Retreadfed

napolik, find the language of the statute at issue in the GAO decision and compare it to the current language then decide for yourself if the Redbook is current. I don't know the answer, but can only point out that the statute has changed since the decision was issued.

Note that this decision dealt with a previous version of 10 U.S.C. 2410a. It does not address the current version.

I think you need to look at each cost individually and make a determination. Some may be unallowable, while others, such as purchasing new letterhead stationery, are allowable. As for the legal costs, I think they fall under 31.205-33 and are probably allowable.

I agree with Vern. 10 U.S.C. 2510a states that the agencies ideintified there "may enter into a contract for a purpose described in paragraph (2) for a period that begins in one fiscal year and ends in the next fiscal year if (without regard to any option to extend the period of the contract) the contract period does not exceed one year. " Paragraph (2) mentions contracts for severable services. To me, this would preclude the practice you are describing.

Vern, quantum meruit could be an example of an equitable claim as could impossibility.

Going back to jwomack's problem. From what you have written, it does not appear that the contractor has completed what the contract calls for, nor has it reached the ceiling price of the contract. If that is the case, have you considered the possible impact of the Disputes clause, including Alt I, if it is included in the contract, on the contractor's obligation to continue performance?

Whether the subcontractor obtained two proposals quotes for a procurement action may not be the determinative factor as to whether the costs are allowable. There could be several other facts that could come into play such as sole source items, prime or government directed sources, etc. Further, even if they may be unallowable under the terms of the contract, the sub may have an equitable claim to payment. Therefore, I would not automatically assume that the costs at issue are unallowable if the sub did not comply in all respects with the terms of the subcontract.

Vern, can you explain your last post in greater detail? My understanding is that if an improper act or omission of the government amounts to a breach of contract, the contractor is excused from further performance. On the other hand, if the improper act or omission is not a breach, the contractor is not excused from further performance but still must perform the contract. In this latter case, the contractor could be entitled to a schedule adjustment and/or a price adjustment under various clauses such as the Changes clause or Government Delay of Work.

To answer your question, you will have to look at the law of the jurisdiciton identified in the subcontract to determine how this language would be interpreted by courts in that jurisdiction. Unless specifically incorporated in the subcontract, FAR and the decisions of the appeals boards, COFC and CAFC will not be binding on those courts, but may be considered instructive.

Knwebs, you have confused two things in your latest post: (1) current law and (2) current SBA and FAR regulatory coverage. On the face of it, current law would permit an 8(a) prime to subcontract to an 8(a) sub so long as the combined effort of the two complied with the so called 50% rule as expressed in 52.219-14. However, under current regulations, which are based on the law prior to January 3, 2013, an 8(a) prime will have to comply with the 50% rule and cannot count effort exerted by a sub when determining compliance with that rule.

wvanpup, LH contracts usually call for the contractor to do a job, i.e., repair a vehicle or perform a service task. If your contract does this, but the contractor has not completed the job, why do you say it has fulfilled its contractual obligation?

What does the subcontract say on this point? Also, does the contract say what body of law will be used to resolve disputes between the parties? Because we are talking about a subcontract, the precise subcontract language is what will be used to determine the parties rights and obligations.

Don, do you think a deviation is possible since the Small Business Adminstration is the agency with primary jurisdiction over the Small Business Act and its regulations impose the limitation on subcontracting currently in place. In other words, wouldn't you be attempting a deviation to the SBA's rules?

Many, many years ago the SAT was $25,000. Thus, if someone thinks the SAT is $25K, they are living in a time warp.

Bluewave, a curiosity question: if you do only a cost realism analysis, how are you determining that you are not agreeing to include unallowable costs in the estimated cost of the contract? Hopefully, the unallowable costs would not be reimbursed, but the fixed fee likely would be computed, in part, using those unallowable costs.

CSalt, can you explain why your director considers these types of options convert the contract into a T&M contract?

Thanks.

Vern, in your post 41, did you mean to say that the Act "does not" define a claim instead of "does define" a claim?

PMDave, are you talking about modifications to the contract or modifications to the items being maintained?

Joel, consider the situation where a contractor submits a claim to forward price a change order. That claim is based upon costs the contractor estimates it will incur. The contractor receives the adjustment it claimed but the contractor does not incur all the costs it estimated it would. Thus, it does not recover the full amount of the claim. There are many reported cases where this factual scenario was presented, usually in the context of when interest starts and on what amount it is calculated. The point being that the amount of a claim does not necessarily translate into an amount the contractor will be paid. Therefore, to me, an amount asserted in a claim for a price adjustment is not in and of itself a request for payment of the same amount of money.

Yes. The person is a driver performing an unauthorized act.

Rookie, are you with the government or a contractor?

Rodolfo, although everyone has to do something for the first time, helping a company with an ASBCA appeal on your own is not a good way to start. I suggest that you contact an attorney who is experienced in ASBCA practice and let them do the appeal with you working with them to learn the process for doing that.

Can you provide more information. For example, most key personnel requirements I have seen have a job description in the solicitation giving the government definition of the position. This is done in recognition that contractor's job titles frequently vary from titles the government uses. Therefore, the solicitation contains a job description and the contractor is required to provide a resume of key personnel to show that they meet the quals the governent wants. Was that done here? If it was, did the "Program Manager" meet the quals for the "Project Manager"? If they did, what is the problem?

Maybe and maybe not. Remember, the regulations implementing the EO and the statutes specifically said the clause mandated by them would be a part of any subcontract regardless of whether it was physically included. There is not a similar provision in the FAR.