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siwilliams

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Everything posted by siwilliams

  1. 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.
  2. But the prime is requesting a rate audit instead of a full assist audit.
  3. My company has completed negotiations with the prime on a govt contract. We have a confirmation of negotiations memorandum and my company has signed and submitted to the prime the Certificate of current Costs & pricing. The subcontract remains undefinitized as the prime says they're waiting for an audit by the government. It's my understanding that the government will not audit an already negotiated subcontract because it's of no benefit to them at that point. Prime also wants a reopener. Anyone ever have a similar situation? Would the govt audit an already negotiated agreement?
  4. I have a substantial CPFF Contract awarded to my company at one location. We have a location in a different state (different cage code etc.) that will work on the contract as well via an IOT. The out of state location has an approved purchasing system whereas my location does not. The out of state location is planning to issue a subcontract. Keeping in mind, the contract was issued to my location without the approved purchasing system which ACO gets the notification/consent request? Mine or the one at the other company location. Also, is consent required or advanced notification? (if issued from my purchasing department at my location definitely requires consent.) There's NRE in the subcontract, otherwise its FFP and its in access of 5% contract value.
  5. I don't really understand the comments about default or receiving a no cost modification. We notified the customer of a quality problem prior to delinquency. It was either that, or provide a bad product. We offered and paid consideration for the modification which changed the delivery dates. Also FAR 42.1503 does give that information. However, please review the attached which indicates a rating of marginal should be for (1) Some late deliveries & (2) No corrective actions. If the delivery date was changed and we performed to that changed date, there was "no late deliveries", http://www.whitehouse.gov/omb/best_practice_re_past_perf .
  6. All I received a CPARS that was not so favorable. I schedule a meeting with the contracting officer and discussed and most of the rating areas we were able to get worked out. The one area for which we couldn't reach agreement was schedule. During the rating period there were quality issues identified during production related to parts received from a supplier during the last three months of the contract. We identified the problem with the part and notified the government right away that there was an issue and that we were performing root cause analysis and finding a work around but that this issue would delay deliveries. We found an agreeable work around and submitted a revised schedule which basically pushed everything out 30 days. We asked for and received a schedule modification in accordance with the plan and offered/paid consideration which was accepted by the government. At CPARS my company received a "marginal" rating on schedule because of this. My argument is that we delivered to the modified schedule. Since the contract was modified there were officially no late deliveries. The government contends that for legal purposes the deliveries were on time but the modification to contract doesn't erase our late deliveries from their memories which allows them to rate accordingly for CPARS. I responded then that there is very little incentive for a contractor to pay consideration for date changes if they still get dings on past performance. Additionally, the government PM argued that the marginal rating was given because the issue effected all of the contracts remaining deliveries. I informed that given the number of remaining months to contract, and our maximum production capacity, there was no way for us to recover without impacting the balance of the schedule. For example. Say the contract was for 85 units per month and our maximum capacity was 100 with no fails or reworks, it would be impossible for us to get back on schedule with only 3 months remaining on the contract. Even if everything went perfectly, the best we could do is shave two weeks off the final delivery month. The entire argument seems illogical to me. The CPARS has been revised but this schedule ding remains. It just doesn't seem right to me. Is there any reference on schedule ratings when there have been delivery date changes.
  7. Thanks so much for all of your help. This is a really great resource and as we all know Vern is right more often than not. @wvanpup I didn't even think about the FOIA ramifications. That adds an even more interesting twist. We played around with the notion of including the Proprietary markings any way as the government has the option of ignoring the nonconforming marking (as 252.227-7013(h)(2))but decided against it as they also have the option of removing or correcting at our expense. Also no desire (at this point) to have two separate processes for what's being provided to the govt vs. what's being supplied to others...too confusing. Looks like we will happily comply Also, In this particular situation, I don't believe there would be much value in involving the attorneys but I'm sure this issue will come up again with the company for a more critical part and I would assume that at that point we would want to get the attorneys involved or try to work out another arrangement with the government for rights.
  8. 252.227-7013; 252.227-7014; & 252.227-7037 No question/dispute about rights. We asserted rights at the proposal stage. There are Govt Purpose, limited, and unlimited as well. We also are very careful to keep the government funded activity segregated from the internally funded activity.
