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Don Mansfield

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Posts posted by Don Mansfield


  1. On 4/16/2019 at 11:33 AM, Confused1102 said:

    Scenario: You're doing an EDWOSB Sole Source award via 10 United States Code 2304(c)(5), as implemented by FAR 6.302-5: Authorized or Required by Statute using EDWOSB Program,15 U.S.C. 637(m), as implemented by FAR 19.1506(a). Assume all requirements of 19.1506(a) are satisfied.

    Are you required to post a synopsis required by FAR 5.201(b)?

    Excpetion at FAR 5.202(a) "The proposed contract action is expressly authorized or required by a statute to be made through another Government agency, including acquisitions from the Small Business Administration (SBA) using the authority of section 8(a) of the Small Business Act (but see 5.205(f)), or from a specific source such as a workshop for the blind under the rules of the Committee for the Purchase from the Blind and Other Severely Disabled;"

    My thought is No, you don't need to post the synopsis because you are making an award authorized by statute from a specific source (an EDWOSB). But I feel the wording of 5.202(a)(4) isn't exactly clearly. Wanted to see what others thought of this sitaution. If my interpertation is accurate, then this would apply to EDWOSB, WOSB, SDVOSB, and HUBZone.

     

    I agree with you. FAR 5.202(a)(4) is using the same language that is used at FAR 6.302-5. The only difference is the list of examples is shorter. Neither list is exhaustive.


  2. 2 hours ago, Retreadfed said:

    some prime contractors do require subcontractors to submit certified cost or pricing data in regard to subcontracts although the prime contractor was not required to submit such data

    If the data were not required to be submitted by the FAR, then they would not be "certified cost or pricing data."

    Quote

    “Certified cost or pricing data” means “cost or pricing data” that were required to be submitted in accordance with FAR 15.403-4 and 15.403-5 and have been certified, or is required to be certified, in accordance with 15.406-2. This certification states that, to the best of the person’s knowledge and belief, the cost or pricing data is accurate, complete, and current as of a date certain before contract award. Cost or pricing data is required to be certified in certain procurements (10 U.S.C. 2306a and 41 U.S.C. chapter 35).

     


  3. On 4/5/2019 at 11:57 AM, animalspirits said:

    Scenario: Contract is awarded for XY services. Government wanted to add Z, which was out of scope. Government prepared and issued adequate JOFOC. Current contract is now for XYZ services.

    Question: Now Government is now attempting to add Q services to the contract. For the sake of argument, assume the following: Q services are within scope of XYZ contract, but they are out of scope of XY contract. When deciding whether a JOFOC is required to add Q to the contract, may the Government's analysis be based on the current iteration of the contract (i.e. XYZ contract, meaning that Q is in scope and a JOFOC isn't required)? Or must the Government's analysis be based on the original contract at award (i.e., XY contract, meaning that Q is out of scope and a JOFOC is required)? Regulations or cases supporting your position would be helpful. THANK YOU!

    Z is a contract, correct?


  4. From Formation of Government Contracts, Chapter 9, Section V, "Level of Effort Contracts":

    Quote

    There are two techniques used to contract for a level of effort. First, the parties can agree to fixed hourly rates for specified classes of labor with payment based on the number of actual hours incurred. These rates include the contractor's indirect costs and profit. If this type of contract calls for labor only, it is called a "labor-hour" contract, FAR 16.602. If it includes the purchase of materials as well as the incurrence of labor effort, it is called a " time-and-materials" contract, FAR 16.601. The second technique provides a stated amount of compensation for the incurrence of a specified number of labor-hours over a fixed period of time. This type of contract is generally called a "term" type contract and can be written as a "firm-fixed-price, level-of-effort term contract," FAR 16.207, or a cost-reimbursement term contract, FAR 16.306 (d). In the former contract, the contractor is paid the price upon the incurrence of the labor-hours, while in the latter contract, the contractor is paid the fixed fee plus the costs upon the incurrence of the labor-hours.

