joel hoffman

sprice11, I should have said that I would Not willingly release my pre-negotiation objectives if part of the PNM as is now part of that format (more bureaucratic repetition by requiring a PNO then requiring it to be repeated in the PNM). At any rate, from the limited information provided, I empathize with your situation. I think you are indicating that there were no oral negotiations, you submitted a detailed prooosal indicating how you were going to pursue the effort, somebody theoretically performed a price and cost analysis and then the KO simply acccepted it. Now they are questioning the methodology or the amount of the incurred costs, based upon review by DCAA. That pre-award ineptitude no longer surprises me, unfortunately. In Cost reimbursent contracts, your responsibility is to make a “best effort” to complete the effort within the budget and time allotted but you don’t guarantee that. at any rate, you supposedly told them how you were going to pursue the effort, etc., etc., you performed consistent with it, nobody questioned the reasonableness of approach or the amounts during performance and now the DCAA is questioning the reasonableness but not necessarily the allowability of the elements (?). i agree with H2H. Good luck.

Now days, when price negotiation memoranda contain details of the prenegotiation objectives, I would say that somebody’s going to have to legally force me to turn over a copy of the overall price negotiation memorandum. And then I would redact out my prenegotiation objectives. In this instance, it appears that the contractor wants to know what the contracting officer thought was fair and reasonable.

I agree H2H. I started to post this morning with similar questions, then decided that the only question that OP asked was whether they could obtain a copy of a PNM for some unclear objective. Years ago we provided copies and asked contractor to sign those over $100,000 (when threshold was $ 100k). That was our local District’s policy. It should be noted that our pre-negotiation objectives were always separate documents and often consisted of marked up proposals for small changes. My next District used memoranda of agreement or memoranda of understanding to document mutual understandings and agreements. I used those throughout my subsequent career. We don’t know what was “negotiated”, whether competitive or non-competitive, what the auditors are questioning, etc. For instance, Is it pricing or costs? Post awRd, pre-award, incurred costs, questioned costs, unsupported costs, etc.? If they are questioning a negotiated cost, then they would probably be questioning the KO’s basis of settlement. Of course the KO would have determined something to be fair and reasonable - probably the overall settlement. It may have involve the contracting officer non-concurring with some of the audit results, prior to negotiations. Who here can know?

To clarify, I did not say to exercise an option inproperly. With the government shut down, the original poster has no means to “exercise” anything unilaterally.The suggestion has been made to bilaterally modify the contract. For the amount of time that this discussion is been going on, they could’ve started that process. If this is a DOD contract, there are a couple of different exceptions to full and open competition that could be used to support a bilateral modification to add the option

ji, I agree with you. Let me add - if the naysayers in the organization object, they need to solve it and get the job done.

I’d say, get it done. If someone protests, they protest. So what? The government is shut down for an unprecedented period. Get the job done. And while at it, discuss your proposed course of action with your contractor, who likely wants and needs the work. Go forth and do good things.

It appears that the agency may be defacto restricting competition to certain firms with recent government contracts experience.

In a cost reimbursement contract, it is the responsibility of the contractor to be able to justify any claimed (requested) entitlement to reimbursement of costs, including reimbursing subcontractor expenses. It would be extremely unwise not to write subcontracts accordingly. See, 31.201-2 Determining allowability, see all paragraphs, including (d). See also paragraphs regarding reasonableness, etc. ( e.g., no presumption of reasonableness, etc.). Even if not specifically stated in the prime contract, these principles apply to the prime contract.

