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Matthew Fleharty
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Posts posted by Matthew Fleharty
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@Retreadfed Your posts are confusing this issue - I think you're either missing or ignoring the information provided by the OP and the piecemeal posting plus the pseudo hypothetical debate you're having with joel is not providing coherent information or advice for the OP.
14 hours ago, Retreadfed said:So the contractor did submit current, complete and accurate data regarding the bond rate.
Emphasis added above - how did you arrive at this conclusion? The contractor listed the incorrect bond percentage of 4%...why are you considering that "accurate" cost or pricing data? I think you need to reread the OP's clarifying post:
On 4/16/2019 at 10:15 AM, TheLaw said:Here is the timeline:
The contractor submitted a proposal with the mistaken bond percentage.
The contractor then submitted certified cost & pricing data with the mistaken bond percentage.*
After award, when the contractor was submitting the bonds, it discovered the error.
*The bond percentage was shown in a "general requirements" portion of the certified cost & pricing data, so the Government never saw it here.
Also, clause 52.215-10 is in the contract.
I will have to look into the case law, it appears.
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21 minutes ago, Retreadfed said:
You missed the point. Joel and I were speaking of a hypothetical situation to demonstrate how cost or pricing data works. In any event, we do not know what data was available to the contractor and at what point in time. The fact that it may have used 4% in its proposal does not mean that defective pricing occurred. As I have said before and the ASBCA in the UTC case, a proposal is not cost or pricing data. Joel is assuming that the contractor knew what the bonding rate would be before the agreement on price. However, we do not know that for a fact. TheLaw has not been very clear on what the actual facts are.
Well no wonder everyone is talking past one another on this thread...
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38 minutes ago, Retreadfed said:
The contractor disclosed certified cost or pricing data that was current, complete and accurate before award of the contract. How can that be defective pricing?
What are you trying to say here? Clearly the contractor's cost or pricing data was not accurate as they erroneously used 4% instead of 0.4% for the bond percentage.
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19 hours ago, PepeTheFrog said:
PepeTheFrog agrees with a bilateral modification based on mutual mistake.
This does not seem like a classic or provable case of defective pricing (in the term of art for federal contracting, not in the general sense of the two words "defective pricing"). Nobody will disagree that the contractor priced their proposal wrong (and that the pricing was "defective" in some way), but that is different from satisfying the elements of a defective pricing case.
Here is the DCAA audit guidance, according to Briefing Papers article, on defective pricing:
"(1) The information in question fits the definition of certified cost or pricing data. (2) Accurate, complete, and current data existed and were reasonably available to the contractor before the agreement on price. (3) Accurate, complete, and current data were not submitted or disclosed to the contracting officer or one of the authorized representatives of the contracting officer and that these individuals did not have actual knowledge of such data or its significance to the proposal. (4) The Government relied on the defective data in negotiating with the contractor. (5) The Government’s reliance on the defective data caused an increase in the contract price."
https://www.crowell.com/files/Litigation-and-Proof-in-Defective-Pricing-Cases.pdf
Numbers (1) and (2) seem questionable.
Why do you find (1) and (2) questionable? If I understand the scenario:
On (1), the bond percentage did impact the proposed/negotiated price so it is cost or pricing data...aka a fact that one would reasonably expect to affect price negotiations significantly (the bond percentage is factual and verifiable which is how the contractor discovered it as a mistake). The OP stated that the contractor provided a certificate of current cost or pricing data.
On (2) the correct bond percentage was available to the contractor before the agreement on price (they used 4% instead of 0.4% because of a typo).
Did I miss something?
On 4/11/2019 at 10:48 AM, TheLaw said:Could the Government possibly use FAR part 15.508 for Discovery of Mistakes (which then references 14.407-4), to correct this mistake? I understand that those sections are used by contractors to rectify mistakes they discover (in their favor), but it seems like the Government should have some recourse in this situation. I've come up empty on my review, however, so any advice would be welcome.
Thanks.
Read 15.502 "Applicability" - while the subpart technically applies to competitive proposals it goes on to read "the procedures in...15.508...with reasonable modification, should be followed for sole source acquisitions..." (Note: this is a crucial habit to learn - ALWAYS read the Scope, Applicability and Definitions [SAD] of any FAR Part/Subpart first).
I think the question at hand is, what do you think the right way to approach this situation is? If the contractor was forthcoming with identifying the mistake and earnestly wants to rectify it, I don't know of a rule or regulation that prohibits you from doing so; however, if the contractor identified is not cooperating, I think you could make an argument for defective pricing to either encourage them to cooperate or else...
