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C Culham

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  1. Not saying a deep dive will answer the question but here is another possible reference to check around in. As I understand it does provide help regarding DFARS 252.204.7102 and NIST SP 800-171...... http://dodprocurementtoolbox.com/ at the Cybersecurity tab
  2. The ever changing mission of OMB as directed by the President has OFPP a pawn in the movement of the material in the chess game of bureaucracy......an interesting read of the 30,000 foot level variety! https://fas.org/sgp/crs/misc/RS21665.pdf
  3. The following is noted, not sure it changes the discussion but words of a contract do count. 52.216-22(d) in part states this in most GSA FSS contracts - "...60 months following the expiration of the basic contract ordering period..." And then here - https://www.gsa.gov/buying-selling/purchasing-programs/gsa-schedule/schedule-buyers/contracting-officer-guidance-schedule-ordering-procedures -GSA states this - "Before placing an order, verify that the FSS Schedule contract has FAR 52.216-22 (Oct 1995) to allow for the exercise of options on orders beyond the contract period. However, no orders or options on orders may extend more than 60 months after the expiration of the FSS Schedule contract"
  4. Many details are missing that would dictate what the Government may think is the correct approach to the matter. Noting this I suggest that you contact the Contracting Officer (CO) of MATOC advise them of the matter and get their view and advice on how to proceed as it will be the CO's opinion and direction that matters. Engaging your own legal is suggested as well.
  5. I found the following quote to be interesting. It is from this https://www.gao.gov/products/b-419583%2Cb-419583.2 which is not on point but yet the quoted information may be helpful to level the discussion in this thread........ "The disclosure of proprietary or source selection information to an unauthorized person during the course of a procurement is improper. 41 U.S.C. § 2102; FAR 3.104; Lion Vallen, Inc., B-418503, B-418503.2, May 29, 2020, 2020 CPD ¶ 183 at 5; S&K Aerospace, LLC, B-411648, Sept. 18, 2015, 2015 CPD ¶ 336 at 8. Where an agency inadvertently discloses an offeror’s proprietary information, the agency may choose to cancel the procurement if it reasonably determines that the disclosure harmed the integrity of the procurement process. Kemron Envtl. Servs., Inc., B-299880, Sept. 7, 2007, 2007 CPD ¶ 176 at 2. Where an agency chooses not to cancel the procurement after such a disclosure, we will sustain a protest based on the improper disclosure only where the protester demonstrates that the recipient of the information received an unfair advantage, or that the protester was otherwise competitively prejudiced by the disclosure. See Gentex Corp.-Western Ops., B-291793, et al., Mar. 25, 2003, 2003 CPD ¶ 66 at 7-9 (finding no competitive prejudice where agency promptly recalled the inadvertent disclosure, reviewed proposals for use of inadvertently disclosed material, and found no evidence that awardee had used protester’s material in its proposal). Section 9.505(b)(1) of the FAR provides that an unfair competitive advantage exists where a contractor competing for award of any federal contract possesses proprietary information that was obtained from a government official without proper authorization. Accordingly, an unfair competitive advantage is presumed to arise where an offeror possesses competitively useful nonpublic information that would assist that offeror in obtaining the contract, without the need for an inquiry as to whether that information was actually of assistance to the offeror. L-3 Servs., Inc., B-400134.11, B-400134.12, Sept. 3, 2009, 2009 CPD ¶ 171 at 17 n.19 (citing Aetna Gov’t Health Plans, Inc.; Foundation Health Fed. Servs., Inc., B-254397.15 et al., July 27, 1995, 95-2 CPD ¶ 129 at 17 n.16; Health Net Fed. Servs., LLC, B-401652.3, B-401652.5, Nov. 4, 2009, 2009 CPD ¶ 220 at 28 n.15."
  6. Have you talked to these folks... https://www.bls.gov/cex/gemini-incentives-outlets-test.htm
  7. In my experience, which involved the similar situation a few times over a 39 year career what will happen lays in the hands of the agency. Your proposed action in contacting the government is most appropriate and what you imagine is probably right on. However I also experienced where the procurement continued on its path. What occurred with the aggrieved contractor, was how I will say, worked out, but not without a little sweat and tears.
  8. Once again I am personally compelled to post as I believe context is missing. This has no intent of getting the last word in but to respond directly to my argument and conclusion about SCA interviews by a CO. My interpretation, and position, on the issue of SCA interviews was and is that, absent a specific agency policy or regulation, there is no prohibition against a CO doing SCA interviews stated in USDOL regulations, FAR Clauses and/or case law and as such a CO may do interviews. Two independent formal requests to USDOL and response to those requests, both formal and anecdotal, support my interpretation. I am confident in the USDOL responses and believe that USDOL is the final authority on the matter pursuant to 29 CFR 4.101(g) which is referenced below with emphasis added. I am confident in the USDOL responses as both were sought independently and responses came from representative authority required by the regulations of the USDOL. Specifically, 29 CFR 4.101(g) which is referenced below with emphasis added. A response from a "Senior Compliance Specialist" at the the WDC level and a response from a regional Senior Investigator Advisor that references WDC input meet the standard of 29 CFR in solving doubt about a matter of SCA interpretation. As has be repeated in this thread and threads that preceded it the matter of interpretation is viewed differently by others and that is their prerogative. I will however continue to subscribe to mine especially when USDOL, pursuant to their authority, has not disagreed with it. "29 CFR 4.101(g) It should not be assumed that the lack of discussion of a particular subject in this subpart indicates the adoption of any particular position by the Department of Labor with respect to such matter or to constitute an interpretation, practice, or enforcement policy. If doubt arises or a question exists, inquiries with respect to matters other than safety and health standards should be directed to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210, or any regional office of the Wage and Hour Division...."
