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wvanpup

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  1. My apologies. I am referring to the DFARS clause. I reviewed the Federal Register issuance for when the latest (2010) version of the clause was published (I did not review earlier Federal Register issuances, thanks for the suggestion). I reviewed an article in the Summer 2011 Procurement Lawyer by Donald Carney of Perkins Coie (see http://www.perkinscoie.com/files/upload/GC_11_07DonCarneyArticle.pdf). I also reviewed several DAU sources and whatever else I could find through Google. Everything that discussed the self-insurance benefits of the Ground and Flight Risk clause seemed to focus on aircraft in production, not aircraft that is provided as GFP under a repair, maintenance, overhaul, etc., contract. I did not find anything describing the relationship between liability under the Government Property clause and liability under the Ground and Flight Risk clause. The research I did indicates that the purpose of the clause is, as you describe, to relieve the contractor from having to buy insurance coverage under the assumption that, in the long run, the government's cost of self-insurance will be less than paying for the contractor's insurance to cover these risks. But what insurance coverage would be required for GFP aircraft if the liability for loss, damage, or destruction is assumed by the government? That is the essence of my confusion.
  2. I am struggling to find the benefits of the Ground and Flight Risk (GFRC) clause when applied to contracts for repair and maintenance of aircraft. Are there any sources that can help? The GFRC limits the contractor's liability for loss or damage to the aircraft by, in effect, creating a deductible and then self-insuring the balance of the loss. The clause is based on an assumption that, in the long run, the government's cost of self-insurance will be less than paying for the contractor's insurance to cover these risks. Where I am confused is how this clause interacts with the Government Property clause on aircraft that are provided to a contractor for repair, maintenance, modification, etc. Under the GFP clause, the contractor's liability for loss or damage of property is very limited. FAR 52.245-1(h)(1)(i-iii) provides the contractor shall not be liable for loss of Government property (which is defined earlier in the clause to include damage and destruction) furnished under the contract unless the risk is covered by insurance, the loss is the result of willful misconduct or lack of good faith on the part of the Contractor's managerial personnel, or the Contracting Officer has revoked the Government's assumption of risk. If I am reading the Government Property clause correctly, it seems to me that the GFRC reduces the scope of the Government's self-insurance by creating a "deductible" that otherwise would not exist. What am I missing? Thanks for your assistance.
  3. Brian - was your conclusion that English was a foreign language for Rudolfo based on (1) his Italian name, (2) his very good but less than perfect English, and (3) his location in Italy?
  4. The clause at FAR 52.233-3 provides: ( If a stop-work order issued under this clause is canceled either before or after a final decision in the protest, the Contractor shall resume work. The Contracing Officer shall make an equitable adjustment in the delivery schedule or contract price, or both, and the contract shall be modified, in writing, accordingly, if ..." I think there are two kind of related questions here. First, can the contractor request an extension of the period of performance because of the stop-work order? This appears to be a BPA that requires the placement of orders. Is the ordering period the equivalent of the delivery schedule, or is it something else that is not subject to adjustment under the Protest After Award clause? Second, can the Government extend the contract if the contractor does not request an equitable adjustment? Assuming the contract is for at least a few years (whether with or without options), would extending the contract delay any annual price increases that might be built into the contract? If so, the contractor might prefer to shorten the contract by three months and let the price increases take effect when originally scheduled. My guess is that changes may be made at the request of the contractor, but not unilaterally.
  5. Thank you for the response. I understand the need for TINA certifications for mods (and how to apply absolute value to determine if a certification is needed). Assume a $1M mod (above the TINA threshold) that is 100% T&M, and assume the T&M rates are stated in the contract so that no FPRA is used. If cost or pricing data are required under TINA, what data can be submitted, and how would the contracting officer rely on that data, in light of the agreed upon contract rates? If there is data related to the estimated hours needed to complete the work, what is the measure of damages if that data is defective (payment is based on actual hours, not estimated hours)? If there are no potential damages for defective data related to estimates of the amount of work required, what is the value of a certification? Some of this may be theoretical, but some of this is of interest to contracting officers told to get a TINA cert and who ask why.
  6. May I change the discussion slightly? What if the T&M rates are agreed to in the contract, so you are not using a FPRA? Suppose you are adding within scope work and pricing it as T&M, and the value of the work exceeds the TINA threshold. Is a TINA cert required, and what would it be certifying?
  7. "Not to gang-up, but I don't believe that is right. Work outside of the scope cannot be added via a change order." If the contract provides for the contractor to work in a government facility there is probably some kind of clause or something in the SOW concerning the support the government will provide. Changing that to reflect requirements on recycle/shred is probably within the scope. PS: Vern, how do you do that little quotey thing?
  8. "I am new to the site and the area of overhead rates. I'm conducting an assessment and cost evaluation for key personnel cited for potential short-term overseas assignment and really need some help. Question: Should my direct labor rate for this advisor be charged to home office overhead or field office overhead rate?" I echo the advice to get professional assistance. I also have a question about your wording. Perhaps I am not familar enough with the issue, but to me the phrase "charged to overhead" means that the cost will be added to the overhead pools. Are you asking whether you should apply the home office overhead rate to determine the direct labor rate or whether you should apply the field office overhead rate to determine the direct labor rate? In either case, wouldn't the direct labor (including appropriate overhead) be charged as a direct cost to the subcontract rather than included in an overhead pool?
