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Don Mansfield

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Posts posted by Don Mansfield


  1. 3 minutes ago, joel hoffman said:

    For example...? Me thinks you speak too generally.  

    Take ji's example from earlier in the thread:

    Quote

    As an example, in a contract for commercial items, the contract calls for 100 EA white items for delivery in 60 days.  Shortly after award, the parties agree to 33 white, 33 red, and 34 blue in 45 days.

    The Government has given up its right to the delivery of 100 white items delivered in 60 days in exchange for 33 white, 33 red and 34 blue delivered in 45 days.


  2. 1 hour ago, 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?

    Yes, provided they obtain consideration.


  3. 17 hours ago, ji20874 said:

    I don’t like wholesale incorporation of technical proposals into contracts — it is a bad practice.  It is far better to carefully select the important parts of the technical proposal (especially the promises, and especially when the selecting official relied on those promises in the selection decision) and incorporate only those parts.

    Hear, hear!


  4. 5 hours ago, Desparado said:

    I actually think the opposite.  I think it is underused.  There's no reason why past performance cannot be part of an LPTA competition.  Part of the TA could be that the contractor must have acceptable past performance based on XX. It would be a pass/fail criteria as with the technical factors. 

    Assuming that whoever you award to will meet the responsibility standard at FAR 9.104-1(c), what's the point of making past performance "part of the TA"?

    Quote

     

    To be determined responsible, a prospective contractor must-[...]

    (c) Have a satisfactory performance record (see 9.104-3(b) and subpart 42.15).

     

     


  5. @Lionel Hutz,

    I agree with almost everything that you wrote and you wrote very well. However, I don't agree that all bilateral modifications must have consideration. Some bilateral modifications are negotiated adjustments pursuant to contract terms--the consideration is already in the original deal. For example, the contractor experiences an excusable delay and the parties negotiate a schedule extension. The CO need not seek consideration for the schedule extension. For these types of bilateral modifications, I think there is value in citing the clause providing for the adjustment because the CO wouldn't otherwise have the authority to modify the contract without consideration. It tells the reviewing/approving official, who should be looking for the consideration, why consideration isn't necessary. For bilateral modifications that require consideration, I see no value in citing anything for the reasons you explained. I think the request for authority in block 13C has led to some of the dogmatic responses we've seen in this thread (e.g., "mutual agreement of the parties", "FAR 52.212-4(c)", etc.).   


  6. 11 hours ago, ji20874 said:

    Joel,

    May I ask you to respond to my question?  You (and Don) and telling readers not to use agreement of the parties, but you aren't telling them what they should use instead.

    In a contract for commercial items, the contract calls for 100 EA white items for delivery in 60 days.  Shortly after award, the parties agree to 33 white, 33 red, and 34 blue in 45 days.  That’s legal and honorable, right?  Everyone is happy.  What is the authority for block 13 of the SF-30?

    I'm not telling readers not to use agreement of the parties, I just don't see that as an "authority" as that word is used in block 13 of the SF 30. It seems like a superfluous description of the modification. It's of no use. I would say the same of "FAR 1.602-1".

    The only value I can see in providing a citation in block 13C is if there were no consideration. Normally, the contracting officer would have to ensure that there was consideration in a bilateral modification (i.e., the CO does not generally have the "authority" to bilaterally modify the contract without obtaining consideration). If, however, the modification was a negotiated adjustment pursuant to a contract clause that only made changes in one party's favor, then citing the clause communicates that the contracting officer is not required to obtain consideration. 

    The modification in your scenario is legal, honorable, and brings joy. I would put "Not applicable--consideration required" in block 13C.    


  7. What many folks don't understand is that incorporating a proposal into the contract doesn't necessarily bind the contractor to anything. A typical technical/management proposal doesn't contain promissory language--it contains descriptions of the intended approach, plans, expectations, etc. Such statements are not binding promises--they are illusory promises. The contractor would only be bound to promises made in the technical/management proposal.


  8. 9 hours ago, jwomack said:

     

    No.  Two signatures don’t always indicate the mod required bilateral signatures to be binding.  Sometimes contractors sign when they don't need to or weren’t asked to…presumably as a gesture to show they received the mod and don't have a problem with it.  Also, selecting 13C requires completion of a fill-in.  “This supplemental agreement is entered into pursuant to authority of: ________”.  Leaving the fill-in blank wouldn't make sense.

     

    On the other hand, if 13A-D were not selected and 13E "is required to sign" is selected then it would be self-evident that bilateral signatures were required.

    Why can't you select block 13C and 13E?

    5 hours ago, Matthew Fleharty said:

    Because the form asks for one and due to poor workforce education programs, some reviewer is going to mark up the organization during an inspection for not citing an authority or citing the wrong authority (in his/her opinion).  That may seem silly, but it's the reality in many organizations which is why someone started this thread in the first place - they don't want to make a mistake.

    Probably right. If people like @General.Zhukov do it for that reason, then I don't have a problem. I'm more concerned about the newbies who are being taught that a clause must be cited for a bilateral modification.


  9. 4 hours ago, jwomack said:

    I don’t think 52.212-4(c) is an “authority” but see no harm in citing it as it helps demonstrate the mod was subject to bilateral approval.  If I felt it was necessary to cite a true authority it would be 1.602-1.

    Wouldn't the two signatures on the modification and the check in block 13C make that obvious?

    2 hours ago, joel hoffman said:

    The mod is being executed as a “change” in accordance with .212-4:c).

