Voxx

Formerfed - you are hitting the nail on the head. IF the company responded, is no issue. It is when companies do not respond for whatever reason. HQ would like to have the money back to either spend on current year stuff (if current year funds) or to help resolve prior year shortages (versus using current year money). And then of course to eventually lead to closing out the contract. I am of the opinion that we try to contact the company and if there is no response within a certain period of time and several attempts, that some sort of unilateral mod can be done to remove the funds. The mod is not taking away the right of the vendor to seek compensation for something in the future but merely removes the unspent funds so the can be used. And yes, because of the volume of the work on our desks and the emphasis on getting awards done and not enough people, closeouts are a low priority. My organization works with hospitals so the emphasis is to get contracts awarded as they affect people/patients directly and not having things can jeopardize patient care. So we do know when things should be closed out it just doesn't always happen due to workload for new actions and mods to current actions. Just trying to see how other organizations have handled that situation.

As I am rereading some of the responses, it seems that some of you are just saying to just do an admin mod and pull the funds. Would you be leaving the quantities alone? IN my previous response concerning ambulance services, would you leave the quantity of 20,000 and just remove funding for 1000? technically leaving 1000 units unfunded.

ji20874 - when you mention administrative modifications to do this, are you not changing the terms and conditions of the contract? Which in commercial modifications are supposed to be bilateral. Are you suggesting to keep the unused quantities on the contract but remove the funds? The only situations where admin mods are used are when they deal with things like changing a line of accounting or changing the administrative office of the contract. Retreadfed - the contracts are usually FFP. They might be purchase orders, some might be TO or DOs, it can vary. Many of the supply contracts contain language such as 'not to exceed' and 'the Govt will only pay for what has been ordered'. Some cases can be made that contracts should be ID/IQs, and I can see the validity of that argument. As for services typically a contract calls for X amount of hours per year. For example you need a vendor to provide clerk services to fill a spot. The contract will call for 1920 hours of work (basically 8 hours a day for the year not counting holidays). Vendor employee misses some hours because they are sick, or something. Those hours are not filled and cannot be made up. There are allowances in the contract for missed hours because of reasons like Dr. appts and such. However at the end of the contract, there are still those hours on the contract that were not used. Formerfed - under what authority would you use to accomplish your removal of funds? A couple of other clarifications for y'all: When we would do a T4C, it would be a partial T4C (maybe that was obvious, maybe not). The T4C did not terminate the vendor's rights to make a claim in the future is they discovered an invoice hadn't been paid for example. The items and services we acquire are medical in nature so exact quantities are not always known. Consider, for example, a contract for ambulance services. FFP contract. For each transport, the vendor can bill for one unit. When the contract was created, based upon past history, 20,000 transports happen in a year. During the contract only 19,000 transports were billed because people were healthier that year. Vendor was already aware that the 20k transports was an average (solicitation mentioned it) and the contract mentions that the Government will only pay for services used. So now you have 1000 transports unused and funding to go along with them that you need to remove. Yes normally the COR would request a deob of unused items. But for whatever reason never did. Now after the contract PoP ended, we want to recover those unused funds from the contract. At this point the vendor is unresponsive to any communication. How do you get the funds off the contract? And yes I am fully aware that ideally this should happen within a few months after a contract has ended. The reality is it doesn't. We have end-users and CORs who do not request deobs. At this point we are just trying to clean up and close out contract actions. Generally because of the time that has passed, trying to do it without blame as usually the only blame is that the Govt didn't request the deob sooner.

