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outsidelegalguy

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  1. You can try this: http://www.ecfr.gov/ The FAR is in Title 48. Unfortunately, it doesn't have a search function or, if it does, I haven't figured it out. I hope the Farsite problem is temporary. I frequently use it and find it superior to the ecfr site. Farsite has (or, at least, it had) deviations and other information that's lacking from other resources I'm aware of.
  2. A reason contractors don't want to get involved in CAS-covered contracts is that there's a cost involved. You have to set up, in effect, two sets of books, one that complies with GAAP for financial accounting and another that complies with CAS for government cost accounting. Plus, there's a cost involved in dealing with disclosure statements, changes to accounting practices, etc.
  3. You might want to check that your plan to "cut down on fee" is the right way to go about this. DoD, at least, has announced that it is not targeting contractor's profits as a means to reduce costs. See, for example, this statement by Shay Assad: "Some people have misinterpreted what better buying power is all about. There are people that want to believe this is an attack on profitability, and that's not the case at all," he said. "What we're telling our contracting officers is that they need to use profitability as means to incentivize industry to reduce their costs." http://www.federalnewsradio.com/394/2846488/DoD-faces-struggles-on-path-toward-better-buying-power
  4. For DoD, DFARS 225.770 prohibits purchase of items covered by the United States Munitions List from Communist Chinese military companies (and many companies in China would be covered by the defintion of that term). Other than that, if the BAA or TAA don't apply, I know of no prohibition on purchasing something from China. Indeed, the need to have this specific DFARS provision suggests that there isn't some over-riding prohibition -- if there was, you wouldn't need DFARS 225.770. GSA takes the position that sales under its FSS contracts will exceed the TAA threshhold and, thus, it includes the TAA clause in them. I've never seen any GSA FSS contract provision saying that you can make a "micropurchase" off a GSA schedule and purchase something from China. Such an item shouldn't be on the schedule.
  5. Vern, If I understand the scenario, this is a pre-award concern. There's no contract dispute and you can't submit a CDA claim to the CO for an interpretation of the contract. The bid protest route would seem to be available. OLG
  6. It's generally up to the parties to the protest to decide what is to be covered under a protective order, with GAO deciding if the parties cannot agree. Given the timing of things, it's rare though that GAO gets involved in such disputes in time to provide a redacted copy of the agency report to the protester to prepare its comments on the report. In my experience, though, comparative scores generally are covered under a protective order.
  7. If XYZ, Inc. is just now starting to think about "complying with government contract rules and regulations," it may have a problem. It's been subject to most of them all along. There are only a few things (e.g., Cost Accounting Standards, small business subcontracting plan requirements) that a small business is exempt from.
  8. See the article in Volume 43, No. 2 of the Procurement Lawyer, Winter 2008. It addresses this issue, in part.
  9. Sorry 'bout the Smiley face. It sure wasn't there when I pressed reply -- that was supposed to be a reference to paragraph b of the clause. How do you turn off these Smiley faces??????
  10. This is a quirk in the regs. FAR 52.215-12(a) requires the prime to obtain certified cost or pricing data from the sub "on the date of agreement on price or the date of award, whichever is later." So, the prime is required to get updated cost or pricing data from you, but it shouldn't have any effect on the price of the prime contract, which has already been awarded. Why the government requires this is a mystery, at least to me. But, if you've already agreed on the subcontract price, you could point to 52.215-12( B ) and say that your data only needs to be accurate, complete and current "as of the date of agreement on the negotiated price of the subcontract." Knowing how most primes behave, however,I would guess that they haven't agreed on price and hope to ratchet down your proposed subcontract price. There's no need to copy the government (and the prime probably wouldn't want you to, especially if your rates have gone down).
  11. The ABA Public Contract Law Section's "Guide to Service Subcontract Terms and Conditions" has a section setting out what it felt were mandatory or advisable reps and certs. Although it focuses on service contracts, it should give you a place to start.
  12. This could happen if the nonmanufacturer rule has been waived for the required items and the offeror is a nonmanufacturer. Sure, but I don't think there are any class waivers covering computers & monitors, and it would seem quite a bit of work for the contracting officer to get an individual waiver prepared.
