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  2. This op-ed by a government contracts attorney asks Congress to pass a law to pay back contractors affected by the shutdown. https://federalnewsnetwork.com/commentary/2019/01/shutdown-economics-a-proposal-to-give-contractors-employees-more-wiggle-room/
  3. @lotus There have been many detailed changes to this policy both in the Small Business Act and the implementing SBA regulations at Title 13 of the Code of Federal Regulations. There are several variables, including the type of contract or set-aside and the date of the clause in your contract (as opposed to the current FAR clause or current SBA regulation), which may affect the answer. There is also a raging controversy over whether to follow the FAR clause in your contract or the SBA's latest regulatory implementation at Title 13 of the Code of Federal Regulations. PepeTheFrog's opinion is that you should follow the FAR clause in your contract and the SBA's regulatory implementation at the time your contract was signed, but that is just an opinion. In short, your question is much more complex than you may have considered. The rabbit hole might be too deep for someone on Wifcon to research this for you, and the question may be too consequential for you to rely on someone else's research. As a related piece of advice to you and any other contractor that is being challenged by the government on compliance with the limitation on subcontracting clause(s): Ask the government to show you where your contract states that you are required to provide the information they request. The dirty secret is that most versions of the clause require the contractor to comply, but there is nothing requiring the contractor to provide proof of compliance. Therefore, a shrewd contractor can just repeat that they are in compliance and provide no further information.
  4. Today
  5. By Julia Coon, Clause 552.238-74 Industrial Funding Fee and Sales Reporting requires all General Services Administration (GSA) Schedule contractors to report sales within 30 calendar days following the completion of the reporting period and remit the Industrial Funding Fee (IFF) within 30 calendar days following the end of each reporting quarter. Over the next twelve months, GSA will be transitioning all GSA Schedule contracts from the legacy 72A Reporting System to the new Federal Acquisition Service (FAS) Sales Reporting Portal (SRP). The process will take place in three phases: Phase One: Notification Contractors will receive an email from GSA stating the date to begin reporting sales and submitting IFF in the FAS SRP. The date provided will be the first day of a reporting quarter, and no action is required until the end of the reporting period when it is time to report sales and submit the IFF. Example: The contract is assigned a 1/1/2019 transition date, but no action is necessary until the January – March 2019 sales are required to be reported by April 30, 2019. Phase Two: Final Reporting in the 72A Reporting System Contractors will complete the final sales report and IFF remittance in the legacy 72A Reporting System. Example: If the contract is assigned a 1/1/2019 transition date, the October 2018 – December 2018 sales and IFF will be the final report in the 72A System. Phase Three: Transfer History from Legacy 72A Reporting System to the new FAS SRP GSA will migrate the contract sales history to the FAS SRP. This will not occur until contractors have completed the last sales report in the 72A System. If there is a discrepancy between the IFF owed versus the IFF paid, contractors will be notified via email before the migration. Where do you stand? Contractors who are not participating in the Transactional Data Reporting (TDR) pilot will continue to report quarterly sales by Special Item Number (SIN) and remit IFF in the new system within 30 days following completion of the reporting quarter. Contractors who are participating in the TDR pilot should already be completing reporting requirements in the FAS SRP. Currently digital certificates are required to access the FAS SRP; however, the MAS Program Management Office confirmed that GSA will be moving to a multi-factor authentication process in the coming months. All users will be required to register in the new system even if you are currently using a digital certificate to access the system. At the time of registration, you will have the option to select receiving the security code via phone or email. Contractors using a generic email address should choose to receive the security code via email at the time of registration. Once registered in the FAS SRP, users will be able to access any GSA Schedule contract where their email address appears on the contract. To prepare for this transition, it is essential to review all authorized negotiators and points of contact currently listed on the contract to ensure anyone reporting sales and remitting the IFF is included. If updates are needed, you will need to submit a modification in the eMod system for your Contracting Officer’s approval. If you are unsure which reporting system to use during the transition, you can look up your contract using the VSC Sales Reporting Lookup Tool. If you have any questions regarding the change or using the new FAS SRP, you can reach out to our GSA consulting team. Want to learn more? Attend our Boot Camp for GSA Schedules training course. About the Author: Julia Coon Consultant Julia Coon is GSA and VA Contract Consultant at Centre Law & Consulting. Julia works with the GSA/VA team in preparing new schedule proposals and post-award contract administration. She has experience in producing schedule renewal packages, various modification packages, small business subcontracting plans, and updates to GSA price lists. View the full article
