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Everything posted by Don Mansfield
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I'm surprised by the holding in the NASA BCA case. However, it works both ways. If the Inspection clause is inapplicable to conformance with the BAA clause, then the Government's acceptance of the item does not constitute an acknowledgement that an item is BAA-compliant. If we assume that the contractor is not liable under a contract clause, it doesn't mean that they would not be liable for breach of contract (i.e., absent a dispute arising under the contract, the government may still have a dispute related to the contract). If the amount offered by the contractor is fair, I would follow your legal advisor's opinion.
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Bob, Would you please enable the "Like This" button--just this one time?
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Would you please provide the citation to the NASA case?
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Solicitation of contract exceeding 5 option years
Don Mansfield replied to Boof's topic in Contract Award Process
The authority is at DFARS 217.204(e)(i): -
Proceeds of Sale of CAP
Don Mansfield replied to Acquisition Policy Analyst's topic in Contract Administration
Carl, That's where I looked, but couldn't find anything more instructive than the FAR citation initially provided. Let us know if you find something. -
http://www.wifcon.com/discussion/index.php?/topic/2059-interpretation-of-definition-consolidation-of-contract-requirements/
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I don't get it, either.
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Vern, See FAR 19.502-2( c ): [bold added]. Given the "offering the products of different concerns", I don't know what authority one would use for a small business set-aside for a brand name item.
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Vern, If the acquisition is subject to CICA, then use of a brand name spec would be considered other than full and open competition pursuant to FAR 6.302-1( c )(1)(i) regardless of the number of sources solicited. For acquisitions not subject to CICA, I don't know how to justify Linda's statement.
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Annual Escalation Adjustment Clause
Don Mansfield replied to DingoesAteMyBaby's topic in Contract Award Process
Vern, If Dingoes contract is for A-E services, why should he worry about FAR 17.207(f)? Don't tell me you didn't read the "Scope" section at FAR 17.200 -
Annual Escalation Adjustment Clause
Don Mansfield replied to DingoesAteMyBaby's topic in Contract Award Process
In my opinion, this clause creates a significant cost and/or administrative impact on contractors. If you have been using it repetitively, it should have been published for comment in the Federal Register in accordance with FAR 1.301( b ). What agency do you work for (if you don't mind saying)? Your agency supplement probably has some policy on clause control. -
Excusable Delays for Construction
Don Mansfield replied to krusem's topic in Contract Administration
Me neither. FYI, the Navy Contract Writing Guide contains the following instructions: Block 13.C. This block is used for: (1) New procurement. Cite the appropriate U.S. Code and "mutual agreement" as the authority. (2) Changes to the contract under the authority of a contract requirement which also include changes which require bilateral agreement, e.g., a change order in which price and delivery schedule changes have been negotiated. Cite the requirement and "mutual agreement" as the authority. If I recall correctly, Government Contract Changes, by Nash and Feldman says to cite the Changes clause in block 13C if the change and equitable adjustment are included in the same modification or if the modification is an equitable adjustment resulting from an earlier change order. It's sad to think that one day the FAR Council will clarify all of this for us.- 24 replies
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- construction
- FAR 52.249-10
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Excusable Delays for Construction
Don Mansfield replied to krusem's topic in Contract Administration
I agree that SF 30, block 13, is unclear by its use of "authority"--and I have wasted a lot of time thinking about it. In my opinion, I think that if the CO is unilaterally modifying the contract, they should cite the contract clause that gives them that right in block 13A or 13D, as applicable (e.g., Changes, Government Property, Options, Suspension of Work, etc.). As far as Block 13C, the only sense I can make of citing an authority is if the modification is for an equitable adjustment resulting from a prior unilateral modification. In that case, I would cite the clause providing for the equitable adjustment to communicate that the modification is an adjustment under the existing contract terms and conditions and, as such, no new consideration is required. Who knows if I'm right. It's amusing how many folks are convinced that they know what the "right" entry is for block 13C. I often ask my students what they are told to put in Block 13C and the answers are all over the map. It's the kind of thing where everyone is convinced they know the right answer, but the answers are different.- 24 replies
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- construction
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Carl, I think we need more information about your hypothetical evaluation factors to give you a good answer. I don't believe that comments made on social media are off-limits, per se. BTW, I think I know what prompted your question. That woman on the LinkedIn forum is single-handledly lowering the standards of our profession.
