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Heretalearn

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  1. We are a subcontractor on a prime contract for services made pursuant to an 8(a) award. The copy of the prime contract which we have does not reflect execution by the SBA, but the contract contains FAR 52.219-17. The 8(a) small business is in substantial arrears of our invoices (there are no disputes about the services), which is a subcontract default allowing us to cease performance immediately. If we do so, the 8(a) is unlikely to be able to pick up the performance gap for the services, which are essential services. The agency is able and likely to use its own resources for an unknown period of time to provide the services. Under the prime contract it may then, among its remedies, backcharge the cost of doing so to the contractor. Am I correct that, technically, the contractor is the SBA? Might the SBA then be liable for the cost of the agency to provide the services itself? If the answers to the two questions are "yes", would informing the appropriate SBA District Office of the arrearage and potential for the 8(a) to default (if we cease performance without notice) be something the SBA would be likely to broach to the 8(a)? Or would the SBA be likelier to allow events to follow their course without any kind of intervention? We're trying to analyze whether, if the 8(a) company has any money, putting the fear of God, the agency and the SBA into them might get us first place on the payment list - or if snitching on the 8(a) to the agency and the SBA is just going to earn us a big yawn. Thanks for any insight.
  2. We have successfully used the Changes clause to receive equitable adjustment, including G&A and fee, under similar circumstances. It did take a claim and appeal, but the appeal was dismissed upon review of the COFD and Notice of Appeal by the agency's legal team, and subsequent settlement for the full amount of the claim.
  3. The "strategery" is fun. More to the point, as long as government and the competition game the system, everybody has to. In the scenario discussed, if the ex-government employee is on the incumbent's proposal team and the government would like to retain the incumbent, the consequences of notification and "cure" might change everyone's position dramatically. In my experience, in my industry, it's not worth the expense and disruption of protest just to keep a contract running a few more months, profit margins are too slender. But only a fool would throw away the option.
  4. Read Subpart 42.12 to determine whether any transfers of assets or liabilities attendant to the purchase would require you to obtain government approval through a cognizant ACO. The subpart is pretty brief and lucid.
  5. This may be an overly simplistic interpretation, but the language doesn't say anything about review time. I would think that if an invoice ultimately proves to be proper, the clock would have started ticking upon receipt by the KO/COR ("the office or person designated in the contract where the contractor first submist invoices") regardless of when the invoice was actually determined to be proper.
  6. Welcome to limbo. You no longer have small business preferences, and you probably don't have the economies of scale enjoyed by really large businesses. Although there's more lip service than in the past, there is no meaningful legislative effort to balance the playing field for midsized businesses, largely due to trade agreement prohibitions. There's no effective lobby. You may have difficulty locating small businesses of the right category to supply your subcontracting needs at cost-effective prices. If you're in a service industry, you will probably be training your small business subcontractors to compete with you directly in the future. You need a plan.
  7. Reading the Subcontractor Wage Adjustment discussion under this Topic, especially post number 25, may be useful to you in determining your approach to flowing down 52.222-43 or 52.222-44.
  8. [Emphasis added.] If an anti-deficient contract is void on initiation, how would something like this happen? If the contract is void, why did he have to do anything? Or do you mean he had to continue maintaining the site if he wanted to preserve or salvage something?
  9. Add small business outreach to someone's job description and give that person some time and tools to do bona fide outreach. Make sure that person gets enough training to understand the undertaking and to document it. Research the probable NAICS codes and size standards associated with your major purchases; Search them on SBA's Dynamic Small Business Search tool; Many small businesses aren't aware of the SBA, size-standards or government contracting regulations; develop a simple script and follow-up sheet to help walk them through it; the best time to do this is before a purchase is made - a "vendor preference" program for small vendors or vendors who answer is an incentive; there's no incentive for a small business to trouble itself with the complication if the purchase has already been made; [*]If you have the resources, create a link on your website for potential vendors - it's content and use should be pretty simple, an overview of the commodities you use and maybe size standards for the major ones - with contact information for your outreach specialist. [*]Keep a hard or electronic record of each contact and response, and each small business actually used; if you have someone who uses ACCESS or some other database, that could be helpful if you want to get really serious about it; an Excel spreadsheet might be as good for your purposes;
  10. Absolutely. And not just facts and answers. Ways of approaching, articulating, analysing, reasoning, resolving and retrenching, When I'm being stupid, I'd far rather experience the discomfort of having been called on it than not learn anything by it.
  11. (Emphasis added.)I'm probably being obtuse. If this is a stupid question, I'm sure someone will point that out. Is there a circumstance under which a specific statute, or general constitutional authority of the government to enter into contracts, could operate to authorize a modification absent a clause providing authority?
