Jamaal Valentine

Michael: It may help if you cite the policy that requires the competition. (e.g., FAR, RFP provision, contract clause)

See FAR 5.206

Since Congress has appropriated funds for the lease, if those funds were available for obligation, there wasn't a violation of the Antideficiency Act. The fact that the contracting officer didn't receive or document an administrative commitment from finance and/or record an obligation is a separate issue. (There are other potential problems, but not ADA) "The Antideficiency Act prohibits federal employees from: making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law. 31 U.S.C. § 1341(a)(1)(A). involving the government in any obligation to pay money before funds have been appropriated for that purpose, unless otherwise allowed by law. 31 U.S.C. § 1341(a)(1)(B). accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. 31 U.S.C. § 1342. making obligations or expenditures in excess of an apportionment or reapportionment, or in excess of the amount permitted by agency regulations. 31 U.S.C. § 1517(a)." https://www.gao.gov/mobile/legal/appropriations-law-decisions/resources/

Thank you @PepeTheFrog

I didn't see the congressman's remarks as controversial or disputed within the Congress. (Yes, congressmen and the Congress have communicated all kinds of ridiculous things.) I think I know what you mean and agree ('the Congress' didn't issue legislation, take a vote, etc.), but can you explain the difference(s) as you see it? I definitely see a difference in legal significance. The Congressional Record being used--potentially--as a secondary authority. I quoted the relevant part as support that contractors (not their employees) are or should be aware of the business risk inherent in their relationship with the government. As Don mentioned, contractors should price accordingly.

Don is correct. Congress has previously stated that "As a government contractor, [the contractor] knew that Congress or the President could close the government at any time. This is a business risk inherent in [their] relationship with the government." https://www.congress.gov/congressional-record/2004/07/07/extensions-of-remarks-section/article/E1293-4

I asked you to provide your rationale and supporting evidence for consideration/discussion. You opted to reply by cryptically emphasizing 'personal incredulity' without much else. I hope you aren't suggesting that personal incredulity isn't powerful. Nonetheless, if you change your mind and you'd like to discuss it, you know how to get in touch with me … I'm about done here and continuing would likely only result in repeating myself since you haven't refuted my supported points with any reliable evidence of your own. Catch ya on the next thread!

I believe this was an attempt to follow the UCC for goods (supplies); UCC doesn't apply to services including construction.

I understand that to be a common belief, albeit inconsistent with FAR 43.103(b): "…Unilateral modifications are used, for example, to -- (1) Make administrative changes; (2) Issue change orders; (3) Make changes authorized by clauses other than a changes clause (e.g., Property clause, Options clause, or Suspension of Work clause); and (4) Issue termination notices." Surely a termination changes the terms and conditions of the contract in ways that affect the substantive rights of the parties. Look at FAR 12.403 and the various definitions in FAR 2.101 such as "terminated portion of the contract", "termination for convenience", "partial termination", etc.

@Matthew Fleharty, your point, if any, is unclear. Don't work for what? In what ways? (Also, I couldn't find what "etc." you were referring to … maybe etc. includes disputes pursuant to FAR 32.211 and the disputes clause?) I am not sure why you are limiting your thinking about options. Anchoring is powerful, but so is personal incredulity. First, I don't think that you accurately described a fundamental principle concerning options. What you described is a fundamental principle of exercising options. More importantly, your assertion is inconsistent with FAR 43.103( b )(3). Exercising an option involves a party unilaterally making a change. Remember, an option is an unaccepted offer until exercised; its terms are not part of the existing contract. When exercised, it changes the terms of the contract in accordance with the terms of the offer (option). Again, in addition to the standard options contemplated under FAR 17.2, the parties can write an option to add or delete a clause, change a specification or statement or work, or change the contract in myriad other ways. Tailoring is by addenda to 52.212-4 for commercial contracts. Regarding terminations, I am not conflating anything. I expressly stated that "I used options and terminations because most people agree they can be used unilaterally and how that contrasts with the plain language of 52.212-4(c)." I am not sure why that is unclear to you. You quoted the relevant part five posts ago. Within FAR Part 49, Terminations of Contracts, FAR 49.002(c), which offers guidance for commercial terminations states "[t]he contracting officer may use this part in determining an equitable adjustment resulting from a modification under the Changes clause of any contract…" I think you are overcomplicating it: some people seem to think 52.212-4(c) requires that all changes be bilateral … unilateral options and terminations are simple examples that refute that theory. If you think I err, point it out and provide your rationale and supporting evidence for consideration/discussion.

What is a term? What is a condition?

