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Army Contracting Command Guilty of Noncompliance with a Nonexistent Rule
Don Mansfield commented on Don Mansfield's blog entry in Don Mansfield's Blog
"DFARS 252.225-7001(a)(ii)(A)" "DFARS 252.225-7001(a)(ii)(A)" is not a valid citation, either. Paragraph ( a ) isn't broken down into (i), (ii), (iii), etc. Some of the definitions use (i), (ii), (iii), however. A CO's duty to inspect deliveries to ensure conformity of supplies or services is stated at FAR 46.103( d ) and FAR 46.104( b ). I'm not angry with the IG. I'm disappointed with the ACC's reaction. Instead of making the IG substantiate their position, they are going to make all of their contracting personnel take a three-hour online course that doesn't address what the IG thinks it does. -
FAR 52.222-43, Fair Labor Standards Act and Service Contract Labor Standards--Price Adjustment (Multiple Year and Option Contracts), states the following in paragraph ( b ): Paragraph ( e ) limits said adjustment as follows: Thus, the clause does not provide for adjustment in G&A, overhead, and profit. As such, the "warrant" in paragraph ( b ) does not apply to G&A, overhead, or profit. Question: Do you think it would be in violation of anything for an offeror to include contingencies in its proposed contract prices for increased G&A and/or overhead costs attributable to future wage determination increases?
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In a recent DoD IG report, the Army Contracting Command was cited for its failure to perform "component assessments" on 23 contracts subject to the Buy American Act (see DoD IG Report No. 2015-026). The report states as follows: Not having ever heard of such a requirement, I checked the reference to this requirement, which was allegedly located in DFARS 252.225-7001( a )(3)(ii)(A). DFARS 252.225-7001 is a contract clause entitled "Buy American Act and Balance of Payments Program". The clause does not contain "( a )(3)(ii)(A)", but it does contain a paragraph "( a )". Paragraph ( a ) defines, for purposes of their use in the clause, the terms "Commercially available off-the-shelf (COTS) item", "component", "domestic end product", "end product", "foreign end product", "qualifying country", "qualifying country component", "qualifying country end product", and "United States". The paragraph does not require the contracting officer to do anything. In fact, it doesn't require that anybody do anything--it merely defines words and terms. The balance of the clause imposes an explicit requirement on the contractor in paragraph ( c ) and an implied requirement on the contractor in paragraph ( d ): Nothing in the entire clause requires the contracting officer to do anything. The terms "contracting officer" and "component assessment" do not appear in the clause. The term "component test" appears once--in paragraph ( b ) (see above). No duty of the contracting officer can reasonably be inferred. When read together with the provision at DFARS 252.225-7000, it is clear that any assessment of end item components should be done by an offeror when determining how to complete the certification in DFARS 252.225-7000( c ): I assume that the Army Contracting Command pointed out the flawed assumption that the IG had made when responding to the audit. Let me just check their response to this finding to be sure: Oh, well. Get ready ACC contracting personnel--you will soon be receiving a policy memo requiring you to take CLC 027 Buy American Act. And no, it does not contain guidance on how contracting officers are to perform "component assessments".
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I don't consider that circumventing the rule. One rule has to do with status as an Indian economic enterprise and the other rule has to do with a limitation on subcontracting during performance. Two different things. The definition of "Indian economic enterprise" at 1452.280-2 states: Note that the criteria have nothing to do with the amount of work done under a particular contract--it has to do with ownership and control of the enterprise. That's how I read it, but don't trust me too much because I'm not familiar with the DIAR and there may be some rule that I'm overlooking.
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Govt Developed Course - Can it become COTS?
Don Mansfield replied to woops85's topic in Contract Award Process
woops85, DAU puts all of its student course materials on the Web. Private companies teach DAU-equivalent courses using our material. -
How much time do you have?
