ji20874

The requirements for post-award notice of contract actions is in FAR 5.301( a ). The exceptions are in FAR 5.301( b ). What say ye?

Why are we talking about the Government allowing it or not allowing it? Can't a contractor do it without Government permission? Does the Government set hours for individual contractor employees, or only require a contractor to provide coverage 5x8? If a contract requires a warm body at a work station 5x8, I would suggest the contractor already has flexibility to offer flexible work hours to is employees -- if it wants to offer an eight-nines-and-an-eight schedule to one of its employees, it can -- the employee does eight hours of contract work and one hour of non-contract work -- on that employee's AWS, the contractor provides a substitute employee to do eight hours of contract work. Oh, I forgot, we often approach contracts like we're hiring employees... ;-)

Yes, you can negotiate anything. See http://www.gsa.gov/MASSTUDENT/section2_9.html and https://interact.gsa.gov/sites/default/files/f-thinksimplified-dec2011.doc.

I agree that the change is probably ill advised. If the contract says 5 days 8 hour days 40 hour week, it says so for a reason -- has anything changed on the side of the Government's requirement? Has the contractor requested a contract change? It is likely the contractor can already allow its employees flexible hours -- we usually don't care how the contractor manages its employees. If the contract requirement is for a warm body to be at a receiptionist's desk 5 days 8 hour days 40 hour week, the contractor can provide one employee for the morning hours and another employee for the afternoon hours. In my earlier question, I asked, "Does your contract specify working hours?" I probably should have asked, Does your contract specify working hours for individual contractor employees? But if there is no change in the Government requirement, and no request for change from the contractor, then there is no reason to do anything at all.

You are thinking down the wrong path. There is no gratuity here. Because of new work, you want to re-negotiate the estimated cost (to raise it) and the fixed fee (to lower it). I don't see a problem if that it what it is. I do see a problem with raising all sorts of poison pill questions.

Does your contract specify working hours?

Are you talking about performance-based payments under FAR Subpart 32.10 Performance-Based Payments? Or, in other words, is the contract clause at FAR 52.232-32 Performance-Based Payments in the contract? If YES, see FAR 32.1004(a)(1). There, you will read the following sentence: The signing of contracts or modifications, the exercise of options, the passage of time, or other such occurrences do not represent meaningful efforts or actions and shall not be identified as events or criteria for performance-based payments. You will discern that the FAR sentence differs from what was presented to you. If NO, well, I can't help you any further. But you can ask whomever presented the statement as factual for the citation, and go from there.

Because a contracting office's blanket decision to terminate/suspend/stop work/and so forth all of its already-funded contracts solely because the Congress hadn't timely passed an annual appropriations bill would appear to me to be an improvident decision. The original poster's posting made me wonder if any contracting officers were similarly thinking that contracts were automatically turned off on Oct. 1 (an error, in my opinion), and now needed to be turned on on Oct. 17.

Yes, a preliminary phone call would make very good sense.

What was the "specific/official manner" by which you excused your contractors from performance during the shutdown? The answer to this question will drive the answer to your question. For example, if a stop work order was issued under the contract clause at FAR 52.242-15, well, that clause will tell you how to un-do the stop work order (it's called canceling the stop work order). Some other manner for excusing/stopping/suspending performance? However it was done, that will also tell you how it should be undone. (I really, really hope Government agencies didn't widely issue stop work orders on Oct. 1! But if they did, they will need to cancel them.) If you didn't excuse your contractors from performance at the beginning of the shutdown, but your contractors took it upon themselves to stop work, the contracting officer can order the contractor to fulfill its obligations under the contract -- I would purposefully avoid using words such as authorized or ordered to resume work ( would specifically avoid using the word "resume"). CO or COR? Well, it doesn't make much difference who does it -- my concern is not accidentally or implicitly forgiving the non-performance in the process of getting the work underway again.

