ji20874

Well, Vern has answered the questions you asked. Inasmuch as your contract does not contain either the clause at FAR 52.216-7 or Alt I to 52.212-4, it seems to me that you do not have a cost-reimbursment contract (or other contract that allows for government payment to reimburse for indirect costs). That the contract does contain the clause at FAR 52.212-4 (without its Alt I) suggests it is a firm-fixed-price contract for commercial items, and there can be no cost-reimbursable CLINs in such a contract. That said, I don't know what your contract actually says -- only you know that. I hope this thread has been helpful.

The original poster is talking about paying G&A as an actual cost listed on the invoice. He or she is not talking about the contractor's internal bookkeeping after receiving payment. At least, that is what I have gathered from this thread. In the case of the original poster, it is important that he or she know whether G&A is separately reimbursable (payable) on invoices for that particular contract as a function of travel costs on that invoice. It is error to automatically assume that G&A, being a legitimate and real actual cost, is therefore separately reimbursable or payable on the invoice that is on the table now. The text of the contract matters. Generalized assumptions are not dispositive.

Not really. Don't you also need to know whether G&A is separately reimbursable on invoices for specific contracts? On most contracts, it is not.

In that case, are you certain the travel CLIN is cost-reimbursment? Does the contract contain the clause at FAR 52.212-4 with its Alt I? Does that clause apply to the travel CLIN? What is the fill-in for para. (i)(1)(ii)(D)(1) for Other Direct Costs? What is the fill-in for para. (i)(1)(ii)(D)(2) for Indirect Costs?

(1) Does the contract contain the clause at FAR 52.216-7 for the cost-reimbursable travel CLIN? (2) Does the contract contain text saying that travel costs will be a direct reimbursement with no mark-up or G&A?

Oh, and remember that FAR Part 31 only applies to some contracts, maybe not yours -- see FAR 31.000. Whether or not G&A is an "actual cost" might be irrelevant to your situation.

(1) Are you talking about including G&A on travel as part of pre-award preparing a proposal? Or are you talking about including G&A on travel as part of post-award invoice submittals? (2) Are you taking about fixed-price, cost-reimbursement, or T&M/LH contracts? (3) If T&M/LH, are you talking about contracts for commercial items (using FAR 52.212-4 with Alt I), or not (using FAR 52.216-7)? All of these may make a difference.

You might have introduced this information earlier in the conversation. A problem clearly stated is a problem half solved.

I understand, Vern. I appreciate that your newest comment introduces the word "allowable" before costs, while earlier seemed to apply to "any" costs. With your use of "allowable," we are in full agreement. Here, original poster wants to be made whole for incurred hourly rates that exceed contract rates. I am not certain that such an entitlement exists, so I do not want to agree with the original poster yet or generally assert that he or she is entitled to be made whole -- we have pointed out the ceiling rates matter and he or she hasn't addressed it. If those are ceiling rates, it might be too bad for the original poster. Your pretended disappointment in me is unnecessary, especially now that you belatedly introduce "allowable" as an adjective before costs. But this belated admission clears the air on your perspective and seems to un-do your earlier reference to "any increase" in a contractor's costs. Thank you.

But any imperative to make the contractor whole must be tempered -- I do not believe making the contractor whole is the paramount purpose of an equitable adjustment. Might a contractor's reckless actions, unreasonable costs, imprudent decisions, ignoring of other contract terms, or so forth might serve as a basis for an equitable adjustment not making a contractor whole?

Making the contractor whole is not the paramount purpose of an equitable adjustment. That is often the outcome, but more important is arriving at a reasonable price. But don't worry. If you and the contracting officer do not agree on a reasonable price, the contracting officer may unilaterally determine the price. Then, if you do not like that outcome, you will be able to invoke the contract's Disputes clause. But for now, your interests are probably best served by meaningful negotiations.

