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Everything posted by pricelesspearl

  1. I think I found it. What I was initially overlooking (and others as well), was that the modification to extend the POP was retroactive. The original POP had already expired. That is what is most relevant. I found this. Retroactively extending a POP is violation of CICA. THE CONTRACTUAL RELATIONSHIP WHICH EXISTED IS TERMINATED AND THE ISSUANCE OF AN AMENDMENT 4 MONTHS AFTER THE EXPIRATION DATE TO RETROACTIVELY EXTEND AND MODIFY THE CONTRACT AS IF IT HAD NOT EXPIRED AMOUNTS TO A CONTRACT AWARD WITHOUT COMPETITION https://www.gao.gov/products/461444#mt=e-report
  2. Now your just bragging. I know I am being a bit vague, but I am not comfortable giving too many details because it is a fairly high profile project. Frankly, the $ amounts aren't that large but it is the visibility of the project and being unfairly blamed for poor design that concerns us. This is more than a punch list type item as resolving the issue would require reengineering components. The system meets (and even exceeds) performance standards, but while operating produces a visual effect that most people wouldn't even notice or care about. Basically, it doesn't look as pretty as they want it to look while operating. There was nothing in the specs about meeting visual standards. In the meantime, the Gov't has taken possession, commenced the start up, completed performance and endurance testing and the system is in full operation. As I mentioned before, they have implemented (without our input or concurrence) a temporary fix but now want us to come up with a permanent fix. We don't have a problem with doing that as long as we get paid. It is not a simple fix.
  3. So who has the burden of proof on the design error? They have not offered anything to support their claim, not even a formal letter stating what they think the error is. Literally all they have said is in emails is " the optics are bad and you need to fix it". Shouldn't they have to offer something legally or contractually to support the need for a POP extension and their right to issue it unilaterally?
  4. Technically it is between the prime contractor and the Gov't because the unilateral mod was issued to them. But our prime fully supports our position that there is no design error and wants to push back on that issue as well as the POP extension being out of scope. Our POP with the prime has expired and they have not flowed the extension down, so we believe that we are within our rights to just refuse the work, but we don't want to put our prime in a spot. They are a small business (we are very large).
  5. We are the design sub to the prime on a design-build. The design is for a system which functions according to specs, but it doesn't perform "pretty" . It is purely an aesthetic issue that was never mentioned anywhere in the specs. They have implemented a temporary fix without our concurrence or input, making significant changes to our original design (which raises a whole other bunch of issues) and extended the period of performance to allow us to come up with a permanent fix, based on their "redesign".
  6. Can anyone point me to some case law to support that a unilateral POP extension, made as an administrative change and without any extra money is an out of scope, cardinal change? Background: Gov't is claiming design errors and wants us to fix things that were not part of the performance specifications. The POP expired , so they just unilaterally issued an extension as an administrative change and expecting us to "fix" the "errors" for free. They have not offered any sort of proof or support for claiming an E&O. Basically, they just don't like the way something looks but it was designed, built and performs to specs.
  7. Yes...Aggregate ceiling of $60M with 6 awardees. Our contract states $10M maximum, I am assuming the others are the same. That is why it makes no sense to me to interpret the $10M as the max we can be awarded. As I asked before what if 5 awardees meet their maximum? How can any remaining task orders be competed? What happens if 1 or more awardees does $1M of work and then decides not to propose on anything else? What happens to the rest of their maximum ceiling? I guess the CO could raise the $10M max with a mod, but then that raises the whole IDIQ aggregate. But maybe I am just overthinking it. We are bumping up to our $10M max and just need to know if we can propose and if we do, can it be awarded if it puts us over the $10M.
  8. Also...found this in the archives. It is the exact situation we are facing...trying to decide if we should bother submitting any more proposals when we are close to the $10M mark. It seems to support the position that the $10M is the contractor's maximum obligation, not the maximum they can be awarded. Am I missing something?