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The sorry state of formalized contracting training
Don Mansfield replied to KeithB18's topic in Contracting Workforce
Troy, Kudos to you and your leadership. -
The sorry state of formalized contracting training
Don Mansfield replied to KeithB18's topic in Contracting Workforce
Vern, The letters to OFPP and FAI are a good idea, but DAU doesn't teach CON 217 anymore. KeithB18, When it comes to formal contract training, my advice is to lower your expectations. If you are interested in learning, participate in this discussion forum. Ask questions, observe how others answer those questions, and answer the questions that you think you can handle. After a while, you'll develop good habits--like locating relevant source material, interpreting the material, drawing reasonable conclusions, and supporting your statements with references to relevant source material. -
How to Handle Unknown Overage Charges
Don Mansfield replied to rios0311's topic in Contract Administration
No, a commitment is an administrative reservation of funds--it is not an obligation. See 080202 of the DoD FMR (Volume 3, Chapter 8) for a discussion of committing funds.- 21 replies
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- Overage Charges
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How to Handle Unknown Overage Charges
Don Mansfield replied to rios0311's topic in Contract Administration
I agree with Vern--it's not an obligation. I don't know about the rules at your civilian agency, but the DoD FMR would require a commitment of funds.- 21 replies
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How to Handle Unknown Overage Charges
Don Mansfield replied to rios0311's topic in Contract Administration
Then you may already have an Anti-Deficiency Act violation. Time to consult with your legal counsel.- 21 replies
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How to Handle Unknown Overage Charges
Don Mansfield replied to rios0311's topic in Contract Administration
Is there any limit to the Government's liability (in the contract) if there's a denial of service attack and we use the extra bandwith?- 21 replies
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If it's a GAO protest, then change #3 to: "Did you receive notice of the protest from GAO within 10 days of award? If so, you must suspend performance (or override the automatic stay of performance). If not, then you need not suspend performance." Your interpretation of "day" is correct. Based on the facts you provided, the protest is untimely.
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Since the debriefing request was not timely, it was not required and is irrelevant in determining whether a protest is timely or suspension is required. Assuming this is an agency protest, ask yourself these questions-- 1. Is the protest based on (i) an alleged impropriety in the solicitation or (ii) something else? If (i) and the protest is received after the deadline for submission of offers, the protest is untimely and can be dismissed. If (ii), proceed to #2. 2. Was the protest received 10 days from when the basis of the protest is known or should have been known? If not, the protest is not timely and can be dismissed. If yes, proceed to #3. 3. Was the protest received within 10 days of award? If so, you must suspend performance (or override the automatic stay of performance). If not, then you need not suspend performance.
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jpaynehydroid, Is this a follow-up question to the one in the other thread? If so, the Government has the right to issue change orders if your contract contains a Changes clause. You have the right to request an equitable adjustment if the change order increases the cost of or time required for performance. When negotiating a price adjustment, the Government is not bound to whatever profit rate you proposed for the item originally. It seems you don't like this answer, but it's going to be the same no matter how many different ways you ask it.
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Government negotiation of Fee AFTER award
Don Mansfield replied to jeff4757's topic in Contract Administration
Let me see if I understand. The Government wants to change line items in your contract that are priced on a FFP-basis and that change will increase the cost of performance. When it comes to negotiating the profit on the change, the Government wants to negotiate a profit rate that is different than the profit rate that was originally used to price the item. Is that what's happening?