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dmuir

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Everything posted by dmuir

  1. My company has a situation where a Letter of Commitment was rescinded by a Key Personnel after submission of proposal and prior to award. From research, https://www.bradley.com/-/media/files/insights/publications/2017/05/risks_for_contractor_with_new_info_after_proposal_submission.pdf?la=en it appears that the case law is split between notification and no action. In our view the right thing to do is to notify the CO and, ideally, we'd like to offer a substitute Key Personnel for evaluation. 1) However, is there a basis for allowing us to modify our proposal? (This is NOT a situation where we found a better candidate. Our candidate left us.) (I can't find anything in FAR.) 2) If we notify the CO, can the proposal still legitimately be evaluated as submitted? Or will it be dismissed as "noncompliant" since we are missing a Key Personnel? 3) If we are silent, is the risk limited to protest of award and loss of award? Thank you. D risks_for_contractor_with_new_info_after_proposal_submission.pdf
  2. Vern, LOL, Thank you!! D
  3. FAR 52.219-14 (c) (1) Limitations on Subcontracting - "Services (except) construction). At least 50% of the cost of the contract performance incurred for personnel shall be expended for employees of the concern. 13 CFR 125.6.(a)(1) : in the case of contract for services (except construction), it will not pay more than 50% of the amount paid by the government to it to firms that are not similarly situated. Any work that is a similarly situated subcontractor further subcontracts will count towards the 50% subcontract amount that cannot be exceeded." Does the cost of the contract performance incurred for personnel by subcontractors include the fee paid to subcontractors? Or is only based on direct labor and indirect loads? I'm not sure where to look for further clarification on this issue. Thank you for any insight.
  4. Per FAR 19.301-1, if a company is small business at time of proposal (ie time of written representation) the work can be awarded as small, essentially until a recertification event is triggered. For a 5 year IDIQ, 13 CRF 121.404 triggers a recertification event at the 60 month point at the IDIQ level. Is there any case law that allows a Task Order proposal that was submitted (but not awarded) prior to the recertification and exercise of the next IDIQ option period be allowed to be issued to the company as small AFTER the recertification as "other than small"? It seems clear that at the IDIQ level, new awards would be "other than small" after recertification, and awards prior would still be small, but there's this "gray" area where things were started one way and could be considered "grandfathered". Not sure where to look for this information. Thank you! D
  5. But if the proposal is submitted when we are small, we are NOT certifying that we are other than small at the time of proposal submission. So I would like to find some citation that would allow the proposal submission size certification (as allowed under FAR 19.301-1) to allow for the award as small in the next IDIQ Option Period. I'm not sure it exists but that's what I'm looking for. We definitely understand that proposals submitted after the recertification date are not grandfathered. It's the middle ground that we are hoping might be. That's why I thought maybe case law would have more clarification than the CFR or FAR.
  6. We have a situation of a 2 year old contract whereby the employment situation has radically changed from award and now personnel are multiple times as expensive as originally anticipated. The CO refused to relax requirement that personnel perform on base and despite completed deliverable still gave us a bad CPAR rating because one position was unfilled. This is FFP labor. (Yes, we tried to explain that's not how FFP works...) The situation is so bad we are looking for a way out. But I can't find anything that allows a contractor to petition for adjustment based on a change in labor force situation. I've looked at: Changes 52.24-01 Breach of contract claim 52.233-04 Termination for Convenience: 52.249-04 Disputes 52.233 Default: 52.249-08 Also, if we go into Default Does (b) If the Government terminates this contract in whole or in part, it may acquire, under the terms and in the manner the Contracting Officer considers appropriate, supplies or services similar to those terminated, and the Contractor will be liable to the Government for any excess costs for those supplies or services. However, the Contractor shall continue the work not terminated. This mean that we would have to pay for the difference between our contract and any new contract? The whole point is that the work cannot afford personnel. Any suggestions on what to research? new route to pursue? Thank you!
  7. Certain provisions of the National Defense Authorization Act from previous years (2012, 2013 & 2014) relating to how the Limitations of Subcontracting clause is calculated have not yet been incorporated into the FAR. Does a Contracting Officer have any discretion to go by what is in the Law before it is formally incorporated in the FAR? Is there any responsibility/liability on the part of the contractor to be following the law before it is incorporated in the FAR? In this particular case, we would like to use the law's basis for calculations, but I'm not sure where to find justification for the CO to accept it.
  8. Thank you! I will look for those sections of the relevant NDAA's. It seems that the current CO has decided not to ask for a waiver from the FAR council and stands by the FAR Clause as currently written. But your comments have been helpful to present the idea that it would assist small businesses to seek a waiver in this case.
  9. Is anyone familiar with Federal Government Receivables and Research Bureau? George Reever is the founder and principal. They do consulting and training and have a conference coming up on "Getting paid by the Federal Government". The website looks legit - just wondering if anyone has experience with them.
  10. We have a GSA Schedule. A company we wish to subcontract with does not. The qualifications of the individuals we would like to use would allow us to place them in our labor categories. Can we bill them at our rates? Do we need any approval from our CO? I was trying to locate specific regulatory justification for this practice but could not find it. I did find that some rules were proposed with SARA (the Services Acquisition Reform Act of 2004) that would have clarified things but I don't know how to find the final rules or the final clarification. There supposedly was GSA information before SARA that said it was fine (and no rate approvals or disclosure of actual rates paid to subs were necessary), but DCAA believed that FAR 52.232-7 Payments gave them audit rights to review any difference between sub rates and the Schedule rates. Any suggestions on where to look would be appreciated. I only found info on Contractor Teaming Arrangements on the GSA Schedule webpage. best regards, D
  11. What are the parameters that govern arrangements between Contractor Teaming Arrangement partners? All the research I've been able to do centers on the fact that the award is actually made between the Govt and each contractor (let's use two for this example). For convenience one contractor may act as lead and submit joint invoices, but both contractors have an award. As the lead contractor (A) submitting the invoices and managing the overall project, we would like to negotiate a fee from the other contractor (. They are willing to pay a fee, but are concerned that our arrangement would trigger the price reduction clause if the fee is a % of their labor category rate. For example, the rate on B's schedule the rate is $100. The govt pays $100/hr to lead contractor, but lead contractor pays $95/hr to B (taking the 5% fee off). Since the award is between the Govt and Contractor B would this trigger the price reduction clause? I would think not because the award is btwn B and Govt, but how do we explain the arrangement between A & B? Does this establish a new commercial rate? Could this affect the GSA rates based on the Most Favored Customer and Basis of Award? Let's say the Basis of Award is all commerical customers - does this impact the GSA rates? I am operating under the assumption that this fee arrangement is licit, because it was used by a different company and a large defense contractor. The Large Defense contractor was B and so I'm sure if it would have triggered a price reduction or was illegal, they never would have done it.
  12. I think what is confusing about this for us is that GSA wants to just have one invoice so our work is combined. Does this affect your answer? I'm not an accountant so unclear about how revenue is recorded but would think something is recorded for the Contractor B $'s going through our system...
  13. Additional information: this is a BPA under our GSA Schedule.
  14. Are you saying that A is an eligible ordering activity? Because I thought such A to B agreements were considered "commercial." The language about CTA's just doesn't address agreements btwn the company's...
  15. Related to this question but from the contractor's end: We have a BPA award. Is there something in the award document that tells me what type of award it was? I know from historical knowledge in the company that it was nationally awarded competitively to one firm, but there's nothing in the award document or the RFP that discusses the procurement process saying this type of award will be made. How would we know, for example, if a sole-source determination had been made? Thank you!
  16. Government Shutdown

