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  1. There is something else that has not been discussed yet. In B-291878.3; B-292448.2, Leisure-Lift, Inc., the GAO specifically said the contracting officer may accept an offeror's Buy American Act certification and has no duty ensure the component test is met unless there is a reason to suspect the validity of the certification. I am not aware of anything since which raises questions about the validity of the decision.
  2. I am an attorney who recently retired from Wright-Patterson AFB. There are several JDs and MBAs who are working as contract specialists (and I remember two contract specialists that were selected for atttorney vacancies) after going through an intern program. I believe they started as GS-07 and received non-competitive promotions to GS-11 (possibly GS-12, but I am not sure of that). If you have not already done so, you should look into the various intern programs sponsored by the military and civilian agencies. If you are mobile and fortunate enough to be selected, try to get into one of the big buying offices because small offices do not have the same promotion potential. With respect to the previous comments: I do not believe relocation expenses are authorized for new hires (I may be mistaken, I did not have to worry about that). As a practical matter, buying agencies are generally not authorizing relocaton expenses even for promotions, which puts a damper on being mobile. I do not believe intern programs will be prejudiced against you because you are an attorney; as I said, we had several in our intern program at WPAFB. On your application, your legal degree should be a positive factor, and can be prominently mentioned. Do not dwell on it, and do not come across as God's gift to the Government because you have a JD. While the degree is a positive factor, you will probably be competing against a lot of others with a JD/MBA. To the extent possible, stress whatever business experience you have. People who have worked with contracts (including grants sought by non-profits) have useful experience. Take JI's comments about how to act to heart. Good Luck!
  3. Vern, a couple of things: 1. The Contracting Officer may well be trying to negotiate ceiling rates, but the three items mentioned in the original post don't seem to lead to that. - Notify the Contracting Officer before incurring direct labor rates in excess of those proposed in response to the task order RFQ; - Provide a detailed rationale for the need to utilize personnel with direct labor rates exceeding those proposed in response to the RFQ, including a description of the benefit to the Government; and - Provide a detailed breakdown of how the costs associated by the increased direct labor rates will be absorbed within the direct labor cost ceiling on the task order." The first item seems more like a limitation of cost type provision (provide notice if the rates will be higher), but does not prohibit higher rates. The second item requires notice and justificatoin when using personnel who are paid at higher rates, but does not prohibit use of such personnel. Unless the RFP establishes a "labor cost ceiling" (which to me does not really fit within the construct of a CPFF contract), the third item is ambiguous. 2. The contracting officer may be requesting labor rates as part of the proposal, but the three items seem to apply during performance, not as part of the information requested before award. I have no problem with the Contracting Officer doing this, but it is not at all clear what the Contracting Officer is going to do with the information. For example, if actual cost rates are higher than those proposed, and the contractor provides the notice/explanation required, then what?
  4. What is the estimated value of the contract? What is the contract type? What are the proposed CLINs? Why can't you use progress payments to provide funding?
  5. A requirements contract is a promise from the government to order all its requirements from the contractor, and a promise from the contractor to fill all orders, subject to maximum order limitations (which may be a limit on a single order, a limit on a combination of orders within a specified period, and/or a limit on the total orders under the contract). These mutual promises provide the consideration for the contract, even though the Government does not promise to order anything. It seems to me, therefore, that despite the language in the GAO decision, the scope of the contract is the maximum order limitation, not the estimated quantities. As the contractor, I would argue that the failure of the Government to place orders within the maximum order limitation (regardless of how much in excess of the estimate) would be a breach of the Government's promise. (All of this is premised, of course, on the assumption of a properly prepared estimate.)
  6. Assuming the risk of Vern's laughter and head shaking ... Perhaps this is a bit simplistic, but if an employee spends four hours a day working on the original subcontract, that subcontract is charged for four hours. The rest of the employee's time is charged to whatever effort it supports, such as the contractor's non-Government business, the contractor's fixed-price contracts, or the contractor's other cost reimbursement contracts (e.g., the new subcontract). Charging more or less than the four hours actually worked on the subcontract should end up in some kind of cost mischarging situaton. (NOTE: I do not think you are suggesting that a contractor employee must devote the entire work day exclusively to one contract.) "The labor is direct and the office-related expenses are indirect. You cannot fragment the base of the full burden pool by having the employee charge 1/2 his/her time to the base of the offsite pool." I do not understand what is being fragmented, or why you cannot do that. The indirect office expenses are supporting four hours of effort on the original subcontract and four hours of effort on the new subcontract. Whatever the rate for the office related expenses, that rate should be applied to each hour and charged to the subcontract effort that is direct charged. Perhaps you can give me some made-up numbers to illustrate your concern. BTW, I do not understand the program manager's budget concern. The original subcontract funding will not be burned up faster under this arrangement, it will be burned up slower because the monthly direct charges will be reduced by four hours per day for this employee. In addition, it will be charged at the on-site rate, since that is where the work will be performed.
