Vern Edwards

Thanks, H2H! Caitlin took off without getting an answer to her first question, which was: The question was muddled, but maybe Patrick interpreted it differently than I did. It appears to me that she thought there could be only one application of G&A to the direct travel costs. Maybe that's not what she meant. She took off, seemingly satisfied, and your response answered my question. Thanks again.

Thanks, Neil, but I knew that the sub's G&A rate applied to the sub's travel costs. The sub's travel costs include the direct costs of travel plus its G&A costs. What I want to know is whether the prime may apply its own G&A rate to the sub's costs, which include the sub's G&A. So that the prime submits a request as follows: Prime's request for payment = (Sub's direct travel costs + Sub's G&A) + (Prime's G&A). Patrick's response, with which here_2_help agreed, seems to indicate that the prime cannot add its own G&A in its request for payment from the government.

Has anyone answered those questions? Is the application of G&A a matter of either the sub's or the prime's? Couldn't the prime apply its G&A to the sub's costs, which include the sub's G&A? Isn't the prime's G&A part of its allowable costs? Patrick seems to say that only the sub's rate applies. Is that true? I'm asking, not arguing.

I think you have pointed in the direction of our big problems, maybe our biggest: Too many short-term presidential appointee "leaders". Lots of "initiatives," not enough long-term follow-through. A hoorah kickoff, followed by flatulence. The longest lasting effect? Organizational incompetence. Organizational incompetence in government is the real plague of our time. It's already made us sick. Let's hope it doesn't kill us off.

So, whistleblowers will file qui tam actions accusing companies of noncompliance and filing false claims for payment? Maybe so. But that will be years from now, don't you think?

Well, you're not being very philosophical. A philosophical person asks questions and proposes and debates answers. You're just grousing, which is okay, if you do it philosophically. "By the dog, Gorgias, there will be a great deal of discussion before we get at the truth of all this." Socrates in Gorgias by Plato, Jowett, trans.

See: What Is An Executive Order? American Bar Association (Jan. 25, 2021) https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-an-executive-order-/ See also: Congressional Research Service, Executive Orders An Introduction (March 29, 2021) https://crsreports.congress.gov/product/pdf/R/R46738 In 1957, Congress printed a very interesting study of executive orders. See: Executive Orders and Proclamations: A Study of A Use of Presidential Powers, House of Representatives, Committee on Government Operations (December 1957). Available online through Google Books: https://books.google.com/books?id=nnLRAAAAMAAJ&printsec=frontcover&dq=EXECUTIVE+ORDERS+AND+PROCLAMATIONS:+A+STUDY+OF+A+USE+OF+PRESIDENTIAL+POWERS&hl=en&newbks=1&newbks_redir=0&sa=X&ved=2ahUKEwiX8qeiuczzAhXEGTQIHcQyCjwQ6AF6BAgIEAI#v=onepage&q=EXECUTIVE ORDERS AND PROCLAMATIONS%3A A STUDY OF A USE OF PRESIDENTIAL POWERS&f=false And just to fan the flames, let me suggest: "Executive Orders, the Very Definition of Tyranny, and the Congressional Solution, the Separation of Powers Restoration Act," by Leanna M. Anderson, Hastings Constitutional Law Quarterly, Vol. 29 (2002), No. 3, p. 589. https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1733&context=hastings_constitutional_law_quaterly

Yes. I wonder if the DAR Council will revise DFARS 215.306 to get rid of the "should." Probably not. Unfortunately, the GAO's decades-long emphasis on the disclosure of deficiencies and significant weaknesses has turned "discussions" (which FAR 15.306(d) says are "negotiations") into a contractually meaningless exercise of telling an offeror what's wrong with its essay test (proposal), instead of a meaningful communication between prospective contracting parties. Discussions have been successfully protested so often that COs act as if they were a criminal suspect who has been read their rights. History shows that the protest system and poor training have perverted the source selection/contract formation process and discouraged truly meaningful discussions.