    Thank you for the research.
  17. I am reviewing our 899 and MOBIS Schedule contracts and if I am reading the "Regulations incorporated by reference" correctly, then NONE of the following clauses are incorporated at the Schedule level: 52.233-1 Disputes 52.249 14 Excusable Delays 52.243 Changes Am I missing something? If the govt shuts down due to lack of funding March 4, at the very least we may need a no-cost extension to complete the work (our work involves coordination with Federal employees who wouldn't be there if the govt shuts down). Any ideas for how to justify such a modification? Thank you.
  18. Thank you. Of course, 52.212-4 CONTRACT TERMS AND CONDITION--COMMERCIAL ITEMS (MAR 2009) (ALTERNATE I - OCT 2008) (DEVIATION I - FEB 2007) is in our Schedules. I was checking the "Regulations Incorporated by Reference" section, but it is in the main body so I didn't see it. And wasn't thinking Commercial Items contained anything about excusable delays because I was thinking it was just a list of required flowdowns for subs. Thank you again! D
  19. Unfortunately, no. One of our Task Orders does include 52.241-17 Govt delay of work, but it seems to be the exception. best regards, D
  20. Wanted to add that The ONLY applicable clause I find is 52.242-15 Stop Work. But what if they don't officially issue a stop work?
  21. SOW

    The short story: We responded to an RFP with a proposal for approx. $100K. Client did not have budget, asked for lower price. We responded with another proposal with a new lower price and carefully explaining what parts of the SOW were not included in our new price. Task Order awarded for lower price. Now Client is expecting full SOW for reduced price. This is a services contract (environmental audits). Did we err by signing the Task Order without the TO referencing changes to the SOW? We thought we had stated clearly what was offered at the price. I have been looking for "order of precedence" clauses that might indicate if the conditions in the proposal might be automatically incorporated but have the clauses I've found so far are for Utilities or construction work... Is there another topic I should be searching under? (I looked at wifcon about "incorporating proposal" into award and apparently, it is frowned upon.) Thanks. D
  22. SOW

    Thanks. We hope we can avoid litigation by frank discussions with the Client. At this point we're looking for our best argument. We were hoping for a stronger position than if the referenced SOW is the full original, then we signed in error. We understand that it's the COTR's job to get as much as possible but with a large reduction in price, it just can't pass a cost/price analysis smell test. It's just not possible - we'd be guilty of underbidding... Anyway, thank you for your assistance & thank you for this site. happy holidays! D
  23. Are there fixed rules defining how the customer of a contract is determined, or does it all depend upon how a company defines "most favored customer" in their submission for establishing a GSA Schedule? 1) I interpret the customer of a Government Task Order under a GSA Schedule as the "issuing office", not GSA. And no, I can't find any particular regulation or defination to support this - it just seems common sense to me. 2) We are a contractor with a potential sub for work under a Task Order issued under a Government Agency BPA under our GSA Schedule. Who is the customer for the subcontractor? I would say my company, the contractor. (same concept as issuing office above). But if the subcontractor has defined the "Government Agency" (who issued the order and BPA) as their "Most Favored Customer" would their rates to a Prime Contractor trigger the automatic discount clause? I would think that would only apply if the subcontractor submitted work done through a Prime Contractor (could it be any Prime Contractor or just the company submitted?) as the basis for their rates to the Government Agency designated as their "most favored customer". Or would that be an error and if they submitted rates to a Prime Contractor only the Prime Contractor would be the "Most Favored Customer"? (And if it matters the potential subcontractor in question has submitted for a GSA Schedule but it has not yet been awarded & the sub is concerned that rates negotiated with us will affect their proposed rates to GSA). I don't think it will, but what to give the best advice possible to our potential sub.
  24. Most Favored Customer

    But what is the justification for stating that the Basis of award excludes prime contractors?
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