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Everything posted by charles

  1. Lucy was your issue resolved? FWIW, a novation agreement is executed when a contractor transfers its assets to a successor in interest. A contractor is the transferror and must guarantee performance of the successor in interest (the transferee) and the transferee must assume all of the obligations of the transferor under the contract. The Assignment of Claims Act prohibits the assignment of Government contracts. Notwithstanding this prohibition, the law provides that the Government may recognize a third party as a successor in interest when a contractor transfers all of its assets or the portion of its assets required to perform a contract. Note the KO acting for the Government is not required to enter into novation agreements; rather, it is discretionary. The KO is responsible for determining whether a novation will serve the Government's best interests. The KO must be assured that entering into a novation agreement recognizing a successor in interest will not result in a reduction of the contractor's responsibilities or the Government's rights under the contract. Sample novation and change of name agreements are set forth in FAR Subpart 42.12.
  2. Generally, GAO and courts have ruled that ?open-ended? indemnification provisions in contracts violate 31 U.S.C. ? 1341. See e.g., Union Pacific Railroad Corp. v. United States, 52 Fed. Cl. 730 (2002); United States Park Police Indemnification Agreement, B-242146, 1991 US Comp. Gen. LEXIS 1070, Aug. 16, 1991 (stating that absent specific statutory authority, indemnification provisions which subject the government to indefinite or potentially unlimited liability violate the ADA); Project Stormfury, B-198206, 59 Comp. Gen. 369 (1980). To Howard Metzenbaum, B-174839.2, 63 Comp. Gen. 145 (1984); Assumption by Gov?t of Contractor Liability to Third Persons, B-201072, 62 Comp. Gen. 361 (1983); Reimbursement of the State of New York Under Support Contract, B-202518, Jan. 8, 1982, 82-2 CPD ? 2; cf. E.I. DuPont De Nemours v. United States, 365 F.3d 1367 (2004) (holding that the Contract Settlement Act of 1944 exempted certain contracts with indemnification provisions from operation of the Antideficiency Act).
  3. FYI, Effective 1 July 11 DOD Source Selection Procedures
  4. Vern, my response was intended for the majority of persons who take this monster exam. I should have been more specific. What the "basia" can I do? Also, active attorneys who have practiced for so many years are allowed to take the California attorneys' exam. So, it appears anyone in CA can become an attorney If anyone is considering Law School, please go to an ABA accredited school. Your options are limited if you do not attend an ABA school. My incoherent ramblings on KO testing IMO, bar exams are a form of Intellectual-Darwinism. I do not think bar exams other than the MPTs test what attorneys do. Should KOs have a similar test? If I am a bad test taker then I would argue no we should not have bar exam type tests. It is unfair, it is biased, it does not test what KOs know and do. If I am a good test taker then I may argue KOs must maintain minimum levels of professional competency, blah, blah, therefore, a test is necessary to measure, maintain, and perform quality control on these standards. Consequentially or perhaps beneficially, having bar exam type tests limits persons who can become KOs. Limiting KO's could potential increase KOs salaries (supply and demand). For example, AMA. Bad example, ABA. Most professions have tests. Why should KOs be any different? Or are KOs merely quasi-professionals?
  5. Sparknotes. Sparknote reference was funny. I am a firm believer in "when in doubt Charlie out." California Attorney Qualifications. Vern said, "In California, in order to be an attorney you must pass a first-year law student exam and the bar exam." This statement is wrong. In California, provided you went to law school, in order to be an attorney you need to pass the CA bar exam. The first year law student exam refers to persons who want to become attorneys without going to lawschool. Charles
  6. Hello I am not an avid poster or perhaps more accurately I am a lazy poster and in my opinion Vern's question did not warrant a response. Vern asked, "On what basia do say that?" Among other things basia is a city in Iraq and assuming he meant basis I am unclear with "do say that." Was he asking for my opinion, commission's opinion, or court's opinions? I suppose I could have responded with, "What you talkin bout Willis/Vern?" (Does anyone remember Diff'rent Strokes ?) I believe Vern was asking for my opinion. And IMO federal agencies should not be involved in the direct hiring and firing of contingent workers (contracted personnel). My rationale: EEOC has applied the common law of agency test to determine whether an individual is an agency employee under Title VII. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992). Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997) (hereinafter referred to as the ?Guidance?) (available at www.eeoc.gov.), the Commission has recognized that a ?joint employment? relationship may exist where both the agency and the ?staffing firm? are considered joint employers. Clients of contract firms, including the federal government, qualify as employers of workers assigned them if the clients have sufficient control over the workers, regardless of whether the worker is on the federal payroll. Id. and Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). Enforcement Guidance: Application of EEO Laws to Contigent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, Staffing Service Work Arrangements section provides the following example regarding a staffing firm. In Baker v. Dep?t of Army, 106 FEOR 292 (EEOC 2006) the Commission held the agency improperly dismissed an EEO complaint alleging discriminatory nonselection. Although complainant was a contracted worker, the agency's participation in contracted worker's selection and supervision was determined sufficient to hold agency as a joint employer. There are several more decisions holding agencies as joint employers. It appears the current EEOC will use a much broader brush to determine whether contingent workers are connected to the agency with ?aspects of the relationship that are indicative of an employer/employee relationship? under anti-discrimination laws. For example, In Fearn v. TVA, 97 FEOR 1129 (1996) determining whether appellant was an employee of the contractor or of the agency, the Commission noted, first of all, that the contractor gave him a job assignment at the agency. In addition, appellant did not receive a pay check from the agency, was not a member of the agency retirement system, did not earn agency sick or annual leave, did not participate in the agency's health plan, and was not a member of the agency's retirement system. Furthermore, his work for the agency was accomplished under the guidelines of the contract between the contractor and the agency; thus, the agency did not have complete control over the means and manner of his work. Taking all the above factors into consideration, the appellant was deemed an employee of the contractor and not that of the agency. Contrast the above cited case with the following where the complainant was jointly employed by FSS Alutiiq Joint Venture and the Department of the Navy. She was supervised by a Navy employee. Her only contact with Alutiiq staff was to send them time cards and leave slips that were previously approved by the agency. She attended agency meetings at the beginning and end of her shift, the agency assigned her work and provided her with safety training, and she worked on agency premises, using agency tools for the most part. Schwartz v. Dep?t of Navy, 107 FEOR 518 (2007). Best regards,
  7. Motorcity, detroit rock city, you stated, "Mr. Edwards also mentioned about how lawyers are not required to take the bar exam." For the most part attorneys are required to take a bar exam except for Wisconsin (And possibly other states). When you have a moment please explain your statement.
  8. FWIW, government's counterargument would most likely be ineffective in front of the EEOC. I appreciate the discussion.
  9. Per OP's request. The government may not include new terms in the option. See 4737 Connor Co., L.L.C. v. United States, 2003 U.S. App. LEXIS 3289 (Fed. Cir. 2003) (option exercise was invalid where the Government added a termination provision not present in the base period of the contract at the time of exercise of the option); VARO, Inc., ASBCA No. 47945, 47946, 96-1 BCA ? 28,161 (inclusion of eight additional contract clauses in option exercise invalidated the option). The government must follow the option mechanics in the contract to include timing of notice. See Lockheed Martin Corp. v. Walker, 149 F.3d 1377 (Fed. Cir. 1998) (Government wrongfully exercised options out of sequence); The Boeing Co., ASBCA No. 37579, 90- 3 BCA ? 23,202 (Navy failed to exercise the option within the 60 days allowed in the contract and the board invalidated the option); and White Sands Construction, Inc., ASBCA Nos. 51875, 54029 (Apr. 16, 2004) (Exercise improper when preliminary notice of intent to exercise mailed on last day available and contractor received it after the deadline). Compare The Cessna Aircraft Co. v. Dalton, 126 F.3d 1442 (Fed. Cir. 1997) (exercise of option on 1 Oct. proper). If a contractor contends that an option was exercised improperly, and performs, it may be entitled to an equitable adjustment. See Lockheed Martin IR Imaging Sys., Inc. v. West, 108 F.3d 319 (1997) (partial exercise of an option was held to be a constructive change to the contract). If you do not have access to a subscribed legal database I reccommend google scholar search tool. Its great and its free.
  10. I appreciate the response. I am surprised it is a common practice. I would think such practices potentially expose G to joint employer liability. What would happen to a contracted worker who was essentially hired by G that could not meet performance expectations? Would the G fire them as well, if so, then why do we have 48 CFR 37.104? IMO hiring and firing contractors not services, although these distinctions are often blurred, could circumvent cited regulation.
  11. Hypo Contract Firm is awarded a K for non-personal services. However, advertisements for contracted positions required all potential contracted workers to submit resumes to Gov persons not KTR. This requirement was not included in the K. Gov persons reviewed resumes, recommended persons, and KTR hired recommend persons. What are your thoughts?
