Vern Edwards

Who cares about progress payments? Read the clause. And what are you going to do if you decide at some point in time during performance that the contractor might not comply by the end. T for D? When the clause expressly states that compliance is to be determined at the end?

Okay. Everyone is entitled to an opinion. But then you say: But what is the purpose of "due government diligence during construction" when the parties have agreed that compliance will be determined on the basis of amounts paid by the as of the end of performance, especially since construction usually involve changes and frequently involves claims litigation, moreso than any other kind of government contracting? And what is the procedure for such diligence? Why not just wait until the end, determine compliance after the dust has settled, and then seek guidance from SBA about fines, if any appear due?

Back in the late 1970s, a new boss told me importance to keeping a telephone log for each contract I worked on. I was to document the date and time of all incoming and outgoing official business calls, including the date and time, the name of the person I spoke with, their title, their organization, the topic of conversation, and the gist of the conversation in appropriate detail. A recently ublished decision of the GAO Contract Appeals Board (GAOCAB), The Regal Press v. Government Publishing Office, CAB No. 2019-03, April 20, 2021, shows why my boss gave me good advice. https://www.gao.gov/assets/2019-03.pdf What happened was that the Government Publishing Office (GPO) and one of its contractors got into a dispute about an order for presidential stationary. The contractor had filed a claim for about $290,000 based on the assertion that the contracting officer had given it an oral approval to proceed with production. The CO denied that he had given any such go-ahead. The dispute ended up before the Government Accountability Office Contract Appeals Board. The following is from the decision: The GAOCAP granted the contractor's appeal in the amount of about $225,000.

From the clause, paragraph (c): Why don't we just wait here for a little while... see what happens?

I don't know. But I'm sure that there are persons who will have some strong feelings and ideas about monitoring and enforcement.

I wonder what kind of "monitoring" and verification the president will expect from COs. I can see the GAO reports now: "Most CO's Not Monitoring/Verifying Contractor Compliance With Vaccination Mandate." "Many Contractor Employees Using Fake Vaccination Cards." https://pix11.com/news/coronavirus/ny-man-arrested-after-using-fake-covid-vaccine-card-at-work-officials/ https://www.washingtonpost.com/nation/2021/10/04/va-hospital-nurse-sold-covid-vaccine-cards/ https://abcnews.go.com/Health/michigan-men-charged-separate-vaccination-card-schemes/story?id=80309267 Par for the course in the utopia of rules.

Yes, at risk. If the contract includes FAR 52.232-20, see paragraph (f). If it includes FAR 52.232-22, see paragraph (i).

From the podcast website: And from The Washington Post, October 3, under the headline: "U.S. Navy hit by another international bribery scandal": https://www.washingtonpost.com/investigations/navy-bribery-scandal/2021/10/03/d5181302-245e-11ec-8d53-67cfb452aa60_story.html Contracts to service naval vessels while in port are referred to as "ship husbanding" contracts.

So you can then tackle me? 😄

@C CulhamSince there are so many things you want discussed, why don't you write an article for Contract Management?

