joel hoffman

I should add to my response above that I don't necessarily disagree with Vern. I don't know from AAC's original post if there is any actual oral communication going on about the problem between the parties or if it is just an email notification approach. I also don't know if AAC has actually requested an adjustment or established an entitlement with government acknowledgment, etc. But if the Government is sympathetic about the financial hardships being experienced, there are some ways to help out, pending definitization. This assumes that there is some kind of working relationship between the parties.

My advice is to discuss the situation with the Administrative Contracting Officer, if there is one and ask how long he/she thinks it would take. If there is no ACO, discuss with the KO. It might be possible, if the government recognizes the REA, for them to issue a multiple part modification with at least some funding, pending the formal definitization process.

I agree with Vern's interpretation. That's how I read the clause. We need to manage the budget/target and the contractor "earns" its share of the cost savings in the fee adjustment per the clause.

You obviously weren't around at the end of and after the Viet Nam "Conflict" At my Air Force Base Base from 1975 to 1976 era, we ran out of our copier allotment on about the 15th of every month and shut down the copy machine. I often had to call a contractor or consultant as part of my job. If it wasn't local to an Installation with "AUTOVON" so that the base operator could forward the local call, I had to charge my long distance calls to my home phone. That was EMBARRASSING. I could tell you other stories but hopefully you get the point!

Carl, I believe that you are correct. However, our contracts contained a special contract requirement that specifically stated this, so we didn't have to push it with the bonding companies. They probably never saw the SCR, either.

If your office has no expertise to determine whether the constructor or the engineer is responsible for the problem, then I'd advise you to hire a third party expert to investigate and advise you what to do. If it is a construction warranty issue, the Government may have to sue to obtain performance under the Warranty. The cost of the investigation will probably be the government's responsibility but you should be able to recover repair costs. If the A-E is determined to be liable, youy may be able to sue for the cost of the fix as well as the cost of the investigation and perhaps the cost of the lawsuit under the paragraph ( of the clause 52.236-23, "Responsibility of the Architect-Engineer Contractor", which makes the A-E liable for "all damages to the Government caused by the Contractor's negligent performance of any of the services furnished under this contract." However, I think you need an attorney who knows something about A-E liabilit? and construction contract law to advise you on this. I will say this - government engineers tend to stick up for their. A-E buddies when it comes to A-E liability. They tend not to be aggressive about pursuing A-E liability cases. Take this from somebody who supervised the A-E liability investigator for a Corps of Engineer's District for 5 years...

I don't think that there is a "government employees only bring your kids to work day". On those occasions that I'm familiar with, I've seen kids at private businesses, too. Did I miss some point about this being some exclusive event for government offices?

Well, since you apparently had the benefit of knowing the situation and its context, I'm not surprised that your viewpopint - which apparently changed from your initial opinion - is deeper than our shallow viewpoints, without the benefit of the context of the situation. I'm sorry that you didn't understand my question why it is ok for me, as a government employee, to bring my kids to the workplace but not you, as a contractor. Its ok for me to lose some productivity, which costs money, government and contractor program efficiency. But its not ok for you to do the same on some national 'bring your kids to work day.' I wonder if the legal office considered whether there was any possible liability for kids of government employees? How is that any different than if someone else's kid gets hurt on government property? I think that is a valid question. Of course, we don't know what type of office is involved, how many government and how many contractor employees are involved, what type of work they do, etc., etc.

I also believe that it depends upon the circumstances. I also believe that Government employees tending to their children at the office could affect the productuvuty of not only government employees but that of their contractors, too. What I don't believe is a blanket policy of "Do as I say, not as I do". You're welcome.

Vern, no I don't think there is an 1:1 equation between government and contractor employees. But whoever in Congress (apparently the US Senate) decided to encourage "Bring your sons and daughters to work day" didn't make any distinction nor discourage contractors from participation. There may well be exceptions, depending upon the circumstances. Construction sites, FAA towers, etc. Seem to fit the exception. Note that the productivity of government employees does affect both the mission and the bottom line cost to the taxpayers. "Do as I say, not what I do" seems to further the perception of differences between government employees and the rest of American taxpayers, as some type of elitist class. You don't have to agree with me but you don't have to belittle those who don't necessarily agree with you or don't answer the test question as you would, either. You asked for opinions with reasons and that is just my opinion with reasons.

Then we should ban government employees from bringing their kids to work that day, too. Vern, I sense that you don't think that government employee productivity has any effect upon the cost of government to the taxpayers but only contractor productivity does. You asked if the contractor's child does disrupt the operations, should the contractor be responsible? If the contract is firm fixed price, the answer would seem to be self determinative - yes. If the contract is a cost reimbursement or T&M type, it may depend upon the type of cost arrangement or specific circumstances of granting the request.

I agree with the above gentlemen. It would seem to be consistent with Congressional intent expressed above. One should ask themselves "Would the children of contractor employees be any more disruptive or increase costs to the taxpayer than those of government employees?"

