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C Culham

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  1. 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...."
  2. 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.
  3. 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."
  4. 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. …”
  5. 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.
  6. 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?
  7. 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."
  8. I see it differently. A dispute route is taken when a contractor believes a substantive right of the contract has been breached by the government. What results is a determination of whether it has or has not. Yes the "depends" of such issues. I did not say any specific individual did. I apologize if my post reads as such. It was intended as a general comment of what I have experienced. Hang "administrative change" on a mod to imply no problem. Specific to ji20874 my initial post was intended and in part stated a more proactive approach to ensure a substantive right was not being taken away. Nothing should be taken for granted when it is unclear yet in writing.
  9. Here is a "try" on my part borrowing from your post. The agency refuses to pay the invoice on the basis that there is no money as somebody made them de-obligate it, regardless of the ability of the contractor to prove that they are appropriate costs of the T&M order. While you have provided a great example of the "government" being liable for the monies, if in fact legit costs, who does the contractor then turn to. CBCA or GSA noting that it is well settled in case law that contract is with the government and not a particular agency. In the end after scratching and clawing to get their money through whatever venue will finally agree to paying appropriate costs it is my view that the "substantive rights" of the contractor to be paid timely have been violated. Change the paying office, change appropriation data, but taking away money with no explanation implies a substantive right has been removed. The OP has expressed a concern and rightly so until they are satisfied that their substantive rights have not been violated. While I appreciate your information about obligation I really do wonder that if it is right minded thinking for a person holding a government contract and that receives a unilateral modification to remove all of its monies that they should simply sit back say no problem I know I will get the money that I can prove was a cost to the contract sometime. The need for case law seems to suggest otherwise.
  10. As you can see it was not me that started the thread down the trail of a GSA FSS Schedule contract not applying to an order under the the GSA FSS Contract. You well know that the intent of me providing the reference was not adding clauses but whether the GSA FSS Contract clauses apply to an order. Ergo my emphasis on one paragraph of the reference that being paragraph No. 1. Exactly and thank you for clarifying but I ask with all sincerity please do not cast my comments in the light that I was the one to take the thread off track. I agree and specific to the FAR an administrative change is defined. Reference FAR 43.101. My point from the beginning that many place a comment like the following in the category of "administrative change". Actually it depends. Edwards has added great context to the depends but a modification to a contract that de-obligates funds without context of what the de-obligation means might in fact affect the substantive rights of the parties, in this case the contractor. My acknowledged agreement that we do not know and it seems that the OP does not know or would not be concerned.
  11. Well some will say that the following is not authoritative on the matter of GSA FSS Schedule Contract clauses not extending to an order place under the GSA FSS contract but I really doubt that GSA would allow misguided information to reside on a webpage they manage. "1. Here is how to find clauses already in the Schedule contracts. That's important because you want to ensure your order doesn't conflict with the Schedule contract terms. (You also don't need to put clauses in your order that are already in the Schedule contract.)" Ref. https://interact.gsa.gov/wiki/adding-provisionsclauses-rfqs
  12. I would agree as the intent of the government is not known at least based on information shared by the OP. However I do disagree that our discussion is pointless with regard to specific statements made by @formerfed that is clarified as..... I read all statements combined to suggest that 552.212-4 does not apply to task orders issued under the contract and I believe that such a suggestion is inconsistent with 52.216-18 and how it has be interpreted. Without getting to details of case law etc. it makes no sense and is exactly why task orders are issued with no terms and conditions such as 552.212-4 in a task order as the terms of the parent FSS contract extend to the task order. Remember such things as payments, labor laws, T4c, T4C and many more contained in the parent FSS that are not included in a task order yet apply as the parent FSS contract extends all to the task order. Now @formerfedsuggests there are opinions (case law?) that suggests otherwise and I am intrigued by the suggestion as it is a view I have never heard nor seen.
  13. So please explain your thoughts and application of 52.216-18 a clause that resides in PSS Scedule Contracts. Specifically tell me your interpretation of paragraph (b).
  14. GSA PSS Schedule Contract holds 552.212-4 and provides changes to terms and conditions must be bilateral. If the funding withdrawal on an order under the contract is with intention to be forever and no funding will ever be put back on the order a substantive right of the contactor would be done unilateral and it cannot be so per 552.212-4. I am simply recommending the OP find out. I would never guess as a contractor why I got a unilateral mod, I would find out.
  15. Like usual without all the full details there seems to lots of questions regarding the government approach expressed in the RFQ, how it relates to the parent contract, etc. Two additional thoughts have come to mind as I follow... How the positions line up with the SCA Directory of Occupations? Regardless of what the government names a labor category if the required tasks are equal to a SCA category might be a leg up to argue the OT matter as well. The conformance process might be an avenue as well. Described on a wage determination and in FAR 22. Offered without additional detail, just as thoughts if the OP has not considered.
  16. If the GSA PSS contract is a commercial item contract some may argue that a unilateral modification is not permissible if it effects your substantive rights under the contract. A deobligation of funds may do that if there is no intent to replace the funds. If I were a contractor I would seek a guarantee that funds will be available for legitimate billable contract costs in light of an attempted unilateral mod. My comment sort of lines up with ji20874 however I believe I am advocating a proactive approach to assure that the government intention is to pay again with "if" the charges are legitimate costs.