It is helpful to clarify how there were “two different methodologies”. The “best value continuum” includes both the “trade off”and the “lowest-priced, technically acceptable” selection methods. This was made clear in the 1996-1997 FAR Part 15 Rewrite. Thus, both methods described here to select the winner in the solicitation appeared to fall within the “best value continuum” at FAR 15.101. The actual problem was that the solicitation described both the Best Value, “Trade-off” method and a form of the Best Value, Lowest Priced Technically Acceptable” method. It would be helpful to clarify that both the Best Value Trade-Off process and a form of Best Value LPTA process were specified in the solicitation. Quoting from the Decision: “First, section E.10 of the RFP states that award will be made to the offeror whose proposal is most advantageous to the government, considering price, technical capability, and past performance, where technical capability and past performance, when combined, are approximately equal to price. RFP at 45. Section E.11, on the other hand, provides that “award will be made to the responsible offeror who submits an acceptable proposal, as determined by a technical evaluation, and has [the] lowest price for satisfactory completion of all contract requirements.” “ Thus, from the limited information in the Decision, there appears to have been a conflict or patent ambiguity in the stated basis of award. However, both are forms of “Best Value” methodology. Best value terminology, as used by non-government organizations, such as the Design-Build Institute of America and others, means that BOTH quality (such as qualifications, quality of product or service, delivery terms, etc.) and price are considered, not just one. Thus, for example, “qualifications- based selection” would be distinct from “best value selection”.

Clause 52.232-5 Payments Under Fixed-Price Construction Contracts requires the prime to list the total amount of subcontracts and payments to each subcontractor included in progress payments. I don’t know current contract requirements that might require the prime to categorize each subcontractor’s socioeconomic status . However, it isn’t difficult to determine if specific firms are similarly situated. Edit: ah you are inquiring about the legacy clauses - regarding how to calculate cost of personnel...

Thanks, ‘Help’. I agree. I don’t necessarily fault Jo Brown for the question or the fact that ten years is a long time to forecast and lock in indirect cost rates if that is what happened. I was trying to understand the context of the “rate caps”. It may well also very difficult to forecast FFP CLIN costs ten years out.

Trying to understand how and to what extent the indirect rate caps come into play at years five through ten of your (mostly) FFP contract. Is it for the ‘leastly’ , non FFP CLINs?

I would say the answer would be that the difference is in experience, training and specialty.In addition, there should be consistency across DOD with one group performing the determination.

I agree with you. Many - but not all - items are obviously commercial items. Where a determination is necessary, information, which the government may not have, is in the hands of, or may be obtained by, the supplier.

Not sure how a rate cap applies to firm fixed-price CLINs other than to price adjustment mods.

And ask NOW.

It’s all fine and good discussion, however it doesn’t answer Pat’s question. Which, by the way makes no sense. And Pat apparently doesn’t intend to clarify or otherwise explain it.

Where ir how is the rate cap published?

ICE (INCURRED COST ELECTRONICALLY) MODEL The ICE Model, is the electronic version of the "Model Incurred Cost Proposal" . It provides contractors with a standard, user-friendly ICE submission package for preparing adequate incurred cost proposals in accordance with FAR 52.216-7,

“ICE”?

“ICE”?

The scenario is very unclear. It appeared that the Prime intends to do the effort itself or have someone else do it for the prime. Maybe the OP meant that they paid off the sub for some reason but some or all of the subcontracted FFP scope of work remains to be completed??? The OP hasnt responded to at least FIVE questions, requesting clarification and contex, asked by several respondents. So, what does it matter anyway? It’s a waste of time for respondents to speculate and debate. There is no “novation” from the government perspective due to a change in who performs the scope of a subcontract on a FFP contract, whether it be the prime or another subcontractor. And - it is common practice for Corporations to purchase other firms (if that were the case here) or to divest divisions, without changing the Corporation’s legal identity, correct? Thus, no novation of the prime contract is involved.

If you believe that you have a legitimate right to payment and have made repeated efforts to request payment, then I would suggest submitting a claim. If you are nearby the KO office, perhaps you may first demand a face to face meeting for them to explain to you why they won’t pay you. Demand specific reason and details.

Are you located near the contracting office or the COR office to make direct eye to eye contact? The personnel you were dealing with might no longer be employed there.

“Purchasing” a firm doesn’t necessarily change the legal identity of a contractor, either. At any rate, the OP seems to have checked out on this thread.