@Contracting Officers: The limitations on sujbcontracting are performance requirements, no different than the requirement to comply with the statement of work or specification or the Service Contract Act clause. FAR 15.304(c)(4), which concerns proposed small business subcontracting, applies only to acquisitions that have not been set-aside. The limitations apply only to contracts resulting from small business set-asides. Here's what the GAO said last year: Hughes Coleman, JV, B- 417787.5 (Comp.Gen.), 2020 CPD P 257, July 29, 2020, footnote 4. Emphasis added. My advice to COs is that they not treat the limitations as a special pre-award issue during bid or proposal evaluation. For more on the limitations on subcontracting, see the following articles: Limitations on Subcontracting: Are They Being Enforced? Will They Ever Be?, by Vernon J. Edwards, The Nash & Cibinic Report (August 2014) 28 NCR-NL ¶ 45 (This article addressed the difficulty of enforcing the old limitations and the challenges of the new limitations as they appeared in statute, before the finalization of the SBA rules.) Postscript: Limitations on Subcontracting, by Ralph C. Nash, Jr., The Nash & Cibinic Report (November 2014) 28 NCR-NL ¶ 62 Postscript II: Limitations on Subcontracting, by Ralph C. Nash, Jr., The Nash & Cibinic Report, December 2020, 34 NCR-NL ¶ 70. To COs: As for post-award compliance—unless you have a lot of time on your hands and are prepared to study and think about the limitations in depth, do not let this Wifcon thread prompt you to become small business activists. As a general rule, do not try to monitor compliance on an interim basis during performance. See the first Nash & Cibinic article cited above for more on the difficulty of in-progress monitoring under the new rules. At contract pre-performance conferences, remind contractors of the clause, of 13 CFR 125.6, of their promises and obligations, and of the possible consequences of nonconformance. Ask for written confirmation of compliance and supporting payment information at the end of performance, after the contract is physically complete, and before final payment and contract closeout. Document the file. If anything suggests a possible violation of the limitations, seek guidance from your superiors and attorney. Let agency policy and instruction guide you about any need to take more active measures. I will have more to say about this in the November issue of The Nash & Cibinic Report, and will provide Bob with a copy of the article to post at Wifcon after its publication. Vern

Just for clarity, here is what the contract clause, FAR 52.219-14, paragraph (f) says: Emphasis added. So by the terms of the contract, compliance is determined on the basis of amounts paid by the end of those periods of time. In reality, however, if at the end of those periods of time there are outstanding requests for equitable adjustment or claims, compliance might not be determinable until they are settled or litigation has been completed. That could be years after the end of those periods.

And here's what I said on September 22, more than a week ago: Yet here's Carl's accusation against ji20874 and me: In-progress monitoring cannot be determinative of compliance, because both 13 CFR 125.6 and the clause expressly state that compliance is to be determined at the end of performance. Any action taken against a contractor based on in-progress monitoring would likely be a government breach of contract unless, perhaps, it revealed that compliance would be impossible. But even then, contract changes and claims affecting subcontracted work could be a defense against assertions of contractor breach, at least pending final resolution. All this moralistic accusation and fussing is a tempest in a looney teapot.

@C CulhamCarl, when did this thread become about the 8(a) Program? I have been writing about the limitations on subcontracting clause, FAR 52.219-14. My comment that you quoted about enforcing the clause was about that clause. I don't recall that clause even mentioning "8(a)". I have said nothing about 8(a) or 8(a) partnership agreements in this thread or anywhere else since I returned to Wifcon. I don't even know what they are. I have not thought much or had much to say about 8(a) since I left the Small Business Administration more than 40 years ago. I haven't read the FAR coverage of 8(a) in many years. If I have mentioned it at all in any of my writings over the past 30 years it has been only in passing. I have not read those parts of 13 CFR that address 8(a). I cannot speak for ji20874, but I certainly have not been a catalyst of anything having to do with 8(a). I'm worried about you, Carl. Did you get any sleep last night? Have you had a seizure? I ask only because you wrote this string of words: That kind of writing is surely the product of apoplexy or some other mental disturbance, perhaps brought on by staying up all night reading in FAR Subchapter D. Lord knows—reading Part 19 or Part 25 alone will disturb even a good mind. Please, get help.

And there is nothing more boring than a moralist retiree citing a regulation as scripture.

I don't know.

Wonder all you like.

The answer is still yes. You can ask. And you can always refuse the contract if they insist on including the clause.

So you want to know whether, after have "received" (have been awarded) a contract, you can ask the government to modify it to remove some clauses that you have already signed up to. Is that what you mean? If so, the answer is yes, you can ask. Any more questions?

I think not. The responsibility to comply rests with the contractor. The government undertakes no obligation to the contractor to monitor the contractor's compliance. The contract does not condition the contractor's compliance on a government duty to monitor. Your GS-15 Mr. Jones made a nice speech to an impressionable young contract specialist. Most of us who have ever supervised contract specialists have made that speech at one time or another. He was passing gas. So were we.

