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C Culham

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Everything posted by C Culham

  1. It might as I wonder if "the agency" has worked through the litmus test of the PSA effort with regard to possible violations of using appropriated funds for publicity and propaganda before figuring out the who and how to obtain them for the actual PSA. Sometimes ideas are hatched and folks have not done the upfront very well. If I were the CO I might be asking questions of the program people and even legal counsel. It is hazy but the experience related to this was how should I say interesting ( I added the emphasis)....“Instead, what Congress intended to prohibit with section 3107 is paying an individual ‘to extol or to advertise’ the agency, an activity quite different from disseminating information to the citizenry about the agency, its policies, practices, and products.” B-302992, Sept. 10, 2004
  2. Hire versus contract (my emphasis)? Made me think of experiences of the past. You may want to take a look at GAO Redbook Chapter 3, Availability of Appropriations: Purpose and get to the areas that discuss publicity and propaganda and publicity experts. I think that there is more to the puzzle than meets the eye due to the absence of significant details that would allow for a reasonable response.
  3. @govt2310 You have been provided good advice and thoughts. I suggest as further help that you may want to visit the GAO and CAFC cases found here as further reinforcement. http://www.wifcon.com/pd19_6022.htm Suggest you not just read the synopsis but pull up the actual decisions and give them a read.
  4. The WIFCON website and the beginners forum will provide you with a greater understanding by giving you information to intrigue you to dig deeper, and provide clarity and refinement of the complex matters of Government acquisition.
  5. I find no language in the reference provided below that speaks to commercial item acquisition, either way. There is a reference on where to pose a question such as yours. I suspect a commercial item contract is a covered contract, noting any exception with regard to SAT threshold. https://www.acq.osd.mil/dpap/policy/policyvault/USA001998-21-DPC.pdf A follow-on question to the memorandum contact might be if it does apply can it be tailored in or out based on market research of a particular commercial industry?
  6. Adding ancillary and OLM may be counter to the specific SIN. I note this for the purposes of discussing, as recommended, with the CO. The SIN suggests only professional services to which SCA would not apply. Adding ancillary services might change that paradigm where GSA may not be willing to change the GSA FSS contract. Likewise it appears OLM would as well. Yet if the CO is intending those additional categories (my term) it could be that they are intending them to be "open market" rather than connected to the SIN which is permissible. A couple of references to assist in your effort to clarify with the CO. https://www.gsa.gov/technology/technology-purchasing-programs/mas-information-technology/sins-and-solutions-we-offer/it-professional-services-special-item-number-sin-54151s https://interact.gsa.gov/blog/open-market-items
  7. Minor twist - and possibly anticipated time of need for the materials and when the contractor acquired them? The latter being the biggest question. Noting my Jakes Lumber Yard example again when they have the materials already. I put it as question with regard to the wording for payment for materials which is different than hourly rate. Hourly rate is clearly for "hours performed". For materials it is a little less finite even though "(i) Payments (1)Work Performed" is the lead in to all of the payment verbiage. But then you have (ii)(A)(1) "Quantities being acquired" not Quantities Acquired, quantities incorporated into the work, or....?. A very wonky Alt. I!
  8. The latest exchange in this thread demonstrates that the view of Alt. I clause with regard to payment is perceived in many ways and that there is no one consistent interpretation. I have concluded as well that the Alt. I is poorly supported by further guidance in the FAR and its supplements. The adage of "the eye of the beholder" applies in that what the government and contractor believe is a beautiful (agreed to) with regard to what has been termed the "fill-ins" in (i) Payments of Alt. I is what counts. And I have concluded it should be that way. As I followed and responded to this thread I attempted to dig, especially with regard to replies directed at me. I turned up some interesting stuff. Not saying what I found was current but overall supported to me that there is a very wide view of the Alt. I Payments paragraph at (i) and the effort to determine price reasonableness of any amount put in any of the fill-ins of the paragraph. I was drawn to DoD most often as I looked around as it seems DoD gets used as the benchmark view most often. https://www.acq.osd.mil/dpap/dars/pgi/attachments/2006d030_overview.pdf DFARS 212.209 and through in .207 as well.
