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Colleagues: My issue is: Whether an agency may issue a letter, and subsequently require an employee to pay an unauthorized commitment it will not ratify. My initially thought is no. I am unaware of any authority where an agency can require an employee personally pay for an unauthorized commitment for which the agency will not ratify. Of course, the contractor could pursue payment for the employee who entered into the unauthorized commitment, but I do not see how an agency can require (or really even issue a letter to) an employee to pay. Any insight would be appreciated. Background facts in case anyone is interested: The Agency completed a Justification for Other than Full and Competition (JOFOC) for purchase of a specific vendor-offered course. The contractor informs Agency Employee #1 that the course is full and offers another course (not approved on the JOFOC) that costs the same amount. Agency Employee #2, asks contracts, "Can we substitute the second course for the first," and the contracting officer (CO) says, "no." The CO says a JOFOC was not approved for the second course. Agency Employee #2 goes ahead anyway and substitutes the first course (the JOFOC-approved course) for the second course (the course that is not approved). A ratification request was completed by Agency Employee #2 and he agency is in the process of denying the request. The denial is based, in part, on FAR 1.602-3(c)(3), in that "[t]he resulting contract would [not] otherwise have been proper if made by an appropriate contracting office." The thought is, the JOFOC was approved for the first course and not the second course. Also, FAR 1.602-3(c)(6), because, "[f]unds.. were [not] available at the time the unauthorized commitment was made. A check was made with budget and funds were not available at the time the commitment was made. However, funds were obligated on the order/contract which were intended for the first, approved course, so there is an argument that funds were indeed available. Again, any thoughts are appreciated and thank you in advance for your help.
Contract Administration Plan
Former CO posted a topic in Contract AdministrationDoes anyone have a link to a good Contract Administration SOP, guide, or plan? Thanks!
I am new to this forum and first time posting, so I will do my best! Prime Contract is an IDIQ with DO's consisting of Testing NRE Costs, hardware, drawings/specs, software and associated data deliverables. All DO's are FFP. Although the hardware has not been previously produced in this form, it is being classified as NDI. All subcomponents were commercial items at their base, but they are being enhanced with military upgrades for this effort. The contract requires that a number of units be delivered to undergo verification testing, and upon passing production units will be delivered in relatively short order. Contractor experienced a number of delays (from subcontractors) in getting the hardware, which has pushed out deliveries for 7-9 months from the original contract due date. These delays are not due to any action from the Government. In order to salvage as much schedule as possible, the Contractor verbally proposed a faster approach for testing from what is currently on contract during a joint working meeting approximately 6 months ago. There was no formal agreement from Contracts for this new approach, just a "its sounds great technically, but we will have to assess what will need to change contractually." There are weekly telecons; quarterly PMRs; and monthly CDRL Reports that have notated the change in approach. However, approximately 1.5 months ago, rejection of the proposed path (that we have been executing to) was received from the Government, along with a request for consideration of the delay in deliveries. The Govt has provided a dollar amount that they believe is equal to the 7 month delay (current outlook). Additional information from the Govt was requested to better analyze the cost estimate for consideration. The Govt will not provide any insight into the calculation of that estimate, only a statement that it includes labor expended and funding dispersed for services on contract, representing a loss in value. There is no liquidated damages clause incorporated on this contract. The "Changes" clause and "termination for default" are both included. So here is/are my question(s): I understand (from reading various other posts) that when a delay occurs or the Contractor requests an extension, consideration has to be provided...which can be in the form of cost reduction or other items of value to the Government. But if a price reduction is requested, is that party not required to provide sufficient data to support review or analysis of that figure. I know that claims and REA's submitted by contractors have to include pricing data or other than cost and pricing data, so is that not applicable if the Government is the party requesting a downward adjustment of price? Thanks in advance for your help and insight.
Funding Incrementation Yes or No
WolfmaN365 posted a topic in Contract AdministrationI have a situation with a Fixed Price Construction Contract for the renovation of male and female bathroom/gang showers where an unforeseen condition has been discovered. I have received funding for this modification, however the contractor has discovered the same condition in another bathroom/gang shower for which there is not sufficient funding for this additional work. It has been suggested to wait and do an upward obligation next FY to obtain project year dollars. My question, is this considered funding incrimination since the unforeseen conditions were discovered in the same FY a couple of months apart or should I wait until the new FY and request an upward obligation for the entire amount for both unforeseen conditions.
