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Posts posted by here_2_help

  1. 1 minute ago, Vern Edwards said:

    Too bad for the government if its COs and lawyers do not know how to distinguish between claims for the payment of money, which are the ones that bear interest, and claims for the equitable adjustment of contract terms, which I argue do not.

    Can we apply the above to the original poll question, and say "too bad for the government if its rule-makers do not timely follow the direction of Congress and implement the statute correctly into the regulations." Given that's the case, why do those rule-makers continue to have employment at taxpayer expense?

  2. 10 minutes ago, rsenn said:

    Can a company grant degrees and certificates?

    If I need my employees to be Certified Oracle Experts, can I have my HR department issue them certificates certifying them as Certified Oracle Experts?

    Ditto for degrees.  Can I have my HR department issue a certificate in the corporate name awarding a Masters degree?  The degree certificate would be modeled after one from one of the big universities.

    Sure. Absolutely. Just don't try to ever pass those pieces of paper off as the real thing. For example, Oracle defines its certification, and Oracle is a big company with lots of legal resources. You might find Oracle taking an interest in another company that tried to redefine an Oracle certification as simply being a piece of paper without any substance behind it.

    Have fun! Everybody should get a participation ribbon.

  3. 2 hours ago, FrankJon said:

    Promote specialization by narrowing the CO scope of authority. Begin by eliminating the "cradle to grave" approach. Warrants would specify whether the individual is a PCO or ACO, and enumerate the high-level duties associated with that role. 

    To this point, please show me in the FAR where the duties of the PCO are distinguished from the duties of the ACO, and where the duties of the ACO are distinguished from the duties of the DACO/CACO. For that matter, where are the duties of the CFAO listed?

  4. Don,

    Agreed but the exception at 15.403-1(a) is still there. I can't help it if rule-makers forgot it. In fact, it's such an important exception that it has a place all to itself; it's not lumped in with the other exceptions at  15-403-1(b). It's place of prominence makes me think it may supersede the other language, though of course I have no support for that belief.

  5. Don,

    My answer "no" was based on 15.403-1(a), which prohibits obtaining certified cost or pricing data for acquisitions below the SAT.  The SAT is defined at 2.101. (The CAAC just issued a Deviation that gave civilian agencies permission to refine the SAT to meet the NDAA definitions, but that's not germane.)

    Further, see (for example) 52.215-12 -- "Before awarding any subcontract expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403-4 … the Contractor shall require the subcontractor to submit certified cost or pricing data (actually or by specific identification in writing), in accordance with FAR 15.408, Table 15-2unless an exception under FAR 15.403-1 applies.”) You do a lot of hand-waving trying to redefine the SAT but I, for one, am not persuaded. The SAT is defined and that's good enough for me. If the SAT was $1.5 million based on the circumstances (as your problem stated it was), then obtaining certified cost or pricing data is prohibited. Period. You cannot hand-wave away a regulatory exception.

    If we are going to argue conflict between statute and regulation, then effective 18 June 2018, FAR 15.403-4(a)(1) (“The threshold for obtaining certified cost or pricing data is $750,000.”) is flat-out wrong.


  6. 37 minutes ago, Matthew Fleharty said:

    PBPs don't serve as a cap that a contractor bills against gradually as they incur costs.  They're binary - when the contractor completes the event, they receive payment equal to the amount in the payment schedule for that milestone; until then, they don't.  See paragraph (a) of the clause you reference 252.232-7012 (emphasis added below):


    Thank you. I hope DPAP is reading this.

    The intent of PBPs was to DIVORCE contract financing from incurred costs and focus on accomplishment of programmatic technical milestones. PBPs were to be the province of CORs and PMs, not auditors. Evidence in support of these assertions can be found in the original DoD PBP Users Guide.

    DPAP, aided and abetted by the DAR Council, has perverted Congressional intent (and statutory language).

  7. 3 hours ago, Matthew Fleharty said:

    What if the contract was awarded prior to the passage of the 2017 NDAA?

    In case this turns into a law vs. regulation discussion, here's a previous topic on that issue:


    The NDAA did not create new law, it simply clarified the existing law that the DAR Council had ignored when promulgating its illegal rule.

    *Shrug* We can do this forever.

