Retreadfed

I think you may be misreading the case. Note that the district court explicitly states that the DC Circuit has not adopted the Christian Doctrine. The district court did not impose compliance on the hospitals under the Christian Doctrine but through the terms of the Executive Order and statutes that required compliance.

If there is no clause that gives the contractor a right to an equitable adjustment, this situation is probably covered by dkubis' earlier thread found here http://www.wifcon.com/discussion/index.php?/topic/1974-cpif-overrun/page__hl__cpif

Let's go back to a fundamental question. dkubis, can you tell us what, if any, FAR clause is being relied upon as granting the contractor a right to an equitable adjustment in this circumstance?

dkubis, how would the Limitation of Cost or Limitation of Funds clause, whichever is relevant, be applied in your situation? Also, how do you interpret "target cost" as that term is defined in FAR 52.216-10? Finally, do you interpret 52.216-10(d) to only permit equitable adjustments after final costs have been determined?

I don't understand where you are coming from. DFARS 252.243-7002 does not require that the equitable adjustment be based on actual costs incurred. All it requires is a good faith belief in what the cost of the equitable adjustment will be. Also, by adjusting the target cost, you are not compensating the contractor for costs never incurred. The contractor only receives its allowable incurred cost. If the incurred costs are below the target cost, the contractor is not paid the difference.

Where is the incentive in this? The purpose of an incentive fee is to encourage the contractor to get the job done cheaper by allowing the contractor to earn a higher fee by cutting cost. How does your proposal accomplish that?

If you don't adjust the target cost, you will likely penalize the contractor because the incentive fee is based on performance against the target cost.

Don, what level of confidence do you have in the government's ability to adequatley define its IT requirements and to estimate a reasonable price for the contractor to meet those requirements?

Does the contract contain 52.217-9? If so, what is the maximum length of the contract under that clause?

H2H, wouldn't a TIA be a cost objective regardless of whether it is a contract?

Because the NDAA amended the Small Business Act, which is administered by the SBA, the FAR Councils will likely have to wait on implementation of this change by SBA before the FAR can be amended.

I'm curious as to what the agency is going to do with the soil from the trench if it pays a contractor to dig the trench. It seems like many of the same environmental issues would be present either way.

The ACA is confusing as to the nature of the payment that the employer has to make if it does not provide the level of insurance coverage called for by the Act. While the law sometimes refers to it as a penalty, it is usually called a tax. This distinction can have other consequences for contractors. While we can speculate about the nature of the health insurance coverage required by ACA, before we can speak in an informed way on this, we need to wait for HHS, DoL and IRS to issue their final regs and for the certain litigation that is to follow to play out before we really know what what it means.

What would you do with such a list if you had it? Do you have copies of superseded clauses?

However, the question is does the ACA require employers to provide insurance coverage? The statute says employers must provide a minimum level of coverage and if they don't, they pay a penalty (tax). To me, it seems the insurance coverage is optional, not mandatory.

However, see FAR 37.106( B ). Do we have a disconnect here?

Why do you think that billing rates would have to be used in pricing a fixed price or T&M contract, whether CAS covered or not?

What do you mean when you ask what form an FP LOE should take? Also, are you asking if T&M contracts should be classified as cost reimbursement contracts?

IGs are supposed to gather facts to support their conclusions. However, many times their facts are nothing more than rumor, suspicion and innuendo. It seems that the GSA IG suffers from the same lynch mob mentality that the DoD IG did in regard to the Tailhook episode. In that case, a U.S. district judge called the IG report on the incident inherently unreliable and refused to permit it to be admitted into evidence. Despite this, it is amazing that congress seems to give IGs an aura of infallibility.

H2H, look at Section II.c of Table 15-2. That might help you some.

