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kburnett, you should now have the contractual terms and some suggested approaches from the respondents here to be able to discuss and move forward with the government now. Good luck! 

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2 hours ago, joel hoffman said:

EDIT: Sorry,  I missed your earlier comment where the government asked for a credit proposal.
Also, it looks like you have a problem determining what the missed work is  —- but you said it is minimal?  If the government identified the specific instances do you have corresponding data to refute it?  If not, and it is truly minimal, is it worth further delay in getting paid?

Correct, there is probably 1 week’s worth of tasking that the USG, that I agree was not provided out of 52 weeks….so minimal.

The USG notice of rejection cites other services not delivered, but I do have documentation to refute (showing delivery).  
 

When I mentioned “formal” notification, I meant the USG had noted verbally that we missed a due date during the quarter 2QFY2021, but it was discussed & Contractor noted it would not be submitted until the following quarter (2 weeks late) and the USG did not state this was unacceptable until almost a year later with the invoice rejection. 
 

I agree that if we could reasonably come to an agreement, that would be great….unfortunately this has not been my experience over the last 2-3 years.

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10 hours ago, kburnett4112 said:

The USG notice of rejection cites other services not delivered, but I do have documentation to refute (showing delivery).  

*You have the right to defend against this accusation if you can prove you provided the service.

*Perhaps you could first request payment for all but the undelivered and alleged undelivered services in accordance with the contract clauses. And I suggest reserving your rights with the revised invoice to claim payment for those that you can prove were provided per the contract requirements. Try to resolve the costs for the ones both parties agree with. But the government doesn’t have the contractual right to deny payment for all services provided.  

10 hours ago, kburnett4112 said:

When I mentioned “formal” notification, I meant the USG had noted verbally that we missed a due date during the quarter 2QFY2021, but it was discussed & Contractor noted it would not be submitted until the following quarter (2 weeks late) and the USG did not state this was unacceptable until almost a year later with the invoice rejection. 

*You apparently discussed two weeks delay in delivery of (?) and the government did not (respond?) disagree until much later. Did you provide this deliverable/service within the discussed timeframe? As Vern noted, we don’t know the nature  of the services… 

*EDIT:  It’s difficult to hit a moving target… this advice is based upon the limited but ever expanding information provided. You may need some hired assistance if you cannot resolve it. If you do hire someone, first ask them if and how you can be reimbursed for assistance in resolving this short of submitting a formal claim (claim preparation and claim associated legal costs are generally unallowable). 
 

 

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On 5/21/2022 at 2:55 PM, Vern Edwards said:

I have recommended books and articles about services. I have written a number of published articles about contracting for services. Here are some titles, all of which have appeared in The Nash & Cibinic Report

Do you happen to have a copy of any of the following….or a link for them?

  1.  IDIQ CONTRACTS FOR SUPPORT SERVICES: What Are They Really? (October 2018)
  2.  CONTRACTING FOR SERVICES: Challenges For The Next Generation (December 2010)
  3. “TRADECRAFT” IN SERVICES ACQUISITION: DOD's New Policies (November 2010)
  4.  NONCONFORMING SERVICES: What Are The Government's Rights Under Fixed-Price Service Contracts? (April 2008)
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5 hours ago, joel hoffman said:

You may need some hired assistance

Maybe. 

@kburnett4112I get the sense that you are fairly new to government contracting and likewise have limited corporate resources.  So are you a small business?  If so you may be able to find some valuable one on one assistance with regard to your issue from your local Procurement Technical Assistance Center (PTAC).   You might consider reaching out to the PTAC to see if they could help.  Usually their assistance is free.

Find your local one here - https://www.aptac-us.org/ and drill down  - https://www.aptac-us.org/contracting-assistance/ptac-help/

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7 hours ago, C Culham said:

Maybe. 

@kburnett4112I get the sense that you are fairly new to government contracting and likewise have limited corporate resources.  So are you a small business?  If so you may be able to find some valuable one on one assistance with regard to your issue from your local Procurement Technical Assistance Center (PTAC).   You might consider reaching out to the PTAC to see if they could help.  Usually their assistance is free.

Find your local one here - https://www.aptac-us.org/ and drill down  - https://www.aptac-us.org/contracting-assistance/ptac-help/

Carl, I’m a bit curious… if a contractor needs help understanding it’s rights and possible negotiation objectives and alternatives, what assistance would a PTAC provide? Are you referring to assistance in developing effective communications and cooperation?

”I agree that if we could reasonably come to an agreement, that would be great….unfortunately this has not been my experience over the last 2-3 years.”

The government and contractor parties need to move out to resolve the situation quickly  - first pay for the services provided -  then determine what wasn’t provided- then negotiate a deduction.

Im not trying to be snide. Just wondering what assistance they provide for such situations arising during contract execution. Thanks. 

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I found this on PTACs 

https://www.aptac-us.org/contracting-assistance/ptac-help/

Procurement Technical Assistance Center(PTACs)

…Contract Performance Issues:  Even after you’ve been awarded a contract, your PTAC may be able to help with certain contract performance issues, such as:

Production and Quality Systems

Accounting system requirements, contract payments and payment systems such as Wide Area Workflow and iRapt

Packaging and Transportation

Subcontracting

Property”

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13 hours ago, joel hoffman said:

Just wondering what assistance they provide for such situations arising during contract execution.

