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Neil Roberts

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About Neil Roberts

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    Southern California/Nationwide
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    Travel. Providing comments and references for educational purposes. No legal advice is given or intended.

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  1. (e)(1) reads as follows: Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause, the Contractor is not required to flow down any FAR clause, other than those in this paragraph (e)(1) in a subcontract for commercial items. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause- I am not comfortable reading this to say... "flow down a clause listed in (e)(1) if it were incorporated in (a)-(d)" as suggested by @Don Mansfield. If that is what was meant, it should just have been written that way. "Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause.." instructs me to not flow any such clause with a flowdown and instructs me to flow each clause in (e)(1), "the extent of the flow down shall be as required by the clause."
  2. I thought the purporse I thought the purpose of (e)(1) was to redundantly identify those clauses in (a)-(d) that have mandatory flowdown provisions included therein. Sort of like a handy little short cut guide. To the extent this is true (I did some checking but not all) and the contracting officer errs in (e)(1) selection or omission, it provides an opportunity for confusion and missed or overstated requirements. To me, it would have been better not have (e)(1) and require that supplier management read/identify every prime contract clause in (a)-(d) that includes mandatory flowdown language and act accordingly. This is no different than what supplier management needs to do for all other clauses in a prime contract. As to what to do, I would flow all those identified in (a)-(d) with a mandatory flowdown and flow those identified in (e)(1) regardless of whether they "match." I would rely on (e)(2) for my rationale, request clarification from the customer and when changed in the contract, issue supporting changes to the subcontract.
  3. If a contract states that x is required to be provided from one party to another, providing something other than x is breach of contract. Providing something beneficial or detrimental or notice of such benefit or detriment, instead of providing what the contract requires is a breach of contract.
  4. formerfed, I don't think there would be a rush of contractors filing breach of contract suits against the government. And for that reason alone, I think the government should evaluate risk and benefit of being in technical breach of contract and act accordingly. However, I don't know if government personnel are permitted to act in that manner.
  5. My "insight" is that contract terms prevail regardless of what computer capabilities are. However, if payment is made at a higher rate on contracts that have a lower contract rate, I question whether there would be a rush of contractors filing suit against the government for breach of contract.
  6. Not sure what you mean H2H. Is it something like only $ subject to payment after the contract modification will be paid at 90% vs. the government will send a check (or debit? )to contractors to make up any difference between what was already paid at the rate previously in the contract and the 90% rate? Thanks.
  7. If there was a provision in your solicitation from the government requiring you to flow down JCP, SAM or DLA requirements, to your subcontractor, then you should. I do not know if your company is prohibited by law or contract to refrain from doing business with a subcontractor that is not JCP registered. If so, your company has some risk to consider if it does such business. If a "certified legitimate business purpose" as used in paragraph 5.8.2 is JCP registration or paragraph 3.2 certification, then your company has some risk. You may wish to consult with an expert on Export Control and this Directive. Otherwise, per this Directive, you may need to get DoD prior permission before disseminating controlled data to this subcontractor.
  8. I have no idea what SAM and DLA have to do with the issue of Export Control. All U.S. companies are required to comply with the Export Control Act because that is the law that governs all U.S., companies and people. Nothing needs to be said. It is a given. However, despite that, some prime contractors include a provision in their subcontracts to the effect that subcontractor agrees to comply with all applicable statutes, government rules, regulations and orders including those relate to United States Export Control.
  9. It sounds like you may work for a prime contractor. Not sure what in the solicitation from the Government made you focus on this Directive. Is it to be incorporated into your contract with the Government per the government solicitation? Which subparagraph are you concerned with? A subcontractor would not be a recipient of data on behalf of the prime contractor merely by being a subcontractor. If the subcontractor was in fact receiving it "on behalf" of the prime contractor, my view is that the subcontractor would be the prime's agent, not a subcontractor. So, I question whether 3.2.1 applies. I am not familiar with what CNC and JPC mean and how that relates to the concern you have about the Directive. Perhaps you could elaborate a little more about that and your thinking?
  10. Yes in general. However, I am not clear whether this is ultimately for the delivery of goods or services after the cost type work. I am kind of thrown off by your use of the term "composite." A composite can be a "thing," not a service. A "thing" would be "goods," not services. Goods that are needed for year after year production but first go through a design and development phase, can be sole source through the production process, which is typically fixed price. I hope this helps.
  11. @Joel hoffman answered this question. As for the A&E contract terms and conditions, my experience is that this type contract should include a provision that states what the maximum price is to construct to the design and some kind of guarantee with respect to that price. That dollar amount should help you in analyzing the follow-on fixed price bids on a competitive basis.
  12. My experience is these kinds of situations can happen when procurement requests may be routed to different procurement representatives based on part type, physical location, program or other. They do not talk to each other or even know whether the same subcontractor is being solicited.
  13. My thought is that a business minded prime and subcontractor would honor the USG request if the parts do not qualify as an exception to certified cost or pricing data. Also, I would expect a business minded prime would look into the matter to determine how this situation happened, present it to the subcontractor, and be prepared to explain it to the USG. Finally, if the subcontractor still was pushing back after the explanation (assuming there is no reasonable basis for the prime to resist) , I would cancel the solicitation and find other sources.
  14. FAR/Supp Award fee clauses may (should?) have been incorporated into the contract. One such NASA clause for example, states that the award fee is a unilateral action of the government. Do you have something similar to that in your contract? If so, I believe that answers your question.
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