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C Culham

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Everything posted by C Culham

  1. C Culham

    POP Extension

    Here is are a few more thoughts to go along with those already provided noting that these thoughts are general as the specific details of a TO and contract would generate a more specific response. The Changes clause for a cost reimbursement contract (FAR 52.243-2) does not allow for a unilateral time extension. As such an extension of time to a CPFF contract would therefore have to be done via a bilateral modification/supplemental agreement unless as noted by previous comments in this thread it is being requested under another term/condition of the contract. Noting this I do wonder if the COR is requesting the extension via communication with the contractor or in other words is the contractor aware of the need for the extension and asked for it? On use of annual appropriations I recommend a read of the GAO Principles of Federal Appropriation Law aka “The GAO Redbook” at Volume 1, Chapter 5, Section A.2.a. regarding annual appropriations. You can find it here - http://www.wifcon.com/bonafidecontents.htm As you read note there is a difference between obligation of the annual appropriation and liquidation of the obligated contract funds to adjust contract value and make payments. I can not tell if you are DOD connected or not but another read about annual appropriations that may help your understanding can be found here – DoD 7000.14-R Financial Management Regulation Volume 3, CHAPTER 13 RECEIPT AND DISTRIBUTION OF BUDGETARY RESOURCES DEPARTMENTAL-LEVEL at paragraph 130202. https://comptroller.defense.gov/Portals/45/documents/fmr/Volume_03.pdf Overall a no cost extension is plausible, possible even under both scenarios you have provided, but the information you are providing in support of your questions have many holes that need to be filled for a specific answer to each.
  2. C Culham

    U.S. Code Reference for Paying for Services

    Another reference that may be worth a read is Volume 1 Chapter 5 Section C, of the Principles of Federal Appropriations Law aka "The Red Book". It can be found here on WIFCON at - http://www.wifcon.com/bonafidecontents.htm
  3. C Culham

    FAR 52.204-21

    Sorry I can not. Argument would be the prescription in the FAR for use of the clause and its applicability to the contract or not. Remedy would be a supplemental agreement to the contract removing or retaining the clause as applicable. The latter based on the ideal that both parties agreed to the contract and therefore the CO and contractor agreed to its inclusion. If there is disagreement as to its inclusion now then seek the remedy based on the argument.
  4. C Culham

