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Vern Edwards

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  1. @TippHill See FAR 1.108, FAR Conventions, paragraph (a): Technical terms𑁋i.e., specialized words and phrase that must be defined due to their legal import, like concern, invoice payment, service contract, and weakness𑁋that are used in the same way in more than one place in FAR should be defined in FAR Part 2, rather than elsewhere. I checked each of the terms you asked about found that each of them is used in more than one place in FAR. Weakness is officially defined only in FAR 15.001, as a flaw in a proposal, and is referred to in that sense in FAR 15.305, 15.306, and 15.506. However, weakness is also used, without official definition, in FAR 1.102-3 with reference to processes; in FAR 16.103 and FAR 52.216-7 with reference to a contractor's internal controls; in FAR 42.1503 with reference to a contractor's past performance; in FAR 44.305-2 with reference to a contractor's subcontracting practices; and in FAR 44.305-3 with reference to a contractor's purchasing system. Thus, based on the FAR convention, weakness should not be moved from FAR 15.001 to FAR Part 2. It is used as a technical term only in FAR 15.001. It is used in its "common dictionary meaning" in the other places. I would perform the same kind of analysis in order to answer your questions about concern, invoice payment, and service contract. For instance, invoice payment is used in 16 places in the FAR, all but once in Part 32 and in contract clauses that implement Part 32. But it is also used in the same sense in Part 3. It might thus be defined in FAR Part 2, rather then in Part 32. But the one use in Part 3 is clearly pertains to Part 32, and thus it might just as well remain defined in Part 32. Concern, on the other hand, appears in 243 places in FAR. I have not checked all those places, but I suspect it is mostly used as part of the phrase small business concern. It might thus be best defined in FAR Part 2. The same might be said of service contract.
  2. I answered yes and yes. In addition to FAR Part 1, the term appears in FAR Parts 2, 4, 6, 8, 12, 16, 17, 19, 25, 30, and 50. I saw no other definition than the one in FAR 1.701, so I presume the meaning to be the same throughout. A D&F is nothing more than a syllogism, and it has been said that it should be called a Findings and Determination rather than a Determination and Findings, since the findings are premises and the determination is a conclusion. The term has appeared in the Federal Register more than 1,000 times, the first time in 1939, in a regulation published by the Federal Crop Insurance Corporation. The oldest reference I could find was in the Senate Journal of the 61st Congress, 2d Session (1909-1910): It appears to have always meant more or less the same thing𑁋a conclusion (determination) prerequisite to some course of action that is based on specified findings of fact. The term appeared in the 1949 Joint Regulations of the Armed Forces, see 32 CFR 402. 301 (1949): In addition to Title 48, the term also appears, without definition, in Titles 2, 7, 10, 11, 13, 14, 15, 20, 25, 28, 29, 32, 39, and 49 of the CFR. But it appears in Title 48 more than anyplace else. It appears without definition in 14 titles of the United States Code.
  3. I don't understand what you mean. How does an FFP contract "look like" a cost type? Please explain. Are you saying that the customer expects the outcome to match the estimate?
  4. What is qui tam? https://kkc.com/frequently-asked-questions/what-is-qui-tam/ False Claims Act Settlements and Judgments Exceed $2.68 Billion in Fiscal Year 2023 https://www.justice.gov/opa/pr/false-claims-act-settlements-and-judgments-exceed-268-billion-fiscal-year-2023 Rules for whistleblowers https://kkc.com/rules-for-whistleblowers/
  5. Well, "full time" is nebulous. It might mean 40 hours per week or it might mean as many hours as necessary to get the job done properly, whether 40 hours 60 hours. Most "full time" business people work a lot more than 40 hours per week. Let me ask: Do the CO and the COR think that the test manager's performance is unacceptable, i.e., that it does not conform to contract quality requirements? If so, then the CO should seek corrective action, no matter how many hours per week the test manager is working. Or is quality just a matter of hours worked?
  6. Yes, in the sense that the parties can agree at the time of contract formation that the decision can be made unilaterally by one of the parities.
  7. The contract doesn't define it, but you think the contractor's not delivering it. From a Google search: @Neurotic Are you that COR I wrote about? Time to move on.
  8. The contractor's explanation makes sense. This story sounds like some suspicious and/or disgruntled COR making a mountain out of a molehill.
  9. If the contractor were required to submit certified cost or pricing data, then see FAR contract clause 52.215-2, Audit and Records - Negotiation, paragraph (c).
  10. Assuming they were not stupid, and did not document their intention, how would you prove that at the time of price agreement they knew they would not be charging full time? What if they did not decide to take that path until after performance began, or say that they did? If they were unethical enough to make such a plan, why wouldn't they lie if accused? What if there were no whistleblower? We're talking peanuts, not millions. You'd spend more trying to make your case than you would recover through defective pricing. If they mischarged they mischarged, and the government gets its money back, with interest, defective pricing or no defective pricing, fraud or no fraud. I'd tell the auditors to look for misallocation and mischarging. If they find it, and if the money were large, then I might look for defective pricing, assuming they had to submit certified cost or pricing data.
