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About Zauberer

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  1. Dan Gordon and Chris Yukins teach a Comparative Procurement course at GWU law school. I took it during my LLM and enjoyed it very much. It was interesting at a very high level and I enjoyed the course. Those types of courses can be interesting for people who enjoy analyzing policy, but I'm not sure that they really help contracting professionals develop their skills in US government contracting. Sterling Whitehead also posted this on the NCMA's Linkedin page and it has generated a lively discussion there as well.
  2. Vern, Thank you for the thoughts about scenario 1. As I mentioned, I don't know what particular funds the contractor would have used, but I appreciate your having made me aware of FAR 31.205-18. As for scenario 2, we are hoping to prevent the contractor from allocating costs inconsistently. If anyone else has any specific thoughts on the issues raised, I would love to hear them!
  3. Responding to Vern: Scenario 1: I apologize for misleading you, but this has not actually happened yet, at least that we know of. The contractor has suggested that it has possibly done this, but has not outright admitted it. We are just trying to protect the Government's interests in case the contractor has done so. If they have in fact done so, then I believe that they would have charged the expenses indirect to G&A as IR&D. Here, I mostly just want to know if there is anything that would keep the contractor from doing so. In my opinion, the 7013 data rights clause doesn't seem to cover this sufficiently. Scenario 2: The contractor charged the hardware expenses indirect to G&A. Unfortunately, I can't disclose too many specifics here (due to program sensitivity), but the contractor is arguing that the hardware in question is classified as "computing costs" in its disclosure statement, thereby justifying its classification as an indirect charge. They are also arguing that the hardware is not specifically listed as a contract deliverable, so it is not a direct contract requirement. Of course, they have purchased hardware for similar system components, but have charged those costs as direct costs against the contract, which I believe violates CAS 9904.402-40, which states that "All costs incurred for the same purpose, in like circumstances, are either direct costs only or indirect costs only with respect to final cost objectives." Hope that helps, I look forward to hearing your thoughts!
  4. Vern, Sorry, that was a critical piece of information that I left out. Yes, the contractor received the development contract before developing key parts of the system and purchasing items of hardware at its own expense in both scenarios.
  5. Here's the situation: Development contract for a major system - no physical deliverables; only CDRLs. Contract contains the following clauses: -DFARS 252.227-7013 & Alt I RIGHTS IN TECHNICAL DATA--NONCOMMERCIAL ITEMS (NOV 1995) AND ALTERNATE I (JUN 1995) -DFARS 252.227-7014 & Alt I RIGHTS IN NONCOMMERCIAL COMPUTER SOFTWARE AND NONCOMMERCIAL SOFTWARE DOCUMENTATION (JUN 1995) AND ALTERNATE I (JUN 1995) -DFARS 252.227-7027 DEFERRED ORDERING OF TECHNICAL DATA OR COMPUTER SOFTWARE (APR 1988) -FAR 52.245-1 GOVERNMENT PROPERTY (JUNE 2007) Hypothetically speaking, what would stop the contractor from doing the following: 1) Intentionally developing key parts of the system with capital funds in order to prevent the government from obtaining more than limited/restricted rights in tech data/computer softare/documentation, thereby allowing the contractor to limit the Government's ability to compete follow-on contracts for sustainment of the system. 2) Intentionally purchasing key items of hardware that will go into the contractually-required support system with capital funds and charging them as indirect costs against the contract in order to keep the hardware from becoming contractor-acquired property. This will allow the contractor to maintain control over the support system and thereby maintain a lock on future sustainment contracts. Government tech folks have stated that even if Government requests all tech data related to this effort, they would still need the actual hardware in order to figure out how to replicate the system. Thoughts? There are CAS issues here, but I thought that the overall issues merited putting this topic into the contract administration thread. I realize that the issues are complex, but I eagerly anticipate your thoughts on these matters. Thanks!
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