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  1. Today
  2. On June 19, 2018, the Senate passed H. R. 5515 by deleting the House version and substituting the Senate version plus many amendments. Its on to conference somewhere down the road. H. R. 5515 is the NDAA vehicle. Legislation.
  3. Yesterday
  4. It seems fairly clear to me at the IFF is a "fee" paid to GSA for the privilege of selling stuff on a Schedule contract. You actually have to pay it to the GSA; it's calculated as a percentage of sales, isn't it? Accordingly, I think that when you are trying to calculate sales, the IFF should be excluded--i.e., subtracted from actual billings. I am not certain but I believe you pay the IFF on all billings, regardless of whether it was priced into every element. I hope this helps. Your question was a bit "vague" so I had to interpret.
  5. It might help to define IFF. I'm guessing it is Industrial Funding Fee. See the following Forum Rule: 16. Abbreviations are to be kept to a minimum--preferably none at all--so that others can interpret a post and respond to it intelligently. You only need to post it like this the first time you use it: Industrial Funding Fee (IFF). That should help getting responses.
  6. In a case where you priced your bid with labor rates that include Industrial Funding Fee (IFF), and you invoice those same labor rates to your client, which would be your 'sales', in a T&M contract, you could take the entire value of the invoiced labor, times it by .0075 and that would be your IFF on labor. You could apply the same .0075 on any invoiced ODCs. Would this method be incorrect? Is there a better method? Someone has suggested that when an award is made to a price that included IFF on labor rates, the IFF portion is essentially not 'yours', and is reserved strictly for IFF. so they go through the trouble of tracking the contract value at the amount less the IFF. I'm guessing they do something similar to the above when it comes time to calculate the bill. This doesn't sound logical. Thinking about this always makes my head hurt. Is there more than one way to skin this cat?
  7. Vern Edwards

    SCA

    I commend Carl for finding and providing a link to the article. Note that the article is dated 1998. In Spectrum Sciences and Software, Inc., ASBCA 49769, 00-1 BCA ¶ 30663, decided in 1999, the year after the article was published, the ASBCA denied the contractor's claim for an equitable adjustment based on the DoL's rejection of a proposed conformance. The decision was grounded in a clause in the pre-FAR Defense Acquisition Regulation (DAR), DAR 7-1905, Labor Price Adjustment. From the decision: Emphasis added. I have not done extensive legal research. A quick search found only three BCA decisions dealing with the issue. I found only one pertinent Court of Federal Claims decision, the Burnside-Ott decision mentioned in the article. The Court found for the government on all counts in that decision. The Federal Circuit overruled, apparently on procedural grounds, and remanded the case to the claims court. There has been no subsequent decision, so maybe the parties settled out of court. I don't know of any way to find out at this late date following the Federal Circuit's 2003 ruling. There is no indication that the board or the claims court decision has subsequently been overruled on the merits. So if, in fact, it hasn't been overruled, then lotus is "hosed," at least until he can find a lawyer who can win a case that makes new case law, perhaps based on mutual mistake. lotus needs legal advice and should contact an attorney.
  8. C Culham

    SCA

    lotus – To an extent maybe. While I have already agreed that you are hosed an opinion I made in a general sense the facts of every situation vary. I did a little research and found this informative article regarding “Recovering the Costs of DoL Wage Increases Under the Service Contract Act” and it does discuss conformance. Here is a link. https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1256&context=hlelj Specific to your two questions I now say a contractor may or may not be hosed in either 1 or 2 as the facts will determine. I suggest that if the scenarios you have provided are important to you I would suggest finding legal counsel that is experienced in the arena of SCA and appeals to DOL, the Administrative Procedures Act, and the Contracts Disputes Act.
  9. Here is another successive bid protest with GAO and 2 Courts. First protest to GAO about 2015, corrective action, protester sent a letter to COFC about its intent to file a protest, agency revised its corrective action, protester dropped its intent, protester filed a 2nd protest to GAO, agency cancelled RFQ, 3rd protest to GAO, protest to COFC in 2016, appeal to CAFC by the government over fees in 2018. 5 trips to a protest forum or 6 trips if you count the fee opinion in COFC. See Starry Associates, Inc.. v. U. S., and Intellizant, LLC, No. 2017-2148, June 22, 2018. I'm listing these successive protests here while I decide what I want to do with them and for those interested.
  10. REA - As I noted only a coincidence because I see their name on equipment, project boards, etc. as I travel around the PNW. Your question peaked my interest and I dug into my memory and the Dynamic Small Business Search (DSBS) website and SAM.gov a little deeper. Admittedly not scientific data analysis but all the same provided. You be the judge.... DSBS - Searched on active and previously certified 8(a) Program and Oregon buttons. Resulted in 191 profiles shown. I do not know nor did I look to see how far back all 191 profiles dated to, nor do I know how long DSBS has been around so not sure how far the archival information goes back but it did go back to the period I was with the 8(a) Program. I then looked at 47 profiles that I recognized names. Of the 47, profiles I looked to confirm whether they were in 8(a) in the time I was with the program. Of the 47 I found 18 that still had active registrations in SAM (within the last year so active in 2017/2018). Of the 18, 4 had a primary industry classification of construction and 14 had services that included reforestation, welding, A-E or other professional services, employee staffing, etc. I then turned to SAM I was intrigued that I did not see Ohno Construction or Benge Industries in the DSBS so I looked at SAM. Both are active but Ohno is from Washington (sorry the memory for exact data from a couple of decades must not work real well, I guess) and Benge uses a dba of Veraz Construction. SAM showed them as still active and I then found them in DSBS. Interestingly looking at Ohno they are considered not small business for some construction NACIS codes. Ohno's website is an interesting look into their current state and success of 50 years. Anecdotal number crunching absolutely, but my personal experience seems to follow the real data crunchers numbers where in my quick analysis showed me that of 47 firms 39% of the firms I recollected (confirmed) as being in the Portland District 8(a) Program when I was a staff member remain businesses today. Remember these are only the firms I remember so the exact numbers are I am sure a little different in a detailed analysis. PS - Once again I want to acknowledged this is a quick analysis on my part so please don't beat my data analysis abilities up. Just simply note that at least 18 firms that were in the 8(a) Program in the late 80's to mid-90's are still active today and are sprinkled with I will term very successful and recognized businesses.
  11. joel hoffman