  9. I am not asking for additional detail which in truth would help refine further response but rather offering strong advice. Contact a legal counsel that is both familiar with ESOP's and Federal government contracting as both business structure and how it affects Federal government contracting in the scheme of things can be very complicated, especially as it relates to existing contracts that a business holds.
  10. Joel you may find the below quote interesting.....Reference is https://www.gsa.gov/cdnstatic/SCHEDULE_56_-_ORDERING_GUIDE.pdf I won't vouch for its currency but your comment reminded me of this as an example. "10. How does GSA define "Construction", "Ancillary Repair & Alteration", and "Minor Construction"? Complex construction is not approved under GSA MAS contracts. Schedule 56 includes commercial products that may require services in conjunction with the purchase of the product. There are 3 basic types of services available:  Ancillary Service for functions such as set up, simple installation, training, etc.(excludes construction and services subject to the Service Contract Act)  Ancillary Repair and Alteration requiring minor construction (includes Davis Bacon and construction clauses)  Installation and Site Preparation requiring Construction, which is necessary, to install a Pre-Engineered or Prefabricated Building or Structure, (includes Davis Bacon and Construction Clauses). Ancillary Repair & Alteration SINs are available in conjunction with purchase of products that require minor construction to be installed properly, such as minor construction necessary to install a door or window, repair drywall, or paint a room. SIN categories are also available to provide installation and site prep requiring construction, services ordered in conjunction with purchase of products to be installed under the Schedule contract—i.e., a prefabricated building, solar energy system, roofing, generator, transformer, etc. Davis Bacon and Construction Clauses are not incorporated into Schedule 56 contracts offering installation and site preparation requiring construction and R&A. GSA negotiates fixed rates for services (rates include consideration of prevailing Davis Bacon wage rates). The applicable Davis Bacon wage determination is incorporated at the task order level, when place of performance has been determined."
  11. Haven't we all ☺️ “…I think ji20874 was right:…” “…I think ji20874 has given the OP good advice….” “…Once again, ji20874's advice to the OP not to freak out over the deobligation and just send an invoice has been proven to be sound. …”
  12. I believe adding in the definition of supply from FAR part 37 might be helpful too. FAR 37.101 in part "Service contract means a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply...." This is very pertinent and a response would help. Why? Depends. As Don has asked the answer might be mixed if you are asking with regard to application of labor laws. If the schedule provides for installation it would seem so. If it does not it still might be appropriate but the installation effort would be considered a "open market" item and as such FAR 8.402(f) would apply.
  13. I am not going to disagree based on the general information offered by the OP but in context of all of WIFCON I have a concern about quick answers. I will simply use this thread as an example. Two additional thoughts - the OP has never come back and with regard to quick answers I am singling no one out and adding myself to the list. With regard to this thread.....we know - T&M Awarded under a GSA PSS Schedule contract. "ODCs" that need to be billed. What are the ODCs? If ODC's are for the labor are not ODC's already included in the labor rate? A read of GSA contract practices do allow for travel, and possibly "Other Direct Costs". FAR and GSA FSS standards strongly suggest (example FAR 16.601 &12.207) that a T&M have a ceiling price. Could it be that the governments action of deobligation and the inferred "We still need roughly $170k that the government is taking back and not willing to allow us to bill against." is about a ceiling and not a simple action of fund management? I then took the thread on a journey regarding why a contractor might freak out, my bad. But I do wonder if advice to quit worrying and simply submit an invoice is sound as well. I read too much, and read in too much, and I am resolved after re-reading the thread that the first action of the contractor is not to submit an invoice but talk to the CO to find out what is going on and go from there as there could be a whole lot more buried in the original post. Off base, derailing the thread with this post, yes probably, but I was reminded of this recent thread as I read and re-read this thread. Great information in general was provided but was the issues for the OP really sorted out?
  14. Thanks Vern and as always I keep plowing until I find something. I am providing the following as an interesting read. I am well aware it is not on point but close as it relates to an IDIQ and task orders (construction however) and provides a discussion about a unilateral modification that simply deobligates money versus (in my words) a modification that deobligates money with intention to change the price of the contract. I found every thing in-between these topics to be interesting . https://www.cbca.gov/files/decisions/2016/LESTER_07-25-16_ 3912__SAFE_HAVEN_ENTERPRISES_LLC_V_DEPARTMENT_OF_STATE.pdf If I got the idea of a unilateral modification off track I apologize yet the case does seem to support one thought repeated in this thread. The contractor should communicate with the government to find out something that Joel has point out with regard to the OP , why is the government "not willing to allow us to bill against."
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