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Everything posted by Retreadfed

  1. Look at the express language of 31.205-46. " Paragraphs (a)(2) and (a)(3) of this subsection do not incorporate the regulations cited in subdivisions (a)(2)(i), (ii), and (iii) of this subsection in their entirety. Only the maximum per diem rates, the definitions of lodging, meals, and incidental expenses, and the regulatory coverage dealing with special or unusual situations are incorporated herein." It clearly limits the application of the various travel regulations to a determination of the allowability and reasonableness of lodging and per diem.
  2. While there are GAO decisions holding that agencies do not need any special authority to include indemnification provisions in contracts, I am not aware of a decision that specifically addresses copyright violations. In those decisions, the GAO held that in the absence of a statutory indemnification provision, agencies have to limit the indemnity to funds that are available and cannot providean open ended indemnification.
  3. You have restated the point I was trying to make. The FTR, JTR and DSSR only apply to lodging and per diem. None of them apply to the cost of air travel by contractors. Also, don't take the DCAA MRD at face value. Look at the underlying rationale for the postion taken and compare that against what the FAR, DFARS, contract and case law say. In many circumstances, DCAA guidance is a distortion of what is required or permissible.
  4. I have seen multiple references to the FTR and JTR in this thread. I hope everyone recognizes that the JTF and FTR are only referenced in 31.205-46 in regard to lodging and per diem. Further, for overseas travel, the DSSR is the regulation that applies for lodging and per diem. While these regulations might be instructive in regard to air travel, they are not part of the FAR for that purpose. Finally, for overseas travel, FAR 52.247-63 needs to be considered.
  5. More Funding Questions

    Look at 31 U.S.C. 1342 and see if it might have any application to your situation.
  6. Double Billing?

    You did not say what type of contracts your have, i.e., fixed price, cost reimbursement, etc. While you asked about allocation, remember, allocation only addresses to which contract(s) a cost should be assigned. It does not necessarily mean the cost will be recoverable. For example, if you have a firm fixed price contract, a cost may be allocated to that contract but not recoverable because the contract is in an overrun situation. Further, in your example, if neither contract requires you to do the work, you could not allocate the cost as a direct cost to either contract. If it is to be allocated at all, it would have to be as an indirect cost. But even then, you will have to determine the allowability of the cost and whether it can be recovered under either contract.
  7. When you say uplifts, are you referring to pay differentials for duty in places like Iraq and Afghanistan?
  8. Note, that pursuant to revisions to the SBA's 8(a) rules effective 14 March 2011, the 8(a) member of an M/P JV must perform 40% of the work performed by the JV.
  9. Increase in fixed fee?

    Was the change in the accounting treatment of subcontractor costs done voluntarily by the contractor or at the direction of the government?
  10. Increase in fixed fee?

    Is this under the Seaport-e contract where a subcontract passthrough rate is used?
  11. Personal or Non-Personal

    Vern, the concept of a contractor employee bringing an EEO complaint against the govenrment is not detached from reality. I remember some years ago when I was working for the Navy that a female contractor employee who was hired to provide support to the finance office was able to bring a sexual harassment complaint against the Navy. The Navy argued she was not an employee, thus not entitled to the protections of the Civil Rights Act. However, the EEOC held that the way the contract was administered, she became an employee and was entitled to have a chance to prove her case.
  12. Contractor has a contract to provide training services to the government under a CPFF contract. As part of the training, certain material provided by the contractor will be consumed. The training material is material that the contractor produces and sells commercially at a catalog price. When pricing the contract, the contractor priced the training material at the catalog price, however, no CLIN was included in the contract for the materials, only a CLIN calling for training. The government incorporated the contractor's proposal in the contract. When the contractor started submitting vouchers for the training services, DCAA rejected them because the training materials were shown at the catalog price instead of the cost of production. According to DCAA, commercial items that do not have their own CLIN cannot be included at price on a CPFF contract. The contracting officer has taken the position that it is acceptable to price the contract using the catalog prices, but when submitting vouchers the cost of the training materials must be used instead of the catalog price (the contract is not CAS covered). There is not special provision in the contract stating how the material is to be billed. The contract does include FAR 52.216-7. My question is does anyone know of any authoritative pronouncement that addresses this situation? I have found no cases on point and the provisions of FAR Parts 12, 15, and 31 don't specifically cover this issue.
  13. "...U.S.C takes precedence over the FAR

    See, MCS Portable Restroom Service, B-299291, March 28, 2007, where the GAO found an inconsistency between the FAR guidance on when an SDVOSB sole source award was permitted and the authorizing statute and SBA regulations.
  14. You have to read the clause and contract to see what is permitted. The Serco decision involved the 2002 version of the clause. It was quite different from the 2007 version.
  15. Why do you think DCAA would or could audit an FFP order?
  16. Can CEO direct charge?