    SCA

    Perhaps it is because of a general hands off approach to service contract labor by those government program officials, contracting and contract administrators. However, I wonder why the government wouldn’t know what the proper wage classification of 200 employees is on an existing contract that is being recompeted for a successor contract. FAR 22.1008 describes the process and responsibilities for obtaining the wage determination to be included in the solicitation for the successor contract. For instance, 22.1008-1 says, in part, I don’t know here if the proposer was using the labor classification provided or proposed something different. If it was different for 200 employees, shouldn’t that have tipped off the government that something was amiss with the government provided wage determination? Then, the government agreed with it. If the proposer did use the provided wage decision but was unable to rehire [EDIT:some] employees at that wage level, did DOL re-classify [EDIT: all] the employees at a higher minimum wage/fringe? Pardon me for my ignorance, but something seems to be wrong with the contract formation here. I don’t think that the conformance procedures were intended to have to be used for determining the minimum pay for the entire work force. Both the eventual contractor and the government should have known that something is wrong with the wage determination, if the proposer decided to propose a lower classification for the type of work included in the wage. determination. The government should have known what the correct classification is for 200 existing employees, if the eventual contractor confirmed it in its proposal only to find out later that that was incorrect. I don’t. Know if DOL ended up changing the classification that was in the wage decision or simply determined that the employees should have been classified at a higher level. EDIT: Lotus said in the original post: Can Lotus or someone else please help clarify what happened and why, assuming that this is a successor contract? Thanks.
  12. Summer has officially started! Let’s get it started off with the SmallGovCon Week in Review. This week’s edition includes a new FAR provision relating to the Kaspersky ban, NIH’s CIO-SP3 HUBZone awards, and much more. DoD, GSA, and NASA issue an interim rule amending the FAR to ban Kaspersky products. [federalregister.gov] NIH makes more CIO-SP3 on-ramp awards. [washingtontechnology.com] House appropriators putting the Defense Department on notice that they’ll be keeping a close eye on future OTA awards. [fcw.com] Former employee of U.S. government contractor in Afghanistan sentenced to 5 months in prison after pleading guilty to accepting illegal kickbacks. [justice.gov] EPA issues direct final rule to amend EPAAR by removing Mentor-Protégé clause requirement. [federalregister.gov] After pleading guilty to government procurement fraud, a former official at Scott Air Force Base sentenced to two years of probation. [stltoday] GSA needs to recognize that contracts with good selection and reasonable access fees are preferred over high fee, limited section vehicles. [federalnewsradio.com] View the full article
  13. @FrankJon How weird. You string together a series of loosely connected phrases and sentences like a Timothy Leary and then say that you've tried to describe something. It's Friday night and that makes it all right so what have you got to lose? Is that it? You have to work hard to develop an idea and communicate it to others. You are not putting in the work. I have not entertained any of your recent thoughts in this thread, because you have been incoherent. Get some rest. Try again later.
  14. Vern, I think this one’s to me not FrankJon... Yep,it’s a conceptual thing. I m saying that something is missing. Like a lot of stuff, the missing parts may not be obvious until and unless we see what the thing can’t do. My point is that the view of competitive advantage that you have subscribed to scarifices or gives up something else which may be very valuable...This need not be the case. I have tried to describe the term’s other implications, but I have failed. I’m not fatigued, but I’m not effective either. Thank you all for entertaining these thoughts.
  15. Last week
  16. Here is another successive protest. First protest to GAO in 2015, a corrective action, agency issued a new solicitation a year later in 2016, 2nd protest to GAO in 2017, and now a protest COFC in 2018. See Trans Digital Technologies, LLC.
  17. @FrankJon Frankly, I have no idea what you are talking about.
  18. Static vs. Dynamic Analysis Snap Shot vs. Moving Picture Long Run vs. Short Run Considerations Transactional vs. Strategic Analysis That last distinction includes opportunity for recognition that a business can better succeed over its competitors over time. Are we willing to consider what happens over time? Vern, it seems to me you are sticking to an analysis of the transaction and not what happens to the business over time. Why do so? I do so because I want insight into what keeps a business competitive and in business. When looking for analysis tools I’m not quick to exclude tools and techniques that may help. I’m looking to learn something I don’t already know...broadening my considerations, reversing or revising the assumptions and playing with definitions are all part of the tool box. I want a big tool box. It seems that making and advocating Policy positions is different...that’s where we narrow our considerations considerably; we use a few quality tools. Policy requires decisions and advocacy and by implication, if not in fact, choosing winners and losers...hopefully with the opportunity for feedback and revision, since the feedback loop is the most important part of any iterative process.
  19. Vern Edwards

