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ji20874

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  1. No. The Warranty of Construction (FAR 52.246-21) lasts for one year after final acceptance for the entire work; or for any part of the work, one year after the Government takes possession of that part. The contract completion date is irrelevant. No. The Warranty of Construction (FAR 52.246-21) starts with final acceptance of the entire work, or Government possession of a portion of the work. The substantial completion date is irrelevant.
  2. The Warranty of Construction (FAR 52.246-21) lasts for one year after final acceptance for the entire work; or for any part of the work, one year after the Government takes possession of that part. You might consider requiring the Government to accept any portion of the work that can be accepted separately. This will start your warranty clock sooner rather than later for that portion of the work. See the last paragraph of FAR 52.246-12. Or, in your negotiation of equitable adjustments for change orders, you might consider insisting on a statement addressing your warranty liability. Change orders don't give time extensions (see para. (a) of FAR 52.243-5) -- the contractor doesn't get a time extension unless it asks for one (see para. (c) of that clause). When you voluntarily bargained for the period of performance end date from DEC 2017 to JAN 2020, you willingly accepted any additional liability associated with the Warranty of Construction. Your equitable adjustment proposal should have addressed this matter, and it should have been part of the negotiations. Of course, your equitable adjustment proposal and agreement fully compensated you for this liability, so all is well, right? After all, you wouldn't have agreed to it unless it provided everything you needed. I don't think you will find many ASBCA cases in your favor.
  3. Really, the GAO made the only decision it could under the circumstances. I’m satisfied with it.
  4. Not really -- we are pointed to 6.3 only for the format of the sole source justification (not J&A) -- the authority for sole source under FAR part 13 (including subpart 13.5) is FAR 13.106-1(b), not anything in 6.3, and the SSJ is written in the J&A format modified to show simplified acquisition authority.
  5. If the notice/solicitation requires the offering contractor to have a DCAA audited accounting system, an approved purchasing system, and relevant past performance, then that’s what Subsidiary 1 has to have — Subsidiary 1 is the holder of the multiple-award IDIQ contract.
  6. For a specialty application, a Mil Spec hammer might be entirely appropriate.
  7. As I said, I have no doubt there is sloppy language out there. That is sloppy language. Can you tell if that is an agency’s standard clause, or home-made and cut-and-paste? That language is sloppy because it goes beyond indicating what the Government will pay — in other words, it goes beyond the contract — a single contract should not attempt to dictate to a contractor’s internal accounting practices. Instead of “stating that no G&A will be allocated to the contract because of travel costs,” it would probably be better if it said something like, “Direct Reimbursable Travel. For Government-directed contractor employee travel, the Government will reimburse the contractor for its actual incurred costs for lodging, air fare, and per diem, not to exceed the limits of the Federal Travel Regulation. The Government will not make separate payment to the contractor under this contract for any indirect costs associated with travel.”
  8. In a fixed-price setting, the offeror quotes a price that covers all costs. It is not necessary to apply cost principles if FAR Part 31 to fixed-price proposals, especially in competitive settings. After a competitive fixed-price contract is awarded, it is error to insist on applying cost principles to the individual cost elements. When an offeror proposes an hourly rate of $167.50 for an ANALYST III in a competitive setting, no one knows what the elements of that price are. It might well (and should) include enough to cover indirect costs on the travel that is anticipated to occur, maybe with some margin. In my practice, I do not declare in a solicitation or contract that indirect costs on travel are forever unallowable. Simply saying that this contract will not provide a separate payment for those indirect costs is far different than saying those costs are forever unallowable. It is not required for the government to provide a separate payment for travel indirects in a fixed-price or commercial T&M contract. I have no doubt that there is sloppy language out there. p.s. We need to remember two basic principles, and allow those principles to play in this discussion-- even in a cost-reimbursement contract, the parties can agree to fix any element of cost; and even in a cost-reimbursement contract, the parties can agree to a cap on any indirect cost. If we can do this on cost-reimbursement contracts, then certainly we can do it elsewhere. Indirect costs on contractor employee travel is not a special category that we MUST treat differently and in the contractor's favor.
  9. It is the contracting officer, not the agency head, who rejects the SBA's recommended source. The contracting officer does not need agency head permission. And then, it is the SBA who appeals (with strict notice and timeliness requirements) and the agency head makes the final decision. There is no deadline for the agency head's decision. See FAR 19.810. Really, all the power lies with the contracting officer and the agency, not the SBA. I have only had one of these appeals in my career, and my agency head supported me.