  17. Should it not be a more refined view? That the winning vendor cannot pay required wages at the labor hour rate proposed/awarded along with the side note that OT is required by statute and provide the substance to so prove. Yes but then there is this..... Or in other words and borrowing from other statements in the thread by Salus the CO has made the determination of applicability of SCA (no wage determination in contract?).....and then there is this 22.1015 Discovery of errors by the Department of Labor. If the Department of Labor discovers and determines, whether before or after a contract award, that a contracting officer made an erroneous determination that the Service Contract Labor Standards statute did not apply to a particular acquisition or failed to include an appropriate wage determination in a covered contract, the contracting officer, within 30 days of notification by the Department of Labor, shall include in the contract the clause at 52.222-41 and any applicable wage determination issued by the Administrator. If the contract is subject to 41 U.S.C. 6707(c), the Administrator may require retroactive application of that wage determination. The contracting officer shall equitably adjust the contract price to reflect any changed cost of performance resulting from incorporating a wage determination or revision. By my read of the thread a crazy situation where in the end the awarded contractor would have to pay OT and be saved rate wise with the equitable adjustment noted above. For me Salus has learned some lessons for the future but in the case of the instant procurement discussed herein it is as they say, water under the bridge.
  18. I I have attempted about 10 different responses and then I came to this conclusion. Is it really your problem to solve? If the proposed modification is due to change ordered by the government at some point you are going to have the opportunity to seek a equitable remedy. Your basic comment in this case would be hey government time is money so you all need to get it together so we can move forward. If the proposed modification is just something your and/or the customer has proposed as a nice to have then it seems the same conclusion of sorts. Come on government time is money so lets either get this modification done or move forward without it.
  19. As I caught up on posts a thought came to me. A contractor who wins a competition can be well served by asking for a debrief as well. Helps know what the contractor did right to win. Not saying that in the case of this thread and the particular agency that much might be learned but might be a helpful strategy overall.
  20. "Always" maybe but sometimes not so foolish and ji20874 has given you some basic tenants that would help you adopt a sensible approach. An approach that you would (should) solidify in your company policy and procedures. I say this as FAR citations have been noted, and while they are guiding ideals that might get passed along to a prime in a government contract, FAR 52.244-5, DFARs 252.244-7001 by example, that send you towards adopting FAR principles in general, your own P&P becomes your guide. Noting as a backdrop to mention something that hit me in my read of your scenario/question. It seems to point to a "price" only when in truth the government ideal (even an extent in sealed bid) for selecting a contractors price as fair and reasonable gives consideration to other stuff such as quality, delivery, technical capabilities, and financial capabilities. A couple of the latter it would seem probably come into play with regard to dueling manufacturer against multiple distributors. Maybe not always okay as addressed in your policy and procedures but can be is the conclusion from my view.
  21. Long time ago. If talking BPA's done outside of GSA FSS then using the ideals of FAR 13.303-6, especially (b)(2), is the spring board for making an informed decision on increasing BPA limitations. Or stated another way, with the change you might find out that your potential pool of those to put on a BPA could possibly change. Not required but that is what quickly comes to mind for me. Otherwise as you note the change on limitation could just be done without a J&A unless your agency has more constricting policy.
  22. In following this thread I had this reoccurring thought. No doubt the OP probably got a debriefing that the guiding principles of the FAR call for but I have wondered based on what has been posted and likewise wondered if the ensuing comments beyond found in the thread give consideration to a appropriate debrief. It seems, but I could be wrong, that the debrief was post award. Noting this I just thought I would post the important part of FAR 15.506 and emphasized something that relates to the LH contract model. "(d) At a minimum, the debriefing information shall include- (1) The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable; (2) The overall evaluated cost or price (including unit prices) and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror; (3) The overall ranking of all offerors, when any ranking was developed by the agency during the source selection; (4) A summary of the rationale for award; (5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and (6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed. (e) The debriefing shall not include point-by-point comparisons of the debriefed offeror’s proposal with those of other offerors. Moreover, the debriefing shall not reveal any information prohibited from disclosure by 24.202 or exempt from release under the Freedom of Information Act (5 U.S.C.552) including- (1) Trade secrets; (2) Privileged or confidential manufacturing processes and techniques; (3) Commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information; and (4) The names of individuals providing reference information about an offeror’s past performance."
  23. Interesting thought that reality would confirm but seems at odds with the FAR guiding principles for the government at least that a contract award is to be at fair and reasonable prices. Seems it applies to a letter "contract". As is the case here the concern sees to be whether modification to definititize is fair and reasonable.
  24. Not quite on point and spinning off of other comments already made, my thoughts.... Definitizing a letter contract by my experience is typically considered to be a modification to the letter contract. This thought relates to @here_2_helpcomments. With regard to the prime contract under which the letter contract was issued as a subcontract consider..... FAR 44.201-1(b); and FAR 52.244-2, Subcontracts, that I believe flows down to subcontracts.
  25. Or after award to the DOL......FAR 22.1015. Further I could be off base here but SCA is not the determining statute for OT. The Contract Work Hours and Safety Standards Act and FLSA are. Minor after the fact clarification that may help in the future noting the discussion is with regard to an IDIQ and its processes. https://www.dol.gov/agencies/whd/government-contracts/cwhssa https://www.dol.gov/agencies/whd/overtime
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