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Everything posted by Heretalearn

  1. It shouldn't unless it's a separate corporate/legal entity. A subsidiary can be (usually is) a separate corporate/legal entity.
  2. There aren't any pat answers to your quandary (except the one Vern Edwards gave you in the first paragraph of his post #14)., Your details are a little sketchy and ambiguous in places for anyone to give you answers which would be much practical use to you. Presumably you have a subcontract with the contractor only, so all of your obligations and protections flow from the subcontract and are owed to the "Prime" Contractor. (I'm a little puzzled that you're being asked as a to counter-execute the "prime" contract modification, but I don't know that that's unheard of.) If you turn down the offer your employees won't be eligible for government-paid training. There's your business decision. Do you mean then they can't get the training, or that you can't get it paid for it? I'd be asking myself whether the "Prime" would still want to use my company if my employees don't get the training, and whether my subcontract would allow them to dispense with me for that reason. I'd also be asking myself whether the "offer" is a change to the original subcontract specifications for which, under the subcontract, I should be immune from unreimbursed costs. These are questions for a lawyer. Your other questions are mostly logistical. To whom you might write a check would depend upon to whom you could owe reimbursement. How you could conceivably collect from employees could well be covered by law, and you should have an attorney review at least that portion of it. Based on the details given, I don't see how options (by which I suppose you mean option periods) would enter into it.
  3. That there are business risks at issue for you doesn't make the arrangement illegal. Is the "prime" seeking your input and counsel with regard to constructing the modification, and have you advised it of your concerns - or is the "prime" intending or attempting to impose it upon you unilaterally somehow once the prime and agency have negotiated the mod?
  4. Why should you have to deal with them? Because "They got their hands on various audit reports and demand (you) issue contracts for various services identified in them"?
  5. As should 52.222-43 or 44 (the Price Adjustment clauses) with their Part 22 prescriptions. Pay attention to the time frames.
  6. Either works out to the detriment of (statutorily and regulatorily undefined) mid-sized businesses in my experience. Diversity favors small businesses with preferences, and strategic sourcing favors truly large businesses offering economy of scale.
  7. H2H, the triggers are similar, but not identical. (All emphasis below is added.) Limitation of Cost: "The Contractor shall notify the Contracting Officer in writing whenever it has reason to believe that (1) The costs the Contractor expects to incur under this contract in the next 60 days, when added to all costs previously incurred, will exceed 75 percent of the estimated cost specified in the Schedule; or (2) The total cost for the performance of this contract, exclusive of any fee will be either greater or substantially less than hand been previously estimated." Limitation of Funds: "The Contractor shall notify the contracting Officer in writing whenever it has reason to believe that the cost it expects to incur under this contract in the next 60 days, when added to all costs previously incurred, will exceed 75 of (1) the total amount so far allotted to the contract by the government..." The question was: "Does the FAR indicate that a Contractor-at its own risk-EXCEED funding limits on a CPFF contract?" It's pretty common for industry execs and managers to refer to cost and funding interchangeably. I'm not sure whether the OP really meant funding rather than cost, but I believe the answer in either case is that the Contractor does perform at its own risk when it exceeds either the estimated cost specified in the schedule or the total amount so far allocated to the contract. Limitation of Cost FAR 52.232.20(d): "Except as required by other provisions of this contract, specifically citing and stated to be an exception to this clause (1) The Government is not obligated to reimburse the Contractor for costs incurred in excess of (I) the estimated cost specified in the Schedule...(2) The Contractor is not obligated to continue performance under this contract... or otherwise incur costs in excess of the estimated cost specified in the Schedule, until the Contracting Officer (I) notifies the Contractor in writing that the estimated cost has been increased and (2) provides a revised estimated total cost of performing this contract..." Limitation of Funds FAR 52.232.22(B ): "...The Contractor agrees to perform, or have performed, work on the contract up to the point at which the total amount paid and payable by the Government under the contract approximates but does not exceed the total amount actually allotted by the Government to the contract... (e) If, after notification, additional funds are not allotted by the end of the period specified in the Schedule..., upon the Contractor's written request the Contracting officer will terminate this contract on that date... (f) Except as required by other provisions of this contract, specifically citing and stated to be an exception to this clause (1) The Government is not obligated to reimburse the Contractor for costs incurred in excess of the total amount allotted by the Government to this contract; and (2) The Contractor is not obligated to continue performance under this contract... or otherwise incur costs in excess of (I) The amount then allotted to the contract by the Government..."
  8. Given the question, I would have thought the Limitation of Funds clause more pertinent than the Limitation of Cost clause. Maybe I misunderstood the questions.
  9. In my experience such a plan would describe the responsibilities of the prime and each sub as they relate to each other, the distribution of work, the lines of authority (bearing in mind that the prime must be "in charge"), perhaps a past working relationships among the prime and the sub(s), the qualifications of the subs, the prime's past experience in managing subs, etc. The Government wants to know how the use of the subs will benefit the project, how it would all work smoothly, and if there's any prime/sub management experience or history that would help them be more comfortable that all will run as anticipated.
  10. Post 17 is spot on as it pertains to the original quote. The rub is that prospective sellers who don't know how to "break in", don't know what they don't know. Unfortunately, even taking the time to give every cold-caller the information in post 17's last paragraph would, I'm willing to be, be time-prohibitive.
