Retreadfed

Those defintions are regulatory in nature. They are to be applied in determining compliance with the so called 50% rule. If they are not to be applied in determining compliance with the 50% rule, what purpose do they serve?

Vern, I am not sure whether doing the correct calculations would have affected the outcome of this protest. However, it very well might have. The Court said the following in regard to why Tennier's proposal would not have lead DLA to believe that Tennier would not comply with the Limitation on Subcontracting clause: Second, and perhaps more importantly, Excel’s calculations comparing Tennier’s labor costs and the labor costs of its subcontractors are not equivalent to the formula for determining compliance with the limitations on subcontracting clause discussed supra. As defendant notes, Excel’s calculations do not take into account profit or G & A, which are necessary cost components of the proper formula testing compliance with FAR 52.219-14. Def.’s Mot. at 16-17 (citing Mechanical Equipment and Phoenix Systems). Because Excel’s calculations supporting its allegation that Tennier would not comply with the limitations on subcontracting clause do not contain all of the necessary cost elements, the court cannot rely on Excel’s conclusions as accurate. Thus, if the Court had properly applied the SBA's rules, it is possible that it would have reached a different outcome.

Did you read the regulations I cited?

See the Court of Federal Claims post award bid protest decision at http://www.uscfc.uscourts.gov/sites/default/files/BUSH.EXCEL072413.pdf Then look at 13 CFR 125.6(e)(3) and (4). Did the Court blow it in this decision?

I'm not sure I fully understand your situation, but have you looked at FAR 9.505-2(a)(3). It may help you.

Before you go to the CO, look at FAR 31.205-6 (e) (foreign tax differential), (f) (bonuses) and (m) (fringe benefits). Many contractors pay employees a bonus for certain aspects of overseas assignments such as completion bonuses instead of or in addition to salary. Others provide R&R benefits as a fringe benefit. R&R costs can be problematic sometimes, particularly, the question as to whether the costs are direct costs or indirect costs.

The only authoritative source that I know of is the contract under which the allowance will be paid. If the contract is silent on that point, the question then becomes whether the allowance is reasonable. Remember, under FAR 31.205-6, compensation must be reasonable for the work actually done. What other contractors in the area pay for similar work is one factor that may be considered in determining reasonable compensation. Although not binding or applicable to contractors in general, many contractors base overseas allowances on the Department of State Standardized Regulation.

Rios, what would you expect the contractor to do if you had a serious attack that caused your bandwidth usage to exceed the limit you establish? Could the agency assume the risk of not having the extra bandwidth? Also, have you considered what the impact on your appropriation would be if the contractor reached the monthly limit on a continuous basis?

Beantown, notice that the TINA requirement only applies to the cost of the modification. It does not apply to the cost of the item itself if the modification does not change the item in such a way that it is no longer a commercial item.

I'm confused too as there is no fee in a firm fixed price. Are you saying the government wants to reduce the price and use tose funds to pay for changed work under other CLINs?

52.222-40 says in part "the Contractor shall post an employee notice, of such size and in such form, and containing such content as prescribed by the Secretary of Labor." If the Secretary's rule requiring the notice has supposedly been invalidated, has the Secretary prescribed a notice to be posted?

Don, have you researched whether the parts that are not in the CFR were published in the Federal Register? If they were not, have you reached any conclusions regarding their validity?

You have not answered Don's question whether the contractor is still performing the contract. Did the contractor stop work on May 6? If it did, have you been obtaining the covered services some way?

DS, so you are not saying that 52.244-2 or 52.244-5 require government consent for a prime contractor to increase the value of a subcontract. Instead, you are saying that some contracting officers include home grown provisions requiring such consent.

Your scenario is confusing. Can you step back, take a deep breath and try to explain the situation a little clearer?

Si, what do you mean by "tradeable"?

If you have monthly reports to deliver, why can't you bill the government on a monthly basis for those reports?

Please explain how 52.232-18 can be used as authority for payment before funds are made available to the contracting officer when the clause states "No legal liability on the part of the Government for any payment may arise until funds are made available to the Contracting Officer for this contract and until the Contractor receives notice of such availability, to be confirmed in writing by the Contracting Officer." I do not see a conflict between Cessna and 52.232-18. As the court noted, the statutes discussed are silent on whether the government can incur an obligation prior to the apportionment of an appropriation. When a statute is silent on a point, agencies are permitted to fill in those gaps through regulations. Case in point, the Contract Disputes Act is silent on what is a claim. FAR 52.233-1 fills in the gap on that point. FAR 52.232-18 seems to fulfill a similar function in regard to the incurrence of an obligation prior to an apportionment.

si, you haven't told us what the FFP CLINs cover. If 52.232-1 is in the contract, it might provide you an avenue for partial payments as the contract progresses.

It doesn't seem right for the words "small purchase threshold" in the same reg to mean two different numbers. A basic principle of regulatory interpretation is that when the same term is used more than once in a part of the regulation, it is presumed to have the same meaning each time it is used unless there is clear language indicating otherwise. I do not see anything in the regulation that indicates "small purchase threshhold" has two different meanings. Therefore, I think you would be justified in assuming that it means the same both times.

No you have jnot made yourself clear. When you say value of the 1st tier sub increases, are you saying that the amount the prime will pay the 1st tier sub will increase? If that is the case, upon what provision in the Subcontracts clause do you base your assertion that a prime must obtain consent to subcontract in order to increase what it will pay a 1st tier sub?

DAMB, are you aware of FAR 52.222-17?

sdvr, remember a bid protest asserts that the government violated a procurement law or regulation in a way that harmed the protester. You have not identified any action by the government that meets this standard. On the other hand, a size or status protest is filed with the SBA. If such a protest is succesful, but award has already been made, the government is not obligated to terminate the contract. With these thoughts in mind, what could you protest and what would it get you if successful?

That is one of the most poorly written and reasoned answers that can be found at AAP. As has been pointed out here several times before, you cannot necessarily rely on what is written there to be accurate. 52.244-2 clearly states that “Consent to subcontract” means the Contracting Officer’s written consent for the Contractor to enter into a particular subcontract." Contractor's do not enter into second tier subcontracts as a general rule. First tier subcontractors do that. Similarly, prime contractors do not select second tier subcontractors in the normal course of business. Again, this is the usual function of first tier subcontractors. Therefore, reference to 52.244-5 seems irrelevant.

For clarity, the GAO decision dealt with para. (a) of the old statute. Obviously, para. (a) of both versions of 2410a are substantially different.