Worker-B

I have an interesting situation for which I am technically an uninvolved 3rd party, but have just enough knowledge to be dangerous - and pose the situation and ask some questions. I am glad to not have to deal with this mess, but am very curious to learn for my own edification - from the learned folks who wander by here. I just read through a very interesting forum from back in mid-September 2012 that will help me frame the question and provided plenty of cogent insight to help with some of my former misconceptions - although I will mention at least one. The situation: An agency has defined a series of year-long successive FFP LOE task orders for services that, in truth, are severable (error 1 - there may be too many to count before I get done so I won't try). They have chosen the FFP LOE, I think in truth, as a means of dodging the politically incorrect T&M contract type that is probably appropos for the situaion. The periods of performance dovetail one after another. The first TO was completed - I guess more or less normally. A second TO is now in performance and the follow-on has already been awarded with an effective date of the day after the scheduled end of the #2. The next error, of course, is that there is no defined deliverable - except in terms of the efforts needed (SW maintenance) and, supposedly, the LOE is also defined - as X FTEs. For convenience, I suppose, and due to the mindset of the whole situation being a T&M substitute, I understand that billings and payments have been made monthly on the basis of hours incurred (no clue about the rate(s) used to monetize - they may be stated in the pseudo T&M award). OK - The current task order is nearing completion of its term without the LOE being' provided' nor will it be even feasibly be incurred before the PoP ends. In the meantime, so far as I can tell, the efforts expended during the PoP have met the need, in terms of 'output' - the SW has been adequately maintained for its users, despite not 'using up' the contracted LOE wrt hours. Despite the obvious anomalies/directly conflicting terms that exist, I would say that the existing arrangement best fits what it SHOULD have been by interpreting that the service required - output - will have been satisfactory for the PoP, so the contractor has delivered what was contracted for as defined in work scope (SOW) and is entitled to the FFP, despite not having had to expend the anticipated hours. (Equivalent to the report being completed for less than the LOE). I have always recalled the title @ FAR 16.207, i.e., Fixed Price, Level of Effort Term and considered that the PoP was the primary consideration for when the effort is complete and that, in essence, the LOE was effectively a ceiling. If the contractor gets hiseffort completed/report done, then he gets the FFP. And if the effort exceeds the LOE, then he manages so that he gets a partial report done and stops when the LOE hours are expended. I think those impressions match my readings from September. This also matches a government procurement attorney's opinion that I once read, i.e., that completion of the scope of effort per the SOW within the term 'trumps' the amount of effort, so 'pay the man.' However, some of the September forum really emphasized the need for the LOE to be expended, given that the final report wasn't completed, meaning that remedies would be in order (that probably would need to be negotiated - can't imagine any contractual provisions intelligently put in there in anticipation). Following the reasoning of failure to provide the LOE means you aren't done, the agency is debating whether to extend the PoP for Order #2 for a non-trivial 3 month timeframe by which time they expect to have received the full LOE worth of hours expended. In the meantime TO #3 will begin its POP and there is no need or intention to double the effort level for a would-be overlapping 3 months timeframe. I don't believe that the contractor's view has yet been asked for, but I would project some potentially coerced agreement to accommodate the customer. I don't know this, but I would project that the severable services which 'underran' for this past year will continue to underrun and TO #3 will in a year, have an even greater magnitude issue at the end of its currently stated PoP. Any way, with this mis-used contract type, is the contractor 'done' at the end of the POP and entitled to the FFP?

Maestro - You are, as always, correct. To be sure there are 3 separate definitions, but they are not really different in the case of C/P data and CC/P data? Certified Cost or Pricing Data's 'definition' starts out by saying that it is Cost or Pricing Data (implicitly deferring to the C/P data definition to tell us what that is) - and then goes on to describe the fact that the C/P Data is backed by a cert. Exactly as the phrases' wordings indicate. As far as an operating CO is concerned they only collect and use Certified C/P Data and "Data other than ...". There is no 3rd choice for the CO to go to.

That is, of course, provided that the $0 price adjustment is not the net result of $400k of cost increases off set by $400k of cost decreases. The total of $800k in changed costs in absolute value busts the current ceiling and triggers the need for CC/P data. Elsewhere in this string, of course, some of the contributors are showing our age. Since FAR was revised to no longer contemplate 'cost or pricing data' that is not certified per TINA. Data such as was described in the original question of the string is now called by the very awkward phrase "data other than certified cost or pricing data'. I forget, was that tongue twister a gift we received from FASA or FARA? I think it was FARA.