Retreadfed

jpayne, a more fundamental question is whether you even have a contract. Was the PO issued on a unilateral basis? Did the supplier ever accept it? Not taking exception is generally not the same as acceptance. I suggest you check this question with legal.

PI, thanks for the technical support.

The sub is probably aware of a 9th circuit False Claims Act case brought against Lockheed Martin (I think this is the contractor), where the court held that a contractor could ber held liable under the FCA for underbidding a contract. The sub could just be trying to be risk adverse.

jtambor, if the purchase is through a stock transaction, what redetermination are you talking about?

You have hit on a major grey area in government contracting. Paraphrasing your question to what I think you are asking: how do you compute the value of a contract for purposes of CAS and TINA when the contract calls for both commercial and non-commercial items? Take this example: a contract calls for the delivery of commercial items with a value of $100M and non-commercial items with a value of $100K. For purposes of CAS and TINA is the value of the contract $100.1M or $100K? I know of at least one situation where DCAA and DCMA took the position that the value of the contract would be $100.1M. People can have differing views on this, but in my opinion, because contracts for commercial items are exempt from CAS and TINA's requirement for the disclosure of certified cost or pricing data, I believe the value of the contract should be considered to be $100K in the example given.

Deaner, in regard to your post 13, the fact that appropriated funds are being used is a red herring. Appropriated funds are used for all sorts of things that are not FAR contracts. From the definitions I mentioned, it is easy to see that the FAR only covers procurement contracts that are funded with appropriated funds. There are procurement contracts, such as those issued by the military exchanges, that are funded with non-appropriated funds. These contracts are not covered by the FAR. There are also support contracts issued by agencies using appropriated funds. These are not covered by the FAR. If you look at the various appropriations acts, you will generally not see a restriction on their use for only contracts. Instead, they can be used in any way to carry out the purposes for which they were appropriated, e.g., contract, grant, cooperative agreement, CRADA, OTA, etc. For the differences between contracts, grants and cooperative agreements, look at 31 U.S.C. 6303-6305. Perhaps what you are calling a grant is in reality a procurement contract.

Deaner, did you look at the defintion of "acquisition," "contract" and "contracting" in FAR 2.101?

The CDA establishes the time a contractor has to appeal a contracting officer's decision. If we are talking about a default termination, that is a government claim against the contractor. The termination notice should be in the form of a decision under the Disputes clause. See, FAR 49.402-3(g). The contractor has 90 days after receipt of the termination notice/decision to file an appeal with the appeals board or 1 year to file suit in the Court of Federal Claims.

I would have to question at least part of what has been presented to BC. That is the reference to DCAA. DCAA does not have any authority to establish procurement policies. It only functions are to conduct audits and provide financial and accounting advice to other procurement personnel.

In addition to what Joel wrote, it is good to keep the concepts and clauses relative to cost reimbursement and T&M contracts in mind, even if we are talking about a sovereign act. Specifically, even if a contractor is delayed by a sovereign act, that act may have caused the contractor to incur increased costs that result in the estimated cost of the contract or the ceiling price being breached. In this case, pursuant to the Limitation of Cost clause, 52.232-20, and T&M payments clause 52.232-7, the contractor would be entitled to stop work unless the government adds more funding to the contract. Therefore, the contractor may be entitled to a schedule adjustment for an excusable delay and a price adjustment under these two clauses.

jpayne, is your contract with a DoD component or a civilian agency? If it is with DoD, check DFARS 227 because DoD has a system that is substantially different from the civilian agencies.

From what you have provided, I think you need to consider the allocation cost principle, FAR 31.201-4. Note that costs have to be allocated to cost objectives such as your task orders on the basis of benefits received or another equitable basis. Based on my experience with government auditors, they would likely not accept the entire rental expense being allocated to a single task order, but would say it has to be allocated over all benefited task orders. You may be able to convince them otherwise. In any event, whatever allocation method you use, you will have to show that it is compliant with 31.201-4.

Leslie, you did not tell us a lot of facts that could be useful in attempting to point you in the right direction such as if your task orders are cost reimbursement, fixed price, etc. Also, you did not say if the rental costs are charged directly to the task orders or are charged as an indirect cost. If they are charged direct, do the cost principles apply or is the cost included in a lump sum CLIN? Are the people who use them on TDY? Is your company leasing them or do employees rent them and are then reimbursed for the rental expenses? Does the contract have any special provisions regarding rental cars? Is your contract subject to the CAS?

Here is a hypothetical question regarding the ADA. An agency awards a cost reimbursement contract to X. The contract contains the Limitation of Cost clause. When the contract is awarded, the agency has sufficient appropriations to cover the agencies obligations. The sequester is imposed reducing the amount of funding available to the agency with which to pay for the contract to X. However, there are sufficient appropriations to pay X the estimated cost of the contract and fixed fee. Upon contract completion and establishment of final indirect cost rates, it is discovered that X has an overrun on the contract that X did not know of and could not have known of in order to give the government notice of an overrun under the LOC clause. Because of the sequester, there are no funds in the appropriation used to fund the contract with X with which to pay for the overrun. Two questions: 1) has a violation of the ADA occurred and 2) can the agency use current year appropriations to fund the overrun?

20govcon, see the COFC decision at the following link and see if it helps answer your question. Of course, it would help if we knew what the contract says in regard to backgrtound checks. http://www.uscfc.uscourts.gov/sites/default/files/BUSH.SIMS093013.pdf

Adding to what dcarver said, if the government re-wrote the spec, did it do so and provide it to you after the contract was awarded?

jpayne, what do you mean by obsolete? Also, do the specifications for the kit call for the obsolete part? If so, why did you provide a replacement for what was called for by the specs?

When you say "protest" are you referring to a protest as described in FAR 33 or merely a subcontractor complaining?

The attorney-client privilege only applies to communications between an attorney and his/her client arising out of that relationship. Assuming that the contractor is the client of the attorney and that the government is not the client, the privilege would attach and the attorney could not provide the material to the government unless the contractor waived the privilege. Two FAR provisions are relevant to this question: FAR 31.205-33, which arguably could be read as requiring the contractor to provide the material in order for the cost of the attorney to be allowable, and 52.203-13 which indicates that privileged materials do not have to be disclosed to the government. As a practical matter, if you get into a dispute with the contractor over access to the materials, I doubt that an appeals board or court, where lawyers dominate, will agree that the government has access to privileged material.

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.