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C Culham

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  1. Vern - I get hung up here....FAR 19.104-3(d)(2) A small business that is unable to comply with the limitations on subcontracting at 52.219-14 may be considered nonresponsible. When read with this - 13 CFR 125.6(h) - it seems SBA has to be involved. I guess it all boils down to this - what prevents a post award determination of responsibility? Can't a CO who awards a contract thinking a contractor is responsible and then gains further facts that leads to determination that they are not, change their mind and go the route to in the end T4D a contractor? If not why not?
  2. Pepe - Admittedly I have not enforced the concept but it seems to make sense as I thought about all the concerns expressed and personal experiences I had many years back in dealing with the limitation issue (SBA for 15 years). SBA needs to be brought in as it is their civil penalty provision of the CFR that could/should be applied for failure to meet the limitation. Specific to your "Good Luck" statement it was after all SBA who developed their regulations so what is the problem with putting it on the their plate? It sure would be interesting and fun to give it a whirl one time to see what transpires. PS - As to timely remember this - FAR 19.602-49(c) - discusses timely response, one would think it would apply in a pre/post scenario?
  3. Vern – My thought is to hold SBA responsible for what they are charged to do. First is it not clear by the language of 13 CFR 125.6 that not meeting the limitation is a responsibility matter? I clearly understand that for breach of other terms and conditions that a CO has latitude but in the case of the limitation clause it seems clear they are either responsible or not? The route is plausible when you couple a potential default of a SB with the requirements of FAR 49-402-3(e)(4) which states – “If the contractor is a small business firm, the contracting officer shall immediately provide a copy of any cure notice or show cause notice to the contracting office’s small business specialist and the Small Business Administration Regional Office nearest the contractor. The contracting officer should, whenever practicable, consult with the small business specialist before proceeding with a default termination (see also 49.402-4).” So with more detail…cure notice/show cause to the contractor for failure to meet the limitation, stating they could be considered not responsible to complete the contract, copy to SBA with a request for review with regard to a Certificate. Ball is in SBA’s court. SBA does not provide the Certificate, T4D and request to SBA to apply penalties.
  4. Wait a minute I believe that both the CO and SBA have "enforcement authority and powers". “13 CFR 125.6(e)(2) Compliance will be considered an element of responsibility and not a component of size eligibility.” FAR 9.104-3 read in full a small business that cannot “comply” with clause 52.219-14 maybe considered non-responsible. If a CO has reason to determine a small business non-responsible prior to or post award the CO would enlist the process of FAR 19.6 Certificate of Competency. Further 13 CFR 125.6(h) which states – “(h)Penalties. Whoever violates the requirements set forth in paragraph (a) of this section shall be subject to the penalties prescribed in 15 U.S.C. 645(d), except that the fine shall be treated as the greater of $500,000 or the dollar amount spent, in excess of permitted levels, by the entity on subcontractors. A party's failure to comply with the spirit and intent of a subcontract with a similarly situated entity may be considered a basis for debarment on the grounds, including but not limited to, that the parties have violated the terms of a Government contract or subcontract pursuant to FAR 9.406-2(b)(1)(i) (48 CFR 9.406-2(b)(1)(i)).” So if a small business is not complying with FAR 52.219-14 why wouldn’t a CO consider them not responsible to complete the contract, go to SBA for the Certificate, and if none is provided default terminate the small business and request further action by the SBA under the penalties paragraph of 13 CFR 125.6?
  5. Rejecting an Award

    This might help as well....., http://www.dcma.mil/DPAS/
  6. Crap shoot...but I tried my version of an internet search and found the below....sorry no link but what I found it referenced to sounds a lot like what you are looking for. See Dubinsky, 43 Fed. Cl. at 254-60
  7. FAR Case 2016-005

    I am caught between “old school” and the new world. Adding clarity to the FAR makes sense. Yep there will be some that do not or will not want to read its clarity as it seems that happens every day by what is posted in WIFCON every day. Over simplification probably but all the same maybe the wording ought to be simply “If you can find a pending procurement on the internet (and I am not talking FBO posts) you can discuss it to the length of the details found on the internet”. After all Google sure the heck knows what I am thinking about buying. A little more ammo to enlighten the acquisition workforce makes sense to me!
  8. SIg Sauer

