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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. 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. 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.
  10. Retreadfed - it's a Navy local clause usually found in Section B of their solicitation / contract (when applicable, of course).
  11. ji20874 - thanks for your reply. I wasn't looking at the fee from a standpoint of probability analysis, but rather, based on a "misunderstanding of the requirements." But your point is well taken.
  12. Also, on another note: 15.404-1 Proposal analysis techniques states the Gov't can adjust the fee when appropriate. Is it possible for the KO to adjust the fee downward, so it conforms to the 6% cap? 15.404-1 Proposal analysis techniques, cost realism analysis: (d) Cost realism analysis. (1) ... (2) Cost realism analyses shall be performed on cost-reimbursement contracts to determine the probable cost of performance for each offeror. (i) ... (ii) The probable cost is determined by adjusting each offeror’s proposed cost, and fee when appropriate, to reflect any additions or reductions in cost elements to realistic levels based on the results of the cost realism analysis. GAO - "We have held that agencies should make downward adjustments to an offeror’s evaluated cost where the proposal shows a misunderstanding of the requirements in a manner which would cause the government to incur a lower cost than that identified in the proposal. See Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD ¶ 79 at 3-4"
  13. GAO - exceeding a fixed ceiling on a base ID/IQ leads to an unacceptable determination as opposed to non-responsive. Is FAR 15.306 required to be called out in the RFP TO in order for it to apply? The base ID/IQ expressly referenced FAR 15.306 in the initial award, but you're correct in that this RFP TO does not make reference to FAR 15.306.
  14. TO RFP does call out FAR Part 15. It states: "The offeror’s overall cost and fee will be evaluated. The Government will evaluate the proposed cost of each offer for realism and reasonableness in accordance with FAR Subpart 15.4 for all offerors." Would you happen to have a GAO case name or number handy?
  15. I guess "null" in mathematical terms is the appropriate response. As far as I can gather (as it was not my contract) during the original submission for the ID/IQ, the prime applied the fixed fee over itself and that of CPFF subcontractors. Subs did not propose any fee to the prime - why, I don't know. There are no subs being proposed for TO Award. I interpreted the blending to apply to the prime / sub relationship as opposed to a blending of differing fixed fee percentages over the number of awarded task orders. Btw - this is the first task order RFP under this program. In short, I ignored (rightly or wrongly) the blending statement.
  16. Base services ID/IQ's were competitively awarded a year ago. The base contract includes: "5252.216-9200 PAYMENT OF FIXED FEE (COMPLETION TYPE) (JAN 1989) FIXED FEE ____*___The Government shall make payment to the Contractor when requested as work progresses, but no more frequently than biweekly, on account of the fixed fee, equal to __**__ percent of the amounts invoiced by the Contractor under the “Allowable Cost and Payment” clause hereof for the related period, subject to the withholding provisions of paragraph ( of the “Fixed Fee” clause. In the event of discontinuance of the work in accordance with clause of this contract entitled “Limitation of Funds” the fixed fee shall be redetermined by mutual agreement equitably to reflect the diminution of the work performed; the amount by which such fixed fee is less than, or exceeds payments previously made on account of fee, shall be paid, or repaid by, the Contractor, as the case may be. *The total fixed fee under CPFF CLIN XXXX is $XXXXXXX (6.00% of CLIN XXXX cost), CPFF CLIN XXXX is $XXXXXXX (6.00% of CLIN XXXX cost), and CPFF CLIN XXXX is $XXXXXXXX (6.00% of CLIN XXXX cost). **To be determined at the Task Order level. The allowable fee percentage will be negotiated at the Task Order Level. The Government does not anticipate task order blended fee to exceed the following rates based on expected performance and contract risk: Base Period (CLIN XXXX): 6.00% Option I (CLIN XXXX): 6.00% Option II (CLIN XXXX): 6.00% (End of clause)" A competitive CPFF Task Order RFP is issued. The TO RFP language states: "Task Order Type: Cost-plus-fixed fee (CPFF) Level of effort, type task order Fee: The allowable fee percentage will be negotiated at the Task Order level and shall not exceed the blended percentage proposed at the basic contract level, Clause 5252.216-9200 PAYMENT OF FIXED FEE." You'll note the base contract clause applies solely to CPFF Completion types of Task Order of which this Task Award is not. A $500k CPFF proposal is submitted in response to the TO RFP but with 6.5% fee. Question 1: Would you consider the proposal non-responsive for exceeding the 6% ceiling of the base contract clause? If so, why? If not, why not? Question 2: If you don't consider the proposal non-responsive, do you consider the statement "[t]he allowable fee percentage will be negotiated at the Task Order level" as establishing a condition precedent to agreement upon an acceptable fee percentage? In other words, do you believe the Gov't has obligated itself to negotiate the fee through the use of the words "will be negotiated" so as to give the contractor an opportunity to lower its fee to 6% to conform to the TO RFP language, even though the Task Order is a CPFF Term (LOE) as opposed to a CPFF Completion. Curious.
  17. Excellent. That's what I figured. I read 519.705-6 Postaward Responsibilities of the Contracting Officer where it references the notice of award requirements, but such only relates to small business plans and the SBA, so I discounted it. I figured that value had to be used for a purpose other use as a maximum dollar amount but I could not find the evidence to support my presumption. You've reinforced it. Thank you!
  18. What's the purpose of indicating a "Contract Award Dollar Amount" in the FBO award notice for a GSA IT 70 Schedule award when the awardee's contract itself does not include same? This contract award dollar amount appears once (as far as I can tell) only in the FBO award notice. FAR 52.216-19 Ordering Limitations (Dev II), which is part of a GSA IT 70 awarded contract, merely indicates the various individual SIN's and the corresponding Monetary Order Thresholds (MOT) for each, none of which equates to a contract award dollar amount. The below is just one example taken at random of what I'm referring to (see underlined portion.) Solicitation Number: FCIS-JB-980001-B Notice Type: Award Notice Contract Award Date: December 17, 2014 Contract Award Number: GS35F109CA Contract Award Dollar Amount: $125,000 Contract Line Item Number: 132 8 Contractor Awarded DUNS: 030730030 Contractor Awardee: EASTERN COMMUNICATIONS, LTD. 4814 36TH ST LONG ISLAND CITY NY USA 11101-1918 Synopsis: Added: Apr 30, 2014 1:46 pm Modified: Dec 17, 2014 7:30 amTrack Changes No Description Provided Point of Contact(s): Michelle B. Croan 202-694-8151 Any clarification would be greatly appreciated. Thanks:
  19. You may also wish to view the memo from the Under Secretary of Defense dated Oct 31, 2008, with subject of "Meeting Department of Defense Requirements through Interagency Agreements." End of 1st page and beginning of 2nd page states "...General Services Administration Federal Supply Services contract...n as much as use of the OFPP guidance within DoD is mandated only for requirements valued over $500K, activities also do not have to comply with requirements applicable below that threshold." [emphasis added] Memo can be found at www.acq.osd.mil/dpap/policy/policyvault/USA000871-08-dpap.pdf
  20. The CAS part was only to provide the refresher. Not really interested in CAS per se, but more so of the concept of self deletion in a prime / sub relationship in furtherance of a government contract. I've searched the internet high and low using different search criteria and either I receive irrelevant hits or constantly bringing up prime contractors standard boilerplate language for its subcontracts, neither of which is helpful. Yes, the case is a state court case and presume any other case on this point would also be a state court case. I no longer have access to Lexis or West law, else I'd be looking there. Thought perhaps Wifcon would recall of hand. I'll keep searching and should I find it, I'll post it for the future. Thanks for the efforts.
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