Sixth_WIFCON_Registration

Don, Yes, true...I've built a hybrid of that and some other settlement language...for the instant situation. But yes, for the general situation that I've described this should appear to resolve my earlier concern. Thanks all, -Will

That's actually a very good way to look at it, but I just don't understand why there wouldn't be some other way to get to that settlement without making it appear that something is only for the Government's convenience if ending a contract is a decision by both parties. In the manner that you have suggested, some prophylactic contractor's release language would be necessary to specifically protect the Government from some subsequent settlement request or resulting claim; that could be tough. It just seems that it would be better from the outset to make it clear that the termination is not just for the convenience of the Government to prevent receiving a subsequent settlement proposal and to remove claim and litigation risk. In my opinion, it's not enough to just state that a contract is terminated by mutual agreement of the parties, even though many types of contract modifications can be made by the mutual agreement of the parties (i.e. it's not required to cite a contractual authority for the modification). This would become especially important for large magnitude firm-fixed-price contracts.

I can't really go into a lot of detail here, but I have a question regarding the various types of terminations. Don't assume that the question relates to a contract that has not already been terminated. The FAR appears to be silent on this matter, but why is there no guidance regarding a "contract termination by the mutual consent of the parties"? It seems that this would be a useful tool, and is recognized by DoE's Bonneville Power Administration (BPA) within their instructions (BPA does not follow the FAR). I seem to recall such a concept buried deeply in statute, but I cannot seem to locate it now. Is anyone familiar with such a mechanism? From BPA's instructions: 20.2 TERMINATION BY MUTUAL CONSENT. (a) INFORMATION: A termination by mutual consent is an agreement between BPA and the contractor to cease work under the contract. Such a termination would be used in a situation where mutual problems make it undesirable to continue the work, but in which assessing responsibility to either party would not be fair or reasonable under the circumstances. There usually will not be a clear indication of failure on the part of either party, and thus a payment by one party to the other to cover the costs of termination is generally not appropriate. The CO should consider using such a termination in lieu of issuing a convenience or default termination when the contractor has not incurred costs for the terminated portion of the contract or the contractor is willing to waive the costs incurred. Since this type of termination is not a unilateral right of BPA under the contract, it must be negotiated between the parties, and no contract clause is used. ( PROCEDURE: Termination by mutual consent may be initiated by either party, by oral or written means. However it is initiated, the CO shall ensure that there is a mutual agreement to terminate before proceeding with the action. The CO shall document the contract file with the reasons for the termination and the basis for the settlement. The settlement shall be documented as a contract modification, and shall include the following information modified as appropriate to reflect partial or complete terminations: (1) This supplemental agreement modifies the contract to reflect a partial termination by mutual consent. (2) The terminated portion of the contract is as follows: (Specify item numbers, descriptions, quantity terminated, unit and total price of terminated items, and any other explanation necessary to avoid uncertainty or misunderstanding.) (3) The Contractor unconditionally waives any claim against BPA arising under the terminated portion of the contract or by reason of its termination, including, without limitation, all obligations of BPA to make further payments or to carry out any further undertakings under the terminated portion of the contract. (4) BPA acknowledges that the Contractor has no obligation to perform further work or services or to make further deliveries under the terminated portion of the contract. (5) Under the terminated portion of the contract, the following rights and liabilities of the parties are reserved: (List reserved or excepted rights and liabilities) (End of agreement)

Thanks for the replies ji20874, I do not disagree with what you've stated. Now shifting from the issue of contractors serving as technical advisors to an evaluation, to a deeper issue which is the use of contractor employee contract specialists: Does this subpart apply to those contractor employee contract specialists who will serve in the following capacities: - Facilitating a source selection; - Preparing the price evaluation report; - Recommending a negotiating position to the Contracting Officer. And obviously, when using formal source selection procedures, the source selection plan would necessarily need to reflect inclusion of this contractor performing this type of support. Thoughts?

