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Everything posted by Retreadfed

  1. Retreadfed

    Mod Awarded in Error

    Powerbab, is the contractor in the extended period now or is it still performing within the original contract POP?
  2. Vern, I could not agree more with you. In my experience, many government contracting folks believe a contractor must base its price on the cost or pricing data the contractor submits to the government. Of course that is incorrect. As a DCAA auditor once testified in a deposition, the contractor can base its price on the square root of the distance to the moon if it wants to.
  3. In regard to my earlier post and H2H's, see FAR 15.403-1(c)(3).
  4. Sunnyo, by chance is effort under an SBA approved mentor-protégé arrangement what you are talking about?
  5. Brian, is your concern only with the NRE? If it is, what additional information are you asking for? It is possible that what the contractor is offering is all that it has for the NRE since this is likely a one off event. By the way, are you treating the NRE design as a commercial item? If you look closely at it, it may not be. In that case, you could have a separate CLIN in the contract for the non-commercial NRE and require certified cost or pricing data for that effort. Just a thought without knowing more than what you have posted.
  6. Vern, this is what I was talking about when I mentioned an indemnity provision. I am well aware of what a bailment is.
  7. Retreadfed

    Process of Excluding Small Businesses

    flitzer, are you a government employee, and if so, what is your job series?
  8. Vern, in regard to your ADA question, it seems to me that what Neil was talking about was a form of indemnity. Without going back and completely researching this issue, my recollection is that GAO has held that agencies do not need statutory authority, such as P.L. 85-804, in order to use appropriated funds to indemnify a contractor against specified loses. Instead, they can do so as long as the indemnification is not open ended and is limited by available funds. For an interesting GAO decision on bailments see, https://www.gao.gov/products/447483#mt=e-report
  9. Retreadfed

    Revenue Recognition

    H2H is correct. There is no requirement that FAR accounting concepts comply with GAAP. However, the FAR, including the CAS, generally complies with GAAP in regard to cost accounting. It does not contain any guidance on revenue recognition.
  10. Retreadfed

    Multiple Award IDIQ Small Business rerepresentation due to novation

    I agree with Vern's analysis. !3 CFR 121.404(g)(4) and FAR 52.219-28 do not prohibit an agency from issuing awards under a set aside IDIQ contract to a contractor that is no longer small. Under single award IDIQ contracts, in my experience, the agency merely stops issuing orders to such a contractor, terminates the contract for convenience or does not exercise the next option. Termination for convenience or not exercising an option appear to be steps that the SBA encourages agencies to take in situations such as those described by the OP. See 13 CFR 125.2(e)(2)(iii) where the use of an "off ramp" in multiple award set aside IDIQ contracts is discussed. The OP posed a second question in regard to the need to follow the rule of two when issuing orders against a multiple award IDIQ contract that has been set aside. I do not see any requirement for an agency to conduct a rule of two analysis in regard to orders issued under a set aside multiple award IDIQ contract. The rule of two analysis was already conducted in regard to award of the contract. I do not see a requirement to conduct a second rule of two analysis before issuing orders under such a contract. The OP also brought up FAR 16.505. That section requires multiple award IDIQ contracts to describe the procedures that will be used to award orders under them. If those procedures are not followed, a contractor adversely affected by this action can file a claim under the Disputes clause of the contract challenging the non-compliance by the agency.
  11. Retreadfed