OK I feel this is going beyond what I was originally trying to find out which was how does your office remove funds off of a contract after the delivery or PoP has ended AND where the vendor does not respond after a deob mod has been sent to them? But if it helps I'll add details that others have asked about. The funds or quantities that were not used/delivered are often remaining because either the Govt did not order all of the items or the vendor failed to work all of the required hours on the contract (open position, contractor employee missed work because of illness and there was no backfill). Joel - many of the contracts for supplies are based upon Not to Exceed and the Govt will only pay for items ordered. I'd say that the reasons for a contract to still have funds/quantities on it are about split between those two scenarios. For those that wonder why the Govt did not demand delivery of remaining supplies, it is simply because the Govt did not need any more of the item or it wouldn't make sense because there is a new contract in place to secure the items. As mentioned we have tried contacting the vendor to complete a bilateral modification. Often trying several different ways - email, phone, regular mail. No reply or response from the vendor. Sometimes the vendor is no longer in business. We used to use Termination for Convenience in these cases simply because by this time, we just want to remove the funds. And when I say 'by this time' the end date of the contract has been past by a year or more. Termination for Cause in my understanding is used in non-commercial acquisitions. Everything we do is commercial. Our T4C's are no cost. We could do a T4D but if the vendor is not at fault such as when we did not order all of the items, it doesn't make sense to say they defaulted. Unless C Culham, you are saying that because the vendor is not responding to the mod, they failed at managing their contract and use that as a reason to do a T4D. CPARs have already been written. ji20874 - I agree with your definition of when a contract is expired. Our policy people seem to believe otherwise.

ji20874, It would be most like choice (1) The contract is for 10 EA at $100/EA for a total price of $1,000, but the contractor only delivers 9 and invoices for $900. Whether for supplies or services, either the vendor did not perform all of the required hours of work or not all of the supplies were delivered for one reason or another. Quantities and funds both need to come off. I'll add a little more: most of these contracts are FFP. As for 'expired' - our policy people seem to believe that a contract is expired when the PoP ends or when all quantities have been used. My personal opinion is that a contract is 'expired' when all of the quantities have been used/delivered even if a PoP has ended (if it takes a T4C to do it, so be it). Basically, we wanted X amount of something in a certain timeframe, the vendor agreed to it and even though the PoP has ended, the vendor is still on the hook to provide the items or work. And to me, even though the PoP ended, the contract should still be 'alive' because there are items that have not been delivered or used. So in my mind, I should be allowed to do a T4C as all parties have not completed their ends of the agreement; they haven't delivered and we haven't paid. (I have previously asked Policy to define/explain their opinion of expired - they have been avoiding me/ducking the question). Oh in case you wonder why we used to use Termination for Convenience, instead of default, it was mostly for the convenience :) . As we maybe didn't need all of the items/hours of work required or there isn't a way for them to redo or perform the unused quantities. T4C was just a handy tool to cut the quantities down to what was used so that we could get the funds off and closeout the contract.

I want to pick y'alls brains regarding an issue we have in my organization regarding deobligations. Basically the situation is that a contract has ended. There is unused money/quantities on the contract. (For this, let's not worry about why there is as I do not think the reason matters at this point.) End-user submits a deob request to remove the unused funds from the contract. The bilateral mod is created and it is sent to the vendor for signature. The vendor doesn't reply. Why? Who knows. Doesn't matter really as the problem remains of the unused funds are still obligated onto the contract. Mind you this is a commercial contract. Changes to the terms of the contract are supposed to be bilateral. I am wondering how any of you deal with a situation like this. Over the years our office has done the following: 1) make repeated attempts to contact the vendor (to include certified mail) and if no response, change it to a unilateral mod (still using 52.212-4(c) Changes) and document that we attempted contact, OR, 2) Did a Termination for Convenience (52.212-4(l) Termination for the Government's Convenience) , removed any Release of Claims on the mod and unilaterally removed funds/quantities. Recently our Policy people have said we can't do it either way. Because changes to the terms and conditions of the contract require bilateral mods and they say you can't do a T4C on an expired contract. So we asked how should we do it. Their response was that they were looking into it. It's been a couple of months and no solution from them. Surely my organization can't be the only one that has this issue. Have any of you had this situation regarding unused funds on an expired contract and how do you resolve it? (yes we are aware of the FAR requirements of when contracts should be closed out - let just say too much work and not enough people and close outs get pushed off.) I just want to get some view points/thoughts from people outside of my organization and maybe give my policy people some possible solutions to look at. A side debate is when is a contract really expired. When the POP ends or when all of the items/hours are delivered/completed.

