joel hoffman

18 hours ago, Vern Edwards said:

Just out of curiosity, have you telephoned the vendor to inquire? Have you inquired by any other means? Email?

18 hours ago, Doug0464 said:

Hi Vern...  Yes, I have sent multiple follow-up emails including one that stated individual invoices were not necessary and they could simply submit a final invoice for the remaining balance of the contract.

I’m curious… Did you actually speak with the contractor or just email the person?

If you SPOKE with them, what was their reaction/response/intent/reasons for not invoicing?

I wouldn’t worry much about a future claim. What would be the basis? “I intentionally refused to submit an invoice as required by the contract to be paid, even after numerous government attempts to pay me?”

Im assuming that you informed them that you will close out the contract and de-obligate remaining funds if they refuse to invoice for the final payment.

The prime has a separate subcontract relationship to deal with.

On 11/4/2024 at 9:59 AM, Vern Edwards said:

The contractor had to commence performance of Phase I within 24 hours after contract award. Upon completion of Phase I the contractor had to notify the COR and present the Phase I results. The contract expressly states that the contractor may not commence performance of Phase II until expressly authorized to so by the CO in writing. The contract also expressly states that only the CO may authorize commencement of Phase II. Phase II is not a Government option. If Phase I is completed satisfactorily the CO must authorize the contractor to proceed or terminate the contract for convenience.

Upon being presented with the results of Phase I the COR will review them and notify the CO whether they merit proceeding with Phase II. If the results do not merit proceeding the CO may either (1) direct the contractor in writing to take specified actions and present new Phase I results to the COR within a specified period of time, or (2) terminate the contract for convenience. 

Facts. Upon the early completion of Phase I the contractor presented the results to the COR. The COR found them to merit proceeding and sent the CO a memo report to that effect. However, the CO was on official travel status and could not read the memo or send a written authorization to proceed with Phase II immediately.

In this case, it was the COR’s role and responsibility to review the results of Phase I and notify the KO whether the results merit proceeding with Phase II .

“ The COR found them to merit proceeding and sent the CO a memo report to that effect.”

The KO had the contractual responsibility to act on the results and merit determination in a reasonably responsive timeframe [it would seem reasonable to assume this is to efficiently maintain progress and  and avoid time and cost impacts of delaying the action]:

“If Phase I is completed satisfactorily the CO must authorize the contractor to proceed or terminate the contract for convenience.”

In the scenario, the KO was unavailable and unreachable to perform her Contractual responsibility, which [likely] put the Government at risk for additional costs and possible disruption and time impacts.

In my option, the COR SAVED the Government additional costs that would have accrued and additional time that would have been incurred ,waiting for the KO to return to duty and [“must”] authorize the contractor to proceed.

Both the contractor and COR met their contractual responsibilities…

The COR acted to protect the Government’s interests and work with the contractor to facilitate efficient progress.

Phase II was NOT an option in the contract, it was a requirement, unless the KO would have decided to TFC the [“…fully-funded cost-plus-fixed-fee R&D contract for the conduct of a project. The project was to be conducted in two phases under a single contract lime item.”]

14 minutes ago, Vern Edwards said:

Thanks, Joel!

In fairness to my poor fictional CO, I set her up in order to create the issue. She's not to blame. A director of R&D contracting I should have made sure she had a backup.

My bad.

You are forgiven, Vern. I hope you let the poor COR off with a slap on the wrist or better yet a congratulations and handshake . Sorry I rambled on but I wanted to make a point about doing whatever it takes to get a critical job done even when you are out of the office. .🤠

BTW, the Milcon Transformation Pprogram emphasized performance based design criteria, commercial industry standard  materials, means and methods, allowing flexibility, in how to meet those requirements. 

1 hour ago, Vern Edwards said:

Referring to my scenario, do you think the COR's communication with the contractor constituted a "commitment"?

Given the scenario, do you think it's in the same category of acts as someone𑁋 without contracting authority, without an existing contract, and without prior coordination with the contracting office𑁋calling a supplier and telling them to ship a quantity of goods to the government and that the paperwork will follow?

Quickly, I don’t think that there was any new commitment of funds, scope, schedule or change in contractor requirements by the government. It was a fulfillment of the government’s obligation to the contractor under the contract- with the mutual intent to avoid additional costs or delays…

It’s not the same category as the second situation you described. Not in spirit or reality.

