govt2310

Sort of.

Looks like GPC dispute procedures is what needs to be done in the case I presented for this thread. Thanks everyone! Much appreciated!

When I click your link, it brings me to the GSA link that I posted, and there is no SF 44 form to click on there.

I'm trying to find Form SF 44. The only link I found is https://www.gsa.gov/reference/forms/us-government-purchase-order-invoice-voucher. But the form is not there. What happened to SF 44?

ji20874, I see what you are saying. My scenario is dealing with a micro-purchase using the GPC, not a "purchase order." But still, while FAR 13.201(b) says the GPC "shall be the preferred method to purchase and to pay for micro-purchases," it also says at FAR 13.201(c) says purchases below the MPT "may be conducted using any of the methods described in subpart 13.3." So for next time, if we are doing a purchase that is below the MPT, but we do it using a Purchase Order instead of using the GPC, then FAR 13.302-4 applies (it brings in FAR 52.212-4 termination clauses), right? Note, FAR 2.101 Definitions defines "Purchase order" as Purchase order, when issued by the Government, means an offer by the Government to buy supplies or services, including construction and research and development, upon specified terms and conditions, using simplified acquisition procedures.

FAR 13.301 Governmentwide commercial purchase card states that agencies are supposed to establish procedures for the use and control of the card. FAR 13.302-4 Termination or cancellation of purchase orders explains what to do regarding termination. It states, “If a purchase order that has been accepted in writing by the contractor is to be terminated, the CO shall process the termination in accordance with FAR 12.403 and FAR 52.212-4(l) or (m) for commercial products and commercial services,” or “FAR 49 or FAR 52.213-4 for other than commercial products or commercial services.” It seems that FAR 13.302-4 applies to all GPC purchases, including those below the MPT. What it sounds like is, if the services purchased are commercial, then, even if the amount is below the MPT, if the vendor has accepted in writing "the purchase order," and the CO needs to terminate, then the FAR 52.212-4 applies. Isn't this saying that FAR 52.212-4 is a "required" clause that, even if it is somehow left out, it will be read into the Contract pursuant to the Christian Doctrine.

Sorry: I mean T4D not T4C. C Culham, thanks, I will look into the GPC program dispute process. Don Mansfield, the seller's terms are silent on partial cancellation. It is very sparse.

Contractor has already charged the card. Contractor has already performed 2 of the 10 training sessions. Yes it is "2 and 2" that ji20874 asked. C Culham, thanks for the N&C cite, I will try to find it. We don't want a voucher, we want our money back. I'm surprised that there isn't a standard training practice out there, by any agency, that trains purchase card holders to put termination clauses that favor the Government into micro-purchases, just in case things go wrong. Or is there?

Let's say the agency wants to do a Termination for Convenience. Assume the vendor's boilerplate agreement is silent as to termination. Assume the vendor has partially performed the service, and has already been paid in full. Say the vendor provides training sessions for federal employees, and there are to be 10 sessions, and the vendor has already done 2 of the 10 sessions. I see that Christian Doctrine doesn't work here. Well, it sounds like the agency would have to negotiate the termination clauses into the Micro-Purchase Contract then. Thoughts?

For a micro-purchase, the FAR clauses on Termination for Default/Cause/Convenience are not required to be put into the Contract. What if a situation arises under which the agency needs to terminate? Is there a way to pull these clauses in using the Christian Doctrine? I believe there isn't, as Christian Doctrine involves pulling in required FAR clauses. Since these clauses are not required, they aren't read into the Contract. Any ideas on how to handle this situation?

FAR 17.502-1 allows for Direct Acquisitions, where Agency A issues a task order solicitation directly off of Agency B's IDIQ contract. The only examples of this that I have seen are when Agency A issues a task order solicitation off of the FAR Part 8 GSA Schedule, and where Agency A issues a task order solicitation off of a GWAC. In both those scenarios, there is specific statutory authority for GSA and the GWAC Agency to do this. I have never seen a Direct Acquisition done where Agency A issues a task order solicitation directly off of Agency B's IDIQ Contract using only the Economy Act 31 USC Section 1535 as the statutory authority. Can this even be done? I realize FAR 17.502-2 addresses the Economy Act, but I would like to find out of illustrative examples of where this was done in the past.

