Retreadfed

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.

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.

Do you think that is a valid concern? If so, what is your solution?

Jo, can you address this comment from Joel? I don't see your problem.

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.

Yes, if each appropriation can be used for RDT&E effort. If not, no.

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.

Have you asked the contractor and now you are wanting to know if it told you the truth?

These two sentences seem to be contradictory. Also, if you cannot do the latter, how is the supposed tracking being done?

I think this is a rare occasion, but I once filed a protest against the terms of a solicitation fifteen minutes before proposals were due. The protest was hotly contested before GAO and the protester won and ultimately got the contract.

Agreed.

Michael11, 2 CFR 200 applies to grants and cooperative agreements. Potential awardees do not submit bids. They submit responses to funding opportunities. Further, FAR 5.206 does not apply to grants and cooperative agreements. What is the nature of your organization? The Uniform Guidance was not drafted with commercial organizations (or hospitals) in mind.

However, the OP said his company was "purchasing a subcontract from our subcontractor." While not absolutely clear, this indicates that Joel's assessment of what is happening is correct. In that case, there is no other prime contractor involved. In any event, neither the Anti-Assignment Act nor FAR 42.17 applies to the transfer of a subcontract by a subcontractor. Such actions are governed by the terms of the subcontract and applicable state law. Most subcontracts with which I am familiar have an anti-assignment clause in them. These clauses prohibit the subcontractor from transferring a contract, even by operation of law, without consent of the prime contractor. As for the government's involvement in the transfer, it is not at all clear that FAR 52.244-2 would require government consent to the transfer of a subcontract if the prime contractor did not have an approved purchasing system. In this regard, most of the factors in FAR 44.202-2 would have already been considered when the original subcontract was awarded. If the prime does have an approved purchasing system, the chances of government involvement are reduced even further.

Jo, in what context are you asking the question?

Sdadar, remember this cost is usually allowable.

That is if the contracting officer is competent and knows how to write a final decision. However, that is not always the case and the final decision may be essentially nothing more than a statement that I have read your claim and deny it.

I have no idea what you are talking about. This discussion has focused on a prime buying a subcontract from a subcontractor, not another concern buying the subcontract from the subcontractor. Here the prime is in control of the transaction.

ji and Joel have given you sound advice. One more thing you should include in your claim is a demand for payment of Prompt Payment Act interest running from the date you submitted your invoice until one year later. You will be entitled to CDA interest on the amount of your invoice and the PPA interest beginning with the date you file your claim until any amount found due on the claim is paid.

Why is this relevant to a subcontract? FAR 42.12 is directed toward prime contracts and is how the government consents to the transfer of a contract despite the terms of the Anti-Assignment Act. It does not require prime contractors to do anything if a subcontract is transferred.

If the appropriation was available at the time the mod was executed there was no ADA violation. If the appropriation was not available at the time of the modification, there was a violation. From what has been written, it is not clear what the specific facts are. Further, as Jamaal has pointed out, there could be other violations here depending on what the facts are.

What does this mean? Why not just terminate the subcontract and do the work yourself? Are you buying something other than a subcontract?

That is generally a true statement. For contractors, the government usually does not pursue criminal false claims act remedies because you cannot put a corporation in jail and the government must prove its assertions beyond a reasonable doubt. As a result, corporate contractors are usually faced with civil false claims act complaints. Note that a claim can be false without the contractor facing liability because the act requires a knowing submission of a false claim. As you indicated, if a false claim is not submitted knowingly, there is no liability.

Sunstrider, just to make sure of the facts, was FAR 52.215-20 in the solicitation? Also, is FAR 52.215-21 in the contract?

Under the civil false claims act, intent is not an element. All the government needs to prove is that a false claim (one that is not true) was made knowingly. In this regard, 31 U.S.C. 3729 states (1) the terms “knowing” and “knowingly”— (A) mean that a person, with respect to information—(i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information; and (B) require no proof of specific intent to defraud;

That will be a very long shot in light of the discussion of the sovereign act defense by the Supreme court in Winstar. See, https://caselaw.findlaw.com/us-supreme-court/518/839.html Further, you have to realize that the government acts in one of two ways in regards to its contracts - its contractual capacity and its sovereign capacity. Thus, if the government prevents a contractor from working during a shutdown, you have to ask in which capacity did the government act when it did so. Failure to appropriate funds is not a contractual act unless the failure is specifically directed toward a contractor or class of contractors. That is clearly not the case here. Thus, as I said earlier, unless the government does something based on the terms of a contract, such as issuing a stop work order, the contractor is generally out of luck in regard to recovery of costs relating to the shutdown.