  13. Note that the question I posed dealt with how much a small business subcontractor could further subcontract, not how much a small business prime could subcontract or, under the nonmanufacturer rule, to whom it could subcontract and/or obtain supplies. And, the requirements of the non-manufacturer rule don't apply to small business subcontractors, see 13 CFR 121.406(e), so it doesn't limit from whom the subcontractor buys the supplies it provides under its subcontract. (But, I've also never figured out how a small business prime delivering hardware under a set-aside or an 8(a) could provide a large businesses' equipment, unless the contracting officer characterized it as a "services" contract under which the contractor is also supplying equipment.)
  14. [i posted this last week in the "Subcontracts and Subcontract Management" discussion area, but didn't get much of a reaction, so I thought I'd try reposting it here. Maybe it will catch the interest of people more focused on small business issues.] A prime contract awarded to a small business on a small business set-aside procurement generally requires the small business prime to perform at least 50% of the work. That’s implemented by the Limitations on Subcontracting clause, 52.219-14. If the prime serves as a "front" for a large business and passes the vast bulk of the work through to the large business, it violates the clause and may find itself the subject of a criminal action based on fraud. How does it work on the subcontract level? Here’s the scenario: A prime contractor has a small business subcontracting plan, requiring it to make a good faith effort to award some amount of subcontracts to various types of small businesses. Is there any problem (for the prime, the sub, or the sub’s sub) if the prime awards the subcontract to a small business, and that small business then passes the vast bulk of the work through to a large business? Put another way, is there anything wrong with a small business acting as a "front" for a large business with respect to the performance of a subcontract that the prime is awarding as part of satisfying its small business subcontracting plan. There’s no requirement for the prime to include the Limitations on Subcontracting clause in the subcontract – it’s not a required flowdown – so there’s no contract violation. I’ve certainly heard stories about this happening. Although it’s always made me feel a bit uncomfortable, I’ve never been able to identify anything that makes it illegal, a contract violation, or otherwise improper. Can you?
  15. A prime contract awarded to a small business on a small business set-aside procurement generally requires the small business prime to perform at least 50% of the work. That’s implemented by the Limitations on Subcontracting clause, 52.219-14. If the prime serves as a "front" for a large business and passes the vast bulk of the work through to the large business, it violates the clause and may find itself the subject of a criminal action based on fraud. How does it work on the subcontract level? Here’s the scenario: A prime contractor has a small business subcontracting plan, requiring it to make a good faith effort to award some amount of subcontracts to various types of small businesses. Is there any problem (for the prime, the sub, or the sub’s sub) if the prime awards the subcontract to a small business, and that small business then passes the vast bulk of the work through to a large business? Put another way, is there anything wrong with a small business acting as a "front" for a large business with respect to the performance of a subcontract that the prime is awarding as part of satisfying its small business subcontracting plan. There’s no requirement for the prime to include the Limitations on Subcontracting clause in the subcontract – it’s not a required flowdown – so there’s no contract violation. I’ve certainly heard stories about this happening. Although it’s always made me feel a bit uncomfortable, I’ve never been able to identify anything that makes it illegal, a contract violation, or otherwise improper. Can you?
  16. I agree that the language is somewhat murky. But, if you look at the introductory language in the FAC (77 Fed. Reg. 191) where they describe their intention regarding posting requirements applicable to BPAs, the FAR Councils said that the justification "must be completed and approved at the time the requirement for a brand-name item is determined." Thus, it is only when you make a "determination" that only a brand name item will satisfy your needs that you have to post the information. If the offeror only proposed Dell and you accepted his proposal, you never made such a determination. Thus, I think Vern is right, except that I don't think that in the awarded BPA you have to "specify the brand name in the BPA, saying that all future orders will be for that brand name." If the offeror only proposed Dell, I don't see how it could provide a non-Dell product, unless there is something in the BPA that makes it clear that the offeror wasn't bound by what it proposed.
