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ji20874

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Everything posted by ji20874

  1. It depends on whether the PCO (or the agency) (1) understands the law or (2) blindly obeys the agency's overly-cautious and not-respectful-of-case-law attorneys. I esteem the GAO case law as correct, and PCOs who understand the law do not feel a need to automatically retain individual evaluator notes -- they understand that those notes might not be records*. Overly-cautious and not-respectful-of-case-law attorneys (unfortunately, some agencies have them) will say every single scrap of paper is a record, and will even insist that evaluators create notes just so they can save them as records -- those attorneys are wrong, but no one can say they are wrong because they are attorneys. *The source selection evaluation report, decision document, and so forth are records. Individual evaluator notes are not records.
  2. No, the question was "how do you invoice for the hours expended by salaried employees?" and OP was not asking about internal bookkeeping and accounting for uncompensated overtime (UCOT). He or she was asking about invoicing for UCOT hours -- the simple answer is that the contractor does not invoice for UCOT hours. A contractor does not invoice for an hourly rate in a cost-reimbursement contract -- rather, a contractor invoices for incurred costs. If a salaried employee's salary for a two-week pay period is $10,000, and he or he works full-time only on this one contract, the contractor invoices for $10,000. It is irrelevant for invoicing purposes whether the employee works 40-hour weeks or 45-hour weeks. UCOT is not an incurred cost, so It is not invoiced on a cost-reimbursement contract. The provision at 52.237-10, Identification of Uncompensated Overtime, is used in solicitations and applies to proposals -- it is not included in contracts and is irrelevant to invoicing questions. Simple answer: UCOT is uncompensated, by definition -- the employee is not compensated for UCOT, and the employer does not pay the employee for UCOT, so UCOT is not an incurred cost and the contractor does not invoice the government for UCOT. A cost-reimbursement contract reimburses a contractor's incurred costs -- it does not pay for billable hours. Thinking with a billable hours mindset is error.
  3. You said cost-reimbursement, right? The contractor invoices for incurred costs (within the guidelines of the contract and FAR part 31).
  4. Yes, pray tell, what is your objective? Then why disturb the vendor's peace with a contract modification? A ratification gives you authority to pay, but you have already paid. Instead of starting a ratification process, should you be starting an Anti-Deficiency Act process?
  5. Have you read the excusable delays text in para. (f) of the contract clause at FAR 52.212-4? You really should. Why do you want to harm your agency? Why do you want to shift all of the contractor's costs associated with the nationwide strike to your agency? Let the contractor deal with the nationwide strike, and let the contractor deal with any cost impact. After the strike, you can use the excusable delays text in your contract to accept late delivery or performance without shifting the contractor's costs to your agency. If a "country is having a strike," you must be outside the U.S. -- based on this new information, I most sincerely advise you not to rush a Stop Work order. Since you have a commercial contract, I am supposing you don't have a construction contract, and you don't have a cost-reimbursement contract -- so I cannot imagine why you would want a Stop Work order. A strike is an excusable delay -- it is already covered by your contract. You do not need a Stop Work order to accommodate a strike. There might be, maybe, some other facts that call for a Stop Work, but you haven't shared any such facts.
  6. A strike does not necessitate a Stop Work order. Generally, a company's contractual obligations remain in place even when it faces a strike. Assuming you are Government, why do you want to relieve the contractor of its contractual obligations because it may face a strike? Do you need anything beyond what is already provided for in under excusable delays in para. (f) of the contract clause at FAR 52.212-4 give you the coverage you need? My advice is to drill down on the question: WHY are you thinking about a Stop Work order? Why do you want to relieve the contractor of its responsibilities, and why do you want your agency to assume any and all costs associated with the contractor's stopping work? My advice is not to rush to a Stop Work order.
  7. Well, if you look at what I actually wrote, and if you read the zero cost risk statement within the context it was presented, then what I wrote is true. However, if you strip it from its context, then yes, it is no longer true -- but stripping it from its context is unfair, and I want to expect better here.
  8. The MCS case allows for the exercise of an unevaluated option: "In such circumstances, the agency must justify the use of noncompetitive procurement procedures in accordance with FAR Subpart 6.3 before exercising the unevaluated option." A J&A or similar document based on appropriate facts could have made a difference in the case.
  9. I don't know what your prime wants, but FAR 2.101 has a definition of "data other than certified cost or pricing data."
  10. The fee is fixed. An increase in your costs will not reduce or "eat in to" your fee. The Government has promised to pay all of your costs (reasonable, allowable, and so forth) plus a fixed fee. You have zero cost risk. Are you now wanting the Government to pay more than the fixed fee you already bargained for? Why?
  11. Carl, You are moving the goalposts. The question is "Basically, do COs need to seek waivers for the NMR and BAA when we issue orders off of existing government contracts?" The answer is no. Your citation doesn't fit the discussion. As a general rule, the contracting officer has no affirmative duty to determine the size status of indefinite-quantity contract holders before placing an order -- your citation makes the case that the SBA may do its thing if there is a size challenge, and I am fine with that, but that is wholly irrelevant to this discussion thread. Even so, we're talking about orders for supply items -- there might not even be any "separate procurement[s]" going on. Issuing orders is supposed to be easy. Too many people want to bog the process down and sink the ship by imposing all sorts of unneeded demands on the ordering process.