Off to the park- my dog is begging and panting for relief. 🐕 . 
 

I don’t have much sympathy for a KO who was unreachable for an entire week, without either finding some time during a 24 hour period to keep up or else arranging for a temporary substitute or delegation of duties to fulfill the Governments KO function.

When I retired in 2007, I was a member of the USACE Program Management Team (PMT)  for the $50Billion+  Army MILCON Transformation Program.

I was responsible to help develop uniform policies,  procedures,  Standardized design criteria,  standardized design-build acquisition methods, procedures, incorporating new means and methods, accelerated execution timelines, all at reduced cost.

Contract and Task Order Awards had to be made for full-scope, within the Budgeted Program Amounts. This had seldom been achieved prior to this Program.

This was necessary to meet  the Army’Transformation Program’s rigorous time, cost, uniformity and enhanced functional and quality requirements for new facilities to relocate and re-organize 1/3 of the Army Organizations in a compressed time.

If the Corps of Engineers couldn’t meet the new Army goals and objectives for full scope, accelerated time, high quality, vastly increased workload, all within the Programmed Amount budgets,the Army would seek Congressional Authority to hire the leading industry design- construction firms to manage and execute the Program.

The Army MILCON annual workload alone would increase by up the six times during the peak of the Program.

Before retirement, I was on the PMT’s for acquisition, contract execution and contract admin from 2005-2007.

We developed three Design-Build model RFP’s to be centrally maintained and electronically used  by all Districts for initial single award and Multiple Award Task Order Contracts and for Task Orders that would be used for about 47 different, standardized facility types.

We updated the model RFP’s on a monthly basis as the design criteria matured, for lessons learned, etc. We had daily contact, interaction, input and decision making actions with the various Districts and Facility Standardization Teams for the monthly updates. Much travel involved, too.

After my retirement date that June, I worked as a contractor member for several months, until I was brought on in late fall as a re-hired Annuitant for the next six years. I worked remotely from home. I worked flex-time, irregular hours and was paid only for the hours that I worked. 

Well, I deer hunted at a hunting camp in a nearby county for a few days a week over a 3 1/2 month season each year. But the workload and monthly update deadlines remained constant. I spent many hours in tree stands on different mountain sides where ever I could get Blackberry telephone reception, working on the MILCON Transformation Program.  

Edit: after posting I just saw Vern’s post above. I will respond ASAP but have to take my dog to the park, go vote and grocery shop for tonight. 🤠

1. I agree with formerfed’s analysis and conclusions, as far as he went.

The KO was negligent in her duties and responsibilities by being unreachable for an entire week without making arrangements to delegate her authority to another person or to be able to communicate orally or by electronic means, at least after hours if the only option. A KO can issue a Change order by electronic means per FAR 43.201 (c), then formally follow up with a Modification as soon as possible. So why can’t they issue the required NTP by email or text message, then follow up by other means if required. Or arrange for a temporary KO by email or text with notice to the contractor. Or, or , or, etc.

The Government has a fundamental responsibility of good faith and fair dealings to the contractor and to the public to have authorized officials reasonably available to perform its contractually required functions and actions.

The COR did what he or she had to do to protect both the Government’s and Contractor’s interests and to avoid delays and delay costs- but also assumed personal risk…

The contractor did assume risk by relying on the assurance of the COR that the missing KO would issue the NTP upon her return and that it would be okay to proceed with Phase II. 

2. I would be embarrassed. I’d issue the NTP and, if legally allowable,  CONFIRM the previous date of the NTP to authorize any costs prior to the date of my return to duty. Yes, the COR, contractor and I should sit down together and discuss as formerfed said.

I might also state that I should have either been available for communications or made arrangements for a temporary replacement for an extended absence and that I wouldn’t repeat it either.  

Deleted

If the OP’s office is “reviewing some internal processes for contract administration”, specifically with regard to authority, apparent authority, etc.  I suggest that they read applicable sections of any edition of the book Administration of Government Contracts by Nash, Et al.

9 hours ago, C Culham said:

Perfect....do away with all CO approvals as by your assumption of facts the government will always approve or otherwise agree with a contractor.  I love the ideal...no more GAO and no more courts!

What you said makes no sense, Carl. I didn’t say do away with any KO* approval or that the government will always approve or agree with a contractor.

