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JAG51

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  1. Q1: I took the term from FAR Case 2004-015 (http://www.gpo.gov/fdsys/pkg/FR-2006-12-12/html/06-9610.htm), concerning treatment on T&M in an effor to analogize to the CPFF situation at hand. Perhaps this was not prudent. Section 8 Solicitation Provisions stated, in part: "8. Solicitation provisions...The first provision applies to acquisitions of noncommercial items that are to be based on adequate price competition. This provision requires each offeror to indicate for each labor rate in the proposal whether it is a rate that applies to employees of one company or if it is a blended rate that applies to employees of more than one company. The offerors must show for each labor rate if it applies to employees of the prime contractor, employees a particular subcontractor or affiliate, or if it is a blended rate that applies to employees of more than one subcontractor or employees of the prime contractor or any subcontractor. Agency procedures may authorize contracting officers to select one of three options in the provision as mandatory, and/or to require each offer to identify individual subcontractors in the proposal." This is where I got the blended rate nomenclature. Q2: The Government is not budging from the rate as the prime proposed for this position. In other words, the Government is using the fully burdened labor rate (without fee) of the prime as a cap / ceiling. Something struck me that if the Government is using this labor rate as a cap / ceiling, then why would the Government allow that cap / ceiling to be circumvented through other means?
  2. DoD. ID/IQ Task Order. If a subcontractor has a subcontractor of its own that can fill a labor position for the needs of the prime who's on CPFF, if the subcontractor is also on CPFF, would the cost paid by the subcontractor to its sub be categorized as an ODC or labor? The subcontractor teamed with the prime, but the position attempting to be filled is not one of the positions that the subcontractor proposed upon. The prime can't find anyone to work for the rate it proposed and the Government is not allowing any increase to the rate. The prime is now looking to subs to fill the position. Prime and subs are all small businesses. There are two CLINs in the contract - Labor+Fee and ODC's. Clauses present: 52.232-20 Limitation of Cost 52.216-7 Allowable Cost and Payment Under T&M (since Feb 2007), the labor rate would fall under the labor side and could not be billed as a material, provided the subcontractor proposed upon the initial / accepted rate (I believe this is called blended). In the case above, the subcontractor did not propose upon that rate initially. Is the same true for CPFF? Q1: Is labor hour blending present under CPFF? Q2: Is the subcontractor subject to those blended labor rates as accepted by the Government? If yes, only those it proposed upon or all? Q3: Is there any prohibition against the prime billing this labor hour / position as an ODC if being provided by the subcontractors sub?
  3. I think there's enough on this thread to mull over. Thank you all for your inputs. As always, it was informative and has made me think in different directions which is appreciated. Thank you all again.
  4. Vern - would it be a fair statement to say that the KO's slide may have force and effect, possibly falling under technical direction?
  5. Does the contractor invoice its actual direct and indirect costs during the Task Order period of performance, or does it invoice according to the direct labor rate and indirect rate "caps" that the proposal funding was established upon?
  6. You may also wish to view UPMC BRADDOCK v. Seth D. HARRIS, Acting Secretary, United States Department of Labor, 934 F.Supp.2d 238 (2013), United States District Court, District of Columbia, March 30, 2013. This is an unusual situation where the subcontractors wanted the court to adopt the traditional view of the Christian Doctrine and then apply it in the instant case. The traditional view being that the Christian Doctrine only applies to prime contractors, not subcontractors. The court rejected the traditional view for various reasons and went on to apply Federal equal opportunity requirements to three subcontractors by operation of law. Your audience may enjoy this case. It has far reaching implications for subcontractors.
  7. Non-Responsive proposal

    It's presumed you're referring to technical data as defined under 41 USC 116. If so, then I'd offer the following. When Intellectual Property (IP) issues are as stake, the only way to adequately address those are during the solicitation stage with the Q&A as you've already pointed out. You really can't take exception to the IP clause during your submission with the hope to receive an award and also adopts your exception. There are, however, steps you can take to identify that which is excluded from the grant of unlimited rights by marking the appropriate page or pages as trade secret, commercial, financial, confidential or privileged and in turn, a grant of limited (or restricted) rights will be granted. The marking of such is not dispositive of whether such is, in fact, excluded from unlimited rights - only that the Government is placed on notice that the contractor believes such to be true. If you haven't already, you may wish to carve out your technical data under 52.227-15((2) Representation of Limited Rights Data and Restricted Computer Software in the solicitation and also under your SAM.gov reps and certs, if appropriate.
  8. Navy - ID/IQ Services Award - Multiple Awardees - Base plus Two 1 Year Options - CPPF (Completion/Term). I happened upon the following slide in a powerpoint kick-off meeting for the above-mentioned ID/IQ. The following was presented by the contracting officer as one of the slides: "Proposed Direct Labor Rates Task Order direct labor rate quotes must be in line with the rates proposed at the basic contract level. All offerors (and their respective subs) shall submit their current actual unloaded direct labor rates for all proposed key personnel. Contractors shall: - Notify the Contracting Officer before incurring direct labor rates in excess of those proposed in response to the task order RFQ; - Provide a detailed rationale for the need to utilize personnel with direct labor rates exceeding those proposed in response to the RFQ, including a description of the benefit to the Government; and - Provide a detailed breakdown of how the costs associated by the increased direct labor rates will be absorbed within the direct labor cost ceiling on the task order." The solicitation made no mention of this concept. The contractor's proposal is not incorporated in the ID/IQ. No direct labor rates are present in the ID/IQ. There are no forward pricing labor rate agreements. There are no clauses or statements in the ID/IQ that support the above-mentioned approach. Contractor is a small business. Anyone see any issues with the above-mentioned slide?
  9. [Question Answered. Intentionally Deleted]
  10. Vern, I believe I've found what is needed. It appears to be the embodiment of FAR 15.306 in the TO RFP. It states: "Proposal Information · The Government reserves the right to clarify certain aspects of one or more of the proposals, without contacting all offerors, unless such communication is used to materially alter the technical or cost elements and/or otherwise revise the proposal.” This is essentially clarifications / discussions in a nutshell. I was hung up looking for FAR callouts and using specific search words such as clarification or discussion. Once I re-read the entire TO RFP front cover to cover, it became clear. Thank you for your prodding and assistance.
  11. Retreadfed - it's a Navy local clause usually found in Section B of their solicitation / contract (when applicable, of course).
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