  12. Hello, You said. The DRAFT LOA states: "[the KTR] is authorized to act on behalf of [the agency] for the acquisition of supplies/services . . . leasing/rental of equipment . . . In addition . . . [KTR] has the authority for the issuance of tax exempt status for these supplies/services . . . ." My Comments Authorized to act. Personally, language is a bit much. I would consider revising it. It appears sentence is authorizing KO authority to KTR. Immunity from Taxes. Normally, KTR pays taxes. See 48 CFR 29.303. Also, there is case law, sorry, I do not remember the citation or name. Other provisions in LOA. Sometimes these agreements contain indemnity language. Remember the Government is not authorized to enter into open ended indemnity agreements. Open ended agreements may potentially trigger an ADA. Working with utlities can be difficult. I am sure others in this forum may provided additional insight to your concerns. Happy Holidays
  13. Contracting Contractor, I had similar issues with this policy. This memo is not clear and requires a rewrite. Perhaps next time, assuming Vern's contact is correct, the memo can state, "This policy applies to all blah, blah, including solicitations for quotes under Part 13 and solicitations under Subparts 8.4 and 16.5." Or better yet the next memo could have subheadings such as purpose, applicability, scope, implementation instruction, etc., oh well.
  14. No, telling a person or persons who are interested in obtaining government contracts to do their own research is not wrong. However, tactfulness in a work environment is important. I am not saying you were not tactful, I don?t know, but it?s something you should consider unless you?re Vern Edwards.
  15. Vern, Yes, I meant seminal not seminole. As a defense, I was working a NAGPRA issue (LOL). My question was asked and answered. I was seeking an azimuth not a 10 digit coordinate. You stated, ?As for private emails, free information from people you know little if anything about is worth guess how much. Hopefully, no one will try to practice law without a license.? I may not know Joel well, and he may not remember me, but I have corresponded with him on a few occasions for several years. I lost his email address and it?s his choice whether he wants to resend it. You stated, ?Charles, I don't know what you think you are going to Shepardize from the information that has been given to you.? I accomplished the following: (1) looked up the case, (2) reviewed all secondary materials (i.e. restatements, AMJURs), (3) cross referenced any cases citing its holding or dicta, (4) found cases on point, (5) reviewed pleadings and appellate briefs. Joel, Your original post was helpful. I agree I needed more facts for a specific answer, but, I did not want one. And you cant make me (LOL). Sincerely, Charles
  16. Thanks everyone for your response! Now I have something to Shepardize Joel I dont want to get into the specifics on a public forum. But, I would be more than happy to email you, for discussion, provided you had the time. It involves many fun issues.
  17. Does anyone know of any references or seminole cases related to business loss calculations for IDIQ contracts. Specifically, how damages are determined when the Government breaches an Umbrella/MAC IDIQ contract. I found cases involving Requirements contracts but I have not found anything on point dealing with IDIQs. I am still searching but would appreciate an assist.
  18. More food for thought. Increases and decreases in the quantity of major items or portions of the work are generally considered to be outside the scope of a contract. See, e.g., Valley Forge Flag Co., Inc., VABCA Nos. 4667, 5103, 97-2 BCA ? 29,246 (stating that in a requirements contract, a major increase in the total quantity of flags ordered was outside the scope of the contract); Liebert Corp., B-232234.5, Apr. 29, 1991, 91-1 CPD ? 413 (order in excess of maximum quantity was a material change). But see Master Security, Inc., B-274990, Jan. 14, 1997, 97-1 CPD ? 21 (tripling the number of work sites not out-of-scope change); Caltech Serv. Corp., B-240726.6, Jan. 22, 1992, 92-1 CPD ? 94 (increase in cargo tonnage on containerization requirements contract was within scope). Generally, increases are new procurements, and decreases are partial terminations for convenience. Cf. Lucas Aul, Inc., ASBCA No. 37803, 91-1 BCA ? 23,609 (order was deductive change, not partial termination). Generally, the Changes clause permits increases and decreases in the quantity of minor items or portions of the work unless the variation alters the entire bargain. See Symbolic Displays, Inc., B-182247, May 6, 1975, 75-1 CPD ? 278 (addition of strobe lights to aircraft manufacturing contract was not an ?evident? out-ofscope change). Cf. Lucas Aul, Inc., ASBCA No. 37803, 91-1 BCA ? 23,609. See also Kentucky Bldg. Maint., Inc., ASBCA No. 50535, 98-2 BCA ? 29,846 (holding that agency clause that supplements the standard Changes clause was not illegal).
  19. IMO it's prudent to seek advice from your legal advisor. Depending on the severity of the contractor's conduct, other types of actions may be warranted, such as in informal inquiry or investigation. Although this forum by its nature would most likely provide you a contractual remedy the legal advisor may opine other courses of action not found in contract law.
  20. Hello Does anyone know what statute or statutes authorize the ACE to use mixed funds. Specifically, use state and federal funds or just state funds for construction projects on state property. Best,
  21. Have you checked whether a fiscal exception applies to your scenario? Such as stock, lead time, severable exceptions
  22. Looking for references on how to write PWS, SOO, and SOWs. Any recommendations? Preferably something free. Any journal articles on this topic? Thanks!
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