joel hoffman

Although this post was originally dated last Thursday, it just showed up on my feed today, Monday.  

With all due respect to @Sounding Alarm on Executive Orders: Do you think that most contracts are not available to the public to review? 
 

On 2/27/2025 at 11:37 PM, Sounding Alarm on Executive Orders said:

orders. Especially large businesses that will be completing fairly for government contracts—DOGE or Elon Musk may see your proprietary information. This is a major conflict of interest. Please share this information the public’s need to see this. 

@Sounding Alarm on Executive Orders, where does the reference state that contractor proprietary business information is available for DOGE review? I didn’t read where it does. The FAR doesn’t make it available either. 

2 hours ago, Thouse010 said:

I requested the contractor reduce their price for products being added to an IDIQ contract. I documented the "negotiation" in my mod memorandum.

Management is telling me I need to request a FPR and do a post negotiation memorandum for mod documentation. 

Is this actually required per FAR?

What incentive do I have moving forward to attain better pricing on mods if I'm penalized with more work and PALT!?

 

Forgive me but I hope you have replied to your agency about what you’ve recently done. I fear for your job, especially if you have “no incentive” to actually negotiate and attain better modification pricing, because it “requires more work”.

Depends on what info you are interested in. Do you have access to Administration of Governments Contracts by Nash, et al.? 

11 hours ago, here_2_help said:

DFAS frequently makes payment mistakes. Wrong CLIN. Wrong Sub-CLIN. Wrong ACRN. It's not really a huge deal. 

I think it is then up to the CO to correct DFAS's mistakes by pointing them out. Perhaps correct MOCAS? (Not sure about that.) Often, the contractor is asked to help reconcile invoices to payments.

The Army Corps of Engineers implemented new  Financial Management Systems “CEFMS” software back in the mid to late 1990’s to manage the allocations, authorizations, reservations, obligations and payments/expenditures  for all of our funds sources and for every contract and purchase (credit card payments but not each credit card purchase, of course). 

It was also integrated with the “Resident Management System” RMS software for contract administration after award, which also has a contractor module. 

I don’t know how but CEFMS formats and sends all contract invoice payments to DFAS . I never heard of DFAS making invoice mistakes with this system in place for my former agency.

Mistakes have been made but it is usually at the field input level (contractor and/or government). When discovered, they were usually reconciled in the next payment. 

I think it might be a matter of contract administration. Might be misbilling, might be a mistake in processing a progress payment by the contracting office. Unless the OP comes back we won’t know.

The OP started this thread almost four weeks ago. This is the first day that I’ve seen this thread. If it posted earlier it wasn’t highlighted as unread. I received a couple dozen email notifications of new threads this morning, some dating back to last summer. 

4 minutes ago, Retreadfed said:

Did the overpayment result in the expenditure of more funds than were included in the appropriation or current allotment of funds to the agency?  As for paying on the wrong CLIN were the funds used for the two CLINS from different appropriations?  If so, you may have a violation of the purpose statute and an ADA violation if there was not sufficient funds available to cover the payment under the proper CLIN.  The key is whether the proper appropriation was exceeded.

On 1/31/2025 at 9:02 AM, Fullbore1912 said:

If everything is correct on the contract and we are using one type of funds, is it an ADA violation when DFAS overpays or uses the wrong CLIN?

Good points.  It appeared that there was a single fund source. 
 

the last time that the original poster check in while signed in was Jan 31st. They might have given up waiting for answer .  

On 1/17/2025 at 7:24 AM, Steele24 said:

Can a Parent bid a Government contract as the Offeror /Prime and not mention performance will be executed by employees of one of its wholly owned subsidiaries (which legally is a separate company and should be treated as a subcontractor)? The Parent also represents the subsidiary employees as employees of the Parent and cites past performance work as the Parent's but does not mention the subsidiary anywhere in the proposal. Couldn't this fall under the False Claims Act by misrepresenting the performing legal entity for the PWS  by claiming employees and past projects as the Parent in the proposal? 

Just received an email notification of this “new topic” today; the topic was posted last  month.

You said this is a “bid” but later state that  certain representations were made concerning who the employees work for and past performance by the prime “in the proposal”

Has the contract been awarded or was it in proposal evaluation stage when you asked the questions. If the latter, the government should have questioned the discrepancies if they were aware of them prior to award.

if this is a construction contract, it should include the contract clause Performance of Work by the Contractor. That clause  requires the prime contractor to manage the work with its own employees and to perform at least the specified minimum percentage of the work.

If this is a small business set-aside or a sole source contract, there should be a Limitation on Subcontracting clause that limits the amount of subcontracting. Those contracts also require the prime to control and manage the work. 

if A construction contract, the prime must identify each subcontractor and also must identify who the employees work for in the weekly payroll submissions. 