Withdrawn.

All: This is not in response to any particular post. I have not read every post in this thread, but based on those that I have read, I think a poorly written opening post has led us into the weeds. You've all heard of "terms and conditions." Black's Law Dictionary, 11th ed., defines condition as follows: In contract law there are two kinds of conditions: conditions precedent and conditions subsequent. Here is how the Restatement of the Law, Second, Contracts 2d § 250 explains those terms: That language is a little awkward. Here's how Black's Law Dictionary defines condition precedent: FAR 52.232-18 is a classic example of a condition precedent. We have a contract, but before any duty to perform arises the contractor must receive notice and the contracting officer must confirm it in writing. Use of FAR 52.232-18 is prescribed in FAR 32.706-1: That's it, and it's very specific. You can't just use the clause whenever you like. Any other use would be a FAR deviation as defined in FAR 1.401(a). Now, I think the confused OP's question ("Does FAR 52.232-18 Availability of Funds, allow authority to issue an award to a task order under a single award IDIQ.") was whether the use of the clause in an IDIQ contract applies only to the basic contract or to both the basic contract and each order issued thereunder. Well, FAR 52.216-18(b) says: As far as I'm concerned, case closed. The question from the OP has been answered. Now, if the basic contract does not include 52.232-18, may the CO insert that clause in an individual order? Tell me, where in the standard terms of an IDIQ contract does it say that a CO can insert a FAR clause into an order that is not in the underlying contract? I don't know of any standard FAR clause that authorizes a CO to do that. But if a CO does that, and we know that ignorant, careless, or willful COs do, and if the contractor acknowledges or performs without objection, then I think a court might go ahead and enforce it. However, silence is not necessarily acquiescence. I think that's the point that Carl (C Culham) made in his last post. Finally, in addition to FAR 32.706-1, see FAR 32.703-2(b). What circumstances would warrant applying FAR 52.232-18 to an individual task order? We should have told the OP to rewrite his or her question in English and then provide some background information.

Are you asking if it is legal for you, a contractor, to assign points to cost, or are you asking if it is possible for you to do it? Or are you asking something else?

Why wouldn't there be time for a remedy? See 13 CFR § 125.6(g).

To be frank, I'm no longer sure. The reason I say that time from identification of need to contract award is not the most important measurement of timeliness is because it's too all-encompassing. You can measure it. That's easy. But it's hard to figure out what the measurement means in any given case. How long should it take to develop a description of a requirement—a list of deliverables and a specification or a statement of work? How long should it take to develop a solicitation? How long should it take to select a contractor and make an award? During planning, the answers to those questions will always be, "It depends." It depends on the requirement, on the organization conducting the acquisition, on the people conducting the acquisition, and on the situational context. But it's easy to say afterward that a process took too long. I say it all the time. In manufacturing, the purpose of building a factory is to create an artificially controlled environment in which to conduct a highly repetitive process for which it is then possible for industrial engineers to set valid standards for cost, quality, and time. I don't think that's easy to do for the acquisition process. There are too many uncontrollable conditions. What do you do with a process measurement if you are not producing a standard product under standard conditions and lack valid standards of comparison? During my entire 47 years in this business, PALT has always been an issue, and the lack of widely-accepted process standards has always been the problem with PALT. The standards have always seemed arbitrary, and they often were. You can try to categorize acquisitions and set category standards, but once you get past the purchase of standard supplies and services, most acquisitions are unique to some extent. If you don't have process standards that process managers accept as fair and valid, then your measurements, and critiques based on them, will largely be for naught. Go ahead and measure, if you insist, but it won't do you much good. The most important process measurement is one that is both pertinent and for which you can set a fair valid standard. Acquisition is not done in a factory. I doubt that you'll agree with me. But did I answer your question? Does the answer at least make sense?