Void Ab Initio - (Invalid from the Outset)
bkl14 posted a topic in Contracting WorkforceI have a situation with a recently awarded multiple award contract. This award was made on the basis of lowest price, technically acceptable and there were a few technically acceptable offerors that did not receive the award due to price. Three days after the awards were fully executed, one of the awardees stated that they could not do business with our agency because a few of their clients who were adverse to agency would not sign a waiver for them to work with the Agency. In the solicitation, there are disclosure requirements for the offerors regarding organizational conflict of interest and the offeror is required to certify whether it is aware or not aware of any potential organizational conflict of interest and the disclosure statement shall describe how any such conflict can be avoided, neutralized, or mitigated. The awardee did state in their proposal that they did represent clients that were adverse to the Agency, but did not believe such representation would preclude them from representation of the Authority and if given the opportunity, they would obtain waivers from these clients. I sent the contract to them to review, sign and send back to me to fully execute and gave them three days to do so, in that time, this awardee made no mention of the inability to obtain waivers from their adverse clients. So, when they signed the contract, they signed it knowing they had not obtained the waivers as they disclosed they would need to do in order to avoid, mitigate or neutralize organizational conflict of interest. So, my question is, can this contract be considered void ab initio? I have found a few GAO cases that discusses void ab initio. They are from the 70s and 80s and the scenarios aren’t necessary exactly the same, but each have stated the position that once a contract comes into existence, even if improperly awarded, it should not be canceled, that is, regarded as void ab initio, unless the illegality of the award is “plain” or “palpable.” As stated in another GAO case, Warren Brothers Roads Company v. US, the test of plainly or palpably illegal award is whether the award was made contrary to statute or regulation because of some action or statement by the contractor was on direct notice that the procedures being followed were inconsistent with statutory or regulatory requirements. If the test is not met, a contract may not be canceled, but can only be terminated for the convenience of the Government. Would the awardee knowingly signing a contract when their organizational conflict of interest not being mitigated, neutralized or avoided constitute as passing the test? Thanks in advance for your help!
Time & Material (T&M/LH) Labor Hour Requirements
KR_2016 posted a topic in Contract AdministrationHello Wifcon Forum Members, I've recently began reviewing a physically completed T&M/LH for closeout purposes. This particular T&M/LH contract has the following specifications under the heading "Maximum Hours and Cost" for the following two labor categories: Sr. Software Engineer - 656 hours at $/hour Program Manager - 18 Hours at $/hour A review of the contract invoices shows the following amount of Labor Hours billed/charged during the course of the contract: Sr. Software Engineer - 381 hours Program Manager - 38 hours As you can see, the SSE was well under the allotted hours and the PM was slightly over. My main questions concerning this situation are : Given that the PM charged more than the 18 allotted hours, would our company need to issue a refund of the 20 hours paid in excess of the PM allotted hours? Would the fact that we were well under the total amount of allotted hours (SSE & PM allotted total hours) and came in well under the funded amount (DE obligated the excess funding) to finish the job make any difference? I read through FAR 52.232-7 - Payments under Time and Materials and Labor Hour Contracts, specifically the section concerning "Hourly Rates" and more specifically part 3 (see bold below). Would hour allotments fit into the "labor qualification" mentioned below in part 3? "(a) Hourly rate. (1) Hourly rate means the rate(s) prescribed in the contract for payment for labor that meets the labor category qualifications of a labor category specified in the contract that are— (2) The amounts shall be computed by multiplying the appropriate hourly rates prescribed in the Schedule by the number of direct labor hours performed. (3) The hourly rates shall be paid for all labor performed on the contract that meets the labor qualifications specified in the contract. Labor hours incurred to perform tasks for which labor qualifications were specified in the contract will not be paid to the extent the work is performed by employees that do not meet the qualifications specified in the contract, unless specifically authorized by the Contracting Officer. (4) The hourly rates shall include wages, indirect costs, general and administrative expense, and profit. Fractional parts of an hour shall be payable on a prorated basis. (5) Vouchers may be submitted not more than once every