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Neil Roberts

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About 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. I am unable to understand whether you work for the Government or a prime contractor. In either case, FAR 52.216-8 should be included in the contract (with parties suitably modified if you are the contractor). It provides that The Government shall pay the Contractor for performing this contract only the fixed fee specified in the Schedule. You may inform the other party to the contract that you have no basis to, and do not wish to negotiate and pay for any additional fee.
  2. Do you mean USACE Acquisition Instruction 36.205-101 Cost Limitations – Military Construction Contracts.(a) Award of a contract for military construction shall be approved by the District/Center Commander when the lowest qualifying bid/proposal exceeds the Government's estimate by more than 15%. The estimate shall include an allowance for contractor profit?
  3. This far, BAT, I have not seen any posted comments (including mine) helpful to your quest for a FAR solution. Posted comments to date seem to support that "not wanting to pay" is the right initial reaction of the contracting officer. However, we do not know what is happening at the Contracting Officer/Agency level other than "the contracting officer is not wanting to pay." Have you asked the Contracting Officer if there are steps being taken to determine whether additional funds will be provided, whether the contract is to be considered complete or will be terminated, and whether you will rece
  4. To the contrary, the Anti-Deficiency Act, FAR 32.702, would seem to prohibit the contracting officer from creating or authorizing such payment at this time.
  5. -24 (AUG2020) is a solicitation provision and does not include any mandatory flowdown language. As a practical matter, I believe that contractor (and potentially subcontractor) could have serious consequences for failing to obtain this representation before entering into any contract, subcontract or other contractual instrument.The consequences could result because the representation includes language under which the Offeror is vouching for equipment or services provided to it through its subcontracts, contracts or other contractual instruments. An Offeror is excused from (d)(1) rep
  6. Thanks, ji. Still not sure the government would be receptive to a $500M cost type subcontract from a prime without the prime negotiating and obtaining certified cost or pricing data. I will research this further as to whether the government can do this but a prime can't or shouldn't.
  7. Joel, This is just a side issue. I have never heard of or believed the government would ever issue a "competitive" cost type contract. General's posting indicated the $20M Task Order award from the government was competitive and there was no certified cost or pricing data. I am not that familiar with IDIQ/Task Orders if that makes a difference. I have never viewed a cost contract as being capable of a competitive award, because the price is not fixed and in large scale cost contracts, frequently overrun. Buy-in is something to be concerned about there. In my career, I can only think of one per
  8. General, This is how I see the post to date. 1.You have used the word "fee" throughout. In my world, this usually means the subcontractor has a cost type contract. I would be surprised if your company has a cost type contract with the government. Cost type subcontracts are high risk to fixed price primes. Do you have a fixed price subcontract that states there is a fee? 2. There is already a limit to fee in cost type contracts. So, are we talking about the justification of approximately $90,000 on 900,000 in cost or is this a fixed price subcontract type with fee and if so, wh
  9. Does the government have to consent to your cost reimbursement subcontract per FAR 52.244-2?
  10. General In your situation where the subcontract modification proposed price adjustment does not exceed the given $2M threshold, certified cost or pricing data is generally not required. I believe you may be concerned with weighted guidelines re proposed profit or fee.
  11. The posting appears to indicate that the prime flowed 52.215-12 and 52.215-13 to the subcontractor, which is contrary to the instructions in 52.215-12 (c). The prime may flow one or the other, but not both. Also, it is not indicated by the posting what alterations were made to parties or terms in the flowdown. This is important in analyzing the situation. For example, the word "contract" in -13 clause in the prime contract can be considered to mean the prime contract, not the subcontract and if it means prime contract, per (a) it is only operative when there is a prime contract modification d
  12. I don't know yet what ji20874 thinks yet but based on what you have said, I see little or no success in proposing or submitting a claim for an adjustment of labor rates (including any rates for any agreed to work under any agreed to period of performance under any existing contract (IDIQ and/or Task Order) where the contract already includes the agreed to labor rates and period of performance. The government can't do that without consideration (a reason that benefits the government to do so because they already have a contract and don't have to). I don't see or understand what the consideratio
  13. Your post mentions "raise the ceiling" more than once and you also said "stuck." What do those two concepts mean to you in connection with your contract relationship with DOD? Do you have some kind of government approved rate agreement you must abide by or ??? Please elaborate.
  14. I recommend you do fact finding with the subcontractor before you incorporate the proposed into the prime responsive proposal to the customer. In the event the subcontractor is unable to adequately substantiate the rationale for proposed fee, you may wish to consider proposing to the subcontractor that the option period be a cost plus Incentive fee contract type with an incentive on fee. One such structure would be the proposed fee would be earned when the target cost for the option period is underrun by the $ amount of the negotiated fee that exceeds the previous base fee $ amount. Thus, it
  15. The short answer is "yes" it is possible that the FAR Council may issue regulations inconsistent with a regulation issued by SBA but consistent with a law that caused SBA to issue that regulation. FAR Council regulations should give deference to an unambiguous SBA regulatory interpretation of an unambiguous law passed by Congress. But, the FAR Council is not required to "blindly" mimic every single SBA regulation that is supposed to be an implementation of a law passed by Congress. It may come to a different rational view after notice of proposed regulation and comment period has concluded. In
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