Vern Edwards

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About Vern Edwards

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  1. See FAR 31.201-2. In order to be allowable in this case, the indirect cost rate must be: (1) Reasonable. (2) Allocable. (3) Compliant with the terms of the contract. (4) Compliant with any limitations set forth in FAR Subpart 31.2. No one here can say based on the info that you've provided whether 14.95 percent is allowable in this case. You must make that determination based on FAR 31.201-2 and the facts presented to you with the proposal. If "There is nothing wrong per se with an overhead rate of 14.95%" there is nothing right about it, either. As Joel has already said, yes, it can be negotiated. If by that you mean can an 8(a) prime calculate profit based on the markup it pays to its subcontractors, the general answer is yes, unless agency policy is not to give the prime profit on subcontractor markup. What is your agency's policy? To what "excessive pass-through rationale" are you referring? Please cite a law, regulation, or agency policy.
  2. Dang, FAR-flung 1102, thanks for that post. I don't pay much attention to micro-purchases and had not noticed FAR 13.202. Very interesting. How do you enforce a clause that was not included in a transaction? I guess 13.202 is notice to the world. Read your FAR, vendors! For general information, FAR 13.202 and 52.232-39 were added by interim rule on June 21, 2013, FAC 2005-67, 78 FR 37686. According to the FAC, the rule was added in response to a Department of Justice memo, "The Anti-Deficiency Act Implications of Consent by Government Employees to Online Terms of Service Agreements Containing Open-Ended Indemnification Clauses," dated May 12, 2012, That memo prompted a memo from OMB (almost a year later), "Antideficiency Act Implications of rtain Online Terms of Service Agreements," dated April 4, 2013, The interim rule was finalized on December 31, 2013, FAC 2005-72, 78 FR 80382. The public comments and FAR council responses are interesting. This exchange is my favorite: So in the slightly more than six months since publication of the interim rule the FAR councils noticed no change in conduct on the part of commercial firms. I wonder how many of them even knew, much less managed to change the terms of their online licenses. And then there's this one: The only way for the Government to go commercial is to go commercial. Throw out the acquisition laws and the FAR when buying commercial items and buy stuff just like everybody else. Never happen. Government is government.
  3. Use the official FAR site:, or go to the and look at the CFR version. In my opinion, it's not smart to include a web link to the FAR in a contract.
  4. "Similar" is not identical. If there are no meaningful discriminators among nonprice factors, i.e., the offerors are essentially the same in terms of nonprice value, then the award goes to the company with the lowest price, even if the price is lower by only one cent. If two of the offerors are tied at the lowest price, consider the procedure in FAR 14.408-6. This very rarely happens when the tradeoff process is used. The FAR does not anticipate such an event in a procurement conducted pursuant to Part 15, although my recollection is that pre-FAR regulations did. For a case in which it did happen see Building Operations Support Services, LLC, B-407711, 2013 CPD ¶ 56. Note how the "tie" was resolved. There are a few other such cases. I can't remember ever seeing a tradeoff process in which the offerors were literally identical on all factors. Moreover, if the process is tradeoff you could conduct discussions in an attempt to improve the proposals and see if you can get a tie-breaker.
  5. What do you mean by "use"? Use just to make payments or use to make the transaction and to make payments?
  6. It's a matter of the law of contracts and of offer and acceptance. An offer is a promise or set of promises. What does the proposal say? Does the "approach" consist of a set of clear and specific promises, or does it just describe what the offeror is thinking of doing? Clear and specific promises are binding. Descriptions unaccompanied by promissory language probably are not. See the definition of promise in Restatement, Second, Contracts § 2: The mere fact that an offeror describes an "approach" in its proposal does not bind the offeror to follow that approach unless the wording clearly communicates a promise to perform in that way and in only that way. Do the Government personnel reading and evaluating the proposal know how to interpret the proposal language from the standpoint of the law of contracts?
  7. Under a CPIF contract the contractor earns the incentive fee when it completes the work and the contracting officer determines the total allowable cost. The current underrun could disappear in a heartbeat. The parties might not realize there was actually an overrun until after the contract is physically complete and the participants have gone on to other jobs. Don't assume that the current underrun is the final result.
  8. Then why not just fund the widget through normal Part 13 procedures? What's up with going through Kickstarter? How does that make anything better?
  9. C Culham has made a good point. Kickstarter is expressly a financing platform. Its use would be an advance payment. If the item being purchased is a commercial item, see FAR 32.202-2, "commercial advance payment." But I don't think that will do the trick.
  10. I want to know who it was who gave that Anti-deficiency Act answer.
  11. It's funny how we all use the word "approach" is if it referred to some definite idea or thing.
  12. Huh? That panel is in big trouble.
  13. I don't understand what you mean by "used."
  14. Why?
  15. That's not a contract. That's a description of a supposed contract. According to the site: "the contract is a direct legal agreement between creators and their backers." Then we get a third party's statement of the terms of the "direct" contract. What law governs in the event of default? State? Whose state? Does the Disputes Act apply? If not, why not? Come on! You're a contracts guy. Anticipate questions and challenges.