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Vern Edwards

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Everything posted by Vern Edwards

  1. @joel hoffmanI have managed construction contracts, and I say that your statement is not valid unless you state, in detail, what you mean by "monitor". If you don't, and with specifics, then your statement must be dismissed as an overly broad generalization—so broad as to be meaningless. It is especially meaningless in that it encompasses both something as trivial as constructing an outhouse for the Bureau of Land Management and something as large and subject to change as a new space launch facility at Vandenberg Space Force Base.
  2. @Fara Fasat I would agree with #1, but I doubt that SBA, GAO, IGs and Congress would, at least not publicly. I presume that the CO would be knowledgable and properly trained. As for #2, what do you mean by "review"? Any "review" that could detect the fraud that worries you would have be more extensive than what I would think necessary for purposes of contract award. I also do not like the term "due diligence." That is a legal term of art. How are you using it? I have to laugh when I think about some of the conversations that I have had with contracting people who say things about fraud. Most of them didn't know what fraud was, beyond a dictionary definition. They had never read a law review article about fraud, much less a book like Claire Sylvia's The False Claims Act: Fraud Against the Government, now in its 3d edition, or the entry on Fraud and Deceit in American Jurisprudence 2d., or the entries in the Department of Justice Criminal Resource Manual, §§ 1001 - 1099. I'm pretty well-read and knowledgable, but I tread carefully when it comes to talking about fraud. I know this much: The idea that the typical CO could detect attempted fraud during a pre-award "review," whatever that is, is absurd. At most they might develop an uneducated suspicion. So tell me what you mean by "review". I agree with #3, except that I would use the word information instead of "evidence".
  3. A long-standing problem in our business is that Congress enacts laws that appear in various titles of the U.S. Code and that are assigned to various agencies for implementation. The laws assign certain responsibilities and tasks to specific agencies. I'll single out Title 29, Labor, and Title 15, Commerce and Trade, and two agencies, the Department of Labor and the Small Business Administration. Those agencies write rules, and implementation of their rules accounts for two of the lengthiest and most complex parts of the FAR, Parts 19 and 22. On top of the laws, presidents write executive orders, bypassing Congress, for which agencies must write rules. The laws, executive orders, and agency rules are to be implemented via government contracts through contract clauses. But who is primarily responsible for monitoring and enforcement? Not the primary agencies to which the responsibilities have been assigned and that write the rules. No, they and other government policy apparatchiki commonly take the position that since the laws are to be implemented in part through contracts a large portion of those responsibilities must be fobbed off on contracting officers. See FAR 1.602-1(b), one of the most absurd regulations ever written. The FAR contains about 140 solicitation provisions and contract clauses that implement various socio-economic (i.e., political) policies. They cover an extraordinary span of human activity and laws, regulations, and procedures. Not even I—who gets paid to do so and have almost 50 years of professional education and experience and ample tools of the trade— can understand, remember, and keep up with changes. Many in our country want smaller government and complain about the number of government employees (except uniformed military). The Clinton Administration made a big deal about reducing the size of government, and they decimated the acquisition workforce. And yet some people expect understaffed offices of under-trained people to understand and to find the time to implement exceedingly complex rules and procedures imposed on them by the agencies that are supposedly responsible for implementation, all while trying to buy what their agencies need, when and where they need it, at a fair and reasonable price. IGs, the GAO, and interest group associations complain to our idiot-infested, blowhard, and irresponsible Congress that COs don't do enough, while those COs try to cope with a workload of requirements far beyond anything any of us old-timers ever had to process, under rules far more voluminous. And what do the COs get for their trouble? Ever more rules and procedures. And members of our own community insist that COs actively monitor and enforce compliance with every contract clause, despite the fact that even a small government contract will contain at least 100 clauses, some of them pages in length and backed by pages of regulation and procedure. Those members see a moral imperative to such monitoring and enforcement, and they chastise those who, like me and ji20874, say, "Be reasonable," and who say that COs have no choice but to engage in policy triage. I tell you, it's madness, and it's not good for the country. It's all a sign of the deep incompetence that infests the highest levels of our government, a level of incompetence that events of the past two years have cast in stark relief against the background of events, a level of incompetence that has cost lives and diminished our international standing. We are a small but important part of government. It's time for more working-level contracting folk to speak out: We are dedicated. We want to do our best for our country. But if you want to impose on us ever more rules and procedures, then give us more people, including administrative support personnel so we can focus on professional concerns, and give us better professional education and training.
  4. Note that the SBA must make that determination, not the agency contracting officer. Also, see FAR 19.809-2. Note that FAR 19.809-2(a) appears to describe the limitations applicable to 8(a) contracts differently than 13 CFR 125.6 and FAR 52.219-14. It describes the limitations in terms of costs to be incurred by the contractor for its own employees instead of percentages of amounts paid by the government to the contractor. I'm still trying to figure out if there really is a conflict. Maybe I'm missing something. Note, too, the waiver provision in 19.809-2(c).