    In reading the solicitation it states that the minimum is (at page 6 of the solicitation) – “ MINIMUM QUANTITY WEAPONS: 1 Weapon System Component Package (as described in Section C.3.1.1) AMMUNITION: Included in the Weapon System Component Package” Interesting to me the maximum is stated at a dollar amount while the minimum is stated as an Unit – “MAXIMUM Program Value - $580.217 Million”. The cost control is that each weapons system component package is at a set unit price . The contract would be funded I would hope at the minimum guarantee noted above and is further support by this language in the Executive summary at page 2 of the solicitation “Each contract that is awarded will be issued a delivery order in the base year to meet the minimum guarantee for the contract. The minimum contract guarantee will consist of the weapon system component package (CLIN 0001), as described in the statement of work.” Subsequent orders for “weapon system component package” after the one issued to achieve the minimum would then have to be funded. Conclusion is the FFP is the unit price per item or in other words the weapon system component package. As an aside it appears from research that instead of "The Government contemplates award of up to 3 Firm Fixed Price Indefinite Delivery/Indefinite Quantity contract(s) resulting from this solicitation." there was actually only one award and the award is causing rumblings in the industry, protest pending????? Who knows? Finally the age old argument can an IDIQ be a FFP contract with FFP orders -
  9. Direct Overhead Costs

    here-2-help - This comment has no intent to change the great discussion regarding this thread and its primary topic direct/indirect costs. I just wanted to pass along that in reading the thread and doing my own research related to all the thoughts expressed in reviewing FPDS-NG both the firms mentioned in the case it would seem that each has handled many contracts either individually or in total that amounted to millions of dollars. From this view it would seem that the answer to this question was adequately addressed by the agency during market research leading to the SB set-aside. As you note the SB set-aside also helped in making administration less arduous (with regard to CAS)?
  10. A Competition Revolution

    I have read the discussion and beyond regarding the subject of this thread only wish that I was still in a CO chair to give this idea and its proposed variant Vern Edwards has mentioned in this discussion a try. The full dialog that occurred was very helpful in helping how one would approach in using. Very valuable to the counsel I have the occasional opportunity to provide to those that do sit in a CO chair today. In my career I handled procurements that bordered or eclipsed the $50 million mark but by and large they were much smaller and from my view the application of the approach (and as tweaked) have great opportunity for even the smaller procurement. It may be karma but when a post appeared on this thread today - http://www.wifcon.com/discussion/index.php?/topic/3529-spspd2/&page=2 – I thought to myself finally the missing link has been found to the idea I posted back in June of 2016. I do not claim ownership to the idea as it has been discussed by many but now there is a way to actually make it work! A perfect way to start 2017…………………………………
  11. Past Performance

    I think your questions are best answered by the CO for the solicitation.
  12. Lodging Per Diem - No Receipts

    Could be biased but many times "old school" has been proven effective over time and is why it is the way to go!
  13. Lodging Per Diem - No Receipts

    This post is in no way intended to dispute any post to this thread but rather provide further exploration of the situation, as noted in the OP’s question and found in other threads of WIFCON, where FAR 31.205-46 is incorporated into a contract. FAR 31.000 Scope of part provides - “This part contains cost principles and procedures for— (a) The pricing of contracts, subcontracts, and modifications to contracts and subcontracts whenever cost analysis is performed (see 15.404-1(c)); and (b) The determination, negotiation, or allowance of costs when required by a contract clause.” (emphasis added) FAR 31.103 goes on to say (hopefully paraphrased appropriately) that for certain contracts that are negotiated on the basis of cost that ”the cost principles and procedures in Subpart 31.2 and agency supplements” SHALL (emphasis added) be incorporated into the certain contracts by reference and used for the basis of – 31.103(b)(1) –“ Determining reimbursable costs under— (i) Cost-reimbursement contracts and cost-reimbursement subcontracts under these contracts performed by commercial organizations and (ii) The cost-reimbursement portion of time-and-materials contracts except when material is priced on a basis other than at cost (see 16.601(c)(3)); (2) Negotiating indirect cost rates (see Subpart 42.7); (3) Proposing, negotiating, or determining costs under terminated contracts (see 49.103 and 49.113); (4) Price revision of fixed-price incentive contracts (see 16.204 and 16.403); (5) Price redetermination of price redetermination contracts (see 16.205 and 16.206); and (6) Pricing changes and other contract modifications.” Thinking about the above it would seem that rather than simply stating a specific reference like FAR 31.205-46 the contract should reference the whole of FAR 31.2. Doing so would help as the FAR must be read in whole and solely referencing say FAR 31.205-46 leaves a gap with regard to such thoughts as “what is the contractor's policy in regard to reimbursement of travel costs?”. Further a real dilemma occurs if the contract was negotiated on the basis of “price” (as defined by FAR Part 15) as the question is raised per a full read of FAR 31 if a contract is negotiated on the basis of “price” should there even be reference to FAR 31.2 principles and procedures is in the contract? Noting that FAR Part 31 has no prescribed clauses CO’s are left to jury rigging references to Subpart 31.2 leaving wide holes when just a specific reference like FAR 31.205-46 is placed in a contract. Cherry picking a reference like FAR 31.205-46 for incorporation into the contract just does not cut it the whole of FAR 31.2 needs to be referenced.
  14. Lodging Per Diem - No Receipts