  9. The short and quick is that the company wanted to include a proprietary marking on a document that is an original work created under a DoD contract. I too believe the clauses are clear about the rules regarding the marking of data that is deliverable to the government. Even though we want to include the proprietary marking on the drawing to protect our company's rights, we can't do it (at least for the document being delivered to the government). But the same drawing could have the marking when being sent by my company to non USG entities. Is this a correct assumption?
  10. The gentleman's question wasn't specific. I believe his plan is to establish an overall policy. I'm assuming we could include the proprietary statement when sent to suppliers/subcontractors but if submitting to the government under the contract, that information would not be included.
  11. I had a question presented to me about Intellectual Property and appropriate marking of data under a government contract. Specifically, the since the FAR/DFARS outlines in detail markings for limited, government purpose, and special license rights but is otherwise silent on unlimited rights markings. The work related to this drawing was properly segregated and identified as being produced solely with government funds for the first time under the government contract. The person asking the question assumed this meant government ownership of the drawing with a license to my Company. Protocol at my company is to mark our developed drawings with the “XYZ Company propriety” statement which may pose a conflict. My quick response was no, we can’t include the “proprietary” statement on the drawings. The DFARS defines the acceptable markings. There are no “unlimited rights” marking requirements for IP submitted to the U.S. Government. Another Contracts Administrator more senior was also consulted however, and told them that we can and should include our proprietary marking. I believe we should only mark with a distribution statement as defined by the customer, an ITAR statement and a maybe copyright notice. Please advise as to whether or not I'm misinterpreting the DFARS/FAR on marking of IP. In my response to the person posing the question I also offered the following : Although this drawing is developed under the government contract with government funds, unless specifically requested in the contract, ownership remains with our company but the government has unlimited rights. This gives the government (and our company) the right to use, disclose, reproduce, prepare derivative works, distribute copies to the public, publicly perform and display the material in any manner and for any purpose it desires (ITAR limitations would apply). With regards to My Company’s proprietary marking, the “XYZ proprietary" would be nonconforming as 252.227-7013(f) states what markings are permitted – “proprietary” not being one of them for documents delivered to the customer. We would still be able to use this marking on the document otherwise. There are no required markings in instances where the government has unlimited rights. The purpose of the markings are to clarify the government’s rights. Any unmarked deliverable will be presumed unlimited. Although Unlimited rights gives the government the right disclose and distribute, those rights don’t automatically imply that the government WILL disclose or distribute. In this case a Copyright may offer, and our company may want to consider some level of protection against those who illegally obtain the IP. DoD generally allows the contractor to own the copyright for original works created under a DoD contract (DFARS 227.7103-9, DFARS 252.227-7013-4). In such cases, the government obtains a nonexclusive, royalty-free license to use the copyrighted material in perpetuity. NOTE: This license allows any government agency (not just the original contracting agency) to use the copyrighted material. Copyright markings, are allowed in accordance with this same paragraph as prescribed under 17 U.S.C. 401 or 402. We will need to request authorization for copyright in accordance with 52.227-14. Articles are not required to be marked or registered to be considered copyrighted. Should we decide to copyright the IP, we would need to include wording similar to this below/or other wording approved by our Legal department: ©2014 XYZ Company Inc. This work, authored by XYZ Company Inc, was funded in whole or in part by the U.S. Government under U.S. Government contract #xxxxxx, and is, therefore, subject to the following license: The Government is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable worldwide license in this work to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. All other rights are reserved by the copyright owner.
  12. No drones or SEALs here- just very strong demands. Yes, the "award" I'm referring to is just the change to the contract value for the out-of-scope work. Probably the wrong terminology, but I'm referring to the increase to the estimated cost ceiling.
  13. I have a CPFF contract awarded competitively. If I submitted a cost growth proposal for over $700K (scope changes/rates/overruns). its my understanding that we would need to provide Certified Cost & Pricing Data. The proposal was submitted a while a go and when the government was ready to discuss, I updated the pricing with current G&A rates due to my belief that the change falls under TINA. At this point some of the data was actuals. Based on the new rates, its significantly higher than the original cost growth proposal. Government wants us to agree to cap the rates for the out years. My question is three-fold (1) is that ok even if our rates change during those years? (2) I thought there was some type of provision that pretty much forbids the government from forcing an agreement that could significant and detrimental impact to the health of a company, did I imagine this provision? (3) Can the government make the decision to make the award based on the previous proposal?
