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Everything posted by Retreadfed

  1. Retreadfed

    Fee on Negotiated Changes

    I recall a case before the Federal Circuit in the 1990's where the Court held that the proper time to assess risk is when a change is made to contract work, not when the amount of the adjustment is negotiated. With my limited research capabilities, I have not been able to find that case, but I believe it involved Texas Instruments.
  2. Retreadfed

    Who's responsible to request funding?

    Delayn, what is the rationale for this process? From a contractor's perspective, this seems like a poor business practice. What information is provided to offerors in regard to funding when a solicitation is issued? If I were a contractor who submitted a proposal then had the procurement canceled because the government did not have funding available for the contract I would be ticked off. If this was a recurrent theme with the agency, I would be tempted to stop dong business with that agency. Also, it seems like a waste of government resources to go through the procurement process then find out that there is insufficient funding for the procurement.
  3. Retreadfed

    Maximum Profit per FAR??

    In regard to Carl's post, note that the DFARS structured approach is used to establish the government's negotiation position. The results of application of the weighted guidelines are not binding on contractors. Further, DFARS 215.404-4 is not a contract clause.
  4. Retreadfed

    Charging with Coverage

    CR, I don't know what your last paragraph means, but in the situations you describe, the actions of the contractors is not only wrong, i.e., not in accordance with regulations and contract terms, but also illegal, i.e., subject to criminal sanctions.
  5. Retreadfed

    Charging with Coverage

    CR, I really have to wonder about the type of ethics programs these contractors have. There should be no question concerning whether this practice is proper. Look at FAR 52.203-13. If you have not been trained in what is correct and what is not, there is a real problem.
  6. Retreadfed

    Defective Pricing

    Also, look at FAR 52.215-10(d)(2). In the situation you describe, if it was a sole source procurement where certified cost or pricing data was required, somebody would need to get fitted for an orange jumpsuit. As for the customer not asking for certified cost or pricing data when it would otherwise be required, the statute places the onus on the contracting officer to require the submission of certified cost or pricing data. This is usually done through the use of the solicitation provision FAR 52.215-20 which would be inserted in Section L of the RFP (although many contracting officers erroneously put it in Section I). If that provision is in the RFP, certified cost or pricing data would be required unless the contractor asked for and received an exemption. If it is not in the RFP, the contractor has no obligation to submit certified cost or pricing data. If it is not required, the contractor cannot be held liable for defective cost or pricing data. Joel, I think CR was talking about regional salary surveys that would be used to justify labor rates proposed in a proposal.
  7. Also, look at the discussion of bona fide needs.
  8. Retreadfed

    Charging with Coverage

    CR, I don't know about today's government "customers," but I spent 24 years in DoD procurement and mischarging to FFP contracts was a significant issue if it could be detected. Detection was a problem because the government does not have the general authority to audit costs incurred on an FFP contract. Shifting costs from cost reimbursement or T&M contracts to an FFP contract, while not usual in my experience, gives a distorted picture of the contractor's ability to control costs and its internal controls. A lack of cost control would be reflected in the contractor's CPARS. A distorted CPARS showing that the contractor is a better performer than it truly is is potentially harmful to the government's interest. Further, if we are talking about CPIF or CPAF contracts, shifting potential overrun costs to an FFP contract can entitle the contractor to receive more fee than they otherwise would. Finally, if there is a follow-on to the FFP contract, the false recording of costs on the predecessor contract can be a justification for a higher price on the follow-on. In short, mischarging to an FFP contract is not a "victimless crime."
  9. Retreadfed

    Charging with Coverage

    As you describe it, it is an illegal act. Intentionally allocating a cost to a cost reimbursement contract to which the cost is not allocable and then submitting a claim for that cost to the government violates the False Claims Act, 31 U.S.C. 3729. It also violates several criminal statutes such as 18 U.S.C. 287, 18 U.S.C. 1001, 18 U.S.C. 1343. The same would apply to a T&M contract if the contractor intentionally claims an hour of labor that was properly allocable to an indirect cost pool as a direct hour of labor. The criminal statutes cited above, all require intent. However, no intent is required to be in violation of the FCA.
  10. Retreadfed

    Limitation of funds notice requirements

    I agree generally with Neil. However, I am a little fuzzy on why you are asking for additional funding for a CLIN. If the contract is not funded at the CLIN level, why would you need additional funding for a single CLIN if there is adequate funding for the contract as a whole?
  11. We have seen examples of where certain functions of government are moved from Washington to other areas of the country. For example, the Social Security Administration is located in Baltimore. DoD's DFAS was centralized in Columbus, OH, elements of the FBI were moved to West Virginia. Perhaps moving entire agencies out of Washington may not be a good idea in some circumstances, but why it could not be done with others, such as the regulatory agencies such as FCC or FTC, is an open question in my mind. With modern communications capabilities, travel is much less a requirement than it was a few years ago.
  12. Just to clarify, were the SCA clauses in the contract at time of award or were they added with the WD?
  13. Retreadfed