  17. Here's another approach: Take another look at the language you quote from the teaming agreement -- "both Parties agree that they will not in any manner participate in or undertake efforts that are competitive to this Agreement, nor will they compete for the Procurement or respond to the Solicitation, independently or in conjunction with any other Party, during the term of this Agreement" -- which is fairly typical. It says the sub won't compete on or respond to the solicitation. It doesn't say the sub can't sell its items directly to the government. The prime contract presumably is for an item (e.g., a system of some sort) for which the subcontractor's contribution is just one or more of the components. The sub couldn't offer just that component/those components to the government in response to the RFP. It wouldn't be technically acceptable. So, the teaming agreement binds the sub to the prime for purposes of a competiton in which the sub couldn't compete independently and couldn't offer its products independently. I don't see any conflict with 52.203-6.
  18. Here's one theory. FAR 52.203-6 is a contract clause. It doesn't take effect until the prime contract is awarded. And, it only prohibits the prime's restricting sales by the subcontractor of items furnished "by the subcontrator under this contract or under a follow-on production contract." So, it requires that the prospective subcontract actually receive a subcontract. A teaming agreement is entered into as part of competing for the contract in the first place and typically has language saying that it expires upon award of the prime contract or a subcontract thereunder. Thus, the provision in FAR 52.203-6 saying you can't limit subcontrator sales doesn't take effect until after the prime gets the contract and the subcontractor gets the subcontract, at which time the teaming agreement typically expires and any limitations in it also expire.
  19. Here's another approach: Prepare a subcontracting plan that sets out as the goals the actual amount of subcontracts you awarded.
  20. Here's how SBA defines a "concern": Except for small agricultural cooperatives, a business concern eligible for assistance from SBA as a small business is a business entity organized for profit, with a place of business located in the United States, and which operates primarily within the United States or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor. 13 C.F.R. 121.105(a)(1). Although there's nothing wrong with foreign ownership, the company must have a significant US presence. If the US entity just feeds work to the German entity, I'd question whether it qualifies as a "concern" under this rule. I also don't see how they would comply with the limitation on subcontracting clause. Going to SBA is the best bet.
  21. Joel's right. You won't find anything about it in the FAR, but there's a lot of case law on the subject. Here's one example: United Technologies Corp. v. United States, 27 Fed. Cl. 393 (1992). The government tested a helicopter in a fashion more severe than what was set out in the contract and -- surprise, surprise -- components didn't satisfy the fatigue life specified in the contract. The court said: It is well-established government contract law that the contract specifications are the standard for determining defects?.Therefore, the government cannot impose a more stringent testing procedure or standard for demonstrating compliance than is set forth in the contract?. Fatigue lives are not independently fixed quantities, like length or mass, but vary depending on how the aircraft is used. Accordingly, the variables affecting fatigue life must be so fixed in the contract. In the instant case, the fatigue life was to be measured in accordance with a standardized methodology, which included development of a usage spectrum from a government flight profile, the use of standardized fatigue curve shapes, and numerous other factors. Once this was approved by the government, it became the standard under all subsequent contracts Id., at 397
  22. Vern, Interesting that you're take on the case is that the contractor can't prevail, yet everyone else who commented seems to think that it was the government that was all fouled up. And, note that the Board said that it couldn't grant summary judgment because it needed further evidence of the parties' intentions. So, the Board thought there were facts that needed to be presented to resolve the nature of the contract. To me, it's very sloppy work on the part of the government. It was a competitive solicitation, so the offerors have little ability to change the contract language. They can ask questions (to which the government might (or might not) provide clear answers) and try to cover things by putting express understandings in their proposal (but then risk the government giving them a poor evaluation or concluding that they impermissibly took exception to material contract requriements) but beyond that, they can't do much to clean up the contract language. OLG
  23. I know of no limit on IR&D, other than what you cite. The Simplified Acquisition Threshold is defined at FAR 2.101 and generally means $150,000, with some exceptions, as noted at the provision.
  24. For last fiscal year, DoJ reported $3 billion in civil False Claims Act recoveries, the great bulk of which were in the healthcare area. See http://www.justice.gov/opa/pr/2010/November/10-civ-1335.html The press release at the link seems to equate a settlement with a recovery and doesn't address how often the defendant fails to pay. But, I know from personal experience that DoJ generally requires a provision in the settlement agreement that the defendant is able to pay and I've never heard of the government having to sue someone for non-payment.
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