    SCA

    That's wrong. The CO is an agent of the U.S. with limited powers. Certain persons in the DoL are agents of the U.S. with different limited powers. The CO has no power with regard to worker classification. He or she merely implements DoL policy. DoL is the ultimate decisionmaker. I know that you are distressed by your situation, and I understand. But we are now edging into the realm of ignorant silliness, so I think it's time for me to say good luck to you and goodbye. I hope it works out.
  20. Retreadfed

    SCA

    Lotus, I think you are spitting into the wind here. So far as I can tell, the conformance procedure is not required by statute. Instead, it is a creation of DoL in its capacity to implement the SCA. FAR 52.222-41 is a clause drafted by DoL and is set forth in 29 CFR 4.5. That is where the conformance procedure is stated. When contractors receive a solicitation for offers on work that is subject to the SCA, 52.222-41 is required to be in that solicitation. Thus, offerors are placed on notice that if a conformance is necessary, DoL has the final say on what the conformed rates of pay will be. Similarly, if a contractor receives a contract subject to the SCA and has to utilize the conformance procedure specified in FAR 52.222-41, the contractor has agreed that DoL will have the final say on what the conformed rates of pay will be. As for the KO and DoL being the same person, that is not so. The government is the entity with whom a contractor has contracted. The KO and DoL official ruling on the conformance are agents of the government. Agents of the government can only bind the government to the limit of their authority. When the conformance procedure is called for, the KO has no authority to make final determinations. Thus, the KO cannot commit or bind the government in this regard. It is the DoL official who rules on the conformity that has the authority to do so. Finally, you have to recognize the purpose of the SCA. The SCA is designed to protect workers not the contractor or government. While the scales may be tipped in the employee's favor under the SCA, the welfare of the contractor was not a concern of congress when it passed the SCA.
  21. I'm still having trouble figuring out where the competitive advantage comes in in those situations where certified cost or pricing data are required. In those situations there are no viable competitors over whom to gain an advantage.
  22. lotus

    SCA

    Seems outrageous, remarkably unconscionable, but perhaps true. The Govt is the big bully on the block. A fairer interpretation is that if the Govt made an award pursuant to the proposal, it accepted the mappings within the proposal. And the KO and the DoL are the same person, the United States of America.
  23. If a company could gain a competitive advantage by performing faster TINA sweeps, wouldn't one (or more) have done so by now?
  24. Yeah, well, you know, that's just, like, your opinion, man. PepeTheFrog challenged your definition of competitive advantage, proposed another more inclusive definition, and offered conditions that lead to better TINA sweeps and litigation avoidance. PepeTheFrog did a little bit more than repeat. Does it go without saying that your post was accompanied by evidence and sound theory? "Sound theory," huh? Sounds like a topic for discussion. its competitors (these are obvious, but you asked) faster response times less overhead costs less chance of negotiating a bad deal more contracts in a faster amount of time less lawsuits, fines, penalties, other bad consequences from litigation Even in your narrow definition for competitive advantage, over time, this stuff leads to an ability to provide greater value, offer lower prices, or produce better products or services than other competitors. But you knew that!
  25. @PepeTheFrog Pepe, all you have done is repeat H2H's assertion without making an argument in its support accompanied by evidence or based on sound theory. It is not enough to say that something or other is a competitive advantage, you must explain on whom the advantage it works and how it works. Some of you people think you can just say stuff and claim it's true without making an argument in support. Well, you can, but you won't get away with it as long as any of us can think and are willing to spend (or waste) time arguing with you. I'm not going to waste more time on this side issue. Go back and read my post of Monday at 10:16AM and then respond. That, or although it might seem early, perhaps it's time for you to hibernate. Actually, to take H2H's approach, you don't have to do anything, but please don't waste our time with more yakkity yak. (Tony, Did I spell yakkity right? Help!)
  26. Has anyone explained the issue to them? Maybe COMM needs to be aware it's a requirement.
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