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Retreadfed

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Everything posted by Retreadfed

  1. Corduroy, this is what FAR 52.222-62(g) says about sick leave provided under the XO "The paid sick leave required by E.O. 13706, 29 CFR part 13, and this clause is in addition to the Contractor's obligations under the Service Contract Labor Standards statute and Wage Rate Requirements (Construction) statute, and the Contractor may not receive credit toward its prevailing wage or fringe benefit obligations under those Acts for any paid sick leave provided in satisfaction of the requirements of E.O. 13706 and 29 CFR part 13." Thus, I do not see that the XO has any bearing on a contractor's obligation to comply with the WD attached to a contract. In that regard, if the WD does not call for sick leave, I believe the contractor could substitute sick leave as a bona fide fringe benefit for at least some of the required H&W payments if the contract is not subject to 52.222-62, the sick leave is not required by state law, or the sick leave is in addition to what is required by 52.222-62 or applicable state law.
  2. Bob, many PNMs that I have seen seem to use boilerplate language in regard to reliance. If you read the entire PNM you will see that there was only partial reliance or other factors were used in determining a fair and reasonable price. This indicates the importance of PNMs being accurate and truthful. They should not be viewed as just another item to check off in awarding a contract.
  3. Bob, yes. Here is the general outline. DCAA relies on what is in a PNM to determine if the government relied upon the cost or pricing data that was submitted. In this case, the PNM clearly stated that the government relied upon the submitted cost or pricing data to determine that the price negotiated was fair and reasonable. Based on this, DCAA issued an audit report finding that the contractor had submitted defective cost or pricing data. The contracting officer adopted the audit findings and issued a claim against the contractor seeking to recover the alleged increased prices. However, during discovery, the individuals involved in negotiating the contract stated that they had performed a "should cost analysis" to determine the price of the contract and had not actually relied upon the cost or pricing data submitted by the contractor. In other words, the reliance language in the PNM was merely boilerplate that was included in every PNM and was not necessarily true. Based on this, the government decided to bail on the claim. A side note to this, because DCAA felt that it had been misled by the individual who stated that he relied upon the cost or pricing data, it explored whether it would be possible to have that individual pay for the cost of performing the audit. Further, the DoDIG was somewhat supportive of this idea.
  4. In other words, does the contract (not the contractor's proposal) say the contractor will provide X number of personnel to meet the SLAs or does it say the contractor will provide the necessary number of personnel to meet the SLAs? Also, what is the basis for payment? Is it satisfaction of the SLAs or providing a specified number of personnel?
  5. Divona, the real question is what does the contract say, not what the contractor proposed. You said the contractual requirement is to provide necessary personnel to meet SLAs. If the SLAs are being met, what is the contractual issue as it seems the contractor has met the contractual requirement? If they are not, I presume there is a clause in the contract for a price adjustment to reflect this. If there is not a price reduction provision, this should be a lesson learned for the next time.
  6. Past Performance

    Corduroy, napolik told you what the FAR says. However, the big thing is what the RFP says about past performance.
  7. Commercial Item Justification

    The bar for determining that a product is a commercial item is a low bar as is the level of knowledge of many contracting officers. Just because the government wants something, does not make it right. This is a frustrating issue for contractors who, in many instances, know more than their government counterparts. See the following COFC decision http://www.uscfc.uscourts.gov/sites/default/files/opinions/SMITH.PRECISION092408.pdf
  8. Michael11, I am confused about your posts. You said "The contract was awarded competitively under an idiq contract." This indicates that you are talking about an order under an IDIQ contract and not an independent contract. If that is the case, the order should be subject to the terms and conditions of the IDIQ contract. Thus, you need to review the clauses in the IDIQ contract to see what is there.
  9. Modification for Travel

    Will you take money from the other CLINs to fund the travel CLIN? If not, how will the contractor bill against the travel CLIN if you have not obligated additional funds for that CLIN?
  10. Cost Anylsis for T&M Contract

    Flitzer, your post is confusing. Have you already awarded the contract? If so, does it contain labor rates? Is your question about the number of hours or the rate per hour?
  11. Commercial Item Justification

