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Everything posted by ji20874

  1. Vern, I agree that ODCs are part of the definition of materials. I didn't opine on whether the purchasing cost is or is not an ODC -- I have to leave that to the original poster to decide, as he or she is far closer to the facts than I am. My point was that for the purchasing cost to be directly payable under the T&M contract, it will have to fit under either the heading of hourly rate or materials, one or the other -- a discussion about whether the costs are directly chargeable without invoking this T&M context is a fruitless discussion. And as you and I both pointed out, even assuming the purchasing cost does fit as an ODC under materials, the cost still will not be payable unless listed in para. (i)(1)(ii)(D)(1) of FAR 52.212-4 Alt I if we're talking about a commercial T&M contract. I think we're in agreement.
  2. Joel's question was right. As a result, the original poster clarified that this is a T&M contract. Based on that answer, I don't think it is necessary to look at disclosure statements and so forth. Under a T&M contract, the contractor may invoice for (and the Government may pay for) only two categories of cost: hourly rate (see FAR 52.232-7(a) for non-commercial contracts or 52.212-4/Alt I(i)(1)(i) for commercial contracts) and materials (see FAR 52.232-7(b) for non-commercial contracts or FAR 52.212-4/Alt I(i)(1)(ii) for commercial contracts). If the purchasing cost doesn't fit into one of these categories, the cost isn't payable, period. Oh, and by the way, if it is a commercial T&M contract, and if the purchasing cost isn't listed in the fill-in for para. (i)(1)(ii)(D)(1) or of FAR 52.212-4 Alt I, it cannot be payable as an Other Direct Cost (ODC). We must not turn a T&M contract into a cost-reimbursement contract. If the purchasing cost doesn't fit under hourly rate or materials, as those terms are understood in the context of T&M contracts, it isn't payable, period. No discussion of disclosure statements will make it payable directly under the T&M contract. To answer the original poster's question: is there a circumstance where you could justify these costs as direct, billable costs? Yes -- propose establish a labor category and hourly rate and specify this in the T&M contract. If the contracting officer doesn't laugh at you, who knows, you might get it -- all sorts of strange things happen under T&M contracts. But it would seem to me that FAR 31.205-18(c) ought to be considered before adopting this approach.
  3. I think you're looking at it the right way -- you're making this a business and relationship decision, rather than a contracts decision. Even if you have a "right" to something (such as consideration for a change), that right has to be balanced with business and relationship. But since you're wondering from an academic perspective, I wonder -- if you did ask for compensation (consideration) for this modification, how would your prime respond? Your prime could (1) agree with you and increase the subcontract price; (2) laugh at you but continue the relationship; or (3) laugh at you and harden or end the relationship. So the answer is not one of the-FAR-says or contract rights -- it is one of leverage (business and relationship). In some cases, the prime contractor has the leverage -- in other cases, the subcontractor has the leverage. So the answer changes on a case-by-case basis.
  4. NAICS and Scope

    There are a number of soft reasons. The purpose of the NAICS code is to allow offerors to represent themselves as large or small (FAR 19.101(b)(3)). This occurs at the time of offer for the parent IDIQ contract. The contracting officer includes the NAICS code (or sometimes, codes) in solicitations (FAR 19.303(a)(1)). The FAR never uses "solicitation" in the context of an order under an IDIQ contract, so I try not to use that word in that context, either. We understand that a contracting officer can ask for re-representation of size status for an order opportunity under multiple-award IDIQ contracts, but that re-representation is always based on the NAICS code assigned to the contract (FAR 52.219-28(c)), not an entirely new NAICS code. To me, it just doesn't make any sense to try to apply a wholly new NAICS code to an order opportunity under multiple-award IDIQ contracts. I try to maintain a purist approach that issuing orders under IDIQ contracts is really a matter of post-award contract administration, and all the pre-award stuff in the FAR regarding contract formation doesn't apply except as FAR Subpart 8.4 (for orders under schedule contracts) or FAR 16.505(b) (for orders under multiple-award IDIQ contracts) explicitly requires. Another short answer: Every new requirement doesn't receive an independent NAICS analysis -- every new contract does (FAR 19.303) -- but sometimes, we satisfy requirements without awarding new contracts. In this context, an order under a multiple-award IDIQ contract is not a new contract.
  5. NAICS and Scope