Navy and Vern, my post was in response to the questions raised by H2H in his post #4, particularly the last one. For clarity, an "incurred cost submission" is DCAA speak for a proposal to establish final indirect cost rates as described in FAR Subpart 42.7. I disagree that FAR 52.216-16 requires any such submission. The text of the clause certainly does not mention establishment of final indirect cost rates. In this regard, compare 52.216-16 and 52.216-7. What 52.216-16 requires is a statement of costs incurred in the format found in Table 15-2. Part III.c. of 15-2 gives the format for a price revision/redetermination proposal. Nothing there or anyplace else in 15-2 mentions or implies that a contractor is required to submit a proposal to establish final indirect cost rates. For these reasons, and 42.705-1( B ), I say that 52.216-7 is the only clause in the FAR that requires a contractor to submit a proposal to establish final indirect cost rates.

H2H, I think you are bringing up two different issues. One is whether you should include the direct cost of FPI contracts in the bases to establish overhead and G&A. I think you are required to do so using the criteria of what is an adequat incurred cost submission in 52.216-7. The other question is are you required to submit an incurred cost submission if you do not have any contracts that contain 52.216-7, which is the only clause in the FAR requiring a contractor to submit an ICS. In my opinion, you are not. I have always argued that a contractor is only required to submit an incurred cost submission if that clause or another clause requiring submission of an ICS is in one of its contracts. However, many DCAA auditors believe that a contractor has in inherent obligation to submit an ICS to establish final indirect cost rates. To me they are wrong. As for Vern's citation to 42.703-1©(2), this shows another glitch in the FAR. That section says that final indirct cost rates will be established to determine the final cost of an FPI contract. However, 52.216-7 is not required for use in fixed price contracts nor is it an optional provision for such contracts. Therefore, if you had only FPI contracts, the contracting officer would have to insert a clause requiring you to submit an ICS so that the contracting officer could comply with 42.703-1©(2).

This is an example of where contracting officers cannot rely only on the FAR when dealing with some topics such as small business contracting and the Service Contract Act. Instead, you have to look at the regulations of the agencies with primary jurisdiction in regard to implementation of specific statutes. Although the SBA's rules were changed to specifically give contracting officers the discretion to request a size certification before award of any order under a contract, OHA decisions had long recognized this ability. The earliest OHA decision that I remember on this subject was around 2002 and involved the award of a BPA under a GSA schedule contract. The contracting officer required recertification of size status before award of the BPA and a contractor that was small when it received its contract but was no longer small protested this requirement. OHA affirmed the contracting officer's requirement and I know that agencies have been following this practice ever since without any FAR coverage or explicit coverage in SBA rules.

I think you have misunderstood the nature of a T&M/LH contract. Such a contract does not purchase hours. That is what a level of effort contract does. Under a T&M/LH contract, you award a contract to a contractor to perform a job at a not to exceed amount. If the job costs more than anticipated, the ceiling price can be raised to provide more funding. This is akin to raising the estimated cost of a cost reimbursement completion contract under the Limitation of Cost clause. The scope of the contract is not changed in this circumstance, only the cost of performance. On the other hand, if the description of the job is changed, i.e., a change order is issued, a determination has to be made as to whether the change is within the general scope of the contract. If it is, and the change causes an increase to the ceiling price, the contract is to be equitably adjusted. See FAR 52.243-3. Under this clause, changes within the general scope of the contract are permitted, but not changes that are outside the general scope of the contract. Changes outside the general scope of the contract are commonly referred to as cardinal changes. In reality, these changes are new procurements as they are not authorized by the Changes clause. What the FAR is saying in that case is that the procedures for awarding a sole source contract need to be followed.

Vern, in regard to your post #4, I must be in the very small minority of those who have filed a protest against the contents of a solicitation, had the protest sustained by GAO and then got the contract. I have also been involved with post-award protests that were sustained and the contractor got the award. As a rule, I do not like protests and think they are a pain in the neck. However, if you pick your fights carefully, they can be useful. A couple of things I found to be helpful are don't make the protest personal and keep the lines of communication open with the contracting officer during the protest.