  7. H2H seems to think the employee costs are included in an overhead pool, while Retreadfed seems to think Is the employee's time charged directly to the contract. I read the post as Retreadfed (the time is charged directly). SLK, can you clarify so that the discussion can focus on your (now mooted) situtation and then can determine what the difference might be between direct and indirect charging?
  8. Just back from a wonderful vacation with the grandtwins and reading the discussions. My apologies for not doing the research to check my memory about the rules on options. The legal opinion is described as saying that you cannot exercise the -8 option because it was not included in the J&A. There are two very practical consequences of this option. First, you must negotiate a new contract because there is no option available, which will require a proposal, evaluation, etc., and which may require a break in service. Second, you will not be able to take advantage of the current contract pricing which is built into the -8 option. Does the legal opinion give specific citations to support its conclusions? If you can provide those citations, it might help address the specific question (i.e., can you exercise the -8 option if you get a new J&A?). My understanding of the GAO decision on exercise of an unevaluated -8 option is that the option exercise IS authorized if there is a new J&A. Thus, I disagree with comments like:
  9. Your posts do not indicate (at least to me) whether you work for a contractor or the Government. If you work for the Government, do you mean that you would ignore the Executive Order by not including the clause required by the order? If you work for a contractor (or are yourself a contractor), do you mean that you would not pay the minimum wage required by the clause? What does ignore the Executive Order mean?
  10. Physiocrat Good luck with coming up with a theory where you are able to sue, and good luck with any suit you try. I hope you are well versed in how to file a lawsuit, because I cannot imagine any attorney, reputable or otherwise, taking this case.
  11. It should also be noted that FAR 3.601 describes the purpose of the policy prohibiting award to Government employees to include, among other things, "avoid[ing] the appearance of favoritism or preferential treatment by the Government toward its employees" (emphasis added). Because the party awarding the contract is the United States, and the policy is to avoid the appearance of favoritism toward "its" employees (i.e., employees of the United States), the policy only applies to U.S. Government employees.
  12. To follow up on the original question, holidays, annual leave, sick leave, training (and perhaps other time for which the employee is paid but does not work directly on the contract effort) are factored into the rate that is established in the contract. That is why you pay, as stated by Vern, the specified rate for the actual time worked.
  13. INOW, in your example you posit that "2. Has the space pen been sold or offered to the public? (No, in this example only NASA may buy it.)" Of course, you can set the facts of a hypothetical as you choose, and I assume that "only NASA may buy it" really means that "only NASA is allowed to buy it" (public sales are restricted) rather than "only NASA has bought it" (public sales are permitted, but no one from the public has bought it). Suppose the item has been offered for sale to the public, but no member of the public has yet made the purchase (I have seen situation, but I do not remember specifically what the item was, though I think it had to do with data storage devices for communicatons systems). How would the offer to the public, without a sale to the public, affect your rationale?
  14. I am going from memory here, without access to research materials, so you may want to check some of this. The FMR and the DFARS have different definitions of incremental funding. The FMR definition refers to funding from different fiscal years, not fully obligating (funding) the contract value at the time of award. Under this definition, it is not incremental funding to award a $100M contract in Nov 2013 (FY 14) and fund $50M at time of award (from a continuing resolution), $50M in Feb 2014 after an appropriations act is finalized. The DFARS definition (232.001) defines incremental funding as the partial funding of a contract at time of award with additional funding to be provided later. Incremental funding for fixed-price contracts is prohibited by the DFARS except for limited circumstances involving severable services or research and development. Could the different definitions affect how you are interpreting what is permitted?
  15. You might want to clarify what you are asking. Are you proposing to evaluate the proposal as if the offeror intended $55 per hour, or are you proposing to ask the offeror what it intended and treat the response as clarifications? Vern seems to think the former, while I thought the latter. Regardless of what you were suggesting, allowing the offeror to correct the price of its proposal is not clarification. I agree with Ji, and because you believe the price might not be what was intended I would require you to process any change under the mistakes procedures. One last item. If the price proposed is correct, I would require you to evaluate the potential for unbalanced bidding, both the potential of advance payments at an unnaturally high initial rate and the potential of an award that will not result in the lowest cost to the Government (particularly if options are not exercised).
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