Retreadfed

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  1. REA'n Maker, what is the maximum you would set in each contract in the circumstances I identified in my hypo yesterday, a government budget of $5M, 4 awards with a $25,000 minimum for each award?
  2. SI, the only FAR clauses that the FAR requires to be included in subcontracts for commercial items are those listed in 52.244-6. However, note that other clauses can be included in the subcontract that are necessary to carry out the prime contract. Notice that there is no termination, inspection or changes clause listed in 52.244-6. Certainly, a prime contractor generally would want to include such clauses in subcontracts even those for commercial items. The subcontractor should not accept clauses of that nature that are not designed for commercial items. That is why I suggest using provisions based on 52.212-4 Alt I in T&M subcontracts for commercial items, particularly if the prime contract is not for commercial items. As for your understanding concerning the travel regulations, the JTR is for use by DoD personnel, both military and civilian. The FAR makes the portions of the JTR relating to travel and per diem (lodging, meals and incidental expenses) costs applicable to contractors whose personnel will travel to specified locations in performance of a contract. It does not matter who awarded the contract. The limits on travel and per diem costs are not guidelines, but contractual limits that contractors must observe except in limited circumstances stated in 31.205-46. While a contractor can impose stricter conditions for application of the exceptions, it cannot establish a more liberal or lenient policy and have costs that exceed the regulatory limits on travel and per diem be considered allowable.
  3. Refining H2H's request a little, is FAR 52.232-7 in your subcontract? If it is, that clause makes 52.216-7 applicable to the material part of a T&M contract. Travel is considered material for T&M contracts. I agree with your co-worker that it would have been better for your company to have negotiated for inclusion of 52.212-4 Alt I in your subcontract. The fact that the prime contract was negotiated under FAR Part 15 is irrelevant to that question if you are providing commercial items. In this regard, you should check to see if the government complied with FAR 52.244-6 in regard to your subcontract.
  4. Vern, thank you for your response. That seems like a reasonable approach from the government's perspective. In many cases, the contractor probably will not have a problem with it either. However, there may be circumstances where a contractor may have a different view, such as if the "action" would put the contractor over the $50M threshold for being subject to full CAS coverage.
  5. Vern, you stated "In applying dollar thresholds IDIQ contracts you apply it against the max, not the min." This has always been an interesting point for me in regard to multiple award IDIQ contracts. Consider this fact scenario. The government anticipates that it will have a need for an estimated $5M of work. The government decides to satisfy this need by awarding four IDIQ contracts. Each contract states that the minimum the government will order under that contract is $25K and states that the maximum amount that will be ordered for the entire project is the $5M. Because of the minimum amount contained in each contract, no contractor will receive the entire $5M of work. Further, because of the fair opportunity requirement for awarding orders under multiple award IDIQ contracts, no contractor or the government can reasonably anticipate that any specific contractor will receive orders that exceed the minimum amount stated in each contract. In this case, how would you apply FAR 1.108 to determine the anticipated value of each contract?
  6. Ji, the discussion at the link you provided is somewhat helpful in understanding the operation of the LOF clause. The problem we have here is that the contract appears to contain what Olga calls the "Schedule Obligated Amount clause" which, from the supposed extract she quoted, appears to be at variance with the LOF clause. Whether it is in fact inconsistent with the LOF clause, we do not know. Further, we do not know if the Schedule Obligated Amount clause constitutes a deviation from the FAR and if so whether a deviation was granted. If Olga is considering filing a claim, I think these and other issues need to be addressed by a competent government contracts attorney.
  7. If you are the contractor, you need to contact an experienced government contracts attorney who can advise you of your options after reviewing the contract and contract related documents.
  8. I agree with ji's statement as a general proposition. However, I am somewhat confused by this statement " The PO indicates the extended period of performance, and it added value to the subcontract. The subcontract was not modified when the PO was modified". How did the PO add value to the subcontract without modifying it?
  9. Nonstandard Clause Use and Approval

    Bob, I am having the same experience as Todd.
  10. Note that title 31 of the USC was recodified and section 665 is now section 1342.
  11. Filippo, your attachment is not available to everyone at this Forum. I have attempted to open it and have received a message that it is not available to me.
  12. Filippo, the facts of your case are not clear. First, does your agency have statutory authority to enter into multi-year procurements for services? Is the contract you are asking about already in place or are you negotiating it? Is the contract period for a single five year period or is it broken up into a base period and option period(s)? If a single performance period, what is the applicability of FAR 37.106 to your contract? Finally, who issued the guidance you are questioning and why have you not gone back to them for clarification?
  13. While H2H was correct as far as this quote went, a little more clarity needs to be provided. If the CO is unsure as to whether a cost is allowable, the CO may challenge it and have the contractor try to convince the CO the cost is allowable. However, if the CO disallows the cost as unallowable and it goes to dispute, the government has the burden of proving that the cost is unallowable.
  14. Enriquem13, in regard to your statement concerning a specific agency policy on this, note that the issue of allowability of travel costsis set out in the cost principles of FAR Part 31. Unless there is a statute that requires you to have cost principles that are at variance from what is in the FAR, you would need a deviation from the FAR for a policy that deviates from 31.205-46(b) to be effective. In this regard, see FAR 1.402 and 31.101. Also, see 41 U..S.C. 1707.