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Everything posted by Retreadfed

  1. LeighHar, remember that a subcontract is essentially a commercial transaction between the prime and sub. Therefore, state laws are implicated by a novation of a subcontract so you need to be advised by someone familiar with the applicable state law so you will wind up with an enforceable subcontract.
  2. In addition to what H2H provided, the definition of B&P from FAR 31.205-18 excludes costs "required" in the performance of a contract. "Required" is an ambiguous term as it can mean that there is a specific requirement in a contract for the contractor to submit a proposal, or it can mean that submitting a proposal is necessary for performance of a contract although there is no specific requirement in the contract for submission of a proposal. Thus, to me, it seems your first task is to determine whether you are dealing with B&P costs or some other type of cost.
  3. FAR 9903.301 "Small business, as used in this part, means any concern, firm, person, corporation, partnership, cooperative, or other business enterprise which, under 15 U.S.C. 637(b)(6) and the rules and regulations of the Small Business Administration in part 121 of title 13 of the Code of Federal Regulations, is determined to be a small business concern for the purpose of Government contracting."
  4. Don, I don't know why this would keep a contracting officer from being able to identify portions of a solicitation that do not have universal application to potential offerors and provide this information to offerors.
  5. Here is what FAR 31.201-3(a) says "The contracting officer shall insert the provision at 52.230-1, Cost Accounting Standards Notices and Certification, in solicitations for proposed contracts subject to CAS as specified in 48 CFR 9903.201. " If the contracting officer acts correctly, this provision should not be in a solicitation sent to you.
  6. Joel, there have been at least 4 such decisions by the Federal Circuit. Those decisions are based upon the plain language of the CDA. There is some confusion concerning those decisions. In none has the court held that the contractor is entitled to recover interest on amounts in the claim that the contractor never incurs. Instead, interest is only paid on costs the contractor actually incurs although interest will have accrued on the paid amounts before they are actually incurred. For example, the contractor submits a claim for $10K before it has incurred any of the claimed costs. In reality, the contractor only incurs $8K of costs, all of which were incurred after submission of the claim. The contractor will recover interest on the $8K running from the date the contracting officer receives the claim until the $8K is paid by the government.
  7. Because we are talking about a WD issued after a contract is executed, if 52.222-43 is in the contract and an option is exercised, wouldn't the contractor be entitled to a price adjustment calculated in accordance with that clause instead of an equitable adjustment if the contracting officer failed to include the revised WD in the contract at the time the option was exercised?
  8. Wage determinations are placed online by DoL. It is common practice for agencies to identify the WD in a solicitation and contract without physically attaching the WD. When this is done. the contractor is responsible for locating the specified WD online.
  9. I am not aware of any Fed. Cir. decision that addresses this question. Further, the contract appeals boards seem to be is somewhat of a disagreement over this. See this quote from Sotera "The SCA clause cannot just be read into the contract under the Christian doctrine, as USDA advocates. Respondent’s Brief at 10. “The Christian doctrine is available only when relevant statutory or regulatory provisions are required to be included in an agency’s contracts.” IBI Security Service, Inc. v. United States, 19 Cl. Ct. 106, 109 (1989) (citations omitted). Because the SCA requires a determination that it applies to a contract and, on this contract, to which labor categories, the Christian doctrine does not assist USDA." This seems to be inconsistent with Costar.
  10. Carl, nothing in FAR 22.1015 relates to the question of whether a contractor is required to pay its employees not less than the wages and fringe benefits contained in a WD that is not attached to a contract.