    13.501(a) -- Authority and Usage

    My view is that the authority to state is FAR subpart 13.500 regardless of the reason. Noting that your sole source justification would also state that your use of SAP for the need is in accordance with 41 USC 1901 (it’s a commercial item and does not exceed $7 million) or the authority of 41 USC 1903 for a “special emergency” wherein you are using the higher threshold ($13.5 million) allowed. I will say that you should consult your agency supplement to the FAR as well as any agency policy as one or both may provide you with a more explicit way that the justification and authorities should be stated.
  5. @Don Mansfield @joel hoffman Sorry for the confusion my comment about being a small business was rhetorical to provide an example. While I am a small business I have never had a prime contract with a Fed agency but have been a sub to a Fed prime. Back to the issue and attempt to answer questions from just a viewer. First I haven't missed a rodeo, I am volunteering at the best one in North America right now, always in the second full week of September, The Pendleton Round-Up. You all should come once to this week long community event that is now in its 108th year. To RFA and the overall concern I for one can not think of a contractual requirement that does not carry administrative burden. This extended thread is a perfect example. In a hope to be concise DoD's best practice is a duplication of what is already required of a large business contractor with regard to submission and compliance with a subcontracting plan. My view is that DoD has failed at doing good administration of this element of a contract requirement (sub plan administration), when applicable, and so they invented the ideal of putting a performance plan into contracts as well. Yahoo! But my questions are then has small business participation improved, and if not how many contractors have been defaulted at the worst or at the least had some type of sanction placed on them for failing to meet the plan? Or even had there performance evaluation reflect same? Overall what it accomplishing that is not already in the contract. As to small business and the requirement for a performance plan should they receive contract award I ask what has been accomplished as the prime is already in the hands of a small business. Yahoo! Goals accomplished at the get go. Now I am going to go "Let'er Buck!"
  6. Joel - Exactly why the DoD want to place a performance plan in a contract is rubbish. I am a small business, if 52.219-9 is in a solicitation that I am responding to its very language says the clause is not applicable to my company but the DoD wants to evaluate my use of small businesses, okay that is fine. But then wants to go one step further and incorporate my performance plan in my contract even when the subcontracting plan is not required? I say go back to the original clauses of the FAR make CO's stand up and enforce the whole of them ( have you read FAR 52.219-16) and utilize what is given to CO's to enforce plans for large businesses. The "best practice" of DoD on this issue is administrative foolishness!
  7. Evaluating a plan makes sense. Making a performance plan a performance part of a contract is redundant due to the fact that a subcontracting plan is already required. Requirement of the performance plan is not lawful under the DFARS as the DFARS only requires submission of a performance plan to determine the acceptability of the subcontracting plan that is required by a clause to be provided. It is a evaluation technique demanded by the DFARS not a contractual requirement demanded by the DFARS. A CO demanding that the performance plan be a part of contract performance is just plain crazy. Makes me wonder what I would be in contractual violation of if I did not accomplish my subcontracting goals, the performance plan or the subcontracting plan. Sheesh!
  8. I would like to suggest routes that might be less frustrating than contacting the SBA. You would be in the SBA sphere if you instead contacted your local Small Business Development Center (SBDC). Their expertise would be limited however by the counselors they might have that are familiar with Federal government contracting. A better organization to reach out to would be your local Procurement Technical Assistance Center (PTAC) as their mission is to assist firms in conducting business with Federal, state and in some cases local governments. Website searches of both SBDC's and PTAC's, here using the wording Association of Procurement Technical Assistance Centers, will get you to their particular websites to do additional research on their resources and locations. Important to use of these resources is that you will probably feel more comfortable on being very specific about your efforts, the agency(s) you are involved with, and the specific solicitations which as noted would be a great help in giving you more specific and direct response to your concerns.
  9. Don - Yes. As provided in other posts through references noted ALL GSA schedule contracts are subject to TAA. Again I note here TAA provides by my read no reference to "end product" just product. I have concluded that FAR drafters in creating the term "end product" have convoluted TAA applicability.
  10. Thanks Vern. Its been a long time since I dug into this issue but in re-reading my post I noted this GSA FAR Supplement clause It has a paragraph listing what clauses are not applicable to order level materials. TAA is not listed. Further clarification that Yes -TAA does apply to replacement parts supplied under maintenance contract.