  11. Truer words were never written. I just got my first hearing aids. I hope the fingers don't hurt too much.
  12. Uh, it's not clear to me how that would be defective pricing. What's the defective data?
  13. @ShaunaMSACM The term "commercial item" is no longer in use. The appropriate terms are "commercial product" and "commercial service". Commercial product and commercial service are defined in FAR 2.101. It appears that you are asking whether the procurement is legitimately for a commercial service. The only description of what is being procured that you have provided is as follows: That is not enough information for me to determine whether or not the service is commercial. Can you provide more details?
  14. GAAP have nothing to do with your issue. Neither do CAS if CAS do not apply to the contract. Look instead to the contract cost principles in FAR Part 31, especially 31.201-4, Allocability. FAR does not define mischarging, but it would likely include charging test manager work allocable to the FFP CLIN to the CPFF CLIN. Deliberate mischarging is considered contract fraud. You might need an audit to prove cost mischarging. I don't think the mere fact that the FFP test manager performed and billed for also doing other work and charged it to the CPFF CLIN would necessarily constitute cost mischarging. If the other work was not test manager work and if it did not prevent the test manager from putting in "full time" as test manager, then it's probably okay. Does the contract clearly specify what constitutes test manager work? Does the contract define "full time"?
  15. No. But I was not writing as a scholar, but as an analyst writing for a professional publication. And I don't write for laypersons. You asked: That's a layperson's question. A professional contracting person would have a sense of the costs associated with administration and oversight of the small business programs as incurred by the SBA and by contracting offices. There's the cost of having to prepare a synopsis for every buy in excess of $25,000, instead of in excess of the simplified acquisition threshold, as required by the Small Business Act. Think of how many such synopses are made each year (millions) and the cumulative annual person time devoted to their preparation, posting, and maintenance. There's the administrative time and delay of coordinating with SBA Procurement Center Reps. There's the cost of documenting the reason for not totally setting a procurement aside. There's the cost and delay associated with size protests (roughly 500 per year as of 2012) and appeals and of certificates of competency. There's the concern that setting procurements aside, and thus limiting competition, results in higher prices. (Check out SBA's There's the cost to government and industry of preparing and reviewing small business subcontracting plans. There's the cost of evaluating offeror small business subcontracting past performance There's the general cost of SB program administration and oversight. Those are just some of the sources of cost. Really, all a professional need do to identify where the costs would come from out of Part 19 is read Part 19 and use their head. But a professional might subscribe to and search in publications like Public Contract Law Journal and consider articles such as "Questioning the Sacred Cow: Reexamining the Justifications for Small Business Set-Asides" by Andrew George Sakallaris, Summer 2007. A pro might read, Big Is Beautiful: Debunking the Myth of Small Business by Atkinson and Lind (2018), published by MIT Press. A pro with a question like yours might scan SBA's 252-page FY 2025 budget justification. As I said in my piece, I don't think anyone knows what socio-economic program costs add up to. Procurement offices don't track their costs. I didn't make a cost/benefit analysis. I just pointed out that the programs cost money and time and should be reviewed and perhaps adjusted. But I am confident that they more than offset any savings that you attribute to "the exemptions to CAS and the DFARS Business Systems criteria, and to a lesser extent the government's reduced lead time for 8(a) and SDVOSB direct awards." According to SBA, the VOSB certification program alone will cost them $27.7 million in FY2025.
  16. Are you serious? Have you made any attempt to think seriously about that? I think not.
  17. Some extended research into negative incentives has turned up several references that include descriptions of negative performance incentives used by NASA and the Air Force in certain spacecraft hardware contracts dating back to the 1980s. See, for example: GAO, Satellite Acquisitions: Agencies May Recover a Limited Portion of Contract Value When Satellites Fail - GAO-17-490 (June 2017), which discusses the use of negative performance incentives. See also:Space and Missile Systems Center (SMC) Incentive Guide, March 2007. Note this: Performance Incentives Emphasis added. https://www.dau.edu/tools/space-and-missile-systems-center-smc-incentives-guide It contains a lot of information about the use of negative incentives in spacecraft contracts. See also: NASA FAR Supplement NFS 1816.402-2, Performance Incentives. Emphasis added. See the contract clause at 1852.216-88 Performance incentive.
  18. I am very familiar with Administration of Government Contracts. I don't recognize the procedure you have described. If a contractor delivers unacceptable work, or fails to deliver, and if the contractor cannot cure, then the CO does not process a deductive change. He or she should reject the work, refuse to pay, and either unilaterally sets or negotiates a price reduction, depending on the how the CLINs are set up. The government is also entitled to damages if it can prove them. The contractor can file a claim if it doesn't agree with the CO. Anyway, none of that has anything to do with negative incentives, which is what interests me.
  19. That wouldn't be consistent with the FAR's use of "incentive contract". So what? It is not an officially defined term. However, I understand your argument and acknowledge the inconsistency.
  20. Everyone should know that the Red Bobtail decision cannot be cited as precedent. From page 1:
  21. Why not? See, e.g., FAR 52.246-4(e): That would be a right of any party that is the victim of a breach. You simply have to know what you're doing when you calculate your damages ("reduced value"). See, e.g., APPEAL OF -- FAMILY ENTERTAINMENT SERVICES, INC., 17-1 BCA P 36876 (A.S.B.C.A.), ASBCA No. 61157, 2017 WL 5194983, October 24, 2017. But youy gotta know what you're doing. The deduct was about $82,000.
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