    From The Government Contracts Reference Book:

    Quote

    LEVEL OF EFFORT CONTRACT
    A type of contract stating the work in terms of an amount of effort (usually labor-hours or labor-years) to be performed by specified classes of employees over a given period of time. There are four types of level-of-effort contracts: the FIXED-PRICE LEVEL-OF-EFFORT CONTRACT, the TIME-AND-MATERIALS CONTRACT, the LABOR-HOUR CONTRACT, and the TERM CONTRACT.

     


  5. 14 minutes ago, Virgil Sollozzo said:

    Does Limitation of Funds create a contingency (like Availability of Funds might in other circumstances) that limits the Government's liability to the amount of incremental funds placed on the contract?

    The Limitation of Funds clause limits the Government's liability to the amount "allotted by the Government to the contract".


  6. On ‎3‎/‎28‎/‎2019 at 7:33 AM, Virgil Sollozzo said:

    So the KO is ready to make this award, months in advance of the performance start date. I know he can put on contract the entire estimated cost. Can he put on half of the estimated cost? Can he put on $100? Can he put on $0?

    First, there's a difference between creating an obligation and recording an obligation. The amount recorded doesn't change the amount created and vice-versa. The Recording Statute requires that agencies record of obligations reflect the amount of obligations created.

    So, if the contract creates an obligation for half the estimated cost or $100, then that's the amount that should be recorded. If the contract doesn't create any obligation at the time of award (like in a requirements contract), then no obligation should be recorded.


  7. 2 hours ago, Constricting Officer said:

    The situation that sent me down this rabbit hole was a requirement I received to purchase $1.9 million worth of supplies and have them installed for $250K. It sure don't sound like the "principal purpose" is to in that case is to provide services. Not trying to get out of the work (as I am almost done with the requirement), but simply to make the case to leadership.

    Maybe the definition of "supplies" at FAR 2.101 would help?

    Quote

    “Supplies” means all property except land or interest in land. It includes (but is not limited to) public works, buildings, and facilities; ships, floating equipment, and vessels of every character, type, and description, together with parts and accessories; aircraft and aircraft parts, accessories, and equipment; machine tools; and the alteration or installation of any of the foregoing.

     


  8. In addition to what Jamaal wrote, it's not correct to say the Government closes out contracts. The Government closes out its contract files. FAR subpart 4.8 covers "Government Contract Files" and FAR 4.804 covers closeout of Government contract files. A contract may or may not exist after the closeout of a Government contract file.

    Also, the amount that must be legally recorded as an obligation is not affected by payments made or the passage of time since the obligation was recorded. The introduction of risk management into such a scenario is misplaced, unless the risk that's being managed is the risk of being caught under-recording obligations.


  9. On ‎3‎/‎15‎/‎2019 at 1:07 PM, Retreadfed said:

    Lionel said, "relinquishing legal rights serves as adequate consideration."  Legal rights are a property interest vested in the government.  Do contracting officers have the authority to divest the government of its property rights without such authority being granted in a contract clause?

    In Whittaker Corp., ASBCA 18422, 81-1 BCA ¶ 15,055, the contracting officer did just that. The contracting officer granted an appeal right that a mandatory contract clause precluded. The Board found that the CO's action was "well within the ambit of the contracting officer's authority to administer the contract."