  11. As an incumbent, using the question and answer process to strategically ensure that competitors are aware of "hidden" costs can sometimes be useful.
  12. AmericanJan, you seem to be implying that the government is behaving coercively. If the government POC phrased this as a question (I.e, it's not holding the change order "hostage" for the free brackets), it just sounds like negotiation to me. However, if you're entitled to payment for the change to A and you're entitled to payment for the change to B, the real question is whether you see an benefit to giving away something you're entitled to payment for.
  13. Bravo. Illustrates the relationship between legislatures and citizenry pretty well too.
  14. Hard to say. Sandburg,Thomas, Frost, Plath, Dickinson - I like best 20th century American poetry, but Giorgos Seferis... Or Dr. Seuss. Probably one of those.
  15. How about adding favorite poet to each list.
  16. Is the adjustment clause 52.222-43 or 52.222-44 (each of which applies to both WDs and CBAs)? Has the contractor reviewed the adjustment clause in its contract? Is the CO basing the reduction demand solely on the "operation of law" premise?
  17. Mr. Edwards, I believe anyone who visits this forum regularly has noticed the decline in your participation, and is disappointed to have lost the benefit of your expertise and perspective. One can understand how it could become often tedious for you. The format here of deep knowledge and intelligent (sometimes brilliant) exploration, coupled with the juxtaposed viewpoints of multiple experts, makes this site the best Government contracting continuous learning forum there is, from both Government and industry perspectives. No doubt the vast majority of participants wish you would reconsider. If you don't, thanks very much for the many things I've learned here from you.
  18. Your original post asked what contractual remedies are available. Posts 2 and 3 gave you two good options. Pick one.
  19. Do I understand correctly that that this is essentially a dispute for price adjustment at this point, rather than an issue of timeliness or applicability of a CBA? The CO's position is that the CBA is inapplicable due to untimeliness. The proposal for price adjustment occurs within 30 days of the contractor "receiving" the CBA/Wage Determination. If the CO won't complete that process and incorporate it into the contract, there's no trigger for the price adjustment until applicability is resolved. Or am I just over-thinking this? And 52.222-41 ( t ) doesn't supersede this principle that the CDA applies to disputes for price adjustment except claims or disputes relating to "penalties..." etc.? I'm sorry to be obtuse, and I don't mean to beat a dead horse. You're obviously correct or Tecom wouldn't be an ASBCA case. I would just like to have a little better fundamental grasp of this if possible.
  20. FAR 52.222-41(t) cedes jurisdiction over "Disputes concerning labor standards" to DOL (in lieu of the Disputes clause) and cites DOL "procedures for resolving disputes concerning labor standards requirements", 29 CFR Parts 4, 6 and 8. 29 CFR 4.4( c )(4) says that any questions regarding timeliness or applicability of collective bargaining agreements must be referred to DOL for resolution, but doesn't specify how or with whom to initiate resolution. Any specifics in Part 4 appear to relate to issues not associated with timeliness, such as changing Wage Determinations and things like questions about substantial interest, substantial variance and arms-length negotiations proceedings. Apparently resolutions of such items are made by "a request... submitted in writing to the Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210". Apparently nothing more formal, and no address or subdivision more specific than that is required. Part 6 seems to pertain to enforcement actions instituted by the Associate Solicitor for Fair Labor Standards or a Regional Solicitor and is heard before an Administrative Law Judge. Part 8 refers solely to appeals concerning questions of law and fact from final decisions of the Administrator and Administrative Law Judges. Tecom, Inc., the case provided by Retreadfed, is an appeal of a COFD on a claim (presumably pursuant to the contract Dispute clause). We (we're a contractor) have a fact situation highly analogous to that described in Tecom, Inc. Our CO, having failed to provide the FAR 22.1010 Notification to Interested parties, has unilaterally exercised the agency's 52.217-8 six-month extension, but has declared our successor-CBA untimely and has declined to incorporate it into the contract. We have not filed a claim/requested a COFD. Can anyone clarify what our next procedural step should be in order to request relief? The CFR seems (to me) to mandate just a "written request" to the DOL Administrator at the catch-all address above. But we're far more familiar with the claims process under the FAR Disputes clause, and Tecom seems to have been able to proceed that way despite DOL jurisdiction over SCA matters. Any insight or perspective is appreciated.
  21. 22.1012-2( b ) cites "...a modification as specified in 22.1007(b)". Look at ((1): "...extends the existing contract pursuant to an option clause or otherwise". A new or changed CBA isn't effective under Section 4© of the Act "...if notice of the terms of the new or changed collective bargaining agreement is received by the contracting agency after award of a successor contract or a modification as specified in 22.1007(." My surmise is (correct me if I'm wrong), that the rate increase you refer to is contained in a multiple-year CBA, and that you have had notice of its terms prior to making an "award" of a modification exercising an option or making an extension. If you did receive notice of the terms of the new or changed CBA after award of the modification exercising an option or making an extension, then, in accordance with 22.1012-2 ( c ), I believe you must have made the 22.1010 notification before the limitations in 22.1012-2 (b ) will apply. If the limitations do apply, how they apply depends on your fact situation. The language is pretty convoluted - charting the phrases against your facts can help. I hope this helps. It's not based on any special expertise.
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