The following bullets are from the GSA briefing to which RF-SA provided a link, Chart 13: CO will enforce just like any other contractual requirement. Taskforce Guidance tells contractors that they may assume the subcontractor is complying with the clause absent credible evidence otherwise. If concerns arise about vaccination status of a particular employee, CO should ask the contractor to confirm the employee compliance with the vaccination requirement. COs should not be directly requesting employee vaccination information. Work through contract administration POCs. Now, as for that first bullet, we've had some serious arguments in this forum over the past few months about enforcing socio-economic clauses. Some of our most experienced members believe in proactive CO monitoring and enforcement. Some think they are moral imperatives. I'm sure that there are other contracting personnel who feel much the same, if not quite as ardently. So, ask yourself: What does that first bullet tell contractors about what to expect? I doubt that there will be much in the way of aggressive monitoring and enforcement at most agencies. But I don't know. There may be issues where contractor employees are performing on site and mixing with government employees.

FAR 15.306(a)(3) says: FAR 52.215-1(f)(4) says: DFARS 215.306(c)(1) says: FAR 2.101 says: Now see Oak Grove Technologies, LLC v. U.S., (Court of Federal Claims No. 21-775C, August 2, 2021), Section V.B., pp. 30 - 39. https://law.justia.com/cases/federal/district-courts/federal-claims/cofce/1:2021cv00775/43053/73/ The protester challenged the agency's decision to award without discussions, despite the fact that the solicitation included FAR 52.215-1(f)(4). The court held for the protester and granted an injunction against contract award. The court also ordered the government to explain why it should not be sanctioned for "its piecemeal and improper handling of the administrative record." The decision is an education. Among other things, you will learn about the significance of "should" and the meaning and limits of "discretion." According to Black's Law Dictionary, 11th ed. plenary means:/. The decision is by a relatively new judge, Matthew H. Solomson. You can read his resume at the Court's website. https://www.uscfc.uscourts.gov/matthew-h-solomson

Reported by Bloomberg Government on Oct. 14, 2021:

Emphasis added. Do you want to know the amount of fixed fee negotiated on specific CPFF contracts at the time of award? Or do want to know the amount of fixed fee that was eventually paid? Or do you want to know the percentage of fee negotiated or paid, rather than the amount?

We have been discussing the current (September 2021) version of the clause since September 18. If this topic is too long for you, why are you reading it? Why did you make it longer? Don't complain about the length of a discussion. Complain about the quality. If you complain about the quality, be specific, so we can decide if you have a good point or are just full of beans. That way, if you have a good point, we can try to improve the discussion. What kind of service contract? What you described is not true of all service contracts. Be specific!

Emphasis added. Carl, It's good that you wonder. (That's praise.) Wondering is a good thing. To those who think this thread is too long, please blame me. But I think I am doing what a contracting professional should do when reading a new clause. I'm trying to foresee possibilities and think how to handle them proactively and effectively, to think how I might write a solicitation and contract so as to minimize misunderstanding and conflict, if possible, and to think how not to waste human resources. Except for distractions caused by some war stories, I think this has been a good thread for firing up the critical thinking neurons. In seeking to simplify the limitations on subcontracting Congress and the SBA have created new complications. Consider one possible application of FAR 52.219-14(d), which might provide, in part: I searched the FAR, 48 CFR Chapter 1, for "base term." I found it in only three places. Guess where: 19.505, 19.809-2, and 52.219-14. I searched the DAU online glossary of acquisition terms and did not find it. I couldn't find it in Black's Law Dictionary or the new edition of The Government Contracts Reference Book. To what does "the base term of the contract" refer? What part of a contract written in the Uniform Contract Format specifies its "base term"? Section F, which is entitled "Deliveries or performance"? What if a contract does not use the phrase "base term"? When I hear or read "base term" I think of a contract for 12 months of severable services with 12-month options. What if a contract is not for that kind of service? What is the "base term" of a construction contract? Of an R&D contract? Of a software development contract? The phrase "base period" appears in FAR, without official definition, in 8.404, 9.104-3, 16.601, and 52.219-9. It uses and explains the phrase in the context of 31.203 as follows: "A base period for allocating indirect costs is the cost accounting period during which such costs are incurred and accumulated for allocation to work performed in that period." I found the phrase "base term of the contract" used in only seven board of contract appeals decisions and two Court of Federal Claims decisions. The most recent such decision was in 2011. In every instance the phrase was used without explanation or specific reference to the contract. I have explained elsewhere in this forum that the term "period of performance" is unofficial and often unclear in use. I explained in a recently published Briefing Paper that contracts with multiple line items might have multiple "performance periods" or dates of delivery. If so, which one would be the "base term"? What if the line items were severable (divisible)? Does "the amounts paid"... "by the end" mean that you count only those payments made or due as of the last day of the base term? What about amounts paid weeks, months, or even years later, after final settlements? Could a contractor avoid a violation by delaying final settlements with and payments to "not similarly situated" subcontractors? What about outstanding contractor claims for equitable adjustment seeking money and/or time? Compliance or noncompliance might well depend on the outcome of such claims. Many such claims have taken years to settle after a CO's final decision. To those who think that the foregoing are nothing but petty quibbles, I remind them that such quibbles are the very corpuscles in the life blood of law. Think of the quibbles we've had in this country over the phrases "a well regulated militia" and "the right of the people to keep and bear Arms." If the FAR councils thought more about prospective petty quibbles they might write better clauses. We have only scratched the surface in analyzing FAR 52.219-14 and the regulations that it implements. I much prefer analytical discussions to answering basic questions. But I dislike war stories about what someone did when in the long long ago. They are not relevant to this discussion. Congress did not authorize limitations applicable to all small business set-asides until 2013. Before that they applied only to special small business programs, like 8(a).

