Neil Roberts

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About Neil Roberts

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    Southern California/Nationwide
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    World and U.S. travel.

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  1. A few thoughts...not sure you are a subcontractor in the normal sense of the word that I am accustomed to. Your principal might want to issue a different type contract to you, other than a traditional subcontract, one that perhaps focuses on ensuring you abide by all ethics and work rules required of employees and the prime. If the principal insists on issuing a standard type subcontract to you with flowdowns from the prime contract, you may be able to accept many of them because they would be inoperative/inapplicable to the work you are to perform (and you are not providing any goods). I can not envision what "selling the prime's product and services to the customer" means. Usually, the sale is memorialized in a prime contract. There isn't anything more to sell after that. .
  2. Shot in the dark. Perhaps the concept you are searching for was derived from FAR 2.101 which states as follows: “Micro-purchase” means an acquisition of supplies or services using simplified acquisition procedures, the aggregate amount of which does not exceed the micro-purchase threshold (emphasis added). “Micro-purchase threshold” means $3,500..." I do not read the above as requiring a price analysis for a $4,000 purchase when you already did one for a $3,000 purchase and there is only a $1,000 change notice value. I only point this definition out because it includes the $3500 threshold you were taught and "aggregate amount" may be where your taught "cumulative value" came from. In my mind, the above definition only serves to state that in your example you may have had a micro-purchase, and now you don't.
  3. Appendix 19 of the DCMA CPSR Guidebook dated May 9, 2017, does not appear to clearly instruct the DCMA review team whether or not flowdowns the team is evaluating for inclusion in subcontracts are limited by whether or not the subcontract is for a commercial item. The Appendix is a "job aid." Appendix 19 Practice section, for example, reads as follows: "The CPSR analyst is required to utilize the Contract Flow Down tab of the DATA workbook for reference while reviewing each file. Compare the mandatory flow downs for the prime contract the procurement is being purchased for to the actual file being reviewed. Record the results of the file being reviewed in the DATA workbook for the mandatory FAR and DFARS flow downs and whether or not they were adequately flowed down to the subcontractor." The above may be the source of the DCMA position initiated in this thread.
  4. The following just posted LinkedIn CPSR Forum group. I do not know if this is coming from a different firm than ThomCons posted here on this thread: DCMA's Latest Changes to Commercial Item Flow Down Clauses Just want to give everyone a heads up in preparations for your next CPSR. We went through an audit in Dec 2016, and were cited a finding for not flowing down all required clauses for commercial items. Apparently, DCMA has taken the position that if your prime contract is issued under FAR Part 15, not only is 52.244-6 required to be flowed down for commercial items, but also all other mandatory flow downs from the prime contract. We are in disagreement with this, but are proceeding accordingly. It is causing great difficulty getting our commercial vendors to accept all the additional terms and conditions. Please let me know if others are having the same findings and issues.
  5. So, bottom line for this thread, I wonder if ThomCons, who started this thread, got what he needed out of it. If you are still with us Thom, what can you tell everyone?
  6. Good comments by contributors above which can serve you well in your defense. It is all about risk to me. I would rather reduce or eliminate: (a) customer allegations that a prime contract clause requirement was breached and harmed the customer (is anyone aware of any federal case, statute or FAR regulation holding a prime contractor insulated from all prime contract liability caused by furnishing the customer with a commercial item which was not compliant with a prime contract clause?) (b) risk to an approved procurement system due to DCMA allegations of flowdown deficiency or (c) receiving mid-course allegations by a customer that the subcontractor goods or services are not commercial. My experience is that when the customer perceives that a prime contractor caused a serious or possibly embarrassing problem, people just run to the contract and look at the plain words in the four corners of the document. During negotiations with a commercial item subcontractor, it's objection to clauses can be examined by the prime contractor for risk and deleted if the prime contract risk is acceptable. Also, the subcontractor can view many flowed clauses as little risk due to it being inapplicable. They should have no objection to its inclusion.All clauses that help satisfy the prime contractor's contractual obligation to the customer should be flowed.
  7. Retreadfed, I respect your reading of 252.244-7000(a), but I think the clause is ambiguous and I feel it to be too risky to adopt your view at this time. My reading is that the Contractor is not required "to flow...unless so specified." My reading of "so specified" is that any mandatory flowdown is required to be flowed because it is specified. It doesn't have to specify that it be flowed in commercial items. Would be receptive to your reading if there was some definitive guidance other than our opinions. I have not had time to research this further. In my experience, those that I would flow can be challenged by the subcontractor and deleted during negotiations if warranted as inoperative/inapplicable.
  8. The contracting officer does not know whether or if a prime will be procuring commercial items. The prime contract in my experience, necessarily includes the clauses needed or required per the prescription for each clause corresponding to the contract work, contract type, etc. Those clauses in the prime are not necessarily limited to only the clauses in FAR 52.244-6. Including those clauses is not a deviation from FAR 44.402(b). Some of those required clauses may include mandatory flowdowns.
  9. Don, This language is not included in the contract. Also, how do you see the flowdown situation when DFARS 252.244-7000 is also included in the prime?
  10. To explain. My yes is most clearly the case for DFARS flowdown clauses per 252.244-7000. FAR clauses, less clear. However, as a procurement system business model, I would not choose the risk of a breach of contract claim for failing to do so. Also, what would you do if DFARS 252.244-7000 and FAR 52.244-6 are included in the same prime? Would you go so far as to say that 52.244-6 takes precedence and nullifies 252.244-7000 and that only the specified FAR clauses in 52.244-6 are required to be flowed?
  11. My view: 1. I don't think you will be successful in obtaining any relief from DCMA because DCMA can not change your contracts. FAR Part 44 is not a prime contract provision and is instructive as to reviews. 2. FAR 52.244-6 merely including a basic list of clauses that must be flowed. However, it does not state that all other mandatory flowdown clauses included in your contract are deleted from your contract in cases where your are procuring a commercial item. 3. To be compliant with your contract, mandatory flowdowns must be flowed as indicated, whether they are FAR, NASA, DOD or some other Agency clause. This is reinforced for DOD clauses per 252.244-7000, when included in your contract. 4. The "may flow additional clauses" language in 52.244-6 and 252.244-7000 refers to clauses other than mandatory flowdown clauses. It says "may" because it is up to you whether you wish to be in breach of contract or not. Example: Your end item starts out as an automobile, your prime states that all end items must be made in the USA (and is not a mandatory flowdown clause), and your end item automobile is qualified as made in the USA. if your end item under this contract eventually is a spare end steering wheel which itself never qualified as made in the USA, you may be in breach of contract for purchasing it and delivering it to the Government under this contract.
  12. Why do you want to void the contract? Did you ask the Contractor if they agree that the contract be cancelled by mutual agreement at no cost to either party? If not how do they intend to perform it? I am not on Government side of contracts so I am curious about your approach, and your reaction to my proposed solution.
  13. No problem, Vern. BTW, happy new life adventure. Have fun!
  14. I don't know, Vern. I was relying on DCAA CAM 6-102.1 Incurred Cost Audit Objectives which reads as follows:"The auditor's primary objective is to examine the contractor's cost representations, in whatever form they may be presented (such as interim and final public vouchers, progress payments, incurred cost proposals, termination claims and final overhead claims), and to express an opinion as to whether such incurred costs are reasonable, applicable to the contract, determined under generally accepted accounting principles and cost accounting standards applicable in the circumstances..."