Don Mansfield

Thanks for pointing out FAR 1.602-3( b )(5). I learned something new.

The unauthorized act would be the acceptance of the services in excess of the amount stated in the contract. The OP wrote "The Government does not dispute the fact that it accepted and received a benefit from the services provided by the contractor in excess of what was contractually agreed upon."

Caveat Emptor, Reading between the lines, I think you want to take the PM position but you feel you should take the PCO position. If that's the case, go for the PM position. You spend a great deal of your time at work, so you should do something that you think you'll enjoy. "Grueling" and "stressful" does not sound enjoyable.

Time out. Are you saying that the Government cannot ratify? I'm with you on what the Government should do, but you seem to be saying that ratification is not an option at all, even if the Govt. wanted to.

Ok, then here are my answers: 1. I think you have an unauthorized commitment. 2. The issue could also be resolved by not ratifying the unauthorized commitment. 3. An unauthorized commitment does not create an obligation, so I don't think your agency is at risk of violating the Anti-Deficiency Act.

Did the contracting officer know that the contractor was working the extra hours?

Boof, One of the problems you seem to have is that you think that the PMO contractor would be performing inherently governmental functions. Relevant to this discussion, FAR 7.503( c )(12)(v) lists the following as an inherently governmental function: "Administering contracts (including ordering changes in contract performance or contract quantities, taking action based on evaluations of contractor performance, and accepting or rejecting contractor products or services);" From what you described, it doesn't sound like the PMO contractor would be doing the things in parentheses. If that's true, then what function(s) would the PMO contractor be performing that you believe are inherently governmental?

Boof, Assuming that the six contracts being discussed are not firm-fixed-price, then FAR 1.602-2( d ) requires the appointment of a COR if the CO does not retain and execute the duties of the COR. Further, FAR 1.602-2 ( d )(1) requires the COR to be a government employee unless your agency regulations authorize otherwise. In your scenario, let's assume that you are required to appoint a COR to each of the six contracts and the CORs must be government employees. What would these CORs do that is different than what the PMO contractor would do?

Does your contract contain FAR 52.236-7, Permits and Responsibilities?

Boof, What's the difference between what you are proposing and contracting out the functions of a COR?

The FAR doesn't require an advance agreement, but some agency supplements do. See Volume 1, Sec. 39:2 of Government Contract Costs & Pricing by Manos.

If the costs meet the criteria at FAR 31.205-32, then they would be allowable: 31.205-32 -- Precontract Costs. Precontract costs means costs incurred before the effective date of the contract directly pursuant to the negotiation and in anticipation of the contract award when such incurrence is necessary to comply with the proposed contract delivery schedule. These costs are allowable to the extent that they would have been allowable if incurred after the date of the contract (see 31.109).

ji20874, For purposes of my question, "local clause" means a solicitation provision or contract clause written and used by a particular contracting activity or subordinate contracting office that is not contained in the Federal Acquisition Regulation (FAR) or the agency’s FAR supplement(s). I'm using the terms "solicitation provision" and "contract clause" as those terms are defined in FAR 2.101. As such, they need not be in a particular section of the UCF.

I'm doing some research on the use of local clauses in DoD contracts and wanted to get some feedback from the forum, particularly contractors. By "local clause", I mean a solicitation provision or contract clause written and used by a particular contracting activity or subordinate contracting office that is not contained in the Federal Acquisition Regulation (FAR) or the agency’s FAR supplement(s). Regarding the use of local clauses, DFARS 201.304(1) requires the approval of DPAP before using a local clause that: ( A ) Has a significant effect beyond the internal operating procedures of the agency; or ( B ) Has a significant cost or administrative impact on contractors or offerors. Certain statutes would require the local clause to go through rulemaking if ( A ) and/or ( B ) were true (e.g., Regulatory Flexibility Act and Paperwork Reduction Act). However, I suspect that this is not happening (i.e., there are a lot of local clauses in use that meet ( A ) and/or ( B )). Before making any conclusions, I'd be interested to hear from current or former contractors that dealt with local clauses that met either ( A ) or ( B ). What has been your experience? Have you encountered a lot of local clauses that meet ( A ) and/or ( B )?

Neither the statute nor the regulation define "set-aside", but in every other context the term is used in the FAR it implies competition. For example, see FAR subpart 6.2. If you noncompetitively awarded a task order to a small business, that would be a sole source--not a set-aside.

Given that there's a specific FAR clause that goes in individual contracts, that interpretation does not make sense. FAR 52.216-15 clearly describes how rate agreements are to be applied to the contract.

I see two problems. An interagency agreement is not a contract and the Red Cross is not a Government agency.

So the Govt. made the award before requesting the certification?

One benefit that I see is that the clause would limit the contractor's liability for loss, damage, or destruction for "aircraft" defined as: "Conventional winged aircraft, as well as helicopters, vertical take-off or landing aircraft, lighter-than-air airships, unmanned aerial vehicles, or other non-conventional aircraft specified in this contract." Thus, while FAR 52.245-1 would limit the contractor's liability for GFP provided for maintenance/repair, the clause could also be used to limit the contractor's liability for loss, damage, or destruction of other aircraft specified in the contract.

AgencySpecialist, You're confusing an exception to TINA (prices set by law or regulation) with a basis of comparison for determining price resonableness. Assuming that the tariff prices are set by law or regulation, if the tariff prices are much higher than what people actually pay, they are not reasonable. It sounds like one camp is interested in pro forma compliance with a regulation and the other camp is interested in paying a reasonable price.

How do you know that the GPC can be used to buy passes for highway tolls?

I see the conflict. I would interpret the specific rule as taking precedence over the general rule. In other words, the language of A-21 is the general rule applying to "sponsored agreements." However, when it comes to the specific case of cost-reimbursement procurement contracts containing the clause at FAR 52.216-15, the general rule does not apply. So, to answer your question, a new agreement that was effective in the fifth year of performance would apply to the fifth year of a contract containing FAR 52.216-15.

There's no easy answer to your question. For guidance, refer to the discussion of replacement contracts on pp. 5-28 to 5-33 of The GAO Red Book.

This is great. I am going to crib from it liberally.

Are you asking what is jad's authority to deviate from the FAR?