Jump to content


Photo

Working at Risk


  • Please log in to reply
35 replies to this topic

#1 Smurphy430

Smurphy430

    Copper Member

  • Members
  • PipPip
  • 37 posts
  • Gender:Male

Posted 17 May 2011 - 10:22 AM

Is therer some provision that allows a Contracting Officer to knowingly be aware that a Contractor is working at risk when no funds are received for health, welfare and morale, i.e., support for dining facility, building maintenance? Does anyone know of a provision that would allow this in a Garrison invironment?

#2 Heretalearn

Heretalearn

    Bronze Member

  • Members
  • PipPipPip
  • 123 posts
  • Gender:Female
  • Location:Chicago

Posted 17 May 2011 - 10:40 AM

I don't know what a "Garrison" environment is, but you might find the Availability of Funding and More Funding Questions threads under the Contract Administration topic helpful.

#3 Vern Edwards

Vern Edwards

    Platinum Member

  • Members
  • PipPipPipPipPipPip
  • 4,591 posts
  • Gender:Male
  • Location:Portland, Oregon

Posted 17 May 2011 - 10:44 AM

No. And see FAR 32.704( c):

Government personnel encouraging a contractor to continue work in the absence of funds will incur a violation of Revised Statutes section 3679 (31 U.S.C. 1341) that may subject the violator to civil or criminal penalties.


"Being aware" might not be "encouraging," but, then again, it might, especially if the work is being done on a government facility. Be careful.

#4 charles

charles

    Copper Member

  • Members
  • PipPip
  • 82 posts

Posted 17 May 2011 - 11:00 AM

Assuming you work for the Government. Perhaps you can forward your concerns through your chain of command and maintain an memorandum for record for your files.

#5 Navy_Contracting_4

Navy_Contracting_4

    Silver Member

  • Members
  • PipPipPipPip
  • 378 posts
  • Gender:Male

Posted 17 May 2011 - 12:02 PM

No. And see FAR 32.704( c):



"Being aware" might not be "encouraging," but, then again, it might, especially if the work is being done on a government facility. Be careful.

And it's not just "encouraging" that can get you in trouble. Knowingly allowing services to be performed without a contract might be construed to be accepting voluntary services, potentially in violation of 31 U.S.C. 1342 ("An officer or employee of the United States Government . . . may not accept voluntary services...")

#6 jtolli

jtolli

    Copper Member

  • Members
  • PipPip
  • 52 posts
  • Gender:Male
  • Location:San Antonio

Posted 17 May 2011 - 12:04 PM

I have always been curious about FAR 16.301-1 (for cost reimbursement contracts) which reads in part, "These contracts establish an estimate of total cost for the purpose of obligating funds and establishing a ceiling that the contractor may not exceed (except at its own risk) without the approval of the contracting officer." How should this be interpreted? Taken at face value it seems to indicate that the contractor may exceed the contract ceiling, but may not get reimbursed if they do. If that is what it means, does that mean it's OK for the contractor to work at risk as long as the Government doesn't know they are doing it?

#7 leo1102

leo1102

    Bronze Member

  • Members
  • PipPipPip
  • 116 posts
  • Gender:Female
  • Interests:gardening, reading, movies, music, dining, fashion,

Posted 17 May 2011 - 12:36 PM

Is therer some provision that allows a Contracting Officer to knowingly be aware that a Contractor is working at risk when no funds are received for health, welfare and morale, i.e., support for dining facility, building maintenance? Does anyone know of a provision that would allow this in a Garrison invironment?


Have you discussed services that are essential to the support of on-going programs, projects or operations? Does your contracting office have an "Essential Services" statement in the contract?

#8 Smurphy430

Smurphy430

    Copper Member

  • Members
  • PipPip
  • 37 posts
  • Gender:Male

Posted 19 May 2011 - 12:54 PM

Have you discussed services that are essential to the support of on-going programs, projects or operations? Does your contracting office have an "Essential Services" statement in the contract?

