Retreadfed

On 4/15/2024 at 4:39 PM, EGovCon said:

We have recently graduated from a small business to a large business and a modification was completed to our GSA schedule to include a small business subcontracting plan. 

I don't understand your situation.  You state that you "graduated" to a large business.  Were you an 8(a) participant that graduated from that program?  Is FAR 52.219-28 in your contract?  If it is, were you required by the terms of that clause to recertify your size status?  If you were, what was the basis of the recertification?  Was the requirement to submit a subcontracting plan accomplished by including FAR 52.219-9 in your contract?  Was the effective date of the modification requiring a plan the effective date of your contract or some later date?

29 minutes ago, Vern Edwards said:

Remember when some people insisted that a T&M contract was a kind of cost-reimbursement contract.

You mean like Eleanor Spector in her guidance on prompt payment?

1 hour ago, Vern Edwards said:

Maybe DCAA has a different definition of "allowable".

Having worked for DCAA for 15 years I can tell you that it is a very inward looking agency.  Unless things have changed drastically, it refuses to allow its auditors to receive procurement training from anyone outside DCAA.  Thus, DCAA perpetuates its own views of procurement policy, including interpretations of the FAR.  In this regard, 52.232-16 never uses the term allowable, neither does the SF 1442 nor the instructions for that form.  Instead, the 1442 and its instructions use the term "eligible."

15 hours ago, Vern Edwards said:

Presumably, the contractor will want some kind of revenue flow during performance unless its is willing to provide its own financing. So it seeks progress payments based on costs, which will be anchored to the Government's maximum liability. See 52.232-16.

Thanks for the response.  This is what I was thinking would be the situation.  It was the use of the word "allowable" that had me spun up since to me, allowable denotes application of the cost principles in FAR Part 31 while 52.232-16 does not incorporate the cost principles.

20 hours ago, Vern Edwards said:

The contractor works pending price agreement and will be entitled to compensation for allowable costs incurrred until the parties reach final price agreement. 

Vern, I'm confused by this statement.  Can you clarify it for me.  Are you saying that as work progresses on the UCA, that the contractor can bill the government for its incurred allowable costs?  I see that if FAR 52.216-26 is in the UCA, however, if the definitized contract is anticipated to be FFP, 52.216-26 should not be in the UCA.

On 3/30/2024 at 1:38 PM, formerfed said:

Except many government payment systems won’t allow invoice payments exceeding the CLIN amount.

Why have we allowed ancillary systems to be designed so they cause more work for contracting officers that may not be necessary or consistent with contract terms?

14 hours ago, joel hoffman said:

To pay for the overrun. 

Birdsong did not say the contract is being overrun.  If that were the case a realignment would not be necessary.  Just because a CLIN is being overrun does not automatically mean there has to be a realignment of funds to fund that overrun.

18 hours ago, Birdsong said:

CPFF CLIN is under run on one CLIN and over run on another, so need to realign funding,

Why?

2 hours ago, here_2_help said:

Note the considered use of the word "most" in the above generalization.

To add to the generalization, in my experience, it is the larger contractors that have their own subcontract clauses.  Many of these clauses are derivations of FAR or FAR supplement clauses.  Some times these variations go further than the tweaks H2H described.  At the same time, some of the clauses are FAR clauses with only those tweaks.  Medium sized contractors and small businesses have a tendency to merely incorporate clauses from the prime contract without thinking as to whether the clause is applicable to the subcontractor or whether the "clause" is even a clause and not a solicitation provision.  

8 hours ago, Benny Lava said:

The inquiry I have received is whether there are any restrictions to hiring non-US citizens doing work in foreign countries pursuant to federal contracts.

I think you also need to look at the reverse of this question.  The US has Status of Forces Agreements with several countries.  Some of these SOFAs contain provisions about hiring local nationals to work on US government contracts that are performed in the host country.

11 hours ago, Don Mansfield said:

Why would these be FAR/DFARS clauses? Why wouldn't the prime use its own payment clause?

The operative word in my post was "may."  But in regard to your question, while some contractors develop their own subcontract clauses, many use FAR or agency supplement clauses for subcontracts.  This is because they do not see any reason to reinvent the wheel when a clause already exists that they can use.

If this is a subcontract under a DoD prime contract, the prime contract likely contains DFARS 252.244-7001(c) states in part that an acceptable purchasing system shall "Ensure that all applicable purchase orders and subcontracts contain all flowdown clauses, including terms and conditions and any other clauses needed to carry out the requirements of the prime contract."  IAW this clause the prime contractor is required to flow down clauses that by their express terms require them to be included in specified subcontracts.  In addition, the prime is required to include clauses in the subcontract that are necessary for the prime contractor to carry out its obligations under the prime contract.  That means that there may be FAR/DFARS clauses in the subcontract that are not included in the prime contract.  For example, if the prime contract is a cost reimbursement contract but the subcontract is a firm fixed price contract, there may be several clauses in the subcontract, such as a payments clause, that are not in the prime contract.  In my opinion, if a prime contractor merely includes all FAR clauses from the prime contract in all subcontracts that is an example of professional laziness.