  11. Don, the clauses at issue are 52.222-41 and 52.222-43. You did not state what possible conflict between these two clauses can be harmonized by considering 52.222-41(c)(3). However, I perceive an internal conflict between 41(c)(1) and 41(c)(3) that I do not think you addressed. Under (c)(1), the contractor is required to pay its service employees not less than the wages and fringe benefits set forth in the WD attached to the contract. Under (c)(3), these wages and fringe benefits are to be "subject to adjustment after 1 year and not less often than once every 2 years, under wage determinations issued by the Wage and Hour Division." You have not addressed how that adjustment is to take place. Reading 52.222-41 as a whole, it is clear that the adjustment is to be accomplished by the contracting officer attaching a new wage determination to the contract. Not only is this indicated by (c)(1), but also by 41(d) which states in part that " The Contractor or subcontractor may discharge the obligation to furnish fringe benefits specified in the attachment." The "attachment" referenced here is the WD described in (c)(1). Similarly, 41(e) provides that "In the absence of a minimum wage attachment for this contract," the contractor shall pay its employees not less than the minimum Federal wage. To me, this clearly indicates that the contractor's obligation is to pay its service employees the wages and fringe benefits called for by the wage determination attached to the contract. Further, it is the contracting officer's duty to ensure that the correct wage determination is attached to the contract. I do not see anything in 52.222-41 or 43 that requires the contractor to pay its service employees the wages and fringe benefits that are contained in a WD that is not attached to the contract. As for 52.222-41(b), I do not see anything in the statute, particularly 41 U.S.C. 6703 that is contrary to my interpretation. As for DoL regulations, it is interesting to note that 52.222-41 is taken from 29 CFR 4.6. Nothing in the DoL regs is inconsistent with what I have written above.
  12. Guest, see the decision at 59338 A-T Solutions, Inc. 2.8.17.pdf (asbca.mil). Although it does not address your question is great detail, it may give you some ideas.
  13. What requirements under the SLCS? So far you have not identified any specific requirement stated in a statute, regulation or contract clause. Elguero stated that his contract is subject to the SCA. Therefore, I will presume that FAR 52.222-41 is incorporated in the contract, either physically or by operation of law. FAR 52.222-41(c)(1) states "Each service employee employed in the performance of this contract by the Contractor or any subcontractor shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor, or authorized representative, as specified in any wage determination attached to this contract." For purposes of this discussion, the key language is "as specified in any wage determination attached to this contract." The way I understand your position, you are reading this language out of the contract and would end 52.222-41(c)(1) at "representative." If my understanding is correct, your interpretation is contrary to the fundamental rules of contract interpretation. Specifically, contracts are to be interpreted so as to give meaning to all their parts and without any parts being read out of the contract. Despite this, you want to ignore specific language that limits a contractor's obligations under the contract and want to expand those obligations beyond what is required by the contract. In this regard, I do not believe that the Sotara decision is applicable to the facts we are dealing with. That decision dealt with an error in contract formation. It had nothing to do with contract administration and a contractor's obligation to comply with a specific wage determination. Sotara did not interpret the phrase "as specified in any wage determination attached to this contract." Another rule of contract interpretation is that the terms of a contract are to be read in harmony whenever possible and that internal conflicts are to be avoided. Under this rule, FAR 52.222-41(c)(1) and 52.222-43(c), which reads in part "The wage determination, . . . current on the anniversary date of a multiple year contract or the beginning of each renewal option period, shall apply to this contract" need to be harmonized. These clauses can be harmonized by inserting "be attached to this contract by the contracting officer and shall" between "shall" and "apply." Accepting this statement from elquero as accurate "The current Federal Service Desk FAQs for WDs includes a similar statement: “Note: Access to the WDs on the SAM.gov is available to the public for information purposes only. The only WDs applicable to a specific solicitation or contract are those the contracting officer has incorporated in that contract” it seems that DoL disagrees with you. Moreover, this statement is fully consistent with 52.222-41(c)(1). Finally, the FAR is a regulation that has the force and effect of law. Thus, it is as binding on contractors, contracting officers and DoL as a statute would be.
  14. Guardian, what is the basis for this statement? To me, FAR 52.222-41 clearly requires the contractor to pay not less than the wages and fringe benefits specified in the wage determination included in the contract.
  15. Elguero, is FAR 52.222-41 in your contract? If so have you read this language "Each service employee employed in the performance of this contract by the Contractor or any subcontractor shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor, or authorized representative, as specified in any wage determination attached to this contract?" This language must be read in conjunction with FAR 52.222-43 and harmonized so that neither is read out of the contract and each is given effect. If a new WD covers your area, but the CO does not add it to the contract, it seems you would have a valid claim.