    So many things left unsaid! First is your post related in any way to this discussion thread? http://www.wifcon.com/discussion/index.php?/topic/3819-travel-costs-mie-per-diem-vs-actuals/ If not related then missing is information about the prime contract under which the travel expenses were “acquired”. What type of contract is it? What is the actual contract language that references FAR 31.205-46? Even absent the above I do not think you have read FTR Chap, 31, paragraph 11.25 closely. It provides a further reference of “see §301-52.4 of this chapter” which provides as follows – “§301-52.4 What must I provide with my travel claim? You must provide: (a) Evidence of your necessary travel authorizations including any necessary special authorizations; (b) Receipts for: (1) Any lodging expense; (2) Any other expense costing over $75. If it is impracticable to furnish receipts in any instance as required by this subtitle, the failure to do so must be fully explained on the travel voucher. Mere inconvenience in the matter of taking receipts will not be considered; and (3) Receipts must be retained for 6 years and 3 months as prescribed by the National Archives and Records Administration (NARA) under General Records Schedule 6, paragraph number 1 (http://www.archives.gov/records-mgmt/ardor/grs06.html).” Noting this additional FTR language additional detail would be needed regarding the detail of expenses – hotel actual receipt and documentation of “other expenses” with regard to evaluating the “at least $75” that might be paid without furnishing receipts. Bottom line I do not think your question can be or should be answered in this forum as it is specific to the contract under which the travel expenses (with or without receipt) were experienced. Any question about what is allowed travel expenses, again with or without receipts, should be answered by the contractor (prime?) and the CO for the contract. On this basis I am OUT!
  15. Travel Costs-M&IE Per Diem vs Actuals

    "33.204 -- Policy. The Government’s policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim. Agencies are encouraged to use ADR procedures to the maximum extent practicable. Certain factors, however, may make the use of ADR inappropriate (see 5 U.S.C. 572(b)). Except for arbitration conducted pursuant to the Administrative Dispute Resolution Act (ADRA), (5 U.S.C. 571, et seq.), agencies have authority which is separate from that provided by the ADRA to use ADR procedures to resolve issues in controversy. Agencies may also elect to proceed under the authority and requirements of the ADRA." Hmm, I see nothing in the above statement that the contractor is held to the Governments interpretation of a contract controversy? My read is that by this regulation (above) it is to be by mutual agreement at the CO level, what am I missing?
  16. Travel Costs-M&IE Per Diem vs Actuals

    Retread - The quote you have parsed out in your post is a quote of what the contract says. Did I say it was in conflict with what H2H said? If you believe so please tell me where and I will address my comment if I made it. The only thing I have ever said about conflict is that the dang wording of the contract is in conflict. I would add as supported by this thread that the conflict has left a void of interpreting what the OP can bill for.
  17. Travel Costs-M&IE Per Diem vs Actuals

    H2H - I would hold that the contract could provide the definition or would provide the basis for the definition that a court says it is.
  18. Travel Costs-M&IE Per Diem vs Actuals

    I am surprised this was not your very first post to this thread!
  19. Travel Costs-M&IE Per Diem vs Actuals

    My posts never implied that the "right" answer would come from the CO. My posts stated that one should ask (communicate) with the CO on the conflict to find out how the Government interprets what the Government has written so that the OP could figure out what they should do. My view is neither pro-government, pro-contracting officer it is pro communication as I do not hold to "ask for forgiveness" I hold to communicating about a conflict and doing the best one can to mediate it and if it can not be then there are adversarial ways to handle the matter. I will do better in the future to state what my exact position is and again to clarify for this thread...................Go ask the CO and if the answer is not the one you want then follow the Disputes clause to figure out the "right" answer. I do not have the "right" answer and dare say no one posting to this thread has it but communication with the CO is a prudent, responsible and well held contract administration procedure to arrive at answer to a conflict in a contract about what a contract says and in this case how the bills can be submitted to the Government so the Government will pay them. Thanks
  20. Travel Costs-M&IE Per Diem vs Actuals

