Retreadfed

This decision shows the importance of honesty and proper inquiry between attorneys and their clients. I am aware of a few other situations where clients kept information from attorneys because they felt the information might hurt the government's case. This was so even though the attorney asked the individuals specifically if representations they made were true. If a client is dishonest with the attorney and withholds information the attorney has asked for resulting in the attorney making inaccurate statements to a court or board, the attorney and client lose their credibility when credibility is the most important asset they have in a legal proceding.

I think he has over generalized the problem and solution. Because this is a contracting forum, I will only talk about contracting and not other aspects of the Federal government. As Carl pointed out, many times the "rules" the contracting personnel must deal with are found in statutes and executive orders. Often times, these "rules" reflect political attitudes and policies, not effective contracting. To the extent that the "rules" attempt to deal with effective and efficient contracting, they often are the result of some problem, such as the Ill Wind scandal, that congress perceives needs to be corrected. These "rules" are specifically designed to limit the actions of procurement personnel. Using Ill Wind as an example. The Procurement Integrity Act was a direct outcome of that scandal. Should we repeal the PIA and go back to the status quo ante that allowed that scandal to occur or do we want to leave it in place as an impediment to a similar scandal arising in the future? As for freeing contracting personnel from regulatory constraints, didn't the FAR attempt to do something similar by telling contracting officers if a practice or procedure was not prohibited by the FAR they should assume that it is permitted? How many procurement personnel did not take advantage of this flexibility but continued to act under the paradigm that if an action was not permitted, it was prohibited? Complicating the freedom granted procurement personnel is the oversight of IGs. Many procurement personnel do not want to try something new or innovative because they are concerned that the agency IG will gig them if something goes wrong. Thus, they go into turtle mode and don't stick their necks out. Thus, there are many factors that influence why procurement personnel are sometimes reluctant to try to be innovative or imaginative in their thinking. Just eliminating "rules" in the form of regulations alone will not solve this problem.

Vern, I'm not sure I understand your first question. The first thing that comes to my mind is operation of a dining facility (mess hall to us old timers). There are health regulations that must be observed in performing these services. Also, the Army has standard menus and recipes to be followed. Are you asking, for example that following health and safety regulations, menus and recipes would make the services non-commercial?

There is a lot to get into here, but let's start with some fundamentals. First, the LOC clause only applies to cost, not fee. So you should not be including fee in your calculation of whether an overrun has occurred. Instead, the calculation only involves a comparison of allowable incurred costs to the estimated cost of the contract. Second, you said the overrun occurred because you did not know that your actual indirect cost rates would be higher than your provisional rates. However, that is not the test for determining if you can recover your overrun costs. The test is whether the contractor knew or should have known that an overrun was going to occur in time to give the government timely notice of the overrun. You are expected to have systems in place that allow you to track your indirect costs and report overruns. If you don't have such systems or you have them and you did not properly exercise them, and experienced an overrun, the government does not have to fund the overrun. If you complied with the procedures described above, I would submit a voucher for the remaining funding on the contract, but would not indicate it is the final or closeout voucher. I would also, submit a request for an adjustment to the estimated cost of the contract to reflect the actual costs you incurred. In regard to the latter, you will need to convince the government that you have incurred a compensable overrun.

I don't know what your solicitation called for, but I work for an accounting and consulting firm. When we submit a proposal to a commercial client, we usually propose a team by name to be working on the project. We also provide the resumes of team members. It is the qualifications of the team that is evaluated, instead of the entire firm.

This is the key. If you want the contractor to sign the PO say so. If not, then probably any writing indicating acceptance will create a contract.

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?