Unknown, how it is described to me it is the Garrison, i.e. on a Army Intsallation in the Continental United States, environment. The contractor provided services such as post maintenence, dinning facilities, dental healthcare, on post housing maintenence, these types of services...

What the Contracting Officer has been doing is cohercing the contractor to work at risk until the installation FCO finds or gets the money to pay for it. Therefore, the contractor is working at risk, with the encouragement of the contracting staff. The contracting staff says "well we have always done it this way before", but the new chief wants the authority, for she has never heard of such a thing.

I think it is garbage on all levels..."We always done it this way" is not reason enough in my opinion, but that is the Army...

#9 leo1102

leo1102

    Bronze Member

  • Members
  • PipPipPip
  • 116 posts
  • Gender:Female
  • Interests:gardening, reading, movies, music, dining, fashion,

Posted 19 May 2011 - 01:11 PM

I agree - Just because it has always been done does not mean it has been done correctly.

The statement I have used at installation level is:

CLIN XXXX is exercised subject to the availability of funds under FAR 52.232-19. FY11 funds will be provided once available. In the event that FY11 funds are not immediately available after 1 Oct 11 - In the absence of a Fiscal year 11 Continuing Resoution Authoirty (CRA) or Annual Appropriation (AP), it is imperative that this office exercise judgment to determine which contract requirements are essential to the support of on-going programs, projects or operations. It is determined that the services your company provides under this contract are essential. Based upon this determination, you shall continue to perform, under the contract and all terms and conditions have full force and effect. When a CRA or AP is enacted or approved, your contract will be modified to obligate the funds made available.

#10 Don Mansfield

Don Mansfield

    Platinum Member

  • Members
  • PipPipPipPipPipPip
  • 1,288 posts
  • Gender:Male
  • Location:San Diego, CA

Posted 19 May 2011 - 02:03 PM

I agree - Just because it has always been done does not mean it has been done correctly.

The statement I have used at installation level is:

CLIN XXXX is exercised subject to the availability of funds under FAR 52.232-19. FY11 funds will be provided once available. In the event that FY11 funds are not immediately available after 1 Oct 11 - In the absence of a Fiscal year 11 Continuing Resoution Authoirty (CRA) or Annual Appropriation (AP), it is imperative that this office exercise judgment to determine which contract requirements are essential to the support of on-going programs, projects or operations. It is determined that the services your company provides under this contract are essential. Based upon this determination, you shall continue to perform, under the contract and all terms and conditions have full force and effect. When a CRA or AP is enacted or approved, your contract will be modified to obligate the funds made available.

So, if there were no appropriation in place on 1 October 2011, the contractor would still have to work and the Government would still have to pay, correct? Wouldn't this be the creation of an obligation in advance of an appropriation--an Anti-Deficiency Act violation? The fact that you don't record the obligation until after the appropriation is enacted is irrelevant--what matters is when the obligation is created.

#11 Smurphy430

Smurphy430

    Copper Member

  • Members
  • PipPip
  • 37 posts
  • Gender:Male

Posted 19 May 2011 - 03:04 PM

So, if there were no appropriation in place on 1 October 2011, the contractor would still have to work and the Government would still have to pay, correct? Wouldn't this be the creation of an obligation in advance of an appropriation--an Anti-Deficiency Act violation? The fact that you don't record the obligation until after the appropriation is enacted is irrelevant--what matters is when the obligation is created.


That is the issue Don, I cannot get past the FAR 32.704©, not to mention accepting voluntary services, potentially in violation of 31 U.S.C. 1342. Therefore, we were wanting to see what authority they are using for this action.