+1

I love it even more when they make changes like this at the end of the FY. Because I am sure no one is busy at this time of year.

From my understanding of what mrbatesville is saying, he is being told he needs to check 2 boxes from parts 13A, 13B, 13C and 13D. 13E is not one of his two checks he is asking about (see his second post).

Like Velhammer, I am not sure the vendor has any responsibility to inform you about a Bona Fide need, if they even understand/know about this rule. I feel many do not know how that works or if they do, they assume that we have already determined the need. If they know of the rule and they think that it would be an actual Bona Fide need in the following FY, they should probably mention it because it could screw them up if there is an issue.

Boof, How long will it take them to 'find' these lost documents. I wonder if they will keep needing additional time all the way up until you fund them no more, then poof they have found the missing documents. So part of it would be how much is it currently costing you and how much are you willing to keep paying this. Do you even have an idea of what their progress is on what they are doing to finish this contract off? Is there an end in sight?

I am curious to know if the statement of work made any mention of the possibility of this change of location (CONUS, OCONUS, non-warzone, warzone)

I have to agree with MBrown in his second point. Satisfactory should just be that the item or service was delivered as agreed to in the contract. Any higher rating should have commentary demonstrating what the contractor did that made its performance so good. I believe all vendors start at a satisfactory rating and it is for them to do better or worse. Unsatisfactory should mean that you failed to meet certain conditions in the contract. Any ratings higher should clearly show the actions were a benefit to the Govt./contract. The fact that your company still delivered the item/service at the specified price means that you satisfactorily met the contract requirement. Besides you said it was a FFP contract so the risk was to your company to deliver the items at that cost.

Seeing that report, makes me glad some heads are rolling. This wasn't just one or two mistakes and a minor oversight. I see a bunch of things done wrong. And by the agency that is supposed to lead the way in govt procurement. Should she have had to resign? I don't know. Depends on how much she was involved in the the whole process. But she is either guilty in her own mind or was pressured to take one for the agency. I am surprised I haven't heard about $500 hammers, $7000 coffee makers and toilet seats from people yet. (yes I know the stories behind those and how they came to be). But to spend like this during this economy and recent budgets (well there haven't been any real budgets in a while) while ignoring basic rules is insane. It is stuff like this that gives us all a bad rep and perpetuate the idea that the govt spends recklessly.

Sorry Vern but I saw four questions and wanted to give more than a yes, no, maybe, yes to respond. I personally appreciate other's thoughts on a question that may offer another way or idea. The same goes that if I mentioned an incorrect thought, I appreciate it if someone points that out since it is possible my office is doing something incorrectly or I have misunderstood something.

Is this just for 10,000 units at .03? I assume those numbers are just examples or I would just say to have the activity use their GPC is that would be only $300. But if it were more, my choice would be an ID/IQ. You set a minimum and maximum and issue task orders off of them. So I would agree with dcarver's assessment as well. With the ID/IQ you can still have a fixed price. As I mentioned in a previous post, I have had many contracts though where we issued an FFP for 100 items. We might, for whatever reason, have only ordered 90. Technically we would still owe the vendor the money for the other ten items, but we have usually just completed a bilateral mod to lower the total to match what we ordered. Another option depending upon your needs might be a BPA.

Overall I enjoy it. Granted there are times I want to bang my head against the desk. I also enjoy trying to find new solutions. Some of my customers are great to work with. Others are dumber than rocks. The parts I like are when I get a job done and it works in the way it was intended. The parts that get me the most are when new policies are put out that make our job more cumbersome. And odds are those policies are put out because some denderhead somewhere screwed things up royaly and to make sure no one else does this we get new policies. (I swear that is the case). But being able to get a contract done correctly is good. Even better when the customer thinks you pulled a miracle to get it done in time. I work in medical contracting and find it interesting to learn about new medical devices and such and knowing that these things are used to put our guys back together. And that I have helped to do that. There will be days where you will curse the FAR to no end but there are many good days too. I enjoy my office mates to. Most are easy to get along with and friendly people. I know of another office near me where other that have worked there feel like it is everyone for themselves. Hopefully you have an office more like mine rather than the latter.