Vern, you're right! I erred by leading you (and maybe other WIFCON readers?) to believe I was asserting that an absolute and final Government failure to pay could not be a breach of contract. I had some expectation that WIFCON readers would read what I wrote within the context of the original posting, meaning a circumstance of the Government not making an invoice payment to a contractor during the period of the temporary partial Government shutdown. You wrote, "It might be that the Government's inability to pay for deliveries or say when it could pay is the basis for an excusable delay. We were in uncharted territory with this shutdown. Show cause would have been hasty." I agree that we're in uncharted waters here, but I disagree a show cause would have been hasty if a contractor had declared its intention to stop delivering commodities because of a missed payment during the temporary partial Government shutdown. In such a case, a show cause notice would have been an invitation for the contractor to make its excusable delay argument -- that's the purpose of a show cause notice, to invite the contractor to make its case or allow the contractor to correct the Government's mis-understanding of its intentions. A well-timed and well-written show cause notice (not a cure notice) could be a very prudent step for a contracting officer to take during a period of some uncertainty where a contractor had declared its intention to stop delivering commodities because of a missed payment during the temporary partial Government shutdown, as suggested in the original posting. But that's my opinion, offered to the original poster in a spirit of helpfulness among contracting professionals that I like to see on WIFCON. I'm glad it's over, too.

Okay, I recommend a careful reading of DFARS Subpart 227.71 and .72 (the DoD supplement to FAR 27.4). No one here can definitively answer your question. We don't know if you're talking about already-produced data or data that will be produced under the new contract -- or whether you're dealing with a special or existing work -- whether performance is inside the US or outside -- whether the government agency is seeking unlimited rights or something less than that -- and so forth and so on. Your answer will be found through a careful reading of DFARS Subpart 227.71 and .72. Maybe you don't need a contract clause, but only a license agreement? Based on your reading of DFARS Subpart 227.71 and .72 and your knowledge of the circumstances of your contract, you will be able to choose from the following clauses-- 252.227-7000 Non-Estoppel. 252.227-7001 Release of Past Infringement. 252.227-7002 Readjustment of Payments. 252.227-7003 Termination. 252.227-7004 License Grant. 252.227-7005 License Term. 252.227-7006 License Grant---Running Royalty. 252.227-7007 License Term--Running Royalty. 252.227-7008 Computation of Royalties. 252.227-7009 Reporting and Payment of Royalties. 252.227-7010 License to Other Government Agencies. 252.227-7011 Assignments. 252.227-7012 Patent License and Release Contract. 252.227-7013 Rights in Technical Data--Noncommercial Items. 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation. 252.227-7015 Technical Data--Commercial Items. 252.227-7016 Rights in Bid or Proposal Information. 252.227-7017 Identification and Assertion of Use, Release, or Disclosure Restrictions. 252.227-7018 Rights in Noncommercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program. 252.227-7019 Validation of Asserted Restrictions--Computer Software. 252.227-7020 Rights in Special Works. 252.227-7021 Rights in Data--Existing Works. 252.227-7022 Government Rights (Unlimited). 252.227-7023 Drawings and Other Data to Become Property of Government. 252.227-7024 Notice and Approval of Restricted Designs. 252.227-7025 Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends. 252.227-7026 Deferred Delivery of Technical Data or Computer Software. 252.227-7027 Deferred Ordering of Technical Data or Computer Software. 252.227-7028 Technical Data or Computer Software Previously Delivered to the Government. 252.227-7030 Technical Data--Withholding of Payment. 252.227-7032 Rights in Technical Data and Computer Software (Foreign). 252.227-7033 Rights in Shop Drawings. 252.227-7037 Validation of Restrictive Markings on Technical Data. 252.227-7038 Patent Rights—Ownership by the Contractor (Large Business). 252.227-7039 Patents--Reporting of Subject Inventions.

FOR NON-CONSTRUCTION CONTRACTS: I would use 13.106-1( b ), because the brand-name portion is under the SAT. If the brand-name portion was over the SAT, then I would use 6.302-1. I would choose this because of the underlying premise that the brand-name approval is always based only on the brand-name portion of the overall acquisition as shown in FAR Part 6, 8, and 13, and 16 as mentioned above. Even 13.501( a )( 2 ) captures this premise. But for your case, 13.106-1( b )( 1 )( ii )'s last sentence reads, "The documentation should state it is covering only the portion of the acquisition which is brand-name." I don't think I would send a -1 J&A to a HCA or SPE if the acquisition itself is F&OC (or F&OC after exclusion of sources) but the specification includes $127K in brand-name requirements. FOR CONSTRUCTION CONTRACTS: But, if your specifications say something like "brand name or approved equal" (the customary wording in a construction specification), then you don't need any brand-name justification at all. In fact, even if your specifications don't say "or equal," the clause at FAR 52.236-5 Material and Workmanship might cover you -- maybe you don't need any justification at all, period. In para. (a), "References in the specifications to equipment, material, articles, or patented processes by trade name, make, or catalog number, shall be regarded as establishing a standard of quality and shall not be construed as limiting competition." How about that? This forces you to ask the question -- are you really establishing a brand-name requirement as an absolute, or are you establishing a brand-name as a standard of quality where you might consider other solutions as part of the post-award submittals process? I don't know if I have ever seen a construction specification that fully conformed to FAR 11.104 or 11.105, but I have seen robust use of the 52.236-5 clause.

