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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. From the contractor side, my view is that the Government should not be involved with the prime-sub relationship as it relates to FAR 15.102 oral presentations by contractors. The oral presentations should be for contractors. In addition, the proposed ground rule "DO state that a firm may attend only one oral presentation, whether for itself as a prime offeror or as a subcontractor for another firm" appears to require a potential offeror to decide to be either a prime contractor or a subcontractor, but not both. The Government should not be in that business without some specific compelling and permissible rationale.
  2. GC, can't yet figure out why you are focusing solely on profit and I have little to go on as to what the rest of the subcontract proposal looks like. So, it appears that your company may be in breach of its prime contract requirement per 52.215-12. Suggest you add a clause in the subcontract that if seller does not comply with FAR 52.215-12, and this results in Government reduction of your company's prime contract price, and/or the Government imposes a penalty, your company may recover said amount from subcontractor.
  3. Ji, Ji, I was trying to present a situation where 10% could more clearly be seen as reasonable profit compared to what lower profit % may be reasonable given the ceiling price requirement in the clauses. I should have been clearer. I think here 2 help has a point, especially if there was a long period of permance. I don't see why Freyr couldn't respond to the ACO by presenting the analyses that show up to 7% as a potential government negotiation objective with a 10% upper limit for rationale such as indicated by here 2 help.
  4. Freyr, I agree with you that profit is one of the elements to negotiate. If the contract has a ceiling price (which only has estimated hours) and the contract terms and work statement is such that Seller is required to continue to perform to complete the stated work even after the ceiling price has been exceeded), I don't see why 10% is unreasonable, given that seller's risk includes potentially losing money on the contract.I don't know the extent to which some of the analysis methods you mentioned ( about determining profit) take this risk into account.
  5. Some subcontractors claim proprietary/competitive reasons why it will not disclose elements to a prime contractor. Is that the case here? You have a total but no breakdown of elements????
  6. Characterizing responsiveness depends. For example, if there is a grand total amount and an amount for total cost, could the difference between the two could be assumed for now to be profit even if the proposal didn't say so? Is that non-responsive or is it a technical deficiency? What is gained or lost by calling it non-responsive or non-compliant. If this is not competitive, calling it non-responsive or non-compliant seems like shooting yourself in the foot...just call it to their attention and request a revision. Did the RFP indicate what would be non-responsive or non-compliant? These are rhetorical comments.
  7. Table 15-2 General Instruction A.(6) states that "proposed cost; profit or fee; and total" information (FFP proposals include profit, not fee) needs to be provided on 1st page of pricing proposal. Are you having questions about that? It is assumed that FAR 52.215-12 is included in your prime, has been flowed to the subcontractor, and no exceptions apply to the requirement for cost or pricing data.
  8. Retreadfed, I am still giving thought to a civil suit against a government employee based on violation of a duty that if violated, is criminal. Nevertheless, I could request the employee be fired or request that a prosecutor file charges. I don't think the NDA is entirely useless as the author in the joel hoffman post suggests. It is evidence that the person was told they would be receiving confidential, trade secret information, etc. They are on notice that disclosure of such information may be a crime.
  9. What about 18 U.S.C.1905? 1905. Disclosure of confidential information generally Whoever, being an officer or employee of the United States or of any department or agency thereof, any person acting on behalf of the Federal Housing Finance Agency, or agent of the Department of Justice as defined in the Antitrust Civil Process Act (15 U.S.C. 1311–1314), or being an employee of a private sector organization who is or was assigned to an agency under chapter 37 of title 5, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment.
  10. My take is you need to change the contract price for this task order so that your payment office knows how much to pay in accordance with the contract. Otherwise, it seems they should pay this task order at the new option year contract price. I assume you can not issue this task order before the end of tomorrow.
  11. I recommend you consult with Intellectual property counsel because this area is a slippery slope. I assume your focus is from a government or prime contractor interest. If prior to government solicitation the contracting officer is aware that royalty costs may be included in proposed responses, and it meets other criteria, per FAR 27.202-5, the Contracting office may include FAR 52.227-6 and/or other clauses or provisions in the solicitation. If this first gets noticed through the response to the solicitation, FAR 52.227-6 should then be inserted. Per 27.202-3, the contracting officer may coordinate government positions regarding reasonableness, allocability and allowability of royalty costs and include that in the negotiations. If I was the prime and there were questionable risks involved with such payments by B to A, I would attempt to include a contract clause with A that they insure against an potential unallowability determination by the Government at any time, including post award audits by DCAA. I would like to see A's response to that as well as requesting an opinion from its legal counsel. The responses could reveal useful risk information. Personally, I believe using the word royalty may cause confusion because royalty often associated with a patent. If I were A, I would just call it my profit. Still there may be concerns about the total dollar amount when displayed as a %.
  12. You should ask your PM why "we can't do that." I am guessing the rationale is more about your program than about whether your contract terms prohibit you from doing so. Program wise, it seems to me that if you are running out of funding, that line item is not being managed according to how it was proposed. Perhaps the labor mix being performed by the subcontractor is out of wack, or the work is being performed ahead of schedule or there are technical problems causing more work than proposed/planned.
  13. Seems to me you should review the contract terms. There may be some terms regarding management and liability for government owned property and general liability insurance for property and bodily injury at the site.
  14. To govt2310...do you see this "damage" as significantly different from a company that files for bankruptcy and continues to perform the contract? Stuff like that happens. The time to possibly limit risk is to do your best in vetting financial/business strength of the proposed contractor in evaluating the source selection. Even then, it is not foolproof. You haven't indicated what type contract this is. For example, in construction contracts, performance bonds may be required and that would have given the government more comfort, I suspect.
  15. Is there a problem? What are you thinking? Depending on state law, each member may be liable for any legal claims arising out of contract obligation under a contract it signed as a member of a JV. Not sure how it is that the JV no longer exists, what state it was formed in and whether that changes the general statement I made.
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