Thanks everyone! I will study your links.

I find that people are using the phrase "Shared Services" but using different meanings for it. What are Shared Services? Is there an agreed-upon definition? I believe Shared Services are what is talked about at https://ussm.gsa.gov/qsmo/. Are these QSMO "shared services" executed by establishing Interagency Agreements (IAAs) involving Interagency Acquisition (IA) documentation? If so, is it considered a Direct Acquisition or Assisted Acquisition? I'm being told that there is no IAA with IA involved because there is no "acquisition": the servicing agency just provides the "shared service" by using its own federal employees or contractor employees working under an existing contract. Since there is no "contract award" involved, the IAA does not require a signature from a receiving agency CO. However, the receiving agency still has to transfer funds to the servicing agency.

If Congress enacts a statute requiring agencies to take a certain course of action and directs OMB to issue direction/guidance, and this affects existing contracts, do the contractors whose contracts have to be unilaterally modified have a FAR changes clause argument? For example, if removing Tik Tok from devices costs the contractor money, can the contractor file a REA or claim (citing the FAR changes clause)? I get it that the contractor has to comply, but does it have to do so at no extra cost to the government? In other words, is the new statute a Sovereign Act, so the contractor has to comply anyways, so it is not a "change" that gives the contractor a right to seek extra compensation for the cost of complying?

@joel hoffman Question: when you prepared the contract modifications for USACE for the Prompt Payment Act of 1989, were those unilateral modifications or bilateral modifications? From what you posted, it sounds like they were bilateral, but I just want to be sure.

Ok, thanks everyone!

I just noticed something. I went back and re-read the Public Law and the OMB Memo. The Public Law directs OMB to issue "standards and guidelines . . . requiring the removal" of TikTok from "information technology." The OMB Memo says that the OMB Memo applies to "information technology" as that term is defined in 40 USC 11101(6). The OMB Memo further states that "That definition [of IT] reaches not only IT owned or operated by agencies," but it also reaches IT "'used by a contractor under a contract with the executive agency that requires the use' of that IT, whether expressly or 'to a significant extent in the performance of a service or the furnishing of a product.'" Hmm, the more I look at this, it sounds to me like OMB is saying that the Contract between the Agency and the Contractor has to "require" the "use" of TikTok. I can't imagine any agency having a contract like that, except the military and intelligence agencies. If an agency has no contracts with contractors that require the use of TikTok, then the 90 days to cease use of contracts "that contain requirements that may include use of TikTok in performance of the Contract" (or you can modify the contract) doesn't apply, right? All the agency has to do is identify the use or presence of Tiktok on "information technology," and as far as contractors go, the agency just has to notify its contractors to confirm that they don't have TikTok on their "information technology" used in performance of the Contract, right?

@Don Mansfield The OMB Memo M-23-13 says "agencies shall . . . Cease use of contracts that contain requirements that may include use of a covered application [TikTok] in performance of the contract or modify those contracts to conform with the prohibition on covered applications, except in cases of approved exceptions." Then at the end, it says "Agencies shall notify OMB that they have completed all actions delineated . . . no later than 90 days after the date of this memorandum." Are you interpreting this language to mean that agencies only have to cease using or must modify "those contracts" where the SOW contains requirements that require the use of TikTok "in performance of the contract"? If that is what OMB meant, then agencies don't have to modify contracts where the SOW doesn't involve TikTok at all, is that your take on this? And so, for contracts that do involve using TikTok, are you saying the agencies don't have to modify them, even though OMB seems to be saying the opposite? I do think this OMB phrasing is not as clear as it could have been.

Since Congress and OMB both did not mention an equitable adjustment for time and/or cost impacts on existing contracts, this is evidence that the TikTok Ban is supposed to be done as a Unilateral Modification, right? And what about contracts that contain FAR 52.212-4(q)? Can the agency take the position that this clause already requires the contractor to comply with this new TikTok ban? Or would such contracts still require a Unilateral Modification?