  12. Yes, I believe a subcontract with a non-Federal entity, even if the prime contract is Federal, would be considered a commercial sale for this purpose. This should help you, but it's a double-edged sword. GSA MAS's are awarded on the premise that GSA's customers (Federal entities and some other entities that are allowed to procure through the schedules) will receive a discount from the vendor's commercial prices. It seems counterintuitive, but when you're pricing a subcontract under a Federal prime contract, your customer, the prime contractor, is a commercial customer, and may not receive the GSA discount, event though the ultimate recipient of the discount would be the Federal agency. Your risk in giving the GSA discount to the prime contractor would be that you could trigger the Price Reduction Clause in your GSA Schedule contract. At least that's the way our Schedule works. We also sell services. If you're able to provide commercial invoices, your CO may not require a commercial price list. What she may do is require a spreadsheet showing, for each position you're pricing, the starting wage and each cost element burden, including G&A and Fee. For our Schedule, the GSA discount is taken from G&A and Fee. She may ask you to back into the commercial invoice total, and show that the G&A and Fee (or whatever her price reduction trigger is going to be) on the commercial invoice is higher than it is for your GSA price. In terms of your pricing, you need to read and understand the Commercial Sales Practice format document, the Maximum Order provision, and the Price Reduction clause, and how they work together, thoroughly. In our industry, GSA price lists are developed geographically by Wage Determination region, usually in conjunction with a GSA opportunity that's actually been issued as an RFP or RFQ. The GSA price list is developed simultaneously, but separately from the opportunity pricing, but ordinarily has to be submitted and accepted by the GSA CO prior to submission of the related proposal. Different COs may interpret an accepted price list's impact on commercial pricing differently. (Is it limited to the Wage Determination geography? Does only the Price Reduction Clause cost element impact the commercial pricing, or is the ultimate hourly billing rate compared to commercial pricing?) You may want to withdraw GSA price lists developed for bidding purposes if you lose the award, just to keep control of what's out there, and because if you don't you may have to monitor each new Wage Determination for the region and update the price list accordingly. It can get to be pretty high maintenance. If your company is responding to the solicitation without professional guidance, you should find a book or seminar, it's not a contract to be entered into lightly. Though, upon notice, you're likely to be able to terminate the contract without cause, you can do a fair amount of financial damage to the company in the interim if you don't understand the rules, and if you're awarded a task order under the Schedule, you may be "locked in" at least for the length of the task order. GSA audits compliance with site visits and document reviews. Find out what a Schedule means for your company in terms of complying with commercial pricing restrictions, small business subcontracting goals for commercial as well as Federal subcontracts, developing procedures for and being able to demonstrate compliance with "open market" strictures and with the Trade Agreements Act. Submitting your solicitation response isn't pass/fail. If the PCO wants you to revise or add to your response, she'll let you know.
  13. Right. I'll rephrase. I don't have a definition or a citation. But, in my experience, when a CO makes a distinction for some reason between a Federal contract and a commercial contract, the defining element is whether the sale is directly to a Federal agency or not. In my experience, a sale to other than a Federal agency is considered to be a commercial sale.
  14. I'm not very familiar with the MOBIS Schedule and I don't have the solicitation open, but for what it's worth: I believe GSA Multiple Award Schedules are, by definition, for FAR-defined Commercial Items only. If you've never offered or sold your services commercially, you may not qualify to hold a Schedule; Read the FAR definition of Commercial Items very carefully to see if there's some wiggle room in defining your item as Commercial; I believe even if you haven't made a lot of sales, having offered the item commercially in "substantial" quantities might squeak you through, in which case a commercial catalog or price list could be helpful backup; I think for most purposes, anything not Federal is commercial; you may be able to use invoices for subcontracts from commercial prime contractors, or municipal, state, or other not-for-profit entities that are not Federal Agencies, if you have any; Look for the MOBIS Schedule holders on GSA Advantage and open their T&C docs and/or catalogs, and visit their websites; some of them may contain something helpful, though I imagine most of them aren't going to be not-for-profits with predominantly Federal contracts and grants; but who knows, maybe lots of them are.
  15. You might try to make it an opportunity to build a better relationship with the CO. You might get snubbed, but it probably wouldn't be a disaster of Titanic proportions. You might start by agreeing that the employees are exemplary and of unmeasurable value. Then remind her/him diplomatically, that the financials he/she has for reference demonstrate that, alas, the company just isn't able to give significant raises right now (maybe slide in something about the Federal pay freezes and shared sacrafice). Possibly add that the CO's concerns for the employees have awoken you to the need to recognize the enormous contribution made by the employees to your company and to the project mission, and ask for the CO's guidance and input in developing a recognition program. Of course if you ask for the CO's guidance and input you should be prepared to accept it. If you get the tone just right and are genuinely willing to entertain constructive suggestions, you might give the CO a place to park his/her partisanship for the employees. If it doesn't work, you're no worse off than you were.