  11. Actually if you were to look at a solicitation I do not believe they follow UCF. It is a moot point however as everything one can find provides that TAA applies to order level materials. Here is one more reference that you all might want to read. PS - It is dated in 2018. https://www.gsa.gov/cdnstatic/OLM Q%26A - 672018.pdf Also this from the current GSA solicitation for Schedule 03FAC does not look like UCF to me - TABLE OF CONTENTS Please click on an item in Table of Contents below to go to the respective location within this document. Part I - GOODS & SERVICES........................................................................................ 1 SIN Group -- Energy Management, Water Conservation and Support Services........................................ 7 SIN Group -- Facilities Maintenance and Managment Solutions for Real Property................................14 Part II - CONTRACT TERMS AND CONDITIONS....................................................27 52.204-18 -- COMMERCIAL AND GOVERNMENT ENTITY CODE MAINTENANCE (JUL 2016)......27 52.204-21 -- BASIC SAFEGUARDING OF COVERED CONTRACTOR INFORMATION SYSTEMS (JUN 2016)................................................................................................................................................ 27 52.209-1 -- QUALIFICATION REQUIREMENTS (FEB 1995)................................................................29 52.212-5 -- CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS - COMMERCIAL ITEMS (NOV 2017) (ALTERNATE II - NOV 2017).............. 30 52.216-18 -- ORDERING (OCT 1995) (DEVIATION II - FEB 2007)......................................................35 52.223-11 -- OZONE-DEPLETING SUBSTANCES AND HIGH GLOBAL WARMING POTENTIAL HYDROFLUOROCARBONS (JUN 2016)................................................................................................ 35 52.223-20 -- AEROSOLS (JUN 2016).......................................................................................................37 52.223-3 -- HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA (JAN 1997)..........................................................................................................................................................37 52.223-3 -- HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA (JAN 1997) (ALTERNATE I - JUL 1995)..................................................................................................................... 38 52.225-19 -- CONTRACTOR PERSONNEL IN A DESIGNATED OPERATIONAL AREA OR SUPPORTING A DIPLOMATIC OR CONSULAR MISSION OUTSIDE THE UNITED STATES (MAR 2008)..........................................................................................................................................................40 52.232-40 -- PROVIDING ACCELERATED PAYMENTS TO SMALL BUSINESS SUBCONTRACTORS (DEC 2013)............................................................................................................................................... 45 52.252-2 -- CLAUSES INCORPORATED BY REFERENCE (FEB 1998)............................................... 46 552.211-78 -- COMMERCIAL DELIVERY SCHEDULE (MULTIPLE AWARD SCHEDULE) (FEB 1996)..........................................................................................................................................................49 552.211-8 -- TIME OF DELIVERY (SEP 1999)....................................................................................... 50 552.212-4 -- CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (JAN 2017) (DEVIATION - FEB 2007) (DEVIATION - FEB 2018)............................................................................ 51 552.212-4 -- CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (JAN 2017) (DEVIATION - FEB 2018) (ALTERNATE I - JAN 2017) (DEVIATION - FEB 2007)............................. 58 552.212-71 -- CONTRACT TERMS AND CONDITIONS APPLICABLE TO GSA ACQUISITION OF COMMERCIAL ITEMS (JUN 2016).........................................................................................................71 552.212-72 -- CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS APPLICABLE TO GSA ACQUISITION OF COMMERCIAL ITEMS (JUN 2015)..........................................................................................................................................................72 552.215-73 -- NOTICE (JUL 2016).......................................................................................................... 72 552.216-70 -- ECONOMIC PRICE ADJUSTMENT - FSS MULTIPLE AWARD SCHEDULE CONTRACTS (SEP 1999) (ALTERNATE I - SEP 1999).......................................................................... 73 552.216-70 -- ECONOMIC PRICE ADJUSTMENT - FSS MULTIPLE AWARD SCHEDULE CONTRACTS (SEP 1999) (ALTERNATE I - SEP 1999) (DEVIATION II - JUL 2016)........................... 74 552.216-72 -- PLACEMENT OF ORDERS (JAN 2016) (ALTERNATE I -- AUG 2010)..........................75 552.216-74 -- TASK-ORDER AND DELIVERY-ORDER OMBUDSMAN (JAN 2017)............................76 552.228-5 -- GOVERNMENT AS ADDITIONAL INSURED (JAN 2016).................................................76 552.238-71 -- SUBMISSION AND DISTRIBUTION OF AUTHORIZED FSS SCHEDULE PRICELISTS (SEP 1999) (DEVIATION -- JUN 2016)................................................................................................... 76 552.238-78 -- SCOPE OF CONTRACT (ELIGIBLE ORDERING ACTIVITIES) (JUL 2016)................. 