*Used here, the “KO” means the Contracting Officer or Contracting Officer’s Representative, acting within their authority.

Here, the KO can (should) now approve the two described examples, as he or she would have approved both routine contract admin actions anyway.

And what is the contractor going to claim here** (a rhetorical question only)??
** no change in requirement, no directed additional cost or time, no delay to the contractor.

We also described corrective actions for the KO to take to avoid these situations in the future.

In the specific (and only) examples described in the referenced thread, I find it rather silly to assume that a KO can’t simply approve those routine contract admin actions that he/she would have otherwise approved anyway*. There was no additional commitment of funds, risk, effort or change in the contract requirement. 

* per statement by the Original Poster that they would have approved the actions if they were sent to them.

For the reader’s reference, here is a link to the previous discussion in the contract administration topic area. 

 Neil, I don’t disagree with you. My response wasn’t meant to imply that the contractor should or would seek consent or notification in advance of award of a subcontract that doesn’t require a submission.

If the prime wants to inform the government, It could be in the form of a courtesy notification, for information only - and after awarding the subcontract.

Determinations and Findings D&F:

“Based upon the below findings, I have determined that…”

BLUF.

Just my opinion.

On 10/30/2024 at 10:05 AM, DE13151719 said:

We are awarding a subcontract under our DoD CPFF prime contract

Is this the same subcontract you mentioned in a July topic? Just curious how that all worked out. 

If this is the same prime contract or contracts which you mentioned in earlier topics and it’s not the first subtract that you have notified the government about, I don’t see any need or benefit to voluntarily notify the KO about it. 

22 hours ago, DE13151719 said:

I'm wondering if in the spirit of maintaining an open and communicative relationship, should I notify the KO?

I’d say, go for it in the spirit of developing an open and communicative relationship. Isn’t any other government representative involved in the administration of your contract? Even if the “stoic” KO doesn’t care, those administering the contract might appreciate the notice. Just don’t ask for any action on the government’s part.

Do you intend to provide any of the information that would otherwise be required by the Subcontracts clause to show how you selected and awarded the subcontract. Are you trying to show the government an example of how you document the selection and award of subcontracts? If so, some detail would be appropriate.

If you are just notifying them of the award, then I’d say it’s likely a waste of both parties’ time and doesn’t really serve any productive,  communicative purpose. .

If the subcontract is competitively solicited and awarded, the info might be easy to provide and would be more informative…

This thread just reminded me of when I first began my civil service career in 1980. The GS-15, Area Engineer for the then $1 Billion Tennessee-Tombigbee Waterway construction program had the approval authority as the COR for all construction submittals that required review by A-E’s, the District Office Engineering Designers or the Area Office. There were eight Resident Engineer Offices under our Area Office with warranted  [Pre-FAR, ACO equivalent] Resident Engineers.

This was on about 50 large contracts for ten new locks and dams, over 200 miles of waterway construction, utility and railroad bridge relocations, new parks, etc., etc.The District Engineer (an O-6 Colonel) was the KO for all Tenn-Tom Waterway contracts.

I spent my first year in the Tenn-Tom Area Office as a GS-11, reviewing contractor submittals, reviewing the A-E and Engineering’s designer review comments and recommendations, then assigning the final approval action and stamping the Area Engineer’s name and approval or disapproval on every copy of the paper submittals

Our Area Office maintained copies of every Tenn-Tom contract, which I kept up to date to reflect every mod. I had to read all the applicable plans and specs for every submitsls.

Do you think that a GS-15 area engineer had the time to read all those recommendations and personally approve them? (There were Zero claims concerning construction submittals.)

Sheesh. 

Carl, I described the conditions (COR) and the described examples, and considered other circumstances

On 10/18/2024 at 12:17 PM, Philistines said:

Assume in this instance that the Contracting Officer would have issued the approval. However, the request for approval did not reach their inbox through no fault of the contractor. There are funds available and the work is within the scope of the contract. The only issue is that individual who issued the approval did not have the authority.

Example of some possible approvals would be to purchase equipment or to enter into a subcontract agreement.

I think that the OP edited the examples since the initial post. 

On 10/18/2024 at 3:12 PM, Philistines said:

These approvals would not modify the contract in terms of funding or the period of performance. They are simple approvals associated with the performance of the contract. The government wants to issue the approvals.

