policyguy

New OMB guidance on social media and terms of service and implications of the Antideficiency Act has recently been issued:

http://www.whitehouse.gov/sites/default/files/omb/memoranda/2013/m-13-10.pdf

It contains an attachment of a legal opinion from the Department of Justice that is an interesting read as well.

Agree with Vern - ask an attorney and you may want to also look over FAR Subpart 3.10 Contractor Code of Business Ethics and Conduct.

I might suggest having the CO request an audit of the final invoice with the supporting documentation IAW paragraph (f) of the payments clause before considering ratification or rejecting the invoice. Once the audit is completed then you could consider your next steps accordingly. I would also suggest that the contract file be reviewed for any correspondence from the contractor per paragraph (d) of the payment clause and as Vern suggested above. (No indication above if this was done). More research and other steps are needed before considering ratification or rejection of the invoice.

Does the contract contain the clause 52.232-7 Payments under Time-and-Materials and Labor-Hour Contracts? Instead of a ratification or claim a solution to your issue perhaps may be found based upon this clause e.g. withhold, release, etc.

A modification is not necessary. It would be best to do by written correspondence. Here is a link to DAU where a sample Request For Final Proposal Revision is available and can be edited to meet your requirement:

https://acc.dau.mil/CommunityBrowser.aspx?id=25175

It will be interesting to see the GAO Report that comes with this extension.

"The conferees direct the Comptroller General to report to the congressional defense committees, the Senate Committee on Homeland Security and Governmental Affairs, and the House Committee on Oversight and Government Reform by October 1, 2013, on the use of this authority. The Comptroller General's report should address, at a minimum: (1) the extent of use of the authority;(2) the cited rationales for use of the authority; (3) the acquisition outcomes that have resulted; and (4) any waste, fraud, or abuse that have resulted from the use of the authority."

Maybe they will also weigh in on why class deviations were issued??

I don't see any value in this. As Vern has stated previously "...contracting with the U.S. government is the most complex business in the world. It's right up there with trading derivatives. There are countless rules and contract clauses, many of which are exceedingly hard to understand..."

I would much better spend time and resources gaining a better understanding of contracting with the U.S. Government then China.

I would recommend following #7 of Vern Edwards Tips for Clueless Would-Be Contractors:

"...7. If you win the contract, take a firm, formal, arm's-length, businesslike approach to all aspects of the deal. Comply strictly with all contract terms and insist that the government do the same. Know all of your contractual deadlines and meet them. Know all of the government's contractual deadlines and notify them in writing the moment that they are late. The very moment. Neither ask for nor grant exceptions except through formal processes, such as engineering change proposals, formal waivers, and change orders. Know your obligations and fulfill them. Know your rights and insist upon them. When you truly believe that the government owes you something, ask for it in writing. If you don't get favorable action within a reasonable period of time, submit a claim in accordance with the contract Disputes clause and FAR Subpart 31.2. If the contracting officer does not make a decision within the deadlines set by the Disputes clause, hire an attorney and appeal to a board of contract appeals or to the Court of Federal Claims, unless you are willing to let the government keep what you think is yours..."

I would also recommend you review all 14 of his tips:

You indicate that you are coming "late" so I would infer that you were passed this action mid-course. Therefore, stop now and begin anew. Read the entire contract and start to gather all the facts of the issue at hand and after reading Vern's advice take action.

As far as I know the FAR does not prohibit electronic signatures – see the definition of “signature” in FAR 2.101, “Contracting Officer Signature” in FAR 4.101, and “Electronic Commerce in Contracting” FAR 4.502(d). Unless the Head of your Agency does not want to use electronic signatures I would think they are allowable. You may want to look into a signed/scanned electronic file and print out a copy for the file. Many ways to do expedite the process using combinations of electronic and manual processes.

I would recommend that even though everyone is busy it is a good idea to attend annual ethics training (even if you do not have to file an OGE 450) and if you work in industry see if your organization has something comparable to govenment ethics training. It is good to get a refresher on what one can and cannot do in the "blended workforce" office. Each year in ehtics training that I have attended this seems to be a point of emphasis concerning office parties, gift giving, and other scenarios though not the one discussed here. It's not only contract issues but ethics laws and regulations that one needs to keep abrest of.

I would say that having just completed my annual ethics training this was a most timely discussion topic!

I believe the subcontractor is required to report the information to the prime. In the background section of the final rule they make this indication. You may want to review the rule to see if you read it that way:

http://www.gpo.gov/fdsys/pkg/FR-2012-07-26/html/2012-17724.htm

You are SO RIGHT!!! There is nothing related to conference spending that could not have waited until the morning for questions to be asked. This conduct is outrageous! After 20 years of federal service I understand the role of oversight but this type of action goes to far.

I would still suggest contacting the CO's Competition Advocate and discuss this action preferably in a face to face meeting that includes the CO. The Compettion Advocate is charged with promoting commercial acquisition. Additionally, it can't hurt to have another office e.g. Competition Advocate outside of contracting looking at the situation and they may see it your way and get you what you are looking for. It's worth a try. Also it would provide your Management with additional informtion to make a more informed decision.

Agency and procuring activity competition advocates are responsible for promoting the acquisition of commercial items - see FAR 6.502(a) & 6.502(. I would suggest you contact the Competition Advocate of the buying activity of your CO for assistance. Many times this office is located on the Chief Counsel or similar Legal Office.

I checked my archive and found a legal memo that discussed this topic but unfortunately when the author discussed relevant case law specific case(s) were not provided.

However, the author did make reference to the Anti-Deficiency's act prohibition on incurring an obligation in advance of or in excess of available appropriations.