  14. Can anyone give me an example of the application of the FAR 15.403-2(b )exception? We're expecting a contract modification for increases related to Cost Growth (changes to specs) and Overruns (rate changes mostly). I believe we need to certify cost and pricing data but I want to make sure. It was a competitive award originally, CPFF. I'm confused, however, with the FAR exception above.
  15. I have a CPFF Contract that was competitively awarded. During the proposal phase some items identified in the spec as optional which others identified as required. My company won with our proposal clearly not including one of the optional specifications. During kick-off, our customer's customer strongly suggested that the optional specification we decided not to include should be included in our product. PM to PM, the decision was made to make it happen. I found out later and sent notification to the KO that this was being requested and asked for concurrence, explaining that this would be a change for which we would seek equitable adjustment. We submitted our proposal for the change...including an agreement to absorb some of the costs. However, the customer was very sensitive about us identifying this as any type of scope creep which 95% of the increase was directly related to their identification as an option as now a requirement. I have been sure in every communication to explain that this cannot be identified as cost overrun because we have not exceeded our labor hours or material costs for any of the work we proposed to do. The proposal was approve for award and now the government PM is suggesting that the contract is also modified to include language to identify percentage of funding responsibility should we "overrun the contract again". I believe he's looking for language which sets in stone a 60/40; 70/30 or better split for ANY cost growth with us taking on the majority of costs because they want to make sure that the program doesn't die on the vine due to funding concerns. I responded that the FAR already has provisions related to responsibility for cost growth and that those provisions are based on the reasons for growth. If it is a change in scope then that would be the govts responsibility but if we overrun our costs we can send notification and the government will determine if they want to fund it or not. And if not the program would end. I've not had a situation where the govt wanted us to sign up to take on responsibility for all cost growth especially when PM to PM / Eng to Eng conversations are creating the growth. After I spoke up the KO told the PM they would have the discussion off line and that growth should be handled on a case by case basis. I do expect them to come back with something. I'm just curious as to under what authority they could include such a provision and if they do, would it make sense to agree to split funding on true overruns only and up to a certain dollar amount?
  16. If I'm reading 31.201-2 correctly, the costs for the overtime meal incentive would not be allowed because it's not allocable? 31.201-4 (a)- yes, incurred specifically for the contract; ( benefits contractor and government - yes; © necessary to the overall operation of the business - questionable??? The employees can work w/out the meal??
  17. So, say I have a CPFF contract and the staff will need to work over-time. Can lunch purchased for the staff working over-time be charged to the contract?
  18. Thanks to all of you for your replies. Very helpful.
  19. Material Review Board - The MRB will make decisions on what to do with nonconforming material or nonconforming product, such as: Use-as-is (a design change) Rework Repair (a design change) Regrade for alternative use Reject or scrap Redesign the product
  20. I have a contract where my company has design authority over a product we're delivering to the U.S. Government. We are also delivering to them a top-level kit drawing. I've been asked if we have MRB authority. The question is to determine if we can make a use as-is disposition for material at the component level. My short answer is yes, we make that determination at the component level and although the government has not expressly granted MRB authority, we would only need their expressed authority for non-conformances at the kit level. Please help redirect if I'm wrong. I'd also appreciate any references for further reading on the subject.
  21. We completed all of the required tasks, sounds like we should be able to get the full fee. Thanks.
  22. Our company was awarded a CPFF contract valued at $200,000 with a Fixed Fee of $20,000. This contract was incrementally funded only $180K including a fee of $18K. Are we due the $20K?
  23. That's what I was thinking as well but that was the reason the subcontractor gave for taking exception. I believe their logic is that they would have no subcontractors (i.e., no subcontracting possibilities). There's still no reason to remove the clauses - they would just need to report "no opportunities", correct?
  24. We are issuing $5 million subcontract award for a project we're working on as the prime. We included 52.219-8 and 52.219-9 in the terms and conditions. The subcontractor took exception as the current effort is for NRE. I don't know if it really makes a difference at this point but thinking that they shouldn't take exception but provide a response that as this is an NRE effort the current goals are at zero. The next phase of the effort is an option for production which is why I feel we should leave the clauses. Any thoughts?
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