  16. I don't know the answer. I suspect you won't get a better one than you got in the "Subcontract Management" discussion. But your scenario begs a few questions. Does the price to the Government include fee for the first-tier small business subcontractor? If so, does the first-tier subcontractor add any value? Does the second-tier, large business subcontractor have any affiliation (meaning here legal affiliation, parent/subsidiary relationship or common ownership/control) with either the first-tier subcontractor (in which case the first-tier may not actually be small) or the prime contractor? If the subcontract(s) require CO approval, will they pass the sniff test?
  17. Any outyear escalation of wages/fringes/statutories for SCA positions, adjustment of which is provided for under 52.222-43. Though, again, my observation was colloquial, I think the information contained in Mr. Edwards' last post makes consideration of such a concept moot.
  18. I state that the offer is unresponsive because the solicitation requires an offer that does not include any allowance for any contingency to cover increased costs for which adjustment is provided under FAR 52.222-43 The offeror has provided an offer that does include such allowances. The offer doesn't respond to the requirement. It's unresponsive. But as I also stated, I don't know whether a PCO would be required to deem the offer unresponsive for purposes of a procurement. My observation was colloquial.
  19. [Emphasis added]I'm not sure this doesn't parse the language unreasonably. In the scenario above, the contractor is not due an adjustment because of its wage practice, but that doesn't impact the fact that adustment is provided for under the clause. The contractor has warranted with its offer that its prices "do not include any allowance for any contingency to cover increased costs for which adjustment is provided under this clause". (Presumably one reason for the provision is to avoid the type of ambiguity Regor faces.) I don't know whether the PCO is required to deem the offer unresponsive but it is, in fact, unresponsive. As a competitor, were I privy to the information, I would at least analyze whether an award under these circumstances would be vulnerable to protest.
  20. Find your commodity/service at the GSA eLibrary: http://www.gsaelibrary.gsa.gov/ElibMain/ElibHome Launch the appropriate link from the description. (It might be Vehicles/Watercraft, but you might have to surf around.) A list of Schedules will appear, by number - for example (Schedule) 84, which includes marine craft & related equipment and services; launch the appropriate Schedule number; a list of Special Item Numbers (SINs) will appear, choose and launch the appropriate SIN(s); a list of vendors will appear in a table giving vendor name & contact info, socioeconomic status, etc. Vendor names are far left column, contract T&Cs & catalogs are far right columns. Most entries are links that can be launched. The prices in the catalogs are discounted for GSA Multiple Award Schedule purposes. If the solicitation/order isn't processed against the MAS the prices don't apply (though a vendor could offer a non-GSA Government agency the same price). I'm not sure you could ask for the discounted price in a competitive procurement; I'm not sure whether you could in a sole-source procurement either, but it seems likelier. Whether the prices in the catalogs are accurate and current depends on the vigilance of the CO in mandating timely revisions. Some do, some don't.
  21. Whether the proposed travel was an element of performing the statement of work or a deliverable requirement in the contract, or merely an "other direct cost" could potentially enter the hardball equation.
  22. Without a certificate of cost and pricing data, and absent intent to decieve, I doubt fraud or defective pricing would come into it, although that doesn't preclude someone bringing it up. If the contractor had under-estimated a cost element a CO would still expect it to perform at the accepted price. Even given that, my company would voluntarily reduce the price by the cost of the undelivered performance if the CO asked us to.
  23. Not post #6. I'm all for it. When I said, "some parameters might need finessing," I had nothing more in mind than that there might be a detail here or there to iron out. When I said Mr. Edwards invented a specialty, I meant that CPA's would jump at the work. I don't think it would be excessively expensive if a "pass" would last awhile, or until an accounting system was significantly altered. I don't know that I'd want to pay for an entire review for every bid requiring a determination though. Why overthink something that makes sense?
  24. Why not? CPA firms do opinion letters now. Some parameters might need finessing, but I think you just invented a specialty.
  25. It's not always politic for a sub to go straight to a CO. Some subcontracts prohibit it, and some CO's won't talk to subs. If that's your client's situation, I don't know why they can't just ask the prime whether it's a CO request. If it's not, what would the prime even do with it? I've never seen a lower tier plan as a contract submittal, and it's goals aren't reportable in eSRS unless the CO puts the plan in from his/her end.
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