Did you really follow FAR 6.302-1( c )? See ( c )( 1 )( ii )( A ). The brand-name justification is not based on the aggregate value of the acquisition, just on the value of the brand-name portion of the acquisition. This philosophy also manifests itself in FAR 8.405-6( b )( 4 ) for schedule orders and 16.505( a )( 4 )( iii )( B ) for task and delivery orders and 13.106-1( b )( 1 )( ii ) for simplified acquisitions.

I recommend a careful reading of FAR Subpart 27.4, Rights in Data and Copyrights.

Vern, A poster comes here, and he or she asks a general question. Other posters (like me) give general answers. My answer was a good answer, and I’m satisfied with it. All of your questions go beyond the original poster's situation and probably won't be helpful to him or her. But I will add one more thought for the original poster's benefit, from the Treasury's Prompt Payment FAQs website (http://fms.treas.gov/prompt/questions.html#noncomp): Q34: What should a vendor do if an agency fails to pay interest required by the Prompt Payment Act? A34: If an agency fails to pay interest required by the Prompt Payment Act, the vendor should consult with its legal counsel to determine its remedies under the Prompt Payment Act (31 U.S.C. § 3901 et seq.) and other applicable laws. But if you can answer the original poster’s question, please do so. We will all benefit from the discussion. Don, I have to leave the sovereign acts doctrine to the lawyers – it isn’t incorporated into the text of our federal government contracts. But that question also goes beyond the original poster’s situation, which is focused on what he or she should do in this immediate circumstance when paying offices are closed. My answer is that contractors still have an obligation to perform notwithstanding the temporary closure of the payment offices. I tend to believe that contractors will receive interest payments -- I haven't heard any executive branch officials talking about the sovereign acts doctrine as an excuse to avoid interest payments. A contractor who has not received a timely payment can file a claim under the Disputes clause for the payment. Likely, the claim will be denied because of the prompt payment clause promise of an interest penalty payment as the remedy for late payment, but if the contractor wants to make an argument about Government breach like Vern is suggesting, it seems it must first at least file a claim for payment and have it denied. I suppose that the partial Government shutdown will be resolved before the sixty day period for answering a claim arrives. Even so, the Disputes clause says the contractor “shall proceed diligently with performance of this contract, pending final resolution of any . . . .”

You're a government employee? It sounds like the payment office closure is your only problem? Your contractors must perform their contracts and make their deliveries, regardless of the payment office closure. The Government's obligation to make payment is governed by the contract. Generally, a Government failure to make invoice payments is not a breach of the contract, and the parties have already agreed that the sole remedy for late payment is the payment of interest. Read the prompt payment clause of your contracts and see if this isn't so. Don't terminate and re-purchase -- just require your contractors to perform their contracts -- and if Government will perform, too -- if the Government makes payments after the promised date, well, it promises to pay interest. Does this sound harsh? It isn't intended to be. It's just a matter of reasonably enforcing your contracts. If any of your contractors is asserting that it will not perform until payment occurs, you might send it a show cause notice for anticipatory repudiation of its contract obligations and then terminate for default if it doesn't change their tune. If that makes a contractor call its congressman, good. The Government meets its obligation under the contract when it pays or, if it pays late, pays with interest. That's the bargain the contractor agreed to. That's fair.

C Culham asks a good question -- who will sign the contract? Probably not a GS-1102 contracting officer -- he or she is limited to the FAR and agency supplements. The FAR won't apply -- there is no expenditure of appropriated funds. A bailment agreement might be a possibility -- a bailment for the mutual benefit of both parties -- the bailor benefits by getting the feedback and the bailee benefits by getting free use of the chattel. Would this be seen as augmentation of an agency's appropriation? I don't know. Should Government employees be using their official duty time to be evaluating private sector products? I don't know. Who would be providing the feedback -- the agency as an agency or the employee in a personal capacity? I don't know. Will the bailor use the Government agency comments in testimonials in advertising? I don't know. Who in a Government agency would willingly commit the agency to be bound under state law? I don't know. I'm just asking questions without providing answers, but I hope it is helpful...

