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Neil Roberts

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About Neil Roberts

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    Southern California/Nationwide
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    Domestic and International travel. Providing comments and references for educational purposes. No legal advice is given or intended.

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  1. Struggling a little with the question. Can we assume that FAR 52.215-22 is included in your IDIQ contract and that prior to award of the IDIQ contract, you did not disclose any information that you intended to subcontract more than 70 percent of the total cost of work to be performed under the contract, a task order or delivery order? And, can we assume that now you have been given more specific information by the government of the task order work you are pursuing for award and that this information did not exist at the time of the IDIQ pre-award? If so, I would say that prior to award of the task order, you should disclose the subcontract that apparently cost more than 70% of the work under that task order. Are the facts different from above?
  2. Does the contract include an expiration date? Probably not, right? Does your company wish to continue? Did the government express in writing that it didn't want the work to ever continue? Check with your attorney to weigh in on the business risk, but first get familiar with the subject matter. See https://www.dykema.com/media/publication/134_Sayre-Clayborn.pdf.
  3. Not sure why you don't believe paragraph (c) (1) "backs you up." Was the price offered by the prime your regularly established price for the quantity involved? Have you sold the item previously at that price and quantity? Were you offered an undefinitized subcontract? Why is the prime refusing to offer another price? Is the value of the transaction in excess of the truth in negotiations threshold and/or an exception to it?
  4. I read 52.242-15 (b) (if that is in your contract) to require that you resume work.
  5. Your situation is rare from my contractor side view. I would send the required DPAS notice of non acceptance within the given time. I would put an acceptable price in the notice. If the prime "corrects" the price with a change notice, I could then accept the deal.
  6. In the event that storm caused substantial increases in cost that was unforseeable, and the Government terminates the contract for cause, the government contractor may be successful in a commercial impracticality defense to such termination. I would hope that government personnel are aware of this and take that possible disruption into account by weighing all the factors before making decisions such as denying disaster driven equitable adjustment claims that are adequately supported.
  7. Yes, you are making sense to me. And, as you say, the requirement is ambiguous. You can push back with your argument. However, my view is that the Third requirement does not appear to be applicable only at $10,000 and above. You may be able to make headway with narrowing some of the 14 supporting documents being requested in support of the Third requirement. I would ask that the government put its 14 items in writing. You may then file for an equitable adjustment on the basis of those you interpret as out of scope to a reasonable reading of the requirement. For example, perhaps your company contemplated that the government would inspect by ocular analysis and validate/verify by reviewing your electronic records or supporting paper files...hence, your claim for equitable adjustment.
  8. kathilou, I am not sure what role you have and who your employer is. Do you work for a state or U.S. government agency? Are you the agency rep for the work and are you in contact with the contracting officer? Did the contracting office issue a solicitation and/or change notice to the prime contractor for the impact of Hurricane Michael? What rationale did government finance give for the denial? Was this a payment request by the prime contractor? Was it denied because there is no line item for that work at that price? Does the contract include FAR 52.249-8 Default, FAR 52.249-14 Excusable Delays?
  9. Federal Source Code Policy does not seem to favor the government transferring ownership of proprietary commercial software code from the private sector to the government. See https://obamawhitehouse.archives.gov/sites/default/files/omb/memoranda/2016/m_16_21.pdf The first sentence of the second paragraph reads as follows: When Federal agencies are unable to identify an existing Federal or commercial software solution that satisfies their specific needs, they may choose to develop a custom software solution on their own or pay for its development.
  10. Based on your response, mtclymer, my view is that you are performing work at a government facility and therefore the clauses are applicable. If you want to avoid that, I suggest you propose deleting all such work from the task order, reduce the price of the proposal accordingly (unable to determine if you already received an award contract) and seek a task order term and condition that the government agrees that you shall perform no work at any government facility. I am not familiar with what a "partial performance" contract term would do for you. To me, either you are performing some work there, or you are not. I don't see how you can perform oversight without performing work (verbal or non-verbal communication).
  11. What type contract is contemplated i.e. firm fixed price, fixed price level of effort, cost type, hourly rate, etc? Are the non-profit's personnel performing any service, advice etc in connection with integration and test activities? Is it contemplated that such non-profit personnel would be paid contract dollars to be there? Are they just "observing" at no cost to the government and their being there for integration and test activities are not required by the contract???? More details would be better in my view.
  12. Im my experience at a major prime contractor, this is not standard. There is usually little time available to sift through all supplier proprietary information and notify the supplier which information is going to be submitted to the government. The supplier marked information is already protected from Government disclosure as I indicated above. Between the supplier and the prime there should be some NDA type language indicating that each would keep confidential and protect each others confidential, proprietary and/or trade secret information during the pre-award process except that any and all such information may be disclosed by the prime to the government for the purpose of obtaining an award.
  13. Yes, in general, having competitive bids from suppliers is considered adequate price competition and provides an exception to those suppliers providing cost or pricing data. Are you required to provide cost or pricing data to your customer? What specifically did the government state was deficient in your process that needed corrective action? Did your company clearly price a BOM?
  14. From a contractor view, I sympathize with the situation because prime contractors deal with that concern with subcontractors. However, transferring ownership of the code to the government puts the software company out of business with respect to that software item. They can no longer service another customer's needs/requirements unless you license them for continued use and their advances of the code. Typically, you would not be entitled to their software code updated advances they develop (sometimes called "maintenance") unless you paid for it through a license. So, I believe you are back to square one. If the civilian agency has the software coders to "maintain" the code to fit the agencies future needs and changes that would be different. I recommend the agency seek advice from its intellectual property attorney. You could issue an RFI and RFP to seek solutions. Perhaps their is now open software that can substitute. What has been your experience since 2012 with this concept of transferring code ownership?
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