  9. Thanks for the additional detail. Here is my response. The contractor inserts no amount they propose an amount if they so choose, the Government inserts the amount, and the amount is negotiated if the contractor does not indicate acceptance to what the government inserted (i.e. contractor proposes an amount different than that which the government inserted).
  10. I think I do. The contractor would insert any fixed price amount that he/she thought would keep them competitive with regard to consideration for award of the contract, the he/she believes covers the indirect cost (G&A) they are missing out on, and if necessary negotiate it. Along with proposing the fixed price the contractor would also submit a proposed pro-rata payment schedule of the amount. Lots of options but by example a known 3 month period of the contract and payments will be made monthly. The contractor might propose payment in 3 monthly equal payments. (Another contractor might propose two-thirds at first payment and one third in the last payment.) If necessary the pro-rata basis would be negotiated as well.
  11. More from Alt I... "(B) Except as provided for in paragraph (i)(1)(ii)(A) and (D)(2) of this clause, the Government will reimburse the Contractor the actual cost of materials (less any rebates, refunds, or discounts received by the contractor that are identifiable to the contract) provided the Contractor-" Jakes Lumber Yard actual cost of acquiring the asset (inventory is an asset) in their stock, the material they will incorporate into the work, includes all costs necessary to acquire the asset, hence the ODCs they expended to acquire the asset that becomes the material of the contractors that is used in the work.
  12. Agreed. I am referencing Alt I. More specifically Alt I says this (emphasis added) - "Indirect Costs (Material Handling, Subcontract Administration, etc.). The Government will reimburse the Contractor for indirect costs on a pro-rata basis over the period of contract performance at the following fixed price:" I think you my have confused my wording some how that I was referring to a FP contract. I was not, the reference was to Alt I for TM using its explicit wording. I understand you cannot but contractors do. My intent is not to try and convince you but rather help improve bulleted advice matrix for the world. I know but my question is how do you know if an offeror is or is not including indirect on materials when you are depending on price analysis? And should you care if you have adequate competition? By me posing the questions Alt I says the contractor will be paid at actual cost, the contractor can use its own materials and that actual cost for those "own" can not exceed the offeror's catalog or market price. Think Jakes Lumber Yard that gets a CI TM contract to build a wood fence around a facility and pulls the necessary lumber from their own stock. And so..... A T&M contract for commercial items MUST include the clause at FAR 52.212-4, Alt. I. A hybrid commercial item contract that includes TM and Fixed Price CLINS may include the Alt 1 as well as other clauses as applicable that address indirect costs for the Fixed Price portion of the contract. Indirect Costs- Paragraph (i)(1)(ii)(D)(2) of Alt 1 provides for (1) a fixed amount and (2) a payment schedule to reimburse (pay) that amount on a pro-rata basis for Indirect Costs. Should indirect costs NOT BE INCLUDED in the Hourly rate, Material price and/or Other Direct Cost of a TM CLIN the offeror should propose a fill-in amount. If the offeror has proposed a Hourly rate, Material reimbursement and/or Other Direct Cost TM CLIN price that DOES INCLUDE indirect the offeror should take that into consideration with regard to proposing a Indirect fixed price for the fill-in. Material is reimbursed (paid) at actual cost to the contractor noting that materials from the contractors own stock will be reimbursed (paid) at an amount not more than the contractors catalog or market price for such material. Other Direct Costs - If purchased or otherwise not provided on the contractors own basis the actual cost the contractor secures the needs is what will be reimbursed (paid). If direct costs are on the contractors own basis (contractor per diem, contractor owned computer usage, contractor's own transport buses)such contractor cost will be reimbursed and shall not exceed the contractors catalog or market price. Per FAR 12.302(b) Paragraph (i) of the Alt I cannot be tailored; fill-ins are permissible as noted by Alt I. If an offeror does not make a proposal , or otherwise does not negotiate an amount, for the fill-in and the offeror accepts a contract with $0 as the fill-in, then the offeror has zero post-award entitlement to a pro-rata fixed amount for indirect costs. Note that acceptance has different meanings for a quote versus a firm offer and the offeror should be aware of this difference when proposing and negotiating with regard to the fill-in. COs who insist on $0 for the fill-in with out knowing the contractors pricing approach are taking a tough, perhaps unreasonable, stance in negotiations. But they are within their rights. Unreasonable may be where the offeror’s usual practice is to not have indirect costs in its proposed price for hourly rates, materials (such as material from the contractors own stock) and other direct (like a computer usage charge based on the contractors catalog or market price) as supported by the offeror’s usual accounting practices. In the hierarchy of FAR guiding principles (FAR 15.404-1(b))of price analysis a CO, should not know and does not need to know where indirect amounts might be unless price competition received indicates a closer look of the offeror's pricing is necessary. At such a point the CO may use, and is not limited to just the price analysis techniques listed in FAR 15.404-1(b) to determine the offeror's approach to indirect.
