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Everything posted by ohnoudidnt14

  1. Hello Wifconers and happy 4th of July. A friend and I are considering starting a “what were they thinking” series relating to government contracting. I would love to hear from you on particular instances, scenarios, protests, or court decisions that left you just scratching your head. The field is wide open…these could be matters so egregious as to be criminal (bribery, fraud, kickbacks, debarment) or a bit more subtle like obvious affiliation or conflict-of-interest issues. As much as we would love to be able to shoot-the-breeze with every one of you and just share stories, we are really
  2. Fed Reg Vol 81 No 104, May 31, 2016 finally implemented the “Similarly Situated Entity“ rule of the 2013 NDAA. Specific updates to 13CFR125 change the overall tenor of the Limitations on Subcontracting to a true limit on the amount that can be subcontracted rather than a prime performance requirement. Based on much of the reasoning included in that Fed Reg, the intent was to bring parity to the various programs, including the Limitations on Subcontracting. The Reg however did not change 48 CFR 52.219 and the various FAR clauses -3, -14, -27, -29, and -30 that implement the limitations
  3. All, thanks for the help on this. I hope you can see my frustration whereas, just like the bond premium, the prime contractor pays this up-front, it seems that it's an "allowable" cost, yet we can't invoice for it (other than progress payments over the life of the contract). Is there really no arguement that this is "coinsurance" since it lowers the prime's premium? Joel, the liquidation of the bond premium is an interesting methodology, but my experience with most agencies of-late is to pay the bond premium and separate it out completely from the progress calculation. Also, your comment
  4. ji, thanks for the quick response. I understand what you are saying, but ultimately the contractor/subcontractor agreement identifies that the contractor is going to reimburse the subcontractor for the bond premium just the way the government is to reimburse the contractor...so it is a cost to the prime regardless of who "paid" it. What if this were a contract mod. Are you saying the cost of the increased subcontractor's bond is an unallowable cost even though it is a requirement of the bonding company and ultimately reducing the cost of the prime contractor's bond premium?
  5. FFP construction contract in SC. Competitive IFB, SDVOSB set-aside. Question on behalf of the prime contractor. The government is required to promptly reimburse a contractor the cost of performance and payment bond premiums per FAR 52.232-5(g). Bonding companies generally require prime contractors also obtain bonds from subcontractors for subcontracts over a certain threshold (usually $250k for small-midsize companies). The prime contractor has several instances of where the subcontractor bond premium was reimbursed by the government along with the prime’s own bond premium AND several inst
  6. Just a quick observation...continuing the language from your quote "no longer count the options or orders issued pursuant to the contract, from that point forward, towards its small business goals". Therefore any task orders already issued can be completed with full accounting to the small business status of the company at the time of award. It is only new orders or option (e.g., contract option years) that can no longer count. Some agencies have chosen to ignore the "orders" part and only apply this restriction to "options". Others have found innovative work-arounds (circumventing the int
  7. ISSUE No. 1 – Yes, I think I’m clear on the requirement. I guess at this point I’m just pointing out the inconsistency between the various socio-economic programs for the benefit of the readers of this forum. I’m hoping it’ll be a point of discussion as to WHY the discrepancy??? ISSUE No. 2 – Yes, there are several inherent problems with the 180 (and often more) day acceptance period. Generally, economic adjustment clauses are not included unless a large percentage of the contract price is based on the price of a highly fluctuating precious metal, fuel, etc. Therefore, the result is a highe
  8. For a SDVOSB or 8(a) set-asides, offerors must be so classified as of the date a bid is submitted, regardless of the resulting actual date of award. Do I understand correctly, however, that for HUBZone, WOSB, or EDWOSB set-asides the offeror must also still be so classified on the day of award of the contract (not sure where Total Small Business would fall, but I assume the former)? An increasing number of agencies are performing solicitations for contracts prior to any funding being available. These solicitations require that the offers confirm XXX calendar days for government acceptance,