I am reading the series "A song of Fire and Ice" better know to many as A Game of Thrones which is the first book. Just finished the second book, A Clash of Kings and have started the third book, A Storm of Swords. Excellent series so far. Worth noting the HBO series, A Game of Thrones, is based upon the book and from what I have seen of season one follows the book very closely.

The DAU classes do help to a degree. Unfortunately the classes I have been to do not do a good job in explaining "how to" for both commercial and non-commercial contracts. The classes were geared, imo, towards non-commercial. Whereas my office does 99% commercial. But if you are able to check out some of CLC classes in DAU. many of these will give you information on various Acts that you will need to understand and on the basic concepts of contracting. Otherwise, I have learned the best from my co-workers, other specialists and KOs (Army version of a Contract Officer). My KO's have been great. They freely allow me to ask questions, listen to my reasonings and challenge me to find answers. Some other people I have known have dealt with KOs that are not helpful or only say "do it". So I would suggest trying to find those people in your office that are willing to explain why and listen to your questions. If possible team up with someone to watch over their shoulder to see what they do. Hopefully your office does this already. Another suggestion would be to borrow a contract (the whole file) and look through it. See what is in there. Read the contract to include the clauses. As for feeling comfortable, even after several years, while I feel fairly comfortable in some areas there are many other areas that I do not normally deal with and so have little experience with. This forum can contain good information and it is an interesting way to hear how other agencies work and their solutions (and errors ) Learning this field definately takes time. It doesn't help that the rules seem to change just when you figured out the rule. The one thing that will always stay with me is what the head of my contracting agency told me during an interview: No two contracts are ever the same.

Oops meant title 48 of CFR or title 41 USC. In any case I wasn't really asking just thinking along the lines of the US Constitution reason that was mentioned before.

Well construction is out of my normal realm so I won't comment more on which box to be checked and what authority. But the form still seems to say 'Check One'. I suppose you could check more than one but I don't see why you would need to check more than one as long as you can list one 'authority'.

I didn't say I was using 52.212-4(c ) to make unilateral changes. For unilateral changes I just check box B (which claims that 43.103(b ) is the authority. I do usually use box C and place 52.212-4(c ) for bilateral changes. Re-read post 22 and tell me where I said I was using 52.212-4(c ) for unilateral changes. I was simply saying that if you look at 43.103, it doesn't cite another authority but merely seems to say when you use a unilateral or bilateral mod. Whereas 52.212-4(c ) points back to 12.301 which does state a public law in para (a ). I wonder if anyone ever put Title 48 USC as the authority?

Why would you need to check more than one box (I can only assume that they are telling you two of the first four items need to be checked)? Even the form says to "check one". Unless they are also saying that you need to check one of the four AND the part below it on whether the vendor needs to sign it or not. But what are your people saying as a reason for needing two boxes checked? In my office we check one of the four in section 13 PLUS for E. we mark whether the vendor has to sign or not.

My only response would that the conditions and terms of the contract have not changed and I don't know where it says I can't do a unilateral mod to change an LOA or something that does not affect the conditions of the contract. If the terms and or conditions of the contract were changed then yes a bilateral mod would need to be completed.

On the SF30 in block 13b for unilateral changes, it states or suggests the authority is FAR 43.103(. However as someone else pointed out, when you read 43.103(b ) it simply seems to be a definition or a description not an actual authority. For bilateral mods, I usually use 52.212-4(c ) as my authority since it actually talks about changes and is IN the contract. Technically I suppose I could go further and cite FAR 12.301 which actually lists an actual authority/law or even list the law. But I believe listing 52.212-4(c ) is good enough. Though like I said 43.103(b ) doesn't seem like an authority to me. But if I do an unilateral change I simply check block b and go on. But these changes would just be for items that do not affect the contractor in any way---like a change of pay station or LOA change.