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John_Contract_Specialist

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  1. The automatic CICA stay suspends (“tolls”) all manner of contract performance, execution and administration, when not overridden by the Head Of Contacting Activity (HCA). Consider where the protester files the protest in the GAO forum and loses the protest all issues in the GAO forum (“protest denied” no atty fees for either party nor the awardee intervener). The agency and the successful awardee had bargained for and discussed (FAR 15) a five (5) year contract period of performance as per the FAOC RFP. The protest duration was not insignificant (four (4) months from time of filing until final GAO decision). May the Contracting Officer equitably abate the injury to the Government and prevailing awardee of the foregone four (4) months of contract performance and construe the period of performance of the five (5) year contract as “reset” or tolled to the Decision Date of the GAO denying the protest? Is there any GAO Comptroller General (CG), COFC, or CAFC case law or statute that precludes such mitigation? Any citations on point would be very welcome. For purposes of stating the facts; I keep the facts unencumbered and the “ripple” or “knock on effects” of the abatement are neutral in color (e.g. pricing,-or alternatively they too may be equitably dealt with, no need to discuss) ; the protest was not frivolous but the protest was non-meritorious (denied on all issues). Also, I feel we can omit discussion of any five year contract limitation as a separate issue.
  2. We are a civilian (non-DOD) agency. The contract under consideration is a non-commercial 3 year IDC $1.5M Time and Materials (T&M) type contract. There is a D&F in the file signed by the HCA. It is not competed; a J&A is in file. Question on Overhead and Overhead rate: I see from FAR 16.601©(2) that the contractor must propose labor categories and actual hourly rates. (also 52.216-30( B )) T&M contracts are in the family of Level of Effort (LOE) contracts and they share similarities with cost-type contracts. In cost-type contracts, the actual overhead may change in the course of contract performance, whether as part of DCAA audit or a Pricing Rate Agreement (PRA), or at contract close-out in close-out audit. (But again, we are not-DOD and we don’t have access to DCAA). Q: If I keep the unburdened labor rates as proposed, and the fee as proposed, am I entitled to adjust the contractor’s Overhead (OHD)? I would not want the contractor to get a windfall if his actual OHD shrinks in year 2 and 3 and I am not interested a loss scenario for the contractor either. So, may the OHD be reasonably be adjusted? The payment clause is 52.232-7. It is clear that the labor rates are fixed. It is silent on the issue of whether the overhead burden on the labor rate can be adjusted.
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