#12 dwgerard

dwgerard

    Bronze Member

  • Members
  • PipPipPip
  • 137 posts
  • Location:Orlando, FL

Posted 20 May 2011 - 07:05 AM

So, if there were no appropriation in place on 1 October 2011, the contractor would still have to work and the Government would still have to pay, correct? Wouldn't this be the creation of an obligation in advance of an appropriation--an Anti-Deficiency Act violation? The fact that you don't record the obligation until after the appropriation is enacted is irrelevant--what matters is when the obligation is created.


Don,

If it comes down to obeying the ADA or feeding troops, which path would you take? Essentially, following the ADA in a dining facility situation where the funding was not made available means the troops don't eat or are forced to survive on MRE's. Yes, the law says one thing, but is the law so ironclad that it means we must figuratively shoot ourselves in the leg?

This case does not seem to be that stark, and I bet the garrison has the funding available and is simply withholding it for some reason. I am working on some contracts that are in that situation right now. I have managed to get the funding nevertheless, incrementally, as I have told them I have no problem issuing a stop work notice if they fail to provide the funding in time. My situation is for training, so it is less critical in my opinion than funding for a dining facility. I might not threaten a stop work notice so easily in that situation.

#13 FAR Fetched

FAR Fetched

    Bronze Member

  • Members
  • PipPipPip
  • 196 posts
  • Location:The Internet

Posted 20 May 2011 - 07:33 AM

So does FAR 32.704( c) apply in the following circumstance?
IDIQ Contract with FFP Orders.

Total Funded IDIQ Contract is $1M; 10 Orders are issued to the Contractor at 100k each. The Orders are to install 10 widgets (each widget costs 10k) in 10 different locations throughout the US. The widgets are installed at the 10 locations by one site at a time.
The installation team gets to the first site and it's determined by the COTR that additional 2 widgets will be required to complete that site. The additional widgets/labor will be 20k more for the one site.

The COTR directs the installation team to install the additional widgets and an Order modification will follow later.
Until the modification is done, the Contractor performs the service at Risk by the direction of COTR. If the waits for the modification Contractor doesn't perform the additional requirement right away, it would affect the schedule of all 10 sites.

I've been in this situation countless times as the Contractor and have made the decision to install the widgets at risk as a business decision. I usually get paid, but sometimes I don't?

Question: Can the COTR direct this as his authority is delegated by the CO? If I didn?t get paid, did I perform voluntary services?

Although at the time of the first installation there's plenty of funding to cover the additional 20k, but once the Contractor completes the other 9 sites, the funding will be fully exhausted.

#14 formerfed

formerfed

    Gold Member

  • Members
  • PipPipPipPipPip
  • 721 posts

Posted 20 May 2011 - 07:57 AM

FAR Fetched,

That's something different. The COTR directed you to do work that he/she didn't have the authority to do (assuming he/she didn't). You are responsible for verifying individuals have the proper authority before doing anything out of scope. So you are partially to blame for doing out of scope work without authorization.

You don't get paid unless an agency official ratifies the unauthorized commitment.

#15 FAR Fetched

FAR Fetched

    Bronze Member

  • Members
  • PipPipPip
  • 196 posts
  • Location:The Internet

Posted 20 May 2011 - 08:09 AM

FAR Fetched,

That's something different. The COTR directed you to do work that he/she didn't have the authority to do (assuming he/she didn't). You are responsible for verifying individuals have the proper authority before doing anything out of scope. So you are partially to blame for doing out of scope work without authorization.

You don't get paid unless an agency official ratifies the unauthorized commitment.


You are correct, but 18+ years in the business tells me that telling the COTR what he can and can't do isn't a good idea. Like I said, I make a business decision which usually includes many other factors (e.g. I'm in the middle of another proposal w/same GCustomer and don't want to piss them off). A government employee would never hold a grudge if I called them out on their authority, right? right...

#16 Guest_carl r culham_*

Guest_carl r culham_*
  • Guests

Posted 20 May 2011 - 08:29 AM

FAR - I would just add that the COTR authority is a matter of record. He/she may in fact have the authority but usually not but calling them out is very appropriate and should be done. Recent changes to the whole of FAR 1.6 gives even more support to doing so.