  5. If, after providing a fair opportunity and issuing a task order, a CO decides on his own initiative that the agency erred in its evaluation and award, the CO can take corrective action. The CO could direct the contractor to stop work on the task order. The agency could then perform a new evaluation, and the CO could either confirm the agency's original decision or make a new one. The CO could then either either cancel the stop work order and compensate the contractor for the delay or terminate the task order for the convenience of the government and issue a new order, as appropriate. The FAR does not describe that process in so many words, but it is clearly within a CO's discretion in order to maintain the integrity of the contracting process. See FAR 1.602-1 and 1.602-2(b).
  6. I think ji20874 meant 52.237-3, Continuity of Services, not 52.237-2, Protection of Government Buildings, Equipment and Vegetation. He's quite correct that 52.217-8 and 52.237-3 are entirely different.
  7. @Tzarina of ComplianceIf the -8 option was unpriced and unevaluated prior to award, then according to the GAO the agency must prepare a J&A in order to exercise it. The GAO cited FAR 17.207(f) as the basis for its opinion. See "Exercising Options: An Unanticipated Issue," in The Nash & Cibinic Report, June 2010, which discusses Major Contracting Services, Inc., Comp. Gen. Dec. B-401472, 2009 CPD ¶ 170, 51 GC ¶ 332, recons. denied, 2009 CPD ¶ 250. See also Magnum Opus Technologies, Inc. v. U.S., 94 Fed.Cl. 512, 537-538 (2010) From the GAO's reconsideration decision: The article in The Nash & Cibinic Report said, among other things: I don't think the FAR councils issued a rule to address the issue. If they did, I haven't found it. In a 2012 post in this Forum, a member reported that FAR Case 2010-003 was closed without action because the DAR Council and the CAA Council could not reach an agreement. The Nash & Cibinic article also discussed the Continuity of Services clause.
  8. Responsibility is primarily a matter of the offeror's ability to comply. Legal acceptability, which is what the GAO decisions are about, is a matter of the offeror's promise to comply—its willingness to do so. In a sole source acquisition a CO can reject a legally acceptable offer from a responsible offeror on the basis that acceptance would not be in the best interests of the government. A CO need not base the rejection of the offer on the offeror's nonresponsibility or on the offer's legal unacceptability. A CO could reject a legally acceptable offer from a responsible offeror because the he or she thinks, based on cost analysis of the proposal, that the risk of unintentional noncompliance with the limitations on subcontracting are too great. On the other hand, the CO could decide to take that risk, since compliance will be determined at the end of performance and the contractor promises to comply and might succeed in complying. If it fails to do so it will face penalties.
  9. @joel hoffmanWhy be snarky? The negotiation of sole source construction contracts is not really all that difficult. Try negotiating an FPI(F) (Firm-Target) contract for the development, test, and installation of a spacecraft downlink subsystem for aircraft carriers with strictly limited port availability. Don't take too much pride in your experience, Joel. The negotiation and administration of sole source construction contracts that have been set-aside for small businesses is not rocket science. I won't get snarky. I will say outright that I don't think you have thought through your ideas in this thread. When I say we don't know why it's your opinion, I mean that I don't know why you think it's necessary to actively monitor the contractor's compliance with the limitations, given the natures of the statute, the SBA policy, and the contract clause. But I can see now that your position is based largely on some notion that COs must monitor and enforce compliance with every clause in a government contract. Well, that's a fool's errand. A manager must prioritize. They must manage, which includes deciding how to allocate your resources. I think your positions on pre-award activity and on post-award active monitoring of compliance are unsound. I think the limitations have clearly been designed for post-performance compliance assessment and enforcement.
  10. If there is an obvious disconnect between the limitations on subcontracting and the contractor's cost breakdown and/or cost or pricing data, then a CO should, of course, inquire. But "negotiate"? Negotiate what? A change to their cost breakdown? Or are you suggesting that COs must negotiate to a contractually binding agreement on a specific element of cost? Or, by "negotiate" do you mean try to understand the proposal?
  11. @joel hoffman I simply do not think that there is any reason to devote any significant amount of time to "monitoring" the contractor's compliance with the limitations on subcontracting. Why not? Because the statute (15 USC 657s), the SBA policy (13 CFR 125.6), and the implementing contract clause (FAR 52.219-14) say that compliance is determined at the end of performance, not during. Because meaningful monitoring would entail more than just looking at amounts subcontracted. It would also entail verification of which subcontractors are "similarly situated entities" and which of the similarly situated subcontractors' subcontractors (second-tier subcontractors) are "similarly situated entities". Because the statute and the SBA policy provide a specific remedy for noncompliance—a minimum fine of $500,000—that can be assessed and collected only after the end of performance. Because it is not clear that a CO is authorized by law, regulation, or contract to take action against a contractor prior to a determination made at the end of performance. In short, given the terms of the statute, the SBA policy, and the clause, what is the point of "monitoring", especially when subcontracts might be affected by changes and changed conditions, and compliance dependent on the prime's ultimate settlements with the government? Instead of devoting any time to "monitoring", I would instruct COs to adopt the measures that I have already described twice in this thread: Include a special clause in the contract requiring the contractor to confirm its compliance or acknowledge its noncompliance in writing prior to final payment. I think this is authorized pursuant to 13 CFR 125.6(e)(4). Remind the contractor, in writing, of the limitations—once at the start of performance and once at the midpoint, and ask for acknowledgement of receipt. Require that the contractor confirm its compliance or report its noncompliance and provide supporting data prior to final payment and contract closeout. Document a determination in the closeout file to the effect that there were or were not any indications of noncompliance.