    Quote

    IN ANY EVENT, WE THINK THE CONTRACTING OFFICER’S AGREEMENT, AS EVIDENCED BY CONTRACT MODIFICATION NO. 16, TO GRANT AN APPEAL RIGHT UNDER THE DISPUTES CLAUSE FOR CONSIDERATION CONSTITUTED A WAIVER OF THE RIGHT CONFERRED ON THE GOVERNMENT BY THE CLAUSE IN QUESTION. ADEQUATE CONSIDERATION FOR THIS WAIVER WAS GIVEN AND THE GRANTING OF SUCH A WAIVER WAS WELL WITHIN THE AMBIT OF THE CONTRACTING OFFICER’S AUTHORITY TO ADMINISTER THE CONTRACT. WE PERCEIVE NO DISTINCTION BETWEEN THIS WAIVER AND OTHERS A CONTRACTING OFFICER MAY CONFER FOR CONSIDERATION SUCH AS DELIVERY FAILURES, TERMINATIONS FOR DEFAULT AND THE ACCEPTANCE OF LESS THAN A SPECIFIED PERFORMANCE. ACCORDINGLY, WE DO NOT CONSIDER THE GOVERNMENT’S ARGUMENT THAT THE CONTRACTING OFFICER ACTED ULTRA VIRES IN VIEW OF ASPR 1-109 AND THE CHRISTIAN DOCTRINE APPLICABLE THERETO TO BE MATERIAL TO THE QUESTION OF THE BOARD’S JURISDICTION IN THIS CASE. IT IS THE GOVERNMENT’S CONTENTION THAT SINCE THE REFERENCED ASPR SECTION WAS A PART OF THE CONTRACT PURSUANT TO THE CHRISTIAN DOCTRINE THE CONTRACTING OFFICER HAD NO AUTHORITY TO DEVIATE THEREFROM WITHOUT FOLLOWING THE PRESCRIBED PROCEDURE. THIS CONTENTION IS IMMATERIAL SINCE WE DO NOT CONSIDER THE ACT OF THE CONTRACTING OFFICER TO BE A DEVIATION FROM ASPR.

    A contracting officer does not need authority from a contract clause to relinquish a legal right.

    Quote

    If an agency can waive (deviate from) a statute, I think the statute has to give the agency explicit authority to do so.

    I agree in general. However, from Formation of Government Contracts:

    Quote

    A judicially forged exception to the requirement for specific statutory authority for a government official to waive a statute has been applied to the Assignment of Claims Act, 41 U.S.C. § 6305(b). This statute states that any prohibited assignment "shall cause the annulment of the contract." In Tuftco Corp. v. United States, 222 Ct. Cl. 277, 614 F.2d 740 (1980), the court held that a contracting officer possessed the necessary authority to waive the statute. This seemingly controverts not only conventional concepts of sources of authority, but also the specific policies inherent in the Act.

     


  10. 3 hours ago, Retreadfed said:

    However, in some instances the contracting officer cannot.  For example, if a cost is made unallowable by statute such as 10 U.S.C. 2324, I don't see how a contracting officer could agree to make such a cost allowable.

    I suppose that's true, but I can't find any stated limits on an agency's authority to deviate from the FAR. FAR 1.402 begins with "Unless precluded by law, executive order, or regulation..." So would a statute have to expressly say that deviations are precluded?

    4 hours ago, Retreadfed said:

    Since C corps. can claim state income taxes they pay as an allowable cost, would it be permissible and maybe not so far fetched for a contracting officer to seek a deviation to allow an S corp to claim state taxes paid by the owner on income of the S corp as an allowable cost?

     Good question. I know that I don't know the answer.


  11. 3 minutes ago, PepeTheFrog said:

    PepeTheFrog was not asked the question, but is willing to answer Don Mansfield.

    No, a contracting officer is not prohibited from deviating from the cost principles, provided they complied with FAR 1.602-1(b).

    Yes, it is possible for a contracting officer to deviate from the cost principles while also complying with FAR 1.602-1(b).

    Thank you, @PepeTheFrog. I agree.

    Now, do you know of anything specifically prohibiting the contracting officer from deviating from FAR 31.205-41(b)(1), assuming they complied with FAR 1.602-1(b)?


  12. 58 minutes ago, joel hoffman said:

    I am not going to answer you with a one answer fits every circumstance, when you won’t answer any question.

    Just to review the order of events, you made the following claim:

    Quote

    For example, it ought to be obvious that  income taxes aren’t allowable expenses for reimbursement. If not obvious, read 31.205-41 (b) (1).

    I then asked:

    Quote

    Are you claiming that the CO would be prohibited from deviating from the cost principles, even if they complied with FAR 1.602-1(b)?