Addiitonally, the author referenced GAO's "Principles of Federal Appropriations Law Vol. II". At page 7-17 and quotes a statement "...the obligational impact of a variable quantity contract depends on exactly what the government bound itself to do. A fairly simple generalization can be deduced from the decisions: In a variable quantity contract (requirements or indefinite-quantity), any required minimum purchase must be obligated when the contract is executed..."

The attorney's opinion at the time (1994) was that GAO and Agency policy (Army) require that funds sufficient to the cover the specified minimum quantity be obligated on the contract at the time of award in order to avoid a violation of the ADA. The contract writing system used at the time would not allow funds on the basic contract so the task or deliver order was used.

The discussion of nominal consideration was part of the analysis in the begining of the opinion as the elements of an valid contract with consideration being one of the elements.

Again it may or may not be a requirement to place an order at time of the award of the basic contract but it has been a practice I followed in the past especially if the contract writing system would not allow funds to be placed on the bsic contract. Hence my suggestion that the one asking the question check internally.

In addition to evaluation of price your Agency may use a "see project" to provide a task order award at time of the award of the basic contract to meet the minimum of the IDIQ and or to provide nominal consideration. There have been many fiscal law cases regarding IDIQ contracts and providing "nominal consideration" at time of the Award of the basic IDIQ contracts. Your Agency may be using the seed project as a vehicle to provide an award of a task order when the base contract is awarded to provide nominal consideration and thus, in the eyes of the Courts, a valid contract. The FAR does not require meeting the minimum at time of award but there are reasons to do so based on Fiscal Law requirements. It may be helpful if you check internally to see if this is indeed the case with your Agency.

It's hard to respond since you don't have a lot of information such as contract type, T&Cs, type of funding/work e.g. Recovery Act, etc. But I would offer that you should review Vern's blog entry "Tips for the Clueless Would-Be Contractor" and especialy tip #14:

"14. Make sure that you have the telephone number, email address, and street address of a good government contracts attorney and a good government contracts accountant. If you can't afford that kind of help, stay away from government contracts."

The entire entry is here:

http://www.wifcon.com/discussion/index.php?app=blog&module=display&section=blog&blogid=2&showentry=1346

Not much of an answer but if you have an IG doing an audit/investigation it would be in your best interest to get professional, competent advice.

You may be able to try and use this training exercise that Vern has in his blog and tailor it for your use:

http://www.wifcon.com/discussion/index.php?app=blog&module=display&section=blog&blogid=2&showentry=1111

Also Vern has a good entry that he wrote for contractors that has some good information as well:

http://www.wifcon.com/discussion/index.php?app=blog&module=display&section=blog&blogid=2&showentry=1346

If you are in discussions after establishing the competitive range you may want to try and get the offeror to improve the strength using baraining - see FAR 15.306-(d). I used this process on a large competitive acquisition shortly after FAR Part 15 was revised to add this process and it worked well without protest.

I agree with Vern that one should use "...(1) the authority provided in a clause, (2) the specific authority provided by a specific statute, if any, and (3) and the general constitutional authority of the government to enter into contracts provided that Congress authorizes a program and appropriates funds.." This is probably the safest choices.

I have worked where the authority most commonly cited was "mutual agreement of the parties" and would caution against using this as an authority. I was not comfortable using this authority and tried to cite the contract clause whenever possible.

"Tabloid City" by Pete Hamill. A good novel about New York City and the newspapers. Just started his new novel "Forever".

I don't know why it should be the case that only DOD can resurrect the program. Even though the original legislation and the extensions have been included in DOD authorization acts, they have been codified in both Title 10 and Title 41 of the U.S.C.

It sounds to me that somebody is not very enterprising. Couldn't they have gone to OFPP for help?

However, it may be that Congress would not extend the program unless DOD also wanted it extended. I don't know.

I don't have any information on how or why this happened but I understand my Agency, which is not DOD, is gathering data and information in order to consider submitting a legislative proposal to turn this back on. Not sure how successful this will be but I think they will give it a try and see what happens.

Wow.

Why are you surprised? Congress is relying ever more on data from FPDS and yet the contract community has not even though the FAR holds Contracting Officers and Agency Heads accountable for accurate data in FPDS. I am not surprised this program was cancelled if the decision was based solely on FPDS data.

Regardless of what one in the contracting community thinks of data entry into the numerous systems they are faced with and even though it is not considered an important task Contracting Officers must be certain the data they enter into systems such as FPDS are accurate since decision makers are using this data to make decisions.

One may not like it but this is the new reality - systems and the data they receive and contain matter!

The current OFPP administrator is leaving OFPP to become an associate dean at GWU law school. He will have been in the job about two years.

Presidential appointments... Great way to pad resumes, but otherwise a lousy system.

It would be interesting to see what would happen if Congress would change this position so that the person would be able to serve longer than the Administration that they are appointed. I am thinking along the lines of the Permanent Director of the FBI (who serves for 10 Years) or the Comptroller General (also serves for 10 years). This may attract an individual with the attributes of a Dan Gordon but with the extra time to actually implement the ideas developed and not see them changed in 2 or 3 years.

It also strikes me how elected officals want the Federal Government to work like a business. What successful business changes its leadership every one to two years???

I would join with Vern. My expereince as a CO on legal reviews was the tendency of the attorney to question my business decision and business judgement. I found this most of the time when there were no legal issues raised so the attorney would move into "my lane" and question my business decision being made. I also agree with Vern of the lack of standard and consistent reviews within the Legal Office. My Procurement Center used a checklist for various actions and I found this beneficial but the Legal Office did not have any such tool. I have also found many attorneys look for "perfect" when "good" would suffice. Anyway this is my view and I am sure other current and former COs would find other issues but this is what I experienced. I hope this helps with your class! It might be interesting if you come back after the class and share the outcome of what was found.