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Don Mansfield

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Everything posted by Don Mansfield

  1. Your option clause must allow you to do such a thing.
  2. Doesn't the GAO decision answer the question?
  3. benmac, In the eyes of the law, the contractor had constructive knowledge of MSPA. Whether they had actual knowledge is irrelevant.
  4. benmac, Lack of a clause in the contract does not excuse a contractor for failing to comply with a law or regulation--it just does not make them contractually liable for the infraction. There are a lot of laws and regulations that contractors must abide by that may not specifically be called out in the contract (e.g., ITAR, EAR, OSHA, other DoL regulations). The Government would probably not have any contractual remedies for noncompliance (T4D, withholding of payments, etc.), but that does not mean that a Government agency could not impose penalties. If the contractor had spilled toxic chemicals all over the place, do you think they would be immune from EPA fines because the contract they were working under didn't put them on notice that EPA regulations apply to them? By the way, the contractor was aware of the MSPA. Ignorance of the law is no excuse.
  5. Another topic: What do 1102s really do? How much of their workload is really 1105 (Purchasing) and 1106 (Procurement Technician) work?
  6. Carl, Why can't an agency set aside an FSS order for competition among 8(a) participants outside of the 8(a) Program? Why do you think the procedures in FAR subpart 19.8 necessarily apply?
  7. I would like to see a study of what effect written technical and management proposals submitted in response to a solicitation have on contract performance. These are the parts of the proposal (typically nonbinding) where the offeror must discuss their proposed "approach" to performing the contract. Such proposals can carry significant weight in determining who wins a source selection. However, I suspect that they are not used to guide contractor performance or to assess contractor performance. They are filed and quickly become irrelevant. This raises the question--why do we use this information to select contractors? Why must source selection be an essay writing contest? Such research would include interviewing Government contractors to determine the extent to which these proposals affect actual contract performance and interviewing Government personnel responsible for assessing contractor performance to determine the extent to which such proposals affect performance assessment. If you pick this topic, I will help.
  8. We've debated similar language at FAR 16.505( b )(2)(i)(F): (Start at post #37) I don't think it's clear.
  9. Leslie, I wouldn't rely on the FAR Matrix to determine whether a clause should be in a particular contract--I would read the prescription. First, the matrix contains mistakes. Second, most of the entries on the matrix are "A", which means "required when applicable." You're going to have to look up the prescription to determine if something is applicable. Third, the FAR matrix may say to use a clause, but an agency supplement may say not to use that FAR clause. For example, the clauses prescribed at FAR 27.409 don't apply to DoD. As far as the options, if you are renegotiating, the CO would have to comply with FAR Part 6. Read Vern's last blog entry: >
  10. KME, The total amount of fixed fee should be based on the total requirement. However, that does not necessarily mean that the amount of fixed fee paid will be the total amount of fixed fee stated in the contract. I would state the total amount of fixed fee in the contract and include a separate fee payment schedule that was based on the portion of the level of effort delivered. As far as the fee payment schedule that you proposed, I've never heard of a level of effort expressed as an employee without some associated measure of time. What if one employee works 200 hours and another 2000? Did the contractor deliver 2 employees or 1.2? Or something else?
  11. It probably was. I found it in the archives. Do you have a link to the August 2008 memo?
  12. Is this it? http://www.acq.osd.mil/dpap/policy/policyvault/2004-0889-DPAP.pdf%C2'>
  13. Here's what the GAO wrote in the footnote: I see now that the last sentence can be interpreted as a mere hypothetical (and I hope that's what it is). However, some are interpreting it differently. In the blog posted by Federal Contractor, the blogger wrote: I think small business concerns are rejoicing in the GAO decision.
  14. Retreadfed, True, but in light of the new law, the 50% requirement as stated in the clause may have no legal effect. In other words, the law may have invalidated that part of the clause. I thought as you do and discussed it with a Government contracts attorney that I trust and he didn't have a problem with what the GAO wrote. I'm looking forward to reading the reaction of the legal community.