    You said you answered that question, but you didn't. So, I asked:

    Quote

    Are you saying that a contracting officer cannot deviate from the cost principles AND comply with FAR 1.602-1(b)?

    The ball is in your court.


  13. 2 minutes ago, joel hoffman said:

    I answered you.  You keep asking a circular question. 

    Tell me how they comply with 1.602-1(b) if they reimburse a company for the unallowable cost of income tax. 

    Actually, you didn't answer me. I specifically asked whether a contracting officer was prohibited from deviating from the cost principles, provided they complied with FAR 1.602-1(b).

    Are you saying that a contracting officer cannot deviate from the cost principles AND comply with FAR 1.602-1(b)?


  14. 1 hour ago, joel hoffman said:

    “1.602-1 (b) No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.”

    Are you referring to the original contract or to the modification?

     The KO and it’s acquisition team would not be complying with 1.602-1(b), if they decide to reimburse a contractor for paid income taxes in a contract mod.

    Income taxes are not an allowable expense and are to be excluded from proposal and contract prices, if specifically identified. 

    We both are wasting our time here with constant circular references. 

    I'm asking if the CO would be prohibited from deviating from the cost principles, provided they complied with FAR 1.602-1(b). Yes or no?


  15. Delany,

    ji gave you good advice:

    On ‎3‎/‎15‎/‎2019 at 7:55 PM, ji20874 said:

    So don’t evaluate past performance as pass/fail — stop it!  Instead, deal with past performance as part of a tradeoff, and assign the offeror a low confidence (or high risk) rating for past performance — low confidence is not the same as unacceptable.  The low confidence rating does not disqualify the offeror, but it will likely be a disadvantage in the tradeoff.  In the tradeoff, select the best value offeror, even if you have to pay a price premium to another offeror for higher confidence.  In this approach, the unsuccessful small business offeror is not referred to the SBA for s COC.

    Don’t use LPTA if LPTA will not give you the best value.  Use s tradeoff.  Problem solved.

    I would add that the same goes for any responsibility-type criteria at FAR 9.104-1. You shouldn't evaluate any of those on a pass/fail basis to determine technical acceptability when using LPTA.


  16. On ‎3‎/‎15‎/‎2019 at 3:51 PM, joel hoffman said:

    For example, it ought to be obvious that  income taxes aren’t allowable expenses for reimbursement. If not obvious, read 31.205-41 (b) (1).

    Are you claiming that the CO would be prohibited from deviating from the cost principles, even if they complied with FAR 1.602-1(b)?


  17. 23 minutes ago, joel hoffman said:

    For example, can the KO wave their magic wand to assume the otherwise contractor allocated risk, responsibility or liability “if they obtain consideration”? 

    Yes. For example, FAR 46.407(f) permits this:

    Quote

    When supplies or services are accepted with critical or major nonconformances as authorized in paragraph (c) of this section, the contracting officer must modify the contract to provide for an equitable price reduction or other consideration.

     

    23 minutes ago, joel hoffman said:

    Can a KO turn a known,  underground condition into a “differing site condition” for consideration, then pay for the additional costs to perform the work on a fixed price contract?

    I don't understand what the consideration would be in this scenario.

     

    23 minutes ago, joel hoffman said:

    Can a KO indemnify a contractor for possible public health risks or future employee illnesses due to possible release of toxic chemicals for an environmental remediation of RCRA site if they obtain consideration?  

    Can the KO relieve the contractor of any liability for injury to the contractor’s employees or to the public due to unsafe practices if they obtain consideration? 

    Can the KO make the government responsible for the impact of future corporate income tax increases on a fixed price contract if they obtain consideration? 

    In the absence of some specific limitation on the contracting officer's authority in these circumstances, then yes. They would still have to comply with FAR 1.602-1(b) before exercising their authority.

    BTW, FAR 1.102(d) places the burden on the naysayer when it comes to the exercise of authority. As such, please cite the law, executive order, or regulation that would prohibit the types of modifications that you described.

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