A contract for construction phase inspectors, just to pick one of your examples, need not be done under the Brooks Act. It could be, if FAR 36.601-4( a )( 3 ) applies -- you quoted from FAR 2.101, but look at 36.601-4( a )( 3 ) instead -- the important part for you is the last phrase " . . . that logically or justifiably require performance by registered architects or engineers or their employees." That's the key to your question.

Maybe the J&A approving official is asking an entirely reasonable question. Before approving the J&A, he or she wants to know if the non-competitive approach (sole source with a certified dealer) is less expensive than a competitive approach. To me, whether the proposed remanufacturing contract is or is not a follow-on contract doesn't matter and isn't worth arguing about. We read in one posting that the work had to be done by the OEM. Then we read in a subsequent post that it was going to be done by a certified dealer. I'm glad the J&A approving official didn't sign if the original document didn't answer his or her questions. But if the J&A explains the facts, he or she likely will sign. - The agency needs a crane with certain lift and other capability. - We have an existing crane, but it requires remanufacturing at this time because _____ and _____. - Remanufacturing the existing crane will cost $_____. - A new crane will cost $_____. - Remanufacturing is far less expensive and makes good business sense. - We did market research to see if there are any remanufacturing alternatives. There aren't. We also looked for other firms to do the remanufacturing, but none exist. - - Remanufacturing can only be done by OEM or authorized dealer because otherwise the certification for use would be lost, and that certification is required to legally operate the equipment. - - The authorized dealer has an exclusive geographic territory, honored by the OEM and other authorized dealers. - Therefore, only one source exists and no other approach will satisfy agency needs.

Vern, You err in suggesting that I answered (or attempted to answer) the original poster's question -- I made no attempt to answer the question, either definitively or hypothetically, but just to offer some food for thought, so to speak. As for credentials, well, the original poster didn't ask for answers only from a credentialed expert -- he or she wanted to stimulate some discussion and some dialogue, and maybe even hear things he or she wouldn't hear from a credentialed expert who knew all the facts. That sort of exchange is what makes WIFCON a valuable resource to players in the government contracting field.

Is this a pre-award or post-award question? If pre-award, and a Government agency is planning a cost-reimbursement contract, and assuming there is some rational need that the agency has identified before entering into the contract, the agency might reasonably include a clause in the solicitation and contract requiring delivery of all work products resulting from professional and consultant (including legal) services subcontracts arising under the contract or directly charged to the contract. If that clause is problematic for a contractor, it can be dealt with in negotiations before contract award. If post-award, well, we really can't speak hypothetically, can we? One needs to read the contract, read the FAR, and read the case law, and then speak based on the readings. But if I did want to play hypothetically, I might start by asking whether the legal services were charged directly to the contract or indirectly to overhead or G&A pools. I'm not sure (I haven't read any case law), but that might be part of the equation for the answer. But FAR 52.205-33 needs to scrutinized very carefully. Were the legal services for the contractor's sole benefit, or were they necessary for accomplishing the contract work? [i'm not asking for an anwer from the original poster, just raising some questions hopefully for his or her benefit.]

Definitely not a suspension of work... Maybe a work order to pull out the non-conforming work and replace it with compliant work (all at no additional cost to the Government), or a notice of non-compliance or a cure notice, but definitely not a suspension of work... A suspension of work order is only issued for the Government's convenience, not for the contractor's unwillingness to perform to contract specifications (especially when the is caught on a site visit).

Only the Government contracting officer can order a change -- the contractor cannot -- if a site visit reveals a contractor is using an unapproved method (or not the agreed method), then the contracting officer's step upon returning to the office IS NOT to order a change to accommodate the contractor's approach -- the right step is a notice of non-compliance (even while you're at the site), or maybe even a cure notice.

I have used FAR 49.402-4( a ) before in this sort of circumstance. Maybe very few on the contractor side will ever looks up 49.402-4( a ), but one time a surety did after gettig its copy of the modification from the construction contractor -- the surety called me to inquire about the circumstances -- I told the surety the contractor was late -- the surety pressed on the contractor and we didn't have any more late issues.