    If the parent IDIQ contract has only one NAICS code, then every order under that contract must use that NAICS code. If the order work is within the scope of the parent IDIQ contract, it doesn't matter if the NAICS code precisely fits the work. The purpose of the NAICS code is not to describe the work -- rather, the purpose of the NAICS code is to help. establishing the size standard that will apply in the acquisition for the parent IDIQ contract. FAR 19.303 applies to parent IDIQ contracts, not to orders under IDIQ contracts. For IDIQ contracts, 13 CFR 121.402(c) allows the NAICS to be assigned at the parent IDIQ contract level, or at the CLIN level -- however, I don'k many of our automated contracting writing systems will accommodate this regulatory flexibility. Certainly, FPDS-NG does not recognize it, and forces the contract's single recorded NAICS code to every order. Short answer -- if you are issuing a task order under an IDIQ contract, the order takes the NAICS code of the parent IDIQ contract -- you need not waste your time trying to find a NAICS code that fits better.
  6. I am at a distance and haven't read the contract, but I recommend you pay nothing until you are at agreement on the total amount to be paid. Don't be so quick to pay before knowing all the facts, and don't be so quick to give up whatever negotiation leverage you might have.
  7. Which of the following tells the rest of the story? 1. The prime contractor unilaterally modified our subcontract to include the clause. 2. The prime contractor intends to unilaterally modify our subcontract to include the clause. 3. The prime contractor wants to bilaterally modify our subcontract to include the clause, and has asked for a proposal from us for this purpose. 4. The prime contractor wants to bilaterally modify our contract to include the clause, but is not inviting a proposal from us for this purpose. 5. Other: _________________.
  8. The contractor gets full payment for the FFP CLINs (assuming the work is fine). The contractor gets reimbursement of allowable incurred costs for the CPFF CLINs -- if there are no incurred costs, there is no reimbursement. Maybe during the week in question, the contractor employee charged 40 hours to a FFP CLIN and an additional 10 hours to a CPFF CLIN?
  9. Interview Guidance

    Because words often come with associated baggage, I will never use "source selection" to describe the FAR 8.4 or 16.505 ordering processes, or the FAR Part 13 simplified acquisitions processes, or the Part 14 sealed bidding processes, or any other process outside FAR Subpart 15.3, Source Selection.
  10. Interview Guidance

    I'm with Gordon -- I like open-ended questions. But remember, after a source selection is completed, the information is no longer source selection information -- the information might be privileged from disclosure for other reasons, but not for source selection information reasons.
  11. Are Payment Logs Required?

    We spend taxpayer dollars all the time to get contractors to do stuff for us -- that's what the FAR is all about. A contract could require a funds/payments report as a condition of a proper invoice. For example, see para. (a)(1)(x) of the clause at FAR 52.232-25, Prompt Payment. Just a recommendation... of course, it might not fit for EVERY circumstance and contract.
  12. Are Payment Logs Required?

    Here's a thought-- Instead of contracting office staff keeping these spreadsheets, why not simply require that the contractor's invoice include a spreadsheet correctly detailing all the previous invoices and payments under the contract? Then, providing the correct spreadsheet becomes a matter of a proper invoice.
  13. Are Payment Logs Required?

