Fara Fasat

That section of the DFARS just says that the items can be treated as commercial items. It doesn't say they are commercial items. Furthermore, the authority is only granted to the head of an agency and then the contracting officer. There is no clause or anything else that tells a prime it can provide the same treatment to subs. DFARS 212.102 only talks about the contracting officer. If this authority were to be passed on to primes, I would expect there to be a clause doing so. My statement is fairly limited -- I'm saying that a nontraditional contractor can only use that status in a prime contract with DoD. If it is a subcontractor, and the prime contract is not commercial, then the sub will have to establish the commerciality of its products.

Just to clarify - the designation as a nontraditional contractor is only available on prime contracts with the government. The authorizing statue says that the head of an agency may authorize the treatment of products or services as commercial if coming from nontraditional contractors. Furthermore, the acquisition gets treated as a commercial item acquisition; the products or services themselves do not become commercial. This benefits subs because the prime's contract will only have commercial item clauses in it, so only these will flow down to a sub. But if the prime has a non-commercial item contract, and a sub meets the definition of a nontraditional contractor, the sub must nevertheless establish that its product is commercial if it wants the benefits of a commercial item subcontract. There is no authority for a prime to treat a subcontract as commercial just because it comes from a nontraditional contractor.

Just to be clear, I'm not job hunting. My offer of a version with deviations was somewhat tongue-in-cheek. Still ... 🤷‍♂️

Good if you're looking for a searchable database of deviations; not so good if you'd like to see the clauses where they belong. In my opinion, NASA got a good start by providing a link to the applicable deviations at the front of each subpart's clauses. Even better would be having the deviation clauses inserted where applicable. For a bonus, do something similar to the 'track changes' function in MS Word, like strike through the inapplicable clause and highlight the deviation clause. If the price is right ... 😉 Just curious - does the contract writing software that DoD uses automatically insert the deviation clause?

Don also said that "DoD shouldn't be surprised when their contracting officers aren't compliant with their class deviations." It wouldn't be "the DFARS." It would be a version (and I have consistently said "version") with the correct clauses in it. Did you ever complain about the version that Farsite posted, because it wasn't the real "DFARS" and didn't go through notice and comment? If you don't like "version", what word would you use? I'll be glad to use it. It wouldn't be the real, CFR DFARS, and everyone here knows that, so I'll call it whatever you want. No matter what it's called, I bet there are many who would be glad to see it and use it. Oh, and the version of the NFS that NASA puts on its website includes references to its deviations, in red, at the beginning of the clauses for each subpart. In their list of deviations at https://www.hq.nasa.gov/office/procurement/regs/pcd.pdf, they include a link to this version and even call it the official NFS. Apparently NASA thinks it is useful to post their NFS with deviations. https://www.hq.nasa.gov/office/procurement/regs/NFS.pdf

Vern - wonder no more. For the record I have contributed. I just don't need to enumerate what or how here. My statements on this forum aren't any more or less valid based on my professional contributions. Dsmith - I was in the 101st too, although longer ago than I care to admit. And since I'm not in the government, there's not much I can do about change. By the way, I could put together a DoD-accurate version of the DFARS, with the currently-applicable clauses and their prescriptions in the right places. For a price.

True, but my issue is not whether DoD has posted an accurate copy of the CFR. It's whether DoD has posted an accurate version for their practitioners to use. They have not.

C Culham: Yes. I mentioned it way back in the first post: "The only thing I've found that comes close is the DAU clause matrix, but it's not official, and it can be cumbersome to use because you have to download a spreadsheet and then open and search each time you want to verify a clause." It's still not the same as having DoD and GSA post an accurate DFARS online. What they post now is not.

I was asking if something existed, like the version the Farsite had, where the deviations were integrated into the DFARS. It seems to me that's the most user-friendly solution. If there is no such thing any more, I could do what you and Don are saying. And so could thousands of other 1102s, contract managers, etc, at a tremendous waste and duplication of effort. I am not averse to research, but this is not something that should require everyone to do his or her own research. These are clauses - they belong in the DFARS. In fact those 'official' versions, by using the clauses that have been replaced by a deviation, are not correct, are they? After all, the prescriptions for the deviations say they shall be used.

