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Don Mansfield

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Everything posted by Don Mansfield

  1. No, I don't. I said that I thought it would be inconsistent to read in the implementing clause by operation of law, but not the applicable wage determination. That case sheds no light on that issue.
  2. I don't think either of us can prove a position, but your claim is inconsistent with Spectrum American Contractors, ASBCA No. 33039, 87-2 BCA P 19864, May 4, 1987.
  3. That case is inapposite--the implementing clause was physically in the solicitation and contract, correct? Did the Court say whether or not the implementing clause could be read in pursuant to the Christian Doctrine?
  4. @Vern Edwards, Retreadfed's presumption was that FAR 52.222-41 could be incorporated in to the OP's contract by operation of law. I wasn't sure from your post whether you were agreeing or disagreeing with that presumption. If we accept his presumption, then I think it would be inconsistent to argue that the applicable wage determination (the one that is supposed to be in the contract) would not also be incorporated by operation of law. If anyone thinks I'm wrong, please cite a regulation or an authoritative decision.
  5. The applicable definition of "subcontract" is at FAR 44.101: Contract is defined at FAR 2.101: So, if the prime truly has a BOA as described in the FAR, what they are saying sounds right.
  6. @Retreadfed, How is omitting the correct wage determination from a contract different than omitting a required contract clause? Why wouldn't the applicable wage determination be read in to the contract by operation of law? Is the Government bound by the unauthorized inaction of its contracting officers?
  7. I think you are reading in a requirement that just isn't there. These clauses can also be harmonized by considering FAR 52.222-41(c)(3), which states: This is not conditioned on attaching a new wage determination to the contract. The adjustment is conditioned on the length of the contract and the issuance of wage determinations by the Wage and Hour Division subsequent to the original contract award. I think a more harmonious interpretation of paragraph (c) is that the wage determination attached to the contract document applies upon award, but is subject to later adjustment upon the occurrence of the conditions stated in (c)(3). I haven't researched it, but your interpretation may also ignore paragraph (b), which states: Are these statutory and regulatory provisions predicated on the contracting officer modifying multiple year contracts to attach updated wage determinations?
  8. Wouldn't this prohibit the COR from changing a due date for a deliverable?
  9. You're welcome. Although, Vern is the one giving out awards. About 20+ years ago, Vern posted a question here and offered a prize to the first person submitting a correct response. I got it right and he sent me a copy of The Source Selection Answer Book. It was a good question--I'll ask it after the current contest is over.
  10. You could respond with: "As a policy, we notify the agency when we are not shown the final submission and inform them that we cannot vouch for any statements made about our company." Those pesky company policies. What are you gonna do?
  11. No, I said it doesn't get you out of posting a synopsis.
  12. This thread reminded me of that episode. I love that show.
  13. What you're quoting doesn't get you out of posting a synopsis, if that's what you're asking.
  14. @here_2_help Same here. This may interest you: https://freopp.org/is-college-worth-it-a-comprehensive-return-on-investment-analysis-1b2ad17f84c8
  15. What do you mean "reserved for a small business"? Was competition limited to small business concerns, or was it a sole source to a small business concern?
  16. Seems to me the QA reviewer doesn't want to change the contract type, they just want to change the way it's described in the AP. I don't see why this should have any effect on provision or clause selection.
  17. Consider the following exchange between two people: Obviously, Speaker 2's answer is not responsive to Speaker 1's question. Speaker 1 wanted to know about a particular aspect of Speaker 2's car: its origin. Speaker 2 described a different aspect of his car: its color. While Speaker 2's statement about the color of his car may be true, it doesn't tell us anything about the origin of his car. Easy enough, right? Ok, let's try another one. Consider the following exchange between two contract specialists: Is Contract Specialist 2's answer responsive to Contract Specialist 1's question? No, the answer is no more responsive to the question than Speaker 2's answer was to the question of whether his car was foreign or domestic. Why? In this exchange, Contract Specialist 1 wanted to know about a particular aspect of Contract X: ts compensation arrangement. Contract Specialist 2 described a different aspect of Contract X: its delivery arrangement. While Contract Specialist 2's statement about the delivery arrangement of Contract X may be true, it doesn't tell us anything about the compensation arrangement of Contract X. Make sense? If so, see if you can spot anything wrong with the following passage of an article on contract types that recently appeared in the December 2010 issue of Contract Management (see Government Contract Types: The U.S. Government?s Use of Different Contract Vehicles to Acquire Goods, Services, and Construction by Brian A. Darst and Mark K. Roberts): Do you see anything wrong? Notice that the first two "families" are categorized by compensation arrangement. However, the third family contains a mix of terms used to describe compensation arrangement (T&M/LH), delivery arrangement (indefinite delivery), the extent of contractor commitment (level-of-effort), and a unique term used to describe a contract that is not definitive (letter contract). The way this passage is written implies that an indefinite delivery contract, a level-of-effort contract, and a letter contract are necessarily different (belong to a different "family") from a fixed-price or cost reimbursement contract. However, an indefinite delivery contract or a level-of-effort contract will have a compensation arrangement. The compensation arrangement can be fixed-price, cost-reimbursement, T&M/LH, or some combination thereof. A letter contract may or may not have a compensation arrangement when it is issued. You could conceivably have a letter contract that had a cost-reimbursement compensation arrangement, an indefinite delivery arrangement, and that provided for level-of-effort orders. As such, the authors? categorization of contract types makes as much sense as categorizing cars into three families?foreign, domestic, and red. Incentive Contracts? Not What You Think They Are Consider the following simplified description of a compensation arrangement: Does the preceding describe an incentive contract? Many would say yes, because the arrangement provides for an incentive--specifically, a performance incentive. However, that would be incorrect. Just because a contract contains an incentive does not mean that it is an incentive contract. FAR 16.202-1 contains the following statements in a description of firm-fixed-price contracts (similar statements pertaining to fixed-price contracts with economic price adjustment can be found at FAR 16.203-1. [bold added]. Further, FAR 16.402-1(a) states: Thus, it's not enough for a contract to contain an incentive to be an incentive contract. It must contain a cost incentive (or constraint). In the aforementioned Contract Management article, an endnote references FAR 37.601(3) and misinterprets this paragraph as--encouraging the use of incentive-type contracts where appropriate. Here's what FAR 37.601(3) actually says: The authors have made the mistake of assuming that a contract that contained a performance incentive was necessarily an incentive contract. In fact, when acquiring services FAR 37.102(a)(2) states the following order of precedence: As shown above, a firm-fixed-price contract would take precedence over an incentive contract. A Genuine Misunderstanding In a discussion of additional contract types and agreements, the Contract Management article contained the following statement (which caused me to stop reading and start writing): Huh? T&M/LH is a type of indefinite delivery contract? I'll let you readers ponder that one. The article concludes with a plug for the authors-two-day course in, you guessed it, types of contracts. I will pass.
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