  6. Quick response and did not check out this reference myself but take a look at 13 CFR 125.6 and see if answers your question.
  7. Let’s suppose that, under your contract, an agency hasn’t properly paid for your work. Or the agency took actions that caused you damages. Can you run off to the Civilian Board of Contract Appeals to register your complaint and recovery your money? Yes . . . if you’ve taken an important preliminary step: filing a claim with the contracting officer. Recovering money from the government is different than recovering money from, say, a commercial entity with which you contract. In the commercial context, if your contractual partner owes you money, you can run off directly to state court (or federal court, if you meet certain subject matter jurisdiction requirements) and ask the judge for your money. To invoke the court’s jurisdiction, you generally don’t have to make a formal request to the other party before filing a lawsuit. But in federal government context, the process is different. Before getting to a judicial tribunal, you must first submit a formal request for payment to the contracting officer–a.k.a., a “claim.” If the contracting officer denies your request entirely, or in part, you can then elevate your request to the Civilian Board of Contract Appeals (or to the Armed Services Board of Contract Appeals if your contract is with DoD, NASA, and the CIA or to the Postal Service Board of Contract Appeals if your contract is with the Postal Service) . But what is a claim? The FAR 2.101(b) provides a definition: ‘Claim’ means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. . . . A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim. The submission may be converted to a claim, by written notice to the contracting officer . . . if it is disputed either as to liability or amount or is not acted upon in a reasonable time. In general, while it’s a required step, submitting a claim isn’t a complex process. The claim simply must be in writing and submitted to the contracting officer. And for claims over $100,000, the claim must be accompanied by a certification. In fact, without a certification, a written demand for over $100,000 isn’t technically a claim that invokes the CBCA’s jurisdiction under the Contract Disputes Act. But what if you get too excited and file an appeal before you file an appropriate claim? What happens? CBCA will dismiss the appeal for lack of jurisdiction. Take U.S. Army Tactical Supply, CBCA 5989 et al. (Dec. 12, 2018) as an example. There, U.S. Army Tactical filed multiple appeals with CBCA alleging that the Department of State had not paid it for deliveries made to various embassies. But, U.S. Army Tactical did not, as required by CBCA’s rules, attach a copy of the claim it was supposed to make to the contracting officer before it filed its appeals. So, CBCA raised, on its own initiative, whether it had jurisdiction to hear the appeals (without a prior claim, CBCA does not have jurisdiction to hear an appeal). Ultimately, CBCA held that U.S. Army Tactical that it did not have jurisdiction because U.S. Tactical did not file the prerequisite claim with the contracting officer. Here’s what it said: [U.S. Army Tactical] has failed to establish that it filed any claims as required under the [Contract Disputes Act] as defined under FAR 2.101(b) before filing its appeals at the Board. In the case of each of the appeals, the record before the Board lacks either a CO’s decision from which [U.S. Army Tactical] could bring an appeal or claim from which [U.S. Army Tactical] could appeal a deemed denial of its claim. At most, [U.S. Army Tactical] has shown that it was waiting for payment when it filed its appeals, but the record does not show that payment was unreasonably delayed. Consequently, the Board lacks jurisdiction to hear these appeals. So remember, before proceeding to the CBCA or another contract appeals board with your dispute, you must–though it may seem like a pointless exercise–file a claim with the contracting officer. If you don’t, the CBCA will dismiss your appeal. And where will that leave you? Right back at the point where you need to file a claim with the contracting officer. View the full article
  8. I would think a vote might change depending on how long the shutdown lasts.
  9. Reference FAR 52.219-14, https://www.law.cornell.edu/cfr/text/48/52.219-14. How is the cost of contract performance incurred for personnel measured?
  10. The Partial Government Shutdown is having an effect on Federal Contractors, Subcontractors, Vendors, Suppliers, etc. and their employees. Once the Shutdown ends, there will be studies estimating the cost of the Shutdown. But what about now? How bad is it for Federal Contractors and Their Employees out there? This poll asks a simple question with answers from 1 to 5 with 5 being the hardest hit. This poll is anonymous.
  11. The Partial Government Shutdown is having an effect on many, if not all of us. Once the Shutdown ends, there will be studies estimating the cost of the Shutdown. But what about now? How bad is it for Federal Employees out there? This Poll provides a numbered response to answer that question using the numbers of 1 to 5 with 5 being the hardest hit. This poll is anonymous.
  12. Yesterday
  13. There is nothing in the contract about obligations nor anything about consideration. There is a PWS/SOW that describes the tasks that will be completed but that is all.
  14. This clause refers to an agreement instead of a contract. What this means is not clear. However, you have provided nothing to show that the prime has any obligation to issue you any orders or the magnitude of orders that may be issued. Further, this does not address the question of consideration. It is quite likely that you do not have a contract at all, but something in the nature of a basic ordering agreement.
  15. Retreadfed