    Yes, if the individual works more than 2080 hours a year. I know of some companies that expect their FLSA exempt employees to work a standard 45 or 50 hour week. Other companies pay their FLSA exempt employees for all hours worked. Thus, the more productive an employee is, the more the employee can earn. You have a fixed price contract. In negotiating the price, you should form your negotiation objective using the cost principles in FAR Part 31. FAR 31.205-6( says compenation should be reasonable for the work actually done. Following Vern's advice, if the contractor is not paying the CEO two separate amounts for CEO work and program manager work, determine what would be a reasonable amount to be paid for each type of work and apportion the $175K accordingly. If the contractor is paying the CEO two amounts, determine if each amount is reasonable for the work done. In short, the contractor should not reasonably expect to recover from the government more than it pays.
  17. Can CEO direct charge?

    Is this a start-up company? If so how long has it been in business? What type of contract is involved? Does the company have a policy of paying individuals for all hours worked regardless of whether they are FLSA exempt? The same dollars should not be charged twice to a contract, but as Vern indicated, the same individual can have costs allocated to a contract for work (s)he performs in separate capacities
  18. Because the contractor proposed the commercial items at their catalog price, it excluded the commercial items from its fee calculation. All evidence indicates the govenrment did the same. Thus, what you have suggested is the way the contract was actually priced. Moreover, by the government now saying the contractor cannot bill for the items the way the contract was negotiated, the contractor will receive an effective fee substatially less than what the parties negotiated. Moreover, the overall cost to the government will be substantially reduced through the elimination of the profit element of the price of the commercial items. As I mentioned earlier, the pricing of the commercial items was clearly identified and discussed in the contractor's proposal, which is incorporated into the contract.
  19. Some Navy labs such as the one at China Lake, CA are industrial funded activities authorized by 10 U.S.C. 2208. Those labs are authrorized to sell supplies and services to persons outside DoD, which includes contractors and non-contractors. 2208(h) specifically authorizes such a lab to be a subcontractor under DoD contracts.
  20. Availability of Funds

    In making a decision on what you may want to do, I suggest you read 31 U.S.C. 1341 and 1342. Although those statutes impose limitations on government officials, they might give you some ideas of what you should be doing in these circumstances.
  21. Adding to what Vern has said, remember, the SCA was passed to protect service employees. They are entitled to be paid at least the wages and fringe benefits set out in the applicable WD when they are performing on a service contract. The contracting officer is required to include the applicable WD in a contract and the contractor is to pay its covered employees in accordance with the WD included in the contract. When the government exercises an option, the contracting officer has to ensure that the proper WD is included in the contract for the option period. If the contractor must increase or decrease what it pays covered employees as a result of the new wage determination being added to the contract, the contract price is to be adjusted to reflect the difference in what the contractor had been paying its employees and what is required under the new WD. If the goverment does not include the proper WD with an option, the employees are still entitled to be paid the wages and fringe benefits called for by the proper WD. The contractor can request an adjustment to the contract to recover increased wages and fringe benefits it is required to pay its employees. However, this adjustment is for the benefit and protection of the employees, not the contractor.
  22. Fair enough. Let's zoom out some and see if you can tell us what Region the office is in. I have been dealing with DCAA offices around the country for over 30 years. it seems like from time to time, specific offices get on a kick about a particular topic. This is a new issue to me and if this office has cognizance over one of my clients, I would like to give them a heads up.
  23. Carl, please take this as a constructive suggestion. Think before you post and make sure your posts are clear and concise. I have been trying to follow your logic but have a hard time doing so based on the structure of your posts. Sometimes, I just get lost trying to follow what your are saying. Having said that, I think I am beginning to understand your position, but need clarification on some points. First, is your position based on (a) a change in statute, ( a change in the FAR or © both? Second, is it your position that the rule of two should be considered only before issuance of orders under an IDIQ contracts that are not mandatory for use? Finally, is it your position that the rule of two should be considered before issuing an order under an IDIQ contract if the minimum order amount under that contract has been met? Put another way, the rule of two would not apply if the minimum order amount has not been ordered yet?
  24. Can you tell us which DCAA office is involved?