Retreadfed

H2H, thanks for the reply.  However, you did not address the application of FAR 31.201-3 and 31.205-46 to the transaction if the contractor claimed the full $500 when it could have bought the ticket for $250 using accumulated points.  The dollar values here are merely for discussion purposes, not necessarily to reflect reality.

Joel, I dealt with procurement fraud while working for DoD.  I once had a conversation about this with an attorney from DoJ who prosecuted fraud cases.  It was his view that he would prosecute any government employee who applied  FF miles, or other points earned as a result of government activity, for personal use.  OGE has now changed the Governmentwide Ethics Regulation to permit such use.

The points were earned in the performance of cost reimbursement and T&M contracts for non-commercial items.  As stated in the hypothetical, the current contract requiring air travel is a cost reimbursement contract.

H2H, or anyone else who cares to opine, what do you think of this hypothetical?  Contractor X has a credit card account that provides for the accumulation of usage points.  The points can be used for airfare.  The contractor has accumulated sufficient points to allow it to reduce the cost of air travel.  Over 90% of the points were earned in the performance of government contracts.  The contractor needs to travel by air in performing a cost reimbursement government contract.  If the points are used to reduce airfare, the cost would be $250.  If they are not used, the airfare is $500.  If the contractor does not use the points to reduce the airfare, would the $500 be reasonable and allowable under FAR 31.201-3 and 31.205-46?

19 hours ago, Corduroy Frog said:

Suffice it to say that unless a cost-reimbursable contract or CLIN is involved, the pursuit of application to reducing cost is really a dead-end street.

CF, what do you mean by this?

I noticed that the caption for this discussion was credit card bonus points.  However, the question asked about credit card rebates.  What a contractor can do with credit card points earned as a result of credit card purchases for a government contract raises an entirely different set of issues than rebates.

I agree about the complexities of trying to figure out what the FAR says and means. 

Vern, I have some comments on the application of FAR 52.212-4 to this topic.  That clause is to be used with its alternate I when a T&M contract is used to acquire commercial items.  Under Alternate I, if material is charged as a direct cost of the contract, the contractor is entitled to be paid its actual costs less any applicable refunds or rebates.  Thus, if the credit card rebates relate to material, as defined in the clause, charged as a direct cost of the contract, the refunds would apply.  However, if the credit card refunds relate to indirect costs, FAR 31.201-5 does not apply to Alternate I because the cost principles do not apply to that clause.  Thus, the government would not be entitled to receive any portion of the refund on that basis.  Further, indirect costs under Alternate I are a negotiated lump sum amount and are not subject to adjustment based on actual costs incurred.  Finally, while Alt I contains a release of claims requirement, it does not contain a payment of refunds provision as FAR 52.232-7 does.  Therefore, I do not see any government entitlement under FAR 52.212-4 to a portion of the refunds that are properly accounted for as an indirect cost

Does this language from FAR 46.501 help "Acceptance shall ordinarily be evidenced by execution of an acceptance certificate on an inspection or receiving report form or commercial shipping document/packing list"?  To me, the operative word is "ordinarily."  This indicates there can be other ways of evidencing acceptance by the government.

In addition to Vern's question, what do you mean by "confirmation of goods"?

Mtclymer, you said "We do not want to provide a progress report (which is applicable for our contract) with the voucher."  I am confused by this.  Are you saying that your are already required to submit progress reports?  If so, what does the contract say about when these reports are to be submitted?  Do the existing terms of the contract create a conflict with the new payments clause?

DOECPA, is this a statement or question "Money gets transferred from predecessor contractor to the new contractor"?  If a statement, what requires the predecessor contractor to transfer money to the successor?

DW, what CFR changes are you referring to?  Changes to DoL, SBA, etc.?

At an Army post where I was once, the guys from the stockade would do this.  They had a softball team know as the Grasscutters.

18 hours ago, darrenks said:

Are KO obligated to tell contractors formally if the contract is cancelled, terminated or not excercised? 