Thanks, Carl

On 3/21/2024 at 2:35 PM, ji20874 said:

The Logan decision

What is the Logan decision?

1 hour ago, It_Depends said:

But the funds certifiers will not certify the funds because of the higher guidance and because they say it violates CR which limits funding within the CR timeline.

Have you read the CR to see what it says about obligation of funds, if anything?

19 hours ago, KelliB said:

How do you descope for CPFF Clins if the govt no longer needs the requirements?

What do you mean by "descope"?

2 hours ago, Vern Edwards said:

Productive hour means an hour of physical or mental activity devoted to the achievement of the principal contract objective as described in the contract work statement, excluding all administrative and clerical support such as purchasing and document preparation.

That might work in some circumstances.  I suspect that the definition of "productive hour" would vary from contract to contract.  For example, I once worked with a contractor that had a contract to answer correspondence and prepare speeches for the Office of the Secretary of the Navy.  Document preparation would definitely be considered a productive hour under that contract.  A dispute arose under that contract concerning what the contractor was entitled to be paid and the Navy at first said the contract was a LOE contract but ultimately backed off that position and agreed with the contractor concerning payment.

3 hours ago, Voyager said:

This question seems to come from a T&M/LH perspective. 

No my question was in response to your statement I quoted.  We are talking about "level of effort" as in level of effort contract.  I think most of us agree that a T&M/LH contract is not a level of effort contract.

6 hours ago, Voyager said:

Many COs are already familiar with the term "Direct Productive Labor Hour (DPLH)" in their contracts, but most contracts do not define it.

What would be a productive hour?  One example of time expended in regard to performance of a contract is a contract requirement that the contractor will have employees attend a quarterly meeting with the government concerning performance of the contract.  The contractor sends appropriate people (3) to a meeting, however only 1 of the employees says anything at the meeting.  Would the time of the silent employees be a productive hour?  What about the travel time of the employees going to and from the meeting?

1 hour ago, bosgood said:

A type of contract stating the work in terms of an amount of effort (usually labor-hours or labor-years) to be performed by specified classes of employees over a given period of time.  There are four types of level-of-effort contracts:  the FIXED-PRICE LEVEL-OF-EFFORT CONTRACT, the TIME-AND-MATERIALS CONTRACT, the LABOR-HOUR CONTRACT, and the TERM CONTRACT. 

This seems to contradict the notion that the government does not buy hours under T&M/LH contracts.

37 minutes ago, Needforspeed said:

But is there an actual obligation to amend your pricing if required to sign a C&P certificate - if the government doesn’t ask for a final proposal revision? 

No.  In regard to the certificate, you only have to make sure that you have disclosed all the relevant cost or pricing data.  Your proposal is not cost or pricing data.

1 hour ago, here_2_help said:

Note that these rates are not subject to government approval, but they are critical because they help establish contract Estimates at Completion and thus drive tracking of costs incurred against funds provided.

This is an important point.  It is surprising how many contractors track direct costs for compliance with the Limitation of Cost clause, but forget to track indirect costs.  This frequently results in the contractor experiencing an overrun on the contract because the contractor's final indirect cost rates turn out to be higher than the billing rates.  Unless the contractor could not have known of the overrun before it occurred, the contractor generally cannot recover the overrun costs.

50 minutes ago, Seeking2Award said:

is there something that can be cited when arguing in support of the government receiving considerations for a schedule change (proposed by the contractor that does not benefit the government)? The contractor insists consideration is not warranted, and short of terminating the contract, I am looking for ways to move the conversation forward."

What is your objective concerning the contract here?  You say the contractor is late in delivering supplies.  This gives the government the right to default terminate the contract immediately without a cure notice, unless the government has delayed in doing so so that it has waived the delivery date.  If the delivery date has been waived, a new delivery date needs to be established if the government still wants the supplies.  This is because a new delivery date needs to be established so the government can terminate for non-delivery by the new data or failure to make progress toward meeting the new delivery date.   The new delivery date can be established unilaterally by the government.  A quick search of ASBCA decisions has failed to show any decision where consideration was required for establishing a new delivery date after waiver, although a more in depth search may disclose such a decision.  If  the delivery date has not been waived, instead of issuing a T4D, the government and contractor can agree to a new delivery date.  This is where consideration comes in.  The government is providing consideration by giving up its right to terminate the contract for default.  For the extension to be valid, the contractor must provide the government with some consideration in exchange.

29 minutes ago, Seeking2Award said:

I was talking to when a contractor is late to delivery, and it is not in the interest of the government.

What is not in the best interest of the government?

1 hour ago, Seeking2Award said:

Outside of the FAR reference you provided can you point to any other specific places? I

For a contract clause, see FAR 52.246-2(h).