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Posts posted by Don Mansfield
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I think your original point--the Guide overstated the effect of quantity of one on payment--is well-founded. I also think that what you described about making and paying for partial deliveries when the quantity is one is ok.
However, I think you have one thing wrong. I think you concluded that progress payments under FAR 52.232-5 and -10 are payments for accepted services because they are excluded from the definition of contract financing payment at FAR 32.001. You may have even concluded that they are delivery payments. If so, I think you are misinterpreting the definition of contract financing payment.
Progress payments based on percentage or stage of completion are a form of contract financing. However, for purposes of the Prompt Payment Act, progress payments under FAR 52.232-5 and -10 are specifically excluded from the definition of contract financing payment so they will bear an interest penalty if paid late. This does not mean they are payments for accepted services. If that were true, there would be no reason to specifically exclude them from the definition of contract financing payment (or specifically include them in the definition of invoice payment).
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@Voyager, do you think that Table 30 in the Guide would be ok if the contract had the milestone schedule in Section E that you described?
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Aren't you describing progress payments based on percentage or stage of completion?
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@C CulhamThat's ok. That was my next question.
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1 hour ago, Voyager said:
The mere existence of a Quantity "1" and UOM "Lot" is not dispositive that only one payment may occur. Contract specialists should take care not to fall into this thinking. Instead, if you need to restrict all payments to just one, write that into the Contract Schedule. Something like "Partial Payments not authorized" should do it.
Are you referring to contract financing payments or payments for partial deliveries? If the latter, how do you partially accept a quantity of 1?
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19 hours ago, nonlinearthinking said:
Do you think there are some agencies that are considered better than others when it comes to being an 1102?
Yes, but as you can see opinions differ.
@REA'n Maker and @formerfed give good advice on what you should consider in choosing an 1102 job. I would also add how much they care about training and developing employees.
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3 hours ago, jayandstacey said:
We may disagree in what part (1) says; I interpret that section to be 'of a type' and 'the item (not the type) has been sold or has been offered' -but the rest of the definition relaxes all that from multiple
Had to go back and read it a few times, but I think you're right.
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I think you are interpreting the definition too narrowly. An item need not to have been sold or offered for sale to be a commercial product--it just needs to be like one that is. That's what "of a type" means.
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My sentiments are similar to @formerfed. If I had believed that my first position as an 1102 was representative of 1102 work in general, I would not have stayed in the field. I moved a few times and ended up doing and seeing some cool stuff.
It sounds like you have a thankless job with limited responsibility that's starting to wear on you. May be time to look elsewhere.
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On 6/4/2023 at 3:59 PM, Retreadfed said:
Several years ago, DoD put out guidance saying CAS apply at the order level. It was a guidance memo not a part of the DFARS or PGI.
@C CulhamCan you find this?
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11 hours ago, here_2_help said:
The author is making a analogy. As with all analogies, it is imperfect.
But the first sentence is just plain wrong. "Technically", an IDIQ contract is a contract. Period. It doesn't have to be pre-priced to be a contract. Regardless of whether an order is ever placed, it's a contract. There's an offer, acceptance, consideration--the whole shebang.
A BOA is not a contract. There's no exchange of enforceable promises.
I think the author knows this but didn't explain it well.
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8 hours ago, here_2_help said:
Technically, an IDIQ contract is only a contract to the extent that the work is completely priced and can be unilaterally ordered by the government. To the extent that the IDIQ contract contemplates newly priced offers to perform additional tasks, such work is not part of the originally awarded contract, but is more in the nature of a basic ordering agreement.
What?
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Take a look at comment #31 of this Federal Register notice. The FAR Councils asserted that you can't have both CAS-covered and non-CAS-covered task orders under the same contract. They didn't explain why.
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4 hours ago, joel hoffman said:
Not for a prime contract for a commercial product or a commercial service under FAR Part 12 or Subpart 13.5.
For DoD, see also DFARS 212.207 (b).
Joel,
Wake up. We're discussing a subcontract.
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From the definition of "commercial service":
QuoteServices of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions
It's entirely possible for a service to meet that definition and be priced on a cost-reimbursement basis.
The cost or pricing arrangement for a given subcontract is dependent on the circumstances. The same service that is priced on a FFP basis under normal circumstances, may, under different circumstances, be more appropriately priced on a T&M or cost-reimbursement basis. This has nothing to do with whether the service is commercial or not.
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51 minutes ago, Neil Roberts said:
I did not see anything in the definition that lead me to think that non competitive commercial services that have no established market or catalog price, and can not even be estimated, are commercial services.
The services don't have to meet those criteria. They just have to be "of a type" of services that do.
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I'm afraid I have some bad news about Vern. He injured his one good eye a few weeks ago and it has become very difficult and time-consuming for him to write on a computer. He tried dictation, but it was just too much of a hassle. From now on, the little writing that he can do he will do for the Nash & Cibinic Report. He will share those articles with Bob to post on Wifcon.
I think we owe him a debt of gratitude for all that he has shared in the discussion forums and on the analysis page. I can't think of anyone who has freely shared their knowledge as much as Vern. I ask that we keep intellectual standards high in our discussions, ask good questions, back up our claims with facts, etc. In other words, follow Vern's example.
Vern will probably still read the forum discussions now and then. I'll make sure he reads this thread in case you want to wish him well.
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On 5/26/2023 at 6:05 AM, formerfed said:
This distinction is fairly common when using the advisory multi step process from FAR 15.202. Agencies routinely seek information from industry as an initial step. Often they ask for further elaboration and explanation of the information. None of that is considered discussions and agencies often make that clear in the solicitation instructions. What’s surprising though is after all this time, the issue surfaced in this court case.
What you are referring to involves two responses. I'm talking about one response to a solicitation.
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Me, too.
I was thinking through some of the implications of this decision, which I think the COFC got right.
A proposal revision would only include changes to the part of a solicitation response that was binding (i.e., the proposal).
If that's true, then changes made to the part of a solicitation response that was not binding (i.e., information) could be made without discussions.
I don't recall the GAO ever making this distinction in clarifications v. discussions cases. Do you?
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Do you think the FAR is inconsistent with use of "proposal" and definition of "proposal"?
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9 hours ago, joel hoffman said:
If a subcontract is billed to the government as cost reimbursement, that makes the prime contract partially cost reimbursement. Thus, I don’t think that it would be allowable for a contract for commercial services.
However, if the cost reimbursement arrangement is strictly between the prime and sub and the price to the government is fixed, then it would seem to be acceptable.——————————————-
What rule or contract clause prohibits it?
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7 hours ago, MileHighAcq said:
so what happens when a contracting officer signs a contract but did not fully comply with a law regarding procedure or contract content?
Then the CO may have created an unauthorized commitment.
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2 hours ago, Fara Fasat said:
What about subcontracts?
Not that I know of.
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15 hours ago, Sil said:
The optional CLINs were posted with the RFP, KTRs were asked to propose on those CLINs, those CLINs were evaluated for award, this could have possibly changed the competition? So can we just remove them?
No comprendo. Why would you remove an optional line item (instead of just not exercising the option)?
Contract Line Items
in Contract Award Process
Posted
@C CulhamNice detective work. I suspected the arrangement would make payment systems go haywire, but I couldn't find any prohibition.