77 552.238-82 -- SPECIAL ORDERING PROCEDURES FOR THE ACQUISITION OF ORDER-LEVEL MATERIALS (JAN 2018)...........................................................................................................................79 C-FSS-370 -- CONTRACTOR TASKS / SPECIAL REQUIREMENTS (NOV 2003).................................80 C-FSS-411 -- FIRE OR CASUALTY HAZARDS, OR SAFETY OR HEALTH REQUIREMENTS (OCT 6FEC-E6-030292-B Refresh: 34 1992)..........................................................................................................................................................81 C-FSS-425 -- WORKMANSHIP (OCT 1988)............................................................................................82 C-FSS-427 -- ANSI STANDARDS (JUL 1991)..........................................................................................82 C-FSS-439 -- ENVIRONMENTAL PROTECTION AGENCY REGISTRATION REQUIREMENT (APR 1996)..........................................................................................................................................................83 CI-FSS-056 -- FEDERAL ACQUISITION REGULATION (FAR) PART 51 DEVIATION AUTHORITY (FEDERAL SUPPLY SCHEDULES) (JAN 2010).....................................................................................83 CI-FSS-151-N -- ADDITIONAL EVALUATION FACTORS FOR AWARD TO NEW OFFERORS (OCT 2015)..........................................................................................................................................................84 CI-FSS-151-N -- ADDITIONAL EVALUATION FACTORS FOR AWARD TO NEW OFFERORS (OCT 2015) (ALTERNATE I - JUL 2016)...........................................................................................................85 CI-FSS-151-S -- ADDITIONAL EVALUATION FACTORS FOR AWARD TO SUCCESSFUL FSS PROGRAM CONTRACTORS (OCT 2015)............................................................................................... 87 CI-FSS-151-S -- ADDITIONAL EVALUATION FACTORS FOR AWARD TO SUCCESSFUL FSS PROGRAM CONTRACTORS (OCT 2015) (ALTERNATE I - JUL 2016)................................................ 88 F-FSS-202-F -- DELIVERY PRICES (APR 1984).................................................................................... 90 G-FSS-900-C -- CONTACT FOR CONTRACT ADMINISTRATION (JUL 2003)....................................90 G-FSS-906 -- VENDOR MANAGED INVENTORY (VMI) PROGRAM (MAS) (JAN 1999).................... 91 G-FSS-907 -- ORDER ACKNOWLEDGEMENT (APR 1984).................................................................. 92 G-FSS-910 -- DELIVERIES BEYOND THE CONTRACTUAL PERIOD-PLACING OF ORDERS (OCT 1988)..........................................................................................................................................................92 I-FSS-103 -- SCOPE OF CONTRACT WORLDWIDE (JUL 2002)..........................................................92 I-FSS-106 -- GUARANTEED MINIMUM (JUL 2003)............................................................................. 93 I-FSS-108 -- CLAUSES FOR OVERSEAS COVERAGE (MAY 2000)...................................................... 93 I-FSS-109 -- ENGLISH LANGUAGE AND U.S. DOLLAR REQUIREMENTS (MAR 1998)................... 93 I-FSS-140-B -- URGENT REQUIREMENTS (JAN 1994)........................................................................ 94 I-FSS-163 -- OPTION TO EXTEND THE TERM OF THE CONTRACT (EVERGREEN) (APR 2000)...94 I-FSS-40 -- CONTRACTOR TEAM ARRANGEMENTS (JUL 2003)........................................................94 I-FSS-50 -- PERFORMANCE REPORTING REQUIREMENTS (FEB 1995)..........................................95 I-FSS-597 -- GSA ADVANTAGE! (OCT 2014).........................................................................................95 I-FSS-597 -- GSA ADVANTAGE! (OCT 2014) (DEVIATION I -- AUG 2011)........................................ 95 I-FSS-599 -- ELECTRONIC COMMERCE - FACNET (FEB 2018)........................................................ 95 I-FSS-60 -- PERFORMANCE INCENTIVES (APR 2000)........................................................................ 97 I-FSS-600 -- CONTRACT PRICE LISTS (OCT 2016).............................................................................. 97 I-FSS-624 -- OFFICE COPIER UTILIZATION GUIDELINES (MAY 2000).........................................101 I-FSS-626 -- SERVICE POINTS (AUG 1986).........................................................................................101 I-FSS-639 -- CONTRACT SALES CRITERIA (MAR 2002).................................................................... 101 I-FSS-644 -- DEALERS AND SUPPLIERS (OCT 1988)........................................................................ 102 I-FSS-646 -- BLANKET PURCHASE AGREEMENTS (MAY 2000).......................................................102 I-FSS-680 -- DISSEMINATION OF INFORMATION BY CONTRACTOR (APR 1984)........................ 102 I-FSS-965 -- INTERPRETATION OF CONTRACT REQUIREMENTS (APR 1984)..............................102 I-FSS-969 -- ECONOMIC PRICE ADJUSTMENT â## FSS MULTIPLE AWARD SCHEDULE (OCT 2014) (ALTERNATE II - JUL 2016)........................................................................................................103 I-FSS-969 -- ECONOMIC PRICE ADJUSTMENT-FSS MULTIPLE AWARD SCHEDULE (OCT 2014)........................................................................................................................................................104 Part III - VENDOR INSTRUCTIONS.........................................................................107 52.204-16 -- COMMERCIAL AND GOVERNMENT ENTITY CODE REPORTING (JUL 2016)......... 107 52.204-17 -- OWNERSHIP OR CONTROL OF OFFEROR (JUL 2016)............................................... 108 52.209-5 -- CERTIFICATION REGARDING RESPONSIBILITY MATTERS (OCT 2015)....................108 52.209-7 -- INFORMATION REGARDING RESPONSIBILITY MATTERS (JUL 2013)....................... 110 52.215-20 -- REQUIREMENTS FOR CERTIFIED COST OR PRICING DATA AND DATA OTHER THAN CERTIFIED COST OR PRICING DATA (OCT 2010) (ALTERNATE IV - OCT 2010).............. 111 52.215-6 -- PLACE OF PERFORMANCE (OCT 1997)......................................................................... 112 52.216-1 -- TYPE OF CONTRACT (APR 1984)..................................................................................... 112 52.222-52 -- EXEMPTION FROM APPLICATION OF THE SERVICE CONTRACT LABOR STANDARDS TO CONTRACTS FOR CERTAIN SERVICES--CERTIFICATION (MAY 2014)............ 112 52.225-18 -- PLACE OF MANUFACTURE (MAR 2015).......................................................................113 52.225-6 -- TRADE AGREEMENTS CERTIFICATE (MAY 2014).........................................................114 52.233-2 -- SERVICE OF PROTEST (SEP 2006)...................................................................................115