  13. Deleted and replaced with a different response posted on October 29.
  14. Your understanding is not consistent with how others, yes including me, have addressed Indirect. If our attempt is to promote consistency and hopefully a meeting of the minds that is acceptable to all then I offer this. As we have discussed FAR 31 and FAR 15 cost analysis does not apply to a CI TM (only) contract. Therefore no one knows what the offerors price might or might not include. So if you are leaving it to the offeror to price the fill-ins good faith and fair dealing seems to come into play. So in one more whack at the bullets how about this? A T&M contract for commercial items MUST include the clause at FAR 52.212-4, Alt. I. A hybrid commercial item contract that includes TM and Fixed Price CLINS may include the Alt 1 as well as other clauses as applicable that address indirect costs. Paragraph (i)(1)(ii)(D)(2) of Alt 1 provides for (1) a fixed amount and (2) a payment schedule to reimburse that amount on a pro-rata basis for Indirect Costs. Should indirect costs NOT BE INCLUDED in the Hourly rate or Material price of a TM CLIN the offeror should propose a fill-in amount. If the offeror has proposed a Hourly rate and/or Material reimbursement TM CLIN price that DOES INCLUDE indirect the offeror should not propose a fill-in amount. Per FAR 12.302(b) Paragraph (i) of the Alt I cannot be tailored; fill-ins are permissible as noted by Alt I. If an offeror does not make a proposal , or otherwise does not negotiate an amount, for the fill-in and the offeror accepts a contract with $0 as the fill-in, then the offeror has zero post-award entitlement to a pro-rata fixed amount for indirect costs. Note that acceptance has different meanings for a quote versus a firm offer and the offeror should be aware of this difference when proposing and negotiating with regard to the fill-in. COs who insist on $0 for the fill-in with out knowing the contractors pricing approach are taking a tough, perhaps unreasonable, stance in negotiations. But they are within their rights. Unreasonable may be where the offeror’s usual practice is to not have indirect costs in its proposed price for hourly rates and/or materials as supported by the offeror’s usual accounting practices. In the hierarchy of FAR guiding principles (FAR 15.404-1(b))of price analysis a CO, should not know and does not need to know where indirect amounts might be unless price competition received indicates a closer look of the offeror's pricing is necessary. At such a point the CO may use, and is not limited to just the price analysis techniques listed in FAR 15.404-1(b) to determine the offeror's approach to indirect.