As Vern asked, is there something in the contract that requires such a notice?  However, you should be aware that cancellation, termination and not exercising an option are not the same thing.  In your case you are complaining about non-exercise of an option.  For an option to be exercised in accordance with the FAR, the contractor needs to receive timely notice that the option has been exercised.  In the absence of such notice, there has not been an exercise of an option.  The government has no obligation under the FAR to inform a contractor that an option will not be exercised.

darrenks, not exercising an option is not the same as canceling or terminating a contract.  A contractor has no right to have an option exercised and the government is under no obligation to exercise an option.  Whether you have a potential claim for any extra costs incurred as a result of the change to the facility, it would be extremely difficult for anyone here to say because we do not know the terms of the contract or the specific facts.

Its not the location of the contractors that is the determining factor.  Rather, it is the location where the services are to be performed.  Thus, a contractor can be located in Maine, but hold a service contract for performance in California with the successor contractor being located in Florida.  The Florida company would have to provide any employees of the Maine company that it hires the seniority they held with the Maine contractor, which includes accrued vacation. 

Mac, I'm still not clear on what the facts are here.  You first stated that the fuel charge is in a subcontractor's proposal.  Then you said that the SME (whoever that might be) thought the fuel charges related to rented trucks.  However, you have not said whether it is the prime or sub who is renting the trucks.  Then you said that the fuel is associated with travel indicating it is not related to truck rental.  Also, I am not sure what is meant by travel in your posts.  I see three possibilities.  First, the contractor or subcontractor must travel to some place different from its normal place of business for some period of time.  Think electric utility repair following the hurricanes last summer.

Next, contractor personnel report to the contractor's facility then travel to the job site.  Third, the contractor personnel report directly to the job site.  In this case, the travel by the personnel would be considered commuting the cost of which is not reimbursable under the JTR.

Mac, what is the relationship between the fact that the contract calls for travel to be performed in accordance with the JTR (whatever that means) and the fuel cost?

I'm not sure, I understand exactly what your situation is, but here are a couple of things that I think I do understand.  First, let's be careful with our terminology.  52.222-43 does not use the term equitable adjustment which is generally intended to make a contractor or the government whole and includes profit, overhead and G&A.  Instead, it refers to a price adjustment which is limited in scope.  In regard to the adjustment for an increase in increased wages, in accordance with subsection (e) of the clause, the contractor is only entitled to include the increases in "social security and unemployment taxes and workers’ compensation insurance" relating to the increase in wages in the price adjustment.  For example, the WD increases required wages from $10 @ hr. to $10.50 @ hr.  the contractor could only include the social security and unemployment taxes and workers’ compensation insurance on $0.50 @ hr. increase in its price adjustment.  The fact that you did not include these costs in your original proposal is irrelevant to the price adjustment.

Why are you curious as to  how you "note the impending renewal?"  Is there something in the solicitation to which you are responding that requires you to "note the impending renewal?"

To me this is saying that if a product is custom made in the commercial world, and the government wants that product customized for government use, it will qualify as a commercial product.  Think air filters for trucks.  Generally, they are unique to each make of truck in the commercial market place.  If the government wants to buy an air filter for a five ton dump truck using government specs, the air filter would be considered a commercial product.

I recall a case before the Federal Circuit in the 1990's where the Court held that the proper time to assess risk is when a change is made to contract work, not when the amount of the adjustment is negotiated.  With my limited research capabilities, I have not been able to find that case, but I believe it involved Texas Instruments.

Delayn, what is the rationale for this process?  From a contractor's perspective, this seems like a poor business practice.  What information is provided to offerors in regard to funding when a solicitation is issued?  If I were a contractor who submitted a proposal then had the procurement canceled because the government did not have funding available for the contract I would be ticked off.  If this was a recurrent theme with the agency, I would be tempted to stop dong business with that agency.  Also, it seems like a waste of government resources to go through the procurement process then find out that there is insufficient funding for the procurement.

In regard to Carl's post, note that the DFARS structured approach is used to establish the government's negotiation position.  The results of application of the weighted guidelines are not binding on contractors.  Further, DFARS 215.404-4 is not a contract clause.