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Administrative Unilateral Closeout Memo


IAMBATMAN

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1 hour ago, ji20874 said:

48 CFR 3004.804-570 does not require obtaining a release of claims for every closeout action.  Read what it actually says:  "When applicable and prior to contract closure, the contracting officer shall obtain the listed DHS and Department of Defense (DOD) forms from the contractor for closeout."  The key words are "When applicable."  

A release of claims is required only for a few contracts, including cost-reimbursement contracts, T&M contracts, and fixed-price construction contracts -- and for all of these, the release is required before final payment, long before closeout.  If it isn't applicable, then it isn't applicable and need not be obtained for closeout.  When it is applicable, it should have already been obtained long before closeout occurs. 

Agency supplements are not the FAR.  They are agency supplements to the FAR.  Read FAR 1.101:  "The Federal Acquisition Regulations System consists of the Federal Acquisition Regulation (FAR), which is the primary document, and agency acquisition regulations that implement or supplement the FAR." 

Read the FAR!  It is amazing what can be learned through reading!

"A release of claims is required only for a few contracts, including cost-reimbursement contracts, T&M contracts, and fixed-price construction contracts" can you point me to the reference?

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37 minutes ago, ji20874 said:

Fact 2:  The FAR supplement Carl cited does not require a release of claims for closeout.  It merely reminds personnel in that agency that if a release of claims was otherwise needed (such as prior to final payment for some contracts), it should be included in the file before closeout begins ("When applicable...").

The wording of the FAR supplement to which ji has addressed with his Fact 2 (emphasis added) -

"When applicable and prior to contract closure, the contracting officer shall obtain the listed DHS and Department of Defense (DOD) forms from the contractor for closeout."

To the "applicable" ji keeps pushing I do not disagree.  However in the context of this thread ji first stated and continues to state that a release is not required for close out.   The OP for this thread  provided in a post the following -  "When performing Contract Closeout, a release of claims is required," Per the citation I have provided from a FAR supplement if the OP was with Homeland Security and had one of the noted contract types or for whatever reason the contract or some higher up in Homeland Security decided the governments interest needed the release for risk avoidance then again the release would be needed before for close out. 

Now if the OP was with say Department of Commerce the OP could unilaterally close out the contract without the release but would need to document how doing so is in the Governments best interest.     

While I understand both ji and Vern's intention that close out could be simple and a template is not needed they both err in my view with their carte blanc comments as we do not know what type of contract the OP is trying to close-out, the value and the risks that must be considered and quite possibly documented in a unilateral close out memorandum that could be used because of or even absent any other agency guidance.  You see Vern and ji propose the easy out for everything.   I would suggest that doing so is not prudent, and quite honestly if a person were to read (as is a strong suggestion made in other posts in Forum) they  would find that even ji and Vern would suggest that following agency and bosses instructions are the most prudent course of action.   If the OP is "required" to do a memo and the issue of release needs to be addressed I can not write it for him/her but I darn sure can provide the best information I can to assist in the effort.  At this point I find nothing in the FAR and its supplements that a Release of Claims for any and all contract at close out is not required but that it shall be obtained in certain cases, unless the risk of not getting is noted as being in the Governments best interest and the agency and its bosses allow it.

Hmmm - https://www.dhs.gov/publication/low-risk-closeout

We do not see eye to eye but who says we have to.   

Now I am going to go enjoy my favorite whisky distilled in Hood River, OR as I am out of the mix unless ji or Vern want to address me or my comments further.

 

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2 hours ago, Vern Edwards said:

If I had that job I would have had it done in the time it is taking to finish this thread

Reminds me of an old comment from a senior Treasury official years ago - before DHS was established.  He said Customs could contract for a mainframe computer, have it installed, and fully operational before IRS could finish assembling their planning committee. 

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I don't want to address any comments.

It's embarrassing that a request for help in closing out a contract file has taken this much time and debate at Wifcon.

Here is a link to OPM's Position Classification Standard for Procurement Clerical and Technician Series, GS-1106.

https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-general-schedule-positions/standards/1100/gs1106.pdf

Read it and you will see that preparing a contract file for closeout was the procurement clerk's job.

When I was a CO, no CO did contract closeout. And I'm talking about contracts for space systems. A clerk, unlike some ACOs today, could read a regulation. But the procurement clerk position has all but disappeared since a succession of presidents, Reagan through Clinton, sought cost savings through elimination of the procurement clerks and the GS-1105 purchasing agents. Now you have to have a college degree, a CO certificate, and be a GS-12 to do the simple work required by FAR 4.804 and to conduct "simplified" acquisitions. Of course, the way some people here envision the job, maybe you need a Ph.D. and a presidential appointment.

Acquisition "reform" has resulted in contracting officers who come to Wifcon seeking a "template" for a memo that should say little more than:

We were unable to locate the contractor. It appears that they may no longer be in business. So we are closing out the file at this time by completing the checklist in FAR 4.804-5 to the best of our ability. Where we have been unable to obtain information needed from the contractor, we are entering, 'Not available."

/s/ Contracting Officer

If you can't find the contractor, just get on with it!

How low we have fallen. It's all part of the general decline of our Federal government.

Catwoman says bonne nuit.

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3 hours ago, IAMBATMAN said:

A release of claims is required only for a few contracts, including cost-reimbursement contracts, T&M contracts, and fixed-price construction contracts" can you point me to the reference?

Why are you asking this question, Batman?  You can find the references yourself, if you really want to.  Look in the payment clauses for those contract types (and for A-E contracts) and you will find a requirement for a release of claims before final payment.  Look in the payment clause for all or most other contract types, and you won't.  Simple.

But we're talking about closeout, right?  Look in FAR 4.804 and search for "release of claims" or anything similar -- you won't find it.  The FAR does not require a release of claims for any closeout, not a single one.  And it is absurd for a contracting professional to think that a release of claims is a necessary part of a closeout process.

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This situation is not that uncommon.  Agencies often neglect close-outs for years.  Then they tackle the tasks in a mass effort or use a contractor.  

Lots of companies go out of business during that time contract performance occurred and getting to the close-out.  The way it’s generally handled is document the efforts to unsuccessfully locate and communicate with the contractor.  All the tasks that don’t require contractor input are done like verifying financial data.  Then the files are packed up and sent to the Records Retention Center.  

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