  9. Keep in mind, the Maximum value of the contract is $60M. A maximum of $10M for each of 6 awardees. What happens if five awardees all reach their maximum? Is the sixth awardee guaranteed the remainder of the $60M without any competition? FAR 16.504(a)(1) (1) The contract must require the Government to order and the contractor to furnish at least a stated minimum quantity of supplies or services. In addition, if ordered, the contractor must furnish any additional quantities, not to exceed the stated maximum. The contracting officer should establish a reasonable maximum quantity based on market research, trends on recent contracts for similar supplies or services, survey of potential users, or any other rational basis The bolded language implies that the contractor is obligated to provide (if ordered) more than the minimum, but is not obligated to accept more than the maximum. It does not mean that the contractor can not choose to accept more than the maximum. (4)(ii) Specify the total minimum and maximum quantity of supplies or services the Government will acquire under the contract; So if this means that the awardee cannot be awarded more than the $10M under contract, they are out of the running for any other task orders? How does that square with FAR 16.505(b)(1)(i) which requires that contracting officers provide each awardee fair opportunity to be considered for each order exceeding $3,500 (unless exempted by FAR 16.505(b)2? No protest under subpart 33.1 is authorized in connection with the issuance or proposed issuance of an order under a task-order contract or delivery-order contract, except for— 16.505(a)(10)(i)(A). (A) A protest on the grounds that the order increases the scope, period, or maximum value of the contract. Same question as above...if the "maximum value of the contract" refers to the maximum allocated to each awardee (as opposed to aggregate value of the whole IDIQ), then an awardee that has reached the $10M cannot be fairly considered for the TO.
  10. So...hoping someone can help settle a difference of opinion. Here is some background. We have an IDIQ with 6 awardees. Our contract was awarded with a $25k minimum and a $10M maximum of task order awards under the contract. One of us is of the opinion that the max amount we can be awarded under the contract is the $10M and the other is of the opinion that the $10M is the max amount we are obligated to accept, but there is nothing prohibiting us from being awarded more than the $10M. The latter opinion is based on 52.216(b) "....The Contractor shall furnish...the supplies and services specified in the schedule up to and including the quantity designated in the schedule as the "maximum"", With the bolded language establishing that we are only obligated to accept up to the max, but not prohibiting us from accepting more. Neither of us is aware of any other FAR provision that might prohibit us from accepting more than $10M. Thanks for your thoughts.
  11. No, it is not a SB set aside. It is an IDIQ. Both entities are foreign owned. The contract holder was set up with a security agreement so that it could perform classified work. In the IDIQ proposal, the intent to have the affiliate perform any non-classified work was made clear, and the same for any Task Order proposals. We have been very upfront on the issue. Initially, we got some push back on charging G&A for both entities, but won that argument. Now they are complaining about how much work the affiliate is doing, but haven't offered any legal support (yet) for not allowing it. I am just trying to get in front of any argument they may make.
  12. Is anyone aware of any limits placed on how much work an affiliate can perform on a contract when the parent company is the actual contract holder? I do not believe the Excessive Pass Through clause would apply since it is an IOT and not a subcontract. Let me know if you need more detail. Thanks in advance.
  13. I really appreciate all the feedback. I will look at the blog as suggested over the weekend. In the meantime, I will try and address some of the questions asked. The TO was awarded under a sole source IDIQ and there was minimal negotiations.6% design fee limit is applicable. I can only go by what my technical people tell me as to why they didn't inquire, but am told that normally when the agency anticipates the analysis will be required they provide a standard form (don't recall which one it is) with the RFP that provides the replacement value and it is in the SOW for the designer to determine if an analysis is necessary. Neither of those was the case here and that is not unusual if the agency doesn't believe one will be necessary. Occassionally, even when they don't initally believe one will be necesssary it turns out it is and we are given an opportunity to revise our proposal before award.I don't know and haven't been able to find out if the agency is under any obligation to provide the replacement value with the RFP or if that is just standard practice but we have no way of knowing the replacement value without it. If it been provided we would have inquired even if it was not in the SOW. Hope that brings some clarity. Thanks for again for the responses.
  14. here2help Thanks for suggestion. I am familiar with (if hardly an expert) the distinction between an REA and a claim, but whether it's an REA now or a claim later the issues would be the same. I was hoping for some insight into the strength of the gov't position. If we can't get an adjustment now we are considering requesting T4C. This issue along with another (which I didn't raise because I didn't want to confuse the question) will more than double our cost of performance. That along with the cost of filing a claim that we may or may not win for who knows how long it will take is not worth it to our business decision makers.
