Retreadfed

I am an old mossback who has been involved with this stuff since the 1970s. This reminds me of the ASPR days when we had to write D&Fs for a lot if things. Back then you had to use what was known as formal advertising (sealed bidding today). For DoD, there were 17 exceptions to the use of formal advertising. To use one of those exceptions you had to write a D&F citing the exception and why it applied. In addition, if you wanted to use a cost reimbursement contract, you had to write another D&F. If you wanted t write a facilities contract (which no longer exists) you had to write another D&F. Some of these D&F's required secretarial approval. I don't remember which required such approval, but do remember, not having problems getting them approved fairly quickly. Thus, while a pain in the neck, to me, the key is going to be who gets delegated authority to grant these approvals. It may be a deputy assistant assistant deputy secretary who get the joy of doing so and does nothing but grant approvals. My question is who s behind this and why? This nonsense was done away with by statute 40 years ago.

Did you leave "not" out of this sentence? Will the servicing agency be providing the requested services using its own personnel?

Agree. Also, consider that FAR 49.201 is a guiding principle even in terminations of contracts for commercial items/services.

In regard to Don's questions posed above, here is what the Small Business Act has to say about the problem the 8(a) program is supposed to address and the solution adopted by Congress: (f)(1) with3 respect to the Administration’s business development programs the Congress finds— (A) that the opportunity for full participation in our free enterprise system by socially and economically disadvantaged persons is essential if we are to obtain social and economic equality for such persons and improve the functioning of our national economy; (B) that many such persons are socially disadvantaged because of their identification as members of certain groups that have suffered the effects of discriminatory practices or similar invidious circumstances over which they have no control; (C) that such groups include, but are not limited to, Black Americans, Hispanic Americans, Native Americans, Indian tribes, Asian Pacific Americans, Native Hawaiian Organizations, and other minorities; (D) that it is in the national interest to expeditiously ameliorate the conditions of socially and economically disadvantaged groups; (E) that such conditions can be improved by providing the maximum practicable opportunity for the development of small business concerns owned by members of socially economically disadvantaged groups; (F) that such development can be materially advantaged through the procurement by the United States of articles, equipment, supplies, services, materials, and construction work from such concerns; and (G) that such procurements also benefit the United States by encouraging the expansion of suppliers for such procurements, thereby encouraging competition among such suppliers and promoting economy in such procurements. (2) It is therefore the purpose of section 8(a) to— (A) promote the business development of small business concerns owned and controlled by socially and economically disadvantaged individuals so that such concerns can compete on an equal basis in the American economy; (B) promote the competitive viability of such concerns in the marketplace by providing such available contract, financial, technical, and mangement5 assistance as may be necessary; and (C) clarify and expand the program for the procurement by the United States of articles, supplies, services, materials, and construction work from small business concerns owned by socially and economically disadvantaged individuals. Given the stated purpose of the 8(a) program, it seems to me that the question to be answered is how effective is the program in developing participants to be successful in the market place after they leave the program. Carl has provided some anecdotal evidence of some success stories but has there been an in-depth analysis of how program graduates do after they leave the program?

I'm not sure I understand your question. You talk about funding. I usually think of funding in the context of obligating appropriated funds to pay for work covered by a contract. Is that what you are asking about or are you asking something else?

Acceptance of an invoice is not an issue. Under the Act, it is receipt of a proper invoice by the designated billing office that starts the interest clock running. (FAR 52.232-25(a)(1)(i)) The fact that the government does not review the invoice for propriety until 30 or more days after receipt is irrelevant as long as the invoice is proper. If it is not proper, interest does not ever start to run on that invoice until the defect is corrected and the corrected invoice is received by the billing office designated in the contract. Thus, the question is what constitutes receipt by the government particularly when we are dealing with electronic submission of invoices?

Could a counterfeit item or nonconformance be an indicator of fraud?

This has been done under FSS Schedule contracts, which are multiple award IDIQ contracts, for years. In fact, they encourage it.

Thanks. I see there is a variety in the number of deviations the agencies have issued. A rhetorical question, I wonder if agencies are in the process of issuing more deviations or whether they do not intend to use the new FAR sections but stick with the old?

As I understand the process, the FAR Councils roll out overhauled parts of the FAR. Agencies then can issue class deviations to the FAR and use the overhauled parts when issuing solicitations and contracts. My question is are agencies publishing the class deviations and if so where?

Have you read FAR 15.305(a)(2)(iii)?

However, in my experience, most contracting officers do not cover this in the contract. Also, they do not address withholding, e.g., how much will be withheld and how the withholding will b executed. The issue of withholding is the biggest area of disagreement between contractors and the government in my experience.

Unfortunately, in my experience, most contracting officers do not provide any language in the contract saying how the fixed fee is to be paid. Instead, they merely state the amount of the fixed fee. In this regard, DCMA has an instruction on how fixed fee is to be administered although no provisions are in the contract other than the fixed fee clause. This results in the ACO essentially changing the contract so that the instruction is followed and not the terms of the contract as written.

I think Vern is on to something here. Let's did into this a little deeper. The Changes causes permit the CO to issue certain types of changes. I think we all agree that no additional consideration is necessary for the CO to do this. The consideration for this power was provided at the time of contract inception. Similarly, no additional consideration is required for a CO to agree to an equitable adjustment for a permissible change under the Changes clause. Therefore, the contract modification memorializing these two actions needs no further consideration because that consideration was already provided when the contract was formed. This brings up the question of what consideration is needed for the contractor to provide a release after the parties agree on an equitable adjustment under the Changes clause. None of the Changes clauses requires such a release. However, the parties can agree on including the requirement for a release in the contract. If they do, I would argue that the consideration for providing any such release running to the contractor is included within the price/estimated cost of the contract. On the other hand, if there is no clause in the contract requiring such a release and the CO wants to require one unilaterally, that brings up a lot more questions than consideration.

Looking at the language of the Changes clause wouldn't this be in the form of a contracting officer's decision under the Disputes clause? I don't see any other way for a CO to unilaterally issue an equitable adjustment.