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bosgood

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  1. Well, there's this: "A type of contract stating the work in terms of an amount of effort (usually labor-hours or labor-years) to be performed by specified classes of employees over a given period of time. There are four types of level-of-effort contracts: the FIXED-PRICE LEVEL-OF-EFFORT CONTRACT, the TIME-AND-MATERIALS CONTRACT, the LABOR-HOUR CONTRACT, and the TERM CONTRACT. See Cibinic & Nash, Formation of Government Contracts 1173-80 (3d ed. 1998)." - The Government Contracts Reference Book, 3d ed. I'm a bit out of date in my copies of these, including my 4th ed. copy of Formation, but the level-of-effort contracts discussion is on pp. 1317-1330 of that ed. But I doubt that's exactly what you're looking for, as you have those materials, too.
  2. I think Retreadfed sums it up nicely, and I think you are where the gov't has NOT waived its rights, thus it is "not in the interests of the gov't" to make this change. Consideration is a basic underlying premise of contracting, gov't or otherwise. This quote from the Dept of State regs may help: "Generally, there must be "consideration" whenever a contract is modified. "Consideration" is the benefit each party confers upon the other for the modification. No official of the U.S. Government may alter a contract to the prejudice of the U.S. Government unless the U.S. Government receives corresponding, tangible, contractual benefits. There is no such thing as a "no-cost" extension to the contract period of performance unless the extension benefits the U.S. Government. If the U.S. Government allows additional time for delivery, the "cost" to the U.S. Government is the right to delivery by the date originally agreed upon. The law requires the contractor to provide consideration for the U.S. Government's giving up that right." Essentially, if the contractor is not entitled to the requested benefit under the contract, the gov't needs to get something in order to approve it. They are getting an advantage not prescribed under the current contract terms, so the gov't should also get a benefit. This also ties into the fact we're using taxpayer $$$ ...
  3. There is a question as to whether you are an interested party as an awardee and would have standing to protest.
  4. sam.gov has a search feature under the "entity information" dropdown. There's also Commercial and Government Entity Program (dla.mil)
  5. Typically, the gov't looks for potential organizational conflicts of interest (OCIs) from the standpoint of whether the federal employee's work on an acquisition could call into question the integrity of the procurement process. This is most often looked at w/r/t source selections. If a federal employee on a source selection could have a monetary interest imputed to them via a potential offeror, that needs to either be mitigated satisfactorily or remove that person from the acquisition. For example, the federal employee's spouse is an employee of a potential offeror - if that offeror wins the award, the federal employee stands to benefit by virtue of their spouse's employment. Even if they will not actually profit from the award, the appearance of an impropriety can sometimes be enough. I don't see anything like that in your facts. It doesn't sound like the former independent contractor has any financial interest in your company such that their actions now as a federal employee call into question their performance and, thereby, the gov't's actions. I don't think there'd be an issue even if they had been an actual employee of your company. The only thing I can see a potential complaint would be what Joel asked - is the gov't treating you unfairly now, and is it tied to the employee's performance of their duties? I think even if the working relationship you with that employee ended poorly, you'd have a tough time validating their current actions are being done out of spite.
  6. The definition of "commercial product" in 2.101 indicates that items sold to state, local, or multiple foreign governments could be considered COTS: "... (6) A nondevelopmental item, if the procuring agency determines the product was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments." I think that non-federal government pool can be interpreted as its own "commercial marketplace" for the purposes of the COTS item definition you cite.
  7. Chapter 69 – Termination Plans, Early Retirement Incentives, and Severance Payments (dcaa.mil) I think this linked excerpt from DCAA tracks with Vern's comments about company policy and practice as well as some of the complexities involved. "Contractors usually have a severance pay policy that pays employees a set number of weeks' pay based upon years of service. However, some contractors may provide additional termination benefits, such as medical care, education, and relocation expenses in order to reduce hardship to employees terminated as the result of a mass work force reduction process. These additional benefits also represent severance pay." There are also other references regarding what may or may not be reasonable and/or allowable/unallowable.
