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Retreadfed

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Everything posted by Retreadfed

  1. Seeker, are you employed by a contractor or the government? If you are employed by the government, have you ever had any involvement with a source selection? I am asking this to help in knowing how basic or advanced the answer should be.
  2. apso, note that the limitation in 31.205-6(p) applies to all contractor employees on contracts awarded after June 23, 2014. This makes for some interesting issues because some contractors can have different universes of contracts that are subject to three different ceiling limitations.
  3. Ratification Authority

    If you have a DoD contract, an REA requires certification as well as a claim. However, there are different certifications for each.
  4. H2H is correct so far as what the exec receives. However, the government has imposed restrictions on what use can be made of funds received from the government as compensation for contract work. See, for example, FAR 52.203-5, Covenant against contingent fees and 52.203-7 Anti-Kickback Procedures. This applies to profits on contracts.
  5. paystubs

    I agree with Vern. The key is that a paystub contains factual information, i.e., information that is verifiable. While the statute and FAR contain the word "data," I learned a long time ago that laws, regulations and contracts mean what the courts say they mean. In MRS Manufacturing, the Court of Claims said Situations wherein accurate, complete, and current information is known to the contractor and not known to the Government can certainly be avoided if such information is physically delivered to the Government and the information's significance to the negotiation process is made known to the Government by the contractor. We do not hold that both of these conditions must always be met before a contractor can be said to have submitted the required information to the Government. We conclude, however, that if a contractor possesses accurate, complete, and current information that is relevant to negotiations [*182] with the Government, and he neither physically delivers the data to the Government, nor makes the Government aware of the information's significance to the negotiation process, then he has not fulfilled his duty under the Act to furnish such information to the Government. It is clear from this that the Court was equating "data" with "information." This seems to have influenced later decisions concerning defective pricing and what is cost or pricing data. The boards and courts have been consistent in treating documents that contain factual data or information that can impact price negotiations as cost or pricing data. See, for example, Texas Instruments, 87-3 BCA 20195. This is consistent with the purpose of requiring the submission of certified cost or pricing data, i.e., disclosure of all the facts necessary to place the Government in a position equal to the contractor with respect to making judgments on pricing as stated in several defective pricing decisions. H2H, in regard to ghost employees, see DCAA MRD 13-PPD-012(R)July 18, 2013. You might find it interesting.
  6. paystubs

    An Excel spreadsheet would be a secondary source of evidence, i.e., evidence of a fact derived from a primary source of evidence of that fact. In order to corroborate the information in the spreadsheet, I would need information from the source used to create the spreadsheet. I'm not sure what is meant by "paystub" in this context. The way I usually use that term it refers to something that is provided to an employee. In that case, what the employee receives is not a contractor record. The government only has contract audit rights in regard to contractor records. It does not have any contract rights to records of individual employees. Therefore, I would like for Pat to clarify exactly what is being asked for.
  7. paystubs

    H2H and Vern, if pay stubs are not facts, but merely evidence of a fact, i.e., what a particular employee is actually paid, how would that fact be submitted to the government in order for the contractor to satisfy its obligation under FAR 52.215-20 or 52.215-21 assuming they are in an RFP or contract respectively? H2H, I am fairly sure you are aware of DCAA's concern with "ghost employees." Would access to an "employees" supposed SSN and home address be relevant to an inquiry into whether an employee actually exists?
  8. paystubs

    Pat, are you being required to submit certified cost or pricing data or data other than certified cost or pricing data in regard to the proposal?
  9. ThomCons, were these comments made in the context of a CPSR or an evaluation of your purchasing system under DFARS 252.244-7001? If the latter, have you received notice that your system has significant deficiencies and that you are required to develop a corrective action plan?
  10. Carl, I do not disagree that a prime contractor may for whatever reason rightly or wrongly, include 52.224-2 in a subcontract. My issue was with your statement that it is required to be included in subcontracts by law. I can find no support for that statement and from your last response to me, it seems you have backed away from that position.
  11. Thanks, Carl. Note that this section only mentions "operation" of a system of records although the term "operation" is not defined in the statute. It does not mention the design or development of a system as the clause does. Also, this section only mentions contractor. It does not mention subcontractors. When congress wants a statute to apply to subcontractors, it usually mentions subcontractors in the law. Thus, it is not clear that a definitive statement can be made that 52.224-2 is required to be included in subcontracts by law.
  12. Carl, why do you say that 52.224-2 is required to be included in contracts "by law"? I have read the Privacy Act and can find nothing in it that refers to contract clauses.
  13. Vern, I agree with your last sentence. However, I hope you will agree that the big problem today is not contractors' lack of knowledge concerning government procurement, but an all too common lack of knowledge by both contractors and government personnel. As H2H indicated, there are numerous horror stories that contractors can tell concerning CPSRs where the government personnel were absolutely clueless. The same can be said for PCOs, ACOs, property administrators, and auditors. A prime example of this was the ASBCA's decision in http://www.asbca.mil/Decisions/2016/59508, 59509 Lockheed Martin Integrated Systems, Inc. 12.20.16.pdf. where the Board said ""In this case, we are presented with a claim based on a legal theory, originated by an auditor, . . . [The government] has gone forward with a claim for over $ 100,000,000 that is based on nothing more than a plainly invalid legal theory."
  14. No Cost Settlement