While the question regarding orders on a IDIQ might be a little off track of this thread, challenging the status quo is not. Your 18+ years of doing business is your choice but substantiating authority should not be avoided, it is your right under the contract.

#17 FAR Fetched

FAR Fetched

    Bronze Member

  • Members
  • PipPipPip
  • 196 posts
  • Location:The Internet

Posted 20 May 2011 - 08:39 AM

FAR - I would just add that the COTR authority is a matter of record. He/she may in fact have the authority but usually not but calling them out is very appropriate and should be done. Recent changes to the whole of FAR 1.6 gives even more support to doing so.

While the question regarding orders on a IDIQ might be a little off track of this thread, challenging the status quo is not. Your 18+ years of doing business is your choice but substantiating authority should not be avoided, it is your right under the contract.


True, thanks

#18 FAR Fetched

FAR Fetched

    Bronze Member

  • Members
  • PipPipPip
  • 196 posts
  • Location:The Internet

Posted 20 May 2011 - 09:12 AM

I think the problem is years ago I put proposals in to a CO, that were reviewed by COs and managed by COs with the help of CORs. Now, I turn proposal in to a Contract Specialist (who is usually contract company employee) who has zero authority and basically manages emails and phone calls. They usually defer my questions to the COR who then makes the decision and I finally get a modification with a CO?s name whom I've never heard of (usually months later).

It seems the agencies (at least in the DC Beltway) have less CO s and more 'contract specialists' then ever.

#19 Smurphy430

Smurphy430

    Copper Member

  • Members
  • PipPip
  • 37 posts
  • Gender:Male

Posted 20 May 2011 - 10:10 AM

I think the problem is years ago I put proposals in to a CO, that were reviewed by COs and managed by COs with the help of CORs. Now, I turn proposal in to a Contract Specialist (who is usually contract company employee) who has zero authority and basically manages emails and phone calls. They usually defer my questions to the COR who then makes the decision and I finally get a modification with a CO?s name whom I've never heard of (usually months later).

It seems the agencies (at least in the DC Beltway) have less CO s and more 'contract specialists' then ever.


The reasons these problems are happening is because the system allows it. I have been a contractor, a COR, and now a contract specialist with desires to be a CO. Having said that, when the COR or any Government employee other than the CO directs a contractor to do anything out of scope the contractor should contact their contracts administrator to make contact with the CO, and at least get a email regarding the added work. To often as a COR I have seen my collegues intimidate contractors into free services and work. If played right the COR will get hammered by the CO and get their letter revoked. Unfortunately, there are too few CO's with enoughleadership to pull the trigger and do ratifications. When the COR misbehavoir starts cutting into their pocket it will stop.

But as long as there are contractors out there willing to do the work without question it will continue...

#20 Don Mansfield

Don Mansfield

    Platinum Member

  • Members
  • PipPipPipPipPipPip
  • 1,288 posts
  • Gender:Male
  • Location:San Diego, CA

Posted 20 May 2011 - 10:46 AM

Don,

If it comes down to obeying the ADA or feeding troops, which path would you take? Essentially, following the ADA in a dining facility situation where the funding was not made available means the troops don't eat or are forced to survive on MRE's. Yes, the law says one thing, but is the law so ironclad that it means we must figuratively shoot ourselves in the leg?

That's not a decision for a CO to make, simply because a CO doesn't have the authority to violate the ADA. A CO's actions are limited by FAR 1.602-1(b), which states:

No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.


A CO acting outside the scope of their authority can be held personally liable for their actions. A CO has no more authority than the garrison janitors to violate the ADA. If there's no funding in place, that's not the CO's fault. The problem of the hungry troops should be laid at the feet of those with the authority to do something about it. A CO who thinks that it's his or her call to knowingly violate the ADA is beyond stupid.




0 user(s) are reading this topic

0 members, 0 guests, 0 anonymous users