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Retreadfed

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Everything posted by Retreadfed

  1. The short answer is yes. There are few limits on the time at which the government can issue a change order under a contract. Whether there is a specific reason why such a change order cannot be issued in your case, no one can answer. However, if one is issued, you are likely entitled to an equitable adjustment in the contract price. That would be the place to recover your subcontract costs.
  2. BMac29, has control really changed? Are the shares controlled by the ESOT voting shares?
  3. Hallowed, you need to get some legal advice here. Depending on what the facts are, you may be entitled to recover your protest costs if your protest was meritorious and DLA waited too long to take corrective action.
  4. Kimberly, does your contract have a time period within which requests for reimbursement of travel and ODCs need to be submitted?
  5. I was using the example I did to make the point that T&M contracts do not always involve severable services. They can certainly be used to acquire non-severable services that do not require diagnostic evaluation and repair work.
  6. This is not a true statement. T&M contracts can be used for supplies or services. In either event, the object of the contract is to have the contractor accomplish a definable task. Some of these tasks may involve severable services, while others may involve non-severable services. There is no hard and fast rule on this. A classic example of a T&M contract is when I take my car into s shop to have it repaired. The mechanic gives me an estimate of the parts and labor needed to do what is apparently necessary to fix the car. The work order I sign requires the mechanic to get my permission if the work will cost more than the estimate. Obviously, this is a non-severable task to be performed on a T&M basis.
  7. Who said I trusted them? I got IG personnel lying to our agency head. Also, I dealt with Federal criminal investigators frequently, and I know their credo was we thrive on suspicion, rumor and innuendo. I think you are placing to much trust in your telephone call. I would not take what I was told as anything other than his/her personal views.
  8. What authority did the investigator have to give you an authoritative interpretation of the SCA and DoL rules? Do you really think that informal discussions with an investigator of some unknown rank constitute an interpretation of the SCA and DoL regulations that represent the views of the Secretary of Labor that would be formulated after proper and complete staffing of the question?
  9. jbsmith, just to clarify, is each SLIN accompanied by a different fund cite, or is the TO funded by one appropriation?
  10. Carl, are you considering a telephone discussion with a DoL investigator to be an official interpretation of the SCA or DoL rules? On what authority did (s)he speak? Do you consider whatever statements the investigator made to you, binding on DoL as a whole or were they merely his/her opinions?
  11. And if you do so, make sure the incorporation is included in all copies of the order, particularly the copy sent to the contractor. I was once involved with a situation where this did not happen. The government version of the contract incorporated the contractor's proposal while the version sent to the contractor did not. You can imagine how well that worked out.
  12. Vern, thanks for the history lesson.
  13. That is a misstatement of what the statute says. 6705 says that that the Secretary of head of a Federal agency may carry out that section, in accordance with regulations issued under 6707. In turn, 6707 gives the Secretary the authority to issue regulations. No where in the SCA is the head of an agency, other than the Secretary, given authority to issue regulations regarding enforcement of the SCA. Thus, if the head of an agency is to carry out 6705, that would have to be done in accordance with regulations issued by the Secretary. If those regulations do not delegate the Secretary's authority to carry out investigations and enforcement actions to the head of a Federal agency, that agency head has no authority to carry out such investigations or enforcement actions. This is bolstered by the fact that 6707 refers to 41 U.S.C. 6505. Subsection (e) of that latter section states "The Secretary, or an authorized representative of the Secretary, may make investigations and findings as provided in this chapter and may, in any part of the United States, prosecute an inquiry necessary to carry out this chapter." This clearly refers to an authorized representative of the Secretary. A contracting officer cannot be an "authorized representative of the Secretary" unless the Secretary designates him/her to be such representative. Looking at 52.222-41(k), the only power granted to a contracting officer is to determine if the amount due covered workers as a result of a violation determined by the Secretary is adequate. The contracting officer is not granted any power to determine that a violation has occurred. The determination of the amount due would be based on the record compiled by the Secretary, not an independent investigation by the contracting officer.
  14. Carl, nothing in 52.222-41 comes close to saying what is in 41 U.S.C. 6705 or 6707. You are grasping at straws to defend the indefensible.
  15. Carl, you are stretching the words of the statute, that has been recodified at 41. U.S.C. 6705 since 2011, into something that is totally at odds with what it actually says. The statute now reads "In accordance with regulations prescribed pursuant to section 6707(a)–(d) of this title, the Secretary or the head of a Federal agency may carry out this section." Nothing in the statute requires DoL to delegate its authority to enforce the SCA to another agency. Instead, it gives DoL the discretion to grant such a delegation in regulations promulgated by DoL. Unless DoL delegates such authority to the head of an agency, DoL has exclusive power to enforce the SCA in accordance with 41 U.S.C. 6707.
  16. So that section has not existed for 10 years.
  17. Carl, there is no 41 U.S.C. 352.
  18. Carl, you seem to be changing your argument. First, you said that the inspection of services clause gave the contracting officer the authority to interview contractor employees. Now you are saying it is 52.222-41(i)(4). However, (i)(4) specifically deals with DoL's ability to interview contractor employees. Further, (i)(4) is not a creature of the FAR, but a FAR compliance with DoL regulations promulgated to implement the SCA. Specifically, see 29 CFR 4.6(g) which requires the language found in (i)(4) to be inserted in contracts subject to the SCA. Going back further to source documents, 41 U.S.C. 6707(a),addressing enforcement of the SCA, states "Sections 6506 and 6507 of this title govern the Secretary’s authority to enforce this chapter, including the Secretary’s authority to prescribe regulations, issue orders, hold hearings, make decisions based on findings of fact, and take other appropriate action under this chapter." In turn, 41 U.S.C. 6506(b) asserts that "The Secretary may make, amend, and rescind regulations as necessary to carry out this chapter." 41 U.S.C. 6506(e) then provides that "The Secretary, or an authorized representative of the Secretary, may make investigations and findings as provided in this chapter and may, in any part of the United States, prosecute an inquiry necessary to carry out this chapter." Thus, under this statute, the Secretary can delegate authority to conduct investigations into possible violations of the SCA. However, without a delegation of authority, the sole power to conduct investigations of possible violations of the SCA rests with the Secretary. Putting all of this together, we see that 52.222-41(i)(4) is nothing more than a tool required by regulations issued by the Secretary to carry out his enforcement powers under 41 U.S.C. 6506. I don't see anything in the foregoing that would indicate that a contracting officer can usurp the power of the Secretary to conduct interviews of contractor personnel without a specific delegation of authority from the Secretary.
  19. I have not had experience in this area, but I have a major question about the concept. How would the SLAs marry up with the critical elements in the 1102 performance plan?
  20. That is not the issue. The issue is what in that clause gives the contracting officer the right to conduct interviews of contractor employees. From your answer, I assume that you cannot find any such language.
  21. No, I don't. I only became involved in this when DCMA determined that the contractor had been overpaid on the cost reimbursement contract and wanted some money back.
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