    H2H - Come on really? Go to the CO is more than viable it is the only course! And again you are close on interpretation but I think you are missing what the contract says. Why? "FAR 31.001, Definitions as used in this part - Actual costs means (except for Subpart 31.6) amounts determined on the basis of costs incurred, as distinguished from forecasted costs. Actual costs include standard costs properly adjusted for applicable variances." (Emphasis added) FAR 31.205-46, is referenced in the contract is from this part and as such the full language of the contract at FAR Clause 52.202-1 applies - “Definitions (Nov 2013) When a solicitation provision or contract clause uses a word or term that is defined in the Federal Acquisition Regulation (FAR), the word or term has the same meaning as the definition in FAR 2.101 in effect at the time the solicitation was issued, unless-- (a) The solicitation, or amended solicitation, provides a different definition; (b) The contracting parties agree to a different definition; (c) The part, subpart, or section of the FAR where the provision or clause is prescribed provides a different meaning; or (d) The word or term is defined in FAR Part 31, for use in the cost principles and procedures.” To suggest that a contractor to not ask the CO for interpretation because “It's not a good idea when you might not like the answer you receive.” or to change their internal policy and procedures when the contractor has an approved accounting system is ludicrous. The only advice is go as the CO, but by the way you might want to be armed with the following points.................. Eager - The matter of what the contract means is really quite simple. You first ask the CO for a interpretation of the contract. You then have choices after the CO provides the interpretation - 1) Agree with the interpretation; 2) Disagree with the interpretation and still bill per the interpretation; 3) Disagree with the interpretation, bill as you interpret (possibly based on the advice provided in this thread) and file a claim (FAR clause 52.233-1). If the 3 choice is made you are then is afforded the ability to appeal the CO's final decision if you disagree with the interpretation. In the end as it is the intent of the FAR to have decisions made at the level of the CO again I say " In the end I will say it will actually be left to you and the CO" to decide what is the appropriate way to bill.”
  21. Travel Costs-M&IE Per Diem vs Actuals

    Vern, H2H, Retread, Pepe - The question from Eager is - "Are we complying with the prime contract if we bill the maximum daily per diem rate for M&IE rather than actuals?" Who in fact from each of your points of view should answer the contract interpretation question?
  22. Travel Costs-M&IE Per Diem vs Actuals

    H2H - Agreed as related to this instant thread since the reference of the FAR language at 31-205-46 is in the H clause. It thought I covered same with this language “While referenced in the H clause my read is that the FAR reference is being used to indicate what travel charges (amounts) can be billed for at cost (“limited to those”) not that the rates can be used.” Sorry I was not clear. I do still say that the contract language is confusing as in one place it clearly says “actual cost” (at the CLIN) which is different than a rate and in another (at clause H) is not explicit as to what is really is the way that M&IE is to be billed.
  23. Travel Costs-M&IE Per Diem vs Actuals

    Eager – Food for thought as the expressed position of H2H may not be spot on. Your question definitely needs discussion with the CO to resolve. For what it is worth my view suggests that your contract has a conflict, and the conflict, unless otherwise mitigated, requires you to bill for actual charges, and that the actual amounts billed for M&IE cannot exceed (“reasonable and allowable”) a sum that is in excess of per diem rates. My position is based on the following that may not be the true facts of the contract but my explanation as follows may help you be in a position to have a good discussion with the CO to sort the matter out. My reasoning – If the Solicitation/contract is result of following process and procedures of FAR Part 15 as such the prime contract would then follow the uniform contract format (UCF) (FAR 15.204). Additionally the contract would therefore contain FAR clause 52.215-8. The CLIN is most likely contained in “The Schedule” as part of B – Supplies or Services andprices/costs as defined by the UCF. The clause noted as being in Section H is in “The Schedule” as well, Special contract requirements. The CLIN states actual costs and H confused the statement in the CLIN and brings in the possibility of rates. FAR 52.215-8 does not solve the conflict so the need for a CO to determine. Further FAR part 31.205-46 does not solve the matter. First off 31.205-46 simply is the FAR statement as to what is allowable and allocable with regard to the costs of any contract. While referenced in the H clause my read is that the FAR reference is being used to indicate what travel charges (amounts) can be billed for at cost (“limited to those”) not that the rates can be used. Your contract by my read specifically states that the costs allowable for travel under your contract are those that are actually incurred and are limited by 31.205-46. Just because the employees are paid at per diem does not equate to what the actual costs were for the M&IE experienced under the contract. Contract employees might be spending way less or way more in actual costs than the per diem rate for their travel. Because there is a big difference between simply billing under the contract for M&IE at a rate versus that of actual costs for M&IE I would darn sure clarify with the CO before I billed.
  24. Required to Roll-up Adjectival Ratings?

    Vern - Agreed. No intention to imply it did. Sorry that you took my post to imply otherwise as it was intended exactly as stated to just bring to light the FAR reference regarding records requirements regarding proposal evaluation noting that the OP's post could be read that FAR was not a part of the OP's research just the GAO. For the good of the order I reviewed all Department/Agency supplements to the FAR to see if there was possibility that a "roll-up" requirement existed and I found none.
  25. Required to Roll-up Adjectival Ratings?

    As you have referenced GAO but not FAR, unsure if you had read this so simply providing the following as a reference in case you had not..... FAR 15.305(a)(3) - (3) Technical evaluation. When tradeoffs are performed (see 15.101-1), the source selection records shall include -- (i) An assessment of each offeror’s ability to accomplish the technical requirements; and (ii) A summary, matrix, or quantitative ranking, along with appropriate supporting narrative, of each technical proposal using the evaluation factors.