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My boss and I grew up with ASPR and were looking for the current equivalent of a clause we remember entitled, "Independent Contractor."

Goodness knows how many archived FARs we might have to look through to find out what happened to this clause, and more importantly, if and where the old language now appears.

Anybody remember this one? Know what happened to it? Know what its current incarnation looks like?

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My boss and I grew up with ASPR and were looking for the current equivalent of a clause we remember entitled, "Independent Contractor."

Goodness knows how many archived FARs we might have to look through to find out what happened to this clause, and more importantly, if and where the old language now appears.

Anybody remember this one? Know what happened to it? Know what its current incarnation looks like?

"Can you hum a few bars" of the ASPR clause? I think I threw away my copy a few years ago do to space limitations.

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My boss and I grew up with ASPR and were looking for the current equivalent of a clause we remember entitled, "Independent Contractor."

Goodness knows how many archived FARs we might have to look through to find out what happened to this clause, and more importantly, if and where the old language now appears.

Anybody remember this one? Know what happened to it? Know what its current incarnation looks like?

I just searched an old version of the ASPR, and couldn't find a clause by that title. The closest thing I could find was "Certificate of Independent Price Determination," which still exists today. I believe the version I searched was the version in existence immediately preceding the FAR, so could it have been deleted before 1984?

What was the essence of the clause?

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"Can you hum a few bars" of the ASPR clause?

Hum-m-m-m: Contractor shall serve as an independent contractor and shall be solely responsible for performance of the work under this contract. Contractor employees shall not be considered employees or agents of the Government. etc, etc

Where would I find that kind of language now? It's not in Permits & Responsibilities; that was always separate.

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Hum-m-m-m: Contractor shall serve as an independent contractor and shall be solely responsible for performance of the work under this contract. Contractor employees shall not be considered employees or agents of the Government. etc, etc

Where would I find that kind of language now? It's not in Permits & Responsibilities; that was always separate.

If that's what you're looking for, I don't think that's an ASPR clause. That's old "boilerplate" language used in a rather standard SOW format. The SOW usually had several parts - background, scope, services to be provided, etc. Under "Services to be provided", it usually began with something like:

"The contractor, as an independent contractor, and not as an agent of the government shall solely be responsible for performance of the following work. Furthermore contractor personnel performing the work shall be considered as employees of the contractor and not as employees or agents of the government."

I think people felt more comfortable saying this so they wouldn't be accused of buying personal services.

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If that's what you're looking for, I don't think that's an ASPR clause. That's old "boilerplate" language used in a rather standard SOW format. The SOW usually had several parts - background, scope, services to be provided, etc. Under "Services to be provided", it usually began with something like:

"The contractor, as an independent contractor, and not as an agent of the government shall solely be responsible for performance of the following work. Furthermore contractor personnel performing the work shall be considered as employees of the contractor and not as employees or agents of the government."

I think people felt more comfortable saying this so they wouldn't be accused of buying personal services.

Thanks, FF. It's all starting to come back to me, although I was hoping there was a bit more.

(They say memory is the second thing to go. I forget what was first...)

The hypothetical situation is a cost type contract from a government client who is getting a little too deep into telling the prime how to do subcontracting, despite the prime's approved purchasing system, for buys below the contract's consent threshold, including make-or-buy decisions that were "make" in the (expressly) accepted proposal, although not all the current subcontracting or make-or-buy approaches had been explicitly stated in the proposal.

Prime believes that any client direction to do something other than the prime's current planned subcontracting (or "make") approach will invoke the law of unintended consequences, to the detriment of the program, and is looking for polite ways, grounded in FAR, to let the client know in writing why they don't want to go there.

Hoped there would be a bit broader wording associated with my muddy recollection of "independent contractor," but if that's all there is, so be it, although I will stay tuned to see if anybody else chimes in.

Appreciate all the feedback received so far. Thanks to all.

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Guest Vern Edwards
The hypothetical situation is a cost type contract from a government client who is getting a little too deep into telling the prime how to do subcontracting, despite the prime's approved purchasing system, for buys below the contract's consent threshold, including make-or-buy decisions that were "make" in the (expressly) accepted proposal, although not all the current subcontracting or make-or-buy approaches had been explicitly stated in the proposal.

Prime believes that any client direction to do something other than the prime's current planned subcontracting (or "make") approach will invoke the law of unintended consequences, to the detriment of the program, and is looking for polite ways, grounded in FAR, to let the client know in writing why they don't want to go there.