  8. "Even though the contracting officer may have been the assessing official, filing a "claim" and requesting a "final decision" is separate from the contractor comments process, and required under the CDA." "Neither a Board nor the Court will rewrite a CPARS report, but they can issue declaratory relief if a CPARS report was unfair, inaccurate, arbitrary, or capricious. The Armed Services Board of Contracts Appeals, moreover, has stated it will send a CPARS report back to the contracting officer with a requirement to follow applicable regulations and provide a fair and accurate performance evaluation. But to succeed you should not rely on only procedural errors. You should further show prejudice, i.e., that the ratings and evaluations would have been different but for the demonstrated errors in the CPARS report." Challenging Unfair CPARS Evaluations (americanbar.org) Although not sure, this language indicates the dispute process is different from the CPARS comments process, so it may be irrelevant that you did not make any comments on the CPARS. I do not see why the report could not be changed. Also, How to Contest a CPARS Evaluation | Government Contract Attorneys, SDVOSB Law (manfredonialaw.com) That indicates a court or board will not entertain the question unless the contractor has asked for a final decision from the CO.
  9. DAU Sponsored Documents - Default These may be of use.
  10. As ji20874 points out, 18 USC 2905 is a criminal statute, and courts have ruled its application requires proof of criminal intent (mens rea) on the part of the accused. Thus, "inadvertent" disclosures do not meet its requirements. As stated by the Fifth Circuit in United States v. Wallington, 889 F.2d 573, 578 (5th Cir. 1989) (and cited in the DoJ link, above), "We do not believe that Congress intended to create strict criminal liability and impose prison sentences of up to one year for innocent disclosures of information. Nothing in the scant legislative history of section 1905 gives any hint that such a harsh result was intended. In the absence of strong indicia to that effect, we are unable to conclude that Congress meant to depart from the implicit background assumption that mens rea is required to commit a crime."
  11. Huttenbauer appears to still be good; however, it stands for the proposition that if an option is not exercised based on responsibility-like issues, it does not need to be referred to the SBA. It does not stand for the proposition that responsibility concerns may not be the basis for exercising/not exercising an option. "In other words, in administrating the contract the contracting agency is free to decide, whether on the basis of concerns about performance or for any other reason, that it does not wish to extend or expand the contract through the exercise of an option.” "In short, a decision not to exercise an option, even if based on responsibility-type concerns [1] about acceptable contract performance, does not involve a determination that the contractor is not responsible--it is simply one of several decisions--such as whether to issue a cure notice, see FAR Sec. 49.402-3 , whether to impose liquidated damages, see FAR Sec. 49.402-7, and whether to terminate the contract, see FAR part 49, that a contracting agency having such concerns might make in administering its contracts." "1. It is not uncommon for responsibility-type concerns to be taken into account in situations that do not involve responsibility determinations and therefore do not require SBA referral. See, e.g., Tri-Services, Inc., B-256196.4, Sept. 30, 1994, 94-2 CPD Para. 121." As for timing, I think the FAR/DFARS are silent because there are dates by which an option must be exercised, so when you plan on exercising and giving notice, it is reasonable to do it then, I'd think.
  12. The GSA Rideshare program is separate from the Mass Transit Benefit Program (MTBP), to which I thought the OP was referring. The GSA Rideshare is with Uber and Lyft and, admittedly, I'm not sure exactly how it's used (I just discovered it here!). I've used the MTBP in the NCR, which is probably why I immediately thought of that. There are other MTBP programs at other locations, and they also exclude contractors, probably because the underlying statute, 5 USC s 7905, defines employees for these purposes as Federal civilian employees (see 5 USC s 2105), a member of a uniformed service, and a student who provides voluntary services under section 3111. But again, I am not familiar with that BPA - very interesting.
  13. For DoD, no. DoDI 1000.27, Mass Transportation Benefit Program (MTBP), Enclosure 4, paragraph 2.k: "Personnel ineligible for participation in the DoD MTBP include: ... Contractors."
  14. The contractor does not sign the form, the gov't does, informing the contractor(s) the security requirements of the contract. This may be of use: File Download (cdse.edu)
  15. "... approximately $27M more ..." If we're talking approximately, I would've gone with $28M ($27,908,000). It's also approximately 20% more and the scores are approximately 13.7% higher, as opposed to 22.3% and 14.7%.
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