    True, but that doesn't answer my question. Why do people think that it's an "authority"?

    2 hours ago, PepeTheFrog said:

    Interesting question.

    1. What would you cite instead in the situation?

    2. What are your thoughts on contracting officers citing FAR 43.103(a) or 42.103(b)? That's related to your question. Those two FAR citations are descriptive. They describe unilateral and bilateral modification. Those two FAR citations should not even be found within the contract, and are usually not found within the contract. Yet PepeTheFrog sees them cited as the "authority" on many modifications. 

    3. What do you think about citing "mutual agreement of the parties" as the "authority"? That also seems hollow or superfluous. Aren't the two parties memorializing their mutual agreement by their respective signatures? 

    1. Why would I have to cite an authority at all?

    2. I think contracting officers who cite FAR 43.103(a) or (b) as an "authority" do so because they are either not thinking about what they are doing or are placating somebody.

    3. I think contracting officers who cite "mutual agreement of the parties" as an "authority" do so because they are either not thinking about what they are doing or are placating somebody.


  10. If a third party knew they could force a competition by protesting such an issue, I would expect to see someone try. 

    You are misrepresenting your conclusion--that the proposed course of action is a violation of CICA--as a matter of fact. You've made a convincing argument in support of your conclusion, but we don't really know whether the GAO or COFC would go along if they haven't been presented with the same facts. Maybe they would see a reasonable distinction between prior cases dealing with improper option exercises and cases where all parties acted as if the option were exercised and the late notice was just an "oops!" 


  11. 2 hours ago, Lionel Hutz said:

    Did the contracting officer comply with applicable laws and regulations concerning how to solicit and award a contract?  No.

    Do you know of any cases where:

    1) Government did not exercise option on time

    2) Contractor kept working/Government kept overseeing

    3) Government sent notice of option exercise late

    4) No change to contract terms and conditions

    5) Third party protests that Government violated CICA

    6) Third party won case?

    If what your saying is true, I would expect there to be such a case. 

     


  12. 2 hours ago, Desparado said:

    Don - I read those decisions I have a question that I couldn't find the answer to in any of those cases.  When does a contract "expire"? 

    For purposes of interpreting FAR 52.217-9, I think the contract expires when the period of performance is over. That seems to be what the Board assumed in American Contract Servs., Inc., ASBCA 46788, 94-2 BCA ¶ 26,855, recons. denied, 94-3 BCA ¶ 27,025, aff'd, 53 F.3d 348 (Fed. Cir. 1995).

     

    2 hours ago, Desparado said:

    Are there any cases (I couldn't find any) that would set a precedent on the legality (or lack thereof) of exercising an option after the PoP ends?

    I don't think it's illegal, it's just not in compliance with the contract. The contractor can waive Government noncompliance, just like the Government can waive contractor noncompliance.


  13. I think the best you can do is exercise the option late and request that the contractor waive its right to object to an improper exercise. If the right to object to an improper option exercise can be waived implicitly through performance, then it can be waived expressly. Here are some cases where the contractor waived its right:

    Quote

     

    Objection to improper exercise waived by performance

    Walters & Co., Inc. v. U.S. (CtCl 1978) 24 CCF ¶81,806, 576 F2d 362; aff'g (1976) ASBCA No. 19335, 76-1 BCA ¶11,767.

    Continued performance without objection waived defective exercise

    Contract Automotive Repair and Management v, GSA (1999) GSBCA Nos. 12773, 12774, 13627, 99-2 BCA ¶30,530.

    Performance of option without objection caused waiver of right to object

    USD Technologies, Inc. (1987) ASBCA No. 31305, 87-2 BCA ¶19,680.

     

    If the contractor objects to the improper exercise and wants to renegotiate terms, then I think you would have a CICA issue (i.e., you would have to justify negotiating on a sole source basis).


  14. 27 minutes ago, Amart said:

    I notice you responded to the first part of my post but not the part about the incentive to stonewall.  How would you mitigate/counter that under your proposed regime?

    The general rule would be to treat all items as commercial. An exception would be if the contractor was performing or had performed within the last year a fully-covered CAS contract or subcontract. 


  15. 5 hours ago, Lionel Hutz said:

    Does your situation fall in one of the above three scenarios?  If so, bring DFARS 204.7103-1(a)(4)(ii) to the legal office's attention.  If not, you're out of luck unless you can find some other authority to include multiple accounting classification citations on one contract line item.

    Multiple accounting classifications under a single line item is also permitted when using separately identified subline items. DFARS 204.7104-1(b)(1)(i):

    Quote

     

     (b)  Separately identified subline items.

                  (1)  Subline items will be used instead of contract line items to facilitate payment, delivery tracking, contract funds accounting, or other management purposes.  Such subline items shall be used when items bought under one contract line item number—

                        (i)  Are to be paid for from more than one accounting classification.  A subline item shall be established for the quantity associated with the single accounting classification citation.

     

    Contrast the examples at DFARS PGI 204.7104-2(e)(6) and (7).


  16. 5 hours ago, Amart said:

    I disagree with this suggestion.  As it currently stands, the Contractor is in the best position to provide evidence in support of its assertions that its product fits one of the eight definitions of commercial item (e.g. sales figures, marketing documents, internal emails).

    If the burden switched to the Government, you'd be forcing the party without any of that data to prove a negative.

    Why couldn't the Government obtain the data from the contractor? Doesn't the Government obtain data from the contractor to determine price reasonableness? I think it's called cost or pricing data or something like that. 

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