  15. Yes, the CO is requiring it. The renovation cost meets the threshold that the design standards require it. We have done almost exactly as you suggest already and the CO's response was that we waived our right to any kind of adjustment because we failed to make an assumption and/or request clarification on the issue. A separate proposal to perform the analysis will not be accepted because as far as they are concerned our price should already include the cost of performing the analysis. They brought the assumptions issue up, so I don't see how responding to it is "irrelevant". If we aren't entitled to an adjustment because we didn't make an assumption, then whether or not we were required to make an assumptions seems very relevant.
  16. Hi, hoping for some advice and direction on this issue ... We are the DOR on an A/E project. In the SOW there was no mention of performing a seismic analysis on the structure we are working on, which is required by design standards when the cost of repair/renovation is a certain percentage of the total replacement cost of the structure. We were never provided the total replacement cost. Our proposal included no cost or schedule for performing the analysis and was accepted. Now the CO is requiring the analysis be done. When we suggested it was not part of the SOW, the CO argued that as an experienced design firm we should have known that there was a possibility it would be required and should have included an assumption in our proposal that it wasn't required or asked for clarification. I understand that we have no obligation to seek clarification unless there is a patent ambiguity or conflict. I'm not sure how there can be a patent ambiguity/conflict regarding a requirement that is not even mentioned in SOW. If they had provided us the replacement value and it indicated that an analysis was required, that would be an ambiguity as the SOW made no mention of one. But that was never provided. My thinking is that, at best, it would be a latent ambiguity and would be construed against the Gov't and we are entitled to an adjustment. Am I correct with this line of thinking? Also, I am not sure about the argument that we should have included an assumption. I tend to think that by logical extension, if we have no obligation to ask for clarification, there is no obligation for an assumption. An assumption implies some ambiguity in the same way clarifications do, but I haven't been able to find any information in my research that seems to address that issue. Any of you more experienced professionals have any thoughts?
  17. It will cost us more money, but not the prime. We are shipping primarily subcontractor owned material and supplies, which should not have to be reported and don't have to be shipped US vessel. The prime is shipping most of the end items which would have to be shipped 100% US and reported anyway, so they are not as concerned about it as we are.
  18. We are currently a subcontractor on a DOD contract. We (both the prime and ourselves) are currently debating with MARAD about the applicability of the Cargo Preference Act of 1954 to the contract. By way of background, the dispute initially began with whether or not we were required by DFARS 252.247-7023 to ship subcontractor owned equipment and supplies not intended to be incorporated into the construction 100% on US flag vessels. MARAD and DOD initially said we were, but we pushed back arguing that the clause only applied to the those items meeting the definition of "supplies", and that subcontractor owned equipment and supplies did not meet that definition in the clause. We prevailed on that. Now they are claiming that the Cargo Preference Act of 1954 applies and that we are required to ship 50% of all cargo on US flag vessels. The FAR clause implementing the Cargo Preference Act of 1954, FAR 52.247-64, is not included in either the Prime's contract with the government or in our contract with the Prime, presumably because FAR 47.500 clearly states " This subpart does not apply to the Department of Defense (DoD). Policy and procedures applicable to DoD appear in DFARS Subpart 247.5." >> What's more, the policy and procedures referred to in DFARS Subpart 247.5 also clearly and plainly exclude the implementation of the Cargo Preference Act of 1954 from DOD contracts at DFARS 247.570(B ). Despite what appears to be clear and plain language that it does not apply, the PMO is supporting MARAD's position and is requiring us to report the ocean shipment of "non-end use items" to the DOD and MARAD to ensure the "at least 50%" U.S.-flag ocean shipping requirement is met. We recognize that pursuant to DFARS 252.247-7023, which is in the contract, that we are required to report the shipment of end use items and ship 100% US flag, but I don't get how they are justifying the requirement to report non-end use items under the 1954 Act, when it seems to be that the requirement was intentionally excluded from DOD contracts. Neither MARAD nor the CO is offering any explanation other than stating "It is our position that it applies". Is there something we are missing that requires the application of the 1954 Act, and if not, any ideas on how to push back on this?
  19. Thanks for all the thoughtful responses. Some of the issues raised had occurred to me, but others had not. The latest intel we have is that a protest probably won't be filed, but better to be prepared than not.
  20. Here is the background....We are the prospective Subcontractor on an award expected mid-June. Our prime anticipates a protest and subsequent stop work order, but has approached us about proceeding with work until the protest is decided. Assuming we receive appropriate contractual assurances from our Prime that we will be paid, are there any consequences (for either us or the Prime) to what appears to be a violation of a stop work?
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