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PepeTheFrog

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About PepeTheFrog

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  1. If that's what you did, that's what you did.
  2. Look for the Changes or Termination clauses. Are you a contracting officer or a contract specialist?
  3. PepeTheFrog does not know whether the GAO or the agency will recommend or agree to pay the indirect costs of the protest. There is an opportunity for the agency to accept, deny, or negotiate the costs that the successful protestor submits. There is also an "appeals" process back to the GAO if you can't come to an agreement. See below. It seems like the regulations are focused on the direct (hourly) costs of attorneys, consultants, and expert witnesses. PepeTheFrog does not know if there is any precedent on such indirect costs, but you could create or add to such precedent by "giving it the old Harvard try." https://www.gao.gov/legal/bid-protests/reference-materials From 4 CFR 21.8 (Title 4 of the Code of Federal Regulations, Section 21.8): "(d) If GAO determines that a solicitation, proposed award, or award does not comply with statute or regulation, it may recommend that the agency pay the protester the costs of: (1) Filing and pursuing the protest, including attorneys’ fees and consultant and expert witness fees; and (2) Bid and proposal preparation. (e) Recommendation for reimbursement of costs. If the agency decides to take corrective action in response to a protest, GAO may recommend that the agency pay the protester the reasonable costs of filing and pursuing the protest, including attorneys’ fees and consultant and expert witness fees. The protester shall file any request that GAO recommend that costs be paid not later than 15 days after the date on which the protester learned (or should have learned, if that is earlier) that GAO had closed the protest based on the agency’s decision to take corrective action. The agency shall file a response within 15 days after the request is filed. The protester shall file comments on the agency response within 10 days of receipt of the response. GAO shall dismiss the request unless the protester files comments within the 10-day period, except where GAO has granted an extension or established a shorter period. (f) Recommendation on the amount of costs. (1) If GAO recommends that the agency pay the protester the costs of filing and pursuing the protest and/or of bid or proposal preparation, the protester and the agency shall attempt to reach agreement on the amount of costs. The protester shall file its claim for costs, detailing and certifying the time expended and costs incurred, with the agency within 60 days after receipt of GAO’s recommendation that the agency pay the protester its costs. Failure to file the claim within that time may result in forfeiture of the protester’s right to recover its costs. (2) The agency shall issue a decision on the claim for costs as soon as practicable after the claim is filed. (3) If the protester and the agency cannot reach agreement regarding the amount of costs within a reasonable time, the protester may file a request that GAO recommend the amount of costs to be paid, but such request shall be filed within 10 days of when the agency advises the protester that the agency will not participate in further discussions regarding the amount of costs. (4) Within 15 days after receipt of the request that GAO recommend the amount of costs to be paid, the agency shall file a response. The protester shall file comments on the agency response within 10 days of receipt of the response. GAO shall dismiss the request unless the protester files comments within the 10-day period, except where GAO has granted an extension or established a shorter period. (5) In accordance with 31 U.S.C. 3554(c), GAO may recommend the amount of costs the agency should pay. In such cases, GAO may also recommend that the agency pay the protester the costs of pursuing the claim for costs before GAO. (6) Within 60 days after GAO recommends the amount of costs the agency should pay the protester, the agency shall file a notification of the action the agency took in response to the recommendation."
  4. 1. According to the contracting officer? 2. According to a judge in the Court of Federal Claims? 3. According to the whatever-they're-called in the Boards of Contract Appeals? 4. According to a judge in federal district court? 5. According to a judge in state court? 6. According to a layman? 7. According to a mediator? 8. According to an attorney? 9. According to anonymous strangers on the Internet, some of which have green frogs for avatars? Speculate away, but hire an attorney if you are serious about this legal question.
  5. Think of this as a form of the "American Rule," whereby a litigant must pay his own litigation costs. Although there are exceptions, generally, you pay your own litigation costs (in government contracting). You can see another manifestation of this principle in the fact that costs of preparing a request for equitable adjustment (REA) are allowable (because the REA is considered contract administration) but the costs or preparing a claim are unallowable (because the claim is the start of litigation). You need to distinguish between (a) the government in the form of the GAO recommending that a federal agency reimburse a contractor (unsuccessful offeror) for its protest costs and (b) the government in the form of a federal agency reimbursing a contractor pursuant to the CAS/cost allowability rules in a cost-reimbursement contract. If you don't distinguish between these two distinct scenarios, you will chase your tail.
