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Patrick Mathern

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About Patrick Mathern

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    Copper Member

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    Santa Barbara, CA
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    Cost analysis, supplier rate and factor audits, business system reviews, training, consulting, exchanging ideas, networking

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  1. Commerciality Request

    Obligation? No, but be prepared for the consequences if you decide not to play ball (i.e. contentious negotiations, difficulty in other contracting issues, etc.) If you have a definitized agreement (Purchase Order most likely) that is a contractual commitment including price, it appears that perhaps your Prime is a bit upside-down. You have no obligation...unless you want to help your Prime out of a tough spot. On the other hand, consider that this request happens prior to PO placement. All of a sudden this becomes an opportunity to weigh in on a process that is too-often a one-sided conversation. Think of it this way: your Prime has determined that you are NOT commercial and that price reasonableness cannot be determined without Other Than Certified Cost or Pricing Data. Yuck! Show them why you're commercial and give them several market comparables with rationale for any adjustments, to explain why your price is reasonable. All of a sudden, you've made their lives easier, which means you've made life easier for yourselves. They still have an obligation to write their price analysis, but you've now framed the conversation with objective facts.
  2. Fixed Price Level of Effort

    I think I'm suffering from the same lack of information that Vern is, Corduroy...maybe you can shine just a little more light on the situation. Which of these applies in your case (in line with Joel's comment above): If the Government is saying that they expect 1,920 hours of work, then your client will need to show 1,920 hours...not 1,860 hours plus 60 hours of vacation. Reducing the rate to $48.44 seems like it will cause a hit to their profit. If the Government is saying that they expect one devoted head and they're willing to pay their salary for a year, then your $93K argument seems to hold.
  3. Fixed Price Level of Effort

    Interesting point Vern. Help me understand - for that to matter in the calculations, wouldn't the RFX have requested total annual cost rather than an hourly rate? What am I missing here?
  4. Fixed Price Level of Effort

    Hey there Corduroy, From the contractor's perspective, think of it this way: if you had an FPLOE task that was estimated at 1,920 hours (assume that's accurate) and you responded with a rate and estimate of 1,860 hours, explaining that vacations and sick leave were the reason that 1,860 was appropriate is not sufficient. You still have 1,920 hours of work to complete. Based on this explanation, the government would always adjust upward. However, if your proposal stated that due to the skill mix and your unique approach, you believe you could save 140 hours, then you may have success in reducing the estimated hours. My thinking on why the government makes sense of this is that in an FPLOE, what really matters from a competition standpoint is the bill rate. The government's independent estimate has determined that 1,920 hours will be required based on the work and skill levels required. Multiplying these hours times each bid rate results in their budget estimate. In their opinion, this is the only way to fairly evaluate potential bidders. As for billings, I'm not following what you're saying. Your proposed bill rate will be the rate at which are paid, not the (rate * 1920/12) result. I don't understand the overbilling comment. The adjustment made by the government is just for comparison purposes. It does not change what you'll be paid.
  5. Hi Brian - I can give you my experience in helping primes work with subs. If you're an agency CO, then someone else may be able to provide better information. Document, document, document. 1. Consult your company's policies and procedures. What I have below will still ding you in a CPSR if it's not aligned with your company's P&P's. 2. Make sure your commercial item determination and non-competitive source justifications are ROCK SOLID. At $850K, this is going to set off alarm bells. 3. Assuming you have a solid CID, look again at price analysis. Although this was last purchased in the 90's, are there current versions of the item to which price could be compared? 4. If the answer to 2 is no, proceed from your current position by communicating your findings with the supplier. Show them what you came up with and ask them what you're missing. It's up to them to support the price they're offering. You'll have the most success with this approach if you come to the table with objective, verifiable, fact-based data such as... Rates: Use salary.com or calc.gsa.gov and add a % for overheads and profit Hours: Get expert opinions that break tasks down to the lowest level possible. Use engineers if possible, but regardless of whose opinion it is, provide support for WHY those hours were determined reasonable. You want to give them something to argue against. As they provide additional facts, your price should come up. 5. If you get to the point where you have no other choice but to place the contract and cannot determine the price reasonable, then you need to document your efforts. Include a very thorough negotiation memorandum that clearly shows the effort you put into getting a reasonable price from the supplier. If you're a Prime with a certified procurement system, audit teams are going to scrutinize this package closely, so make sure your documentation is top-notch.
  6. FFP Contract & ODC's

