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Neil Roberts

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    Providing comments and references for educational purposes. No legal advice is given or intended.

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  1. T's & C's observation and comment. With respect to your company dealings with its customers, the process should request or receive customer proposed terms and conditions with receipt of the request to propose. You should address major concerns in responding to the proposal or at least identify those that look troublesome or in non-familiar territory that you should work ASAP. You may have put yourself at a negotiation disadvantage and or make your customer uncomfortable, if the customer license requirement was already a proposed term and condition. If the customer did not make you aware of any proposed terms and conditions with the request to propose, you may wish to reconsider who you are dealing with. If the customer is now changing its proposed terms and conditions, you should emphasize that it is a surprise and not contemplated. As indicated above, this area is very complicated and needs professional advise.Obtain it and then make your business decision about terms and conditions.
  2. @Oversight, can you please state the proposed contract price, quantity, item description and delivery schedule you and or the program official are talking about, with and without a "contract ceiling" and with and without a "total estimated potential value?"
  3. @Contractor500, previous posts of yours indicate your company may be a subcontractor at times. If so, I would not ignore a prime contractor's flowdown of 52.230-1 reps and certs since it may not be exactly as written in FAR. For example, a prime contractor I am familiar with adds a section of its own at the end of 52.230-1 that is not in FAR and asks the potential bidder If bidder's proposal exceeds CAS threshold but bidder claims an exemption from the requirements of CAS as set forth in 48 CFR Subparagraph 9903.201-1 (b), If so, bidder is then asked to mark the box below. ( ) bidder represents that It is a small business concern as set forth in FAR Part 19
  4. @Ksenia, aside from the clarification that has been requested regarding the clause number in question, are you realizing that the supplier would not normally want to reveal its actual labor hours because it is a FFP contract type, and your company did not flow any contract requirement for it to obtain access to the suppliers books and records and/or require the supplier to report such actuals to your company?
  5. Hi Joel. Nice to hear from you. Maybe the world would have been better off if I had just said, report labor hours that are classified as "direct" unless of course, they are not.
  6. I do not see that in 52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment, either. Your post did not indicate what clause was in your contract so I assumed from the language you used in your post, that it might have been 52.204-14 Service Contract Reporting Requirements. Please clarify what contract reporting clause you are concerned with.
  7. FAR 52.204-14 requires the reporting of direct labor hours expended unless the work was charged to overhead or G&A. There does not seem to be an exception for FFP contract types.
  8. seems to me you are required to report the total amount you invoiced the government, not the total amount subcontractors invoiced you. Did you invoice a credit to the government for this subcontractor "refunded" amount during the applicable year? If not, that amount is not reported for the paragraph in question in the regulation. However, you may have some other kind of issue with this "refund" depending on the reason for the refund, your contract type, etc.
  9. If a prime is considered to be making an item, the prime is already under contract for the terms and conditions for such work. You shouldn't have to issue a duplicate contract to yourself. Yet, "yourself" now includes an organization that is legally a separate company so you need to communicate the customer requirements to it just as if this was a new factory floor of yours.
  10. I think your company should consider this be handled by a function other than supplier management. I suggest your company provide the sister company with a complete copy of the prime contract attached to a document entitled, Intercompany Transaction. The document should state 1. what goods and services are being transferred 2. Sister company is required to comply with the prime contract requirements as necessary to meet prime contract obligations, including but not limited to quality and flowdowns to sister company suppliers. 3. It is contemplated that sister company shall identify and coordinate these requirements in meetings between applicable sister company functions and prime contractor functions as necessary.
  11. yes, you "keep track" of actual hours expended as required by your accounting system.
  12. @Fara Fasat, I was responding to your use of the word "assert" as follows: "The question – can the large business assert SBIR data rights in any data it has to deliver, thus getting the same 20-year protection as the SBIR prime?" Facts about the data determine what rights the subcontractor grants to Government in (b), not unilateral assertions by a subcontractor. If a subcontractor wishes to negotiate something different, the prime Contractor will need to negotiate a change to the clause in its contract with the Government. In any event, I believe your post has been addressed.
  13. Subcontractors do not choose what data rights are granted to the Government. The clause specifies what data is delivered with unlimited rights and what data is delivered with SBIR data rights to the Government.
  14. (b) specifies various data right granted to the Government by the subcontractor. No assertion is required. Any assertion to the contrary is an exception to terms and conditions and should be deleted from the contract.
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