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Found 3 results

  1. Hello WIFCON! Would love some input here from any knowledgeable folks about this... I am an Army PCO tasked with negotiating a request for equitable adjustment (REA) on a fixed price commercial contract for severable services that I recently inherited from a predecessor PCO. It's $5.6M, five year contract (base + four option years). The initial award was about two years ago--we are currently in the first option year. Shortly after award, during the base year, the Government realized it had vastly underestimated the magnitude and needed additional performance out of the contractor, and so the contract was modified (five times over the course of the first two years) to pull forward performance scope from the out years. So now the contractor has submitted an REA for additional OH costs related to administrative burden and greater than anticipated subcontracting costs in order to meet accelerated deadlines. The REA amount is significant, and the circumstances are much more complicated than what I'm able to provide in this forum, but, basically I've determined the REA has merit, and I'm trying to write up my merit analysis and price negotiation memo. I have a few questions I'm hoping someone can help me with. THANKS! SCOPE: As I said, I'm inclined to determine the REA has merit, but my analysis leads me to believe that we're dealing with an out of scope change. I say this after reviewing the Contract Attorney's Deskbook (Chapter 21), which outlines several factors to consider for scope determinations. Ultimately, to me the cumulative effect of all the prior changes may have constituted a "cardinal change". If that's the case, what's the change authority I'd use for the modification? In my experience, typically out of scope changes require a J&A, and with a J&A I'd use the applicable J&A authority as my mod authority--but that doesn't make sense since this is an REA, right? I'm not going to write up a J&A for all the contract changes that ALREADY happened am I? (Seems to me the modification associated with the negotiated REA is only to equitably adjust the contract as a result of the constructive changes leading up to this point.) Often I use the changes clause 52.243-1 as my modification authority, but it's my understanding that the changes clause 52.243-1 is only good for WITHIN-SCOPE changes. And since this is an REA and not a claim (yet, at least), using the disputes clause 52.233-1 wouldn't be correct either. So what do I put in the SF-30? FUNDS: I assume the fiscal law associated with an REA is the same as any other modification? I.e. Within scope modifications use award year money and out of scope modifications use current year money? Other related details: each of the aforementioned modifications were done bilaterally. The contractor signed each SF30 without a price proposal, but all along he was corresponding with the PCO and COR that he felt the contract scope was creeping larger and larger and as a result he was facing cost impacts he hadn't anticipated.
  2. I need a sanity check. My management wants me to award a delivery order with FY14 funds for supply items that will go from date of award through March, 2015. We have an immediate need for *some* of the items, but some aren't required until FY15. For those items that are not required until FY15, we cannot tell the contractor the exact quantities or delivery addresses. The quantities on the order will be based on projected estimates based on historical figures. In accordance with the GAO Principles of Federal Appropriations Law (Redbook) (Chapter 5.B.4), which discusses taking receipt of deliverables after the end of the FY, the exceptions appear to be if there is a stock program or if there is a production lead time. We do not meet either of those exceptions. Legal's response: "The bona fide need rule is satisfied because the agency had a blanket and continuing need to provide these items when the IDIQ contract was executed in FY14, and that need crosses into FY15." My immediate supervisor claims that we are okay because we have an immediate need for SOME of the items this FY, so it's fine that we can't tell the KTR exaclty what we need by 9/30/14 (and wait to tell them well into FY15, as the needs arise) because "it's still within a one year period." Keep in mind, this is for supplies, not services. I believe that the delivery order should only be placed for items that we have a bonafide need for this FY. Thoughts?
  3. My agency has a requirement solely for the demolition of existing structures, with no post-demolition construction. Pursuant to FAR 37.301, this will be a service contract versus a construction contract. As such, is there a potential ADA violation if the contract is funded with MILCON funds? The demolition is included on a DD Form 1391; however, the demolition work has since been segregated from the “true” construction work. We will now be issuing two contracts, one for the demolition and one for everything else that is on the DD Form 1391. The structures to be demolished and the land it occupies have never had a relationship to the other work on the DD Form 1391 other than the fact that they both ended up on the same DD Form 1391. There is no proposed immediate or future construction on the demo site in the base’s master plan. The program office, budget office, and counsel contend that MILCON funds are authorized/appropriate solely because the demolition is listed on a DD Form 1391. I am leery about using MILCON funds on a service contract, but seem to be the only one here that has reservations. Is the mere fact that something is listed on a DD Form 1391 all the logic/evidence needed to ascertain that MILCON funding is the proper funding source and would not violate fiscal law?
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