Retreadfed

See, http://www.uscfc.uscourts.gov/sites/default/files/opinions/BRADEN.ATKThiokol2.pdf

If you go back to the promulgation comments regarding this clause in the Federal Register, one of the public comments related to applying the policy in the clause to subcontractors. DoD responded by stating that the statutory authority for the clause only gave DoD discretion to apply the policy. Further, this discretion only applied to the award of prime contracts. Consequently, DoD specifically refused to make the discretion given to DoD available to the prime in regard to subcontracts. I still do not see any connection between the definition of a NTDC and what you wrote in your original post. The fact that a prime contract is subject to full CAS coverage does not mean that all subcontracts under that prime contract are also subject to full CAS coverage. Instead, if the subcontract falls within one or more of the exceptions in the CAS rules, such as the subcontract being awarded to a small business concern or for commercial items, the subcontract is exempt from CAS coverage.

It would be charged as a direct cost of the OTA. It should not be charged to IRAD and allocated to contracts subject to the FAR.

An OTA is a common law contract just as a grant or cooperative agreement is a common law contract. Such common law contracts are not subject to the FAR. The FAR only applies to procurement contracts as described in FAR 2.101. The FAR does not apply to contractors, but only provides guidance to the government when conducting an acquisition. Because the FAR does not apply to contractors or OTAs, subcontracts issued under an OTA are not considered subcontracts under FAR covered contracts. Instead, they are commercial arrangements between the OTA holder and the subcontractor. As for your second question, look at the terms of the OTA. In any event, I believe it would be inappropriate to charge an OTA holder's cost share to IRAD based on the definition of IRAD in FAR 31.205-18 because that work is required by the terms of a "contract."

The prime contractor seems to be correct in regard to 1. However, the above statement does not make any sense. Can you try to restate more clearly what the facts are? In any event, small business concerns are exempt from all CAS requirements regardless of whether they are performing as a prime contractor or subcontractor and regardless of whether the prime contract is subject to full CAS coverage.

Government knowledge or input is not a part of the test for determining if a latent or patent defect in specs exists. The test is whether a reasonably prudent contractor would have discovered the defect prior to contract award? This question is a fact specific one and depends on a lot of factors such as the materiality of the defect, and the time allowed for examination of the specifications. Latent defects typically are not discovered until after contract award when the contractor has more time to examine the specs.

Pepe, you are correct. The last sentence used to include services, but that was deleted some time back. However, this sentence is not limited to contracts for supplies. It also applies to contracts for services. Service contracts, such as those for repair or R&D, can also require the use of material. If there is a directed source for that material, the labor used to produce that material would not count as subcontract labor.

Please see the definition of "subcontract" in 13 CFR 125.1, particularly the last sentence.

Let's assume that the specs are ambiguous. If they are, the question is whether the ambiguity was latent or patent. If the latter, the contractor has a duty to inquire abut the specs before award. If the contractor did not, the contractor accepts the risk of not being able to perform in accordance with the ambiguous specs. On the other hand, if the ambiguity is latent, the risk is on the government. In this case, the contractor is entitled to an equitable adjustment under a constructive change theory. A misreading or misunderstanding of the specs does not create an ambiguity. Instead, the specs must have at least two reasonable interpretations. Thus, it seems that the first step is to determine if the specs are, in fact, ambiguous. If they are not, the contractor is likely out of luck.

As long as there is no preferred contractor and the change was made to accommodate that preferred contractor. We all know that there are such things as "wired" procurements.

Pepe is correct. Joel, said you "shouldn"t " provide hours, which may be a best practice. However, he did not say you cannot. Specifying hours is not an uncommon practice, just as it is not uncommon for agencies to specify labor categories or the amount of subcontract work that is to be awarded to each of the various categories of small business concerns. I come back to my original post which is that the quoted language does not tell contractors how many hours to propose. Along this line, is project management or something like that an evaluation factor?

This doesn't tell the contractor how many hours to propose. It only places a limit in the number of hours that may be proposed.

The JV is to contain the provisions described in 13 CFR 124.513(c)(11) and (12). Also, the 8(a) member of the JV is to file the reports and certifications called for by 13 CFR 124.513(e) and (j)-(k) with the SBA. In accordance with 13 CFR 124.513(l), the 8(a) participant may be suspended or debarred for failure to comply with certain requirements in .513. Compliance with these requirements is left to the SBA as the agency responsible for implementation of the Small Business Act. The contracting agency has no duty to monitor compliance with these requirements of the SBA's rules by the Participant. However, if the agency has knowledge or information indication non-compliance, it should provide that information to the SBA.

Why do you want to do this instead of ensuring that the contract is successfully completed regardless of who does the work?

Thanks.