  15. @ji20874 thank you for a possible fix. Please consider my professional opinion along the others provided or to be provided. A T&M contract for commercial items MUST include the clause at FAR 52.212-4, Alt. I. Paragraph (i)(1)(ii)(D)(2) provides for (1) a fixed amount and (2) a payment schedule to reimburse that amount on a pro-rata basis for Indirect Costs should Indirect Costs not be included in the Hourly rate or Material payment item (CLIN). The parties can agree to $0 if applicable Indirect Costs are otherwise included in the Hourly rate/Material payment items (CLIN). Per FAR 12.302(b) Paragraph (i) of the Alt I cannot be tailored; fill-ins are permissible as noted by Alt I. If an offeror wants payment for G&A costs (or any other indirect costs) not included in the Hourly rate and/or Materials, the offeror should propose a fixed amount for that purpose in its proposal as a fill-in for Alt. I Paragraph (i)(1)(ii)(D)(2). If an offeror does not make such a proposal, or otherwise does not negotiate an amount, for the fill-in and the offeror accepts a contract with $0 as the fill-in, then the offeror has zero post-award entitlement to a pro-rata fixed amount for in-directs. Note that acceptance has different meanings for a quote versus a firm offer and the offeror should be aware of this difference when proposing and negotiating with regard to the fill-in. COs who insist on $0 if in-directs are not otherwise included in Hourly rate and/Materials are taking a tough, perhaps unreasonable, stance in negotiations. But they are within their rights. Unreasonable may be where the offeror’s usual practice is to not have indirect costs in its proposed price for hourly rates and/or materials as supported by the offeror’s usual accounting practices.
  16. You might have taken my comment wrongly but if not I will be more forthcoming. Your challenge to Frog as his example as being absurd is not in my opinion and quick research as far fetched a you exclaim it to be. No doubt you did not take time to explore the references I provided but in my casual search of SAM.gov this morning I randomly looked at 3 of over 2,000 hits I got. Point blank not one was in alignment with the essentials of the posts you have made about TM contracts in this thread. On my part I continue to try but truthfully in using this specific thread as an example the correct principles are just what people make them to be. By example in specific discussion I have heard nothing, with references, whether a contractor rather the CO is to "fill in" the information in 52.212-4 Alt 1. It is just what people (me included) make it to be because in truth the FAR is both silent and confusing on the topic leaving it to ones imagination. Confusing! Confusion that leads to the absurd. Absurdity not because of ignorant minds but of closed minds that would rather challenge and then not accept true examples because, well by their own profession they do not have to!
  17. I appreciated the @General.Zhukov post as I was headed down the same road when it appeared. Yet I am not in 100% agreement on the risk adverse comment. Unfortunately I am more inclined to echo a much stated opinion in Forum that is something to the effect about a acquisition workforce that has lost its direction which is to an extent agreement with @Corduroy Frog. As to the example presented by @Corduroy Frogbeing absurd I am not so sure. Acknowledging that I discarded a post that was similar to @General.Zhukov I took some time this morning - like an hour - and plowed through some internet searches and SAM.gov. At this point in this topic I just shake my head, in part even at me. Some may and some may not but I do invite you to glance at the following and use a "Find" tool to drill down to the see what caught my eye. https://www.transit.dot.gov/funding/procurement/third-party-procurement/time-materials-contracts This is a website to give advice to Federal Transit third party entities that would contract for needs with Transit's money. I understand referenced updates are dated but I believe this is the most current. No tool use needed, it is just an interesting read. The following are examples of three different entities TM solicitations - https://sam.gov/opp/c2278d7a7d834a8db8e67ae2fe6164eb/view DOD. Pull up the solicitation Find 52.212-4 (absent Alt 1) and its "addendum". https://sam.gov/opp/ac1f624c56adff21b270582d0fa65e14/view Homeland Security. Pull up the .pdf for the work statement and payment schedule and Find travel. Also look at the reference to 52.212-4. https://sam.gov/opp/8bd770ec632db2d54265c6fe720a2bc3/view Department of Interior. Find 52.212-4 and its addendum, and indirect. PS the laser light show on the dam is actually kind of cool. Confusion and absurdity exists!
  18. Poor word choice. But I will say "Analysis of data other than certified cost or pricing data (as defined at 2.101) provided by the offeror." I think I have learned new techniques and your "Why should you care what is included in the rates?" seems to point back at you and ji. I mean after all why should you care ( critically argue) if a contractor has G&A on travel in their Material payment item of the contract especially when adequate price competition has occurred. The mixed metaphors of this thread are over the top by us all in my view as to Commercial Item TM contract. If a CO is questioning G&A on travel in a Commercial Item TM contract as ji implies, and Frog seems to agree, the CO should excommunicated. And maybe ji, you and me too for extending this thread!