Joel - Are you still wondering or are we good?   I will say that the ability of a particular PTAC depends on the individuals that staff at particular location.   In my view still worth checking out as one never knows until they do.

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8 hours ago, C Culham said:

Joel - Are you still wondering or are we good?   I will say that the ability of a particular PTAC depends on the individuals that staff at particular location.   In my view still worth checking out as one never knows until they do.

Carl, I didn’t see anything on any of the PTAC websites that would indicate 1) advice or training on how to effectively partner or effect communications between the parties or 2) address contract admin issues such as rejecting entire invoices, not identifying contractor performance deficiencies until months later after receipt of invoice, not responding to contractor offer to perform a delayed service (here two weeks later), etc. , how a contractor can respond, assert its rights, develop negotiating objectives and alternatives.

Nothing wrong with contacting a PTAC, I just didn’t see where those types of advice or relationship building were noted.

It doesn’t seem here that the actual solution to getting paid for acceptable services provided is that difficult.

From the limited, yet ongoing scenario explanation thus far,  the scope and $ value of alleged undelivered services doesn’t seems to be that significant as to hold up the whole payment process or to resolve. The OP says that they have proof that some of the services were provided in response to some of the allegations. Reserve the right to resolve those issues and remove them from the instant invoice. Other non-performance issues are acknowledged and should be reasonably quantifiable. I wouldn’t recommend that the contractor quibble or fret over the amount of the estimated cost of a few missed meetings or other identifiable unperformed task. The government asked for a credit proposal… One could deduct enough from the invoice to protect the governments interest, both parties  reserving the right to any difference, pending resolution.

If the parties are willing to work to resolve it, I don’t think it is that difficult. Don’t treat this as the final invoice for the period, if not immediately resolvable.

Thats one aspect of effective negotiating. Seek mutually agreeable ways to meet both parties needs. “Seek first to understand” and “Win-Win or no deal” ( Stephen R. Covey: The 7 Habits of Highly Effective People).

 

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I think that something like my suggested approach is worth a phone call to the appropriate contract official on the government side.

Edited by joel hoffman
Clarified which official the contractor could call.
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8 minutes ago, joel hoffman said:

Carl, I didn’t see anything on any of the PTAC websites that would

By experience I am familiar with PTACs doing both general and "no cost, confidential, one-on-one technical assistance in all aspects of selling to Federal, state and local governments" that would address your numbered points.   The quoted language is taken directly from the PTAC site for Washington State.

14 minutes ago, joel hoffman said:

It doesn’t seem here that the actual solution to getting paid for acceptable services provided is that difficult.

I might agree but the OP is here because I am guessing for whatever reason it is difficult.  You and I have experience and in a general sense would know how to pursue but as this thread unfolds past Vern's advice I am genuinely concerned about specifics that may or may not apply.   Quoting FAR clauses that may or may not be in the parent IDIQ contract and/or the order is just one of these concerns. Likewise what does the parent contract and its associated PWS  and the order actually say about acceptable performance standards.

 

17 minutes ago, joel hoffman said:

rom the limited, yet ongoing scenario explanation thus far,

As it goes with many Forum discussion threads.  And lots more to peel back I am sure that one-on-one counseling in a confidential arena would provide a great assist to the OP to get the issue resolved.  Whether that one-on-one is hired or obtained say from a PTAC I am sure it would be very beneficial to the OP.   I just mentioned the PTAC as an option because it is viable.

 

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@kburnett4112 Reading through the advice given here, I’m not sure how much is going to help you in the immediate timeframes.  I’m guessing you need a resolution with the government quickly without getting into a further contracting/legal confrontation.

The type task order and associated pricing for the type services you described is fairly common throughout the government.  The base IDIQ contracts really lend themselves to these arrangements.  Perhaps the order is placed under some GWAC.  In any event, there are probably dozens of similar program management support agreements in effect right now.

If I were you, I would arrange for my contractor team to meet with all the key government players.  Promote a collaborative type meeting with an objective of finding what went wrong, what needs done to correct things, and how to avoid a similar occurrence in the future.

Again, just guessing, but I see some of your program people missing meetings including IPT sessions, missing dates, and not providing everything expected.  Perhaps your late delivery earlier wasn’t so bad in the context then but perceptions from the government side has changed.  Regardless a Frank and open team conversation is really important now.

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14 hours ago, formerfed said:

I’m guessing you need a resolution with the government quickly without getting into a further contracting/legal confrontation.

 

14 hours ago, formerfed said:

If I were you, I would arrange for my contractor team to meet with all the key government players.

My guess is that the OP is way beyond such a suggestion and should seek concentrated assistance outside of this forum .

 

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The government has already asked for a proposal for a credit. It is probably waiting for the OP’s action. 

I’ve suggested a possible way forward to get paid for the actual services provided less some amount to represent a proposed credit for the agreed unperformed services and an amount adequate to protect the governments interests for the alleged unperformed services.

The OP should reserve the rights to payment for the alleged unperformed services, pending resolution and settlement of the issues.

To me, it is worth a phone call to the KO or whomever the OP is dealing with. I don’t see a quicker way to get paid for what services have mutually agreed to have been provided, pending resolution of the open issues. 

Of course, this advice is based upon the extent of the disclosed circumstances.

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