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Everything posted by Retreadfed

  1. FFP SCA Change in contract hours

    I agree with Joel. The adjustment you would be asking for would be pursuant to the Changes clause, not 52.222-43. The wages and fringe benefits in a wage determination are minimums that you must pay. They are not what you must base your price on. Further, the minimums in the WD would not act as a limitation on your right to an equitable adjustment pursuant to a change order under the Changes clause. FAR 52.222-43 and the Changes clauses provide independent bases for a price adjustment to a contract.
  2. That is true for a proposal. The dollar amount contained in a proposal is a potential cost to the government. However, 31.201-1, which you referenced, refers to the allowability of contractor costs. FAR 31.201-1 does not apply to indirect cost rates, but to the individual costs that are used to compute the indirect cost rate.
  3. The concept of allowability in FAR Part 31 relates to costs. A contractor's indirect cost rate is not a cost but is comprised of various pool and base costs each of which needs to be examined for allowability. Unallowable costs must be excluded from the indirect cost pool. While such costs are to be excluded from any billing to the government, they are to be allocated separately to contracts for accounting purposes. See, FAR 31.201-6 and CAS 405. On the other hand, unallowable costs are included in the indirect cost base for calculating the indirect cost rate but while allocable to contracts for accounting purposes, they are excluded from billings to the government on contracts subject to the cost principles. See, FAR 31. 201-6, 203 and 201-1. That is why I was asking the OP what he meant by "allowable"?
  4. Mr. B, when you say allowable are you asking if something is permissible or are you asking if something is allowable as that term is used in FAR Part 31? Also, when you say the contractor has an OH rate of 14.95% are you saying that is what the contractor has proposed or that is a rate that the government has agreed to for some current purpose such as a FPRA or a billing rate?
  5. Small Business Set Aside Under $150k Subcontracting with Large Business

    In regard to affiliation, application of the ostensible subcontractor rule should be the first thing that gets examined.
  6. LPTA Question

    Desparado, Vern's point about "bait and switch" is more than a theoretical point. I was involved in just such a situation on the contractor side. The government wanted a system that had never been produced before and stated the performance the system had to meet. The contractor proposed a solution that it thought would achieve the government's objectives. Interestingly, the contractor's proposal was incorporated into the government's version of the contract, but it was not incorporated in the version provided to the contractor. After award, integrating the various parts of the system turned out not to be feasible and the contractor went in a new direction that it thought would achieve the results the government desired. However, the government insisted on the use of the original approach, which it insisted was a term of the contract, without thinking whether the contractor's revised approach would work. Obviously, this lead to a dispute and much bad feelings on the part of both parties.
  7. Vern, I agree. In addition, an FPRA is evidence of what the government thinks certain contractor costs will be at least for part of contract performance. My point was that even if the contractor and government agree that the FPRA contains valid estimates of future costs, that is not determinative of what the government will actually pay, which is what I interpreted H2 H's point to be.
  8. On what basis did the agency incorporate the FPRP in its evaluation? The FPRP is merely a proposal and has not been formalized as a Forward Pricing Rate Agreement. Even then, as H2H pointed out, a FPRA is an estimate and not final rates.
  9. Follow the Rules Act

    Don, a slight technical correction, it is codified at 5 U.S.C. 2302(b)(8).
  10. Joel, I think you are on the right track. The FAR merely repeated what was in the Policy Letter. If there is any interpretation of what voting member means, it is to be found in agency supplements, non-binding guidance or acquisition plans. Simply put, there are no universal answers to most of Seeker's questions.
  11. TINA and Actuals

    An observation: court and board decisions are usually based on the application of certain principles to the facts of that case. Therefore, the fact that certain information was considered cost or pricing data in one case does not automatically mean that it will be considered cost or pricing data in another case. Based on what was presented in the original post, without more, it is not clear that actuals from a previous procurement would be cost or pricing data for a later procurement.
  12. A little history lesson here. FAR 7.5 is the regulatory implementation of OFPP Policy Letter 92-1 issued September 23, 1992. So far as I can find, this Policy Letter was the first statement on inherently governmental functions. Appendix A to the Policy Letter contained a list of functions that were considered inherently governmental, including the language about being a voting member on a source selection board. The Policy Letter did not provide any further explanation as to what this meant. The Policy Letter directed the FAR Council to incorporate the Letter into the FAR. Taking the course of least resistance, the FAR Councils merely reformatted Appendix A and incorporated it into the FAR without any substantive alterations. In other words, the FAR Councils were told to do something and they did it. It is very likely that the Councils did not give much, if any, thought to what was meant by anything in the Policy Letter. FAR 15.305 gives a brief discussion of proposal evaluation procedures. This section gives agencies broad discretion in how proposals are to be evaluated. FAR 7.105(b)(4) requires acquisition plans to describe "the source-selection procedures for the acquisition, including the timing for submission and evaluation of proposals." Thus, if voting is to occur in regard to proposal evaluations, that should be discussed in the acquisition plan. Sometimes, agencies will prepare a source selection plan as a separate document that meets the requirement of 7.104. What this means is that if evaluators are to vote on something, it should be described in the acquisition/source selection plan. The FAR seems a little contradictory when 7.104 is read in conjunction with 37.203(d) which states that Contractors may not be paid for services to conduct evaluations or analyses of any aspect of a proposal submitted for an initial contract award unless— (1) Neither covered personnel from the requesting agency, nor from another agency, with adequate training and capabilities to perform the required proposal evaluation, are readily available and a written determination is made in accordance with 37.204; (2) The contractor is a Federally-Funded Research and Development Center (FFRDC) as authorized in 41 U.S.C. 1709(c) and the work placed under the FFRDC's contract meets the criteria of 35.017-3; or (3) Such functions are otherwise authorized by law. Thus, 37.203 permits contractors to be paid to evaluate proposals in certain circumstances. If evaluating a proposal is equivalent to voting on a proposal, we have a conflict between these FAR sections. Complicating matters even further is 18 U.S.C. 1905. If a proposal contains confidential financial information or trade secrets, what authority does the contracting officer have to provide that proposal to a contractor for evaluation or voting? To specifically address some of Seeker's questions, the source selection authority is responsible for making the decision as to who receives a contract. Evaluations or votes from evaluation teams are merely recommendations to the SSA. The SSA is responsible for making any trade-off decisions, who is in the competitive range, and what, if any, discussions will be held.
  13. 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.
  14. 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.
  15. Ratification Authority

    If you have a DoD contract, an REA requires certification as well as a claim. However, there are different certifications for each.
  16. 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.
  17. 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.
  18. 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.
  19. 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?
  20. 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?
  21. 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?
  22. 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.
  23. 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.
  24. 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.
  25. 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."