I'm adept now, thank you. As for that site, do you know what turns up if you search for 252.227? Nothing. SBIR? Nothing. A search for "data" finally turns up 4 hits. Finding such substantive changes shouldn't depend on thinking of the right keyword, AND, having that keyword show up in the title. And what do you suggest we search for to find unknown additional clauses? If you didn't already know about the SBIR class deviation, what would tip you off to look for one? Or are you suggesting that we should search for deviations to all clauses before including them in a contract? And again, what about the additional clauses? How would you know to add those unless there was a consolidated list somewhere? Even if you downloaded the full pdf that Don suggested, what search terms would you suggest we use to find just the additional clauses, not the ones that replace an existing clause? It's over 400 pages long. But you're right, I'm expecting too much to think that the DoD online DFARS should have the correct clauses. If farsite could do it, so could acquisition.gov. How about just something in bold in front of the clause that says "See Class Deviation 20XX-Oxxxx." That shouldn't be hard.

What do I win? 😏 While some of the deviant clauses are relatively harmless, some have a big substantive impact. Take the SBIR clause for example, 252.227-7018. Under the standard clause, the SBIR data rights period is 5 years. Under the class deviation clause, the period is 20 years. Quite a difference!

It took a bit of searching but I found it at https://www.dau.edu/tools/t/DoD-Class-Deviations-Integrated-pdf-file-JST However it's just a pdf of the class deviation page I noted above, plus all the deviations. Sure you can search for a deviation for a clause using the same clause number, but how would you find new clauses, like a -7098 or a -7099 clause, if you don't already know the clause number? Maybe I'm expecting too much. I'd like to see a full DFARS with the deviations in place along with the other clauses.

Is there a version of the DFARS that has the applicable class deviation clauses instead of or in addition to the clauses they replace? None of the "official" sites do it consistently, i.e. some deviation clauses are listed, others are not: the GSA regulations site (https://acquisition-staging.gsa.gov/content/regulations), DoD's site (https://www.acq.osd.mil/dpap/dars/dfarspgi/current/index.html), and the Code of Federal Regulations. The only way I know of to find class deviations is at https://www.acq.osd.mil/dpap/dars/class_deviations.html. However it is as user-unfriendly as you can get. The deviations are listed by their deviation number and name, and in chronological order. If you wanted to find out if a particular clause had a class deviation, or if a new clause had been added, I can find no way to look them up by clause number. The only thing I've found that comes close is the DAU clause matrix, but it's not official and it can be cumbersome to use because you have to download a spreadsheet and then open and search each time you want to verify a clause.

Maybe, maybe not. Their article does not mention the new definition, and the events of the case long preceded the change.

Don - maybe I should have said that most here agreed that the court said that this particular service was not commercial, not that most here agreed it was not. Inexact writing afflicts us all. The larger point is that an established firm accepted the court's poor wording and warned clients that services might not be commercial items.

The dust has settled and I think most on this forum agree that 1) this particular service was not commercial, and 2) the court's opinion was poorly worded in suggesting that services were not commercial items. I thought that surely no one with any experience would quote those lines and claim that the Fed Circuit has now held that services are not commercial items. After all, that would fly in the face of 20+ years of FASA, FARA, and the FAR definition of commercial items. Couldn't happen, right? Then yesterday, a client alert arrived from a well-known law firm (name withheld), stating that the court appeared to draw a bright line between commercial-items and services contracts. Also that a range of commercial-items clauses could be inoperative when incorporated into services contracts. There was no mention of any conflict with the official definition of a commercial item, or that services are included in the definition in the law itself.

Just saw TNT1's latest post. I'm not sure, but it still doesn't look like the prime is submitting and certifying any data to the government.

I don't see anything in the OP's facts that says the prime is now providing certified data to the government. So let's break this into two parts: prime is now submitting certified data; and prime is not submitting certified data but is just now issuing the sub's IDIQ. In the latter case, I think there would no need for updated sub data. Why would you need it and what would you do with it? I think there are other issues. Are the prices still valid or was there an expiration? If I were the sub I would want to re-open the negotiations and resubmit the data, but that doesn't appear to be what is happening. I think that as long as the prime is not now submitting and certifying data, and is awarding to the sub at the old negotiated prices, then the data supporting those prices are still valid. I do agree that if a prime is now submitting and certifying data, then it should obtain updated data and a certification from the sub.

Just for my understanding, if the IDIQ is awarded at the prices that were negotiated and agreed in 2020, as the OP stated, why would updated data be needed? I can see needing new data if you want to negotiate different prices, but why if they agree to the same prices? The requirement is to certify to the accuracy and completeness as of the date of agreement on price. They are now using the agreed-upon prices. True, some of the underlying data may have changed, but again, the award was at the agreed price. It is very likely that costs have gone up, but why force a change if the seller is willing to honor the old prices?

From the question I assume that the RFP lists the positions that are considered key, and the offeror names the people for those positions. What if the RFP requires offerors to list any key positions and personnel, who would then be subject to notice and approval by the customer of any changes? So do you list several people and take on the burden of notice and approval for any changes, or do you list few or none and risk an evaluation that you consider no position to be key?