1. So you are dealing with two matters in a single REA (one under the Changes clause and one under the Differing Site Conditions clause)? Messy, messy. If it were me, I would deal with these separately as two matters (maybe simultaneously, but separately) -- I think conflating them will only cause you problems. These are different matters under different contract clauses. 2. You didn't answer this question. For the Changes clause matter, which Changes clause applies? Pick one: FAR 52.243-1, -2, or -4. 3. You didn't answer this question. Are you seeking an adjustment to the parent MATOC contract, or to the child competitively-awarded task order? Pick one. If the hourly rates in your parent MATOC contract are intended to be ceiling prices for task orders under the contract, well, then they are ceiling prices, right? I haven't seen the contract and I don't know if your contract sets ceiling prices, and you are making sure not to reveal anything that would allow us to be helpful. That said, it seems to me that if the changed task order work falls under the parent contract's labor categories, it seems entirely reasonable that the contract's ceiling labor rates would apply.

1. Are you seeking an adjustment under the Changes clause, or under the Differing Site Conditions clause? Pick one. You must only pick one. 2. If the Changes clause, which one of those applies to your situation? Pick one. You must only pick one. 3. Are you seeking an adjustment to the parent MATOC contract, or to the child competitively-awarded task order? Pick one. You must only pick one.

There are no contracts that are FAR 12 only. None. Nada. Zero. Zilch. Not a single one.

A best value decision can be wholly subjective, with no math whatsoever. It need not be quantified or dollarized. Or, it can be anywhere else on a continuum towards wholly objective. It depends on how the solicitation is structured.

Your entire premise is wrong. A contract can be both FAR Part 12 and FAR Part 15 at the same time. A contract for commercial items is awarded using FAR Part 12 in conjunction with FAR Part 13, FAR Part 14, or FAR Part 15. There is no such thing as a solely FAR Part 12 contract. Please re-read the first sections of FAR Part 12.

Yes. For Miller Act payment bonds, it may make a difference whether a claiming party is a supplier to the prime contractor, to a subcontractor, or to a materialman. But, these claims are usually between the claimant and the prime contractor's surety, so maybe it isn't so much a matter of federal contract law?

You might think in terms of subcontractor, supplier, and consultant. A first-tier subcontractor might be brought on specifically to perform some part of the contractor’s obligation under a prime contract. A supplier might be a party who ordinarily provides materials or services needed by the contractor in the ordinary course of business, and not for that prime contract. A consultant might be a party who helps the contractor improve its operations. This is not precise, but this is helpful to me. In some circumstances, it is difficult to parse among these, or to reconcile these with established but problematic written definitions. A materialman might be either a subcontractor or a supplier, depending on the facts.

A materialman is one of those who might be able to file a mechanic's lien for non-payment in a construction contract, and may be protected by the prime contractor's Miller Act payment bond. Or, maybe not. Sometimes, it is hard to tell whether a party is a subcontractor or a materialman.

lotus, Is there a problem with a best value determination being subjective?

lost, You must take care to never answer such as this in your situation without pointing to the solicitation. Always point to the solicitation if possible. Off-the-cuff answers can cause trouble.

Even though the answer to 1) is likely YES, I still would not say YES as the answer. Rather, I would say something like "see para. (h) of FAR 52.222-41 included in the solicitation."

You should not answer these questions. You should answer questions regarding the solicitation and work requirement. Re: 1) No, do not be inclined to say yes. If you cannot point specifically to the solicitation provision or contract clause that specifically answers the question, you should not attempt an answer. You might say simply that the Government's obligations are described in the solicitation. Re: 2) A prospective offeror can hire advisers to help it put together its bid. You should stay out of this. You might say simply that the Government's obligations are described in the solicitation.

"It depends" is almost always right. 🙂 That said, I did not discern any hints in the original posting that the contract pricing was "based on established catalog or market prices for specific tasks performed and under standard commercial terms and conditions" -- in fact, to me it strongly suggested otherwise, given the cost analysis the original poster wanted to do. For that reason, and knowing only what little the original poster said, it still sounds like construction to me. Maybe there is more to the story?

A brick is a construction material and is an item of supply. A contracting officer can use a commercial item contract to purchase a brick. A brick building is a matter of construction of real property. A contracting officer cannot use a commercial item contract to build a brick building.