Scenario: The agency employs an existing Contractor responsible primarily for providing Naval Architecture, Marine Engineering (not Brooks Act A-E support) support for ship construction activities. Incidental to their Statement of Work would be the occasional non-voting SSEB technical advisory review of Part 8 quotes / Part 15 proposals in which the advisory Contractor personnel would recommend a consolidated list of strengths / weaknesses / deficiencies / or other discussion areas and clarifications to the SSEB. In this case, do the requirements of FAR 37.2 apply? "This subpart prescribes policies and procedures for acquiring advisory and assistance services by contract." If you are not acquiring the services specifically to perform the advisory services, and since they are already incidental to the duties of an already performing agency Contract, does the prohibition for advisory services under FAR 37.2 extend to the above described advisory activity? Does the Government need to meet the burden of the determination prescribed at FAR 37.204 in this instance?

Okay, from the text of the DAU CON 244, Student Guide (November 2003 edition with Revisions through February 2005) Page 6-48: Removing the Order to Accelerate: If the contractor is simply directed to "get back on schedule," the contracting officer must be diligent to remove the order when the contractor has caught up. It is recommended that the government's original acceleration letter contain the words to the effect of "once caught up, desist the acceleration."

This was DAU San Diego, c. 2005 / 2006. I don't remember the instructor's name, but he was a retired USN O-4. I believe he retired out of NAVFAC as a KO. I have always had a very positive impression of DAU San Diego and the majority of their instructors, this one included.

Scenario: The agency employs an existing Contractor responsible primarily for providing Naval Architecture, Marine Engineering (not Brooks Act A-E support) support for ship construction activities. Incidental to their Statement of Work would be the occasional non-voting SSEB technical advisory review of Part 8 quotes / Part 15 proposals in which the advisory Contractor personnel would recommend a consolidated list of strengths / weaknesses / deficiencies / or other discussion areas and clarifications to the SSEB. In this case, do the requirements of FAR 37.2 apply? "This subpart prescribes policies and procedures for acquiring advisory and assistance services by contract." If you are not acquiring the services specifically to perform the advisory services, and since they are already incidental to the duties of an already performing agency Contract, does the prohibition for advisory services under FAR 37.2 extend to the above described advisory activity? Does the Government need to meet the burden of the determination prescribed at FAR 37.204 in this instance?

As always, thank you everyone for the replies, guidance, and references. Academically (CON 244) we were taught to order an end to the acceleration as a precaution in the event that the contractor initiated a claim for costs incurred from continued acceleration. But it certainly seems that the limits can be framed into the letter quite easily if the CO adequately understands the delay issues. The reason that a mod came into play was the possiblity that the Contractor would refuse to follow the CO direction to accelerate without a formal modification; but again, what is being changed? Nothing really. My thought is that if the CO letter were ignored then other action would become appropriate. -Will