  10. Okay, so you deal with your reality. If the agency does not intend to separately reimburse you for indirects on top of travel-- For a FFP contract, estimate the travel that will be required and add the administrative costs for that estimate to your FFP. Your FFP covers all of your expected costs and profit. For a T&M contract, spread those administrative costs among your fixed hourly rates. Your fixed hourly rates include indirect costs and profit. This is what your competitors are doing. All contractors submit proposals that cover their expected costs. I acknowledge that costs are real, but you can manage this. But I am still wondering, is your agency (1) not agreeing to separate reimbursement of travel overhead in pre-award negotiations, or (2) disallowing travel overhead in post-award administration? I am not convinced of widespread Government bias. I actually prefer contractors who negotiate hard and who know what the contract actually says -- and when they're right, I pay them, fair and square. When I'm right, they go back to work, fair and square. And all this with professional respect and no hard feelings. It is unhealthy when people take these things personally. So, you have to deal with your reality. You can manage this. If you are able, share the policy with us in a new thread -- if you do, you might get some helpful feedback based on how to deal with the policy. Your contracting officer should be willing to share the policy with you.
  11. Corduroy Frog, I'm not minimizing -- but I really believe in the principles I shared with Don-- If a prospective contractor wants something from a contract, it should negotiate for it pre-award. A contracting officer should not make payment post-award unless the contract allows for it. If you really want separate reimbursement for G&A on top of travel, negotiate for it before the contract is awarded. If you don't negotiate for it, you might not get it. If you do negotiate for it and then don't get it, file a claim. If you try to negotiate for it and are unsuccessful because of the realities of the competitive marketplace, oh, well, that's business, right? You can deal with that in other ways. Everyone knows, in Government contracts and in commercial contracts, that costs for which direct payment is not contemplated by the contract are a subsidiary obligation of the contractor. Travel administration is not your only subsidiary obligation. You can manage this. If you really want separate reimbursement for G&A on top of travel, negotiate for it before the contract is awarded. I'm still unaware of any policy. I view WIFCON as sort of a public service announcement that can be helpful to both contractors and contracting officers. I hope that any contractor who didn't get travel administration as a separate reimbursement in its last contract, and thinks this is a really big deal, will simply try to negotiate for it next time. It is pretty easy to make a persuasive argument, and you might be successful. Or, depending on the realities of the competitive marketplace, you might not. That's all fair.
  12. Don, I left it as "None" because it isn't germane to this thread. But in real life, that fill-in can also be negotiated. Here is a real-life example: I awarded a contract with a "None" in that fill-in because the contractor did not propose any subcontractors. A year or more after award, the prime contractor brought on a subcontractor with higher "approved" rates and invoiced for those higher rates for the subcontractor work. Of course, I rejected the invoice. The contractor was a cry-baby -- it really thought it was entitled to higher rates because they were "real" costs. But when I administer a T&M contract for commercial items, I don't care what a contractor's "real" costs are -- I pay according to the contract. I don't know why some contractors are troubled by this, or think of this as unfair.
  13. formerfed, I agree about the purpose of Don's post. It has not been established that there is any new policy, so I stop short of saying the policy is crazy. If it exists, I'll want to read it before passing judgment on it. Sometimes people mis-interpret or mis-apply policies, but here, we don't even know that there is a policy. Other than the original poster, it seems that no one in this forum is aware of any new policy.
  14. Corduroy Frog, When you speak of "Disallowance of G&A on Travel," do you mean (1) not agreeing to the costs during pre-award negotiations; or (2) disallowing the costs during post-award administration? If (1), an unhappy prospective contractor can negotiate harder or try some of the techniques that here_2_help mentioned -- this really is manageable. If (2), an unhappy contractor can use the Disputes clause of the contract to obtain redress.
  15. Don, I am unaware of any agency policy on this matter. My teaching to my peers is that if the fill-ins for FAR 52.212-4 with its Alt. I are blank (they usually are), then they should be read as "None." To me, that's the only fair reading. I wish more contracting officers and contractors would actually read the text of the clauses in their contracts. I admit taking a hard line on this matter because I really expect contracting officers and contractors to read the text of the clauses in their contracts. There are two principles that guide me-- If a prospective contractor wants something from a contract, it should negotiate for it pre-award. A contracting officer should not make payment post-award unless the contract allows for it.
