Vern Edwards

@Guardian I'm afraid I got side-tracked on the printing press refurb. Some day. A couple of thoughts. If the PWS says that the deductions are for "late " delivery, i.e., a default, then such is not an incentive. Such is either a form of liquidated damages or a penalty. If liquidated damages, then there should be a reasonable and documented calculation of the damages the government would suffer on a daily basis. Absent such a calculation, the deduction might be construed as a penalty that is not related to any injury the government would suffer. A penalty likely would not survive before a board or the Court of Federal Claims, because it would not be consistent with the American common law of contracts. Cibinic, Nash, and Nagle discuss that in their Administration of Government Contracts, 5th. In order to be an incentive, the delivery date should be a "target," with a sliding scale of permissible dates fore and aft and the incentive payment a function of actual delivery, positive and negative from the target. Delivery within the permissible range would not be "late" and would not constitute a default.

No concerns about complying with 16.301-2 and -3.

Negative incentive instead of disincentive.

Can you use simplified acquisition procedures to award a cost-reimbursement contract?

Oh, well, if that's the case---Never mind.

Then the question is whether you can orally communicate what you want done with sufficient clarity and specificity to avoid later misunderstandings and conflicts. if you think you can, then oral ordering should not be much of a problem. Don Mansfield has reminded you to record the obligation within 10 days of the order. Also, remember that you must follow-up in writing. Frankly, I don't see why you can't send an order by email, or even text. That way you can copy the accounting office. Why bother with the oral part? That practice was developed before email and texting. Who talks anymore?

@buonomma Question: Does the work entail the performance of repair tasks that are standardized by nomenclature and specification? (Presumably not, since you cannot price tasks in advance.)

I agree, but price analysts, as distinct from auditors, have been around for a very long time. The Armed Services Procurement Manual for Contract Pricing (ASPM No. 1) (February 1969) mentions them in several places. Essentially, they are consultants. That is not to belittle them. They are necessary and important. But, absent some local or agency-specific policy, they do not have the power of determination. Auditors, on the other hand, sometimes do.

I disagree with the assertion that some "analyst" must (or should) assert that price has been "determined" to be fair and reasonable. The term analyst does not appear anywhere in FAR---Title 48 of the CFR, Chapter 1. It appears in the sense of price or cost analysis only in the Department of Energy and the Department of the Interior FAR supplements. My point is that nothing in the FAR System gives any cost or price analyst any power of determination when it comes to fairness and reasonableness of price. As a CO, I would reject and return any report from any cost or price analyst stating that he or she has determined a price to be fair and reasonable, and I would send a memo to his or her boss stating that absent official delegation, only COs have the responsibility and authority to make such a determination. Analysts may opine, but not "determine." Perhaps I misunderstand the point that general_correspondence is trying to make.

@buonommaWould bulk funding be a solution?

I didn't mean to be hard on Guest108830. My point is that not all transactions in a business relationship are handled formally and pursuant to some contract clause. Many day to day matters are handled informally, with a phone call or an email. I think the loss of an ordinary laptop is one of those kinds of matters and, having been a CO on some large (in the day) CPFF contracts, that's how I would have handled the matter in question. In my experience, contractors would have appreciated informality in such a matter. Now, a lost spacecraft or Predator drone would be another thing entirely.

You might have been in a Scorsese movie! With DeNiro and Pesci!

Bureaucratic claptrap. You asked about a laptop, not a spacecraft.

@Guest108830 You may have posted just to spur conversation. If so, it was a good thing. But if you are serious about this matter I must say that you have tried to make a mountain out of a molehill. I am a small business contractor, and I tell you that if one of my employees had borrowed a government laptop and lost it, I wouldn't have waited for a letter from the CO. I'd have called him or her and asked how much to send. It's called customer relations. Any contractor, small or otherwise, with a 5 million CPFF contract, would be an absolute idiot, a jackass in fact, to argue with a CO about paying for a laptop that one of its employees had borrowed and lost.

Antithetical? Huh?

Next time, show some imagination! (Quite a pair, laughing at the idea of prison.)

Dude, he was a deputy CNO!

Speaking of gratuities, how about Fat Leonard?

Yeah, but 20 years?

@joel hoffman $600,000 would have taken care of your family for 20 years?

And then: That's almost metaphysical reasoning. The exact words of FAR 45.000(b)(5) are: Well, let's get metaphysical: A laptop is not incidental to place. Its very purpose is to be carried about and used from place to place. The whole idea of a laptop is to not be incidental to place, other than one's lap, wherever it happens to be. That's why the contractor's employee asked for permission to take it home. Thus, a laptop, while a computer, it is not a "computer" in the context of FAR 45.000(b)(5). As for the laptop's status as listed government-furnished property, I'd cite the property pass. Case closed. Send the contractor a letter: Dear Contractor, One of your people asked permission to take a laptop home, Serial No... . We granted permission in order to be cooperative and facilitate your company's performance under the contract. Your employee _________________ has informed us that the laptop is lost. Our property department says its residual value (or replacement value) is $500. Please send me a check made out to the United States Treasury for $500. /s/ Contracting Officer If the contract is cost-reimbursement, time-and-materials, or fixed-price incentive, add a sentence saying that the cost of reimbursing the government will be unallowable for payment purposes. I would consider it to be beneath a contracting officer's dignity to seek legal review of such a letter. I doubt that the contractor would blink an eye before cutting a check.

I would send the contractor a letter about the loss of the laptop by one of its employees and ask for a check. I wouldn't spend even one minute worrying about whether it was government-furnished property or what clause to invoke. I doubt that the contractor would, either. How much could a government laptop be worth? The contractor would have to be stupid to refuse to pay. And I wouldn't consult bleeping legal, either.

18 U.S.C. § 201.

There is an exception to every rule, including the rule against homicide.

That's not entirely correct. See the Gratuities clause, FAR 52.203-3: The clause does not prohibit offering or giving gratuities (gifts) unless the contractor is seeking something in return. But if such an intent is just suspected or inferred, the offering could result in a costly hearing, contract termination, and demand for damages, depending on the circumstances.