Retreadfed

Mike, I am not going to say your interpretation is wrong, but to me, the quoted language does not prohibit the signing of time cards. If you do not want the COR to do something, be clear in regard to what is prohibited.  Vague and ambiguous terms are not effective.  BTW, how is the contract in question priced (T&M, FFP, cost reimbursement etc.)? 

Based upon my experience and observation (purely unscientific), if we use performance appraisals as the basis for constructing a Bell curve, I suspect that the curve would be skewed substantially to the right, with very few rated as marginally satisfactory or unsatisfactory.  If they are rated unsatisfactory, chances are they will be put on a performance improvement period before removal procedures are begun.  If the individual is removed or actually improves, the curve would be skewed even more to the right.  This raises the question as to whether performance evaluations are being done properly or whether standards have slipped so much that what was once mediocre is now considered above average or exceptional?  As a side note, pity the poor contractor who has to deal with a government employee who is on a PIP.

13 hours ago, erock said:

For the prime's portion of the work the negotiated fee is 6%,

I'm not sure I understand what this means.  Are you saying there was a separate fee negotiated for anticipated work to be performed by the prime and a separate fee negotiated for work to be performed by subs?

Mike, you mentioned doctors.  Are these personal services contracts?

Yes.  The dates in the hypo were based on the initial proposal being adequate.  The MRD did not give a hypo of where the initial proposal was deemed inadequate.  However, the sentence I quoted from the MRD shows that DCAA recognizes that the 12 months begins when an adequate proposal is received. 

The MRD is consistent with section 803 in that the MRD advises "Another important aspect of the NDAA requirement is completing incurred cost assignments within 12 months of receiving a qualified submission after the date of enactment."  Thus, it explicitly bases the 12 month period on receipt of a "qualified (adequate) submission."

H2H, here is what Section 803 says about the one year time limit:  With respect to qualified incurred cost submissions received on or after the date of the enactment of this section, audit findings shall be issued for an incurred cost audit not later than one year after the date of receipt of such qualified incurred cost submission.  The way I read this, a qualified incurred cost submission is one that is adequate. 

This understanding is bolstered by this definition from 803:  The term `qualified incurred cost submission' means a submission by a contractor of costs incurred under a flexibly
    priced contract that has been qualified by the Department of  Defense as sufficient to conduct an incurred cost audit.
 

H2H, I got the MRD.  Thank you.  While the MRD did not mention this, I suspect that many local offices will have very strict standards for determining whether a proposal to establish final indirect cost rates is adequate.  The longer they can delay the determination of adequacy, the longer they will have to complete the audit.  It was also interesting that the MRD did not mention multi-year audits, which are essentially prohibited by the NDAA.  Perhaps that will be the subject of another MRD.

In regard to your references to newspaper usage of the word "enact," newspapers are notorious about not understanding legal concepts.

H2H. what is the source of your information concerning the DCAA guidance?  I check the DCAA website daily for new MRDs but they are getting to be few and far between now.

The NDAA was enacted on Dec. 12, 2017.

On ‎2‎/‎17‎/‎2018 at 8:57 AM, Corduroy Frog said:

• If the contract is subject to the Executive Order for 56 hours of sick leave, it cannot be considered as a Health &Welfare benefit for pricing purposes.
• If the contract is NOT subject to the Executive Order, the sick leave may be considered as H&W unless required by State Law.

Not quite.  In regard to 1, the sick leave can be a bona fide fringe benefit if it exceeds the amount required under the XO.  Note that 56 hours is the maximum that may be accumulated, but is not the amount that will apply to every employee. 

As for 2, if sick leave is required by state or local law, it would not qualify as a bona fide fringe benefit.

As for a contractor's ability to substitute fringe benefits for those specified in an WD, see 29 CFR 4.177 which refers you to 4.171 for additional information.

Corduroy, this is what FAR 52.222-62(g) says about sick leave provided under the XO "The paid sick leave required by E.O. 13706, 29 CFR part 13, and this clause is in addition to the Contractor's obligations under the Service Contract Labor Standards statute and Wage Rate Requirements (Construction) statute, and the Contractor may not receive credit toward its prevailing wage or fringe benefit obligations under those Acts for any paid sick leave provided in satisfaction of the requirements of E.O. 13706 and 29 CFR part 13."  Thus, I do not see that the XO has any bearing on a contractor's obligation to comply with the WD attached to a contract.  In that regard, if the WD does not call for sick leave, I believe the contractor could substitute sick leave as a bona fide fringe benefit for at least some of the required H&W payments if the contract is not subject to 52.222-62, the sick leave is not required by state law, or the sick leave is in addition to what is required by 52.222-62 or applicable state law.

