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Neil Roberts

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About Neil Roberts

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  1. Neil Roberts

    Commercial Subcontract Template

    You can find sample commercial terms in use on line by searching for commercial terms used by aerospace companies. For example, "corpdocs Lockheed." Doesn't necessarily mean they fit your situation. I would have started with analyzing the UN contract to determine what terms need to be flowed to subcontractors in order to execute prime contract requirements. Somewhat surprising that your firm apparently does not already have standard commercial subcontract terms but apparently bid with subcontracting in mind. Perhaps if you solicited a subcontractor, they wouldn't mind sharing their standard commercial subcontract terms with you.
  2. Neil Roberts

    Out of Scope Period of Performance Extension

    Putting the unilateral mod aside, it seems like you and your customer believe that your customer fulfilled the contract requirements and it is over. On the other hand, it seems like the Government believes otherwise. There seems to be a factual dispute. It could be that the Government approach to issue a POP mod is the wrong approach to communicate design error. Nevertheless, the Government may consider default proceedings against the prime for non-performance. Suggest your customer contact an attorney so that all the facts can be established and advice given. I would be surprised if someone found a case that when there is an apparent factual dispute about performance fulfillment, the Government may not issue a unilateral PO extension mod as a way of requesting fulfillment of contract terms even if that is not the best way to assert design errors. Perhaps there is a contract clause that controls what to do when design errors are asserted. Even if there was such a POP case, that should not preclude the Government from initiating a default proceeding. Your company may wish to stay out of this fray.
  3. Neil Roberts

    Indirect changes and billings under CPFF

    My view: I am assuming the contractor has been paid all amounts up to and including the total contract funds, no further contract funding is contemplated for any reason and there has been no final closeout approved and processed. If so, there is nothing available contractually to pay the contractor at this time. However, the contractor may submit a new claim the reflects the increased DCAA approved rates for a prior year (question whether that is provisional or final rate that was approved), so that when the closeout is finalized, they may receive reimbursement for all cost and fee accepted per the final closeout action. Those amounts may be for a higher or lower amount than the claimed amount, and may or may not exceed the contract funding. If it does, no additional payment should be expected by the contractor.
  4. Agree with here_to_help that you should stay away from asserting you submitted something you didn't. However, if I were going to use "N/A" I would say something more like "N/A, exempt per (below?)" Point being that some person may just be reading the certificate for compliance decision and not reading the proposal to find out why you are asserting it is not applicable. For me, perhaps your post could have displayed the exact language of the pertinent CAS solicitation because if it were worded such that you are not required to answer provided you are claiming an exemption, I would tend to not say anything. If the CAS Disclosure Statement item was one of a number of items in the same paragraph, and you inserted "N/A" for that item but not for others, you may be shooting yourself in the foot if those were also N/A due to your claimed exemption. Could depend on where you inserted "N/A."
  5. Neil Roberts

    Cardinal Changes in Services Contract (USPS)

    Can thought been given to proposing that added sites shall be subject to Clause 2-30, cost reimbursement?
  6. Neil Roberts

    Progress Payment - Delivery Delinqiuency

    From a contractor view, I find it difficult to respond to the facts presented because there are no dates displayed to give appropriate context for me, and maybe for others. For example, did the Government issue a Stop Work Order to the contractor? When? What contract clause authorized it, FAR 52.242.15? Is the progress payment request for costs incurred prior to the Stop Work? Does the requested progress payment indicate the contractor is in a loss position? If not, I don't see any valid rationale to deny payment as requested. As an aside, like Contributing Member ji20874, I do not understand your role. It looks like your function is an advisor to the ACO and PCO regarding contract action and status. Were you asked to do that? Is that a requirement of your function? If the Stop Work is still in effect, perhaps it will be followed within 90 days by some Government action that will make your focus of this matter moot. Again, the time line concern for the facts. Finally, FYI, in my experience, excusable delay is not usually something that is responded to by the Government to the contractor like, "delays considered excusable" or "hererby approved."
  7. Some things from my prime subcontract management view. Don't see how the work can be definitively split because work statements sometimes change before award and even if it didn't change, there is no time before award for the prime and sub to agree on the cost and scope. Would you or your company be willing to guarantee it will sign the prime's subcontract as offered without negotiation? Also, customers sometimes comment about the team membership which results in other work splits than originally envisioned and selection of other team members. You should expect a sentence in the teaming agreement that contemplates good faith negotiation of a subcontract for appropriate work scope.
  8. Agree with what you say, Joel. And that is an important distinction compared to facts in this thread. On the other hand, Symvionics thinking is that (1) Government bias/bad faith may need to be proven and (2) the Government is not required to neutralize competitive advantage that one that one offeror may have over another. Seems possible to me that other offerors may be thought of as potentially proposing to accomplish some of the work through independent contractors, which perhaps may be seen as "subcontracts," therefore making DFAR 252.244-7001 more prominent. However, Symvionics is not a court or Board case.
  9. Just FYI, See this site for some government thoughts about a similar protest, although your fact situation seems to be stronger https://www.gao.gov/products/B-408505#mt=e-report
  10. Sounds like your company would be in breach of contract if it fails to provide the records. Suggest you involve an attorney with your situation and provide the written contract.
  11. In my experience with major subcontracts, there has never been a general "retrieve and retain" process or clause included in a subcontract. However, a cost reimbursement contractor should be retaining documentation of claimed costs. There might be reasons why a prime might do that in a specific situation. However, the post does not indicate any details about what is going on. The poster might receive better comments if the situation was explained.
  12. Neil Roberts

    Labor Hour CLINs

    FAR 52.232-7 does not prohibit or require that a cost reimbursable item be limited by an NTE. It is up to your company to accept or reject that concept.
  13. Neil Roberts

    Labor Hour CLINs

    Not sure what is meant by the second sentence. As for the 3rd sentence, per FAR 52.232-7 (b)(1)(ii)(C), materials mean, among other things, ODC (which may include travel). Per (b)(3) and (b)(4), such material costs appear to be reimbursable. Does your contract clause indicate the same language?
  14. It looks like this is only a DOD policy and does not apply to procurements controlled only by FAR. For Part 15 procurements in excess of the TINA threshold, contractors would typically submit its assertion and facts in support thereof in order to qualify the end item/service for an exemption from cost or pricing data. I assume the Contracting Officer would forward that info to DCMA for a decision.
  15. My recollection is that Courts and Boards have generally indicated the answer to your 1st question is "yes" it should. Not sure what you are asking in your 2nd question. Are you asking whether a Court, Board, arbitrator, auditor, Contracting Officer or similar body or person may say or think otherwise? Sometimes making this effective may require significant time and money to litigate. There is no magic wand out there that you waive at everyone to change their mind immediately. One hopes that Courts and Boards and others would follow legal precedent. DCAA Contract Audit Manual 14.112-1 indicates the the answer to your 1st question is "yes." Not sure I answered your question.
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