    StePa, yes, the prime can change its mind about the parts being commercial items. However, this does not mean that the prime is correct now and was wrong in the past when it accepted the parts as being commercial items. You did not say why the prime rejected the parts as being commercial items. However, the bar for what is a commercial item is low and it doesn't take much to be a commercial item. I presume that when you say the parts are catalog items for your company, you mean that they are offered for sale to other companies, but you have only been able to sell them to the prime.
  12. Carl, what does this mean? In the case of the OP, the "parent" contract is being awarded for needs that are anticipated to arise in the next fiscal year and no funds are currently available to satisfy those anticipated needs.
  13. Truth Decay

    To add to what Vern has written, earlier in my career I was a regulator with the Federal Communications Commission. Based on my experience there, there were many times when the major networks engaged in outright deception in their "news" broadcasts. For example, some of their news stories were actually scripted with actors playing parts in the stories, they would take pictures of something and represent it as something completely different and edit interviews to combine answers to more than one question into the answer to a single question. Based on my experiences at the FCC and personal experience as well, I have moved from the skeptical to the cynical in regard to broadcast news.
  14. Truth Decay

    All of this discussion reminds me of the statement we hear repeated frequently that we are all entitled to our opinions, but we are not entitled to our own facts. That statement may or may not be true. Consider this anecdote: Bill and Sam run a race in which Bill beats Sam. In Bill's version, Sam came in last. In Sam's version, he came in second. Which, if either, is true and the other false?
  15. Thanks for the clarification. Of course, the language you quoted is from DFARS 252.244-7001. Thus, this is a contractual requirement under the contracts in which that clause is inserted. Moreover, it only deals with surveillance of 1st tier subs. It does not go to second tier subs. Therefore, this language would not impose any obligations on a prime contractor in regard to a 2nd tier sub. Also, because this is only a DFARS clause, it has no application to contractors who do not do business with DoD.
  16. I agree with Vern. Isn't the real question in regard to certified cost or pricing data whether the IOT is a subcontract that requires truthful cost or pricing data unless an exception applies? The definition of subcontract in 15.401 says a subcontract includes IOT of commercial items. It does not mention IOTs in general.
  17. I don't know what this means. Can you clarify?
  18. Neil, please see the ASBCA decision at http://www.asbca.mil/Decisions/2016/59508, 59509 Lockheed Martin Integrated Systems, Inc. 12.20.16.pdf. In light of this decision, what obligation does a prime contractor have in regard to 42.202(e)(2)?
  19. Sun$hine, you did not state whether the contract at issue is subject to the Service Contract Act and if it is whether the 1st tier sub and 2nd tier subs are also subject to the SCA. If they are, you, as the prime, and each subcontractor can be held jointly and severaly liable for non-payment of required wages and fringe benefits. In addition, the Depart of Labor can propose each of you for suspension and debarment for the non-payment.
  20. Mod Awarded in Error

    Which probably means that it has incurred costs in performing the extended contract that it will want to recover.
  21. Mod Awarded in Error

    Powerbab, is the contractor in the extended period now or is it still performing within the original contract POP?
  22. Vern, I could not agree more with you. In my experience, many government contracting folks believe a contractor must base its price on the cost or pricing data the contractor submits to the government. Of course that is incorrect. As a DCAA auditor once testified in a deposition, the contractor can base its price on the square root of the distance to the moon if it wants to.
  23. In regard to my earlier post and H2H's, see FAR 15.403-1(c)(3).
  24. Sunnyo, by chance is effort under an SBA approved mentor-protégé arrangement what you are talking about?
  25. Brian, is your concern only with the NRE? If it is, what additional information are you asking for? It is possible that what the contractor is offering is all that it has for the NRE since this is likely a one off event. By the way, are you treating the NRE design as a commercial item? If you look closely at it, it may not be. In that case, you could have a separate CLIN in the contract for the non-commercial NRE and require certified cost or pricing data for that effort. Just a thought without knowing more than what you have posted.
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