    Multiple Award IDIQ Small Business rerepresentation due to novation

    Is FAR 52.219-28 in the contract and if it is has the acquired concern complied with the recertification requirements? In that case, as Vern pointed out, 13 CFR 121.404(g) specifically (g)(4) comes into play.
  12. JAB, we do not know is in your prime contract or subcontract. Therefore, we cannot speak with specificity to your situation. However, assuming your contract contains FAR 52.249-6, and the termination was accomplished under that clause, you would be required to terminate your subcontract and reach a settlement with the subcontractor. See FAR 52.249-6(c)(3) and (6). This would be an allowable cost that is allocable to the terminated contract. The question is whether the agreed amount would be reasonable. If not, you still should be able to recover some part of the agreed amount. Privity of contract between the government and subcontractor is irrelevant to a prime's recovery of subcontract settlement costs under a T4C.
  13. Sunnyo, not necessarily. The hourly rate has to be priced so that the contractor makes a profit on an hour of labor. There is no guarantee that the contractor will actually make a profit on each hour of labor. In fact, it is possible for the contractor to lose money on a T&M contract that is not properly priced. By the way, you have not told us how your subcontract will be priced. Is it also a T&M contract or is it priced differently?
  14. If revenue means G&A base costs, that is a poor expression of what these terms mean. Revenue is income while costs are economic sacrifices. In other words, they are reverse concepts.
  15. Retreadfed

    government recovery

    In addition to what Vern wrote, unless the contractor and government entered into a deferment agreement, the government could collect the debt through offset on any contracts the contractor has with the government that do not include a no offset provision.
  16. Justice1, how did the additional expense cause your indirect rates to go up? Indirect cost rates usually work in the inverse to direct costs. Thus, if direct costs go up, indirect costs usually go down. Indirect cost rates should not be affected by revenue since they are based on costs, both direct and indirect.
  17. Retreadfed

    Invoicing for unworked hours under a FFP TO

    Jamaal, in answer to your question to me, they are not relying on any authority. They simply look at the clauses that are required for an FFP contract and include them as well as 52.212-4, even if the contract is only for commercial items. In my view, this is done because the contracting officer does not know what (s)he is doing, particularly in regard to contracting for commercial items. In regard to which clause controls an action, I was involved in a situation a little over a year ago where a contract for commercial items contained 52.212-4 and 52.249-2. The contracting officer terminated the contract using the authority of 52.249-2. A dispute over the termination settlement proposal was appealed to the responsible appeals board where it was settled through mediation conducted by a board judge. At no time did the government attempt to argue that 52.212-4 was controlling and that it was improper to rely on 52.249-2. Further, the judge did not raise this as an issue in the mediation.
  18. Have you read FAR 1.102(d) and 1.102-4(e)?
  19. Retreadfed

    Invoicing for unworked hours under a FFP TO

    Jamaal, in my experience, it is not uncommon for contracting officers to include clauses normally included in contracts for non-commercial items in contracts for commercial items as well as 52.212-4. For example, a contract may include a separate Changes clause or Termination clauses in addition to 52.212-4.
  20. Retreadfed

    Invoicing for unworked hours under a FFP TO

    Because you did not mention that the contract is a level of effort contract, I will assume that it is a completion contract. If that is the case, why would the contractor be entitled to the entire contract price if it did not do all the work required by the contract? Think of this as a supply contract: if the contract called for the delivery of 10 items but the contractor only delivered 8 that were accepted, would the contractor be entitled to the price for the 10?
  21. Retreadfed

    Default Clause to extend Period of Performance

    Con CO, don't forget that the procedures in the Changes clause apply to constructive changes as well as ordered changes. I agree with Vern that if what you say is accurate, whoever told you that does not understand government contracting.
  22. Retreadfed

    FFP Contract Maximum Increase?

    D3, changing the focus a little here, if you do not want to count the Contractor 2 orders as orders against the max of the IDIQ and the government has not placed any orders against Contract1, has the government breached its obligation to purchase a minimum quantity under Contract 1?
  23. Mess kits would be too archaic for the modern military. Instead, they would have to be known as field dining systems.
  24. Retreadfed

    Significant Government Delays and DFAS Payment Issues

    Is the contract subject to the SCA? If it is, are you able to make the required wage and fringe benefit payments?
  25. Retreadfed

    Specific Performance

    Where is this stated? How does this comport with FAR 1.606-2?