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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. Assuming the word "firm" means the prime contractor, my answer to this question is "yes." Assuming the word "firm" means the subcontractor, where the subcontractor is modifying and integrating non-commercial items and such work is not a commercial item or service, my answer is as follows: "Yes," the prime may subcontract with commercial item terms and conditions in accordance with FAR 52.244-6, but doing so would tend to miss prime contract terms that should be flowed for non-commercial items, Example, current cost or pricing data. This practice may be questioned as a breach of the prime contract terms and conditions.
  2. A prime contract for non-commercial items is required to include 52.244-6 Subcontracts for Commercial Items. The prime contractor shall include such clause in subcontracts for commercial items and shall to the maximum extent practicable, incorporate commercial items as components. Per this clause, prime contractors may include in such contracts a minimal number of additional clauses necessary to satisfy its [prime] contractual obligations. Also see DFARS 252.244-7000.
  3. Are you looking for an excuse to ignore your legal counsels advice? Why don't you just do what legal counsel advised you could do?
  4. I am surprised it looks to me that the government acquisition process does seem to include a process that makes it clear what statutory requirements apply to the solicitation/award even when FAR is not applicable.
  5. I think GAO, Ji, Oja, and myself seem to agree that there are federal statutes that may apply even if the FAR implementation of them may not apply in this case. I contend they should not be automatically excluded from application just because FAR may not apply. Oja's research did not seem to turn up a lot of deep analysis. My example: Is it ok to award a "no cost" contract to a debarred company that openly discriminates in the workplace and defend that action my alleging that those concepts do not apply because the contractor does not have a FAR contract and is therefore not a federal contractor?
  6. Ji, do you mean there are no provisions in FAR whatsoever that apply to such contracts? Seems like a very broad brush. Not saying you are wrong. Just, in my mind, without further research, I imagine where something like the anti-deficiency FAR requirements might not apply, for example, but what about other things like competition, subcontracting requirements, discrimination certifications and requirements, etc. Could you elaborate or provide a cite? Thanks.
  7. Could you provided the date of award, the POP, the date of the change notice and explain your thinking in stating that this change notice is not outside the scope of award and Statement of Work?
  8. Other than what I said previously, I am at a loss too. It sounds like you just hooked up with an unreasonable customer. On the outside chance that it is otherwise, could you display the changes clause that is included in your contract?
  9. You could consider the following: 1. Escalate to higher management. 2. If the amount is not too large, negotiate the change value as zero and walk away from the dispute. 3. Refuse to finalize negotiations of the change notice. When the contract is over, file suit against the prime for breach of contract, bad the faith negotiations, etc. 4. Offer a certificate of current cost or pricing data that reveals the current rates. State on the certificate that Seller does not believe this certificate is required by the contract or that the rates herein are required to be furnished to Buyer per the contract. Seller agrees to furnish it only to resolve a dispute with Buyer, who states that FAR and the contract require a disclosure of such rates. You may agree to incorporate the certificate into the contract for purposes of the change notice only.
  10. It sounds like the FFP contract incorporates a fixed sum of money for the software and implementation. I am guessing that no labor rates were incorporated into the contract terms. Could you please clarify? You are right that the showing of fair and reasonable pricing is executed by the prime's internal memorandum summary of the stated prices (s), source selection, bidding, evaluations and comparisons. If labor rates are incorporated into a FFP contract because the deal (SOW) is contractually based on such rates, there would not normally be a basis for contractual adjustment of such rates unless a change notice is negotiated. If the seller believes it has the unilateral contractual right to adjust labor rates in a FFP contract, I have doubts about whether it is a FFP contract. Please provide more details about the transaction to receive the best responses.
  11. maxj, are years 2-5 stated to be options in the contract? If so, the Government would have to exercise the options in a timely way per the option contract language and that is when you will know. If there are no options, and for example, the contract states something to the effect that year 1 is considered consideration for years 2-5, your company may be contractually obligated to fulfill orders during years 2-5 whenever ordered. As joel hoffman indicated, answers to your concerns require knowledge of the pertinent contract language. With so much at stake for a small business, you may want to engage the services of an attorney specializing in government contracts.
  12. If your company submitted pricing to the Government for this extension, the price should have included the subcontractor price. So, unclear to me why your company would now ask the subcontractor for pricing. Was the government extension mod priced or unpriced when issued? Please clarify.
  13. Terminology a little confusing to me. What task order is extended for 6 months? I understand the deal to have a base period and 2 option periods. Where does a task order fit with this or am I not understanding this correctly?
  14. Agree with Culham that you could call it anything you want. Calling it something is not the same as how you fashion your change notice and whether or not you have a unilateral right or need bilateral agreement to extend the period of performance with your subcontractor. Do you have an "Option year 2" in your subcontract? Do you have the unilateral right to change it? Did the Government? You can consider whether to mimic your subcontract action like the Government's contract action. However, what happened with the pricing for the "extension" at the government contract level? Are you contemplating issuing an unpriced change for this extension or would it be better if you requested pricing from the subcontractor, negotiate the "extension" an then issue a change to the subcontract? Etc.
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