  15. KME, Let me get this straight. It's a CPFF level-of-effort where the contractor is required to deliver a level of effort we'll call 100 time units. They deliver a fraction of 100, but the Government pays 100% of the fixed-fee. If that's right, then I would say that is wasteful. The percentage of fee paid should be linked to the percentage of the level of effort delivered. This principle is evident in FAR 52.249-6(h)(4)(i), which states that if the contract were terminated for convenience, the contractor would be entitled "a percentage of the fee equal to the percentage of completion of work contemplated under the contract." See also FAR 52.232-22(l). Why not take the fixed fee proposed, divide by 100, and pay that much fee for each time unit delivered?
  16. Are you saying the Government unilaterally changed clauses in the IDIQ contract to their newer versions?
  17. Seeker, You are referring to documents (a), ( b ), and ( c ), as the "contract." I'm not saying that is wrong, but it is confusing because the term "award/contract" is used to describe document (a). Document (a) would not typically include Section L, which is why I was confused when you said that Section L was part of the contract. My bad. Also, there is no basis for interpreting the term "award/contract" in Block 17 as meaning only the SF 26 and continuation sheets. I have explained what's wrong with such an interpretation in my post #24. I'm sorry you didn't understand it. I bet if you back and read it in a day or so, when you're not in the midst of an argument, it will make sense. In any case, I appreciate your kind words. I hope to see you participate more in these discussions. Your posts are very good.
  18. ji20874, Assume the guidebook would not be mandatory--think voluntary consensus standards. joel, Assume the guidebook would encompass "Federal contracting" in all shapes and sizes. It would be written for maximum adaptability. All, The devil is in the details. I get it. My original question was whether there is a need for such a thing. Assume it could be appear by COB today.
  19. Seeker, I fully understand your position. You explained yourself well, no need to explain further. The problem is that what in your mind is the "contract" (documents (a), ( b ), and ( c )) is more than just document (a), which the form refers to as "this award/contract." As such, it's confusing when you say that Section L is part of the contract because it's not clear that you mean something broader than just document (a). Also, I don't agree with your assessment of the contents of document (a) (i.e., including only the completed SF 26 and continuation sheets with line item pricing). In light of Carl's post, maybe you have changed your mind. First, the form contains a table of contents that lists Sections A-M. The SF 26 and continuation sheets would only constitute Section A. Second, the contents of Sections B through J in the contract may be different than what was included in the solicitation. For example, a solicitation would not contain CAS clauses, but depending on the offeror's response to FAR 52.230-1, the contract may. A DoD solicitation would not include DFARS 252.247-7024, but depending on the offeror's response to DFARS 252.247-7022, the contract may. A solicitation that included FAR 52.219-4 would not show whether a HUBZone SB offer waived the price evaluation preference, but the contract would. The parties may negotiate special terms and conditions (e.g., advance agreements on the treatment of costs, OCI mitigation measures, etc.), that were not part of the solicitation, but will be part of the contract. If we interpret document (a) to mean just the SF 26 and continuation sheets, then none of the foregoing would be included in what your mind is the contract.
  20. Seeker, This is what Block 17 of the SF 26 says: We're saying two different things. You are saying that the contract is subject to and governed by documents ( a ), (b ), and ( c ). Got it. True statement. I am saying that document ( a ) does not include Section L. Document ( b ) contains Section L. FAR 15.204-1( b ) instructs contracting officers not to physically incorporate Part IV (Sections K, L, and M) into document ( a ), but to incorporate Section K into document ( a ) by reference. In light of FAR 15.204-1( b ), it makes no sense that the table of contents for the SF 26 would include a Part IV.
  21. Seeker, The block you are quoting would incorporate section K, not section L (or M). See FAR 15.204-1( b ):
  22. The Contract Attorney's Deskbook is a good reference, but I was envisioning something that also contained a lot of how-to information. For example, how to write a contract modification, how to write a purchase order, how to write a proposal preparation instruction, etc. We all do these things, but do them in different ways. It would be nice if there were some standard practices one could refer to when being tasked with doing something for the first time.
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