Congress passed the No TikTok on Government Devices Act a few months ago, see https://www.congress.gov/bill/117th-congress/house-bill/2617/text. It directed OMB to issue rules about this. OMB issued such rules, see https://www.whitehouse.gov/wp-content/uploads/2023/02/M-23-13-No-TikTok-on-Government-Devices-Implementation-Guidance_final.pdf. Well, it sounds like this "No TikTok" rule has to be put into existing contracts by a Contract Modification, per FAR 1.108(d). Can this be done as a Unilateral Modification, or does it have to be Bilateral? If the latter, doesn't that require legal "consideration," meaning the agency would have to pay the Contractor for this? I'm inclined to think this is supposed to be done as a Unilateral Modification. I don't think it changes the Scope of work. I don't think it affects the contract price. Thoughts?

@C Culham Typically, one sees some language to the effect of "the contractor shall comply with all applicable Federal laws, including new Federal laws passed by Congress during the contract performance," written into the SOW. What if the SOW is missing this language? While there are court decisions that stand for the principle that the United States cannot be held liable for its Sovereign Acts (and Congress passing a new law counts as a sovereign act), it is always best to cite the contract itself. I'm surprised to find that the FAR only has clauses for this for commercial products/services under FAR Part 12 and for construction under FAR Part 36. What about when an agency buys other types of stuff or services? Why is important enough to say this expressly for commercial products/services and for construction, but nothing else? If the contractor has to do it anyways, no matter what, then why say this at all in any contract for any type of product/service? I'm trying to understand why the FAR Council did what it did.

If a contract was awarded using FAR Part 12 (with FAR 8, 13, or 15), the contractor has to comply with all applicable Federal laws, even new ones that did not exist at the time of contract award, in accordance with FAR 52.212-4(q). Is there an equivalent clause for non-commercial contracts, say in FAR 52.215 or elsewhere? One that says "the contractor shall comply with all applicable Federal laws," including new Federal laws passed by Congress during the period of performance of the Contract, which the Contractor could not have anticipated would happen? And that the Contractor must do this at no extra cost to the agency?

@Vern Edwards and @Retreadfed Ok, I see what both of you are saying. Thanks!

@Vern EdwardsOk, I see what you mean. FAR 9.503 doesn't expressly state that the Waiver is to be done after release and proposals have been received. It does say "shall set forth the extent of the conflict." That is what makes me think the FAR Council intended for this Waiver to be done only once an offeror with an OCI had submitted a proposal. It makes it seem like the facts of a specific offeror's situation have to be known. In contrast, FAR 1.403 Individual Deviation, doesn't require the CO to "set forth the extent of the conflict." It just says the CO has to document the justification and approval. Here is FAR 1.403 in full: FAR 1.403 makes it sound like the Individual Deviation could be for a situation where the OCI is not an OCI regarding a particular offeror (or potential offeror). It could be an OCI that is presented by the nature of the Contract/SOW. The CO would not have to address "the extent of conflict" in the Justification for Deviation. FAR 1.403 prescribes no Content Requirements for this Justification.

@C Culham and @Vern Edwards Thanks! Well, Public Law 117-324 (Dec. 27, 2022) just says that the FAR Council has to revise the FAR to address OCIs, including BGR-OCI, and provide illustrative examples. It does not specifically define what a BGR-OCi is, nor does it specifically state that a BGR-OCI is to be treated or addressed in a particular way. If this Public Law is considered "a law" that "precludes" deviation" IAW FAR 1.402, then no deviations can ever be done to the FAR. The FAR itself was created because Congress passed a statute, the OFPP Act, directing the FAR Council to issue acquisition rules. And yes, I am aware of the FAR 9.503 OCI Waiver tool. However, that has to be done after the Solicitation has been released and proposals have been received. If an agency could do a deviation and put notice of this deviation in the Solicitation, if no offerors timely protested it, then no one could raise this issue in a post-award protest. And thank you for the link to the NASA Handbook, that is a helpful resource.