Retreadfed

The OP said (s)he had a CPFF task order. I am curious how the foregoing rule would apply if the task order value needed to be increased after the fact, i.e., performance under the TO was complete, because the contractor had a higher final indirect cost rate than contemplated causing an overrun. For these purposes, the contractor did not know or could not have known of the overrun in time to give the CO notice of the overrun under the LOC clause.

The reimbursement of the specific costs mentioned would be considered as revenue. However, for determining a firm's size when a revenue (receipts)standard is used, see 13, CFR 121.104.

I'm not sure exactly what you have in mind, however, if you are equating "ceiling" with limitation on government liability, have you thought of the effect the Anti-Deficiency Act has on your question? Unless there is a statutory exception, the ADA generally prohibits agencies from entering into contracts that are open ended and do not place a limitation on the government's liability under a contract.

LeighHar, remember that a subcontract is essentially a commercial transaction between the prime and sub. Therefore, state laws are implicated by a novation of a subcontract so you need to be advised by someone familiar with the applicable state law so you will wind up with an enforceable subcontract.

In addition to what H2H provided, the definition of B&P from FAR 31.205-18 excludes costs "required" in the performance of a contract. "Required" is an ambiguous term as it can mean that there is a specific requirement in a contract for the contractor to submit a proposal, or it can mean that submitting a proposal is necessary for performance of a contract although there is no specific requirement in the contract for submission of a proposal. Thus, to me, it seems your first task is to determine whether you are dealing with B&P costs or some other type of cost.

FAR 9903.301 "Small business, as used in this part, means any concern, firm, person, corporation, partnership, cooperative, or other business enterprise which, under 15 U.S.C. 637(b)(6) and the rules and regulations of the Small Business Administration in part 121 of title 13 of the Code of Federal Regulations, is determined to be a small business concern for the purpose of Government contracting."

Don, I don't know why this would keep a contracting officer from being able to identify portions of a solicitation that do not have universal application to potential offerors and provide this information to offerors.

Here is what FAR 31.201-3(a) says "The contracting officer shall insert the provision at 52.230-1, Cost Accounting Standards Notices and Certification, in solicitations for proposed contracts subject to CAS as specified in 48 CFR 9903.201. " If the contracting officer acts correctly, this provision should not be in a solicitation sent to you.

Joel, there have been at least 4 such decisions by the Federal Circuit. Those decisions are based upon the plain language of the CDA. There is some confusion concerning those decisions. In none has the court held that the contractor is entitled to recover interest on amounts in the claim that the contractor never incurs. Instead, interest is only paid on costs the contractor actually incurs although interest will have accrued on the paid amounts before they are actually incurred. For example, the contractor submits a claim for $10K before it has incurred any of the claimed costs. In reality, the contractor only incurs $8K of costs, all of which were incurred after submission of the claim. The contractor will recover interest on the $8K running from the date the contracting officer receives the claim until the $8K is paid by the government.

Because we are talking about a WD issued after a contract is executed, if 52.222-43 is in the contract and an option is exercised, wouldn't the contractor be entitled to a price adjustment calculated in accordance with that clause instead of an equitable adjustment if the contracting officer failed to include the revised WD in the contract at the time the option was exercised?

Wage determinations are placed online by DoL. It is common practice for agencies to identify the WD in a solicitation and contract without physically attaching the WD. When this is done. the contractor is responsible for locating the specified WD online.

I am not aware of any Fed. Cir. decision that addresses this question. Further, the contract appeals boards seem to be is somewhat of a disagreement over this. See this quote from Sotera "The SCA clause cannot just be read into the contract under the Christian doctrine, as USDA advocates. Respondent’s Brief at 10. “The Christian doctrine is available only when relevant statutory or regulatory provisions are required to be included in an agency’s contracts.” IBI Security Service, Inc. v. United States, 19 Cl. Ct. 106, 109 (1989) (citations omitted). Because the SCA requires a determination that it applies to a contract and, on this contract, to which labor categories, the Christian doctrine does not assist USDA." This seems to be inconsistent with Costar.

Carl, nothing in FAR 22.1015 relates to the question of whether a contractor is required to pay its employees not less than the wages and fringe benefits contained in a WD that is not attached to a contract.

Don, the clauses at issue are 52.222-41 and 52.222-43. You did not state what possible conflict between these two clauses can be harmonized by considering 52.222-41(c)(3). However, I perceive an internal conflict between 41(c)(1) and 41(c)(3) that I do not think you addressed. Under (c)(1), the contractor is required to pay its service employees not less than the wages and fringe benefits set forth in the WD attached to the contract. Under (c)(3), these wages and fringe benefits are to be "subject to adjustment after 1 year and not less often than once every 2 years, under wage determinations issued by the Wage and Hour Division." You have not addressed how that adjustment is to take place. Reading 52.222-41 as a whole, it is clear that the adjustment is to be accomplished by the contracting officer attaching a new wage determination to the contract. Not only is this indicated by (c)(1), but also by 41(d) which states in part that " The Contractor or subcontractor may discharge the obligation to furnish fringe benefits specified in the attachment." The "attachment" referenced here is the WD described in (c)(1). Similarly, 41(e) provides that "In the absence of a minimum wage attachment for this contract," the contractor shall pay its employees not less than the minimum Federal wage. To me, this clearly indicates that the contractor's obligation is to pay its service employees the wages and fringe benefits called for by the wage determination attached to the contract. Further, it is the contracting officer's duty to ensure that the correct wage determination is attached to the contract. I do not see anything in 52.222-41 or 43 that requires the contractor to pay its service employees the wages and fringe benefits that are contained in a WD that is not attached to the contract. As for 52.222-41(b), I do not see anything in the statute, particularly 41 U.S.C. 6703 that is contrary to my interpretation. As for DoL regulations, it is interesting to note that 52.222-41 is taken from 29 CFR 4.6. Nothing in the DoL regs is inconsistent with what I have written above.

Guest, see the decision at 59338 A-T Solutions, Inc. 2.8.17.pdf (asbca.mil). Although it does not address your question is great detail, it may give you some ideas.