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Cost-Reimbursable Overrun/Change
Don Mansfield replied to BorderC's topic in Contract Administration
BorderC, One of the interpretations makes sense and the other is just plain dumb. Can you tell the difference? -
ron, In case you missed it, the prescription for DFARS 252.225-7021 was recently changed to read:
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Cost/Price Analysis on FFP Options
Don Mansfield replied to here_2_help's topic in Contract Award Process
Help, Can you provide a DFARS citation? -
Note that the pricing arrangements Vern describes are technically firm-fixed-price contracts. From FAR 16.202-1:
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- contract types
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metteec, Great post. I love the zookeeper analogy. Can I use it?
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Assuming that we are talking about formal training, I think we need better training. Better content, better course materials, and better instruction. Also, the one size fits all model of training that has traditionally been in place results in a lot of training that is of no, or very little, relevance to the trainees. Some have characterized the current model as "check the block" training and I can see why. We do not need more training if it will be more of the same.
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I don't think so. I believe that FSS contracts contain a clause that allows agencies to incorporate agency-unique terms and conditions into a FSS order. Somebody once posted an example of such a clause in this forum, but I can't find it.
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Why are there types of contracts? (FFP, T&M, etc)
Don Mansfield replied to Swampdonkey's topic in Contract Administration
That's actually a thoughtful question--not a silly one. I don't know if I can fully answer your question, but I think I can do better than "because that's how it's done." Terms like "firm-fixed-price", "time-and-materials", "cost-plus-fixed-fee", etc., are used to describe a particular attribute of a contract--the cost or pricing arrangement. The risk assumed by the buyer differs depending on the contract's cost or pricing arrangement. For purposes of regulation, it's helpful to categorize contracts by cost or pricing arrangements because different sets of policies, procedures, clauses, etc. can be written for each type. For example, the Government requires higher-level approvals before using T&M contracts, but not for FFP contracts. The inspection clause in a fixed-price contract requires the contractor to correct defects discovered before acceptance at no increase in contract price, whereas the inspection clause in a cost-reimbursement contract would generally permit the contractor to get reimbursed for the cost of correcting defects. There are lots of other examples. Categorizing contract types by cost or pricing arrangement is an important convention in Government contracting, particularly for the application of regulations, but it may be trivial in other circumstances (i.e., commercial transactions with Acme). -
Bob, What's your opinion of Procurement Management Reviews that are typically done by contract specialists? The team members are not trained auditors. Shouldn't there be someone on the team with audit expertise? How much credence should we have in reports of PMR teams?
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metteec, I see your point. However, Government employees have a code of ethics to guide their decision-making. These are stated at 5 C.F.R. 2635.101( b ). The first ethical principle states: So, in the scenario that you described where a CO has a choice between doing their job and facing negative personal consequences or not doing their job and increasing their potential for personal reward (bonus, promotion, etc.) the ethical choice is clear. There's a quote from a Harvard Business Review article titled "The Ethical Mind" that has stuck with me and would like to share:
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Yes. The subpart doesn't apply to those orders.
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Task Order evaluations under multiple award IDIQ
Don Mansfield replied to lisasv's topic in Schedules, GWACS, MACs, IDIQs
Why do you have to "push back" on the attorney? He/she gave advice. If you think it was bad advice, don't take it. -
FAR 13 BPAs and Applicability of Trade Agreements
Don Mansfield replied to jb208's topic in Schedules, GWACS, MACs, IDIQs
No. You need a domestic offer in order to determine its cost to be unreasonable. See FAR 25.105.- 6 replies
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Small Business Overseas
Don Mansfield replied to APCAcqu&Asst's topic in Small Business, Socioeconomic Programs
See http://www.gao.gov/assets/660/657944.pdf.- 31 replies
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FAR 13 BPAs and Applicability of Trade Agreements
Don Mansfield replied to jb208's topic in Schedules, GWACS, MACs, IDIQs
I was trying to determine which clause would go in your BPA. If the WTO GPA applied pursuant to FAR 25.403( b )(3), then I think that your BPA would have to include FAR 52.225-5, which would apply to all calls. That clause requires delivery of U.S.-made or designated country end products. Do any of the exceptions at FAR 25.401( a ) apply?- 6 replies
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- BPA
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