A definition of "independent contractor" won't help you. If the government is giving you direction that exceeds its rights under the contract, then you should:

1. Write a letter (not an email, not a telephone call, not a meeting) to the contracting officer. Describe the direction that you have been given and ask for it (1) to be withdrawn or (2) to be confirmed in writing by the contracting officer. Ask for a prompt response. Tell the contracting officer that you won't act on the direction until you receive it in writing. In order to get their attention, send the letter certified mail, return receipt requested.

2. If you get the direction in writing, determine whether it is a change to the contract terms. If you don't get it, then ignore the direction.

3. If it is a change, determine the cost impact (probably administrative),

4. Determine whether the government has the authority to order the change under a contract clause.

5. Notify the contracting officer in writing that you consider the direction to be a change order. If the change order is not authorized under the terms of a clause, tell the contracting officer that you believe the change order is not within the government's rights. Ask the contracting officer to provide, in writing, either withdrawal of the direction or confirmation.

6. If the contracting officer confirms the direction, submit a claim seeking an increase in the contract estimated costs and additional fee. In submitting the claim, comply with FAR Subpart 33.2.

Don't allow yourself to be bullied. Keep the tone cool, civil, businesslike, and matter-of-fact, but firm. Don't not get on a high horse. Do not get drawn into an oral debate or argument. Don't take it personally. Make sure that you have someone with you on every telephone call about this or at every meeting about this matter. If asked to meet, bring someone whose job it is to write down everything said by the government personnel, as if keeping a transcript. If challenged about this, say that you want to be sure that you have a record of their direction. Prepare memos documenting every telephone call and meeting about the matter. Emphasize that you need their direction in writing and that you will pursue your rights. Make it clear that you will comply with any direction that you receive.

Keep good records showing what actions you took in order to comply with the contracting officer's direction and how those actions were different from what you otherwise would have done. Separately track all costs associated with the additional costs of complying with the contracting officer's direction.

Some government personnel will threaten and bully a contractor. Keep a record of any threats, explicit or implicit.

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In this (of course) hypothetical situation, the "independent contractor" matter was a piece of ancillary support we were looking for as part of our overall approach, just one aspect of a complex response we are preparing.

1. Written KO direction has been received. Reply letter (we always put more on letterhead, with wet signature, than our customer would like) is drafted and in review, another one of those to be written by committee of very senior folks with yours truly as main scribe or scrivener doing the initial draft, requesting review, collating input, resoving contradictory views either major or minor, and finalizing the letter.

2. Draft includes initial notice under clauses in the contract from FAR 52.243-2 Alt III para (c ) and 52.243-7. (I always like to confirm, when I write about clauses, that they are not only from the FAR but also in the contract. Sometimes our client folks do not know the difference, and have no clue about Christian, much less what it does and does not cover.)

3. Draft states estimated cost and schedule impact to follow. (Wanted to put the KO on notice right away.) Also states schedule impact is expected to preclude achievement of project's final construction milestone.

4. 52.243-2 Alt III is pretty broad in scope of what kind of changes are allowed. Don't see any wiggle room there.

5. As we do have written direction, we will ask for reconsideration and offer a compromise that should resolve the client's concerns without being so onerous, endangering performance, or impacting cost and schedule.

6. Consensus is we do not want to leave the realm of change, notice, and equitable adjustment for the land of final decisions and claims, at least not yet.

We have, however, made it clear to this client, on previous contracts, that we are prepared to go to the mat. Our executive management's old attitude of rolling over in the interest of customer relations has been superseded based on a KO remark off the record after a successful closeout settlement meeting in which we took a hard line and achieved our goal because we had the audited documentation to support it, after we said we were sorry it had to come to a decision to go to the board if we could not settle at this level: We were told we were a bunch of pansies compared to some other contractors. Since then our management has made it clear that we should not be afraid to exercise all the rights and remedies available under the system; that's what they're there for. (Do KOs no longer read FAR 1.602-2(b )? Or do they just push these things out so payment comes from the judgment fund instead of project budget?)