    GiGirlmel, what termination clause(s) is/are in your contract?
  15. Although this quote from FAR 1.102-2 is directed toward contracting officers, it should be considered by prime contractors in their relationships with subs "To achieve efficient operations, the System must shift its focus from “risk avoidance” to one of “risk management.” The cost to the taxpayer of attempting to eliminate all risk is prohibitive. The Executive Branch will accept and manage the risk associated with empowering local procurement officials to take independent action based on their professional judgment."
  16. Neil, my reading of 252.244-7000(a) is that the other DFARS clause in the prime contract must specify that it is to be included in subcontracts for commercial items in order for it to be inserted in such subcontracts. It is narrower than a requirement to include all DFARS flowdown clauses from the prime contract into subcontracts for commercial items.
  17. Neil, isn't that statement a little overly broad? Some mandatory flowdown clauses, such as 52.215-2 are not authorized for use in contracts for commercial items but do not contain language that says the clause is not required in subcontracts for commercial items.
  18. Neil, I'm not quite sure I follow your point 2. when you state that FAR 52.244-6 "does not state that all other mandatory flowdown clauses included in your contract are deleted from your contract in cases where your are procuring a commercial item." Are you saying that clauses in the prime contract that by their terms are to be included in subcontracts must be included in subcontracts for commercial items even if they are not a clause listed in 52.244-6?
  19. FAR 31.205-44 starts off by saying "Costs of training and education that are related to the field in which the employee is working or may reasonably be expected to work are allowable, except as follows." Thus, the general presumption is that if a cost meets there criteria, it is allowable unless an exception listed in the cost principle applies. However, FAR 31.204(a) states that "Costs are allowable to the extent they are reasonable, allocable, and determined to be allowable under 31.201, 31.202, 31.203, and 31.205. These criteria apply to all of the selected items that follow, even if particular guidance is provided for certain items for emphasis or clarity." Therefore, these general cost principles have to be considered in determining the allowability of the enumerated cost principles in 31.205. As Joel suggested, start at the top and ask if the doctorate is "related to the field in which the employee is working or may reasonably be expected to work" then go from there. By the way, if this has been going on for seven years, has an audit been conducted on the contract? If it has, how were these costs treated in the audit?
  20. CO, why don't you start by looking at how the FAR defines a reasonable cost?
  21. What standard are you using to judge whether the cost as spread over seven years is unreasonable?
  22. Based on this set of facts, how did the contracting officer make an affirmative finding of responsibility?
  23. Vern, you are correct concerning the misc. obligations of a contractor under an indefinite delivery contract. The concern raised by bkl14 was the contractor's potential refusal to provide "representation of the Authority," whatever that means. As you seem to agree, such representation would not be required until an order is issued.
  24. Apso, you are correct in what you wrote. However, my question was premised on the notion that no orders had been issued. Until an order is issued, the contractor has no performance obligation. Therefore, where is the default if the contractor has no current performance obligations? One thing no one has mentioned here is the possibility of anticipatory repudiation of the contract by the contractor. That possibility should be explored. Also, we do not know if getting the waivers was a condition precedent to the contractor's performance obligations. If it was, perhaps there is no contract. There is a lot we do not know from bkl14's one sided account.
  25. Note that the OP stated that this contract was one of a series of multiple award contracts. We do not know if these were IDIQ contracts, but if they were and no orders were issued to this contractor, where is the default?
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