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Everything posted by Retreadfed

  1. 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?
  2. 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?
  3. CO, why don't you start by looking at how the FAR defines a reasonable cost?
  4. What standard are you using to judge whether the cost as spread over seven years is unreasonable?
  5. Based on this set of facts, how did the contracting officer make an affirmative finding of responsibility?
  6. 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.
  7. 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.
  8. 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?
  9. Contracting Scandals

    No, I am not kidding. You and I must have traveled different roads if this is all that surprising to you. I agree it is shocking and disgusting that government personnel would not be ticked off that fraud had happened on their watch and want to do whatever is necessary to get it eradicated. However, DW's experience is not uncommon for whistleblowers.
  10. Contracting Scandals

    DW, when something goes wrong in an organization, management frequently considers it to be a negative reflection on its management ability. Therefore, while disappointing to receive the reaction you did, it should not be all that surprising.
  11. Unreasonable Price

    Vern, some old mossbacks like me remember the Renegotiation Board. Would you be in favor of reviving it or something like it?
  12. H - clause vs FAR/DFAR

    Don, you are right about the clause. My bad.
  13. Unreasonable Price

    Vern, thanks for the history lesson. I was a history major in college and find the origins of things to be interesting. As to the reason for my question, in my experience, many COs think that a fair and reasonable price is a price that is developed strictly through cost/price analysis. I wanted to see where Lionel was on this.
  14. Unreasonable Price

    Lionel, a fundamental question that should be addressed here is what is the definition of "fair and reasonable price" and what is a "reasonable price"? Do you have such definitions?
  15. H - clause vs FAR/DFAR

    Don, this gets down to the intention of the parties. I can see if there is a follow-on contract and all the property under the old contract is transferred to the new contract, property close-out activities may not be required. In that case, there is no problem. On the other hand, if the follow-on contract does not require use of some or all of the property, then close-out activities may be required in which case I think the H clause would kick in. We have been discussing a conflict between the H clause and the current version of the GP clause which came into being in 2007. However, we do not know what GP clause(s) are in the contract. It very well may be that we are dealing with an old dog here and that the property was provided under a facilities contract. I should have caveated my statements to reflect this reality.
  16. H - clause vs FAR/DFAR

    Don, I guess we have a difference of opinion on this. I do not think that my interpretation renders any language in either clause meaningless. The GP clause says the contractor will do certain things when a contract is terminated or expires. The H clause says there is no money in the contract for those activities, but when a termination occurs or the contract expires with no follow-on, the government will require the contractor to do the things listed in the clause, which generally means the contractor will comply with the GP clause, and add money to the contract to cover these activities. In regard to a termination for convenience, this is consistent with the model termination letter found in FAR 49.601-2. Thus, the direction contemplated by the H clause in regard to terminations would likely occur prior to or simultaneously with the termination. If the government elects to allow the contract to expire, direction to comply could be issued prior to the or concurrently with the expiration. We have to assume that government officials will do their jobs correctly. Thus, I do not see a conflict.
  17. H - clause vs FAR/DFAR

    Don, I do not read the H clause as saying the contractor does not have to do what is required by the Government Property clause or any other clause in the contract. Instead, I read it as saying that the price of the contract does not include the activities listed in the H clause. However, the clause goes on to state that in certain circumstances the government will add funding to the contract to cover the cost of these activities. This interpretation harmonizes the H clause and GP clause so that no conflict is present. Such harmonization is the preferred way of interpreting the contract. Gabriel, why are you concerned with paying twice for close-out costs? It seems like you are accusing the contractor of attempting to defraud the government.
  18. H - clause vs FAR/DFAR

    Gab, I do not think the Order of Precedence clause is relevant to this discussion. That clause tells the parties how to resolve conflicts between terms in the contract. The H clause is not in conflict with any of the standard FAR clauses you have cited. As for the meaning of source of funds, we can all speculate as to what the contractor meant (my guess is that the contractor was asking for a fund cite to be added to the contract providing funding for the activities requested by the contracting officer) however, the best thing to do is simply ask the contractor.
  19. REA'n, the FAR limitations on the use of FP LOE contracts are frequently ignored by the government. I have seen more such contracts that do not comply with those limitations than those that do and that is quite a few. Pat may have left the building, but if (s)he is still around, maybe we can find out what payment clause is in the contract. If it is an FFP contract, 52.232-1 should be the payment clause.
  20. Unreasonable Price

    Joel, as you indicated, the FAR does not tell what the higher level official is to do once (s)he receives a referral like this from a contracting officer. That gives them a lot of wiggle room on what they do. In my experience, what happens at the higher level is up to the person occupying the higher level position. In some cases, they will call the CEO or other officer of the company and try to work something out. Sometimes, they direct the CO to go back to the contractor and state that the higher official agrees that the price is unreasonable and that if the contractor does not lower its price, it will not get the award. Or as ji has indicated, they may review the record and say the price is reasonable.
  21. If FAR 52.245-1 is in your contract, it is a contractual requirement, not a regulatory requirement. Part 52 of the FAR also provides guidance to contracting officers in that each sections starts with words such as "Insert this clause in all contracts."
  22. Rea'n, please read 13 CFR 124.510 and 12 CFR 125.6. I think the SBA has a different take on when you measure compliance with the statutory limitation on subcontracting.
  23. Z, the FAR sections that you cite relate to guidance for government personnel to use when awarding prime contracts. They are not clauses binding on contractors. On the other hand, if FAR 52.245-1 is in your prime contract, it is binding on you and you have to comply. If you want to avoid the flow down requirement, find a clause in your contract that says you do not have to include the clause in contracts below the MPT.
  24. FAR 16.505(b), no debriefing

    The requirement for a debriefing concerning an order issued under a multiple award contract comes from statute (e.g. 10 U.S.C. 2304c(d)(5) for DoD). The statute limits the requirement for a debriefing to orders that exceed $5M, with that limit having been adjusted for inflation to $5.5M.
  25. Wage Determinations under the SCA

    LB, read FAR 52.222-41 and 52.222-43. That should answer your questions.