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Everything posted by Retreadfed

  1. tj, instead of worrying how you are going to monitor the contractor's performance, I would be more concerned with whether you have someone who is capable of monitoring that performance.
  2. CPFF LOE Calculations

    RL, how old is this contract? FAR 52.232-21 Limitation of Cost (Facilities) was removed from the FAR in 2007.
  3. CPFF LOE Calculations

    What you posted states that the contracting officer has discretion to take action from a list of at least two possible courses of action. You only listed one. This indicates you did not state the entire paragraph.
  4. CPFF LOE Calculations

    What does paragraph (g) of the Level of Effort clause say?
  5. CPFF LOE Calculations

    More importantly, RL, what does your contract say about fee adjustments if the supposed LOE is not provided?
  6. Solicitation questions and answers

    ji is essentially correct. However, a contracting officer who does not answer a question seeking clarification of a solicitation runs the risk of having a successful constructive change claim asserted by the contractor.
  7. I think you have misinterpreted 52.245-1(e)(3). Vendor as used there refers to the entity that sold the property to the contractor. It does not refer to the contractor. Thus, when the contractor receives the vehicles from the dealer, title will pass to the government if the cost of the vehicles is chargeable as a direct cost of the contract.
  8. NenaLynz, I'm a little confused about what the facts are. You say the SIN's on the GSA schedule contract are all for services. You also say that the affiliate without the GSA schedule contract is listed as a "participating dealer." That seems to indicate that supplies are being provided. Is the non-schedule holder providing supplies to the schedule holder? If yes, are the supplies a deliverable under the specific orders?
  9. ji, I don't know what you are disagreeing with. While bodily injury and personal property damage insurance can relieve the insured from liability to third parties, its primary purpose is to protect third parties from being financially harmed due to the negligence of the insured. The theory behind such insurance is to protect the public from injuries arising from the operation of a dangerous instrument.
  10. ji and Joel, the OP asked about insurance on the vehicles, not insurance for coverage for operation of the vehicles. Bodily injury and property damage coverage is usually to protect third parties. Having such insurance does not necessarily provide coverage for damage to the vehicles that may be government property. If the vehicles are government property, it seems to me that the liability provisions of 52.245-1 have to be considered.
  11. ji, how do you reconcile 28.303 with 28.307-2?
  12. Cost Monitoring Plans

    H2H, I think you are over analyzing the DCMA Instruction. It does not say that contractors must come up with cost reduction initiatives. What it says is if they do have such initiatives, are the results reflected in forward pricing rates. Interestingly, the DCMA Instruction is intended to implement PGI 242.3. The PGI is supposed to provide internal guidance to DoD personnel only. It is not supposed to impose requirements on contractors. Further, note that the PGI guidance applies to contract types other than cost reimbursement contracts. Instead, it applies to all contract types except FFP and FP(EPA). Theoretically, the PGI guidance would apply to T&M contracts for commercial items. Additionally, the guidance is only mandatory in regard to contractors that do a minimum amount of business with DoD. Therefore, it does not apply to all cost reimbursement contracts. H2H, I am sure you are familiar with DCAA operational audits where DCAA audits the economy and efficiency of a contractor's operations. It seems to me that the cost monitoring program described in the PGI and DCMA Instruction are ACO versions of such audits.
  13. Kevlar, contract value and revenue are not the same thing.
  14. CO, do the prime contractor's acquisition procedures describe what they consider to be an FFP or FP(EPA) contract? I have seen contractor's define contract types differently than they are described in the FAR.
  15. H2H, is it your position that the description of an FFP in FAR Part 16 governs how a prime contractor labels or characterizes a subcontract?
  16. CO, what do you mean when you say "the audit is of the prime contractor's contract administration"?
  17. CO1559, the reasonableness cost principle would apply at the prime contract level because it is a cost reimbursement contract. Therefore, all costs incurred by the prime must be reasonable. On the other hand, if the subcontract is a fixed price subcontract as you have indicated, the cost principles do not apply to what the sub is entitled to be paid by the prime. Moreover, the government does not have the right to audit the costs incurred under such a subcontract. See FAR 52.215-2.
  18. Is there a clause in the subcontract that authorized the sub to submit the initial modification request? Similarly, was there a clause in the subcontract requiring or authorizing the sub to submit the final list of incurred cost and for the prime to pay the sub in accordance with that list?
  19. Have you considered how FAR 31.205-26(e) and(f) might apply to your situation?
  20. REA'n Maker, the way I read the SBA regs, you do not look at the cumulative performance of the contract, but each individual performance period, i.e., you evaluate compliance with the LOS clause in each period of performance, not the total period of performance. From what you wrote, I understood you to be saying you look at the entire period of performance, e.g., base period and all option periods combined to determine compliance with the LOS clause.
  21. Neil, what you are describing concerning flow down clauses are contractual requirements, not regulatory requirements. There are very few mandatory flow down clauses, i.e., clauses that by their terms are to be included in subcontracts. Other clauses that are required for the prime to carry out its obligations under the prime contract may be included in subcontracts as necessary flow down clauses. However, as discussed in this forum before, when a contractor is acquiring commercial items from a subcontractor, the only clauses that are required to be included in subcontracts are those listed in FAR 52.244-6, which include "a minimal number of additional clauses necessary to satisfy [the contractor's] contractual obligations." By implication, these additional clauses would be limited to those that are suitable for use when acquiring commercial items. I don't understand this statement that you made "the prime is still responsible for ensuring itself that the subcontractor is financially sound before making an interim payment not supported by what it contracted for, a deliverable product." I don't see any such requirement anywhere. At the prime level, the government is required to obtain "adequate security," which may be the contractor's financial conditions, as a condition for providing government financing. However, that is a contract formation issue.
  22. Neil, note that SI's company is proposing to provide a commercial item. What the prime is asking for is inappropriate for such a subcontract. If the prime is serious about regulatory requirements, it should be reading FAR 32.2, particularly 32.001 and 32.202-2. However, as we have said before, the FAR does not apply to contractors and does not generally govern the relationship between primes and subs. This is generally a matter of negotiation. If the prime's policy is to include inappropriate clauses in subcontracts, the sub should either refuse to accept the clauses and walk away from the deal if the prime insists or roll over and accept the inappropriate clauses. As for costs, what the prime pays its subs is a cost to the prime. I see nothing in DFAR 252.232.7012 that requires the prime to include costs incurred by subcontractors.
  23. Mandatory flow down clauses are those that by their terms are required to be inserted in subcontracts. See for example, FAR 52.215-2. Neither of the cited clauses has a requirement for the clause to be inserted in a subcontract.
  24. Tomahawk, why do you say you think the RFP has a T&M portion for materials? Is the contractor required to manufacture the parts or just provide them? I'm having a hard time understanding how a T&M pricing arrangement would work if the RFP merely calls for the contractor to provide the parts. In other words, what would be the time portion of such an arrangement?
  25. Advice for New Professionals

    Joel, I don't quite understand what you are saying, so I will answer my own question. Under a cost reimbursement or T&M contract, the contractor does not have to provide a completed product or service in order for the contractor to be paid. Under a cost reimbursement contract, the contractor is entitled to be paid its allowable cost incurred in performing the contract whether it completes the contract or not. Thus, if the contract calls for a product or a completed task, the contractor does not have to deliver the product or complete the task in order to be paid its allowable costs subject to the Limitation of Cost or Limitation of Funds clause. Similarly, under a T&M contract, the contractor is paid for the hours expended and cost of material regardless of whether it completes the contract. Thus, the government may pay the contract price and not receive what it bargained for.