Nevermind my foggy reference to PL 85-804. That refers to "requests for relief". I misread the reference to PL 85-804. I don't know when the original requirement for certification of requests for equitable adjustment was codified. But it was obviously earlier than 1994, because FASA replaced the earlier clause at DFARS 233-7000. I just can't find the date and threw away my old.references to it.

I wasn't confusing the old TINA $100k dollar limit coverage with the earlier, separate DoD certification. Actually, the 1994 law you referred to was FASA, which repealed previously existing coverage, by moving and modifying the coverage of earlier statues dating back to PL 85-804 (1958!). See discussion and background of the later requirements at http://www.abanet.org/contract/federal/reg...gation_002.html. The discussion also mentions the confusion between certifications of requests for equitable adjustments and the certification for claims. I do remember the requirement being covered under Part 233 and later being moved to 243. But I'm pretty sure it was around long before 1994. "...A similar clause, entitled "Certification of Claims and Requests for Adjustment or Relief," previously existed at DFARS 252.233-7000. The previous clause implemented 10 U.S.C. ? 2410e, which required contractor certification of claims, requests for equitable adjustment, and requests for relief under Public Law 85-804. Section 2301 of FASA repealed 10 U.S.C. ? 2410e and amended 10 U.S.C. ? 2410(a) to "make it clear" that DoD-unique certification requirements apply only to requests for equitable adjustment and requests for relief under Public Law 85-804. See H.R. Rep. No. 103-712, at 202 (1994). In making these changes, Congress contemplated that provisions of the Contract Disputes Act of 1978 ("CDA") would continue to govern the certification of "claims" on a government-wide basis. Id." I suspect that a more academic research on the original DoD requirement might well lead back to the Rickover era of early nuclear ("atomic") submarine development program and his battles with industry! I'm away from home, very busy and my paralegal and memory skills suffer greatly... my (much younger) teacher wife says all this knowledge is stored in my brain, it's just miss-filed at this stage in life.

I searched through Nash and Cibinic's "Administration of Government Contracts" the other day but couldn't find any discussion of the DoD certification and didn't have time to search the US Code for the date of the law that implemented it, but I'm pretty sure we were requiring the certification back around 1980, before FAR. I have thrown away my old class notes. But I remember being told that we required change proposals exceeding $100k to be certified to strengthen the application of the False Claims and False Statements acts in the event the contractor falsified factual data. It wasn't our choice whether or not to require the certification. I don't remember the origin or cause, but I imagine the weapons programs were the source. I do remember this language confusing both contractor and government personnel, who often equated the action with a claim, when they were actually just working through change orders and government requests for change proposals. Back then the preponderance of our construction contract changes were less than $100k.I think I still have a copy of the DAR or ASPR somewhere at home. I would look it up when I get home later this week but hopefully this topic will be stale by then.

Well, the changes clause, among others, does technically require that the contractor assert its right for an equitable adjustment for directed or constructive changes to the contract...

I can't tell who this contracting officer you refer to works for - Is it the government? Is it the prime contractor? At any rate, I agree with Vern, assuming that construction work is not contemplated by the contract language.

You didn't provide enough information to understand the basis of the question. How is it "not legal under the FAR", according to the Prime? Please elaborate. I can't answer such a general statement, except with another one. Is she/he saying that construction work is outside the scope of the prime (service?) contract? It is legal to include construction work in a service contract as long as the contract scope includes the possibility of such work. Our organization has done so for years.

Hooter, the government could still extend services beyond 6 months, but not unilaterally. A further extension would be generally beyond the terms of the contract. So, an out-of-scope supplemental agreement between the parties would be necessary. This means that your firm would have to agree to the terms and conditions of any further extension. If a further extension is outside the scope of the current contract, the government would first have to justify using other than full and open competition to acquire the services pursuant to FAR Part 6 before it could implement the extension. It would also have to justify only acquiring the extended services from your firm. Since the new contract is apparently sole source, the government may not have much problem with the justification. But your firm would have to agree with the terms of the extension.

I will say that our Chief of Contracting (one of the KO's) was TOTALLY competent as a Contracting Officer and as SSA. I served with him in the first Gulf War and he was FANTASTIC! He had great trust in me and we worked together very well...

Yep, I said: "Considering the alleged shortfalls in the overall quality of today's source selection's, a little more KO/SSA involvement would seem reasonable to me." Notice that I didn't say: "Considering the alleged shortfalls in the overall quality of today's source selection's, a little more KO/SSA oversight would seem reasonable to me." I think they might learn more if they occasionally sat in on the process. Back in the mid 1990's, I ran or supervised my folks who "ran" of all of our construction, design-build and JOC source selections and those service contract source selections assigned to us. We also negotiated all sole source contracts. Neither the SSA (KO) nor any contract specialists set foot in the evaluation room or participate in negotiations. Nor did they prepare any of the source selection plans, documentation, discussions, write-ups, trade-off analyses, decision memo's, debriefings, etc. Now please realize that USACE Contracting civilians only took over the Contracting Officer role from the District Military leadership after passage of the Defense Acquisition Workforce Improvement Act in the late 1980's. They were trying to both run Contracting and learn contract Administration functions at that time. Nobody in Contracting wanted to run source selections or to negotiate new contracts, so my boss took it on. I took over when he left in the early 1990's. After I transferred to a Division level office in the late 1990's, Contracting had to take over the process. In circa 2004, Army policy came out which made the KO/SSA independently make all the decisions...