I would opt for the former vs either of the latter...a defective pricing battle is no way to start a contractual relationship (but if it is necessary, the Contracting Officer has an obligation to recoup the excess amount).
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Odds are @NenaLenz is (or advises/represents) the supplier of the prosthetic that physician put on the prescription, but didn't receive the purchase order.
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@jdm843 Recommend you read the Applicability section of FAR Part 6:
Quote6.001 -- Applicability.
This part applies to all acquisitions except --
(a) Contracts awarded using the simplified acquisition procedures of Part 13 (but see 13.501 for requirements pertaining to sole source acquisitions of commercial items under Subpart 13.5);
(b) Contracts awarded using contracting procedures (other than those addressed in this part) that are expressly authorized by statute;
(c) Contract modifications, including the exercise of priced options that were evaluated as part of the initial competition (see 17.207(f)), that are within the scope and under the terms of an existing contract;
(d) Orders placed under requirements contracts or definite-quantity contracts;
(e) Orders placed under indefinite-quantity contracts that were entered into pursuant to this part when --
(1) The contract was awarded under Subpart 6.1 or 6.2 and all responsible sources were realistically permitted to compete for the requirements contained in the order; or
(2) The contract was awarded under Subpart 6.3 and the required justification and approval adequately covers the requirements contained in the order; or
(f) Orders placed against task order and delivery order contracts entered into pursuant to Subpart 16.5.
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10 hours ago, Don Mansfield said:
1. Why would I have to cite an authority at all?
Because the form asks for one and due to poor workforce education programs, some reviewer is going to mark up the organization during an inspection for not citing an authority or citing the wrong authority (in his/her opinion). That may seem silly, but it's the reality in many organizations which is why someone started this thread in the first place - they don't want to make a mistake.
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1 hour ago, LeighHar said:
Hello professionals,
We have a CPFF subcontract, which is a 3-year base and one option year. The base ended in December 2018 and we are in the midst of implementation of the option year. The prime has informed us that the client is imposing a performance-based fee payment structure on Yr 3 (which is complete at this point) as well as the option period. The original fee in our contract is set at 5% and we have been billing it at 5% of incurred and invoiced costs per month (which is the norm). I've been searching through FAR but haven't successfully found any regs we can put behind our pushback and further negotiation with the prime. Any ideas? I think we are fine for the base period to be tied to performance, but I don't understand how this can be imposed on a period that is completed before we were informed of this change.
Emphasis added - Vern's blog is no longer available...if it was, there was a nice post about how the FAR applies to contractors/subcontractors only when incorporated via provisions/clauses (with some exceptions). Absent that, here is an NCMA article about the issue: http://www.wifcon.com/analy/Christoph LLC_Does the FAR Apply to Fed Contractors_NCMA Oct2017.pdf
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On 2/22/2019 at 8:35 AM, pricelesspearl said:
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
This is a great example of confirmation bias - when you go searching for the answer you want, rather than the answer that is right, you're bound to find it...
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14 minutes ago, CSJas said:
Can COs work on their own?
Yes and many often do, particularly in contingency environments.
14 minutes ago, CSJas said:I do know that this could be a bad idea because there should be checks and balances in place for ethical reasons.
The "check and balance" is the certificate of appointment. If a CO needs a CS to make sure that the CO doesn't do anything improper, something is seriously wrong.
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1 hour ago, rsenn said:
Why do they resist negotiating something more defined and enforceable?
You should know your people better than anyone here on the WIFCON forums. No one here can accurately answer that question for you (unless your BD people happen to be posters on this forum).
1 hour ago, rsenn said:What will it take to change their behavior?
Leadership, education, feedback, incentives, accountability, etc. These answers and any others you may receive here are just going to be generic hypotheses out of a leadership/management playbook.
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2 hours ago, Retreadfed said:
If the current POP expires before you get funds obligated for the option, do you expect the contractor to continue working?
ji is generally correct in what he has stated, however, if the option is not exercised in accordance with the terms of the contract, the contractor is entitled to an equitable adjustment to the contract. Thus, you may get the option, but not at the price you thought.
Are you sure that a contractor is entitled to an equitable adjustment? If the Government exercises an option not in accordance with the terms of the contract and the contractor begins performing, can that contractor come back at a later date (but within 30 days) and request an equitable adjustment to the contract? If so, according to what clause?