  12. My read of the current GSA solicitation for the parent contract on the street provides for "Ancillary Supplies and/or Services" as line items (CLINS if you will)in several places. Reference -https://www.fbo.gov/index?tab=documents&tabmode=form&subtab=core&tabid=d0e20d7c37cbe001ef6e9cd7b58e5aef I take yours and Don's discussion to mean that the GSA Order that the contractor holds only has CLINS for services on it therefore TAA does not apply. Yet the GSA Schedule Contract is subject to TAA therefore anything ordered ( material) under the contract must be compliant with TAA whether you have it on a dang BPA, the call under the BPA or even an Order under the contract or not. I completely understand how foolish my view may sound but think of it this way if all of a sudden you had to replace all the material everywhere, not just a piece here or there and you wanted to get it all from China what would your view then be, skate it under the radar too? Yep hard to find but have you looked at the CROSS search engine found here https://rulings.cbp.gov/home Interesting reading when you search on something like 19 U.S.C. §§ 2511 that might just suggest the materials you are providing could be an issue in all sorts of ways.
  13. I agree and therefore my use of "likely" in my most recent post but only U.S. Customs will know for sure. With regard to Don's most recent post the other issue looming that helps answer any question as to applicability of TAA is whether the "work order" is issued under the authority of the GSA Schedule contract.
  14. I have not handled a contract as a CO to which TAA is applicable for sometime but with regard to the OP’s scenario and some of the thoughts expressed throughout this thread I want to offer a more concise view than my original post. Just views with hopes it helps the OP TAA is a standalone act that allows use of other than American made products. As such TAA is enforced using its language solely. FAR part 25 as well as 52.225-5 defines “End product” as meaning those articles, materials, and supplies to be acquired for public use. FAR subpart 25.4 nor FAR 52.225-5 and 225-6 do not use the word “component”. Noted here TAA as a whole by my read uses “product” but not component in its language. The OP states – Contractor provides inspection and repair of equipment on multiple DoD contracts under a GSA Schedule. Response - GSA FSS Contracts are subject to TAA and not BAA. Example see FSS 03FAC BAA clauses are absent TAA clauses are present. 52.225-5 Trade Agreements is incorporated into the schedule. Response - OP’s has not provided its specific schedule but as ALL GSA Schedule contracts include TAA this statement makes sense. Contractor did not supply the equipment being inspected. Response - As provided this fact is not relevant, what is relevant is what is the contractor providing in the repair of equipment. The Contract Line Items are broad in nature, requesting inspection of equipment. Response -This statement is a little confusing as the OP is stating that the contractor also provides repair, see next bullet. The Government entity issues a separate work order for needed repairs as a result of the inspection. (“work order” is a generous term here, as most requests come via email) Response – Here the question is whether the work order is issued under the authority of the GSA Schedule contract. If it is then TAA applies. If it not then it is “open market” and the specifics of the terms and conditions in the work order would need to be known. Replacement parts may be small in nature (i.e., batteries) or multiple in nature (several components). Response – Use of the word “component” by the OP confuses the matter. The contractor is supplying parts to repair the equipment simple as that and as such the parts could likely fit being one of 3 things covered by TAA – an article, a material and a supply. Are replacement parts supplied to repair equipment required to comply with the TAA? Response – If the work orders for the repair is issued under the authority of the GSA Schedule then the work order is subject to TAA. As such all the parts could likely need to be evaluated with regard to TAA. If the work orders for the repairs is an “open market” order then the order would stipulate whether TAA is applicable or not. With regard to “likely” application of TAA it is the contractors responsibility to make the determination. For making this determination specific to the parts being provided the contractor should seek appropriate legal counsel or assistance from U.S. Customs and Border Protection (see “Trade” on this website - https://www.cbp.gov/about ) PS – I have edited my initial post in this thread to refer to this post
  15. A suggested read for all.................... https://www.crowell.com/files/Where-Are-Your-Products-From-The-Importance-and-Challenges-of-Managing-TAA-Compliance-for-GSA-Schedule-Holders.pdf
  16. C Culham

