Retreadfed

Locke, when your supervisors tell you to do something that you do not think is right, have you ever asked for "mentoring" or "guidance" on the subject, in light of your few years of experience and their many? Learning their reasoning, if any, for doing something may help you deal with them in a more constructive way. I can identify with your apparent frustration with having to deal with "the way its always been done" instead of "why its done that way."

Mayo, is the contract subject to the FAR or are you dealing with an agency that has its own procurement regulations independent of the FAR?

Although, not directly applicable to payment under LH or FFP contracts, it might be helpful to look at FAR 31.205-44.

Don, adopting your argument concerning 1.401(f), would the entire PGI be a deviation?

I have a couple of observations. First, you are expected to monitor your indirect rates in order to comply with the LOF/LOC clause(s) in your contract. Are you doing so and if so, how are your actuals running compared to provisional rates? If they are higher and you will exceed the estimated cost of the contract or current funding level, depending on whichever is applicable, have you informed the agency of this? Next, you have not mentioned anticipated total billing for the base year compared to the estimated cost for the base year. If your billings are below estimated costs, will there be funds left that can be deobligated? If so, the amount of deobligation might be negotiable if you can show that your actual indirect costs will be higher than your billing rates. Finally, when does the base year end? If it ends on 30 September and if the contract is funded with annual appropriations, deobligating any unexpended balances after the end of the fiscal year would not do the agency much good as the period of availability for obligation of those funds would have expired on 30 Sep.

There is no FAR requirement that you have only one CBA that covers your workforce.

Vern, I tried sending you my e-mail address but got a message that you cannot recieve any more messages.

What type of orders are issued under your contract, e.g., cost reimbursement, FFP, T&M? Why would your subcontractor be required to pay its employees now under the revised WD?

Look at Torncello v. U.S. 231 Cl. Ct. 20 and Colonial Metals Co. v. U.S. 204 Ct. Cl. 320. They might give you some ideas.

Everyone should also be aware of the changes to the limitation on subcontracting contained in section 1651 of the 2013 NDAA. We are waiting on the SBA to implement those changes. Further, look at 13 CFR 125.6(g) for some general comments on how the SBA looks ar post award compliance with the limitation on subcontracting and 13 CFR 124.510 for guidance on applying the limitations on 8(a) contracts.

Thanks. There is no library where I live that has the BCAs, but there are libraries in cities nearby. The next time I am in one of them, I will have to make a special effort to check out these decisions.

Vern, you have mentiioned a couple of times that revised WDs are incorporated into a contract containing 52.222-43 by operation of law when an option is exercised under that contract. I have limited research capabilities (what is available online without a subscription). Using my limited capabilities, I have not been able to find any appeals board or court decision that has addressed this question. Are you aware of any such decisions using your research capabilities?

Would the rate caps apply if the contract is terminated for convenience?

10 U.S.C. 2304b provides explicit statutory authority for DoD to accomplish what you are attempting to do, but it only applies to CAAS. I am not aware of any statutory provision that would prohibit you from doing what you propose for aviation services. If there is no prohibition in a statute, executive order or regulation on you doing so, I think your reliance on FAR Part 1 is authority for you to do it.

What type of contract is the prime contract and what type of contract is the subcontract, e.g., cost reimbursement, FFP, T&M? What does the subcontract say about payment of travel costs? Would it have been possible for the consultant to rebook to an earlier flight? Would rebooking incur a rebooking fee? If it would, would that fee exceed the late check-out fee?

GAO decisions are not binding on the COFC. However, the COFC judges will sometimes refer to GAO decisions in deciding a protest. See the recent decision at http://www.uscfc.uscourts.gov/sites/default/files/BUSH.EXCEL072413.pdf

A couple of questions: Did the government obtain title to the CAP? Is procurement of property and services funded by different appropriations such as procurement funds for the property and O&M funds for services

metteec, FAR 52.222-41© says " 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." How does the contractor's obligation to pay its employees in accordance with the WD attached to the contract square with your interpretation that the contractor receives the WD from DoL? Would DoL modify the contract to attach a new WD so the contractor could comply with 52.222-41?

An interesting anecdote regarding contracting officers not including revised WDs in a contract when an option is exercised. I once had to deal with the situation where a DoL contracting officer failed to do so. When asked about incorporating the revised WD, he responded that the WD incorporated into the contract at award was the WD that applied for the life of the contract.

The discussion in this thread has raised my curiosity about several things in regard to SCA compliance and the FAR clauses. If a revised WD is in effect on the date an option is exercised on a contract that properly includes 52.222-41 and -43, but the contracting officer does not include the revised WD in the mod exercising the option, would the contractor have an obligation to search WDOL to determine if a revised WD has been issued that covers workers employed on the contract? If the contractor has such an obligation, it would seem the contractor would also have an obligation to pay the revised wages and fringe benefits to its covered employees. If it did, would the contractor be entitled to a price adjustment based upon the increased wages and fringe benefits in the revised WD although the contracting officer has not incorporated the revised WD into the contract? As a practical matter, in this situation, I would expect the contractor to ask the contracting officer if there is a revised WD when the option is exercised. If the contracting officer says no, should the contractor search WDOL anyway?

FAR Fetched, I think you were on to something in your post #3. FAR Subpart 9.6 talks about teaming arrangements, but deals with the relationship between the government and contractor members of those arrangements. But as you alluded to, the legal effect of teaming agreements is governed by state law. Not being an expert on contract law in every jurisdiction in the U.S. I don't know how each jurisdiction would treat teaming agreements. You appear to have done some research that shows that one state may treat them as enforceable agreements depending on how they are written while others may not. This diversity of approach can make life interesting for contractors who want to enter into teaming agreements with partners from other states and shows that a one size fits all or standard teaming agreement may not always be the best course.

Vern, your comments concerning defects in the FAR is spot on. FAR 1.502 says that consideration will be given to unsolicited proposed changes to the FAR. However, I wonder just how realistic that statement is. For example, if the faculty members of the GW government procurement program were to sign a joint letter to the FAR Councils suggesting a change, how much consideration do you think it would receive? I know of a couple of situations where industry trade groups have been able to get changes to the FAR or DFARS, but just how much opportunity is there really for "outsiders" to encourage change?

In case any one is interested, here is a link to the NDAA. Section 1641 makes changes to the mentor-protege program and 1651 makes substantial changes to the limitation on subcontracting provisions. http://www.gpo.gov/fdsys/pkg/PLAW-112publ239/html/PLAW-112publ239.htm

Brian, I agree that large businesses using small businesses as a front to get contracts has been a long running problem. In my experience, it has especially been a problem in regard to orders under GSA Schedule contracts. In any event, we are likely to be dealing with a new set of issues when the SBA and FAR Councils get around to implementing Section 1651 of the FY '13 NDAA since that section rewrote how to measure compliance with the 50% rule.

So much for intellectual discourse. For those who might be interested in the particular issue, see a brief discussion of this aspect of the Bagley case in the related ASBCA case TRW, ASBCA No. 51530 (May 17, 2002).