@joel hoffmanIf I don't know, isn't that all the more reason for you to answer my questions? @Fara FasatAs you can see, Joel is not just talking about pre-award. He's an advocate of active in-process monitoring. The question is: Given the terms of FAR 52.219-14, why does in-process monitoring matter? What does a CO do with in-process information? What can a CO do with it? Can a CO terminate for default or suspend payment based on in-process information, while performance is underway, based on interim facts, when the SBA policy and the clause say that compliance will be determined as of the end of performance? If the answer is no, if compliance must be determined at the end, then why not just wait until the end? That's one of the most important questions to arise from the SBA policy and the contract clause. Have SBA and the FAR clause, by setting the agreed upon date of compliance assessment and prescribing a minimum $500,000 fine for failure to comply, effectively precluded anticipatory action by the CO? I have asked that question in one form or another several times. No one has answered.

There's always more that can be said, but what is its quality? Are you asking us to shut up? Is anybody forcing you to read it?

Doesn't make what statement invalid? And who is "everyone"? Ji20874, you, and me?

@joel hoffmanI have managed construction contracts, and I say that your statement is not valid unless you state, in detail, what you mean by "monitor". If you don't, and with specifics, then your statement must be dismissed as an overly broad generalization—so broad as to be meaningless. It is especially meaningless in that it encompasses both something as trivial as constructing an outhouse for the Bureau of Land Management and something as large and subject to change as a new space launch facility at Vandenberg Space Force Base.

@Fara Fasat I would agree with #1, but I doubt that SBA, GAO, IGs and Congress would, at least not publicly. I presume that the CO would be knowledgable and properly trained. As for #2, what do you mean by "review"? Any "review" that could detect the fraud that worries you would have be more extensive than what I would think necessary for purposes of contract award. I also do not like the term "due diligence." That is a legal term of art. How are you using it? I have to laugh when I think about some of the conversations that I have had with contracting people who say things about fraud. Most of them didn't know what fraud was, beyond a dictionary definition. They had never read a law review article about fraud, much less a book like Claire Sylvia's The False Claims Act: Fraud Against the Government, now in its 3d edition, or the entry on Fraud and Deceit in American Jurisprudence 2d., or the entries in the Department of Justice Criminal Resource Manual, §§ 1001 - 1099. I'm pretty well-read and knowledgable, but I tread carefully when it comes to talking about fraud. I know this much: The idea that the typical CO could detect attempted fraud during a pre-award "review," whatever that is, is absurd. At most they might develop an uneducated suspicion. So tell me what you mean by "review". I agree with #3, except that I would use the word information instead of "evidence".