  16. Need, Vern has already pointed out that the concept of reasonableness is a complicated issue. This is particularly so in regard to compensation. The reasonableness of compensation is subject to the reasonableness cost principle at FAR 31.201-3. In addition, FAR 31.205-6(a)(2)-(4) reads: (2) The total compensation for individual employees or job classes of employees must be reasonable for the work performed; however, specific restrictions on individual compensation elements apply when prescribed. (3) The compensation must be based upon and conform to the terms and conditions of the contractor’s established compensation plan or practice followed so consistently as to imply, in effect, an agreement to make the payment. (4) No presumption of allowability will exist where the contractor introduces major revisions of existing compensation plans or new plans and the contractor has not provided the cognizant ACO, either before implementation or within a reasonable period after it, an opportunity to review the allowability of the changes. Finally, FAR 31.205-6(b)(2) states: Compensation not covered by labor-management agreements. Compensation for each employee or job class of employees must be reasonable for the work performed. Compensation is reasonable if the aggregate of each measurable and allowable element sums to a reasonable total. In determining the reasonableness of total compensation, consider only allowable individual elements of compensation. In addition to the provisions of 31.201-3, in testing the reasonableness of compensation for particular employees or job classes of employees, consider factors determined to be relevant by the contracting officer. Factors that may be relevant include, but are not limited to, conformity with compensation practices of other firms- (i) Of the same size; (ii) In the same industry; (iii) In the same geographic area; and (iv) Engaged in similar non-Government work under comparable circumstances. Unfortunately, based on 41 years working for and against DCAA, when DCAA conducts an audit of compensation, the auditor only applies the four tests listed in 31.205-6(b)(2). In this regard, the auditor will use national surveys instead of local surveys when evaluating executive compensation. Auditors generally do not apply 31.201-3 when evaluating compensation. If you are interested in how these cost principles have been applied, I suggest you read Techplan Corp., ASBCA No. 41470 et al., 96-2 BCA , 28,426; Information Systems & Networks Corp., ASBCA No. 47849, 97-2 BCA, 29,132. J.F. Taylor, Inc., ASBCA Nos. 56105, 56322, 12-1 BCA, 34,920 and Metron, Inc. ASBCA Nos. 56624, 56751, 56752 (4 June 2012).
  17. What type of contract/TO, e.g., FFP, CR, T&M, is involved? Is either FAR 52.222-41 or 52,222-43 in the contract? If so which one? What has the contractor asked to be equitably adjusted? What is the basis of the contractor's request?
  18. Does the contract require you to provide a specified number of FTEs per month? If so, what does your contract say about payment if you fail to provide the required number of FTEs? What does the contract say is the basis upon which you are to bill the government?
  19. I don't think so. The XO only requires release of specified information to a successor contractor and other potential recipients. It does not require release of the information to any other recipient. Thus, a competitor is not entitled to receive the information during the contract formation process. It is not clear what this language in the XO means. It can be interpreted as meaning that release of the specified information is subject to the Privacy Act, FOIA and 18 U.S.C. 1905.
  20. I am not aware of any court decisions that address this specific issue. However, at one time, I was the FOIA officer for an agency. It was my practice not to release the names or other information concerning contractor service employees whose identity was not already a matter of public knowledge. My reasoning was that a service contractor's most valuable assets are its employees. Releasing employee names and other info could result in them being pirated from the contractor. This could cause competitive harm to the contractor. Also, because the employees could be lured away from the contractor by the promise of a higher salary, this could result in higher prices being paid by the government. As a side note, the courts have held that FOIA exemption 4 is co-extensive with 18 U.S.C. 1905.
  21. This does not address the question of whether the incumbent contractor had a proprietary interest in the names of its employees.
  22. Would you release the names of the employees in response to a FOIA request? If not why would you release the names if it is not required by a contract? Also, could the names of the employees be confidential information of the incumbent so that they are protected by 18 U.S.C. 1905?
  23. In some circumstances, when a lessor sells the leased facility, the buyer takes title to the facility subject to the existing lease. Thus, it is possible that the new owner cannot kick your contractor out of the leased facility without being in breach of the lease. Have you explored this possibility? I think what you are asking is how can you accept terms proposed by your contractor without creating an accord and satisfaction. It might be beneficial for you to review cases that address that subject and discuss your problem with your lawyer.
  24. ji, what do you mean by this? G&A is allocated to contracts on the basis of base costs allocated to that contract.
  25. What do you mean by "closeout PoP"? Also, why is this a problem for you?
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