    Labor Hour CLINs

    This sounds like you are calling a cost reimbursement CLIN a FFP CLIN.
  16. Neil Roberts

    Labor Hour CLINs

    FAR 52.232-7 does not prohibit or require that a cost reimbursable item be limited by an NTE. It is up to your company to accept or reject that concept.
  17. B.1 Subcontract Type The Subcontract awarded hereunder is a Single Award Subcontract with Fixed-Price/Levelof-Effort (FP/LOE) basis upon issuance of Purchase Orders (“POs” or “Orders”) by designated Contracts Representative in accordance with the ordering procedures stated below. Under this Agreement, Subcontractor is responsible for using its best efforts to deliver the technical requirements, within the time (delivery schedule) agreed upon, and within the negotiated estimated cost, Level of Effort subject to the Limitation of Cost provision or, if applicable, the Limitation of Funds provision of this Subcontract. B.2 Statement of Requirements This Subcontract constitutes the type of subcontract whereby the Seller, shall, in accordance with the Terms and Conditions of this Subcontract and the Statement of Work (SOW) set forth in Section J, provide the necessary personnel and do all things necessary and/or incidental to the furnishing and delivery of the supplies and/or services in accordance with the specifications and other requirements applicable thereto and referenced herein. No work shall commence without the issuance of written authorization from Contract Administrator. Under no circumstances shall [redacted] be liable for any costs incurred by the Seller in excess of the authorized funding limitation.
  18. This is exactly what I would say if I was replacing all of you with aliens.
  19. litai

    Labor Hour CLINs

    No, they did not tell me where in the FAR. They said that the Travel and ODCs couldn't be defined beforehand so they had to be set as a labor-hour clin with a NTE limit. I've managed several similar contracts and have never seen this. They said they had to make it a labor-hour and FFP hybrid because there were three CLINs that couldn't be defined with price beforehand and these had to be set this way pursuant to the FAR. The 3 CLINs are: Travel, ODC and Surge projects. Like I said, in the past these were all defined within the FFP with a NTE limit.
  20. mrahel, is there something in the subcontract that indicates it is a requirements subcontract? From what you have posted, that seems to be the case. If so, the prime does not have an obligation to issue you any orders. However, the prime would have been required to give you a reasonable estimate of the work to be done. If this estimate is not realistic or based on information that is accessible to the prime, as H2H indicated, the prime may have mislead you into entering into the contract and you would have a claim against the prime. On the other hand, if the contract is not a requirements contract, what is the prime's obligation to issue you orders? Further, what consideration supports the subcontract? Surprising as it may seem, more than one prime contractor has issued a task order subcontract without providing any consideration to the sub.
  21. Retreadfed

    Labor Hour CLINs

    Did whoever told you this give you a FAR citation to support the assertion? I see nothing in the FAR to support this. Travel and ODCs can be, and often are, funded on a cost reimbursement basis.
  22. Neil Roberts

    Labor Hour CLINs

    Not sure what is meant by the second sentence. As for the 3rd sentence, per FAR 52.232-7 (b)(1)(ii)(C), materials mean, among other things, ODC (which may include travel). Per (b)(3) and (b)(4), such material costs appear to be reimbursable. Does your contract clause indicate the same language?
  23. Thanks, that’s what I figured was the case.
  24. Barring anymore information, your subcontract is written like an agreement as the prime has complete control of whether you get work or not as it will issue you orders when they need you. Review your contract to see if you had a minimum guarantee LOE order in the contract, follow Matthew's guidance and call your prime to see if they would give you some information. I would suspect they will say they havent received that type of work yet.
  25. So what is the point of the contract then? I have no recourse? I thought I was going to get work.
  26. I don't think you will get paid if you don't receive any orders and don't do any work.
  27. So what will this mean for the contract if I do nothing though? And would I get paid?
  28. You can do nothing or, if you think it's warranted, you can assert that your prime is in breach of your contract for failing to provide you with promised work.
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