Under this new philosophy we have gone to the board with a couple of combined claim appeals totalling less than $200K. The client wanted to hold our feet to the fire and make it as long and expensive a process for us as possible to reach a settlement for anything more than a few pennies on the dollar of documented actual, allowable, allocable, and reasonable costs; and we went all the way until they blinked and settled at the eleventh hour after all-day telephone mediation initiated by the board's judge Thursday before a hearing scheduled for the following Tuesday. Our settlement was well over half of our requested amount, not as much as we believed we were entitled to, but enough to sign and close the matter.

On a previous contract with fixed unit prices, when we were approaching completion of the estimated and funded quantity of the largest CLIN that made up most of the contract, but were not yet halfway through construction, we started asking by letter for guidance and funding to avoid any potential schedule delay. The answer was a telephone call from the KO in the background with her supervisor on the line accusing us of threatening to walk off the job and saying "If you stop work we're going to default you." My response was that the only threat was the one I just heard, but please understand that you have the Anti-Deficiency Act that prohibits you from contracting unless you have a document from Finance & Accounting certifying that funds are available, and we are in a similar situation, so we requested guidance from the KO. They were not pleased but understood and gave a commitment to pay for every yard we placed, so I sent back a letter saying we were continuing to work based on the KO's verbal commitment. It was followed in a few days by a unilateral mod that added the required additional quantity and funding, apparently after they had received a survey report with a revised estimated quantity that was very close to ours.

Sorry to be so long-winded, but we are not about to be bullied. We are ready to "partner" even though it was right after a formal, facilitated "partnering" meeting that this new and onerous direction was issued. We have learned that meetings are great, and generally result in alignment of expectations, (yes, we keep detailed minutes), but often they are followed by incoming poison pen letters that indicate otherwise, and we have always responded professionally in a neutral tone and objective manner with facts to support our approach, usually successfully sooner or later.

We are tracking costs of compliance with the KO's new requirements in our approved timekeeping system.

The problem is that if we are required to compete small pieces of additional construction to be performed in congested area on a project whose already tight schedule has been accelerated by not moving the goal post after documented delays for which the client is responsible, or go "full and open" instead of competing among the major subs already on site where there is a bit more elbow room for the work and adequate price competion is expected, there is no way to successfully complete the project on time, which is also a matter of award fee. (That's the elephant in the room. We can be right and still be damned with faint praise on award fee, which is difficult if not impossible to dispute.)

Similarly, the project is in danger if we are not allowed to self-perform what we can do efficiently, even though we have submitted a six-page letter with rationale (I hate the word "justification" because it has always sounded to me like an excuse for doing something wrong) discussing in detail how and why our self-performance is the best value, lowest cost, most efficient and cost-effective, least schedule risk, etc.

Meanwhile the client wants sixty days advance notice of any planned self-performed work or noncompetitive procurement, and asserts authority to disapprove any such actions. The stated reason is concern about our pricing, despite our approved puchasing system and our scrupulous and well-documented following of the process and rationale in FAR Subpart 15.4. The problem appears to be that we do not routinely perform the same kind of very detailed and conservative cost analysis of certified cost or pricing data that is instilled in this agency's "corporate culture." We follow 15.4 and do only price analysis if that gets us to a strong basis for a determination of price reasonableness, cost analysis only to the extent absolutely necessary using information other than cost or pricing data if possible, and cost analysis of certified cost or pricing data only as a last resort. This client apparently is not happy with anything other than their method of cost analysis, and is suspicious of anything else, regardless of 15.4.

The minute the KO directs us to do anything other than our planned approach, the client assumes responsibility for the consequences, which we believe will be disastrous. The KO does not seem to realize that, but it will be part of our letter response, once we find a suitably tactful way to say so. Again, the elephant in the room is award fee. We have to walk a fine line to deal with this very diplomatically or risk losing fee based on subjective opinions.

We know where to go with this. The main task now is crafting the letter, or more accurately, satisfying all the senior folks who have ideas about how the letter is to read.

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Guest Vern Edwards
I give up, what's ASPR stand for?

Armed Services Procurement Regulation. Renamed Defense Acquisition Regulation circa 1978. They were in Title 32 of the Code of Federal Regulations. Replaced by the FAR and the Defense FAR Supplement in 1984, which is in Title 48.

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If your statements are true then it appears the KO was unprofessional. And I am surprised a KO would respond this way. Is it possible to request a meeting with the head of agency and ask the KO to be switched? In the future, will your company take a hard lined/non-pansy approach with other agencies? Also, in your opinion does the KOs actions affect the performance of your contract?

Best

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