  12. I do care about the OP's circumstance, and am trying to be helpful to the OP. A determination that an offeror's price is too low is a valid basis for a determination of nonresponsibility once the apparently successful offeror has been selected. Of course, it goes without saying that "too low" will have to be supported in the determination -- I agree that your example from case law may be helpful to the OP, notwithstanding your lack of care for the OP or his or her circumstance.
  13. I don't think PAE Government Services, Inc., B-407818, fits the OP's circumstances. Nothing in the PAE decision would stop a nonresposibility determination in the OP circumstances. Indeed, the GAO affirms in PAE that "a determination that an offeror's price on a fixed-price contract is too low generally concerns the offeror's responsibility, i.e., the offeror's ability and capacity to perform successfully at its offered price." I also don't think J.A. Farrington Janitorial Services, B-296875, fits. Like PAE, that case dealt with the evaluation, not a subsequent nonresponsibility determination. The agency didn't even evaluate the proposal! Neither of these cases deals with non-responsibility determinations. Note that in my comment, I wrote, "...if the company in question is the apparently successful offeror based on your evaluation criteria..." -- clearly, the evaluation and tentative selection has to occur before the question of responsibility or non responsibility even arises. But if the evaluation has been completed, and the company in question is the apparently successful offeror, the contracting officer can make "a determination that an offeror's price on a fixed-price contract is too low" (note that the GAO uses the words "too low"), along with the other reasons I cited. The OP's attorney can help him or her draft the wording to make it stick -- all three reasons will need to be fleshed out. But most likely, I am afraid that the OP will be afraid to do a non-responsibility determination even with the facts presented in the OP -- I hope I am wrong, but it seems contracting officers and their masters are becoming more timid as time passes.
  14. I have always understood that trade agreements, if applicable, trump BAA.
  15. I know that VA has some different statutory authorities, but I know nothing about the particulars. So I'm speaking generally... Some agencies make it too hard. If you have a procurement for medical equipment, you can issue an unrestricted solicitation with the appropriate BAA clauses/provisions (such as FAR 52.225-1 and -2). If you get both domestic and foreign offers, you do the price evaluation exercise and you award to either the domestic or the foreign, based on the outcome of the price evaluation exercise. If you get only foreign offers, well, pick the best one. There is no real need for a determination of nonavailability. That determination gets you out of the price evaluation exercise, but that exercise is really easy, far easier than getting a determination of nonavailability. See FAR 25.103(b)(3).
  16. In addition to the above comments, if the company in question is the apparently successful offeror based on your evaluation criteria, you can determine the firm to be nonresponsible for three reasons: ridiculously low price, not their brand of work, and previous instances of fake emails or Point of Contacts.
  17. Carl, It is true that I addressed indefinite-delivery contracts, but it is the same for schedule contracts as well.
  18. It's quite simple. For NMR: If a set of parent multiple-award infinite-delivery contracts allows for orders to be set-aside for small business concerns, the contracting officer for the multiple-award infinite-delivery contracts will have already included the clause at FAR 52.219-33, Nonmanufacturer Rule, in the parent contracts. For BAA: If a contractor contemplates providing an end product that is not a domestic end product at any time during the life of the contract, it will have already declared such by including the product in the list in its response to the solicitation provision for the parent contract at FAR 52.225-2, Buy American Certificate, or other appropriate certification.
  19. The parent indefinite-delivery contract is a contract that includes terms and conditions for any orders that might be issued, and those orders make purchases amenable to the parent contract's terms and conditions.
  20. Those matters (NMR and BAA) were addressed in the parent indefinite-delivery contract. For NMR, any desired waiver of the nonmanufacturer rule should have already been obtained for the competition for the parent contract. And for BAA, any public interest or unreasonable cost waivers will have been already handled for the parent contract. FAR Subpart 16.5 does not contain rules for NMR and BAA analysis and waivers because these apply (or not) at the parent contract level. Whatever the parent contract says about NMR and BAA apply to all orders under that contract.
  21. If you are issuing an order for supplies under an indefinite-delivery contract, follow the instructions in FAR Subpart 16.5 and issue the order. You do not need to comply with all the other rules in the FAR that relate to contract formation, as your contract is already formed. Just follow FAR Subpart 16.5 and issue the order.
  22. There is a notable difference between an oral agreement that is left oral, and one that is formalized into paper the following day. In all of my postings in this thread, I have been thinking of the latter.
  23. In my opinion, a contracting officer's oral purchase order is not an unauthorized commitment, as that term is defined in FAR Part 1, and his formalizing it on paper the next day does not require a ratification. Generally, a contracting officer has the authority to enter into an agreement with the contractor to get some work done. A minor error in form is far different than authority to enter into the agreement. A ratification is not needed for a minor error in form.
  24. govt2310, 18 USC 1905 is a criminal statute, so a matter would have to be treated criminally (rather than civilly) to reach that penalty. Regarding DOJ's prosecution of cases under 18 USC 1905, you will be interested to read https://www.justice.gov/archives/jm/criminal-resource-manual-1665-protection-government-property-disclosure-confidential-government.
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