C Culham

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.

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.

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.

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.

"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.

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.

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."

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.

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.

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

Your most recent post is why I can not. Moreover in Beginners Forum is a perfect place after the long road of the three threads. First and foremost you attribute words to me that are not true and never written by me. Your penchant and admission to discredit me with untrue statements continues regardless of what you might further write. You also take editorial freedom in representing what was written to continue a one-sided biased view that you want others to believe of me. And you attacked my very being (mental state) with no first hand knowledge. As to the matter of interviews I will simply repeat the informed interpretation of the DOL WH that I received - Interviews regarding SCA by other than DOL, while not expected by DOL, are not prohibited. To this I will add that in the case of a actions by a contractor that suggest egregious violations of SCA it is my position that a CO's responsibility will guide whether they would do interviews or not. To Beginners the foregoing is a clear demonstration of the leadership that is often noted in WIFCON. That is one can provide all the references and research they want to support a position under the FAR guiding principles but in the end it won't matter. What will be done instead is whatever is demanded and facts are lost. Not unlike the entirety of the three threads of this discussion it narrows to a battle of personalities where leadership bends towards discredit that may be detrimental to a career. Luckily I have no fear of that but my professionalism and person has been challenged with untruths and twisted facts and I will not accept it for a minute. On this I am asking that this thread be closed.

Let me confer with counsel first. I might be compelled to include a disclaimer just as I would in a private message to you. Not a duck and dive any private message to me will be responded to. Additionally I am out of town as I posted so it would not be until next week. The inferences of trust in this is tread are becoming another mind boggling affair! Wow!

I have given you my position. I trust in the response. You? What ever you want. I will say all references and the discussion gave me confidence. Don't like it then you do it on your own. Get back to me when you do I will be waiting. Thank you.

Possibly in the context of SCA statute and regulation. A conclusion not inconsistent with our discussion regarding interviews.

Not worried about right or wrong but my thoughts. T4D has many tentacles, first to mind is partial, the settlement stuff, and on. A cancellation and allowed government action per statute reads more fatal to me. DOL hearing records would clarify I am sure.

In attempting to respond to Vern Edwards through the message system on Forum I was unable to as I think the glitch has carried to it as well. Please let me know when corrected so I can be timely to Vern's request he posted in the SCA discussion of What Happened! Thank you! @Vern Edwards so you are aware.

His badge! Seriously what did you need as a CO to verify authority of GAO. IG, FBI or other investigative officer to trust them. I took away my smiley face but I remain amazed at your pursuit of questioning a direct response I got in a letter written to the Administrstor of DOL WH.

I used it as a comparative example. In my practice as a CO for USDA, NRCS & Forest Service; USACE; HHS,PHS,IHS; and SBA I did as noted. To each their own.

You bet I am based on it being a direct response to a letter I wrote asking for an interpretation. Come on Retreadfed why wouldn't I?

Well you asked two so which one? Wait never mind I won't look for flaws I will be fair. Its not yes or no and you know it. I would need to do extensive DOL case law review but my honest inclination is it would not be a T4D but a cancellation appealable to DOL. Maybe a mixed bag T4D/Cacellation?? Anyways I know you have the answer so please share otherwise you would not of asked. This is request I hope you can honor! As I noted I would share. Coming your way soon. I hope you don't attempt to discredit him as you have stated you want to do with me! More? Keep them coming!

I and 2....3 is discreation left to the CO principles of good faith and fair dealing. Me I did back when as I felt a must sometimes to protect the best interest of the employee(s) and the Government.

It's not bull Vern. You read my posts to find even the most subtle flaw and I know it. Sorted all my posts will clearly show that I exclaimed I could not find case law that prohibited an agency from doing interviews. My admission that case law would trump anything. Therefore, absent case law DOL interpretation is it. I believe the SCA and its implementing regulations support my view.

"The Department of Labor (and not the contracting agencies) has the primary and final authority and responsibility for administering and interpreting the Act, including making determinations of coverage." 29 CFR 4.101 As I said DOL WH has given me an interpretation and until a court via case law provides that interviews are prohibited DOL WH is the authority. So to be clear Your statement is not a clear interpretation of my position and comments. One more time...but said with your words.... So, per what regulation does DOL have sole authority to interpret the SCA? 29 CFR 4.101. Or do you mean that DOL is the only federal agency with authority to conduct investigations, hold hearings, and make SCA enforcement decisions, INTERPRET, (YES)but that it can call on agencies to assist? NOT ONLY CALL UPON BUT AGENCIES HAVE AUTHORITY TO CANCEL A CONTRACT. SCA Section 3 and 29 CFR 4.190 "(a) As provided in section 3 of the Act, where a violation is found of any contract stipulation, the contract is subject upon written notice to cancellation by the contracting agency, whereupon the United States may enter into other contracts or arrangements for the completion of the original contract, charging any additional cost to the original contractor."

Per regulation DOL has the sole authority to interpret SCA law so I am going with DOL on law and regulation. As to a contract I am going with my assertion until contract interpretation case law specific to a matter of a SCA interview proves otherwise because up to now I can not find such case law. Thanks. Who knows something in writing might come as the quick turnaround of a phone call was a surprise.

Please see my post in "What Happened" Forum subject area.