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siwilliams

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Everything posted by siwilliams

  1. My company is a subcontractor negotiating with a prime who has indicated that they have both 252.232-7012 and 52.232-32 in their prime contract. My company is offering a commercial item for which we are requesting milestone payments. The prime has agreed to provide performance based payments in the subcontract but are also asserting that we are required to report cost incurred to date to the prime just as they are required to report to the government per 252.232-7012. They are also asserting that 52.232-32 and 252.232-7012 are mandatory flow downs. I can find nothing to support either assertion. If they are correct in their assertion can someone please direct me to the proper citation?
  2. Thank you for your help here. I agree.
  3. Our company is publicly traded, so there's is a degree of financial transparency there. With regards to counter offers and counter proposals, there were a number of issues we backed off of including the number and size of the pbp payments. Walking away is absolutely and option. However, it's my belief that the Prime is going to be hard pressed to find a commercial item supplier willing to share cost data. I wanted to be sure I wasnt missing a regulatory requirement to supply the data. It appears that the prime considers the two clauses to be business flow downs they are making a business decision to include versus a regulatory requirement they NEED to include for compliance.
  4. It may be mandatory based on the Prime's company policy. But from what I can tell, to say it is a regulatory requirement imposed by tbe govenment isn't true. That is the Prime's argument as they are requesting we share incurred costs with our invoice. That's not somethimg we are willing to do.
  5. Thanks to you both. You have confirmed what Ive repeatedly stated to the Prime. I asked for the reason behind their position and they answered that they see it as a regulatory requiremenr. I've also asked for specific language in the FAR or DFARS and the response is that it is merely their interpretation for what's needed for regulatory compliance but identified no specific language.
  6. My company has a time and materials contract for which we are a first tier subcontractor. The prime contract is not a FAR 12 procurement. The prime contractor wanted to include a requirement in the contract that travel would be subject to the Joint Travel Regulations (JTR). My company pushed back. We are a subcontractor supplying commercial products and services under the T & M contract. The prime tells us that their contract requires that their travel doesn't exceed the JTR. However, it's my understanding that the JTR is only for military personnel. I suggested to my team that we agree to a clause that commits us to compliance with 31.205-46 which I interpret as requiring that we will use the govt regulations as guidelines but ultimately adhere to our company's internal travel policy which follows the Federal Travel Regulations (FTR) guidelines and requires a Travel Exception Approval be submitted for any thing in excess of those per diem rates. My co-worker doesn't interpret 31.205-46 in the same manner and in fact insists that we should have requested 52.212-4 alt 1. I don't believe 52.212-4 to be appropriate as the prime contract is a FAR 15 procurement. I'm now doubting if we should even mention 31.205-46 since we offer commercial supplies and services, saying only that we would adhere to our company's travel guidelines.
  7. @PepeTheFrog - Not that it matters but no I'm not a Millennial. Thank you for your referral to the Cibinic/Nash book although also enveloped in condescension. Just so you are aware, I'm perfectly fine in this world and don't find too many scary places. However, those who are truly here to help should be careful not to make this resource a scary place. As far as looking a gift horse in the mouth, I am very grateful for any advice I receive while at the same time finding the superfluous negative commentary disdainful as is your entire post. "Free assistance in performing my job duties" has never been provided to me via this forum...advice yes, but no one has performed my job, i.e. researched topics for me - at least to my knowledge. I have and will continue to pay it forward. I agree with PepeTheFrog that I would hate for the experts to stop contributing. I am always respectful and I welcome the VIPs to my party. I hope that the VIPS realize that everyone is at different levels in the learning process and those of us who are not quite at VIP level are more apt to seek/ can benefit more from the free advice when it doesn't come with a lashing. Respect shouldn't be at the VIP level only.
  8. Again I did read 31.205-46. Because the responder mentioned that I'd misinterpreted the clause, I was hoping for HELP in better understanding it - not requesting extensive consultant services. I read it. I thought on my own. I expressed my thoughts. I was told I was wrong. I wanted to know why I was wrong. So I asked someone to explain HOW I was wrong. Thought that was the purpose of this forum. Apparently I was wrong again. I guess asking about the exception under (a)(2)(i), and (ii) wasn't specific enough. So again my thoughts were wrong. Perhaps a statement saying that it would be "too much to explain the entire cost principle" would have been better received than I will not explain "because I'm not obligated to do so". It's unnecessarily rude. I obviously didn't realize how involved that response would have been. I have never posted anything here with the intent to be offensive or get free assistance in performing my job duties. But I also don't come here to be beat up and/or condescended to - I come here because there are knowledgeable people who have helped me throughout the years. I hope to be able to provide that same level of feedback to those people new to contracts management as well. I don't post here with unrealistic expectations. I certainly did not expect a person to dedicate extensive time and effort to my situation. I use this site as one of many resources. Usually the answers I get are based on the responders experiences and knowledge - not an effort in research. Communication is important. Snide remarks, and rude responses are not effective means of communication. A referral to another resource; a simple "no I can't, the explanation would be too involved"; or simply, ignoring my request all would have been better that the response I received.
