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Everything posted by Retreadfed

  1. Government Furnished Equipoment

    Jo, look at FAR 52.245-1(e)(3). If title to the equipment has passed in accordance with that clause, it is government property. In that case, you would only be able to use the property on the contract under which it was acquired unless you got permission from the contracting officer to use it on some other contract.
  2. 52.215-12 and Vendors

    I'm confused (which seems to be my perpetual state) about what the facts are here. Jetsterkitty keeps talking about a "contract" but says 52.215-12 was "flowed down" to his/her company. This brings up the question of whether we are talking about a prime contract or a subcontract. Also, I agree with Joel that it would be good to know if 52.215-10 is in the (sub)contract. In this regard, most of us realize that prime contractors frequently blindly incorporate the clauses from their prime contracts into subcontracts without thinking of their application.
  3. Superior knowledge

    rsenn, I think you have misunderstood what constitutes superior knowledge. One of the elements is that the government has knowledge of information that is vital to bidding or proposing but does not disclose it. Thus, the government's obligation is to disclose superior knowledge before contract award so that offerors can make whatever use of that knowledge that they see fit. As for 52.222-17, have you read paragraph (d) of that clause? It seems to address your concern.
  4. Estimated Delivery Order

    From Searchings post, he doesn't know that he will need 100. It could be more, it could be less.
  5. Estimated Delivery Order

    Searching, have you thought about how the bona fide needs rule applies to what you are suggesting?
  6. Service Contract

    DC, did the contractor provide the services called for? Also, what do you mean by service contract in this context? Are you saying this is subject to the SCA? Depending on the language of the NTP, it might constitute a contract. Have you analyzed the issue from that perspective?
  7. Houston, we have a problem here. The statutory limitations on subcontracting were changed around 2010 or 12. The statutory changes included the use of similarly situated subcontractors on all set aside contracts. The SBA took several years to implement those statutory changes in 13 CFR 125.6. However, the FAR has not been updated to reflect the changes to the law and the SBA rules. The FAR still imposes the limitation on subcontracting that was in place prior to the change in the law. To understand how terms were defined then, you need to look at the version of 13 CFR 125 that was in effect in 2012. Those rules state that you do not consider fee or profit in determining compliance with the limitation on subcontracting.
  8. Wage Determinations under the SCA

    Lightbulb, are you talking about the gross or net hourly amount you are paid? The amount called for in a WD is a gross amount. However, it is subject to deductions such as for Federal and state income taxes.
  9. Contracting Officer Misconduct

    There is a recent COFC opinion concerning a contracting officer doctoring the administrative record submitted to the Court in a pre-award bid protest that you might be interested in. https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2016cv1656-34-0
  10. Michael11, generally there are several types of documentation that DCAA wants to see in regard to purchased supplies or services. First, a document that requires the vendor to provide the supplies or services. Next, some sort of document showing that the satisfactory supplies or services were received by the contractor. Third, there was a payment at no more than the agreed upon price for the accepted supplies or services. In the absence of any of these types of documentation there is the possibility that fraud may be perpetrated on the government. In regard to the first type of documentation, there have been several cases where contractors have created false purchase orders to cover-up improper payments. Contractors are expected to have internal controls in place to prevent this. Those internal controls would generally require the documentation described above. Also, by having documentation that indicates an agreement, DCAA can go to the vendor listed in the documentation and verify that it is a real agreement and not a false document created by the contractor. This is an audit step known as confirmation. Whether DCAA has properly utilized these audit procedures in your case, no one here can say, but hopefully this explains the concern and why DCAA generally expects this type of documentation. Also, see FAR 31.201-2(d).
  11. Davis v. Conley

    One more point of interest here. The opinion says that Conley got a search warrant to search Davis and seize the moonrock. The opinion contains a small quote from the affidavit to obtain the warrant. It does not discuss what inquiry the attorney applying for the warrant made of Conley. It is some what disconcerting to think that the attorney would have gone forward with the warrant if (s)he was aware of the background of this case.
  12. Davis v. Conley

    For those of you who are interested in when DoJ will defend an action brought against a Federal employee, see 28 CFR 15. In Davis, the plaintiff is seeking damages on a constitutional tort theory, not a tort theory. So DoJ may not defend those types of actions. It would be interesting to know if NASA tried to get DoJ to defend Conley and have the government substituted as the defendant.
  13. What does an employee have to do to earn a bonus? If the bonus is earned because of unallowable activity, such as planning a merger or acquisition, then the bonus costs for that activity would be unallowable. If the bonus is earned for something like business development the cost of which is allowable, the bonus would be allowable if it met the criteria of 31.205-6.
  14. Suspension of Work

