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ji20874

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Posts posted by ji20874

  1. Maybe the Government thought it would be able to establish price reasonableness, but is now unable to do so?

    Maybe the solicitation calls for a cost (or price) realism evaluation?

    There may be other reasons where the Government would ask for additional data.  But you don’t have to respond if you think the data request is too burdensome or intrusive, and you are willing to risk not being considered further.  

    I do not understand your reference to corrective action.  

  2. Does your contract include the clause at FAR 52.222-2, Payment of Overtime Premiums?  You might have to get approval before incurring any overtime, whether or not compensated, depending on the reason for the overtime and/or the amount of the overtime premium.

    If you are allowed to pay overtime premiums under the contract (a YES or NO question), then the method of payment to your employees is governed by your disclosure statement.  If your disclosure statement is silent, then generally any reasonable common or customary approach can be justified.  You can get the government's approval up front, such as by updating your disclosure statement or entering into an advance agreement (FAR 31.109).  Or, you can wait and get the government's approval after you incur the costs and submit your voucher or invoice.

  3. Negotiate an IDIQ contract instead of a requirements contract, and have the government promise to order the difference between whatever the other contractors purchase and the contract minimum.  And negotiate a reasonable minimum, not a nominal minimum.

    Or, accept the risk that goes along with a requirements contract in exchange for the goodwill you seek.

  4. Is contractor A a willing party to the requirements contract?

    Who can issue delivery orders under the contract?  Other contractors?  I don’t understand how a Government agency, in a contract with contractor A, can force other contractors B, C, . . . n, to order their widget needs from contractor A. 

    Maybe contractor A needs to negotiate for some other contract type.

  5. Maybe the contract doesn’t require the contractor employee to travel on Sunday, but merely allows it by offering free transportation?  Would that change anyone’s thought?

    Based on the information from the original poster, I remain comfortable in my thought that the contractor employee’s travel time does not qualify for hourly-rate payment under a FAR-based labor-hour contract.  This is based on the facts of a labor-hour contract agreed to by the parties as reflected in the clause at FAR 52.232-7 or FAR 52.212-1 w/Alt. I, whichever is in the contract.  The original poster may have abandoned this thread without providing any additional information that might be helpful.

    For the original poster, since this matter “always seems to come up,” you might think about including a term or condition in your next proposal so that an agreement of the parties is reached before the contract is formed.  Then, there will be no confusion.  

  6. Contractors are free to compensate their employees for travel time outside normal working hours.

    For those that do, one supposes those costs will be charged to the appropriate indirect charge account, and those costs will be part of the hourly rate the government pays on a labor-hour contract.  

    The contract clauses prescribed in the FAR for labor-hour contracts control how the Government pays the contractor, not how the contractor pays its employees.  Contractor employees are not Government employees.    

  7. I’ll all in favor of thinking outside the box of homemade self-imposed limitations.  But I don’t think a contracting officer can take away a privilege (or a right?) that the Congress and the President granted through the passage of a public law.  Have proposals been submitted yet?

    I also don’t think a contracting officer can grant a federal court the right to hear a bid protest.  Again, by act of Congress and the President, the COFC cannot hear bid protests (except for narrow CICA reasons not at play here).

  8. Since this question always seems to come up, it would be easy for the contractor to negotiate for the outcome it seeks before the contract is awarded.

    We don’t know whether the contractor is paying its employees for Sunday travel.  If it is, the contractor already knows how to charge those costs to its indirect cost pools — and since the hourly rates in the contract include all indirect costs, the Government is already paying the contractor for the travel time.

  9. You asked for thoughts.  I’ll share mine.  A FAR-based labor-hour contract allows for hourly-rate payment for hours of contract work.  A contractor employee is not performing contract work while eating his breakfast, brushing his teeth, or commuting to the work site.  Whether the contractor pays its employees for this time is its own business, but that time is not billable to the government on a labor-hour contract.

  10. The napkins case is interesting -- thanks for sharing it.  I can imagine that a government cafeteria contracts for linen service for a period of time -- every morning, the contractor delivers clean napkins, and every evening, it picks up the dirty napkins and launders them -- the linen service retains ownership of the napkins.  This is not a contract for a one-time rental of napkins, but is a contract for a full linen service. So yes, SCA applies.  The backhoe case is different.  It all hinges on the single "principal purpose" of the contract.

  11. Subsidiary, division, it doesn't matter.  For me, in my practice as a contracting officer, if the multiple-award IDIQ contract holder was MNO (a subsidiary division of ABC and sister to QRS), I would summarily reject an offer from either ABC or QRS — I would only consider an offer from MNO, the contract holder.  I don't need a legal basis -- FAR 16.505(b)(1) asks me to consider contract holders, not all their kinfolk, and that's sufficient basis for me to reject the offer.  If ABC or QRS objects to my action, they would declare the legal basis in their protest, and my attorneys would advise me after studying the protester's legal argument.  Speaking of all the kinfolk, how am I supposed to know that they are the same family -- am I supposed to read all of the incorporation documents and so forth?  No, that is a wholly unreasonable demand to put on a contracting officer. 

    Imagine my real name is John Smith, and I have a registered DBA as Jane Doe.  If I set up a bank account in Jane Doe's name, then I need to use Jane Doe as my name when I use that account.  If I walk up to the teller and present John Smith identification, I would expect the teller to turn me away.

  12. Fara Fasat,

    Your initial impression was sound.  Sometimes, that’s the place to stop.  If it happens in real life (if you’re on the Government side), or if you want to make it happen in real life (if you’re on the contractor side), Carl gives good advice to talk to your lawyers.  For me, in my practice as a contracting officer, if the multiple-award IDIQ contract holder was MNO (a subsidiary of ABC and sister to QRS), I would summarily reject an offer from either ABC or QRS — I would only consider an offer from MNO, the contract holder.

  13. One last thought -- the question is not whether or not you're taking possession of the backhoe -- that is an irrelevant question -- the correct and pertinent question is whether the principal purpose of the acquisition (purchase or rental) is to furnish services in the United States through the use of service employees.  Sometimes, you have to ask the right question to get the right answer.

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