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Everything posted by Retreadfed

  1. Joel, here is an extract from 10 USC 2306a. Based on this language, why do you say this is not a TINA issue and that the prime is not required to obtain cost or pricing data from the sub in this case? An offeror for a subcontract (at any tier) of a contract under this chapter shall be required to submit cost or pricing data before the award of the subcontract if the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this section
  2. Don, the SBA is probably right in regard to HUBZone set-asides. There is a statutory basis for that program that is distinct from the DoD requirements. Further, HUBZone procurements do not have a facial race based component or aspect. Thus, the strict scrutiny analysis applied in Rothe does not apply to such procurements. As regards the 8(a) program, it would be subject to strict scrutiny. However, the arguments against its constituionality are significantly different from those made in Rothe. Specifically, there is no price adjustment factor for 8(a) contractors. Instead, none 8(a) contractors, including other SDBs, may be excluded from a procurement reserved for an 8(a) award. Therefore, the reasoning in Rothe is not applicable to the 8(a) program.
  3. I have to take some exception to Don's assertions regarding line item pricing. The court has never held that such pricing is automatically exempt from disclosure. Instead, its position is summarized in this extract from the CCC decision We reaffirm today what we have held twice before: Constituent or line-item pricing information in a Government contract falls within Exemption 4 of the FOIA if its disclosure would ?impair the government?s ability to obtain necessary information in the future? or ?cause substantial harm to the competitive position of the person from whom the information was obtained.? Thus, before line item pricing can be withheld, the government must determine that one of these two results will occur. Similarly, in a reverse FOIA action, the party seeking to enjoin release has the burden of proof in regard to making one of these showings. As for Carl's idea about a protest, what is to be protested? Look at the GAO protest regs to determine what can be protested. I don't see where a contracting officer's failure to disclose this information is protestable to the GAO.
  4. With what agency are you deallng and what clauses dealing with rights in software were in the "enhancement" contract?
  5. I don't know the specifics of the notice you quoted, but the 2009 NDAA contained a provision that imposes on all agencies the competition requirements formerly imposed on DoD by section 803 in regard to orders under multiple award contracts, including GSA Schedule contracts. The FAR has not implemented this provision yet, but the notice may be an attempt at implementation prior to formal FAR coverage.
  6. Or another example of when the councils did not think things through when they promulgated a regulation.
  7. Vern, I need some clarification of your position in regard to what is the appropriate defintiion of a subcontract in this instance. FAR 52.203-13 contains one defintion of a subcontract. On the other hand, 52.244-6 simply says the term subcontract includes transfers of commercial items between related entities. Because 52.244-6 is a clause required by Part 44, would not the defintion of subcontract in Part 44 supplement the definition of subcontract in the clause? In that case wouldn't the definition from Part 44 and what is in 52.244-6 determine when 52.203-13 is to be included in a subcontract for a commercial item? To me, although the two defintions are quite similar, 52.244-6 would require 52.203-13 to be included in a broader category of subcontracts than 52.203-13 because 244-6 does not contain any limitations on the size or duration of contracts in which the clause is to be inserted.
  8. The DFARS "clause" is not a contract clause, but a solicitation provision.
  9. In regard to multiple awards of requirements contracts, see Paradigm II, LLC, d/b/a JB Carpet & Upholstery Care, ASBCA No. 55849, issued on Feb. 3, 2009, where the contractor asserts there are cases that support this practice.
  10. For those who are employed by or contract with DoD, 32 CFR 97 might be an interesting read on this subject.
  11. If the prime was exempt from disclosing cost or pricing data, all subs under that prime contract are also exempt.
  12. I don't know what is happening with my last post, but the citation should be 16.505((3).
  13. It's not clear what your situation really is, but FAR 16.505((3) might help you.
  14. I think it will be interesting to see how this provision would be applied in regard to orders under FSS contracts or other existing multiple award contracts.
  15. As a follow-on, how would this policy work in regard to situations like Blackwater not having its contract renewed?
  16. If presidents are permitted to mandate substantive procedures like this, it would appear to make a sham of the requirement for public comment in regard to procurement rule making, which is intended to have the rule maker get and consider the views of those who would be affected by the rule. See. http://www.law.cornell.edu/uscode/html/usc...18---b000-.html
  17. What is your concern in regard to this? Are you with the government or prime contractor? What type of contract is the prime contract?
  18. There are two issues here. One is proper allocation of costs and the other is what is billed against the contract. When you say "working on a government contract," I assume you are referring to work that directly benefits that contract and no other. If that is the case, the cost of the employee's time should be allocated to the benefitted contract and no other. Of course this does not mean that the contractor has to bill the government for the cost of that time. There is no requirement that a contractor charge the government for all costs incurred in regard to a contract. However, from the government's perspective, there is a prohibition against acceptance of voluntary services.
  19. In regard to G&A, does the contractor have approved billing rates for its indirect costs? If so, do you have some information that indicates that those billing rates are not reflective of what the final rates for the year will be? If the answer to the latter question is "no," the G&A rate sould be considered reasonable because the costs that are in the G&A pool must be allowable, which includes being reasonable.
  20. Blitz, why wouldn't the government pay fee on premium pays made by the contractor? The only cost that FAR 15.404-4 requires to be excluded from the government's profit or fee objective is facilities capital cost of money.
  21. Phillygal, if you intend to award a cost reimbursement contract, what type of solicitation other than an RFP would you use?
  22. Vicki, check the requirements for a subcontracting plan by subcontractors. While primes are required to develop a plan when the prime contract offers subcontracting opportunities, there is no such qualification for subcontractors. They must develop a plan whenever the subcontract meets the size standard and the subcontractor is not a small business. Sounds dumb, but the statute and regs require a subcontracting plan when there will be no further subcontracting by the subcontractor.
  23. Civ, I presume Don's point in starting this discussion was to demonstrate the many points of ignorance (not stupidity) that exist in the procurement world. While not a "myth," you have identified another. I might add that what is an adequate accounting system can vary with the contract type involved and that one size does not fit all in this regard. For example, what is adequate for a T&M contract for commercial items would be quite different from an accounting system for a contractor performing a cost reimbursement contract subject to the CAS.
  24. A contractor must have a DCAA certified accounting system as a prerequisite to receiving a cost reimbursement contract.
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