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Everything posted by The1102

  1. CPFF, completion type contract for R&D. Contract contains FAR 52.232-20. Effort includes a prototype as final deliverable, a demonstration of that prototype, and several data deliverables along the way (including reports). During performance, contractor was months late on delivering several important reports. The contractor does not dispute this fact, but argues that it gave its best effort overall under the contract. Oversight was not as thorough as it should have been, but the COR asked the contractor for the missing reports several times during performance. The contracting officer was not made aware of the late deliveries until one month before the contract expired; as a consequence, perhaps some good opportunities to issue show cause notices were missed. The contracting officer wants consideration for the late deliveries, and has explained his position to the contractor in detail. Why relax the delivery schedule for nothing in return? The contractor will absolutely not provide any form of consideration. Despite being late, all deliverables have been received except for the demonstration. The demonstration is scheduled for two weeks after contract expiration. As the contracting officer, you're considering an extension to allow the demonstration to take place. You'd prefer to formalize the consideration in this modification, but again, the contractor absolutely refuses to provide any. What contractual remedies are available to you? Note: Termination will not accomplish anything for you, because the contract is near completion and you still want to receive the upcoming demonstration. You just want some consideration.
  2. I appreciate your view and your input, thanks for playing the role of the contractor (and his attorney) on this one. Retreadfed, thank you for your breakdown by contract clause. I found it helpful. I'm sorry if you felt I was asking too many questions. I try to poke and prod until I really understand something; that's just the way I learn. We are hear to learn, right? Good discussion overall, thank you all for participating.
  3. Don's right about completion. Also, I think you're confusing "best efforts" with "level-of-effort." They are two different concepts. I'm confused about your rationale here...you think that because the Government accepted something late, they are waiving their right to timely delivery? I don't agree. If 20 helmets arrive at the shipping department late, does the Government need to leave them outside of the warehouse to preserve their right to timely delivery? Can't they open the boxes and use them, and negotiate consideration on the side with the contractor? Of course, any Contracting Officer doesn't like being deposed. But they also don't like getting bum deals for the taxpayer.
  4. Thanks for chiming in. Picture the original deal, now compare that to your suggested outcome -- the Government would pay the same price but receive several deliverables late. How would that deal be fair to the Government? Sorry if I'm missing something here, but I just don't see it. I understand you're getting the demonstration under your proposed solution, but you were promised a demonstration upon contract award anyway. This doesn't seem like an added benefit to the Government when compared to the original deal. Thanks again for your thoughts -- this discussion has been helpful. But I still respectfully disagree with this position. You're saying that because the Contracting Officer found out about the late deliveries after the fact, he has entirely waived his right to timely delivery? Back to the original scenario, the COR did ask the contractor for the deliverables several times throughout performance of the contract. In my view, those requests should at least be enough to maintain the Government's rights. If you disagree, what exactly do you think the Government would have to do to maintain those rights?
  5. H2H, I appreciate your insight. But I'm trying to understand why you'd view this as a penalty. Did you read Vern's post about consideration for late delivery? Technically, the contractor is in default. But because termination is undesirable for both parties, the more reasonable option would be to renegotiate the deal. Under this new deal, the contractor gets to deliver something late, and the Government gets a reduced price (or another report, or any other form of consideration). This makes sense to me, doesn't seem aggressive or adversarial at all. The disagreement in the scenario is not over the quality of the deliverables, the technical progress, or the cost. It is over the timely deliverable of reports. Under a cost reimbursement contract, even if you recognize uncertainty in technical performance, you can still schedule with certainty the delivery of reports. You might not be able to produce a flux capacitor for my time machine, I get that, but at least you can tell me how your research is going every month and give me a plan on how you're going to test the technology. Does that make sense?
  6. In this case, the "change in contract terms and conditions" is the change in delivery schedule, does that help? See Vern's discussion at: http://www.wifcon.com/discussion/index.php?/topic/581-termination-for-default-consideration/. I pulled some excerpts that might help explain the concept.....
  7. Thank you for your help and advice. Let's assume the Contracting Officer wants a reduction in fee, but he/she is open to other forms. The contractor was given the opportunity to propose the type/amount of consideration but absolutely refuses to provide consideration in any form. In this case, would you still support the "final decision" approach? Assume that the contractor wants to prove this technology at least as much as the Government wants to see it demonstrated. This technology shows a lot of potential and could generate a lot of future business for the firm. It's not in your interest as the contractor to stop work. As Vern noted in one post, if the "CO decides to waive the default and pay the original price, then he or she arguably is not fulfilling his or her obligation to protect the taxpayer. Why should the taxpayer pay the price of timely delivery for untimely delivery?" Full thread is at: http://www.wifcon.com/discussion/index.php?/topic/581-termination-for-default-consideration/ Also, assume this contractor has shown a pattern of failing to meet delivery schedules. It insists that it can disregard its contractual obligations. As the Contracting Officer who may be dealing with the contractor in the future, you want to establish that there will be penalties for over-promising and under-delivering. The scenario noted that the Government's oversight was not as thorough as it should have been -- but insufficient tracking of performance by the Government does not absolve the contractor of its contractual duties, does it? How is the Government to blame? Assume the Government did not delay the work.
  8. Is there a list that summarizes all clause releases/updates by year or month? We all do our best to keep track in real-time, but a "cheat sheet" would be helpful. Thanks.
  9. Thanks to all for the comments. I am aware that modifying a contract due to clause changes is not necessary. However, we often look at older contracts for similar services when drafting new contracts (vice reviewing the entire FAR and DFARS each time). It would be nice to use an old contract as a template (that I know is right), then look at a list to determine what has changed since. But...it looks like no such list exists. Thanks for your help anyway.
  10. I was imagining that it would cover all FAR and DFARS clauses, regardless of contract type or value. Picture an excel spreadsheet with three columns: date, clause, new or revised. Something to quickly answer the question, "What clauses have been added/changed since we awarded this contract?"
  11. Thanks for the suggestion. I was imaging some publically available, periodically updated, on-line list -- such a list (if one exists) would be more efficient than several of us routinely chiecking with our SPS administrator. I'd be surprised if one wasn't out there (somewhere). Thank you again for the suggestion, though; I will follow your advice if I strike out on the on-line list.
  12. BAA - question