  9. Thank you @Retreadfed, I appreciate your helpfulness and willingness to explain. As a contracts professional, I've found this site incredibly useful, especially when more seasoned professionals like yourself are willing to provide guidance. I must say, however, that I'm somewhat baffled by @here_2_help's seemingly antagonistic response. As far as I'm aware, no one on this site is ever "obligated" to explain, comment, or provide feedback. Everyone is volunteer. "Helping" involves a bit more that blanket statements. i.e. that you don't believe I'm interpreting the clause correctly. Specifics on HOW my interpretation is incorrect as was provided in your last post and expounded on by @Retreadfed are much more useful. Thank you for your statements 1, 2, and 3. As for your last sentence @here_2_help, nothing in any of my communications above would imply that you are obligated to do ANYTHING. I simply requested your help and guidance as a more seasoned (platinum member) on a topic I'm trying to better understand. I'm definitely ok with that being the end of your comments on that or any other question I may present.
  10. @Retreadfed The only FAR flow downs we accepted in our subcontract were those listed under 52.244-6. However, your response brings up another question. I'm fairly new to the company and most of my background is non-commercial so the FAR 12 procurement process is really new to me. My supervisor has stressed to me that if the order at the prime was not a FAR 12 procurement then none of the 52.212 provisions would be applicable even though at the subcontract level we are providing commercial products/services - is that not the case? Also, @here_2_help, please explain the requirements of 31.205-46 to me with regards to travel limitations and the exception under (a)(2)(i), (ii)?
  11. My company submitted a proposal for an effort which included facilities capital cost of money. The resulting contract contains neither 52.215-17 or 52.215-16. We meet all of the criteria under 31.205-10(b and our COM calculations are compliant to the limitations in 31.205-52. However, our customer is now telling us that COM is not an allowable cost. Under what circumstances would this be the case? I'm assuming that the omission of 52.215-16 is of no bearing as it is a required clause for cost reimbursable supply contracts when applicable.
  12. All, I have a CPFF contract for which my company did a voluntary cost share. The cost share portion of the contract covered primarily material and some subcontract services/supplies. Should there exist residual material on this contract that falls under the cost share (everything has been properly segregated is it handled as a typical CPFF? I.E. even though the material was funded by the cost-share portion of the contract does it belong to the government? Or would the material purchased under the cost share belong to the contractor? Is there any FAR support for this type of situation?
  13. My company produces a commercial item that it will supply to the DoD through its Prime Contractor as a first tier sub. As, we will make slight modifications to our item for the purposes of integration into the Prime's product for sale to the government, the Prime Contractor wants to negotiate rights to technical data, specifically asking for exclusivity "on behalf of the government" that we will not further market the item. I have asked the Prime if the government has specifically requested exclusivity. I didn't get a straight answer (a we want to protect the govts rights) but I assume as I did when the request was made that the answer is no. Prime confirmed that the modification is being funded under the USG contract and not by their own R&D. It seems to me that the push for exclusivity is coming from the Prime and not from the government. Either way I have a few questions: 1. If I'm understanding things correctly, we can grant to the government standard commercial rights under DFARS 252.227-7015 for our existing IP and government purpose rights under 252.227-7013. Is my assumption correct? 2. I believe that as the modification is minor, does not significantly alter the nongovernmental function or essential physical characteristic of the item or change the purpose of the process and therefore does not affect the commerciality of our product? 3. If commerciality is in tact can I assert -7015 rights for the entire product? (I don't think so. But if we can...) 4. We will grant the prime a limited use license for fulfillment of the requirements under the existing government contract. Any suggestions on language for this clause? 5. Are we required to assert data rights for our commercial IP? I'm not finding a requirement to do so but think it may be a good idea to eliminate confusion. Thoughts?
  14. I'm having a disagreement with my government customer about CDRL deliverables, review periods, and approvals. Block 8 of the 1423 is Blank. Block 16 of the 1423 states that the government will have 30 days to review the data submittal and respond with comments and the contractor will have 20 days to revise after receipt of the government's comments. The data item was submitted to the customer. The transmission included DID, SOW, CLIN, and CDRL references as well as the listed government review period. The government confirmed receipt of the data item. On day 40 I sent the government a notification that the review period has expired, the date of expiration, and notification that the Data submittal was now presumed approved by the contractor as we received no comments back on the item by the government. The government says that this assumption is incorrect as the 1423 says nothing about presuming approval. I argue that the document gives a number of days for government approval. Once that time has expired, unless contractor has received notification that the review period would need to be extended, then the government has not contractual right to additional comments. Realistically, we will likely allow additional comments, however, it's my argument that technically the window of opportunity has closed on that one. The COR asked under what authority and I really couldn't find anything that specifically addressed approvals of this nature except that Dod 50101.12 states that the dates are contractual obligations. Also the instructions for DD form 1423 seem to indicate the same. Any opinions on this would be appreciated.
  15. CDRL Review Period and Approvals

