DMB044

I'm not embarrassed; frustrated yes. Part of the problem I have in formulating exactly what is what is the culture that I find myself in, and in that culture, there is a lot of smoke. I get wrapped around the wheel and that appears obviously as making matters too complicated. And yes, I am awkwardly trying to generalize the issue in order to avoid compromising either party. I just wish things were so easy as to say the FAR allows an expense; provide support that it benefitted the client, and then say to finance 'book it Dano.' Feelings aren't hurt; just a wee bit frazzled. Thanks Vern.

Here_2_Help - Will get back to you on the assumptions and questions. Good stuff. But are you saying the CO has authority to disallow any cost, whether CAS and/or FAR allowable?

I appreciate the straightforward answer, but I'm afraid the Agency has historically balked at such simplicity. I find it funny it also in my last two posts, the first I didn't provide sufficient information (which you called ridiculous), and this one I provided too much. Again, I respect your opinion, and I'm sure you hear that a lot. I'm just glad you're not a doctor because your bedside manner frankly... well, I'll leave it at that.

Background. The prime contract was let in 2000, subject to FAR 52.216-7, Allowable Cost and Payment. According to the terms, the Federal Agency involved was required to approve an annual program plan that identified the program requirements and funding. In the early years, the Agency funded expenses in the annual program plan that in later years the Agency would not fund and called unallowable. Of particular interest is the funding of FAR 31.205-44 Training and education costs. During the early years, the Agency funded expenses such as the cost of training and education that were "related to the field in which the employee is working or may be reasonably expected to work.' However, as years passed, the Agency discontinued funding of certain training, insisting that they would fund only the cost of training specifically required and related to the principal geographical work locations, but not the cost of training at the CONUS support activities and contractor headquarters, which are exclusively dedicated to the Agency and program. Moreover, the AGENCY later insisted, as a matter of justification for not funding specific training, that the contractor was expected to hire personnel who possessed the requisite training. At the time the contract was let, the SOW stated that Human Resources shall recruit, select, and retain a workforce according to its management approach and Agency-approved annual program plan requirements.* Current managers and available documentation cannot attest to what that management approach was, however, as I mentioned the training expenses funded in the early years differed from what was funded and allowed in the later. I believe the types of training and education funded in the early years provides insight into the management approach, and the Agencys' support of that approach was recognized and funded in the early annual program plans. Question: Does the following apply to the situation described above in support of an equitable adjustment related to training? In a paper written by Richard P. Rector of DLA Piper US LLP, entitled "Quelling Disputes May Key on Contract Proposals," the following assertions are made: o When faced with conflicting interpretations of contract terms, courts and administrative boards of contract appeals seek to carry out the common understanding of the parties at the time of the award. o Therefore, the relevant meaning of a contract clause is the meaning that the parties intended at the time of award; not some meaning offered by a party at a later date. While the author goes on to talk about what circumstances surrounded formation of the contract (pre-award conferences, discussions, communications, etc) to understand the meaning of a contract clause, does the same apply to management's initial approach related to performance of the SOW? That is, if management's approach was to initially fill the positions with qualified personnel, yet through follow on training and education continue to develop and improve the quality workforce (e.g., obtaining the required professional certifications), can the Agency later refuse to fund the training, if related, or say such training and certifications should have come with the hiring? (I'm planning on checking the Agency-approved and funded compensation levels to determine whether we could have attracted the candidates possessing such qualifications at the time of hiring.) Consider also this is an award fee contract, and to the extent that the competency and training of employees contribute to achieving the award fee metrics, I believe the Agency position is counter productive to both the quality of the service as well as the contractors' ability to achieve the level of quality required to receive high marks. I appreciate your comments, and hope I have done an adequate job of explaining the situation. * When I first came here, I found it interesting that a FAR 52.216-7 contract combined with a rigid, Agency approved annual program plan took on more of a fixed priced contract than a cost reimbursement.

Yes, Vern, I wish I had more information provided to me about the issue. Unfortunately, HR has closely held much of the detail to protect the privacy of the individual. The individual is a prime contractor employee. So, what I asked is as good as it gets. If you can't answer because there is not enough information to go on, so be it. However, comments such as yours doesn't really help matters. Nonetheless, I have long respected your opinions.

A contract employee is placed on paid administrative leave pending the outcome of an investigation. I was asked whether the compensation continued as allowable under FAR 31. I appreciate the assist.

Ron, Thanks. Very interesting inasmuch as the Federal agency general counsel ruled the purchase of the equipment, made in a foreign country, only required the distributor to be in America.

Yes, I think that is the correct way to proceed under the circumstances. Good advice, Joel.

Let's just say hypothetically that the agency we're contracted with has entered into a number of constructive changes and because of poor fiscal planning and not obligating the funds upfront, the contractor has taken it in the shorts on a few occasions.

Having come from the Gov't side of the house, the idea of a Gov't CO/KO issuing a RFP without funding is a bit questionable. I really didn't know what to think from the contractor's side, except the risk that the funding might not come through.

I understand the Buy American Act is required under the stimulas. However, I have heard that a purchase of equipment from another country is acceptable as long as the company has an American distributor. Any thoughts?

My Gov't agency wants the contractor to send out RFPs for goods/services to be purchased under the stimulas package. However, the agency wants the RFPs to go out before the buys are funded. Funding will be provided later before the actual selection and placement of order. Is there something wrong with this picture other than the risk being assumed by the contractor?

Sorry about the delay in responding, Joel. I have been inundated. The subcontract is a FFP where the deposits were made for a production run of steel plate. The subcontractor billed the prime, citing the progress payment schedule and the line items related to the deposits. No evidence of an actual deposit was provided between the sub and the mill. The subcontractor used the deposit money to offset costs incurred against the other line items, which consisted of the design, fabrication, delivery and installation/construction of the end items. To complete the picture, after several months of inquiries about the status of the steel plate, we were advised that the mill was under a military priority 'DX' rating, and if the Federal agency was unable to obtain priority, delivery would have to wait. As a result of the delay and other considerations, the customer requested the t for c. By the way, is there an independent means to verify when a specific mill was under a priority protocol and the duration of that priority? Thanks for you response, Joel.

The t4c was executed last August. The subcontractor took until December to propose a settlement. I was asked to evaluate the proposal on behalf of the prime. In the meantime, we had the introduction of the stimulas into the picture. I will recommend the t4c with a recompete, given the agency has not provided any direction (just rhetoric.) It's time to close up shop on this one.