    I'm not a lawyer and it would take a couple of them, plus a trier of fact, to determine whether or not, in this particular scenario, the contractor should be paid for accomplishment of its contractually agreed-upon PBP events. How about we let our comments here stand for contractor and contracting officer to consider as they try to resolve without resorting to litigation?

  8. 43 minutes ago, Michele G said:

    We are making payments when they are requested, the full payments however cannot be paid because it would put the contractor in an advanced payment situation.  We would be providing a financial payment in excess of the costs that have been incurred.

    Is that an official finding from the IG? Or is that somebody's opinion?

    42 minutes ago, kevlar51 said:

    That was my gut reaction when I started reading the OP's post. But how do you reconcile that with the DFARS clause 252.232-7012 that Joel quoted? Payments cannot exceed cost incurred (in this DOD contract, at least).

    The DFARS clause is illegal and cannot be enforced, as it conflicts with Section 831 of the 2017 NDAA.

  9. 3 hours ago, Michele G said:

    I have a contractor who has met various PBP (Performance-Based Payment) milestones but cannot request payment for the full value because they have not incurred the costs. 

    Am I wrong for not allowing the contractor to keep billing as they incur costs?

    The purpose of performance-based payments is to tie contract financing payments to measurable technical performance. Period. There should be zero tie to incurred costs, at least with respect to payment request approval. (You can always have DCAA review costs after the fact.) If you are going to insist that contract financing payments must have a relation to incurred costs, then please use cost-based progress payments. Then you can reimburse the contractor for spending money instead of making technical progress. (Hello, any A-12 folks in the room?)

    In this case, for some reason, the government contracting officer accepted event values that were not commensurate with actual value. Okay, that was wrong, but the damage is done and the values are in the contract. Either you continue to pay the contractor for accomplishment of contractually agreed-upon milestones or you suspend PBPs and try to reform the contract.

    The other option, in my view, is to get ready for a contractor claim that you breached the contract by failing to make payments when agreed-upon events were completed.

  10. Steward, this question has been debated since 1994. A search reveals a 2011 WIFCON thread on this topic. There are articles on this topic. There are presentations on this topic. There are lots of opinions from which to choose.

    Short answer: There is no "official" and authoritative answer to this question from the CAS Board. Unofficial opinions, be they from DCAA or from CAS experts or from attorneys or from industry, vary.

    My understanding is that the Section 809 panel is discussing this question pretty much right now. We will have to wait to see what answer they recommend, and whether Congress and/or DoD agree with the recommendation.

    In the meantime, your opinion is probably as valid as anybody else's.



    DOD was subject to this market volatility because it does not have a strategic purchasing program for titanium. We calculate, for example, that DOD could save from $100 million to $300 million annually if DOD purchased half of its annual titanium requirement (10 million to 15 million pounds) on a long-term contract priced at about $10 per pound, instead of at market prices ranging between $20 to $30 per pound.

    (See DoD OIG Report No. D-2010-004, October 29, 2009)

  12. 2 hours ago, kevlar51 said:

    I agree with the bulk of your post except, generally, with this part. I can think of plenty of reasons why a vendor might rather be a prime, than a sub. Large primes especially tend to have rather inflexible one-size-fits-all purchasing systems that place a great deal of administrative burden on their subs--without regard to whether the government places similar demands on the prime. 

    You are not wrong. Primes have a notorious tendency to pay their subKs slower than the government is paying them. As for your comment about the primes' purchasing systems, that's also true, though most subKs learn to work through the issues.

  13. 8 hours ago, SLK Contractor said:

    We are a small business sub to a large prime on a large, long running contract with a broad SOW.

    It really doesn't matter to you, the subK, whether you get the work through the large, long running contract with your prime or directly from the government customer. It's the same work and it should cost you exactly the same to perform, regardless. If that's the case, why do you care? Why are you trying to help out the government customer and the CO?

    What the customer may gain is a cheaper price, since your prime will no longer be burdening your costs with its costs and/or fee. And your prime loses a bit of revenue and perhaps some absorption of its indirect costs. Those parties are the winners and losers here, so why are you involved in trying to make this happen?

    Further, as others have noted, you may be jeopardizing your long-running relationship with your prime. What are you gaining in return for that risk?


