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Guardian

Contractor Request to Extend POP

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I have a couple starting comments:

(1) I see that a similar topic/discussion, "POP Extension," was posted back in September.  So as to gain full exposure for my unique set of circumstances, I am starting a new thread.  My regrets if there is any perceived overlap.

(2) The title I have chosen is a bit of a misnomer as I have not yet received a formal request from the contractor.

The facts and fiction are as follows,

Near the end of FY18, I awarded a small-dollar TO, the product/deliverable being a "report," which would be developed from the performance of professional services.  Although an agency-specific privacy clause was provided for the contractor's review before award, some time shortly thereafter, the contractor took issue with it.  I went back to the office that devised the clause and obtained their approval for a deviation of sorts and modified accordingly. Fast forward to late last week and today--I have heard nothing from the contractor on the NDAs, nor on the progress if any of their performance.  The POP, already once extended from its original date, expires after 2359:59 and the carriage becomes a pumpkin.  The COR contacted me (on behalf of the contractor) to request an extension.  I informed my designee that I have received nothing to date from the contractor, neither in writing nor even as much as a phone call.  Twenty minutes after I got off the line with her, the contractor's representative calls in a most syrupy voice.  I expressed my displeasure and read them the riot act in syncopated rhythm.

I am typically willing to give away one free pass, and in the case of the first POP extension request (tied to the matter of the privacy clause) there were surely extenuating circumstances.  Concerning this second request, the contractor claims, seemingly without full confidence, that the delay was partly attributable to the Government.  While I always appreciate cutting to the chase over a phone line, such requests ought to be in writing, and the justification backing up their assertions need to be convincing.  I am of the mindset that contracting between parties rests on the concept of quid pro quo.  So then, I asked the contractor, when she suggested her "no cost extension,"  what additional product might the Government receive for its gift of time?  Albeit I am a merry soul, I certainly am not Santa.  I know my mastermind group will have some strong opinions on this topic.  I would be grateful for a case citation concerning POP extensions as an administrative cost to the Government that should be met with some equivalency from the contractor in the manner of a supplemented product and/or services.  Let us begin....  

 

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If the delay in performance is not the product of an excusable delay, what about a reduction in price or fee as consideration for not issuing a T4D?

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They are last year's funds. I only stand to get them back if I Terminate for Cause (it's a commercial item).  No one on the program side is going to care about a reduction in price at this point.  That is why my mind was going the direction of a supplemented product/service.  No, I do not think it's excusable.

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I hear you loud and clear, Don.  You are preaching to the choir on that one.  I have fought the good fight for long as I can remember.  However, the cost of this report is such that the juice just ain't worth the squeezing.  Put it this way, it otherwise should have been placed on a micro-purchase card.  The story is convoluted and mostly uninteresting, but the end result was my recruitment to the effort.  My position at this point is by and large to preserve the integrity of the component and my appointment.  To strike some reasonable balance, I thought we could agree to them upgrading the product by at least a modest degree.  We have spent enough time doing this; us "smart ones" have come to realize there are some occasions to flail fist and others when it best to play coy and strike a deal.

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Consideration from the contractor can be a reduction in contract price (benefit to taxpayer) or added value in the product (benefit to your program).  You already know this.  Either one is fine, whatever you can negotiate.  

Consideration from the Government can be a delivery date extension and forbearance in terminating for default or cause.  Retreadfed covered this.

BEWARE!  Your COR may take the contractor’s side in any disagreement or recollection of facts.  You may be left standing alone in this matter, and may be seen as an enemy to the mission for disturbing the peace of the contractor.  Your COR really may not care about the contract text or about correct principles.

Does the contract include the Government Delay of Work clause?  If so, you are liable in a REA situation only for costs or delays starting within 20 calendar days before you receive the required written notice which the contractor hasn’t even submitted yet.  If a REA asks for additional time, the contractor has to comply with whatever clause applies.

You are right — even though it is Christmas, Uncle Sugar does not give gifts to contractors.  

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6 hours ago, Guardian said:

I am of the mindset that contracting between parties rests on the concept of quid pro quo.  So then, I asked the contractor, when she suggested her "no cost extension,"  what additional product might the Government receive for its gift of time?  Albeit I am a merry soul, I certainly am not Santa.

You are doing the right thing by asking for consideration, as based on what you said there is nothing inducing the Government to grant this extension.

I'm curious... What authority will you cite to issue the mod?

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13 hours ago, Guardian said:

I would be grateful for a case citation concerning POP extensions as an administrative cost to the Government that should be met with some equivalency from the contractor in the manner of a supplemented product and/or services.  Let us begin....  

 

 

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8 hours ago, Sunstrider said:

What authority will you cite to issue the mod?

By agreement of the parties, a supplemental agreement within scope.

I heard back from the contractor.  The report we are purchasing is clearly measurable in terms of units, given how we described it in the SOW.  The contractor has offered to increase the individual units by 10%.  I find that fair consideration for a POP extension of approximately 30-days.  While the proposition of a price reduction is always worth keeping in mind, as has been so fluently suggested, consideration may be realized in various ways.  The taxpayer sees the headlines.  I recently re-read Federalist 10, wherein Madison posits the business of Government is often best left to the specialists.  As a CO, I have to consider everything involved in returning funds to our budget office, which is to say, how much of a service I am really doing the taxpayers when we flaggingly pass through the administrative red tape for somewhat modest returns.

Ji, the TO does not contain the Government Delay of Work clause, although its inclusion is worth considering in future actions.  I judged this acquisition to be for commercial services, meaning the incorporation of that clause would have been optional. 

Jamaal, thank you for the previous thread.  You are the only one who really answered my direct question by pointing me to a case citation/legal precedent.  Thanks for reading my words.  

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15 hours ago, Guardian said:

To strike some reasonable balance, I thought we could agree to them upgrading the product by at least a modest degree.

Ask the contractor to increase the font size and to change the color of the font for the Section titles of the report.

Throw in italics and underlines if you want to deter the contractor from further tardiness.

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32 minutes ago, napolik said:

Ask the contractor to increase the font size and to change the color of the font for the Section titles of the report.

Throw in italics and underlines if you want to deter the contractor from further tardiness.

The considered change would be content-based, not stylistic.

Allow me, if I may, to adapt the scenario for this forum by describing in hypotheticals.  Example:

Original Statement of Need:

Evaluate a furnished sampling of workstations out of a total of 500 and provide summary reports on 100 of them.

Modified requirement:

Evaluate a furnished sampling of workstations out of a total of 500 and provide summary reports on 110 of them.

I appreciate your venture into cynical humor, but in deference to the season, may we suspend it until the new year :P?

 

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5 hours ago, Guardian said:

Evaluate a furnished sampling of workstations out of a total of 500 and provide summary reports on 110 of them.

I like style as well as substance. But, first, substance.

I think 110 sample size represents an increase in 10 and an adequate consideration for a delay in filing the report.

As to style, (i.e.font size, italics, page limits, margin sizes, etc.), look at the "proposal" (i.e. essay) preparation direction given to contractors by COs in the solicitations they issue.

Style seems to carry a weight for the COs during the pre-award stage. Why not during the post-award stage?

 

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