    Thanks to all of you for your input. This helps significantly. I now know that I have legal/regulatory standing with regards to my position. Again, not my intent to push the customer unnecessarily on every data submittal, but to respond to the question presented by the COR who seemed to believe that I had no standing. It is also not my intent to "whine" about the situation without action. It is, however, my intent to come to an understanding based on the FAR/legal precedent where the customer is either responding or communicating delays to us related to the reviews.
  16. CDRL Review Period and Approvals

    The CDRL is NSP. However, acceptance is a requirement for a PBP payment event. This particular issue has been worked out and we are now invoicing the PBP. In post #6, I'm now seeking clarification of process and interpretation. The dispute came after I requested authorization to submit the PBP invoice explaining that the government review period has expired (now for over 2 weeks) and I presumed the submission accepted as there was no communication received from the government. I received a response similar to those in post 2-3 asking where in the contract did it express that the submittal is approved if the government does not respond. I referenced 5010.12-M which states that the dates are contract commitments and if either party can't make the dates they should notify/request an extension from the other party. This was not done. The CDRL states on ALL items except one that the government "SHALL" or the government "WILL" have X# days to review/approve. At this point I'm hoping to educate myself on the issue. Even if the response or lack thereof is not tied to a schedule/financial impact, at what point can the contractor check the box on the CDRL? If the government doesn't respond, does that item remain TBD indefinitely? Doesn't seem logical to me? If there is a delivery due date, surely the contractor is held to that date and will be penalized for missing especially if we fail to communicate the delay to our customer. What is the significance of the review/comment period? Is the government not held to the same standard? It would have been easy enough to say they required more time (even after I sent the email). However, the question has now been raised...Is the contractor required to repeatedly remind the government that we're awaiting approval even though the contract explicitly limits the review period? I have worked with a number of government agencies throughout the years - for each of them the process has been as I assumed unless they've communicated otherwise. The 1423 instructions explain that an "A" should be included in block 8 for those CDRLs requiring approval. There is no "A" in block 8 but the cdrl is very clear in block 16 that the item requires approval and the period the government has to provide that approval. What doesn't seem to be clear is the status of the CDRL once that period has expired and there are no comments in either direction from the government.
  17. CDRL Review Period and Approvals

    what about 252.227-7030? I'm moreso wanting clarification on approvals...there are many deliverables for which we NEVER get a response.
  18. CDRL Review Period and Approvals

    Yes, could very much result in delays in schedule as well as financial. What is the purpose of identifying a period for review? At expiration of the identified period without comment, what gives the government authority to make additional comments or request additional changes? Per 1010.12 the dates constitute a contractual obligation. the period is set. There may be no implicit approval but the government has effectively waived their right to disapprove.
  19. Non-Responsive proposal

    I'm curious about the process of taking exception to terms & conditions in a competitive solicitation. I'm always hesitant to take exception to items for fear that our proposal would be deemed nonresponsive. However, I'm not 100% sure on which items other than not meeting the technical criteria, delivery schedule or something like debarment would automatically eliminate a company from competition. Typically things like unlimited rights in technical data are something to which I'd like to take exception. Would this get my proposal automatically thrown out, should I just bring it up during question/answer period and hope it's eventually eliminated, or try to negotiate after award?
  20. Non-Responsive proposal

    In this particular example it was for non-commercial items.
  21. I work for a Large Business who is prime on a government contract. One of our major subcontractors is a small business. I am being asked to request inclusion of 52.232-40 in our contract. I know it's now required for all solicitations/orders, however, I would like feedback on what I believe is a misinterpretation of the clause. My program office feels that inclusion of the clause allows the government to provide accelerated payments to us as the prime that we may in turn accelerate invoice payments to our small business subcontractor. I disagree. I believe the purpose is to notify the Prime that SHOULD the government accelerate its payments that it, must in turn, accelerate payments to the small business. Even if it were not now a required clause, inclusion doesn't help us as Prime at all. It's designed to protect the small business subcontractor as it should. Anyway, read a few memos, M-12-16; M-13-15; and M-14-10 and it looks like the government plans to accelerate payments whenever possible at least through December 2016. With that, I will advise (if you all agree) that M-14-10 helps to improve the likelihood that we as Prime are paid within 15 days; there is no clause that would guarantee accelerated payment to us under these circumstances; and 52.232-40 is included in the contract under the Christian Doctrine and therefore our subcontractor should rest assured that they are protected,
  22. 52.232-40 and Prompt Payments as a Prime

    The contract was issued after the effective date of the rule. Thanks all for the feedback.
  23. Overruns CPFF

    My company has a government contract with several different CLINS mostly CPFF with an EVMS requirement. For the CPFF portion of the contract it looks like we will exceed the estimated costs for one of the CLINS and come in lower on some of the others. The overall CPFF estimate will not change. How is this handled? My assumption is that the funding for each of the CLINS should each be managed separately - must request reallocation of funds by the customer. It seems though that as long as we don't exceed the total estimate this may not be required but that doesn't seem right to me either. Any help would be appreciated.
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