  16. Retreadfed, In this thread, we are only talking about travel costs. If we start talking about other possibilities that could be covered under materials, then the goal posts are moving. Talking about travel costs... When administering a T&M contract for commercial items that included the clause at FAR 52.212-4 with its Alt. I, I do what the clause (with its fill-ins) says to do. If the fill-in for para. (i)(1)(ii)(D)(2) is blank or "None," then I pay nothing. If the fill-in provides an amount and a payment schedule, then that is what I pay. When forming a contract, I ask prospective contractors to propose fill-ins for FAR 52.212-4 with its Alt. I. When administering a FFP contract, I pay the price agreed to in the contract, without regard to the contractor's actual incurred costs or current indirect rates -- that's the nature of a FFP contract. I don't want to turn a FFP contract into a cost-reimbursement contract. When forming a contract, I negotiate a fair and reasonable price without necessarily coming to agreement on specific cost elements, and certainly without agreeing to rely on the cost principles of FAR part 31 for determining, negotiating, or allowing future costs. All of that is fair. May I ask you a question? In the context of FAR 52.212-4 with its Alt. I, would you hold that a fill-in of “None” in para. (i)(1)(ii)(D)(2) cannot stand if “Travel” is the fill-in for (i)(1)(ii)(D)(1)? It might look like this: 52.212-4 Contract Terms and Conditions-Commercial Items (MON YEAR) . Alternate I (MON YEAR) . fill-ins: (e)(1)(iii)(D): None. . (i)(1)(ii)(D)(1): Travel. . (i)(1)(ii)(D)(2): None. Can a prospective contractor negotiate for a different fill-in for (i)(1)(ii)(D)(2)? Yes! In my contracting officer practice, I ask prospective contractors to propose fill-ins for FAR 52.212-4 with its Alt. I -- so far, no one ever has, not even once, so every contract (or order) has a fill-in of "None" for (i)(1)(ii)(D)(2). I have not been "rather unreasonable and harsh" with any of them in using "None" in these cases. If the question arises during post-award administration, I point to the clause and its fill-ins which the contractor bargained for when the contract was awarded. That's fair.
  17. Thanks, here_2_help — this is a manageable situation.
  18. Oh, my — Was your question a trap? And there is no contradiction. But in the spirit of honest intellectual inquiry, let me ask: in the context of FAR 52.212-4 with its Alt. I, would you hold that a fill-in of “None” in para. (i)(1)(ii)(D)(2) cannot stand if “Travel” is the fill-in for (i)(1)(ii)(D)(1)? I think “None” is a permissible fill-in in such a case, and I am perceiving that you differ.
  19. Right. Each of those table exchanges is its own one-on-one -- that's why I mentioned "in the hall" and "at every table." Full speed ahead!
  20. One could add such text to contracts in his or her contracting officer practice. But not having such text need not bar a contracting officer and contractor from coming to agreement post-award. Often, I suppose, this question will first arise during post-award administration. When I wrote “everyone is happy,” I meant happy in a professional sense. To re-characterize that as “fat, happy, and dumb” goes beyond my intent, and I regret your re-characterization, even if laughed off with an emoticon. Perhaps, Joel, someone could make a considered and professional decision that differs from what you would do without being “fat, happy, and dumb”?
  21. Well, Carl, I actually like your idea of one-on-ones, and recommend that as the focus of the original poster's industry day. The original poster says they're more interested in listening rather than talking, so the industry day could be a series of one-on-one meetings with the most promising firms. Since this is for a regional event, with multiple program offices, it can be simultaneous and rotating one-on-ones (like a career fair), as there is no requirement for contracting officer attendance this early in the process. The contracting officer can be in the hall (or not), and need not sit at every table for every one-on-one exchange. Indeed, the agency's SADBUS can host the industry day without any contracting officer participation at all.
  22. I wrote how I might treat subcontractor bonds under para. (g) of FAR 52.232-5 earlier in this thread. If a contracting officer agrees to include subcontractor bonds under para. (g) of FAR 52.232-5, life goes on and everyone is happy. If a contracting officer does not so agree, the contractor will still be paid the full contract price eventually (assuming successful performance). If the contractor really wants those costs included in the first progress payment under para. (g), it can make that demand as a claim under the Disputes clause. Indeed, if a contracting officer refuses any payment request for any reason, the contractor may always assert the contract's Disputes clause for resolution. Thus, it isn't necessary that everyone agree.
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