Retreadfed

There are several appeals board and court cases dealing with the impact an excusable delay has on the contract schedule. I suggest you do some research of those cases using the search term "excusable delay."

What exception are you talking about? Supplies or services provided by an NTDC are not automatically treated as commercial products or services. You acknowledged this in your original post when you cited to DFARS 252.215-7013. Also, see DFARS 212.102. Unless the contracting officer exercises the discretion granted by 212.102 to treat your product as a commercial product, you are not exempt from the requirement to submit certified cost or pricing data unless another exception applies.

I cannot answer that question because I do not have all the facts, such as a copy of the RFP, what discussions have taken place between your company and the government, exactly what your position on submission of certified cost or pricing data is, etc. What I was trying to convey to you is that there is no correlation between being able to certify cost or pricing data and having a CAS compliant accounting system. I simply don't understand what your concern is in this regard. As you have noted, you are a small business. As such you do not have to comply with the CAS, except to the extent that a portion of the CAS are incorporated in some other part of the FAR. For example, some of the cost principles in FAR Part 31 incorporate portions of some of the Standards. If you have a contract subject to the cost principles, you would have to comply with the portion of the CAS incorporated there, but no more. Further, you cannot be cited for a CAS non-compliance for failure to comply with the portions of the CAS included in the cost principles. Instead, you could have the cost disallowed. However, FFP contracts are not subject to the cost principles and they do not control what a contractor is paid under such contracts. Instead, the contractor is paid the fixed price regardless of what costs it incurs in performing the contract. But getting back to cost or pricing data, as mentioned before, your only obligation in this regard is to submit data that are current, complete, and accurate. The purpose behind this is to provide the government with the same information you have in regard to estimating what is a fair and reasonable price. If you meet this requirement, you really have little to be worried about. While you can be audited, that audit will be conducted by the government and is limited to the question of whether the data you submitted was current, complete and accurate. The audit does not measure whether your accounting system is compliant with the CAS. Because the audit will be conducted by the government, you do not pay for it, although you will incur some costs to support the audit, such as the cost of making your records available to the auditors and the time of personnel who interact with the auditors.

I don't see a problem here. When you submit certified cost or pricing data all you are doing is submitting cost or pricing data that you have to the government and certifying that the data is current, complete and accurate. This has nothing to do with whether your accounting system is in compliance with the CAS or not. In fact, as a small business, you are exempt from all CAS requirements. Thus, the CAS do not apply to you and you do not have to comply with any CAS requirement unless a requirement is made applicable to you by some part of the FAR other than Part 30.

Have you looked at FAR 6.301(b), 10.001 and FAR 15-406-3?

Do you want to cancel a task order or cancel an "RFP" for a task order?

Can you clarify these statements? You appear to be receiving guidance from a superior or other person in authority that you can have a severable services CLIN with a 3 year POP. At the same time it seems you are receiving guidance that this violates fiscal law? I'm confused. Also, what fiscal law is supposedly being violated?

Remember, to be effective, an option must be exercised in strict accordance with contract terms. If a CO attempts to exercise an option in some other way, it is considered a breach of contract and the contractor is not required to perform in accordance with the option. However, the contractor can waive the breach and agree to perform the option. In this case, the contractor would likely be entitled to a price adjustment to the contract. Thus, the terms of the contract concerning exercise of options are important to your question.

The sub may be accountable to the prime for the property, but the prime is accountable to the government. I agree with your suggestion concerning the disposition of the property. At this point, it may not be government property if the government has abandoned it.

To form a contract, acceptance generally must take place in the manner and within the time specified by the offeror. However, the offeror can waive these requirements. Contractors sometimes attempt to accept a government offer in some other way and argue that their alternate "acceptance" indicates their intent to be bound by the purported "contract." My point was that this generally doesn't work.

Add "in the manner and within the time specified by the offeror."

You are correct, I read the section too fast. My bad. However, it is still possible for the clause to be included in a contract awarded to a small business if the contract is not a set aside or an 8(a). In this case, although the clause is in the contract, in accordance with the specific terms of the clause, it is ineffective for that contract. Therefore, unless there is another clause in the contract requiring a small business subcontracting plan, the small business would not be required to submit a plan although the clause is in the contract.

Carl, reread 19.708. The exception only applies to 8(a) set asides. The clause goes in other set asides. To make you feel better, the better language I should have used is the clause goes in set aside contracts with small businesses except 8(a) set asides..

FAR 19.708(b) states in relevant part: Insert the clause at 52.219-9, Small Business Subcontracting Plan, in solicitations and contracts that offer subcontracting possibilities, are expected to exceed $750,000 ($1.5 million for construction of any public facility), and are required to include the clause at 52.219-8, Utilization of Small Business Concerns, unless the acquisition is set aside or is to be accomplished under the 8(a) program." Note that the clause goes in most contracts with small businesses. Although the clause goes into contracts with small businesses, per the express language of the clause, small businesses are not required to submit a small business subcontracting plan. Thus, CLS can be correct in wanting to include the clause in a contract with a small business if the conditions in 19.708(b) are present.

What clause(s) are in the subcontract regarding GFP provided by the prime?

What clauses are in your original subcontract (the one that ended in 2015) addressing GFP that the prime provided to you.

You have asked a broad question. One thing you need to recognize is that the FAR is generally not the source for the information you are seeking. The best sources for you to consult are the rules for the forum involved. For example, if you are concerned about protests to the GAO, you should read GAO's bid protest regulations found at 4 CFR Part 21. For claims, look at FAR 33.2 and the rules for the ASBCA at 48 CFR Chapter 2, Appendix A, Part 2, or the CBCA found at Civilian Board of Contract Appeals | Rule of Procedure (cbca.gov). The rules for the Court of Federal Claims for protests and claims are found at Rules of the United States Court of Federal Claims | US Court of Federal Claims (uscourts.gov).

I guess the bigger question is what happens to all those already admitted to the program if this decision is upheld.

See, https://casetext.com/case/ultima-servs-corp-v-us-dept-of-agric-1 where the District Court said the rebuttable presumption is unconstitutional.

Is the publication a commercial publication or is it an in-house government publication? If it is an existing publication, doesn't it have its own internal editor?

I generally agree with Carl's advice here. In addition, I hope the company is not charging the government for the cost of the event, which is expressly unallowable entertainment costs under FAR 31.205-14, to include the costs incurred in planning the event which are unallowable directly associated costs. See FAR 31.206-1(a).

What authority will you use to extend the contract?

In light of this statement and the CAS rules regarding applicability of the CAS to contracts, I am trying to figure out why the OP thinks the CAS may apply in this particular case even if they could apply in some circumstances such as those described in FAR 12.102(f).

Under what authority are the items being treated as commercial? Is the NTDC a small business? Has the contractor met the $50M threshold, either in the aggregate or a single CAS covered contract? Is the contractor currently performing a CAS covered contract that exceeds $7.5M Does the contract in question have a value in excess of $2M?

You use terms that are seemingly contradictory. You say the prime is "proposing" which usually indicates the solicitation is an RFP. In the same sentence you say other primes are "bidding" on the same contract, which indicates the solicitation is an IFB. If the solicitation is an IFB, certified cost or pricing data would not be required. (See, 10 U.S.C. 3702.) If the solicitation is an RFP, and FAR 52.215-20 is in the RFP, this is an indicator that certified cost or pricing data are required. However, as Carl suggested verify this with the contracting officer. If the prime is exempt from the requirement to submit certified cost or pricing data, subcontractors would also be exempt. (FAR 15.403-4(a)(1)). However, see, FAR 15.403-1(c)(4) concerning waivers.