  9. Thank you. After rereading the provision I now see what I missed before. An additive item is skipped only when adding it would make the award exceed the available funds for all offerors.
  10. DFARS 252.236-7007 states .... (2) The low offeror shall be the Offeror that— (i) Is otherwise eligible for award; and (ii) Offers the lowest aggregate amount for the first or base bid item, plus or minus (in the order stated in the list of priorities in the bid schedule) those additive or deductive items that provide the most features within the funds determined available. (3) The Contracting Officer shall evaluate all bids on the basis of the same additive or deductive items. (i) If adding another item from the bid schedule list of priorities would make the award exceed the available funds for all offerors, the Contracting Officer will skip that item and go to the next item from the bid schedule of priorities; and (ii) Add that next item if an award may be made that includes that item and is within the available funds. ( The Contracting Officer will use the list of priorities in the bid schedule only to determine the low offeror. After determining the low offeror, an award may be made on any combination of items if— (1) It is in the best interest of the Government; (2) Funds are available at the time of award; and (3) The low offeror's price for the combination to be awarded is less than the price offered by any other responsive, responsible offeror. I understand the example provided at the end of this DFARS clause that describes the low in that case but that example doesn't provide for a great explanation. Different example: Example. The amount available is $100,000. Offeror A's base bid and four additives (in the order stated in the list of priorities in the bid Schedule) are $85,000, $17,000, $7,000, $4,000, and $3,000. Offeror B's base bid and four additives are $80,000, $16,000, $9,000, $7,000, and $5,000. Who is the low bidder? Is it offeror B because it is low on the base bid and ABI #1 whereas offeror A is over budget for base and ABI #1? I have never reviewed a contract with this provision, but I am not certain the suggested evaluation is correct. My evalation of Offeror A is as follows: Base of $85,000 Exclude first option because total of $102,000 exceeds funding. Go to next option (see para 3(i) of the provision). Base of $85,000 plus second option = $92,000. Go to next option. Base of $85,000 plus second and third options = $96,000. Go to next option. Base of $85,000 pluse second, third, and fourth options = $99,000. My evaluation of Offeror B is as follows: Base of $80,000. Base of $80,000 plus first option = $96,000. Go to next option. Base of $80,000 plus first option plus any other option exceeds available funding. Offeror A has three features within the available funding, with an aggregate price of $99,000. For those features, Offeror B's aggregate price would be $101,000. Why not award to Offeror A?
  11. Sorry to be late to the party, but it does not look like this was finally resolved. Obviously you need to contact your attorney so you can get advice based on the specific facts of your situation. I am going to posit some different situations as illustrative of what I would want to know. Assume it is a BIG tree. It falls on both the north facing and south facing slopes of the roof. The work on the slopes involved replacing the shingles. The contractor had already replaced the shingles on the north slope, but had not begun work on the south slope. The tree not only damaged the shingles but damaged the trusses on each slope of the roof. The contract did not require any work on the trusses. 1. Who is responsible for the cost of repairing the damaged shingles on the north slope? 2. Who is responsible for the cost of repairing the damaged trusses on the north slope? 3. Who is responsible for the cost of repairing the damaged trusses on the south slope? These are essentially the situations Vern addressed, except that he did not (at least I don't think he did) address the question of additional damage to the area where the work was completed. While your attorney is the one to provide final answers, the result should be that the contractor is responsible in question one and the Government is responsible in the other two questions.
  12. 1. Your finance gurus can decide if stewardship is a valid authority to keep the funds collected. I expect that, absent something more specific in your enabling legislation, it will not work. After all, yours is as classic an augmentation of funds situation as can be imagined -- you want a contractor to provide you funds to perform a function for which Congress did not adequately fund you. 2/3/4. Good luck getting a contractor to assume a virtually unlimited liability (to include funding the Forest Service efforts to resist a contractor claim or to assert a Government claim against the contractor). I would not expect a contractor to give a "normal" price, i.e., one with a reasonable profit based on a reasonable estimate of costs (that do not include the administrative costs you are seeking) in your situation. Maybe I am wrong, but there is a huge likelihood that the contractor will include the administrative costs somewhere in the price of the contact effort, and all you will be doing is shifting the administration costs from the administration account to the contracting account.
  13. 28 USC 1498 provides that the exclusive remedy for a patent or copyright infringement by or on behalf of the Government is to sue the Government. FAR 52.227-2 is titled "Notice and Assistance Regarding Patent and Copyright Infringement." FAR 52.227-1 provides authorization and consent to infringe on a patent. Is there a comparable authorization and consent clause for copyrights?
  14. I am new to the forum, so accept my apologies if I have a procedural or other faux pas in this response, but I have a couple of questions. 1. Assuming it gets a contractor to agree, does the Forest Service have the authority to accept the funds and deposit them in Forest Service accounts rather than as Miscellaneous Receipts? 2. Will the amount of administrative costs be identified up front, or does the Forest Service expect the contractor to agree to whatever bill is presented? 3. What happens if the costs are identified up front and then turn out to be inaccurate, whether too high or too low? Will the Forest Service demand payment of the deficiency or reimburse the excess? 4. Does the Forest Service really expect the contractor to absorb these costs rather than build them into the price? What will the Forest Service gain in the end other than transferring the costs from the account that should be paying them to the account that pays the contractor?
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