  14. 22 hours ago, Vern Edwards said:

    A negotiator is an instrument of strategy, not necessarily a determiner of strategy. The negotiator represents his or her client. DOD's strategy for a major program might be less predictable than it was for any number of reasons economic, programmatic, or political, in which case DOD's negotiators will be less predictable than they were. That says absolutely NOTHING about the intelligence and competence of the negotiators in question.

    Yes, I agree with you. The negotiator is just following orders. The individual making key strategic decisions is far from the negotiating table. That says nothing about the person at the table.

  15. Restrict CO ability to obtain field pricing assistance by requiring the CO to justify why they cannot determine price reasonableness without such assistance. Ensure field pricing assistance, when requested, is limited only to those aspects the CO has justified. Require field pricing assistance input to be received within 30 days from date of request and hold functional support areas accountable for meeting that deadline.

  16. Counterpoint: http://www.defenseone.com/business/2018/03/lockheed-pentagon-negotiators-are-becoming-more-unpredictable/146420/?oref=gbb-newsletter


    “It’s not like negotiations were always easy, but I’ll say they were more predictable than they are today,” Tanner said in an interview Monday. “There’s just more things that are being changed or things that you thought were sort of foundational elements of negotiation that maybe weren’t up for negotiation that now seem to be up for negotiation.”

    For example, he said, the government now wants companies to eat various costs they once would have been reimbursed for.

    “Everyone should be interested in cost reduction, not simply not reimbursing elements of cost that you historically reimbursed,” Tanner said. “That’s a strange way to get cost reduction and, I would argue, a very short-sighted, not helpful, not healthy for the industry and ultimately not healthy for the folks in the Pentagon buying under that strategy to use that approach.”


  17. Interesting to me how other folks focus on the word "responsible" in the OP. The question that was asked was answered, but did the answers help anybody?

    To me, it's not a matter of "responsibility" or a duty imposed by a contract clause; instead, I see it as risk mitigation. The prime should mitigate the risk that the government will, eventually, find the subcontract to be defectively priced because it will be the prime that will be held responsible for the noncompliance. There is no guarantee that the subcontractor will have the financial resources available to indemnify the prime for legal fees, penalties, and interest paid to the government. Thus, the prime should take action to address the situation and, if necessary, remediate it.

    Perhaps I'm in the minority here, but that's the way I see it.

  18. Given the (deleted) language of the draft RFP, quoted above, I was kind of interested in the timing of things. What happens if there is an adverse regulatory action that takes place after inspection and acceptance of the work? What happens if there is an adverse regulatory action years after the Period of Performance has expired? Obviously the contract is over and done with, so who cares? Not the contractor. The contractor is not going to be seeking an equitable adjustment based on what a regulator says/does years later. On the other hand, the government might file a claim against the contractor, I suppose, if it's within the 6-year CDA Statute of Limitations. If not, I'm not seeing much government recourse either, absent allegations of fraud.

    Not sure if MBrown is with EPA or another civilian agency, but environmental remediation contracts tend to be cost-type for a reason: it's hard to define "remediated" ahead of time, until all the regulators have spoken.

  19. Before I make a recommendation for change, I would want to understand sustention rates. What percentage of GAO decisions that are subsequently refiled at COFC are sustained/confirmed? How many are non-sustained? What percentage of protests are non-sustained or remanded for corrective action at the Appellate level?

    If we see that GAO or COFC gets it wrong, and it takes a Court of Appeals decision to get it "right," then I would like protesters to have as many bites at the apple as possible. However, if an appellate reversal/remand is one-in-a-thousand, then that's a remedy that protesters probably do not need.

  20. 1 hour ago, Boof said:

    The easiest way to accomplish this is to "concur" on timesheets.  The time sheets all get submitted with the invoice so the COR knows how many hours were not worked.  If invoices get paid without a Government FTE concurring with the timesheet, our OIG and internal financial auditors say we don't have a legitimate receiving document.  We could create a receiving document, reenter the hours and waste more hours sending them forward but concurring on invoices works and is the easiest way for the COR approving the invoices to know if a contractor cut out an hour early or took the day off on leave.

    (Emphasis added.)

    I'm confused. How does the Government FTE "concur" on a timesheet? What is the mechanism? Is it a signature? If so, what does the signature signify, from a legal/contractual point of view?

    Further, are your personnel concurring on contractor timesheets or on contractor invoices? Or both?