    Contract lines of authority

    Are you with the government or contractor? If the former, one thing you have to keep in mind is whatever position the government takes has an impact on the contractor. In this regard, the answer both COs give might be different from the contractor's interpretation of the contract and none of the interpretations may be correct.
  14. What, if anything, does your contract say about compliance with the SCA and adjustments because of changes in the WD?
  15. The FAR does not mention a socio-economic plan. My cynical side thinks this is a way for a contracting officer not to do business with a small business since small business subcontracting plans are not required from small business concerns. Further, with the limitation on subcontracting imposed on small business concerns, they may be constrained on the subcontracting opportunities that exist under a particular contract.
  16. Retreadfed

    Commerciality Request

    I think you leadership may be getting confused concerning new language in (I believe) the 2018 NDAA to the effect that once the government makes a determination that an item is a commercial item, future contracting officers cannot question whether the item is a commercial item except in specified circumstances.
  17. Retreadfed

    Problem of the Day

    Vern, your recollection of what the Court did in Alberici is correct. However, the basis for the government's appeal was the interest provision in the Disputes clause and FAR 33.208. Unfortunately, the Court did not consider it necessary to address the government's position except in a footnote where it said "The government argues in its brief that particular regulations prohibit 'claims' for future costs, but that begs the question. Statutes trump conflicting regulations. Thus, this case turns on the meaning of section 611. The government's statement of issues in its brief essentially limits this case to 'a straightforward question of statutory interpretation' involving section 611. See Rule 28(a)(3) of the Federal Rules of Appellate Procedure, which requires an appellant to state the issues presented for review." To me, this is a statement that the regulations are in conflict with the statute to some degree. Don's original question raises the issue of how contracting officers are to comply with FAR 1.602-1(b) which says "No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met." This seems to imply that contracting officers cannot simply be in compliance with the FAR when awarding contracts, but have to take reasonable steps to ensure that they have complied with applicable laws and executive orders as well. The FAR does not limit the term "regulation" to the FAR or agency supplements. Instead, "regulation" can be any regulation that is applicable to the procurement such as the regulations promulgated by the Department of Education for procurements conducted where the Randolph-Shepherd Act applies. This brings up the problem of what a contracting officer is to do if a regulation promulgated by an agency to which congress has delegated the power to write regulations implementing a statute is in conflict with the FAR. This is particularly problematic if the other regulation is one having the force and effect of law.
  18. Retreadfed

    Problem of the Day

    I was involved in the appeal to the Fed. Cir. I had no involvement in the case before the Board.
  19. Retreadfed

    Problem of the Day

    I see the issue, and my answer to Don's question about compliance and your second question would be my favorite answer, it depends. This topic is of particular interest to me as I was involved in the Albericci-Eby (hopefully I have spelled it correctly have all these years) appeal to the Fed. Cir.
  20. Retreadfed

    Problem of the Day

    Vern, can you expand upon your answer and give an explanation. For everyone's benefit here is what the statute says about when interest begins to accrue Interest on an amount found due a contractor on a claim shall be paid to the contractor for the period beginning with the date the contracting officer receives the contractor’s claim, pursuant to section 7103(a) of this title, until the date of payment of the claim.
  21. Retreadfed

    Proposing Wage Rates higher than Wage Determination

    FAR, have you considered this language from FAR 52.222-43 "The Contractor warrants that the prices in this contract do not include any allowance for any contingency to cover increased costs for which adjustment is provided under this clause"? Would what you are considering be a breach of this warranty?
  22. Retreadfed

    Cooperative Agreement experience

    The FAR does not apply to grants and cooperative agreements. OMB has issued uniform guidance regarding the use of grants and CAs. This guidance can be found at 2 CFR 200. The uniform guidance is not regulatory in nature. Instead, agencies are to issue regulations covering the use of grants and CAs within the agency. These regulations are to be based on the OMB guidance. Unfortunately, the uniform guidance was not written with for profit commercial organizations in mind. Nevertheless, I suggest that you read the OMB guidance and the agency regulations implementing that guidance. Many agency regulations are also found in 2 CFR. I have had some experience with grants and CAs and this process is something that I have never seen and does not make sense.
  23. Charles, I have not done such a search, but have you searched GAO bid protest decisions to see if your question has been answered?
  24. Retreadfed

    Real Contracting Pros

    USN, can you explain your concern? If DoD paid for the complete development of tech data, DoD should have unlimited rights in that data. Is this not happening?
  25. There is no bright line test for determining when an offeror knew or should have known of a basis for a protest. This is a determination that is made on a case-by-case basis and depends on the facts of the specific procurement.