    My team awards cost-plus-fixed-fee (CPFF) contracts under a Broad Agency Announcement (BAA). A co-worker of mine raised a good concern recently, and I'm questioning whether we're applying the BAA correctly. FAR 35.016(a) states "this paragraph prescribes procedures for the use of the BAA...for the acquisition of basic and applied research and that part of research not related to the development of a specific system or hardware procurement. BAA's may be used by agencies to fulfill their requirements for scientific study and experimentation directed towards advancing the state-of-the-art or increasing knowledge or understanding rather than focusing on a specific system or hardware solution." My question is: what is meant exactly by "development of a specific system or hardware procurement" and what constitutes "focusing on a specific system or hardware solution"? How would you draw that line? Some of our BAA topic areas seem to flirt with this, like basic research relating to a special antenna (including a prototype deliverable) to be used on a specific sea-going probe-like device. Another example is research (including a prototype deliverable) that could potentially shrink the size of an existing system. My first thought was to check the definition of "system" in the FAR/DFAR, but it is not defined (only "major system" is defined). Does anyone have experience with this? If you wanted to keep awarding contracts for similar requirements under the BAA, what would you do? Thanks.
  13. BAA - question

    Awesome, thanks for the thorough response. So if a regulation says, "you may use a knife for spreading rather than for cutting," I need to take this as a prohibition against using the knife for cutting, due to the principal of expressio unius est exclusio alterius. That guidance helps, thanks again. So knowing that I can't wiggle out of the "specific system" language...if I make sure my BAA solicitation topics do not call out a specific system, I make sure that my SOW (based off the contractor's technical proposal) does not call out a specific system, and funding is BA 1, 2, or 3 (or 4 with a valid justification), I should be OK.
  14. BAA - question

    Maybe I was confusing, sorry. Here's the sentence in FAR 35.016(a): "BAA?s may be used by agencies to fulfill their requirements for scientific study and experimentation directed toward advancing the state-of-the-art or increasing knowledge or understanding rather than focusing on a specific system or hardware solution." I don't think this sentence prohibits anything.
  15. BAA - question