    tj, one thing you should keep in mind is the possibility that you may be entitled to recover unabsorbed overhead as a result of the suspension. I suggest that you read up on this topic.
  15. We can thank the FAR Councils for this confusion. Post-award debriefings are required by statute. For DoD, the applicable statute is 10 U.S.C. 2305. Here is what it says about the content of post-award debriefings: The debriefing shall include, at a minimum— (i) the agency’s evaluation of the significant weak or deficient factors in the offeror’s offer; (ii) the overall evaluated cost and technical rating of the offer of the contractor awarded the contract and the overall evaluated cost and technical rating of the offer of the debriefed offeror; (iii) the overall ranking of all offers; (iv) a summary of the rationale for the award; (v) in the case of a proposal that includes a commercial item that is an end item under the contract, the make and model of the item being provided in accordance with the offer of the contractor awarded the contract; and (vi) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency. (C) The debriefing may not include point-by-point comparisons of the debriefed offeror’s offer with other offers and may not disclose any information that is exempt from disclosure under section 552(b) of title 5. Note that the statute does not contain any discussion of unit prices. Apparently, that is something the Council's came up with to needlessly confuse what is to be included in the debriefing and to create a potential internal inconsistency in the regulation. Because exemption 4 to FOIA is a statutory requirement and is coextensive with 18 U.S.C. 1905, it seems like the best course of action in regard to unit prices is not to disclose them in a debriefing unless there is a clear understanding that they do not constitute information protected from release by exemption 4.
  16. Ratification Authority

    Rea'n Maker, I'm not sure exactly what your question was concerning the difference between a claim and an REA. However, to me, the practical differences are that a claim accrues interest while an REA does not. The cost of pursuing an REA is an allowable contract administration cost (assuming the cost elements are otherwise allowable in accordance with FAR Part 31) while the cost of pursuing a claim is not an allowable cost. An REA can be resolved by the contracting officer, but a contracting officer may lose the ability to resolve a claim if it gets to the Court of Federal Claims where the government is represented by the Justice Department. An REA may require the submission of truthful cost or pricing data but no such data is required for a claim. There are different time limits within which a claim and REA must be asserted.
  17. Is FAR 52.232-1 in the contract?
  18. I have seen this several times where an agency will write an FFP contract, but administer it as a T&M/LH contract. This way of administering the contract is usually not disclosed to the contractor until after award. In most cases, this is done with small business concerns who are usually reluctant or have a diminished capacity to push back against the agency. I suspect this is done to avoid having to do a D&F justifying the use of a T&M contract.
  19. FFP for 12 months

    Why are you worrying about the number of hours that will be worked? You said this was a FFP contract. You did not say it is a level of effort contract. If it is a contract to do a specific job, and the job gets done, haven't you got what you contracted for regardless of the number of hours it takes the contractor or what it costs the contractor to do that job?
  20. FFP for 12 months

    Muddy, I think you are making a lot of assumptions about the contractor's personnel policies. You did not say whether the contractor employee will be subject to the FLSA or is in an exempt position. Also, you did not say whether the SCA applied to this effort. Assuming the employee is FLSA exempt and not covered by the SCA, contractors have great latitude in the way they use their employees. Some contractors have a standard 45 hour week for FLSA exempt employees. Also, you did not say that the contract will require the contractor to provide 130 hours of vacation time or what is included in that vacation time. The amount of vacation time and holiday time a contractor grants to employees exempt from the SCA is largely a matter for the contractor. Thus, if the contract does not require a specified amount of vacation time, it is up to the contractor as to what that will be.
  21. Fee on Labor Only?

    Jesterkitty, does the RFP anticipate award of a T&M contract?
  22. Procurement Swamp Article

    Bob, I have been around long enough to have progressed from being skeptical to being cynical about things. However, there are some things that I hope most people will agree have been improvements to the procurement process. For example, when I first started in this business, there was a requirement to use formal advertising unless one or more of 14 exceptions existed. For most of the exceptions, a D&F had to be prepared and there were different levels of approval for the D&F depending on what exception was being used. Also, a D&F had to be prepared if a cost reimbursement contract was going to be used. Thank goodness those requirements no longer exist. Another form of progress is the raising of the SAT (I have forgotten what it was called years ago) from $2,500 to its current multiple ceilings. A final improvement I hope we can agree on is the indexing of many thresholds to at least partially account for inflation. I am sure there are others, but I think there have been some improvements, but there could be more such as raising the thresholds for Davis-Bacon and Service Contract Act application.
  23. Procurement Swamp Article

    jonm, agree, but the problem cannot be solved without a recognition of exactly what the problem is. The problem is not just within DoD and the points Vern raised as to the causes of the problem have some application to the civilian agencies, but there are other issues at play in regard to their acquisitions. Those need to be identified and analyzed. Such a study might lead to a better understanding of the problem and possible ways to manage, but not necessarily cure, the condition
  24. Procurement Swamp Article

    Many people like to focus on the DoD procurement system and its flaws, but do not take a similar critical look at civilian procurements. If a current analysis were to be done of DoD system procurements and civilian agency system procurements, I would not be surprised to find that DoD, on the whole, conducts acquisitions and manages programs in a more efficient manner that do the civilian agencies.
  25. Ratification Authority

    Vern, a quick bureaucratic question concerning your hypo. If the contract in question is a DoD contract and the REA does not have the requisite certification for an REA, would the CO be required to obtain the REA certification before negotiating a settlement?