    Multi-year Service Contracts?

    @SRose - I understand the following do not fall under the FAR part 17 but under 36 CFR Part 51 but offering as they may be helpful if you have not already looked at. National Park Service - Concessions contracts. Especially "headquarters contracts" are for periods of 10 years
  17. C Culham

    Solicitation questions and answers

    So is provision 52.211-6 in the solicitation as the FAR provides that it should be? If so I would suggest that Neil Roberts has the right idea. Per the provision your effort would be at time you are evaluating for award. Much comes into play regarding salient characteristics that is best illustrated by reading some pertinent GAO cases found here -http://www.wifcon.com/pd11_104.htm . I think pre-approval, or in other words telling an offeror that their equal is fine in meeting salient characteristics or not fine prior to evaluation is a slippery slope. All kinds of scenarios come to mind depending on the evaluation process you plan to use whether it be price only to something of increased complexity as it relates to the determining an equal being acceptable. The above said in your current scenario I have a problem that you might have an un-level playing field in that you are giving one contractor an advantage of pre-approval (that strongly suggests acceptance of the equal) while not providing that same accommodation to others (whether they ask or not). Noting this and having seen pre-approval used in a two-step bidding one might consider a amendment to your solicitation stating that all offerors can submit “or equals” prior to solicitation close and that the government will evaluate them on a an individual basis and provide feedback to the specific offeror as to acceptability. You might even state that such submissions must be provided within XX days of close to allow adequate time. You might even state that the governments reserves right of final acceptance of the equal at contract award. Then at close of solicitation and during evaluation you will find out if the contractor provides the equal you saw, the equal you have never seen or the brand name and go from there. What do others think?
  18. So how about this thought from a little different angle to support your belief. Do you know of any contractual authority, other than what others might want to make up, to exceed the maximum (scope of contract) of an IDIQ contract? Concluding that 52.217-8 does allow such a increase in scope since it became a stated contract clause of the FAR is a slippery slope that could very well lead to the risk of a protest on the basis of scope, period, or maximum value of the contract.
  19. C Culham