    I would hope that your automated system for payments would give you any report you might want. I agree that nothing in the FAR requires it.
  14. FAC 2005-96 Muppet Video

    I wish I could vote for 2 or 3 -- but it seems the FAR Councils are incapable of governing. The website at www.acquisition.gov/far made the other changes but dropped the youtube.com text. Maybe it is because they read the explanatory text: 16. Amend section 52.204–8 by— a. Revising the date of the provision; b. Removing paragraph (c)(1)(xvi), and Note to Paragraph (c)(1)(xvi); and c. Redesignating paragraphs (c)(1)(xvii) through (xxv) as (c)(1)(xvi) through (xxiv), respectively. There's nothing in the explanatory text about changing the title. This site shows a clause date of OCT 2017, but the Federal Register says it is supposed to be NOV 2017. Anyone, other on-line locations I looked at still have a JAN 2017 clause text. Still, does anyone have any idea how this happened? And how can anyone trust anything?
  15. ICE-CO, Now you know what the WIFCON community generally thinks on this subject. I hope you are able to help change the culture in your organization. Anyone in your organization who tells you that a SAM check is needed for an administrative modification, and must be documented in the file, is wrong, as far as the FAR is concerned. We cannot speak for your agency or local regulations, but you said you cannot find anything. That's great! Now you can stop, and encourage others to stop, too. But you might offend others, so do it professionally. You spoke of dire consequences and being held accountable -- I hope you haven't faced any of this in your professional growth. This is a real part of our problem, isn't it -- senior level auditors auditing for their own preferences, rather than their agency's regulations. That's sad. Here's an idea -- in the place in your contract file where an auditor will expect to find the SAM printout for an administrative modification, print this thread and put it there instead. Oh, and by the way, in your original posting, you asked if maybe this was a best practice if not a written requirement. It is not a best practice; I think it is a poor practice.
  16. Trade Agreements (TAA)

    Love, When your company submitted its offer for the GWAC contract, you provided a certificate in the provision at FAR 52.225-6. Under the orders under the GWAC contract, you may deliver only U.S.-made or designated country end products except to the extent you specified delivery of other end products in that certificate. Did you specify any in your fill-in for para. (b) of the provision at FAR 52.225-6? The clauses in your parent GWAC IDIQ contract flow down to all of the children orders under the contract. So yes, the clause at FAR 52.225-5, included in your parent contract, applies to the orders under the contract. If an iPad is not TAA-compliant, and if you did not list iPad in your certificate in the provision at FAR 52.225-6 when you submitted your offer for the GWAC contract, then you may not provide iPads under orders under the GWAC contract. If a Government agency needs an iPad (and assuming, arguendo, that the iPad is not TAA-compliant), there are other ways. For example, if the purchase is a micro-purchase, then neither the BAA nor TAA restrictions apply. The BAA kicks in at the micro-purchase threshold and the free trade agreements start to kick in at $25,000. So between the micro-purchase threshold and $25,000, the BAA applies -- but the BAA has an exception for information technology that is a commercial item. I suppose an iPad would count as information technology that is a commercial item, so the BAA restrictions would not apply to an open market iPad purchase of less than $25,000. So yes, other contractors might be providing iPads to the Government -- but you cannot provide iPads to the Government under your GWAC unless you listed iPads in your certificate in the provision at FAR 52.225-6 when you submitted your offer.
  17. Invoicing

    I'm with Vern -- the invoice was properly rejected. If the parties are working on a modification to be signed bilaterally to change the work, then the invoice has to wait for the modification to be processed. The contractor could have chosen not to do the work -- after all, I'm supposing the contract is a commercial item contract containing the clause at FAR 52.212-4, which says that "[c]hanges in the terms and conditions of this contract may be made only by written agreement of the parties." The contracting officer had no authority to orally authorize additional work, and the contractor has no right additional payment. If the parties ever get around to formalizing the modification, well, then the contractor can seek payment. It might be that the modification is never finalized -- if so, the contractor might be out of luck. Think about it -- the contracting officer might have to do an after-the-fact justification for exception to fair opportunity (depending on the nature of the "additional" work) and get a funds authorization -- the contracting officer will have to explain why he or she didn't follow agency procedures -- the contracting officer might be unsuccessful in forcing his or her agency superiors to play along, and the modification might not happen. What then?
  18. Trade Agreements (TAA)