    Vern, Maybe you're right - I might be making this more complicated than it needs to be. The reason I'm digging into this is because I'd like to keep using our BAA (but with a little more confidence). You've made your position clear: if the development is for a specific system, I can't use a BAA. I was a little confused by FAR 35.016(a) earlier, but I found a FAR reference that better communicates this prohibition; I've come around. See FAR 6.102: "The competitive procedures available for use in fulfilling the requirement for full and open competition are as follows: ... (d) Other Competitive Procedures ... (2) Competitive selection of basic and applied research and that part of development not related to the development of a specific system or hardware procurement is a competitive procedure if award results from -- (i) A broad agency announcement that is general in nature identifying areas of research interest, including criteria for selecting proposals, and soliciting the participation of all offerors capable of satisfying the Government's needs; and (ii) A peer or scientific review." Since development relating to a specific system is not covered here, using a BAA that focused on such a requirement would not be a competitive procedure available for fulfilling the requirement for full and open competition. This reference makes sense to me. But I still have a bone to pick with the way FAR 35.016(a) is worded. As written, I don't feel it communicates a prohibition against using a BAA for development of a specific system. If I told you "a knife may be used for spreading rather than for cutting," would you take that as a prohibition against using a knife for cutting? Regardless, because of FAR 6.102, I'll make sure my BAA procurements stay away from "specific systems." To answer your questions...my co-worker was the first to raise this concern, but now there are a few more (including me). My agency has some guidance on BAAs, but it essentially re-states FAR 35.016(a). Thank you for your help.
  16. BAA - question

    Thank you both. I take from your replies that you feel my original (not subsequent) interpretation of the rule was correct, that 35.016(a) prohibits a BAA from "focusing on a specific system or hardware solution." Is that correct? If so, the way the rule is written doesn't communicate that directly. Do you see what I mean by the "BAA's may be used...rather than..." part appearing informational in nature? "May" is permissive, right? I agree, and that is our policy here. However, we also have a process for when a customer intends to use budget activity 4. We require that they justify in a memo to our comptroller how the guidelines in FAR 35.016(a) overlap with the description of BA 4. If the comptroller agrees with the customer's rationale (and approves the memo), we are comfortable proceeding. Although the "ACD&P phase includes system specific efforts that help expedite technology transition from the laboratory to operational use," this phase can also include efforts that are not system specific, right? What about "efforts necessary to evaluate integrated technologies...in a high fidelity and realistic operating environment." That type of effort could technically be unrelated to a specific system, couldn't it? Either way, I agree that the budget activity is generally a useful acid-test for when you can use a BAA. Thanks for the feedback. In most of these efforts, the Government contemplates some specific application (e.g. the Starship Enterprise). After all, if there wasn't some specific system at least in our imagination, I doubt we would pursue the technology in the first place. There are plenty of uncertainties of course. The intended system may change (we might put it in the Millennium Falcon), or the technology's application may change (maybe the warp drive engine is better for powering cities). In your opinion, can this uncertainty be somehow woven into a justification for using a BAA?
  17. BAA - question

    I just realized that I could be interpreting this citation incorrectly. Maybe "BAA's may be used...rather than..." is simply a suggestion for another application of the BAA, not a prohibition against using BAAs for the development of a specific system or hardware solution. Thoughts?
  18. Thank you all for the responses. My shop here is interested in my research thus far, and wants to create/implement some standard process for addressing the foreign disclosure issue. For the time being, I'll do some more digging to see if I can't find my direct reference to the JCP. (Am I crazy to think that one should exist?). I'm still interested in where Air Force gets their instruction to check the JCP. This might help guide me (and my shop) to some conclusion on the matter. I will also take the recommended training; thank you for the suggestion.
  19. Thank you for the post and response. My attorney here advised me that DODI 5230.27 only discusses procedures for when the Government is disclosing export-controlled technical data to the contractor, not when the contractor is generating the techincal data under a contract. Also, it should be noted that the prospective awardee is not a foreign contractor, but is rather a U.S. contractor with a foreign national employee. And according to my Foreign Disclosure Office, it's not a "foreign disclosure" issue unless we're provding the data to a foreign government or foreign contractor; they've said they don't want to be involved and that the JCP isn't necessary from their point of view. I see what you're saying about the JCP using the DD2345, but what I'm looking for, (and what seems so difficult to find), is some DOD policy or guidance that points directly to the MCTL or JCP. For example, if I was Super 1102 and I reviewed every line of the FAR, DFAR, PGI, and DODD/DODI, how would I know the JCP existed and how would I know I needed to check it? Anyone from the Air Force want to chime in?