You may be right, but I think it's worthwhile for the reasons stated: it encourages us to realize there is more than just the plain meaning of 52.212-4(c). Read plainly, "[c]hanges in the terms and conditions of [a] contract may be made only by written agreement of the parties." It's not clear if everyone agrees that unilateral actions are permitted in commercial contracts. I used options and terminations because most people agree they can be used unilaterally and how that contrasts with the plain language of 52.212-4(c); thus, suggesting there is more to it. Now, options need not be limited to the option clauses in FAR … if an option is governed by 52.212-4(c) is fact dependent (e.g., tailoring). Standard terminations are not governed by 52.212-4(c) but, see also FAR 49.002(c) ... and when should a removal of contract requirements be treated as a partial termination and when should it be treated as a deductive change under 52.212-4(c)? Even if we label it wrong it can be deemed something else by another authority (e.g., deductive change converted to partial termination)...

Carl: Depends on what the deobligation is in contracting terms (e.g., partial termination, deductive change, administrative change), right? A mod to decrease funding without decreasing the obligation may be problematic, but it doesn't change the contractor's substantive rights. (e.g., The contractor is still entitled to what the contract states and can get it via claim.) H2H: Here is what 52.212-4(c) Changes, states: "Changes in the terms and conditions of this contract may be made only by written agreement of the parties." (emphasis added) Seems we need to identify what terms and conditions means. Then we need to review how unilateral actions like exercising options, issuing terminations, etc. are proper in light of 52.212-4(c). If these unilateral actions are permitted, it's reasonable to believe administrative changes that don't alter the terms and conditions of the contract in ways that affect the substantive rights of the parties could also be permissible.

If emergencies or unforeseen events interrupt normal receipt of offers by the exact time specified, and time-sensitive factors prevent the Government from changing the specified time, offers are due at the same time on the first work day that normal Government operations return. -or- If an emergency or unforeseen event interrupts normal receipt of offers by the office and exact time specified, and prevents change of the time, offers are due at the same time on the first work day that normal Government operations return. -or- If events beyond the government's reasonable control interrupt normal receipt of offers, and prevent change of the exact due date or time, offers are due at the same time on the first work day that normal government operations return. -or- If the Government's normal receipt of offers is interrupted by an emergency or unforeseen event, the offer due date is postponed to the first work day that normal Government operations return. -or- If normal Government receipt of offers is interrupted by an emergency or unforeseen event, the offer due date is changed to the first work day that normal Government operations return.

I agree, in part, with ji20874 and C Culham (I didn't want to bias responses); however, I would advise others to contact their agency labor advisors and/or the Department of Labor. For example, see the Air Force Davis-Bacon Desktop Guide for guidance on handling SABER contracts and task orders (p. 13).

Thanks, Carl.

SCENARIO: Unpriced, mutliple-award IDIQs, five year ordering period (no options), and general wage determination was applied to the basic contract at time of award. 40 U.S.C. chapter 31, subchapter IV, Wage Rate Requirements (Construction), formerly known as the Davis-Bacon Act QUESTION: At what point, if ever, do you incorporate any updated Wage Determinations?

Seems that you could bilaterally modify the contract payment terms to incorporate GPC as the method of payment. (see FAR 13.201( b ) and DFARS 213.270 if applicable or for reference) Chapter 7 of the GAO Redbook provides that you would have to comply with the government's obligation rules (e.g., creating and recording). The T&M CLIN (contract) created the obligation so I assume the GPC would have to have adequate funds loaded to cover and record the obligation. I don't think the Third Party (Bank) is obligated ...

Have you seen DoD's proposed rule?

Why is defense contracting so heavily regulated? What happened to improving the professionalism? "DoD is proposing to revise the DFARS to implement section 888(a) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328). Section 888(a) requires that competition on DoD contracts not be limited through the use of brand name or equivalent descriptions, or proprietary specifications or standards, in solicitations, unless a justification for such specification is provided and approved in accordance with 10 U.S.C. 2304(f). The requirements of 10 U.S.C. 2304(f) are implemented in Federal Acquisition Regulation (FAR) sections 6.303 and 6.304, which address the content, format, and approval authorities for justifications for other than full and open competition." https://www.federalregister.gov/documents/2018/10/31/2018-23676/defense-federal-acquisition-regulation-supplement-brand-name-or-equal-dfars-case-2017-d040

I may have missed or misunderstood something but, if there is a quasi-default based on FAR part 15 requirements, it would be 'award with discussions': FAR 15.306(a)(3): Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions. FAR 15.209(a) states: The contracting officer shall insert the provision at 52.215-1, Instructions to Offerors -- Competitive Acquisition, in all competitive solicitations where the Government intends to award a contract without discussions.

Federal solicitations require boilerplate information that lowers readability, but if we are talking 'should' based on opinion: Grade 7-8 seems appropriate. This is based, in part, on the Department of Defense use of Flesch-Kincaid reading ease standards; the Plain Writing Act; and success with plain language contracts in industry. In the Flesch reading-ease test 8th and 9th grade is considered plain English; 10th to 12th is considered fairly difficult to read.

I am not buying that and I hope you aren't either. They are synonymous within the context used here. https://en.oxforddictionaries.com/definition/capable

Matthew: jwomack made is thoughts clear in saying: I wanted the rationale. Why wouldn't you warrant to capability? (I am particularly interested because this belief is what is blocking me from boarding)