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Everything posted by Retreadfed

  1. Wage Determinations under the SCA

    LB, read FAR 52.222-41 and 52.222-43. That should answer your questions.
  2. ji, you are correct in your interpretation. A contractor can still receive an order after recertifying as other than small, but the order is not considered to be an order to a small business concern.
  3. The language I quoted is not related to when a proposal is submitted. It relates to the five year recertification requirement. Under that language, if you recertify that you are other than small, you cannot be considered small in regard to any orders that are awarded after that date, regardless of when the proposal for the order was submitted.
  4. dmuir, you cited 13 CFR 121.404. Paragraph (g)(3) of that section states "If the contractor certifies that it is other than small, the agency can no longer count the options or orders issued pursuant to the contract towards its small business prime contracting goals."
  5. Superior knowledge

    I agree with Joel. The way I see it, rsenn is not really concerned with government superior knowledge, but with a perceived competitive advantage an incumbent contractor may have. If such an advantage exists, it would not be an unfair competitive advantage but merely an attribute of being an incumbent. GAO has addressed this issue several times, and without doing a search to confirm this, my recollection is that GAO has always denied the protest.
  6. Superior knowledge

    rsenn, following your logic, the government would have to disclose labor rates, indirect cost rates, management plans and staffing plans of incumbent contractors to competitors. I don't think you want to go that far, particularly in light of 18 U.S.C. 1905. As Joel said, a contractor's employees are frequently the contractor's most valuable assets and they are generally desirous of protecting those assets from being pirated by competitors. As such, in my experience, if a FOIA request is filed asking for the information you seem to be wanting, the government will deny it under exemption (b)(4) and sometimes (b)(6) depending on the request. In regard to (b)(6), some of the information you are asking for could be covered by the Privacy Act so the government cannot release that information without the permission of the individual concerned. If you read the cases concerning superior knowledge you will find that information concerning another contractor's performance, which includes its workforce, is not the type of information that is covered by that doctrine. Instead, superior knowledge deals with aspects of the work to be done where the government knows something the contractor does not and the contractor cannot reasonably be expected to have that knowledge. A prime example of this is it is necessary to have access to classified information in order to accomplish the contract, but the government does not disclose this information to offerors. This is quite different from what you are talking about, particularly where you have a wage determination and a statement of work that describes what needs to be done so that you can determine what labor categories are required. Further, if a T&M contract is contemplated, the government should be listing labor categories in the RFP. Like Joel and Carl, I just don't see superior knowledge applying here.
  7. Superior knowledge

    There is a disconnect in FAR 52.222-17 between what a successor contractor is required to do and how it is to get the information it needs to comply with the clause. A successor contractor's primary obligation under the clause is to offer employment to "those service employees employed under the predecessor contract whose employment will be terminated as a result of award of this contract or the expiration of the contract under which the service employees were hired." However, the clause does not say how the successor is to know this. That information would seem to be almost exclusively within the knowledge of the predecessor contractor and it may not become apparent to the predecessor contractor until some time after the new contract is awarded.
  8. Government Furnished Equipoment

    Joel, I agree that those FAR provisions should be taken into account by the contracting officer in preparing a solicitation. However, offerors should read the solicitation to determine whether the guidance in those FAR sections has been incorporated into it and what offerors should do in response to the solicitation.
  9. Government Furnished Equipoment

    Jo, read FAR 45.201(c) then read the solicitation on which you are proposing. That should answer your question.
  10. 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.
  11. 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.
  12. 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.
  13. Estimated Delivery Order

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

    Searching, have you thought about how the bona fide needs rule applies to what you are suggesting?
  15. 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?
  16. 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.
  17. 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.
  18. 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
  19. 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).
  20. 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.
  21. 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.
  22. 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.
  23. 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.
  24. 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.
  25. 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.