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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. You posted "How to classify technology licenses - Product Service Codes, Supply/Service, & Manufactured End Products (MEP). Is that post now resolved with you? Is your current post about the same transaction?
  2. 1. Can you offer some actual license language that might give a better sense of what it is i.e., does it include a research and development component, provide for use and transfer of technology such as know-how and materials, include language that governs rights to existing and future developed IP?? 2. I question your basis for believing it is real property. Can you explain that? 3. Can the DAU Product and Service Code Selection Tool be useful to you? See, https://www.dau.edu/tools/t/Product-and-Service-Code-Selection-Tool 4. Have you asked the program to explain its classification selection?
  3. FYI, There has been an open FAR case since 2018 to implement FAR regulation(s) for prescription and flowdown provisions and clauses based on 41 U.S.C.1906 (c)(1) which reads in part as follows: (c) Subcontracts.- (1) Definition.- In this subsection, the term "subcontract" …does not include agreements entered into by a contractor for the supply of commodities that are intended for use in the performance of multiple contracts with the Federal Government and other parties and are not identifiable to any particular contract. Not clear to me what "commodities" was intended to mean. I am not aware of any draft regulations yet. There is a similar effort going on in DFARS.
  4. See SBA final rule discussion at 81 Fed. Reg. 94246 12/23/2016. Also, award decisions by primes that take lower tier subcontract credit may include the 1st tier subcontractor planned % in making competitive award decisions.
  5. Agree not required by 52.219-9. However, some primes have been able to receive credit towards its subcontracting plan goals from subcontract awards by its subcontractors. Therefore, flowing FAR 52.219-9 per 52.244-6 (c)(2).
  6. In an attempt to answer your question about "rectifying," I offer the following relative to the DOD world: 020301. Discounts As prescribed by 5 CFR 1315.7(a), if a DoD Component is offered a discount by a vendor, whether stipulated in the contract or offered against an invoice, a DoD Component must take the discount if economically justified, but only after acceptance of the goods or services has occurred. DOD 7000.14.R, Vol 10 Ch.2, Discount Offers and Rebates/Refunds (Feb 2021) . See, https://comptroller.defense.gov/Portals/45/documents/fmr/Combined_Volume1-16.pdf
  7. h2h, the prime contractor is responsible for settling subcontracts subject to approval of the government closeout of the prime, which includes closeout of subcontracts. The way you understand it, the government has no final say so with respect to subcontracts. That is incorrect.
  8. h2h, I agree that unless there is a re-opener clause for final rates, a subcontract change notice that reflects it is the final allowable cost, is most likely not subject to later unilateral adjustment of allowable cost by the prime contractor. But, that is the risk I intended to point out...closing out a subcontract with finality ahead of government final approved rates applicable to the subcontract work, may be risky. What is the risk? The government may decide to review the subcontract during the prime contract closeout and wind up questioning the basis for such a closeout, especially if the final approved rates are available at that time. I am not aware that during the prime contract closeout process, the government is prohibited from audit or review of subcontracts that were closed by the prime ahead of government final applicable approved rates for the subcontractor. Are you saying that or something different? Perhaps the prime contractors you are familiar with "just lucked out" or were "flying below the radar" or pre-coordinated the closeout rates basis with the government determination per FAR 42.708 Quick closeout criteria.
  9. Perhaps you can elaborate how there is no risk?
  10. For DOD, see https://dodprocurementtoolbox.com/cms/sites/default/files/resources/2019-11/Contract Closeout Guidebook_20191025_Final.pdf. In particular, perhaps page 22 as follows: •Refer the matter to higher authority • Other non-contractual remedies such as inclusion of comments in Preaward Surveys or the Contractor Performance Reporting System (CPARS) • Suspend interim financing payments on other contracts • Disallow or recoup previously paid costs • Decrement bidding/billing rates • Initiate appropriate systems reviews • Maintain fee withholds • Notify the DCAA office that the contractor represents a risk for overbilling and recommend closer monitoring of interim vouchers for payment and that sampling parameters of interim vouchers be increased. After the Contracting Officer determines the reason for non-submission of final vouchers, several alternate methods exist that will enable the contracts to be closed. They include: • Unilateral Determination • Accelerated Final Voucher Preparation and Review Process
  11. I assume this was meant for cost type subcontracts. If such a prime contractor closes the subcontract applying such non-final indirect rates, it may risk not being reimbursed in the event the government approves lower final indirect rates for the subcontract. For fixed price subcontracts, final rates are not relevant to closeout of the subcontract.
  12. The DOD CUI Registry lists the laws, regulations and government-wide policies requiring DOD safeguarding of each CUI category. See, https://www.dodcui.mil/Portals/109/Documents/CUI Registry/CUI Registry PDF 18 MAY 21.pdf?ver=oY8Aux88iwaicCIJbabl8A%3d%3d. There is a Procurement and Acquisition category. I reviewed it and did not find any inclusion of DPAS related ratings (FAR 52.211-15 , FAR 11.6, 15 CFR 700).
  13. You may start your research with DOD by reviewing https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/520048p.PDF
  14. Sure, an "honest mistake" causing the situation is different than an intentional act as to the punishment and/or risk, but not as to doing the right thing, which you have said was to refrain from notifying your competitor that you are in possession of its proprietary information through no fault of your own.
  15. An article about one of the most famous cases of the time regarding proprietary information in the hands of a competitor, and the bidding process. The penalty appears to have included company suspension, taking away previous awards and criminal charges. https://www.pillsburylaw.com/images/content/2/6/v2/2654/0E71DCF8C5D6174617EC8FAB2117C197.pdf
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