On 10/18/2024 at 3:12 PM, Philistines said:

Some advised that the cognizant CO simply issue an approval after the fact and document the contract file. Others have asked if this is in fact a ratification because it is an unauthorized commitment. 

Some others have stated that it is an “unauthorized commitment” that would require ratification. The examples of unauthorized commitments that I’ve seen or read about are actions that created new or altered obligations and/or could result in REAs or claims.

Nothing new was required by the sample actions. No requirements were waived or changed. Here, the KO agreed with the actions that were approved and would have approved the actions themselves. Apparently, no additional costs were incurred. There is nothing for the contractor to dispute or claim.

What a waste of time and resources it would be for the KO to seek approval to ratify those actions, when they are already busy… 

I have never experienced where a KO would have to personally become involved in and approve every routine contract admin action, especially on cost reimbursement contracts.

Also my perspective: Any organization issuing and administering cost reimbursement contracts darn well better have some qualified staff administering such contracts…

In my former organizations, COR delegations included routine approvals concerning administration of the contract, even where the contract used  language like “for approval of the KO”.  The definition of KO stated that the term included authorized representIves acting within their authorities . We notified the contractor of each COR’s authority.

So, my perspective of the examples here would doubt the severity of the offense or the effect (apparently none) on the contract performance.

Of course, I don’t know the context of the COR responsibilities here. Seems to me like the KO has plenty of time to administer many of the details of their contracts. Not so in my organizations. Especially on cost reimbursement contracts. 

 I would chide the COR if they overstep their authority but approve the (described sample) submittal actions. If the contractor knew that the COR didn’t have the authority to approve anything, I’d remind them too.

I agree with Vern. Take the corrective actions that he described. 

On 10/18/2024 at 3:12 PM, Philistines said:

They are simple approvals associated with the performance of the contract. The government wants to issue the approvals. 

It appears to me that, at the most  they were unauthorized communications, if the KO and the government team agree that the contractors actions should be “approved.”

That suggests to me that the KO WOULD HAVE approved the actions had the COR sent the action to the KO

There appears to have been no deleterious impact on the Contractor’s compliance with the contract’s technical requirements or its contract performance.  

Where is the third “Performance Standard”? Plus I hate the pervasive use of the passive voice. 🤪🤪🤪

On 10/18/2024 at 3:12 PM, Philistines said:

They are simple approvals associated with the performance of the contract. The government wants to issue the approvals. 

i don’t have any problem with what Vern recommended.

i wonder why you need a COR.🤪

What duties and responsibilities does the COR have on the contract? For perspective, are the COR’s customer employees or are they your own employees who administer the contracts?

You said “We are just interested in other USG practices and collective experiences.”

What agency “practices” and “collective experiences”  are you referring to?? How to correct the situation? Contract administration practices?  What do you mean by “collective experiences”?

Thanks. 

17 hours ago, Neil Roberts said:

Joel, would this be applicable?

201.104 Applicability.
(a) Applicable statutes, the FAR, 48 CFR chapter 1, and the TAR, in this chapter, apply to all
acquisitions within the Department unless otherwise specifically excluded by statute, the FAR, or the
TAR.
(b) The following order of precedence applies to resolve any question of applicability concerning an
acquisition regulation or a procedure found within the TAR, or the TAM which comprises the
Department's internal operating procedures and guidance—
(1) U.S. Statutes;
(2) The FAR;
(3) The TAR;
(4) DOT Orders; and
(5) The TAM.
(c) The Maritime Administration may depart from the requirements of the FAR and TAR as
authorized by 40 U.S.C. 113(e)(15), but shall adhere to those regulations to the maximum extent
practicable. Deviations from the FAR or TAR requirements shall be documented according to
Maritime Administration procedures or in each contract file, as appropriate.

The TAR is a supplement to the FAR.
https://www.acquisition.gov/tar/part-1201—federal-acquisition-regulations-system#Subpart_1201_1_T48_5053521

I don’t know if the Title 41 USC prohibition Is an “applicable statute” to MARAD acquisition of commercial products and services. If it is, then MARAD departure from FAR/TAR described in (c) above doesn’t authorize departures from applicable Statutes.

I found no exception in TAR Part 1212 or other TAR parts.

Again, It’s not a commercial item or commercial services contract under Parts 12 or 13.

It has been described as a Part 15 trade off acquisition for acquiring and refurbishing and/or modifying vessels. I can’t review the solicitation in SAM.