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  1. Thanks for the help on this. I would assume that the Government would have to set aside funding to cover their fee liability that would be above what is covered by their funding for cost under the Limitation of Funds clause? In other words, to avoid anti-deficiency act concerns, they would provide funding for costs under the contract subject to Limitation of Funds and then keep funding reserved to cover any fee that would be due pursuant to the specific fee terms of the contract. As I mentioned, the award fee pools are back loaded, so if a termination occurred early in the program, the amount earned based upon award fee determinations would not be reasonable based upon work actually performed. There is a clause in the contract that states in the event of a termination, additional fee above what had been earned in award fee periods might be payable based upon a determination of a reasonable fee for work performed.
  2. I disagree with my Contracting Officer on the requirements pertaining to FAR 52.232-22. We are "reserving" funding to cover the fee we believe we would be entitled to in the event of a termination for convenience. My PCO says that fee would be funded separately as part of the termination settlement. The PCO is basing her interpretation on the clause language wherein it always refers to "cost" and makes no mention of "fee". This is an incrementally funded cost type contract with award fee weighted more toward the end of the contract. Accordingly, the fee we have earned to date would not be a reasonable fee for work performed should we be terminated. Our contract says that in the event of a termination, the fee earned would be a reasonable fee on work performed (not just the award fee up to that point. I believe the Government, in the event of a termination is only liable up to the amount of funding provided on the contract. If we don't protect ourselves for the fee would get in a termination, we could be short on our recover.
  3. Thanks for another condescending comment by Vern! Very helpful. I don't think it is necessary to quote the full citation for standard DFARS data rights clauses, but will try harder in the future! For all others with constructive advice, thank you!
  4. I'm a little bit relieved that this is not a simple issue. I have been involved in similar situations many times in my career and had never really thought about the fundamental principles behind protecting competition sensitive information. I will take Vern's advice and engage IP Counsel. Just to ensure I didn't leave anyone hanging, the contract does contain DFARS 252.227-7013. I am referring only to deliverable data and there is no entitlement to assert either Government Purpose Rights or Limited Rights. This is a phased development program where 3 contracts have been awarded for pre-production development. Eventually, there will be a competitive downselect for the objective system.
  5. I have a DOD contract that is in an early competitive phase. My company won a contract and two other companies were also selected for this phase. It is expected that there will eventually be a competitive downselect after submittal and adjudication of proposals for the next contract phase. My contract has the typical DOD data rights clauses. I am wanting to know how I can protect intellectual property developed under the contract so as to not give up any competitive advantage we might gain during the performance of this contract. It looks to me like I am required to provide unlimited rights for deliverable technical data developed under the contract (assuming no mixed funding or contractor funding use). I can't find anything that would preclude the customer from including my company's study results in some sort of bidders' library or otherwise providing my IP to the competition. Is there an obligation on the Government to not level the competition under these types of phased competitions with multiple contractors performing?
  6. Seems like many years ago in a Fed Pubs Briefing Paper there was an article describing something in the order of 13 generally accepted rules of contract interpretation. It had a concise statement of each rule followed by a couple of explanatory paragraphs. I am just looking for something simple like that.
  7. I appreciate all of the help. I have a version (3rd) of Administration of Government contracts and agree that there is excellent detail on contract interpretation. I guess I am being a little lazy. I recall seeing, from time to time, concise listing of rules. I have found some lists on the web, but they don't seem to be universal in content.
  8. I did a little research to see if there is a "best" set of rules of contract interpretation for U. S. Government contracts. I couldn't settle in on what would be considered the "gold standard" list. I am putting together some training for some junior contracting personnel and would like to share a set that has a high pedigree. Any suggestions would be much appreciated!
  9. On a Cost Plus Fixed Fee contract with multiple CLINs I believe that the fact that there are multiple CLINs does not, in and of itself, require that incurred costs be segregated by CLIN. I have seen instances where contract provisions require cost accounting by CLIN, but am just trying to verify my understanding that, absent terms requiring it, having multiple CLINs does not require collection and reporting of costs by CLIN.
  10. On a Cost Plus Fixed Fee contract with multiple CLINs I believe that the fact that there are CLINs does not, in and of itself, require that incurred costs be segregated by CLIN. Along with that, Limitation of Funds or Limitation of Cost, applies at the contract level, not at the CLIN level. I have seen instances where contract provisions require cost accounting by CLIN, but am just trying to verify my understanding that, absent terms requiring it, having multiple CLINs does not require collection and reporting of costs by CLIN.
  11. In Section 5.2 of the Defense Contract Pricing Reference Guide it states... "If the contractor requests a copy of the price negotiation memorandum (PNM), most agencies authorize contracting officer release of pertinent portions. However, you should consult your agency legal counsel to determine your authority for release and any conditions required for release." I recall that Eleanor Spector, as Director of Defense Procurement Policy, put out a memo authorizing/encouraging PCOs to release MNMs to contractors defending defective pricing allegations. Is this memo still effective? I am trying to find support for an AF PCO that the PNM should be provided.
  12. Vern, have you seen any instances where the parties have included a reservation as allowed under paragraph (e) of the clause to a later adjustment for final rates? I would guess they wouldn't want to do that because it would hold the contract open for an extended period of time. On the other hand, it might be a better option versus delaying submittal of the proposal until final rates are available. Obviously that would cause the contract to remain open longer than settling up and then adjusting the deal for final rate impacts.
  13. Retreadfed, There is nothing in the contract that requires a submittal of final indirect cost rates. As a large company, we do establish final indirect cost rates as a course of business. As I'm sure you know, these are lagging several years behind in getting finalized. I came across a very helpful Vern post on the subject at: http://www.wifcon.com/discussion/index.php?/topic/2689-closing-out-a-fpif-firm-target-contract/ I believe Vern's post supports my understanding. IF final rates are available, they should be used by the Contracting Officer, but there is nothing that mandates them. Also, (not necessarily addressed in Vern's post), but I believe it to be true that once final price is established, it is indeed the final price and not subject to future adjustment when final rates are established. As an aside, we have had cases where the PCO has requested us to delay submittal of the price revision proposal until final rates are established. Having said all of that, I am hoping to confirm that there is not a later adjustment in the negotiated final price based upon later-determined final rates.
  14. Vern -- Boy do I have my post messed up. Sorry for that. I meant to say I have FAR 52.216-16, Incentive Price Revision - Firm Target! I was reading a prior post and got my mind garbled. This is a straight-forward FPI(F) contract. I am asking that, once I settle up on my price revision, I have a firm price and there is no subsequent adjustment for Final Overhead Rates.
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