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Vern Edwards

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Everything posted by Vern Edwards

  1. Don't get defensive. I didn't say that you did. I made the point in order to explain my questions. The distinction between the definition of "end product" in FAR 2.101 and the definition applicable to FAR Part 25 strikes me as significant. I would have asked Nena if I had wanted an answer from her. I asked you, because you've been posting as a practitioner, because you have had a lot to say on this topic, and because you came across like you know what's what. I'm trying to understand how to interpret the term end product in different contexts and how we can recognize one based on the definition and the language of a contract. I especially want to understand how particular contract language can affect analysis and a determination of end product or component. But I'll stop asking you questions now, because I sense that they're making you edgy, or on the verge of doing so, and that there's no point in pressing you. I'll answer my own questions, as should everyone else.
  2. I cannot find the term "end item of supply" anywhere in FAR Part 25. It appears only once in the FAR, in FAR Part 37. So what is the correct term for what you are talking about? When you say "end item of supply" do you mean "end product," as defined in FAR 25.003? If "end product" is what you mean by "end item of supply," and if the statement of work/specification in the schedule of a remanufacturing contract specifies the particular replacement parts that are to be used, then wouldn't those replacement parts be end products for purposes of FAR 52.225-5? Neither the definition of end product nor the clause states that articles, materials, and supplies must be separately deliverable and separately priced in order to be end products. Does FAR say that somewhere else? Do you know of any case law? I don't know much about this topic, so, again, I'm asking, not arguing.
  3. What if the "repair" is not minor? See FAR 22.1003-6. Would TAA apply? I'm asking, not arguing.
  4. Vern Edwards

    FAR 52.204-21

    No, it couldn't, because the plain language of the clause doesn't say that. The word "necessary" appears in that clause only once and only in connection with "simple transactional information". If you disagree, then explain how you would justify your inferential interpretation in court.
  5. Vern Edwards

    SAM Scam

    See this: https://www.ams.usda.gov/content/possible-scam-system-award-management-sam-email-notifications-third-party-companies Watch this.
  6. Vern Edwards

    Stop Work / Protest

    Did you ask? Will you ask?
  7. Vern Edwards

    Stop Work / Protest

    Not necessarily. I once received a protest that cost the protester no more than a first class postage stamp ($0.13), a sheet of paper, an envelope, and some typewriter ink. They won at the agency level based on the letter and a phone conversation initiated by the agency.
  8. Vern Edwards

    Multi-year Service Contracts?

    What I think SRose means is of whatever length up to five years. The study is about service contracts that are annually funded, but for which multi-year authority is granted in accordance with FAR Subpart 17.1. The study is about the prospects from legislation that would permit such contracts to be for more than five years. This isn't hard. SRose wants to communicate with someone who has used a multi-year service contract. If you've used one, contact SRose based on the info in the OP. If you know someone who's used one, pass the info on to SRose. If you haven't used one and don't know anyone who's used one, have a nice day. Horse pucky. Why not. Yes. Look at the title of FAR Part 41. Look at the definition in FAR 41.101. I presume that a multi-year service contract will be one that requires the contractor to make a long-term capital investment.
  9. Vern Edwards

    Multi-year Service Contracts?

    I asked her if she was interested in multi-year or multiple year. She said multi-year. I gave you the definition of multi-year. That's all I know. You've mentioned the Corps. If she's interested, she'll contact them, don't you think?.
  10. Vern Edwards

    Stop Work / Protest

    So much for FAR 52.233-3.
  11. Vern Edwards

    Multi-year Service Contracts?

    This is what she means: I don't know that there have ever been many such service contracts. Don says he's found a lot of records of them. It's up to the researchers to find sources for their research, especially if they're being paid.
  12. Vern Edwards

    Stop Work / Protest

    The idea is to put the contract on hold until the protest is resolved. Here's the rule at FAR 33.103(f)(3) if the protest was filed with the agency: Here's the rule at FAR 33.104(c) if the protest was filed with the GAO:
  13. Vern Edwards

    Solicitation questions and answers

    Bob, I suggest that you set the site so that when people post a question they will be required to say whether they work for (a) the federal government, (b) a state or local government, or (c) the private sector.
  14. Vern Edwards

