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Jose263

Payment for hourly services under FFP

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I appreciate the advice and comments- if there had been time, I would have had this contract reviewed prior to signing. but that is history. I certainly will have future contracts reviewed before signing.

You are correct, I was excited about the contract. I trusted the Senior exec. If the agency had done what they said they were going to do it would not have mattered if this was FFP or LH - I would have done more than the 2040hrs and the agency would have functioning software. BTW: I did raise the issue of not working with the COTR numerous times.

It would serve no purpose to debate ethics here, so I won't. Besides, what goes around, comes around.

I will find an expert to review this contract and this discussion before doing anything further contract wise.

Perhaps this has provided worthwhile discussion for the regulars.

And, as a former fed, I know what a PITA FOIA and other inquiry avenues can be -

thanks again for the discussion

Jose

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I'm not sure the fact that the contract schedule reflected an hourly rate is necessarily dispositive of the type of contract being entered. If the requirement for consultation hours had exceeded the fixed-price estimate, Joel could not have expected an increase of the fixed price because the necessary hours were underestimated in the proposal.

The way to find out for sure is to file a claim under the Disputes Act and then appeal an actual or deemed denial if the denial rationale seems inadequate. This is not fishing. It's an ambiguous contract and there is a genuine issue in controversy. ADR at any point in the process would be desirable - oftentimes a claim or appeal encourages the agency to participate in ADR. Claims and Appeals are easy to pursue and don't require legal counsel. The agency may have a potential out in termination for convenience, but it's not an absolute out, the agency may not think of it, and government sometimes does the right thing simply because it's the most expeditious thing. Government contracting isn't for the weak, but it isn't supposed to be a shell game or an exercise in "heads Feds win, tails you lose". Using the Disputes Act when there is an actual issue in controversy, and especially where ADR is possible, can inexpensively illuminate the minutia of regulation for agencies and contractors without unduly expensive or adversarial proceedings.

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The way to find out for sure is to file a claim under the Disputes Act and then appeal an actual or deemed denial if the denial rationale seems inadequate. This is not fishing. It's an ambiguous contract and there is a genuine issue in controversy.

1. Claim for what? What would Jose demand or assert?

2. On what basis do you assert that the contract was ambiguous? Have you seen the contract? Have you read it in its entirety? You cannot know that the contract is ambiguous if you have not read the entire contract. It's not ambiguous just because Jose doesn't understand it, or because he thinks one thing and the CO thinks another.

3. Please explain what you mean by "genuine issue in controversy." What's the issue and what makes it genuine?

4. What is the "right thing" that the agency might do? Give him the $100K that he wants? On what grounds would that be "right"?

Jose should not file a money claim unless he reasonably believes that he has a right to the money. A reasonable belief must be based on some kind of reasoning.

He can file a non-monetary claim asking for an interpretation of the contract type, but given what he wants, what good would that do? The contract type has no bearing on his entitlement to the $100K. He acknowledges that he was paid for what he did do. What bothers him is that he was not given more to do. I can think of no basis for entitlement to the remainder if he has not done the work. Can you? He will not be paid the contract price for work that he has not done unless the agency is incompetent. It doesn't matter whether the contract was fixed-price, T&M, or L-H.

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1. Claim for what? What would Jose demand or assert?

2. On what basis do you assert that the contract was ambiguous? Have you seen the contract? Have you read it in its entirety? You cannot know that the contract is ambiguous if you have not read the entire contract. It's not ambiguous just because Jose doesn't understand it, or because he thinks one thing and the CO thinks another.

3. Please explain what you mean by "genuine issue in controversy." What's the issue and what makes it genuine?

4. What is the "right thing" that the agency might do? Give him the $100K that he wants? On what grounds would that be "right"?

Jose should not file a money claim unless he reasonably believes that he has a right to the money. A reasonable belief must be based on some kind of reasoning.

He can file a non-monetary claim asking for an interpretation of the contract type, but given what he wants, what good would that do? The contract type has no bearing on his entitlement to the $100K. He acknowledges that he was paid for what he did do. What bothers him is that he was not given more to do. I can think of no basis for entitlement to the remainder if he has not done the work. Can you? He will not be paid the contract price for work that he has not done unless the agency is incompetent. It doesn't matter whether the contract was fixed-price, T&M, or L-H.

HeretoLearn - this is definitely the place for that. Vern raises good points

I read Verns blog about many COs lacking requisite knowledge - admittedly even the weakest CO is miles ahead of me.

and I especially liked his reference to the possibility that the agency might be incompetent :o

Too bad doing 'the right thing' and ethical behavior isn't covered in the FAR

Members on forum advised me to find a local contract expert to review the contract. The expert has identified multiple issues and inconsistencies - so next step is a claim.

Jose

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Be careful about experts. Okay, so there are "issues and inconsistencies." What is the claim? In what way do the issues and inconsistencies entitle you to that $100K you'd like to have? There are five elements of a claim: (1) an act or failure to act by one of the parties, (2) damages, (3) causation, (4) entitlement, and (5) amount (referred to as "quantum"). What did the government do or fail to do? Did you suffer damages? Did the act or failure to act cause the damages? What is the basis for your entitlement to recovery (breach of contract or a contract clause)? Can you prove that the specific amount that you want was the product of the government's act or failure to act?

