Retreadfed

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  1. Joel, what is stupid? The statement you quoted was in regard to a change in the limitation on subcontracting.
  2. .Don, in regard to the AF arguing that the FAR trumps the SBA rules, see MCS Portable Restroom Service, B-299291 (March 28, 2007). This was another protest where the AF interpreted the FAR in a manner inconsistent with statute and the SBA's regulations.
  3. Don, don't forget the statutory changes to the limitation on subcontracting and SBA's changes in its regulations on that topic. However, I have not seen a FAR case to change the FAR to be consistent with the clear language of the statute and SBA rules.
  4. Don, I don't know what the thought process was behind the SBA's adoption of this rule, particularly as it regards the question of what is a contract. It could well be that the SBA wrote the rule the way it did because it believe(s)(d) that an order is not a contract. In any event, I believe that not including orders in the definition of contract and continuing to curtail the opportunity to challenge the size status of a concern frustrates the policy underlying 121.108 and the Small Business Jobs Act. The SBA talks about a presumed loss because of a willful misrepresentation of size status, but provides only a narrow and limited ability to have this misrepresentation brought to light and addressed by a body with particular expertise in size determination matters.
  5. Don, if 121.1004 is reconsidered in light of Kingdomware, and "contract" is interpreted to include orders, then (ii) could be eliminated.
  6. Pepe, the issue is what is a contract for purposes of the SBA regulations? That term is not defined by the SBA. As currently written, it is not clear if the SBA accepts the FAR definition of a contract. If the term "contract" includes orders, then it would seem that 13 CFR 121.404, concerning when size status is determined, would have to be revised as well as 121.1004. If "contract" does not include orders, this should be stated explicitly so that it is clear what is meant by "contract." As a real world example of what I am talking about, I once filed a size protest concerning the size status of a concern that had been awarded a task order under a multiple award IDIQ contract. The contract had been set aside for small business concerns. After award of the contract, information came to light indicating that the contractor was affiliated with a large business concern that had not been identified by the contractor prior to award of the contract or task order. The protest was based on the premise that the order was a contract. However, OHA denied the protest on the grounds that an order is not a contract. Further, adoption of a broad definition of "contract" would facilitate the policy objectives underlying 13 CFR 121.108 and the government's interest in preventing fraud in this area.
  7. This discussion has been dormant for a few weeks, but one potential area of the SBA rules that may need clarification as a result of the Court's determination that an order is a contract is 13 CFR 121.1004 dealing with the time for filing a size protest which currently states that A protest must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after the contracting officer has notified the protestor of the identity of the prospective awardee for (i) The contract; or (ii) An order issued against a Multiple Award Contract if the contracting officer requested a new size certification in connection with that order.
  8. Tinymule64, how are you finding these OEM's to be responsible if they do not have an accounting system? Having an accounting system adequate for the contract type contemplated is an element of responsibility. See FAR 9.104-1(e) and 9.105-1(b)(2).
  9. Chil, I am still confused. Are the items on your FSS contract? If they are, why would you be authorized to procure items off your own contract?
  10. Chil, what does FAR Part 51 have to do with this? You said the HW will be provided under a task order (should be delivery order) against an existing BPA based on your Schedule 70. From this, it seems that the price for the HW would be stated in your Schedule contract.
  11. If the added work is outside the scope of the original contract, the new work cannot be added by a change order, but is considered a new procurement. Therefore, the first question that needs to be answered is whether the new effort has been offered to and accepted by the SBA for accomplishment by an 8(a) concern. Further, because a J&A is not required for award of an 8(a) contract, no J&A would be required for the new procurement.
  12. AA, I think you are getting hung up on labels. To answer your question think about the function being performed. For example, you indicated that your contracts are being performed overseas. The contractor may hire a consultant to advise it on general business practices and customs in the foreign country. This may facilitate contract performance, but, unless these services fulfill a contract requirement, they likely would not be considered subcontract work because it is not directed toward contract performance. On the other hand, if the contract is for assistance in agricultural development, hiring a subject matter expert on local agricultural practices to assist in providing recommendations for improvements could be considered subcontract work depending on the wording of the contract and expert engagement.
  13. Whynot, H2H is spot on with his comments. To be plain, if your idea is to charge hours worked before award as if they were worked after award, that is an open invitation to an IG investigation and possibly worse.
  14. AA Scholar, the use of the word "consultant" can lead to problems other than whether the person or entity is a subcontractor. Because you are dealing with cost reimbursement contracts, look at FAR 31.205-33 which deals with consultant costs. These are the type of costs that DCAA likes to go for and frequently questions because of the requirements of subsection (f).
  15. Whynot, the definition of an incurred cost may depend on the context in which the term is used. However, in general, an incurred cost is one that the contractor has actually paid or has a legal obligation to pay. For example, see FAR 52.216-7(b)(1). In addition, certain imputed costs, such as cost of money, may be considered as an incurred cost for purposes of cost allowability. See, FAR 31.205-10. Finally, certain accrued costs, such as taxes, may be considered incurred for cost allowability purposes. See, FAR 31.205-46.