Your facts are confusing. You talk about a "main company" but then say that both that and the company in Germany are "under" the same entity. Do you mean that both are subsidiaries of a parent company? Anyhow, it probably doesn't matter in the end. A SAM registration is required for each separate legal entity, and each separate division or branch of an entity. SAM considers a division or branch as a separate entity, even though in the legal sense it is not. Back when the ownership reporting came out, we questioned DLA about this, and their answer was that subsidiaries, divisions, and branches are all considered entities. The "owner" of a division is the next level up in the corporate hierarchy. Besides, from a practical standpoint, you want the Germany company to have its own registration even if it is a division and not a separate legal entity. All of its administrative information, address, banking information, points of contact, etc, will be different from that of the "main" company that you want to use. Just register it, and get an NCAGE too.

True, that would explain the result in this case. I lean the other way -- that the contracts changed hands on the effective date of the novation. That follows from the wording of the novation agreement, which says that after the effective date, the term "Contractor" in all contracts shall mean the transferee. Of course we don't know if they used the standard template, and there are likely other facts we are missing. After all, both parties had experienced law firms on their side, so it is unlikely that DynCorp was ineligible for the task order and no one caught it. We'll just have to leave it at "we don't know."

Neil, that article is informative and I have saved it for reference, but I don't think it applies to the novation of a government contract. From a quick read it looks like it discusses the circumstances in which a parent can be liable for the obligations of a subsidiary, i.e. piercing the corporate veil, when there is no assignment or transfer of the sub's contracts or obligations to the parent. In a novation, there is a formal transfer of the sub's (the transferor's) contracts and obligations to another party (the transferee) (in our case, the new owner/parent). The transferee takes on all obligations of the transferor, and the transferor is released. The standard novation agreement in FAR Part 42 basically follows this. So, back to Vertex. The GAO was a little ambiguous by saying that DCMA "approved" the novation "request", but it did cite the "DynCorp Novation Agreement." DMCA also directed individual COs to modify their contracts "to incorporate the Novation Agreement." I think there was a formal novation, not just an approval of a request, and it was signed by all three parties as it should be. If true, then all contracts, including the IDIQ, became Amentum's contracts, not DynCorp's. And so the legal issue is still unanswered: how did DynCorp get awarded a task order under an IDIQ contract that it no longer held? One possibility is that the assignment is not complete until an individual contract is modified to identify the new party. If the IDIQ had not been modified yet, then DynCorp might have been the holder still. The problem with that is that the novation agreement makes it a done deal. The following is in (b)(4) of the FAR template: "Following the effective date of this Agreement, the term “Contractor,” as used in the contracts, shall refer to the Transferee." That sure sounds like the contracts got modified right there; any individual contract modification is just an administrative update. Yeah I know, talk to an attorney. But I'm not looking for legal advice on how to proceed. I just noticed something that didn't sound right, and I'm interested in others' thoughts on the matter.

The GAO just released the Vertex decision, where it sustained a protest by Vertex of the award of a task order to DynCorp. The GAO held that the AF did not adequately document its evaluation of the impact of the purchase of DynCorp by Amentum. While decisions involving corporate ownership and structure are very fact-specific, I was puzzled by one thing. Brief chronology: Both DynCorp and Amentum were awardees of the IDIQ contract under which the TO was issued. The sequence of relevant events was, in order: Amentum bought DynCorp and held it as a wholly-owned subsidiary; DynCorp submitted a proposal for the TO; Amentum did not; all contracts held by DynCorp were novated to Amentum, including the IDIQ contract; the TO was awarded to DynCorp. Here's what I can't figure out. If all DynCorp contracts were novated to Amentum, then DynCorp no longer held the IDIQ contract when it was awarded the TO. Amentum held the IDIQ contract. Since they are separate legal entities (DynCorp was a wholly-owned subsidiary), the IDIQ was held by one legal entity and the TO went to another. Maybe we're missing some facts, but does that sound right? Can an entity be awarded a task order under an IDIQ contract that it no longer has, as long as it submitted a proposal while it held the IDIQ contract? Or is a contract held by a parent (Amentum) also held by all subsidiaries (DynCorp) even though they are separate legal entities? I don't think so, but I don't know much about corporate structure and ownership.

Has the prime inserted the DPAS clause - 52.211-15 - or incorporated the DPAS regulations (15 CFR 700) into your subcontract? If so you are required to meet the required delivery dates. Very few options for you. Look for some other leverage. And of course, contact a lawyer before doing anything.