  19. It is exemplified as a possible indirect if it is not allowed to be in the material cost. If the wording is definitive then under your premise only "material handling costs" and "subcontract administration" are the only indirects allowed. The fill in is by its very nature and wording a fill in that the CO is to complete. Note especially the word "provided" along with the other emphasized wording. "Insert a fixed amount for the indirect costs and payment schedule. Insert "$0" if no fixed price reimbursement for indirect costs will be provided. (If this is an indefinite delivery contract, the Contracting Officer may insert "Each order must list separately the fixed amount for the indirect costs and payment schedule or, if no reimbursement for indirect costs, insert ‘None’)." I will give you that it can be negotiated once offers are received Yes it is because you and others have stated FAR part 31 is not applicable. And as to your insistence that material and material handling is not applicable in the context of travel and commercial item acquisition I refer you specifically to the Alt 1 which includes this - "Definitions. (1) The clause at FAR 52.202-1, Definitions, is incorporated herein by reference. As used in this clause-"
  20. My belief is aligned with the negotiation aspect buffered by the sad fact a fill-in derived by the Government that fails to recognize travel G&A, or the Government otherwise does not accept that travel is a "material" and therefore can have "material handling costs' attributed to the material price in a TM commercial item contract does not understand the reality of business. And with this opportunity of continued discussion I want to address this - By example - TM commercial item contract for reforestation services. Contractor proposes labor rate. Government questions rate and contractor provides breakdown and notes in the break down that there is factor in the rate for employee recognition that is a beer party after completing all projects government or otherwise. An expense captured in the contractor's usual accounting procedures. If FAR Part 31 does not apply what would be the governments negotiation position regarding the beer? Sorry no beer cost in the rate? If so the contractor just simply removes the word "beer" and the government is happy? I am honestly on Frog's side and the stereotypical CO statement that negatively addresses a true cost of a contractor to a contract as it is this way or the highway has their head in the clouds and in part is at odds with conducting the governments business with integrity and fairness. But then that is just me!
  21. I found this matrix interesting from the viewpoint that at this point only 6 executive agencies are shown. I can imagine what it might look like when all are shown side by side. https://www.crowell.com/files/Executive-Order-14042-Agency-Class-Deviation-Guidance-A-Side-by-Side-Comparison.pdf
  22. What I believe that is being missed in this conversation is that Material is defined as travel and as such travel as material can include a material handling cost or in other words travel handling costs that are Indirect Costs not included in the labor hours costs. As such when computing the the Indirect Costs fixed price material (travel) handling costs would not be used in determining the Indirect Cost fixed price. Further if the CO felt that rates for labor and materials (inclusive of travel) adequately accounted for all indirects the CO would then enter "$0" in the Indirect Cost paragraph of the Alt 1. This is akin to the fact that fixed hourly rates of a TM include indirects and as such the indirect included in the labor hour fixed hourly rates would not be a basis for computing the Indirect Costs fixed price of a commercial item contract. The choices are - Indirects in labor and material therefore no Indirect Cost or a Indirect Cost that picks up any of the indirects that are reasonable, allocable and allowable and that were not included in labor or material rates such as material handling (travel indirect) if not included in the material (travel) rate already.
  23. Let me explore. T&M Contract - FAR 16.601 Material means other direct costs such as travel and applicable indirect costs. FAR 16.601(a) definitions. Material Handling costs may be included as part of material costs. FAR 16.601(c)(3). And if the solicitation/contract provides that material handling costs can be included then this applies - "Material handling costs may include all appropriate indirect costs allocated to direct materials in accordance with the contractor's usual accounting procedures consistent with part 31." Again FAR 16.601(c)(3). Now I may be completely off base but it would seem in a full read that reference to FAR "part 31" invokes that its principles may apply and I read no exclusion with regard to a commercial item acquisition.
  24. If you read your Google research completely I think you will find that DAP puts the responsibility on the buyer to pay the customs duty. I think internet research will support that it is not commonly used/understood language. Maybe, maybe not. I will say this, did you accept their quote without exception by simply sending them a PO?
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