  6. @ji20874 is correct when he says the government's failure to pay you does not relieve you of your duty to pay your subcontractors, absent something in the subcontract that provides for this contingency. That's because you're talking about two different contracts. Practicality aside, the prime's cash flow issues are not the subcontractor's cash flow issues, absent something in the subcontract that ties the two together. PepeTheFrog has been involved in some...disagreements...where one party tries to use this argument. "Well, my contract with this other frog hasn't paid me yet, so therefore I don't have to pay you under this separate contract." What? It's idiotic and would be ruinous of your reputation. Saying your pockets are empty is another matter; that's the practicality of it, not the contractual issue. If you want to know when you have to pay your subcontractor, you should take the creative step of reading the subcontract's payment terms. If you want to know what's going on with your own employer's finance department, you should take the creative step of walking down the hall or sending an email. Be careful, they might not be as friendly as strangers on the Internet. Now, there is a way that you could contractually relieve your company of its duty to pay a subcontractor because the government has not paid your company yet. There is a nasty little contract clause or term or whatever called "Pay When Paid." This is brutal for you subcontractors out there. The prime includes this "Pay When Paid" clause instead of a Net 30 or "Pay Within X Days," and by doing so, the subcontractor only gets paid if and when the prime gets paid. That is just brutal. Ouch.
  7. PepeTheFrog doesn't know if this applies to this scenario, but suspects that it might. Here's a magic trick. The FAR and other guidance strongly discourages the use of labor hour (time and materials) contracts. Lots of paperwork and oversight! So, you take a "Fixed Price Level of Effort" (?) contract. The contract "hours would be billed as they are worked and separated out in each invoice." The contractor invoices said hours each month. By magic, you have something that resembles, in some ways, a labor hours contract. But you don't have to worry about as much paperwork and oversight! No, it's a "Fixed Price Level of Effort" contract. Well, OK. PepeTheFrog is not endorsing this whatsoever, just pointing out that it happens. PepeTheFrog also shares @ji20874 suspicion that perhaps the contracting officer doesn't understand FFP-LOE.
  8. Font in bond and colored red is what's known as "persuasive authority," as opposed to mandatory authority. If the information is in bold, red font, you may or perhaps should follow such persuasive authority, but it is not binding. For contrast, an example of mandatory authority or binding authority is something like "valid and honorable." There is no choice there, folks. No choice!
  9. This discussion has gone on long enough. PepeTheFrog needs to clear something up for those of you who don't understand what's going on. If you need to justify your possibly incorrect opinion, simply use the phrase "valid and honorable." That is an official, definitive source. It's the end of the line. What is the controversy here, people? Can you not read "valid and honorable"? In the future, if your possibly incorrect opinion is demolished by logic, reality, law, regulation, court case, or written policy document, you simply pull out the trump card: valid and honorable. Do not bother to change your opinion or acknowledge that your opinion is incorrect or improper. Under no circumstances should you admit you were wrong or have learned something. That would be bad form. Say it with PepeTheFrog: "valid and honorable." These are the rules; PepeTheFrog didn't write them.
  10. if the prime does not get the first option year exercised, the sub will not get to be the sub to the prime on those option years the sub's performance should be judged based on the sub's performance, not based on the prime's performance however, sometimes the prime and sub are so intertwined that one's performance can affect or influence the perception of the other, e.g. prime and sub are both onsite contractors working on the same team, alongside the government this question is too vague for a good answer
  11. leave this VA office unless you want to become or remain a whiny employee suffering from arrested development if you're really that good, why do you want to beg your inferiors for scraps? take your superior skills, knowledge, personality, etc. elsewhere, where it will be appreciate FOIA is a very, very bad idea in this situation...yes, they will retaliate! don't fight your way into getting this job...that would be like suing someone to go on a date with you
  12. @ji20874 PepeTheFrog now sees your distinction and agrees. Thank you.
  13. PepeTheFrog should edit the previous response to: "No. However, perhaps the government has a sensible reason to..." The FAR citation you provided would not be the reason to ask for "re-certification."
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