  12. Those of you who call for "monitoring during performance" must explain what you mean by that phrase. What kind(s) of action(s) do you contemplate when you say "monitoring"? After you explain that, tell us what the point of it would be, since the clause does not require compliance throughout performance, i.e., at all times during performance, but only "by the end" of performance. Even if at the halfway point of performance you conclude that the contractor will not be able to comply by the end, what would you do about it? What could you do? Would you try to make the contractor terminate a large business subcontractor and reward the rest of the work to a small business subcontractor? Would you have the statutory, regulatory, or contractual authority to do that? Would you suspend progress payments, performance-based payments, or partial payments? Would you terminate the contract for default on grounds of anticipatory breach, even if the requiring activity were happy with the contractor's work? Would you take an action that would prevent the requiring activity from getting what it needs when and where it needs it? Or, would it make more sense to (1) remind the contractor of the limitations at the start and midway point of performance, (2) wait until the end of performance to make a determination, and then, (3) if the contractor did not comply, ask SBA to assess the minimum $500,000 fine prescribed by statute and make an appropriate entry in CPARS?
  13. My replies were prompt, not hasty. I read your posts. And you're avoiding my questions. Go to the hospital. You can come back later and tell us what you'd due by way of due diligence on sole source construction contracts. And by the way, my last government job was Chief of Construction Contracting for the Bonneville Power Administration, U.S. Dept. of Energy, and our office received very high marks from the Department. We did construction of high voltage transmission lines and substations in the Pacific Northwest—Montana, Idaho, Washington, and Oregon. I reported to BPA's Chief Engineer. So I know a little something about both routine and special construction contract administration.
  14. I'm sorry to hear that . I hope all goes well. As for demeaning and belittling your opinions, I'm not doing that. I'm asking you questions about them. That's a sign of respect.
  15. Who cares about progress payments? Read the clause. And what are you going to do if you decide at some point in time during performance that the contractor might not comply by the end. T for D? When the clause expressly states that compliance is to be determined at the end?
  16. Okay. Everyone is entitled to an opinion. But then you say: But what is the purpose of "due government diligence during construction" when the parties have agreed that compliance will be determined on the basis of amounts paid by the as of the end of performance, especially since construction usually involve changes and frequently involves claims litigation, moreso than any other kind of government contracting? And what is the procedure for such diligence? Why not just wait until the end, determine compliance after the dust has settled, and then seek guidance from SBA about fines, if any appear due?
  17. Back in the late 1970s, a new boss told me importance to keeping a telephone log for each contract I worked on. I was to document the date and time of all incoming and outgoing official business calls, including the date and time, the name of the person I spoke with, their title, their organization, the topic of conversation, and the gist of the conversation in appropriate detail. A recently ublished decision of the GAO Contract Appeals Board (GAOCAB), The Regal Press v. Government Publishing Office, CAB No. 2019-03, April 20, 2021, shows why my boss gave me good advice. https://www.gao.gov/assets/2019-03.pdf What happened was that the Government Publishing Office (GPO) and one of its contractors got into a dispute about an order for presidential stationary. The contractor had filed a claim for about $290,000 based on the assertion that the contracting officer had given it an oral approval to proceed with production. The CO denied that he had given any such go-ahead. The dispute ended up before the Government Accountability Office Contract Appeals Board. The following is from the decision: The GAOCAP granted the contractor's appeal in the amount of about $225,000.
  18. From the clause, paragraph (c): Why don't we just wait here for a little while... see what happens?
  19. I don't know. But I'm sure that there are persons who will have some strong feelings and ideas about monitoring and enforcement.
  20. I wonder what kind of "monitoring" and verification the president will expect from COs. I can see the GAO reports now: "Most CO's Not Monitoring/Verifying Contractor Compliance With Vaccination Mandate." "Many Contractor Employees Using Fake Vaccination Cards." https://pix11.com/news/coronavirus/ny-man-arrested-after-using-fake-covid-vaccine-card-at-work-officials/ https://www.washingtonpost.com/nation/2021/10/04/va-hospital-nurse-sold-covid-vaccine-cards/ https://abcnews.go.com/Health/michigan-men-charged-separate-vaccination-card-schemes/story?id=80309267 Par for the course in the utopia of rules.
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