Retreadfed

Pepe, my point is that you stated "when you "agree bilaterally to a modification to re-establish" - What contract are you modifying? There is no contract. As stated, "the contract expired in January." There is no modification possible. It's a legal fiction. You need a new contract, not a modification to something that doesn't exist. Isn't this "modification" effectively a new contract?" What is your authority for saying that an expired contract, as you define it, is not capable of being modified?

Is there anything in the FAR, GAO, appeals board or court case that says such a contract cannot be modified to extend its performance period?

Does the FAR define or state when a contract has expired? What does it mean when you say that a contract has expired?

In addition to what ji said, does your agency have authority to do work for other agencies under the Economy Act?

I would like to get the views of the learned members of this forum on the judge's discussion of the Christian doctrine in this case. https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2017cv1763-32-0

Joel, are you contending that the time for exercising the option could be changed after the period for exercise of the option had passed (expired)?

Not unless your prime contract requires it.

The GAO report on VA monitoring of limitations on subcontracting posted on the WIFCON home page today is interesting reading . It shows how agencies can address the disconnect between the FAR and SBA regulations.

Is there evidence that agencies are not following FAR 16.301-3 and the clauses that go into cost reimbursement contracts? If so is the problem wide-spread or isolated? What is the problem that is supposed to be solved by this statute? The system is constipated enough as it is without adding more unnecessary blockages.

It seems like we are going back in time. When I first got into this game, you had to have a D&F to use a cost reimbursement contract and a separate D&F listing one or more of 14 exceptions to the use of competitive procedures. These had to be approved at various levels up to the Secretary of the Department.

What does this mean? The DFARS does not currently address what is in the NDAA. Does this mean that a Navy contracting officer can now award a cost reimbursement contract in excess of $50M without the approval called for by the NDAA? If such approval is not obtained, is the contract subject to being challenged as invalid because the contracting officer did not have the statutory authority to award the contract?

I don't want to speak for Bob, but I see two separate requirements in the statute. Subsection (a) requires DoD to change the DFARS to establish a preference for fixed price contracts. Subsection (b) imposes an independent obligation on contracting officers in regard to cost reimbursement contracts. (b) does not mandate DoD to do anything but is specifically directed at contracting officers.

I agree with most of what you have written. However, I don't know if this is a true statement. If it is then I agree with what you have written. If it is not, we have to have other facts.

No, but my quick reading of it is that it is similar to SCP-FSS-002.

No. The terms of the contract apply to the BPA and each order issued under the BPA. I did a quick check of the current Schedule 70 solicitation and it incorporates a WD that appears to provide for required wages and fringe benefits for various localities throughout the country (interestingly, the clause cited by Carl does not apply to the IT 70 Schedule). If a similar WD is incorporated in your contract, you would need to pay the wages and fringe benefits for the location where services are provided under each order.

I read this decision. Note that it references a change to SBA regs that took place in 2013. I looked at the FR for the particular rule change. On Oct. 2, 2013, the SBA amended its rules to clearly state that they apply regardless of where the contract is to be performed. I went back to the 2012 version of the CFR to look at 13 CFR 125.2 and could find no indication there that the SBA rules only applied to contracts to be performed in the US.

The first thing we need to recognize is that 31.205-26 is not a clause, but a subsection. The general purpose of this cost principle is to prevent pyramiding of profit on profit when the transaction is between entitles under common control. However, the rule against profit on profit has some exceptions. That is, if a commercial item is transferred between entities under common control, the item can be transferred at price. Also, if it is the practice of the transferring entity to provide services to an affiliate at price for commercial contracts, the same services can be provided at price for government contracts. As for the statement that subcontracts between subsidiary companies cannot include profit is not true. As discussed above, they clearly can. Further, you need to remember, that the cost principles do not apply to all contracts. In this regard, also see, FAR 52.232-7(a)(1) for another example of transfer of labor (services) between entities under common control at an hourly rate that includes profit.

Wage determinations are issued and incorporated into contracts for the place where services are to be performed, which is not necessarily where the contractor is located. Thus, if an order is issued against the BPA for services subject to the SCA, that order should have a current wage determination attached to it. In the case of an order that contains options, that wage determination would remain in effect until an option is exercised. At that time, in accordance with FAR 22.1007, the contracting officer is required to obtain a new WD and incorporate it into the contract. Once the option is exercised with the new WD, in accordance with FAR 52.222-43, the contractor is to comply with the new WD and is entitled to a price adjustment if it has to incur specified additional costs.

However, if an agency is challenged on this in a protest, as pointed out in this forum on several occasions, the agency generally caves.

You did not say how the task orders are priced, but have you read FAR 52.222-43 and -44?

However, in order to understand what the words in the Limitation on Subcontracting clause mean and how to compute compliance with the 50% requirement, contracting officers and contractors have to look at the SBA regulations. Because the current SBA regulations do not address the FAR clause, we have to go back to the SBA regs as they existed in the 2012-2013 time frame.

CR, are you talking about an 8(a) contractor?

If it was significant to the SB, I would advise the SB to object to the standard clause and to request that the agency negotiate a clause that is consistent with the NDAA and SBA rules. If the agency refused, I would suggest that the SB then file a protest against the terms of the solicitation which would have to be filed before the time set for receipt of proposals. Who knows what the GAO or COFC will do? It's always a crap shoot anytime you go before either. I have lost on issues that I thought were a slam dunk in my favor and won on what I thought were weak arguments.

And the likely way to get the answer is to file a protest. Six years is long enough to wait.

GAO cannot require agencies to do anything, but the COFC and CAFC can. In any event, read footnote 3 of the decision. The FAR Councils did amend the FAR based on this decision.