You should consult your legal counsel if you are with the Government agency.

If you are a third party, you can advise the Agency of the misrepresentations.

Specific answers would require more context to the situation and current status of the acquisition. 

On 1/8/2025 at 4:57 PM, It_Dependsss said:

Can a GC claim extended field overhead for an agreed upon delay where operations on the critical path were disrupted due to differing site conditions, but they continued to work on non-critical path activities? A suspension of work was not issued. 

Just saw a notice of this new topic this morning in my Denali.

In response, based upon the limited information in the original post:

If the contract completion date has been extended due to delays to the critical path to completion due to a DSC, it would appear that some form of extended field office overhead would be allowable.

I still have new 19 email notification messages to look at but there are no unread posts or comments that should be indicated in bold on the Forum Home Page.

Just read another email notification of a new topic post which is strictly an advertisement.

What is going on with the forum today? Suddenly a flood of emails came out with what appears to be new topics or even old topics that were never posted.

in addition, I’m getting notices of new or recent comments to topics.  However, they aren’t marked as “unread” responses when I go to the Forum Home Page.to look for unread threads or comments.

Looks like Bob purposely did not post at least one of the topics  - it was an advertisement or promotion for certain products. Totally inappropriate topic.

Some of the topics are Overcome by Events. Old dates with then current questions on what to do. No use bothering now to research answers. Most were initially asked in the Sept- December timeframe when Bob was seriously ill or had passed away.

However, they aren’t marked as unread in the topic listing even though I’ve never seen  them before. 

The question is too vague to answer. How did DFAS overpay and on wrong CLIN? Was it an error by the contracting agency?

Have the payments exceeded the funds obligated on the contract?

Further details are necessary 

if not exceeding the contract amount or funds obligated, this should be reconciled on the next invoice for ongoing work. 

On 9/6/2024 at 2:24 PM, Bronteone said:

I am in a situation where we originally bid a contract to supply materials for a work item to which my firm is doing the work.  These items were previously contracted to another firm who did not complete the work but did purchase the materials and turn over to the government.  The government would like to use the materials they have on hand which means I have to process a credit back for materials we will no longer have to purchase.  My question is do I have to also credit back markups (g&a, profit)?

Yes, on a deductive or increase change (per the changes clause) , to be consistent, the equitable adjustment includes net change in costs, including G&A and profit allowance - 

Aside from the question concerning issuing a CPARS rating on a cancelled purchase order, the contractor must have an opportunity to respond to a negative draft CPARS rating. Someone a level above the the KO who prepared the evaluation must review disagreements between the parties over the evaluation. A contractors rebuttal also becomes part of the file.

42.1503 Procedures.

“d) Agency evaluations of contractor performance, including both negative and positive evaluations, prepared under this subpart shall be provided to the contractor as soon as practicable after completion of the evaluation. The contractor will receive a CPARS-system generated notification when an evaluation is ready for comment. Contractors shall be afforded up to 14 calendar days from the date of notification of availability of the past performance evaluation to submit comments, rebutting statements, or additional information. Agencies shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation. The ultimate conclusion on the performance evaluation is a decision of the contracting agency. Copies of the evaluation, contractor response, and review comments, if any, shall be retained as part of the evaluation. These evaluations may be used to support future award decisions, and should therefore be marked “Source Selection Information”. Evaluation of Federal Prison Industries (FPI) performance may be used to support a waiver request (see 8.604) when FPI is a mandatory source in accordance with subpart 8.6. The completed evaluation shall not be released to other than Government personnel and the contractor whose performance is being evaluated during the period the information may be used to provide source selection information. Disclosure of such information could cause harm both to the commercial interest of the Government and to the competitive position of the contractor being evaluated as well as impede the efficiency of Government operations. Evaluations used in determining award or incentive fee payments may also be used to satisfy the requirements of this subpart. A copy of the annual or final past performance evaluation shall be provided to the contractor as soon as it is finalized.”

I personally don’t think it is appropriate to prepare a performance evaluation for a purchase order cancelled pursuant to FAR 13.302-4(b) . After cancellation no further action is required per that reference. 

Without any more information and context to the situation, we can only speculate…

Yes, I agree with formerfed on this. Please provide the context to the situation.

If the Government has arranged for a conference location, hotels often provide free or discounted meeting space and services based upon expected occupancy for attendance. The parties may have arranged for a block of rooms for attendees. Since the government is paying for the attendees travel, it would seem entirely reasonable to expect the attendees to stay at the location in such circumstances. Sorry if you won’t get points or other membership Bennie’s from another hotel chain. 