Every contract I've ever seen has issues and inconsistencies. Big deal. The FAR itself is full of issues and inconsistencies. Were the issues and inconsistencies in the contract patent or latent at the time of contract formation? If the expert could find them, maybe you should have found them. The fact that you're not an expert makes no difference. If you should have found them, and didn't, and didn't bring the issues and inconsistencies to the attention of the contracting officer, it's likely that the CO is off the hook.

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"Too bad doing 'the right thing' and ethical behavior isn't covered in the FAR"

Oh, but is is, although few seem to know. See FAR 1.602-2( b )

Part 1 of the Federal Acquisition Regulation (singular) is Federal Acquisition Regulations (plural) System. (inconsistencies? sometimes they are only superficial)

Subpart 1.6 is "Career Development, Contracting Authority, and Responsibilities".

1.602 is "Contracting officers."

1.602-2 is "Responsibilities."

1.602-2( b ) reads, "Ensure that contractors receive impartial, fair, and equitable treatment; and..."

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Be careful about experts. Okay, so there are "issues and inconsistencies." What is the claim? In what way do the issues and inconsistencies entitle you to that $100K you'd like to have? There are five elements of a claim: (1) an act or failure to act by one of the parties, (2) damages, (3) causation, (4) entitlement, and (5) amount (referred to as "quantum"). What did the government do or fail to do? Did you suffer damages? Did the act or failure to act cause the damages? What is the basis for your entitlement to recovery (breach of contract or a contract clause)? Can you prove that the specific amount that you want was the product of the government's act or failure to act?

Every contract I've ever seen has issues and inconsistencies. Big deal. The FAR itself is full of issues and inconsistencies. Were the issues and inconsistencies in the contract patent or latent at the time of contract formation? If the expert could find them, maybe you should have found them. The fact that you're not an expert makes no difference. If you should have found them, and didn't, and didn't bring the issues and inconsistencies to the attention of the contracting officer, it's likely that the CO is off the hook.

Vern - Thanks for the advice - I'll discuss with the expert

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Vern - Thanks for the advice - I'll discuss with the expert

Jose, it looks to me like you signed a contract that pays you only for services that are actually ordered, provided and accepted or those actually ordered and provided. I didn't see any provisions in what you shared, entitling you to a lump sum payment for the consulting services.

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It would seem that, to prevail in obtaining full payment, you'd also have to show that you provided all the services that the contract required and that the contract provides for a lump sum payment for the services rendered, irrespective of the actual number of hours you provided. The government can't terminate for convenience if you performed the full contract requirement and are due the remaining portion of a lump sum contract price for those services. Said another way, the government can terminate any remaining services not yet provided, as Vern explained.

I think you earlier said that the government didn't fully order all the services that you agreed to provide during the telephone negotiations.

You also never really clarified if there was a follow-up written proposal or other backup documentation that you saw before signing the contract, which captured the terms of the telephone conversation and agreement. I'm assuming that this was all conducted orally, then you signed a contract.

As for signing a contract that didn't represent what you thought you had bargained for and agreed to, I think you'd have to prove some bad faith or fraud on the part of the government inducing you to agree to something else. You signed the actual contract, signifying agreement and acceptance of the written terms. Anyone capable of signing contracts is generally expected to know what they are agreeing to.

As a disclaimer, I'm not an attorney and the above is just my opinion. I did take Business law courses years ago but am not an attorney.

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;) Vern Glad you got a laugh from my comment - I do appreciate advice and will take it under advisement - but i'm not quitting yet.

Joel - my offer was stated as a lump sum and accepted - I signed a contract that was FFP and that I believed entitled me to the full award amount.

The gov't didn't complete the work agreed upon and described in the SOW.

I don't know what is contained in the contracting office contract file - but a foia request for the contents should fix that. Then, if a claim is indicated, I intend to pursue.

Thanks,

Jose

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"Joel - my offer was stated as a lump sum and accepted - I signed a contract that was FFP and that I believed entitled me to the full award amount.

The gov't didn't complete the work agreed upon and described in the SOW. "

Jose, please note that unit priced contracts that only provide for payment of actual quantities of work performed are also considered to be "firm-fixed-price" contracts. That doesn't necessarily mean that you get paid a lump sum for the "contract amount".

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You've made the right determination Jose. Get as much information as you can, and if you believe the facts and the documents can reasonably be interpreted to support your position, pursue your position. After all, if the agencies always got it right there would be no need for GAO, BCA or COFC reviews.

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You've made the right determination Jose. Get as much information as you can, and if you believe the facts and the documents can reasonably be interpreted to support your position, pursue your position. After all, if the agencies always got it right there would be no need for GAO, BCA or COFC reviews.

HereTo- thanks for your comments - I do intend to pursue

Cajuncharlie posted -1.602-2( b ) reads, "Ensure that contractors receive impartial, fair, and equitable treatment; and..." noble thoughts

Joel - appreciate the caveat - my lump sum offer was for the full contract award amount - if the original CO contemplated that this was a LH contract- there should be evidence in the contract file.

Happy Holidays to all,

Jose

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We have a contract like this as well. There is a line item for xx hours at y dollars per unit. If you did not deliver the units (in this case worked the hours) then you will not get paid for them. If it was a regular FFP, where there is a line item for a "job", then you would get paid the full amount, regardless of the hours spent.

It seems the government likes to use these FFP for each hour in jobs where there is not a clear deliverable, such as R&D or consulting. At least that has been my experience.

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