    Material Cost Adjustment

    A read or re-read of FAR 17.1 and your agency supplement to FAR for 17.1 might be useful and help with the proposals from others about a shorter contract period.
  20. C Culham

    GSA Schedule Add New Labor Category

    Yes but rather than providing you with references I would highly recommend that you contact the CO for the contract for a specific response. Consulting the GSA website may also be valuable guidance with regard to the specific schedule that your contract is awarded under.
  21. C Culham

    new category of software rights

    Fara Fasat - I get your concern and you probably already know that it is the agency that you are dealing with that will provide what they mean by "unlimited government purpose rights" since they have titled a need with mixed wording where the wording defines two different kinds of rights. Yes a provision may exist that allows the government to turn to a special license (right) that does not meet the standard but like you by my read they have used mixed wording to create a right that would appear already fits unlimited rights. If terminology as used is an indication that the standard rights of unlimited and government purpose are standard rights that may not satisfy the Government's needs or that the Government may be willing to accept lesser rights in return for other consideration what does the Government want to negotiate with regard to restricted rights that you have listed regardless of what they call them? That is the bigger question but I am guessing you all ready know that Regardless count me on the weep of despair side. An “unlimited rights” license means that the Government can use, modify, reproduce, release or disclose technical data or computer software in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so. A “Government Purpose rights” license means the rights to use, modify, reproduce, release or disclose the technical data or computer software within the Government without restriction and outside the Government for a Government purpose – “any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations or sales or transfers by the United States Government to foreign governments or international organizations. Government purposes include competitive procurement, but do not include use for commercial purposes.” Reference - https://disa.mil/About/Legal-and-Regulatory/DataRights-IP/DataRights
  22. @Retreadfed Have you seen this? https://www.aoc.gov/sites/default/files/documents/basic-page/order_34-1_contracting_manual_2016-06-10.pdf
  23. C Culham

    new category of software rights

    Step one ask the agency to provide a definition of the term.
  24. C Culham

    Business Development

    Corduroy - h2h could do this more justice than I but I offer that you and who ever you are feuding with are looking at your dilemma from a single view, that of the FAR. Pursuant to the FAR unallowable means any cost that is determined unallowable no matter where it might be captured in the contractors accounting system. To this point I suggest a close read of FAR 31.201-6 as you consider all of the responses you have received in this thread. Consider this as well. I as a individual capture all my costs in my accounting system (checkbook, bank statement(s) or something more sophisticated). All of the costs are used to represent my financial health (checkbook/bank statement balance) or something more sophisticated such as a profit/loss statement and balance sheet. All are costs (expenses) to me. Now I have to file my taxes. When I prepare my taxes I have to determine which of those costs are deductible in computing my taxes. Some are some are not. Now think of this with regard to a contractor that does Federal government business. I have costs. If I am really, really small I may just capture them in a checkbook or I may categorized them in many different places in more sophisticated account systems (say I use QuickBooks) yet no matter where I might categorized them for the sake of my business accounting system the Federal government may determine some are unallowable and be "excluded from any billing, claim, or proposal applicable to a Government contract." As to where a contractor might normally capture a cost such as "business development"? It depends and I would offer that there is no normal place its up to the individual contractor where they might capture such costs. For many contractors, but not all, they will depend on "Generally Accepted Accounting Principles" (GAAP) to make the determination of where the following costs that you identified would be accounted for. GAAP in fact might suggest some go in "other expenses" and others in "prepaid sales" and so on. But again a contractor can and will put the above costs anywhere and the Government in determining what costs to have to excluded because they are not allowable has comb through data provided in proposal submission, billings and/or claims inclusive of certified cost or pricing data if it is required to be submitted. Bottom line I would offer that there is no "common" place a business will put business development costs as the business can place them anywhere they want.
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