not apply to all subs under a contract for services or construction, only subs for services or construction and subs for products that include services or construction, such as subs for the installation of elevators. Contracts and subs solely for products (include no services) are in the clear. What's not certain is applicability to contracts products that include installation and onsite maintenance. I discussed the EO at length with a colleague this morning, and we agree that it will not take effect before the implementing regulations are issued, and that it will take a while to get the regulations written and through the rulemaking process. A lot has to happen before the EO starts to have an impact. We'll all be in standby mode until the regs appear in the Federal Register.
  11. Have you considered sending the questionnaire to the CO instead of the COR? Have you considered asking the CO why the COR cannot fill it out?
  12. So what? Does it say "value"? If so, what does that mean? if not, then to what does the dollar amount refer?
  13. From the Department of Veterans affairs link provided by C Culham, a memo from the Executive Director, Office of Acquisition and Logistics and Senior Procurement Executive (SPE), addressed to Heads of Contracting Activity (HCA), subject, "VA Procurement Policy Memorandum (PPM) 2020-01, Contracting Officer Warrant Program", dated October 1, 2019: I have bolded every appearance of the word "value". Now, in the context of this memo, what is the value of an IDIQ contract? We're not talking about the application of FAR dollar thresholds, so FAR 1.108 does not apply.
  14. If contract specialists were taught about and understood contract line items and line-item structuring and about how the FAR works, questions like the OP's would never be asked. And does anyone ever look up "hybrid" in a dictionary?
  15. I don't see why not. The contract could have one line item for the services and one line item for the concession, with different clauses applying to each. <Sigh> The never-ending quest for examples. The contract specialist's lodestone. The Grail. I don't know of any examples, but someone has probably done it. There are very few things that no one has done. <Sigh> OT authority. What Congress hath wrought out of its incompetence. Got a problem you can't figure out how to solve? How about OT authority? I don't know. It depends on what the agency's OT authority covers. If your agency has OT authority, find the statute and read it.
  16. Yes, the purchase ("order") of widgets would be a contract. See the definition of "contract" in FAR 2.101. But it probably will not be subject to the executive order. The government generally distinguishes among contracts for "supplies "(products, goods), for "services", and for "construction". See the definitions of "supplies" and "construction" in FAR 2.101 and the definition of "service contract" in FAR 37.101. The plain language of the executive order states that it applies to contracts for services, construction, and leaseholds of real property. It makes no mention of contracts for supplies (products, goods) and specifically states that it does not apply to subcontracts "solely" for "products". So it appears that it will not apply to a contract or subcontract for the purchase of anything other than services and construction and for leases of real property. However, the executive order must be implemented through the Federal Register rule-making process. The agencies tasked with issuing implementing regulations will probably publish an "interim rule", which will take effect before the receipt of public comments, and ultimately issue a "final rule" after consideration of public comments. The rules will be drafted in haste. Until they are published, we cannot be sure what they will say and how they will implement the policy. There will be issues of interpretation and application. For instance, it's not clear whether it will apply to contracts for supplies that include installation and maintenance or that include on site repair warranties, although some people will insist or speculate that it certainly does or certainly doesn't. Will it apply to Other Transactions ("contract-like instruments")? In short, don't hold your breath waiting for clarity and certainty. And there will almost certainly be litigation in Federal court to block the order, which could delay its implementation. Stand by now, RF-SA, for insistent requests for more information and for rampant speculation and war stories.
  17. @Lakegirl2010The above from C Culham is the appropriate response to your inquiry. You should send your request to the COR in writing with a copy to the contracting officer. Keep your request short and to the point: Pursuant to what term of the contract do you make your request? You want your request to be formal, but not a rejection, because it might be valid. Don't comply, but don't refuse, and don't assert that the request is a change until you see the COR's (or the CO's) response and think it through. Document all your communications with the COR and CO about this matter. Things may become tense, so stay cool.
  18. No, if by "award" you mean issuing a task or delivery order.
  19. @Tzarina of Compliance In your opening post you asked: I don't know of anyone in the Federal government who has done a PFS contract under the FAR or an other transaction, and no one has stepped up here to date to say that they have. The responses that you have received thus far, including mine, have not been helpful. As I said, I don't think FAR provides for PFS contracting, wherein a private financier pays a service provider and the government pays the financier if the service provider is successful. It's a strange kind of subcontracting arrangement conjured up by bureaucrats short of taxpayer money. Now you ask: I don't want to sound harsh. I don't mean to be. But it strikes me that you have heard about something that seems promising, but you haven't done enough research and don't understand PFS contracting or the FAR well enough to figure out how it would work, so you have come here. I for one don't want to write a thousand words or more in this awkward back-and-forth and forever-branching-out forum to sort things out for you. Consider this from the Delaware State Code that I cited earlier: https://delcode.delaware.gov/title29/c069/sc07/index.html As I tried to explain in my earlier post, PFS contracting is largely a financing arrangement. The FAR makes no mention of and prescribes no rules or guidance for such privately financed contracts. You could call Delaware officials to learn more about what they are doing, but they probably know next to nothing about the FAR and what it permits federal agencies to do. In short, if you want to know more about the possibility of PFS contracting under the FAR, either wait for someone to post here who has done one under the FAR or start a research file and go to the library and make some phone calls. Best of luck to you.
  20. FAR 1.108 says: Emphasis added. That rule explains how to interpret dollar thresholds in the FAR. It does not explain how to interpret limitations on certificates of appointment. The general rule when I was a contracting officer was that the dollar limitation on a warrant referred to the maximum obligation that a contracting officer could make. But that was before the widespread use of IDIQs that we see today. When the exercise of an option does nothing more than give the government a right, without entailing a new obligation, I don't see how the dollar amount on a warrant has any applicability. The maximum on an IDIQ contract is a limitation on a right, not an obligation. Moreover, I'm not sure that COs modify IDIQ contract maximums when exercising options. In any case, obligations other than a minimum are made on task and delivery orders, not on the option exercise document. Maybe the amount on a warrant means different things in different agencies. Maybe the OP should address their question to the authority that signed the certificate of appointment.
  21. That must be a local policy. There is nothing in statute or governmentwide regulation that requires the issuance of a delivery order within 24 hours after contract award.
  22. Carl has, I think, made the point that if the option has its own maximum, then that's the level of authority that the CO must have. Good catch, Carl. But I'm not sure that applies to warrant authority, since the maximum is not an obligation, and dollar limits on certificates of appointment are usually obligational limits.
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