    Could you clarify a bit? What is the real issue here? At first glance, I don't understand why "having an FFP contract" and "large ODC expense" necessarily have impact on one another. Are you saying the large ODC expense was in support of the FFP and you have other Cost Reimbursable contracts this will affect?
  7. I agree with Joel - in certain circumstances this makes sense. Specifically, when the contract includes a direct requirement, then these can be direct charges (think FFP follow-on contracts, for example). See FAR 31.205-18(a) and CAS 9904.402-61(c) for more info. However, your post (and response) actually deal with the purchasing function, not proposal prep. In that case, as Neil notes, you REALLY have to understand the supplier's accounting practices. If they are organized such that purchasing is a direct charge function, there's nothing wrong with that if it's done properly. If they have a Disclosure Statement, start there. If not, run an audit program focused on allocability. I know that at least one of the top 5 defense contractors is organized this way. In general, this isn't an "unallowable" method of collecting and charging for Purchasing labor.
  8. I've seen this before. Let me pose a scenario for you: You have a requirement to buy 100 boxes of Tide detergent. On Amazon, there are 5 sellers of the product you need. They all vary by 1-2% except for Seller 5, who has a price that is 10% lower than everyone else. Your due diligence leads you to question whether this is the same item and you discover that yes, it is. Seller 5 explains that they receive favorable pricing from Tide because they buy it by the truckload. Do you have competition? Let's modify it slightly and say that all sellers 1-5 price the product essentially the same. Does this change the answer? Why? In my book, the punchline here is that if you have an active distribution marketplace for an item, then price is set by the laws of supply and demand. If you notified the bidders that this would be awarded competitively, then they will be motivated to put their best foot forward and meet the requirements of adequate competition. The caveat: I have seen a case where a manufacturer tried to sell through two "distributors" in order to skirt TINA. In this case, there was no "active marketplace" responsible for setting price. Price was dictated by the manufacturer and zero sales had occurred. Distribution model was a sham...didn't qualify as competition.
  9. I have a client that is hiring a sales agent in a foreign country. This agent's territory will likely include contracts subject to FMF rules, sales will be direct commercial. This particular client compensates all of their sales agents with a commission plan. I've never worked with FMF before - it appears that commissions are allowed, but they have to be disclosed, they cannot be in violation of Anti-Kickback regulations, and it appears that commissions may need to be split out and paid by the Purchaser's national funds. My questions: 1. I'd like to wrap my head around this better. What is the purpose of the FMF rules on commissions/contingent fees? 2. What does the last provision (paid by Purchaser's national funds) mean? 3. Where can I find the source document that discusses FMF commission requirements from a contractor's perspective? Thanks in advance! Patrick
  10. Price Analysis - Modifications

    If you work for a contractor rather than the government, check your procurement policies and procedures. May be there rather than the FAR.
  11. Subcontracting with CPFF

    Hi Jennifer - You will get a far more complete answer from some of the other folks in this forum, I focus my efforts on cost and price analysis. From that perspective, you will want to determine whether what you're buying qualifies as a commercial item/service (as defined in FAR 2.101). If it does prove to be commercial, it will simplify your flowdowns and possibly the cost/price analysis requirements. If it's not commercial, you'll want to know if your subcontract will be >$750K. This will have implications for cost vs. price analysis. Questions to you then: does this qualify as a commercial item/service and is it >$750K? Patrick
  12. Award with a Proposal

    Hi Vern - Thanks for setting me straight! We have used this approach for over ten years but based on the straightforward text in 52.215-12, I'm changing my tune (and process). Very helpful discussion!
  13. Award with a Proposal

    Hi Vern - I think so, but help me walk through this. That citation references FAR 15.408 which references Table 15-2. In Table 15-2, it notes that "The requirement for submission of certified cost or pricing data continues up to the time of agreement on price..." Therefore, if the Prime has already agreed to price with the Customer, Certification does not apply. Since Certification applies between Customer and Prime (then waterfalls through the applicable subs,) alleviating the Cert at the Prime would then alleviate any benefit at the sub level.
  14. Award with a Proposal

    If price negotiations between the Prime and customer are not yet complete, certification is still required. However, if the prime has already negotiated and received award, then certification by the sub should not be required. POST-SUBMITTAL EDIT: Based on what Vern has posted below, I no longer hold this belief. If 52.215-12 is included in the Prime flowdowns, cert at the sub level is required regardless of timing.
  15. Subcontractor fee evaluation

    Absolutely - here's the deal with profit/fee (as long as you're calculating as a % of cost, we're basically talking about the same thing): It's the one area of a subcontractor's proposal that doesn't require any support or substantiation. A sub can propose an exorbitant profit/fee rate and there's no requirement that they explain it to you. Same goes between the Prime and the government. Where things get sticky is when the Prime sets forth an opinion of reasonableness in a cost/price analysis. If that opinion is not supported with a systematic method of evaluation, then it's going to be subject to challenge. In other words, you can analyze and support profit in any way you see fit. It requires no additional information from the sub and there's no requirement that you have to use the Weighted Guidelines. It just so happens that the Weighted Guidelines is a systematic approach that is generally accepted in the industry. I echo Neil's question above - what is your role? Is this a TCOPD (formerly "TINA") procurement?