On a construction contract, where the Contractor has fallen behind in their scheduled progress, the Contracting Officer has the ability to order the Contractor to accelerate and to catch back up. This is a rarity, but in fact in some situations it becomes appropriate for the CO to direct the Contractor to accelerate. This is acheived through FAR Clause 52.236-15, Schedules for Construction Contracts. 52.236-15 -- Schedules for Construction Contracts. As prescribed in 36.515, insert the following clause: Schedules for Construction Contracts (Apr 1984) a ) The Contractor shall, within five days after the work commences on the contract or another period of time determined by the Contracting Officer, prepare and submit to the Contracting Officer for approval three copies of a practicable schedule showing the order in which the Contractor proposes to perform the work, and the dates on which the Contractor contemplates starting and completing the several salient features of the work (including acquiring materials, plant, and equipment). The schedule shall be in the form of a progress chart of suitable scale to indicate appropriately the percentage of work scheduled for completion by any given date during the period. If the Contractor fails to submit a schedule within the time prescribed, the Contracting Officer may withhold approval of progress payments until the Contractor submits the required schedule. b ) The Contractor shall enter the actual progress on the chart as directed by the Contracting Officer, and upon doing so shall immediately deliver three copies of the annotated schedule to the Contracting Officer. If, in the opinion of the Contracting Officer, the Contractor falls behind the approved schedule, the Contractor shall take steps necessary to improve its progress, including those that may be required by the Contracting Officer, without additional cost to the Government. In this circumstance, the Contracting Officer may require the Contractor to increase the number of shifts, overtime operations, days of work, and/or the amount of construction plant, and to submit for approval any supplementary schedule or schedules in chart form as the Contracting Officer deems necessary to demonstrate how the approved rate of progress will be regained. c ) Failure of the Contractor to comply with the requirements of the Contracting Officer under this clause shall be grounds for a determination by the Contracting Officer that the Contractor is not prosecuting the work with sufficient diligence to ensure completion within the time specified in the contract. Upon making this determination, the Contracting Officer may terminate the Contractor?s right to proceed with the work, or any separable part of it, in accordance with the default terms of this contract. What I would like clarification on is whether this is done merely by a CO Letter, or if it is done via modification citing the authority of FAR Clause 52.236-15, Schedules for Construction Contracts. The CO essentially directs that the Contractor accelerate performance via 2nd or 3rd shifts, increases of manpower for certain disciplines, etc, and directs the Contractor to keep the Contracting Officer informed of schedule progress and to inform the CO once the Contractor is caught back up. I also understand that the same mechanism would need to be utilized by the CO to direct an end the acceleration once the Contractor is back on schedule or face a claim situation for costs associated with continued acceleration. Obviously a schedule and the work that is taking place is far more complex than it appears on the surface, and in many cases even though a CO bluntly directs acceleration, there will be areas that are affected by critical path work, ordering and receipt of necessary materials, certain difficult to obtain subcontractor services, serious losses of efficiency of the workforce coupled with significant cost efficiency impacts to the contractor. But what are the potential pitfalls from a litigation standpoint? Any advice, samples, or information sources that anyone could point to would be greatly appreciated. Best regards, -Will

Vern, Thank you for your response. So even though the new services which are being ordered are a continuation of the services (i.e. no change to the duties, only additional ordering of those duties) for a specific project (we issue a task order for each major project), you would issue a new task order. But I think that you may be saying that it is more appropriate to use perhaps the SF 30's block 13C and to bilaterally execute the modification "by mutual agreement of the parties". I think that you're also saying that using the ordering clause to unilaterally issue the modification for ordering the continuation of the services is never acceptable. Thanks, -Will

As stated, stupid question of the day...but here it goes... Here is the situation: - We have an IDIQ for services; - The services are performed in accordance with the IDIQ's statement of work; - The services are ordered as labor-hours; - A task order, T0001, is issued on an OF 347 to order services as described above; - It becomes apparant that the services are required beyond the initial completion date and at additional quantities beyond what was initially ordered. So, as stated, additional services are required. Is it appropriate to order the additional services unilaterally using the SF 30's block 13D, and citing the authority of FAR Clause 52.216-18, Ordering? So, sure, it's not exactly in accordance with the ordering clause: a ) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals or activities designated in the Schedule. Such orders may be issued from __________ through ____________ [insert dates]. b ) All delivery orders or task orders are subject to the terms and conditions of this contract . In the event of conflict between a delivery order or task order and this contract, the contract shall control. c ) If mailed, a delivery order or task order is considered ?issued? when the Government deposits the order in the mail. Orders may be issued orally, by facsimile, or by electronic commerce methods only if authorized in the Schedule. But please, tell me how continuation of work cannot be unilaterally ordered via modification, however it can be unilaterally ordered via issuance of the work on an OF 347.