On 2/11/2025 at 10:20 AM, Concerned CS said:

A CO used the changes clause, 52.212-4(c), to extend the period of performance on a contract for 6 months due to the contractor failing to submit a Request for Modification to extend the contract (FSS contract).

I just received a email notification of this new topic today.

Was the contractor required to request a modification to extend the FSS contract ? If so, why?

Or is this an extension to an order under an FSS contract?

33 minutes ago, C Culham said:

I wasn't reffing, just gone.   You might find this previous discussion interesting especially since roof is a common denominator.  

 

Carl, that is the discussion I referenced and provided the link to earlier. 

Ok, I checked my 3rd and 4th Editions of  Administration of Government Contracts. There is a complete section on post acceptance rights and responsibilities of the parties including warranties, burden of proof, issues with improper calls, preservation of contract rights of the parties for remedies, case law citations, etc.

Assuming from the facts that you presented so far, I don’t really know why you need more basis than what I told you to show that, after final acceptance of the work,  

1.The government has the burden of proof to show that the contractor’s work or materials were faulty, causing the leak or that there was fraud or gross mistake involved. (Specifically discussed in detail in the referenced book.)

2. The government apparently, simply assumed that the leak was associated with the contractor’s work.

3. The government called the contractor back under the authority of the warranty clause/warranty.

4. The contractor determined that the leak was not caused by or associated with the contractor’s work or otherwise damaged by the contractor.

5. Thus, the prior acceptance of the work was still final and conclusive.

6. Therefore, the contractor had no liability under the warranty.

7. There were some costs incurred to make a site visit and to inspect the cause of the leak.

8. The contractor isn’t liable for those costs.

9. During the warranty period the contract terms and rights of the parties are preserved for remedies. 

10. The contractor can submit a request for equitable adjustment.

All of the above points are covered in the reference. You can buy a used copy of the book and read it for yourself in substantial detail. It would be cheaper than hiring a good construction lawyer lawyer or consultant if you can’t make the argument yourself.

This is not a novel example. Good luck. 🤠

Sorry that I don’t have time to review the discussion of the term “equitable adjustment” and the distinction between clauses that do or don’t specifically provide for an equitable adjustment of the contract price in the seminal reference book Administration of Government Contracts. I don’t have direct access to it where I am right now.

This is a good question. An equitable adjustment, per the Government Contracts Reference Book, is essentially a price adjustment, based upon a change in costs, (whether an increase or decrease) plus a reasonable allowance for profit. The Supreme Court has ruled on the question of including a profit allowance in the term “equitable adjustment”. I don’t have the reference.

This is distinguished from an adjustment to the contract price that is strictly based on a change in cost, without any reference in the basis of entitlement that would provide for an equitable adjustment of the contract price.

It appears to me that there is a distinction in  the paragraphs in 52.242-15 to the basis for entitlement between an equitable adjustment and a price adjustment for change in costs. 

You can do a Search in WIFCON for warranty issue threads 

I found al thread from 2023 - similar situation .ive dealt with is this over the years working for the Corps of Engineers  

hope this helps.  Picking up daughter now at airport. Good night 🌙 

I’ll check my edition of Administration of Government Contracts tomorrow. 

It was not uncommon in my experience for Military installations to call contractors back under a warranty without inspecting and/or establishing the cause of the problem or that it was even related to the contract work.

We’ve discussed this before in the Forum and I believe that it’s discussed in the book Administration of Government Contracts. 

When the government directs a contractor to return pursuant to a warranty clause, the contractor returns and inspects the problem.  If it is determined that it isn’t a warranty problem, then the government would be responsible for costs incurred by the contractor in complying with the government direction.

Sackinator didn’t say that the roofing subcontractor fixed the non-warranty problem, only that it determined that the leak was unrelated to the contract work. 

“52.246-12 Inspection of Construction.

(i) Unless otherwise specified in the contract, the Government shall accept, as promptly as practicable after completion and inspection, all work required by the contract or that portion of the work the Contracting Officer determines can be accepted separately. Acceptance shall be final and conclusive except for latent defects, fraud, gross mistakes amounting to fraud, or the Government’s rights under any warranty or guarantee”.

52.246-21 Warranty of Construction

“Warranty of Construction (Mar 1994)

(a) In addition to any other warranties in this contract, the Contractor warrants, except as provided in paragraph (i) of this clause, that work performed under this contract conforms to the contract requirements and is free of any defect in equipment, material, or design furnished, or workmanship performed by the Contractor or any subcontractor or supplier at any tier.”

After final acceptance, the burden is on the government to establish that any failure is the responsibility of the contractor under either clause above.