18 hours ago, bob7947 said:

Your boilerplate example surprised me but stressed the point.  

Bob, many PNMs that I have seen seem to use boilerplate language in regard to reliance.  If you read the entire PNM you will see that there was only partial reliance or other factors were used in determining a fair and reasonable price.  This indicates the importance of PNMs being accurate and truthful.  They should not be viewed as just another item to check off in awarding a contract.

Bob, yes.  Here is the general outline.  DCAA relies on what is in a PNM to determine if the government relied upon the cost or pricing data that was submitted.  In this case, the PNM clearly stated that the government relied upon the submitted cost or pricing data to determine that the price negotiated was fair and reasonable.  Based on this, DCAA issued an audit report finding that the contractor had submitted defective cost or pricing data.  The contracting officer adopted the audit findings and issued a claim against the contractor seeking to recover the alleged increased prices.  However, during discovery, the individuals involved in negotiating the contract stated that they had performed a "should cost analysis" to determine the price of the contract and had not actually relied upon the cost or pricing data submitted by the contractor.  In other words, the reliance language in the PNM was merely boilerplate that was included in every PNM and was not necessarily true.  Based on this, the government decided to bail on the claim.

A side note to this, because DCAA felt that it had been misled by the individual who stated that he relied upon the cost or pricing data, it explored whether it would be possible to have that individual pay for the cost of performing the audit.  Further, the DoDIG was somewhat supportive of this idea.

In other words, does the contract (not the contractor's proposal) say the contractor will provide X number of personnel to meet the SLAs or does it say the contractor will provide the necessary number of personnel to meet the SLAs?  Also, what is the basis for payment?  Is it satisfaction of the SLAs or providing a specified number of personnel?

Divona, the real question is what does the contract say, not what the contractor proposed.  You said the contractual requirement is to provide necessary personnel to meet SLAs.  If the SLAs are being met, what is the contractual issue as it seems the contractor has met the contractual requirement?  If they are not, I presume there is a clause in the contract for a price adjustment to reflect this.  If there is not a price reduction provision, this should be a lesson learned for the next time.

Corduroy, napolik told you what the FAR says.  However, the big thing is what  the RFP says about past performance.

The bar for determining that a product is a commercial item is a low bar as is the level of knowledge of many contracting officers.  Just because the government wants something, does not make it right.  This is a frustrating issue for contractors who, in many instances, know more than their government counterparts.

See the following COFC decision http://www.uscfc.uscourts.gov/sites/default/files/opinions/SMITH.PRECISION092408.pdf

Michael11, I am confused about your posts.  You said "The contract was awarded competitively under an idiq contract."  This indicates that you are talking about an order under an IDIQ contract and not an independent contract.  If that is the case, the order should be subject to the terms and conditions of the IDIQ contract.  Thus, you need to review the clauses in the IDIQ contract to see what is there.

Will you take money from the other CLINs to fund the travel CLIN?  If not, how will the contractor bill against the travel CLIN if you have not obligated additional funds for that CLIN?

Flitzer, your post is confusing.  Have you already awarded the contract?  If so, does it contain labor rates?  Is your question about the number of hours or the rate per hour?

StePa, yes, the prime can change its mind about the parts being commercial items.  However, this does not mean that the prime is correct now and was wrong in the past when it accepted the parts as being commercial items.  You did not say why the prime rejected the parts as being commercial items.  However, the bar for what is a commercial item is low and it doesn't take much to be a commercial item.  I presume that when you say the parts are catalog items for your company, you mean that they are offered for sale to other companies, but you have only been able to sell them to the prime. 

18 hours ago, C Culham said:

The funds that are used must represent a bona fide need for the funds being used for this recording.

Carl, what does this mean?

In the case of the OP, the "parent" contract is being awarded for needs that are anticipated to arise in the next fiscal year and no funds are currently available to satisfy those anticipated needs. 

To add to what Vern has written, earlier in my career I was a regulator with the Federal Communications Commission.  Based on my experience there, there were many times when the major networks engaged in outright deception in their "news" broadcasts.  For example, some of their news stories were actually scripted with actors playing parts in the stories, they would take  pictures of something and represent it as something completely different and edit interviews to combine answers to more than one question into the answer to a single question.  Based on my experiences at the FCC and personal experience as well, I have moved from the skeptical to the cynical in regard to broadcast news.

All of this discussion reminds me of the statement we hear repeated frequently that we are all entitled to our opinions, but we are not entitled to our own facts.  That statement may or may not be true.  Consider this anecdote:  Bill and Sam run a race in which Bill beats Sam.  In Bill's version, Sam came in last.  In Sam's version, he came in second.  Which, if either, is true and the other false?