    Solicitation questions and answers

    See FAR 11.107(a) and 52.211-6.
  15. Vern Edwards

    Solicitation questions and answers

    No, I don't agree. See FAR 1.102-2(c)(3): Emphasis added. What that means is that similarly situated prospective contractors must be treated similarly. If the answer to a question might be of general interest, and if it would potentially be of benefit to other prospective bidders or offerors, then if you answer the question you should provide the question and answer to all prospective bidders or offerors. The question about a substitute material for a brand name or equal product is a question about the interpretation of the solicitation. The submission of a question about the interpretation of a solicitation does not entitle the questioner to a private answer. Moreover, a question asked in advance of the submission of a bid or proposal should not be treated as a proprietary matter. I would refuse if a questioner were to ask me for a private answer to a question about the interpretation of a solicitation. Finally, I think Neil Roberts has made a good point. The government does not owe any prospective bidder or quoter an advance decision about a proposed equal product, unless the prospective bidder or offeror asserts that the solicitation is unclear or ambiguous about the salient characteristics of an equal, in which case the CO should amend the solicitation if he or she agrees that the solicitation should be clarified.
  16. Why not write an option to increase the maximum if the government exercises the -8 option?
  17. What does that mean? Did you propose the fee as a dollar amount or as a percentage? Are you asking how to work DOD weighted guidelines or a similar system used by a different agency?
  18. The clause says nothing about increasing the maximum quantity. In fact, the clause expressly states that exercise of the option extends the contract "within the limits... specified in the contract." Ask those who claim that the clause increases the maximum to show you the words that do so. It would be different if the contract stated the maximum as a rate, say, a max of $10/month. But I've never seen that.
  19. That violates the canon of regulatory interpretation that says you must interpret a regulation as a whole. See Lengerich v. Dept. of Interior, 454 F.3d 1367 (Fed. Cir. 2006): If the regulation applied full coverage only to the current accounting period, would it say so? That doesn't make sense to me. Take a look at the DCAA flow chart and note that it includes language that is not in the regulation. It's not a regulation. It's for DCAA internal use. Having said that, if it works in your best interest, use it.
  20. I'm going to play devil's advocate. Here is the coverage rule in its entirety as it applies to commercial organizations: Let's interpret that rule through the use of a scenario. Suppose we have a business unit that has received a $50 million CAS-covered contract with a five year performance period. Start with paragraph (a). According to (a)(1), if a business unit receives just one CAS-covered contract worth $50 million or more, then full coverage applies to the business unit immediately. Not just to that contract, but to that entire business unit. The rule does not say full coverage applies to the business unit during the accounting period in which the contract was received, but to that business unit. Period. No time limit stated. Of course, the contractor will be under no further obligation to the government with respect to cost accounting standards once the contract has been completed and the contract has been closed out, unless it wins more CAS-covered contracts. So let's say that full coverage applies to the business unit while the contract is in effect. What about (a)(2)? Well, forget about it, because it's either/or. If (a)(1), the single contract rule, applies, then (a)(2), the "net awards" rule doesn't add anything. If the single award rule does not apply, but the "net awards" rule does, then the business unit will be subject to full coverage during the next accounting period. CAS defines "net awards" at 48 CR 9903.301 as follows: So let's suppose that two accounting periods after the award of the $50 million contract, and while that contract is still in effect, our business unit wins a $30 million CAS-covered contract. Full coverage or modified coverage? Look at paragraph (b). According to (b)(1): That refers to the "net awards" rule in (a)(2). Well, okay. But what does that rule have to do with anything? Full CAS-coverage already applies to the business unit by virtue of (a)(1), with no specified time limit, and the $50 million contract is still in effect. You can't just ignore (a)(1). Reading the rule as a whole, paragraph (b)(1) rule says only that if the business unit were not already subject to full coverage by virtue of (a)(1), and if it did not cross the (a)(2) "net award" threshold in its previous accounting period and were not subject to full CAS-coverage on that basis, then the new contract award valued at $30 million would not be subject to full CAS-coverage. $50 million is the tripwire that applies full coverage to a business unit. Once across that boundary, the business unit is subject to full coverage. Period. The (b)(1) rule protects a contractor that has received several small CAS-covered contracts during a cost accounting period that were individually worth less than $50 million, and worth less than $50 million in total, by preventing the government from aggregating across accounting periods. Now look at (b)(2): If at the outset of an accounting period the business unit has not already tripped the $50 million wire, either by virtue of (a)(1) or (a)(2), then any CAS-covered contract worth less than $50 million it receives in that accounting period is subject to only modified coverage. But if it receives a single covered contract worth $50 million or more during that period, then all further awards during that accounting period will be subject to full coverage regardless of dollar value. So what about the next accounting period? See (a)(1). I'm not sure that I'm right. And I'm not sure that inquiring mind2 is wrong. I'm just trying to think it through.
  21. @inquiring mind2 The DCAA flow chart seems clear. But it is not a regulation. Whether it's right or not, I don't know. The real problem here is that you are dealing with a secondhand report of what a consultant supposedly said. My advice is that you call the consultant and work it through with him. No matter what any of us say, you've still got that consultant to deal with. Right? If your company paid the consultant for his advice, why would your higher manager care what any of us nobodies thinks? A 30 minute conversation might clear this up for you.
  22. Well, that's what I asked. It appears that the consultant is interpreting 48 CFR 9903.201-2(a)(1) to mean that once you have received a $50 million+ CAS-covered contract that is subject to full coverage, every CAS-covered contract awarded thereafter must be subject to full coverage, without regard to the accounting period in which the first full-coverage contract was awarded. I don't know if that is right or wrong, and I can't tell from the language of the regulation. Furthermore, I can't find any guidance that specifically addresses the issue. I would want to ask the consultant what are the grounds are for his/her interpretation. Or ask a different consultant.
  23. Here's part of the relevant rule from 48 CFR 9903.201-2(a), Types of CAS Coverage: Is the issue the interpretation of paragraph (a)(1)? Is the consultant interpreting (a)(1) to mean that once you receive a CAS-covered contract with full coverage all subsequent covered-contracts are subject to full coverage, regardless of dollar value or accounting period? Or is he/she literally saying that full coverage applies to all new covered-contracts, regardless of dollar value and accounting period, if you are currently performing a fully covered contract, no matter when it was awarded?
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