Smurphy430

Working at Risk

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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?

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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.

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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.

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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.

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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...")

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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?

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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?

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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...

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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.

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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.

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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.

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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.

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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.

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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.

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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...

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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.

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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

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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.

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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...

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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.

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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:

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.

Yes. COs and other people shouldn't just sit back and either do nothing or do foolish things like what's been mentioned. If there's no money and troops won't be fed as a result, it's up to the CO and their management to alert the proper people about the situation so that things can be straightened out. I'm sure whoever is controlling the money isn't aware of the repercussions.

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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:

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.

I wonder where 41 U.S.C., 11 fits in this scenario.

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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?

I'll tell you what path I would take. I would obey the law, and I wouldn't apologize for it. If the commanders of those troops let it come to that, they are the ones who should answer for it. It's up to commanders to feed their troops, not some 1102 who thinks he or she ought to break the law in order to play hero. If you want to be a hero, see if you can get into Seal Team 6. If I were a chief of a contracting office and a CO took it upon himself or herself to deliberately violate the ADA, I would hang his or her ass out in the hot sun out to dry.

In any case, that's a totally BS scenario and dwgerard ought to be ashamed of himself for coming up with it.

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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.

Not true. When I entered contracting there were as many as five contract specialists (CSs) to every CO. COs were supervisors who oversaw the work of CSs, who did all the grunt work, including receiving and processing bids and proposals. COs reviewed CS work and signed contracts. They didn't handle contracts of their own. IGs would write up offices that handed out too many warrants. That has gradually changed in some organizations, which think that every CS should be a CO.

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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:

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.

I understand what you are saying, and agree with the premise that those in charge are responsible for providing the funding. The problem is that does not answer the question about what to do if there is no funding available for those in authority to provide. If there is no funding, do we simply turn off the dining facility? I agree that it is not the contracting officers decision, but what mechanism do we have to ensure that the troops are fed? Do we turn them loose to forage in nearby areas? I would say we start selling property to obtain the funds for feeding the troops, but that is also illegal.

What do we do? If those who are responsible for the creation of the ADA law do not follow the law themselves and do not live up to their responsibilities, are we still bound to the restrictions that they themselves fail to adhere to?

I realize this is a very unlikely hypothetical question, and the OP does not rise to that level. I do believe we need to know the answer to this question though, because it may eventually happen if our political leaders continue to play the games they seem to enjoy so much. Right now the only solution I have seen is the clause that LEO posted, but you have said that clause is also inappropriate.

Edit: I believe I found the answer to my own question- 50.101-1 Authority.

(a) Pub. L. 85-804 empowers the President to authorize agencies exercising functions in connection with the national defense to enter into, amend, and modify contracts, without regard to other provisions of law related to making, performing, amending, or modifying contracts, whenever the President considers that such action would facilitate the national defense.

(B) E.O. 10789 authorizes the heads of the following agencies to exercise the authority conferred by Pub. L. 85-804 and to delegate it to other officials within the agency: the Government Printing Office; the Department of Homeland Security; the Tennessee Valley Authority; the National Aeronautics and Space Administration; the General Services Administration; the Defense, Army, Navy, Air Force, Treasury, Interior, Agriculture, Commerce, and Transportation Departments; the Department of Energy for functions transferred to that Department from other authorized agencies; and any other agency that may be authorized by the President.

"without regard to other provisions of law" = a provision allowing contracting without adhering to the ADA and other laws and regulations such as appropriation law.

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