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Retreadfed

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Everything posted by Retreadfed

  1. Sprice, I presume you have an attorney. If you are dealing with a DoD contract, have him/her look at 32 CFR 97, particularly the definition of "litigation" and DoD policy on release of official DoD information. Also, read FAR 33.204 and ask him/her to advise accordingly.
  2. Pepe, are you asking what would be reasonable and allowable on government contracts?
  3. ji, in my experience, specific areas of cost, such as labor rates, are negotiated prior to the award of a contract. As a result, the PNM addresses those costs and explains why they were determined to be reasonable and accepted. If those same labor rates are used in contract performance, the PNM is evidence of the reasonableness of those labor rates.
  4. That is a correct statement. However, DCAA frequently questions costs that were specifically negotiated prior to contract award. This is particularly true with regard to labor rates. In this regard, I can see why a contractor would want to obtain a PNM to support the reasonableness of costs. If the contract has been awarded, what harm is there in releasing the PNM to the contractor covered by the PNM? After all, the contractor was a party to the contract award process. Under current FOIA doctrine promoting transparency of government operations, if there is no harm to the government or a third party from release of a document, that document should be released even if it does technically fall within a FOIA exception.
  5. Are you in a pre-contract mode or have the contracts/orders been issued? If pre-contract, the government may be asserting that they are pre-decisional and cannot be released at this time. On the other hand, if the contracts have been awarded, I see no reason why they cannot be released. I know they are available through discovery in litigation without a protective order.
  6. Lukevan, I think you need to get a good government contracts attorney to help you here. I see several problems with what the government is doing that should be addressed by a competent attorney.
  7. Marc, the general contractual records retention obligation is found in FAR 52.215-2. Through that clause, FAR 4.7 is made a term of contracts containing 52.215-2. DCAA guidance on this topic is for internal use only and is not binding on contractors. Further, remember that DCAA audit reports only express DCAA's advice to contracting officer's. Have you looked for contracting agency guidance on this issue or researched board and court cases to see if there has been an interpretation of this requirement?
  8. Was this stated in the subcontract? If not, it likely means nothing under the parol evidence rule.
  9. CFO, you said the subcontract requires the subcontractor to have available receipts in case they are requested. If this is in the subcontract, what is the beef about complying with the terms of the subcontract? Any sidebar agreements between the prime and sub concerning receipts do not mean anything if the subcontract is an integrated contract. It is not clear whether the request for receipts relates to travel charged as a direct cost or travel charged as an indirect cost. We have not seen the exact language of the subcontract, but does the requirement for receipts apply to all travel or just travel that is charged as a direct cost? Finally, what is the subcontractor's policy in regard to paying travel costs. Many contractors merely pay a flat rate for lodging and per diem when employees are on travel. As long as the flat rate is within the maximum allowed by the travel regs for the location, this is an acceptable method of reimbursing employees for travel expenses and does not require any receipts for justification.
  10. Matthew, see CTA, Inc. 00-2 BCA 30,947 and White Sands Construction, Inc. ASBCA Nos. 51875 and 54029. Also, see Glascow Investigative Solutions, Inc. ASBCA No. 58111 (9 April 2013).
  11. Lotus, are you dealing with a supply contract or a service contract?
  12. If the current POP expires before you get funds obligated for the option, do you expect the contractor to continue working? ji is generally correct in what he has stated, however, if the option is not exercised in accordance with the terms of the contract, the contractor is entitled to an equitable adjustment to the contract. Thus, you may get the option, but not at the price you thought.
  13. DoD has issued a deviation to the various FAR clauses that impose a limitation on subcontracting. That deviation adopts the current SBA guidance as the guidance applicable to DoD contracts and orders issued after Dec. 3, 2018.
  14. This clause refers to an agreement instead of a contract. What this means is not clear. However, you have provided nothing to show that the prime has any obligation to issue you any orders or the magnitude of orders that may be issued. Further, this does not address the question of consideration. It is quite likely that you do not have a contract at all, but something in the nature of a basic ordering agreement.
  15. This sounds like you are calling a cost reimbursement CLIN a FFP CLIN.
  16. mrahel, is there something in the subcontract that indicates it is a requirements subcontract? From what you have posted, that seems to be the case. If so, the prime does not have an obligation to issue you any orders. However, the prime would have been required to give you a reasonable estimate of the work to be done. If this estimate is not realistic or based on information that is accessible to the prime, as H2H indicated, the prime may have mislead you into entering into the contract and you would have a claim against the prime. On the other hand, if the contract is not a requirements contract, what is the prime's obligation to issue you orders? Further, what consideration supports the subcontract? Surprising as it may seem, more than one prime contractor has issued a task order subcontract without providing any consideration to the sub.
  17. Did whoever told you this give you a FAR citation to support the assertion? I see nothing in the FAR to support this. Travel and ODCs can be, and often are, funded on a cost reimbursement basis.
  18. How do you fall within (ii)(A) when you are using multiple appropriations? That section appears to apply when different years of the same appropriation are used to fund a CLIN. It specifically refers to "R&D or other funds" not R&D and other funds.
  19. Do you think that is a valid concern? If so, what is your solution?
  20. Jo, can you address this comment from Joel? I don't see your problem.
  21. They don't have to be the same. What I was trying to point out is that the Purpose Statute (31 US.C 1301) only allows appropriated funds to be obligated for the purposes for which they were appropriated. If a single CLIN is used in a contract for RDT&E, only funds that were appropriated for RDT&E can be used to fund that CLIN. This does not mean that all the funds have to be from an RDT&E appropriation. Some agencies have general appropriations that can be used to fund all activities of the agency. On the other hand, sub-CLINs can be funded with different appropriations. In this case, setting aside whether funds are properly obligated, I am curious as to how the contractor is instructed to bill in order to avoid the government getting into a possible violation of the Purpose Statute. If the contractor is not required to ensure proper accounting and billing against each appropriation, I don't know how the COR can track the proper expenditure of funds.
  22. Yes, if each appropriation can be used for RDT&E effort. If not, no.
  23. In addition to what H2H has said, DCAA seems to talk out of both sides of its mouth in regard to what the government pays its employees being a measure of reasonableness. For example, DCAA says that contractors cannot base what salary they pay their employees on pay rates for government employees. Yet here, DCAA is saying that HD pay has to be based on what government employees get in order to be reasonable. Also, DCAA does not know how to properly apply FAR 31.201-3. Read it carefully and do some research on the discretion it affords contractors. This should be helpful in responding to DCAA and the ACO.
  24. Have you asked the contractor and now you are wanting to know if it told you the truth?
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