  9. I think I might throw a wrench into all of this, but in the end, simplify it for all. The Maersk Line decision ultimately concluded that since one small portion of the project was being performed in the US, that FAR Part 19 applied. Buried in the SBA’s rebuttal arguments, they point out that the newly revised regulation states that FAR Part 19 applies "regardless of the place of performance" 13 CFR 125.2(a); 78 Fed. Reg. 61,114 (Oct. 2, 2013)...and the GAO acknowledges it, even though it wasn't necessary to apply in this case. Therefore, in the SBA’s eyes, FAR Part 19 has been modified so th
  10. As a long-time Government contractor for large and small businesses, my experience with Government contracting officers has been mostly positive. I have had a situation for the last couple of years however where I have encountered a very abusive contracting specialist that is relatively new to the government contracting arena. I don’t blame her completely as her contracting officer has left her mostly unsupervised and, when he did provide any guidance, it was usually wrong. That said, she has been continually NOT acting in good faith (although my lawyer, while agreeing, always stops short of
  11. She has seen most of this already, but I will make sure it gets another thorough review. The problem with this one is that there was an initial evaluation, 14 days contractor comments, then it was revised by the contracting officer (adding the UNSAT and not addressing any of the other disputed issues) and finalized by the "level above the contracting officer" without any chance to comment or refute the revisions. Thanks for the tips, I'll pass them on.
  12. She sent a strongly worded letter to the head of the contracting agency, no response yet (chalk it up to the holidays). I suggested to her that the next step is an official request for final ruling from the contracting officer, then a Court of Federal Claims or Board of Contract Appeals filing. Meanwhile, that CPARs with an UNSAT is out there possibly preventing her from getting more work and there'll likely be no recovery of legal fees...which will just about put her SB out of business. Any other ideas?
  13. Just to rekindle this a bit...a colleage of mine (contractor) on the east coast had a CO rate them as "unsatisfactory" in CPARs for failure to satisfy the limitations on subcontracting. The problem is that they DID satisfy the applicable requirement. Worse, it was a construction contract and, like Joel mentioned, the CO had the certified payrolls that demonstrated compliance. Worse still, the CO worked this in a final revision to the CPARs rating, so the contractor didn't even get the opportunity to comment or rebut. Happy New Year (4.5 hrs early, central time zone)
  14. Thanks. To Ji - I don't believe your last sentence is the case. From their perspective, the change makes sense based on geography. To Vern, I have plenty of examples that might be a good basis for my "private talk" with the chief of the contracting office as Ji suggested, but not likely anything that would meet the government's standard of proof. I just know now that what small profit margin I had is going to be eaten up satisfying unnecessary administrative requests. Frustrating, but all part of the game of life.
  15. I am a contractor working on a FFP electrical construction project for the Navy in SE Georgia. The contracting office is planning to change the CO and ACO. I know this is fully within their right, but the CO and ACO they are planning are individuals that I have worked with before. They are abusive, don’t act in good-faith, and would basically be considered “high maintenance”. Do I, as the contractor, have any right to object to the change? Had these individuals been identified in these roles from the beginning, my price may have been different or I may not have bid the project in the firs
  16. Nebraska: Welcome back. I have to say that your SBA PCR is grossly misguided (that's the nicest way i could think of to say it). He/she obviously doesn't understand basic business types, rules, etc. I go back to my original post #2. Whether these independent contractors are sole proprietors, LLCs, S-Corps, or C-Corps, they can get a D&B number, register in SAM, Complete Reps & Certs. In your case, they wouldn't even need to upload their documents into the WOSB repository since they are not proposing as a prime. Get them to provide you a copy of their reps & certs for the fil
  17. Sap: An interesting question and I'm sure you will get very thoughtful responses from the experts here. A couple of quick observations from this layman however: FAR 15.403-1( c) includes the term "or" between (ii) and (iii), but not between (i) and (ii). I guess we should read that to read (i) and either (ii) or (iii). Worse yet, (ii) also requires (A)(1) AND (2) AND ( B ). ( B ) contains the "OR"...so is (iii) okay in lieu of (ii)( B ) only or (iii) okay in lieu of (ii)? I'm sure you (Sap) are the only one that dissected that bullet enough for it to make sense. The experts here will