    Love, If the items are for the use of your employees, then they need not be TAA compliant. They only need the be TAA compliant if you are furnishing them as deliverables to the Government. See para. (b) of the clause at FAR 52.225-5, Trade Agreements, in the parent GWAC contract.
  19. I agree. Really, a prospective offeror should insist that the solicitation include wage determinations covering all places where the Government requires SCA work to occur -- if the solicitation requires every town in the US, including Manhattan, then the WD (or combination of WDs) must cover every town in the US, including Manhattan. See FAR 22.1007(a). See also FAR 22.1008-1(c). A prospective offeror who objects to a solicitation because of the absence of WDs might consider the approach described in FAR Subpart 33.1.
  20. FMF and Commissions

    For FMF, do you mean Foreign Military Financing? If so, see http://www.dsca.mil/sites/default/files/dsca_guidelines_for_foreign_military_financing_of_direct_commercial_contracts.pdf -- page 5, item 11.
  21. 1) It need not be a bizarre scenario -- I think you are supposing that all service contracts must be performed in a Government facility, but this isn't true. Sometimes, we don't care where the contractor does the work. For example, FAR 22.1003-5(k) lists maintenance and repair of all types of equipment as types of services that are covered by the SCA. Imagine an acquisition for the repair of cuckoo clocks: at the time of solicitation, we don't know where the future winner's facility is located -- we know where the incumbent is located, and we know where some prospective offerors are located, so we're in the situation covered by FAR 22.1009-2. But we admit that we don't know where the future winner's facility is located, so FAR 22.1009-4 applies. We follow the procedures in FAR 22.1009-4 and we include the clause at FAR 52.222-49 in the solicitation. It makes perfect sense. It is common practice to let the contractor define the place of performance in situations where we won't require the work to occur in a Government facility. 2) In FAR 22.1009-4 and FAR 52.222-49, unknown place of performance means the Government doesn't know because the winner hasn't been selected yet, and the winner will perform the work in its own facility. Unknown place of performance, in the context of FAR 22.1009-4 and FAR 52.222-49, does not mean the contractor has no idea where its own people will be working after it wins the contract. An offeror responds to the clause at FAR 52.222-49 by responding to the contracting officer with its intended location by the established date, and the contracting officer gets a wage determination for that locality and includes it in a solicitation amendment.
  22. If the agency really wants contractor performance on an IDIQ basis anywhere in the US for work that is subject to the formerly-styled Service Contract Act, the contracting officer should apply for a nationwide wage determination. The procedures for this are at https://www.dol.gov/whd/govcontracts/sca/sf98/instructions.htm. Then, the solicitation will have only one wage determination. Here's an example of a nationwide wage determination, dated 9/05/2017: https://www.wdol.gov/wdol/scafiles/non-std/99-0316.sca. Here's another one, dated 12/30/2016: https://gacc.nifc.gov/nrcc/dispatch/equipment_supplies/agree-contract/WageDetermination.pdf. The clause at FAR 52.222-49 is for use when the Government does not specify the place of performance, but this matter is left up to the offerors. The clause allows offerors to request wage determinations for their specific locations before offers are submitted -- but if an offeror does not do this, too bad, then the wage determination for the appropriate locality will be added after award with no adjustment in contract price. That's fair. But this clause (FAR 52.222-49) is not appropriate in the original poster's circumstance, as I understand it; rather, the contracting officer needs to request a nationwide wage determination. A nationwide wage determination is appropriate when a contractor will be dispatching people to any location in the country -- I am supposing this is the case for the original posting. However, if the agency really requires permanent placement of employees at several locations in the country, then a wage determination for each locality is appropriate -- and it is the contracting officer's job to make this happen before solicitation release.
  23. Basic Question

    Maybe FAR 51.102(c)(5) will be helpful? It doesn't appear to have any limitations. Practically, though, I have only ever heard of this process being used to allow contractor ordering from schedules and government stock.
  24. Basic Question

    Jon, What is your citation for "government source of supply"?