Retreadfed

Why is this relevant to a subcontract? FAR 42.12 is directed toward prime contracts and is how the government consents to the transfer of a contract despite the terms of the Anti-Assignment Act. It does not require prime contractors to do anything if a subcontract is transferred.

If the appropriation was available at the time the mod was executed there was no ADA violation. If the appropriation was not available at the time of the modification, there was a violation. From what has been written, it is not clear what the specific facts are. Further, as Jamaal has pointed out, there could be other violations here depending on what the facts are.

What does this mean? Why not just terminate the subcontract and do the work yourself? Are you buying something other than a subcontract?

That is generally a true statement. For contractors, the government usually does not pursue criminal false claims act remedies because you cannot put a corporation in jail and the government must prove its assertions beyond a reasonable doubt. As a result, corporate contractors are usually faced with civil false claims act complaints. Note that a claim can be false without the contractor facing liability because the act requires a knowing submission of a false claim. As you indicated, if a false claim is not submitted knowingly, there is no liability.

Sunstrider, just to make sure of the facts, was FAR 52.215-20 in the solicitation? Also, is FAR 52.215-21 in the contract?

Under the civil false claims act, intent is not an element. All the government needs to prove is that a false claim (one that is not true) was made knowingly. In this regard, 31 U.S.C. 3729 states (1) the terms “knowing” and “knowingly”— (A) mean that a person, with respect to information—(i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information; and (B) require no proof of specific intent to defraud;

That will be a very long shot in light of the discussion of the sovereign act defense by the Supreme court in Winstar. See, https://caselaw.findlaw.com/us-supreme-court/518/839.html Further, you have to realize that the government acts in one of two ways in regards to its contracts - its contractual capacity and its sovereign capacity. Thus, if the government prevents a contractor from working during a shutdown, you have to ask in which capacity did the government act when it did so. Failure to appropriate funds is not a contractual act unless the failure is specifically directed toward a contractor or class of contractors. That is clearly not the case here. Thus, as I said earlier, unless the government does something based on the terms of a contract, such as issuing a stop work order, the contractor is generally out of luck in regard to recovery of costs relating to the shutdown.

Not necessarily or generally. The prime contractor is the party to a contract. That is the entity identified as the contractor in the contract. Being a prime contractor does not impose obligations on affiliates of the prime contractor unless the affiliate is considered a subcontractor. As Neil was indicating, what is a subcontract is a fact specific question, not necessarily what label you put on a transaction. For some purposes, intercorporate transfers, which would include transfers between affiliates, are specifically considered subcontracts. See, FAR 31.205-26. In other cases, the form of the transaction could be considered a subcontract regardless of how the parties labeled it. In any event, subcontractors only assume the obligations they have agreed to assume in the subcontract. In this regard, there are some clauses, such as 52.215-2, that must be included in subcontracts. Other clauses may be necessary in order for the prime contractor to carry out its contractual obligations. These clauses may be FAR clauses or clauses the prime contractor has developed.

Nena, you are getting into some issues that can be complicated when you talk about overall compliance obligations. These obligations can arise from several different sources such as statute, regulation, contract, including a CBA, or company policy. Further, they apply simply as a result of a company being an employer and not necessarily as a result of its status as a government contractor. However, looking at your original question, note that FAR 52.204-10 implements two statutes, reading the statutes, it is clear that congress intended that they have broad applicability. Although congress did not define "subcontract" in the statutes, it seems clear to me that work orders between affiliates would be considered subcontracts that are reportable. However, in regard to exec comp provided by the affiliates, that would not be reportable if the affiliate did not meet the threshold test for reporting such comp., i.e., 80% of its income from Federal awards and over $25M in Federal awards.

Please be specific as to what you are asking. Travel, as used in the travel cost principle, refers to transportation costs, the cost of lodging and per diem. Other direct costs is a vague category of cost with no meaning defined in the FAR.

If a cost does not benefit a contract, that cost cannot be allocated to that contract either as a direct cost or an indirect cost. It seems to me that justifying direct cost of a contract clearly benefits that contract. Benefit is an accounting concept that simply means there is some logical connection between a cost and contract so that it is fair for that contract to bear at least a portion of that cost. We do not know if those costs will benefit other contracts because we do not know all the facts relating to your circumstances. The fact that an auditor has indicated that the costs of justifying costs the auditor may have questioned are unallowable as a direct cost, is only the auditor's opinion. The contracting officer is the one who makes the final decision, subject to appeal under the Disputes clause.

See FAR 16.102(b).

I don't know what this means. However, the test for Allocability under the FAR is whether there is some beneficial or other equitable relationship between a cost and the cost objective(s) to which that cost is allocated. Under the CAS, the test is whether there is a causal or beneficial relationship between the cost and cost objective(s). If we are talking about costs incurred justifying the allowability of a direct cost incurred under one contract on what theory would such costs be allocable to other contracts? In other words, what benefit do those other contracts receive from these costs? They clearly did not cause the costs.

What are you going to do with your employees if the government issues a Stop Work Order in regard to your contract? Also, what does your contract say about your ability to get paid for work not performed because of a government shut down? Generally, when there is a shut down, contractors are left out in the cold and it is difficult for them to recover any losses they incur as a result of a shutdown which is considered a sovereign act. Contractors have the best chance of recovery if there is a contractual action by the government such as a Stop Work Order.

Several questions need to be answered first, such as do you have only one cost reimbursement (sub)contract)? Do you have other contracts that are subject to the cost principles, e.g., FPI or the material portion of T&M contracts? Do you know if the invoicing concerns relate to direct costs, indirect costs, or both? How do you normally account for the cost of your accounting department, including the cost of supporting government audits? Finally, is there anything in your contract(s) that address this issue?

Does that mean that every word, number and symbol in a contract is a term or condition of the contract?

As Don and maybe others have asked, what is meant by "terms and conditions"? No one has attempted to answer that fundamental question. For example, are blocks 15, 16, 17a and 18a of the SF 1449 terms or conditions of the contract?

Of course, if you believe that the wrong NAICS code is assigned to this procurement, you can protest that issue.

See, DFARS 252.215-7009 item 14 and Table 15-2 Section II A " For all items proposed, identify the item and show the source, quantity, and price. "

I tend to agree with H2H unless there is something more such as the selected subcontractor being debarred or suspended.

If the delay in performance is not the product of an excusable delay, what about a reduction in price or fee as consideration for not issuing a T4D?

That seems to have been Sunstrider's biggest issue. However, my question is whether the identify of a subcontractor is cost or pricing data that must be certified? It certainly would be relevant in granting consent to subcontract post-award.

I am retired from the Federal government and now work in the private sector. However, some issues I see are what is the precise language of the power of attorney? What is the law of the state that governs your transaction with the contractor in regard to powers of attorney? What language is in the contracts regarding assignment? What specific objections to the COs have to recognizing the assignment? What have you done to alleviate their concerns?

No, I correctly identified the section I had in mind.

In addition to what ji wrote, we only have your opinion that there is a valid assignment. We have no way of knowing whether that is true and whether you have been able to demonstrate the validity of the assignment to the various COs.