two weeks, to the Contracting Officer or authorized representative. A small business concern may receive more frequent payments than every two weeks. The Contractor shall substantiate vouchers (including any subcontractor hours reimbursed at the hourly rate in the schedule) by evidence of actual payment and by— (6) Promptly after receipt of each substantiated voucher, the Government shall, except as otherwise provided in this contract, and subject to the terms of paragraph (e) of this clause, pay the voucher as approved by the Contracting Officer or authorized representative. (7) Unless otherwise prescribed in the Schedule, the Contracting Officer may unilaterally issue a contract modification requiring the Contractor to withhold amounts from its billings until a reserve is set aside in an amount that the Contracting Officer considers necessary to protect the Government’s interests. The Contracting Officer may require a withhold of 5 percent of the amounts due under paragraph (a), but the total amount withheld for the contract shall not exceed $50,000. The amounts withheld shall be retained until the Contractor executes and delivers the release required by paragraph (g) of this clause. (8) Unless the Schedule prescribes otherwise, the hourly rates in the Schedule shall not be varied by virtue of the Contractor having performed work on an overtime basis. If no overtime rates are provided in the Schedule and overtime work is approved in advance by the Contracting Officer, overtime rates shall be negotiated. Failure to agree upon these overtime rates shall be treated as a dispute under the Disputes clause of this contract. If the Schedule provides rates for overtime, the premium portion of those rates will be reimbursable only to the extent the overtime is approved by the Contracting Officer. (i) Performed by the Contractor; (ii) Performed by the Subcontractors; or (iii) Transferred between divisions, subsidiaries, or affiliated of the Contractor under a common control. (i) Individual daily job timekeeping records; (ii) Records that verify the employees meet the qualifications for the labor categories specified in the contract; or (iii) Other substantiation approved by the Contracting Officer." Any guidance/advice would be appreciated. V/r, KR_2016
Extend beyond ordering period of a MATOC
ACQCON posted a topic in Contract AdministrationGood morning Acquisition Professionals, Our command has a contract (multiple award construction contract) that is beyond its ordering period (April 2015 end of ordering period). The contract capacity was $99M and $15M was still available when the ordering period ended. A task order under this contract is still active until Oct 2016. We have an unforeseen condition that was estimated at $28M. The questions are: Is it possible to increase the capacity of the contract whose ordering period ended? If possible, do we need to extend the ordering period? Are these considered bridge action? Could our command cite FAR 6.302-1 to justify the task order increase instead of increasing the contract capacity and extend the contract ordering period? Thank you for your assistance.
Here's my dilemma. My COR has been approving invoices without withholding because he claims the Contractor was doing successful in his progress. We are now at the end of the contract and he has identified several deficiencies that he believes the contractor owes us money. He wants to withhold further payments from the contractor greater than the 10% retainage. So in short, we have ~$300K left on the contract and he doesn't want to pay them because he overpaid them in other past payments. While I know FAR Part 33 outlines how the Government can issue a claim, is there anywhere that I can not pay them this amount? I mean, FAR 32.103 outlines progress payments for construction contracts but I think logically, it would make sense to withhold payment. However, the issue I have is that there was different subs whose payments are being withheld simply because we didn't properly withhold it from the subs who's work was not sufficient. Any thoughts?
Award Fee Periods
johnrobinb posted a topic in Contract AdministrationIs it acceptable to have an Award Fee Period for 3 years and make interim assessments (including partial payments) with the final determination made at the end of the three year period?
Non-exercising an option against one awardee
Orion71 posted a topic in Contract AdministrationWe just bought a company that was awarded an IDIQ contract in one of the multiple technical categories in the small business category. The award was for a 2 year base with 3 one year options. The previous owner did not pay one of his sub-contractors. We are in negotiations with the sub-contractor for a payment plan and will use a waiver of liens to solidify the payment plan. The waiver includes liens against the Government. The KO issued a notice not to exercise the next option year. KO's reasoning is financial instability. What options does a contractor have to challenge the non-exercise of the next option year. KO did not state what documentation was acceptable to demonstrate financial stability.