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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. Sounds like you should include language in your contract with the prime that you are to be paid 100% in advance within x days after the prime accepts a prime contract award. Also, you should include language in your contract with the staffing agency that they agree to provide all required labor within x days after you receive payment for the labor from your customer. In my experience, the prime contract arrangement you seem to need is not the usual arrangement...the prime would likely need to ask the government for your advance payment and/or obtain a loan to finance it.
  2. DOD Instruction 1400.25 Vol. 451 appears to be in effect. The latest version I could find is dated Nov 4, 2013 with an apparent expiration date of Nov 4, 2023. It provides as follows at Enclosure 3, page 16: (2) To avoid issues in connection with contractual relationships and obligations, actual or perceived conflicts of interest,and actual or perceived acts of favoritism, persons, organizations, or companies having a commercial or profit-making relationship with the DoD or with a DoD Component will not be granted recognition. The single exception is if the contribution is deemed to be un
  3. It seems like the program is wondering whether this would be a personal services contract, which is limited by FAR 37.104 and would require coordination with the civilian personnel office per paragraph (f).. This has nothing to do with whether it is or is not a commercial service. You may wish to look into that and form your own opinion. See, for example, (c) (1)An employer-employee relationship under a service contract occurs when, as a result of (i) the contract’s terms or (ii) the manner of its administration during performance, contractor personnel are subject to the relatively
  4. This is a federal case, Info Tech and we don't know what state regulations are and whether there is a state decision making body for such matters as pre or post contract disputes. However, it sounds rational that it could also be a "whatever is reasonable" standard in the applicable state.
  5. You are experienced at doing your own research. You might want to take a look at https://www.gao.gov/assets/700/695135.pdf and other similar decisions. It appears from this decision that the standard is whether the agency’s decision not to answer the questions was reasonable.
  6. Yes. Also encountered is a mod to an existing contract that adds long lead material for the follow-on, with an intent to issue a new follow-on contract.
  7. If your business still wants to spend the money to prepare a bid, you may wish to make your bid price a "few $100k cheaper" and indicate that the bid price is "subject to answers to the 16 questions asked."
  8. See SBA rule 121.404 for the rules that apply to "going large" during contract performance. https://www.ecfr.gov/cgi-bin/text-idx?SID=8cd2bc8b5b576fe23aaa3b3b947057fa&mc=true&node=pt13.1.121&rgn=div5#se13.1.121_1404. CAS might apply to a contract modification offered and accepted to the "going large" small business if the modification is out of scope new work when the small business has already "gone large." Also re-certification of business size status during contract performance may be requested in certain "going large" situations. See paragraph (g) of the above rules.
  9. In my private industry world, I believe a contractor has a right to escalate discussions to a different level. However, discussions should not be "reporting." Also, in my experience, contractors are usually sensitive to working with the KO because after all, it's business. On the other hand, bullying is reportable as unacceptable behavior. I would hope that Government management would open up discussion with the contractor representative and the KO separately, to get to the bottom of the problem. On a worst case basis, where it is actually poor behavior by the contractor, I would hope you or
  10. My observation is that paragraph II Cost Elements requires a "breakdown" of your indirect cost rate and direct labor examples. Paragraph I General requires that cost or pricing data (see 2.101 definition) be submitted. Could it be that this fills in the apparent gap?
  11. Retreadfed, I certainly get that practice request by the Government and what it signifies. In that situation, a prime should further revise the Certificate that has already been revised for standard use between the prime and sub, i.e., contractor means offeror, etc. The further revision should at a minimum delete ** and *** language from the certificate if it already has not been deleted from it and/or include some language that it is being submitted in support of the price agreement between the contractor and the government.
  12. I do not agree. Per FAR 15.406-2, the Certificate is required from a subcontractor as close as practicable to the date when your company reached price agreement with the subcontractor, not when your company reached price agreement with the Government. The Government has no contractual relationship with the subcontractor. Contractors request cost or pricing data updates from subcontractors in writing to support the contractor negotiations with the Government as required. There is no subcontractor Certificate associated with such updates.
  13. Is your company required to comply with Cost Accounting Standards? If not, this may not be a contractual concern. If so, has your company submitted a Disclosure Statement and can we assume there is nothing in the Disclosure Statement dealing with how this is treated?
  14. In my view, cost plus a percentage of cost situation is inapplicable here because there were no contract terms under which contractor had ability to control and manipulate incurrence of performance costs and where fee payment terms were included in the contract as a % of said incurred costs. Also, it seems like the government may have been partially responsible for why there were not timely negotiations. Therefore, I think you should negotiate based on the analysis of proposed costs and weighted guideline fee. It seems better to have bilateral agreement in this case, than not. If the contracto
  15. Yes. FAR 2.101 defines certified cost or pricing data as follows: Certified cost or pricing data means "cost or pricing data" that were required to be submitted in accordance with FAR 15.403-4 and 15.403-5 and have been certified, or is required to be certified...
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