Considering the alleged shortfalls in the overall quality of today's source selection's, a little more KO/SSA involvement would seem reasonable to me. I would say that an oral discussion between the Chair and the KO (I'm assuming that you are also the SSA in this instance) after they finish the evaluation of a proposal wouldn't seem unreasonable. The team might only possess notes for the formal write-up at this point though. Writing up the evaluations does take time. However, I would definitely want to know that my board was evaluating proposals using an organized, acceptable approach. I know that a lot of Boards and Contracting officials alike concentrate on the factor or element "score" or rating then worry about how to support that rating, which is the opposite of how I evaluate proposals. The board should concentrate on determining and documenting the strengths, weaknesses, deficiencies and clarifications, then let the rating more or less fall out on its own, based upon the rating criteria. The Chair ought to be able to go through her notes at least, if the final write-up isn't done. And yes, certainly assure her that adjustments can be made throughout the process. She could update you on those type things during the oral brief. I think that would be reasonable, but a written daily or interim report is a resource time waster to me. Its time consuming enough to prepare the boards official documentation without adding more reports.

Source selection evaluation teams can take many forms, depending upon the complexity of the source selection and organizational rules. Generally all of them eventually report their results to someone or another team higher up the selection chain, ultimately to a a person responsible for the selection decision. I can see one reason why an evaluation team might hesitate to make interim reports to a KO. However, it shouldn't be a problem if the KO is smart: It isn't uncommon to complete the rating of a proposal against the evaluation criteria, then discover we either missed something, misunderstood something or just plain gained a different perspective while evaluating another or other proposals. We would then go back and adjust the previous rating of a factor or two for the sake of consistency or to correct a mistake in the evaluation. But we had to be extremely careful to adjust it against the evaluation criteria and rating scheme, not against the other proposal(s). Sometimes, it was a matter of gaining better understanding of the actual eval criteria or the rating schema. Sometimes it was realizing that we were rating the same thing in 2 proposals differently. It wasn't a big deal and my role was often as the neutral referee to keep the process fair and consistent. The chairperson or the team might have reservations about briefing the KO before the overall evaluation is complete because of what I said above. However, if the KO is "smart", she or he should understand that this will sometimes happen and work with the team to allow them to make the adjustment. The KO might even be the one to point out such inconsistencies as an observer of the actual evaluation or during a summation briefing. If that is the chairperson's hang-up, then she or he ought to bring it up to the KO and come to an understanding of how such situations must be handled, because they do occur. I actually enjoyed having the KO sit in and observe the evaluation process in those few instances where it happened. I thought that it made her more aware of the details and allowed her to better understand the criteria and proposals. In order for her to maintain her independent judgement (required by Army source selection rules), she reserved the right to disagree with us in the final selection analysis. There are many ways to skin a cat, as long as you follow the basic rules applicable to all source selections and the ones established for your particular acquisition.

Yes the request was reasonable (unless there is an agency rule against this practice). The KO is responsible for the source selection and should be setting the rules. In the last office I was in, it was was not uncommon for the KO to sit in on the technical evaluation.. The TEB works for the KO at the pleasure of the KO. The KO can be as proactive as she/he wants to be. The TEB chairperson had better cooperate or the KO can and should replace her/him. What basis did the TEB chair have for refusing the KO's request? I'm assuming here that the KO is the source selection authority, ultimately responsible for the selection decision.

I agree with Vern. You said "I am hoping there is some regulation that can guide me, but I am at a loss." I probably should have expanded my answer to say that the FAR doesnt provide a nice, neat answer to your question. You don't owe firms who haven't shown themselves to be competitive or good performers an optional contract extension. I recommend that you not put the government (taxpayers and customers) at risk to pay guaranteed minimums or to have to award delivery orders to firms that otherwise wouldnt win any delivery order competitions. Even if you don't owe any minimum guarantees during an extension, you need to decide whether or not you think that a firm would be competitive or be a good performer during the extended period if you have a reasonable basis to make such a conclusion. But you aren't bound to extend them simply because the firm rated well in the initial source selection competition. In reality it does cost the government money in the amount of resources and time necessary to continue dealing with non-performers and non-competitive firms (contract administration efforts and time to review, document the reviews, etc.every time they submit a proposal). In our organization, the acquisition personnel cost our clients money because we are generally reimbursible to the program being served. And clients don't like to pay for guaranteed minimums. There might be other considerations that you didn't bring up here. I hope you see though that there might be valid business reasons involved in the decision to extend or not extend firms, beyond simply whether or not they are "good" or "bad" firms. But don't be arbitrary in your decision. Yes, after considering the facts and using your business judgement, document the basis of your decision to exercise or not to exercise an option to extend a firm. Ater all, it is called an "option".