Wow; what a lot of very technical and detailed discussion. Syllogistic arguments aside, I just don't see how the U.S. Congress would intend to completely throw efficiency to the winds in the case of an already established IDIQ that was awarded under the previous authority. Especially since Pub. L. 111-240 was designed to help small businesses. Congress just doesn't apparently want the program used anymore "in the acquisition process" as reflected in Sec 1335 of the law. If CICA was reworked to no longer allow logical follow on contracts for DoD, NASA, and the Coast Guard, and was silent to the treatment of existing contracts, who in their right mind would then go out and terminate / not exercise options on those contracts? Especially in today's environment of scarcity of resources? As a matter of practicality and common sense, I would continue to operate as normal, and be on the diligent lookout information that indicated to me that some decision has been made that what I am doing is not legally supportable. And I don't care if someone tells me that I'm wrong, since it's far better to be wrong and find the path to being correct, than to be afraid to act decisively and in a manner consistent with common sense and reasonable interpretation.

I am the CO for a Firm-Fixed-Price civilian agency contract for the detailed design and construction of a medium-sized vessel. The Contractor is issuing purchase orders for the various materials, components, and pieces of equipment to support the contstruction of the vessel. For a particular piece of equipment, which is a foreign supply, the Contractor has requested per FAR 52.225-8, Duty-Free Entry, that I make a determination as to whether I will issue a duty-free certificate for the foreign supply. Surely there would be many other requests as well. After conducting my research I have found that the Government's administrative costs to entertain this certificate for this supply, and surely for subsequent supplies, would outweigh any benefit. And under a FFP contract, I don't see what the benefit to the Government would be. The clause prescription makes no distinction between cost type or fixed-price contracts when describing when to include the clause. I estimate the cost to the Government to be roughly $1,751 per duty-free certificate based on an old DFARS figure that I found of $1,162 in 1992 dollars. I am almost considering proposing to the Contractor an arrangement where we share the savings of the duty-free entry. This would involve crafting a clause to allow for that and modifying it into the contract by mutual agreement. Does anyone have any insight as to what purpose a duty-free certificate would serve to benefit the Government in any way on a FFP contract? Thanks in advance!

Don, Thanks for the reply. I'm certain that you don't remember, but we met several years ago at DAU in San Diego (I'm formerly Canned Sunshine, et al). I very much respect your opinion and Joel's opinion. That being said, you've inadvertently provided me with the answer that I can hang my hat on: "Wage determinations for shipbuilding under the D-B are issued only if the location of contract performance is known when bids are solicited" The ship repair or even a construction location are unknown at the time of solicitation because the repair / construction location is "the successful bidder's / offeror's repair facility". -Will Havens

Joel, Thanks for presenting this information as I had not seen it previously. It's a very Title 10 centric discussion and seems contradictory as to how it affects a Title 41 agency. On the surface, I would say that FASA repealed the Title 10 agency authorization to use PCA, not the Title 41 agency authorization to use PCA. Therefore, Title 41 agencies would be unaffected by this aspect of FASA just as they would be unaffected by Section 815 of the FY 1996 DoD Authorization Act. Without getting too argumentative about it, I question the accuracy of the discussion where it states that DBA is historically used for non-defense purpose marine vessels. I have found no evidence of that within my agency.

I'm a ship repair contract ACO and procurement CS for ship repair contracts with a civilian agency. My boss does new ship construction as well as major overhauls. For the ship repairs, the bottom line is that ships are not considered real property, therefore we treat the deliverable as a refurbished supply. We issue firm-fixed-price supply contracts which include 52.222-20 WALSH-HEALEY PUBLIC CONTRACTS ACT (DEC 1996) as well as 52.222-4 CONTRACT WORK HOURS AND SAFETY STANDARDS ACT -- OVERTIME COMPENSATION (JUL 2005). We treat ship construction the same as ship repair. We do not use Part 36 clauses. Here's a link to one of my current RFPs... FedBizOpps That being said, we had a very long and detailed conversation with a senior DoL investigator about this very subject. He basically stated that his opinion was that ship construction should probably use Davis-Bacon because of the nature of the work and because the trades within Davis-Bacon most closely fit the work that was actually taking place. This regardless of the type of contract. But this is the same guy that said that a supply with incidental installation should include DBA if the installation were to cost more than $2,000 which was news to me since that is in contradiction of FAR 22.402 b(2)(i). [edited to correct SCA reference to DBA in last sentence]