A long-standing problem in our business is that Congress enacts laws that appear in various titles of the U.S. Code and that are assigned to various agencies for implementation. The laws assign certain responsibilities and tasks to specific agencies. I'll single out Title 29, Labor, and Title 15, Commerce and Trade, and two agencies, the Department of Labor and the Small Business Administration. Those agencies write rules, and implementation of their rules accounts for two of the lengthiest and most complex parts of the FAR, Parts 19 and 22. On top of the laws, presidents write executive orders, bypassing Congress, for which agencies must write rules. The laws, executive orders, and agency rules are to be implemented via government contracts through contract clauses. But who is primarily responsible for monitoring and enforcement? Not the primary agencies to which the responsibilities have been assigned and that write the rules. No, they and other government policy apparatchiki commonly take the position that since the laws are to be implemented in part through contracts a large portion of those responsibilities must be fobbed off on contracting officers. See FAR 1.602-1(b), one of the most absurd regulations ever written. The FAR contains about 140 solicitation provisions and contract clauses that implement various socio-economic (i.e., political) policies. They cover an extraordinary span of human activity and laws, regulations, and procedures. Not even I—who gets paid to do so and have almost 50 years of professional education and experience and ample tools of the trade— can understand, remember, and keep up with changes. Many in our country want smaller government and complain about the number of government employees (except uniformed military). The Clinton Administration made a big deal about reducing the size of government, and they decimated the acquisition workforce. And yet some people expect understaffed offices of under-trained people to understand and to find the time to implement exceedingly complex rules and procedures imposed on them by the agencies that are supposedly responsible for implementation, all while trying to buy what their agencies need, when and where they need it, at a fair and reasonable price. IGs, the GAO, and interest group associations complain to our idiot-infested, blowhard, and irresponsible Congress that COs don't do enough, while those COs try to cope with a workload of requirements far beyond anything any of us old-timers ever had to process, under rules far more voluminous. And what do the COs get for their trouble? Ever more rules and procedures. And members of our own community insist that COs actively monitor and enforce compliance with every contract clause, despite the fact that even a small government contract will contain at least 100 clauses, some of them pages in length and backed by pages of regulation and procedure. Those members see a moral imperative to such monitoring and enforcement, and they chastise those who, like me and ji20874, say, "Be reasonable," and who say that COs have no choice but to engage in policy triage. I tell you, it's madness, and it's not good for the country. It's all a sign of the deep incompetence that infests the highest levels of our government, a level of incompetence that events of the past two years have cast in stark relief against the background of events, a level of incompetence that has cost lives and diminished our international standing. We are a small but important part of government. It's time for more working-level contracting folk to speak out: We are dedicated. We want to do our best for our country. But if you want to impose on us ever more rules and procedures, then give us more people, including administrative support personnel so we can focus on professional concerns, and give us better professional education and training.

Note that the SBA must make that determination, not the agency contracting officer. Also, see FAR 19.809-2. Note that FAR 19.809-2(a) appears to describe the limitations applicable to 8(a) contracts differently than 13 CFR 125.6 and FAR 52.219-14. It describes the limitations in terms of costs to be incurred by the contractor for its own employees instead of percentages of amounts paid by the government to the contractor. I'm still trying to figure out if there really is a conflict. Maybe I'm missing something. Note, too, the waiver provision in 19.809-2(c).

If, after providing a fair opportunity and issuing a task order, a CO decides on his own initiative that the agency erred in its evaluation and award, the CO can take corrective action. The CO could direct the contractor to stop work on the task order. The agency could then perform a new evaluation, and the CO could either confirm the agency's original decision or make a new one. The CO could then either either cancel the stop work order and compensate the contractor for the delay or terminate the task order for the convenience of the government and issue a new order, as appropriate. The FAR does not describe that process in so many words, but it is clearly within a CO's discretion in order to maintain the integrity of the contracting process. See FAR 1.602-1 and 1.602-2(b).

And what answer did you give yourself?

I think ji20874 meant 52.237-3, Continuity of Services, not 52.237-2, Protection of Government Buildings, Equipment and Vegetation. He's quite correct that 52.217-8 and 52.237-3 are entirely different.

@Tzarina of ComplianceIf the -8 option was unpriced and unevaluated prior to award, then according to the GAO the agency must prepare a J&A in order to exercise it. The GAO cited FAR 17.207(f) as the basis for its opinion. See "Exercising Options: An Unanticipated Issue," in The Nash & Cibinic Report, June 2010, which discusses Major Contracting Services, Inc., Comp. Gen. Dec. B-401472, 2009 CPD ¶ 170, 51 GC ¶ 332, recons. denied, 2009 CPD ¶ 250. See also Magnum Opus Technologies, Inc. v. U.S., 94 Fed.Cl. 512, 537-538 (2010) From the GAO's reconsideration decision: The article in The Nash & Cibinic Report said, among other things: I don't think the FAR councils issued a rule to address the issue. If they did, I haven't found it. In a 2012 post in this Forum, a member reported that FAR Case 2010-003 was closed without action because the DAR Council and the CAA Council could not reach an agreement. The Nash & Cibinic article also discussed the Continuity of Services clause.