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28 minutes ago, here_2_help said:
Matthew Fleharty,
While you're not wrong, I think you don't take into account that not everybody here has had CON training. Perhaps we can think of this forum as an opportunity to give out some knowledge (to the extent we have any) and learn 'em up.
Also, please consider changing your user name to "VERN JUNIOR"
Well there is a Beginner's Forum for that reason - any post outside that section I assume that person should know the basics of contracting.
My experiences are anecdotal, but it seems there is a growing tendency to just ask for answers rather than contemplate and critically think. When I see a post that is literally a one sentence question, that screams to me "easy button." The more we cater to that, the more we're going to get those sorts of questions - I think we all should expect more from individuals in this profession.
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18 minutes ago, Jo Brown said:
I hadn't thought about the "consideration" part. This is a 10 year contract and we are at the 5th year where the caps come into play from year 5 on out. We would like to be able to ask them to remove the caps so we can adjust them accordingly due to inflation, etc., I don't know what consideration we could offer, most the clins are FFP.
You want to modify the contract and you didn't think about "consideration?" That's Contracting 101 - "consideration" is found in every single Elements of a Contract list I've ever seen.
What I'm seeing more and more on this forum is people aren't thinking - they're just coming here to ask for free advice and for someone else to do their thinking for them. This discussion forum would be much more vibrant and beneficial for all if it wasn't devolving into predominantly simple, half-baked Q&As...
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FAR 1.102-4 (e) "The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound."
10 minutes ago, Joe2713 said:Which brings up another question: If the contracting activity 'accepts' a RFI response from a supplier who did not meet timeliness, size limitations/other instructions, etc., and that same supplier offers and is awarded a contract per an RFQ/RFP developed through RFI responses received from multiple suppliers, including said supplier that didn't follow instructions, could this suggest a prejudice in the evaluation process and open the government to a bid protest?
Thank you for considering the information in this long winded question.
See FAR 15.201 (e) "RFIs may be used when the Government does not presently intend to award a contract, but wants to obtain price, delivery, other market information, or capabilities for planning purposes. Responses to these notices are not offers and cannot be accepted by the Government to form a binding contract. There is no required format for RFIs." (emphasis added)
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2 hours ago, Jamaal Valentine said:
I am not sure why you are limiting your thinking about options. Anchoring is powerful, but so is personal incredulity.
Since you asked, this is certainly one area where you erred @Jamaal Valentine. I wish you well thinking about this issue, but I'm through here.
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@Jamaal Valentine don’t escalate your commitment on this one. The two examples you provide don’t work and I have no idea what you may think fits into “etc.” Absent another example this discussion is only going to get more confusing and send readers down the wrong rabbit hole.
A fundamental principle concerning options is that they are exercised in strict accordance with the terms and conditions of the contract (so no changes and, therefore, no applicability of 52.212-4(c)). I have no idea what you’re talking about when you mention options governed by 52.212-4(c) via tailoring, but if you have an example you should provide it...
As for terminations, your last point is merely that people may disagree as to whether an action is a partial termination (governed by it’s own respective authority, not 52.212-4(c)) or a change (governed by 52.212-4(c)). I don’t see how that adds substantively to the discussion and I think trying to conflate the two will only serve to confuse people.
Anchoring is a powerful bias, but you must fight it.
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On 12/15/2018 at 8:39 PM, Jamaal Valentine said:
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 are also permissible.
Jamaal, I don’t think that’s the right discussion to have. Are options and terminations governed by 52.212-4(c)?
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21 hours ago, Lionel Hutz said:
Giving KOs warrants but not adequate experience and training to maintain capability commensurate to the warrant and then asking them to step in when needed increases risk to the agency.
Lionel, I think you’re putting the cart before the horse...my position, and I think Jamaal’s (though I’ll let him speak for himself) is that if a person has adequate experience and training why does it drive increased risk to give that individual a warrant commensurate with that person’s abilities?
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@jwomack Your anecdotes don't match the assertion you made. The explanation you provided is about warranting (or giving too high of a warrant to) unqualified individuals...that's a different discussion than warranting qualified individuals above "what's necessary."
EDWOSB Sole Source - FAR 5.202(a)(4) Synopsis exception applicable?
in Contract Award Process
FAR 5.202(a)(4) reads "from a specific source" which means it only applies to sole source actions, not competitive ones - they don't have to follow the same rules/procedures.
I agree w/ Confused1102 and Don and have nothing new to add to either of their explanations.