  18. Sorry Vern...when in doubt, I always go back and read the original post. I agree that at this point we need to hear from Nebraska again for more data. Very useful info in this thread for anyone looking at the employee vs. independent contractor issue. Plenty of businesses (i.e., Microsoft) have gotten in a lot of trouble over this issue. If they really are independent contractors in this case, I would definitely question the SBA's judgement. A SB (or any other socioeconomic SB category) CAN'T include the 1099 independent contractors toward their self-performance goals (Ref. GAO decision, M
  19. I think we have veered far of course from the original question and have turned this into a posting of employee vs. independent contractor. An important issue I confess, but I'll assume that the original poster knows what he/she is doing regarding this and that they have bona fide independent contractors. It seems reasonable that a woman independent contractor should qualify as a WOSB. If I got all that right, I stand by my original response (#2). Even a sole-proprietorship can pull a D&B number (may be based on SS# instead of EIN/TIN), register in SAM.gov, and upload the documents to
  20. Disregarding the dictionary definitions for a minute, as a contractor we would like to know as soon as possible, especially as we are approaching the end of the FY. Such information may free up some bonding capacity (if construction) or may impact our go/no-go decisions on possibly bidding other contracts. I know your example may have been a hypothetical and not your "real" situation, but exceeding page count is not a reason to throw a proposal out. The proposal should be evaluated up to the number of pages permitted and the excess disregarded. The proposal will likely end up deficient on s
  21. Vern, you were very helpful in answering the question, thank you very much. I think you can understand my hesitation as I was attempting to apply the definition in 13 CFR 125.6(e)(2) to my "cost of contract performance incurred for personnel" of my subcontractor(s). Your way is definitely easier and I hope this helps others out there with a similar question. When the FAR is ultimately updated to included "similarly situated entities" for SDVOSB, EDWOSB/WOSB, and Total-SB set-asides (like it reads now for HUBZones) this will be increasingly important as some sub-contractors will be counted
  22. Woah...slow down that horse!!! Interesting exchanges here to say the least. Keep in mind that MOST of the limitations on subcontracting requirements apply to the entire contract and not to any particular arbitrary time in contract performance. I am making every effort to comply, so If I can lead you all back to the original question: How can I credibly account for the personnel cost for professional services when the only data I have is the fully burdened labor rate from that entity? That said (and now just to stir the pot a bit), absent any other information (e.g. certified payroll) in t
  23. Beer and Prosciutto, count me in. I don't know of any such requirement, but I would caution to be consistent. If your agency redacted the information for five similar consecutive procurements, but then for some reason did not on the sixth, I can see it come to question as to "why?". Was there a contractor in that sixth acquisition that 'someone" wanted to make sure their identity was known? Good luck.
  24. I would say, to protect yourself, have your independent contractor(s) 1) get a D&B no., 2) Register in SAM.gov, 3) follow the regs to register as a WOSB (including uploading the required documents to the WOSB repository (see sba.gov/wosb)), 4) complete their Reps & Certs in sam.gov identifying themselves as a WOSB, and 5) Provide you a copy of their final Reps & Certs. I know it's a lot of work, but it would CYA and the SBA wouldn't have credible reason to deny you at that point. If you have someone in your organization that is familiar with all of these steps that could walk all
  25. Yes, FAR 52.219-14 (or the similar clauses for HUBZone, SDVOSB, WOSB/EDWOSB set-asides) are an "agreement" that a prime contractor commits to with a bid. As a part of the "responsibility", I track this during performance. As work inevitably changes (whether incorporated by contract modifications or not), these percentages vary and in some cases need to be closely tracked. In my case, I have professional service providers (accountants, lawyers, etc.) that may be direct cost to the contract. I don't anticipate being able to get a DLR from these providers, but want to include them in the calc
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