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Retreadfed

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  1. To add to the generalization, in my experience, it is the larger contractors that have their own subcontract clauses. Many of these clauses are derivations of FAR or FAR supplement clauses. Some times these variations go further than the tweaks H2H described. At the same time, some of the clauses are FAR clauses with only those tweaks. Medium sized contractors and small businesses have a tendency to merely incorporate clauses from the prime contract without thinking as to whether the clause is applicable to the subcontractor or whether the "clause" is even a clause and not a solicitation provision.
  2. I think you also need to look at the reverse of this question. The US has Status of Forces Agreements with several countries. Some of these SOFAs contain provisions about hiring local nationals to work on US government contracts that are performed in the host country.
  3. The operative word in my post was "may." But in regard to your question, while some contractors develop their own subcontract clauses, many use FAR or agency supplement clauses for subcontracts. This is because they do not see any reason to reinvent the wheel when a clause already exists that they can use.
  4. If this is a subcontract under a DoD prime contract, the prime contract likely contains DFARS 252.244-7001(c) states in part that an acceptable purchasing system shall "Ensure that all applicable purchase orders and subcontracts contain all flowdown clauses, including terms and conditions and any other clauses needed to carry out the requirements of the prime contract." IAW this clause the prime contractor is required to flow down clauses that by their express terms require them to be included in specified subcontracts. In addition, the prime is required to include clauses in the subcontract that are necessary for the prime contractor to carry out its obligations under the prime contract. That means that there may be FAR/DFARS clauses in the subcontract that are not included in the prime contract. For example, if the prime contract is a cost reimbursement contract but the subcontract is a firm fixed price contract, there may be several clauses in the subcontract, such as a payments clause, that are not in the prime contract. In my opinion, if a prime contractor merely includes all FAR clauses from the prime contract in all subcontracts that is an example of professional laziness.
  5. Have you read the CR to see what it says about obligation of funds, if anything?
  6. That might work in some circumstances. I suspect that the definition of "productive hour" would vary from contract to contract. For example, I once worked with a contractor that had a contract to answer correspondence and prepare speeches for the Office of the Secretary of the Navy. Document preparation would definitely be considered a productive hour under that contract. A dispute arose under that contract concerning what the contractor was entitled to be paid and the Navy at first said the contract was a LOE contract but ultimately backed off that position and agreed with the contractor concerning payment.
  7. No my question was in response to your statement I quoted. We are talking about "level of effort" as in level of effort contract. I think most of us agree that a T&M/LH contract is not a level of effort contract.
  8. What would be a productive hour? One example of time expended in regard to performance of a contract is a contract requirement that the contractor will have employees attend a quarterly meeting with the government concerning performance of the contract. The contractor sends appropriate people (3) to a meeting, however only 1 of the employees says anything at the meeting. Would the time of the silent employees be a productive hour? What about the travel time of the employees going to and from the meeting?
  9. This seems to contradict the notion that the government does not buy hours under T&M/LH contracts.
  10. No. In regard to the certificate, you only have to make sure that you have disclosed all the relevant cost or pricing data. Your proposal is not cost or pricing data.
  11. This is an important point. It is surprising how many contractors track direct costs for compliance with the Limitation of Cost clause, but forget to track indirect costs. This frequently results in the contractor experiencing an overrun on the contract because the contractor's final indirect cost rates turn out to be higher than the billing rates. Unless the contractor could not have known of the overrun before it occurred, the contractor generally cannot recover the overrun costs.
  12. What is your objective concerning the contract here? You say the contractor is late in delivering supplies. This gives the government the right to default terminate the contract immediately without a cure notice, unless the government has delayed in doing so so that it has waived the delivery date. If the delivery date has been waived, a new delivery date needs to be established if the government still wants the supplies. This is because a new delivery date needs to be established so the government can terminate for non-delivery by the new data or failure to make progress toward meeting the new delivery date. The new delivery date can be established unilaterally by the government. A quick search of ASBCA decisions has failed to show any decision where consideration was required for establishing a new delivery date after waiver, although a more in depth search may disclose such a decision. If the delivery date has not been waived, instead of issuing a T4D, the government and contractor can agree to a new delivery date. This is where consideration comes in. The government is providing consideration by giving up its right to terminate the contract for default. For the extension to be valid, the contractor must provide the government with some consideration in exchange.
  13. What is not in the best interest of the government?
  14. For a contract clause, see FAR 52.246-2(h).
  15. Check out a treatise on contracting such as Corbin or Williston. That should give you ample authority to support that proposition.
  16. If travel is a part of the G&A base, G&A will be allocated to the contract to the extent travel is allocated to the contract. See FAR 31.203(d). Whether the allocated G&A is reimbursable depends on the terms of the contract.
  17. Joel, Z said the contract was for commercial services. If the contract is a T&M contract, it is governed by FAR 52.212-4 Alt I which does not incorporate the cost principles from FAR Part 31.
  18. A contractor never has to protest a procurement. However, I know in the Dryun case there were several protests following her conviction by contractors who had been victimized by her corruption. Although filed several years after the fact, the protesters only became aware of the basis for a protest after her conviction so the protests were timely.
  19. Thanks for clarifying. I was going strictly from memories of events long ago.
  20. Vern, how would your system handle those rare situations where the SSA acts unethically or criminally such as in the Darlene Dryun case or the situation that occurred years ago at DLA's Personnel Support Center in Philadelphia where the CO was demanding kickbacks from the winning contractor on competitive procurements? In the former case, as I recall there was no evidence that Boeing colluded with Darlene, while in the DPSC situation, the contractors clearly did collude with the CO.
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